* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 4 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KAMAL K. PATEL,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA; BUREAU OF PRISONS; TOM (I) WOOTEN, Ex-Warden, FCI Florence; LOU ROCKVAN, Food ServiceAdministrator; JENNY ROPER, ExFood Service Administrator; FNU BELL, Assistant Food Service Administrator; FNU FISHMAN, Food Service Employee; GIL LYDE, Unit Manager; FNU PELTIER, Counselor; KEN LINCOLN, Counselor; FNU McNAMARA, Food Service Employee; N. WAYNE SMITH, Associate Warden and One John Doe, Food Service Employees; J. ARMIJO,

Defendants-Appellees. No. 97-1083 (D.C. No. 96-M-286) (D. Colo.)

ORDER AND JUDGMENT *** The Honorable J. Thomas Marten, District Judge, Uni ted States District

Court for the District of Kansas, sitting by design ation. -2- Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff, a federal inmate appearing pro se, appea ls from the district court’s grant of summary judgment to defendants in his action brought pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. Plaintiff, a Hindu, was incarcerated at the Federal Correctional Institution, Florence, Colorado (FCI Florence) from March 25, 19 93 until January 26, 1997. He maintains that as a Hindu, he may not eat meat o r foods prepared with utensils that have been contaminated by meat. He participat ed in the prison’s “common fare” religious diet program from September 9, 1994 until January 15, 1995, in an attempt to receive food satisfying his religious re strictions. For the rest of his time at FCI Florence, plaintiff took food off the m ain cafeteria line. In his complaint, he asserted that defendants denied him f ood conforming to his religious beliefs while he was housed at FCI Floren ce, in contrast to their practice1 Plaintiff requested that his claims for injunctive relief regarding the alleged

seizure of his Bhagvad Gita and his claims for dama ges against defendants in their official capacities be dismissed; the magistr ate judge therefore included these requests in his recommendations. The magistr ate judge further recommended that summary judgment be granted in fav or of defendant Smith, as plaintiff had not shown that Smith personally parti cipated in the claims related to his diet. The magistrate judge also recommended th at summary judgment be granted in favor of the United States and the Bureau of Prisons on the basis of their sovereign immunity. Plaintiff has waived anyarguments to these adverse recommendations because he did not object to the ma gistrate judge’s findings and recommendation. See Ayala v. United States , 980 F.2d 1342, 1352 (10th Cir. 1992). They are also supported by the record and the law. -3- of accommodating the dietary needs of Jewish and Mu slim inmates, and in violation of the United States Constitution, the Re ligious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and th eir own regulations. He also alleged that defendants seized his copy of the Bhagvad Gita, the Hindu equivalent of the Christian Bible, in violation of his constitutional rights. He sought damages and declaratory and injunctive relie f. Defendants filed a motion to dismiss or, in the alternative, for summary judg ment. They asserted, among other defenses, their entitlement to qualified immu nity on plaintiff’s claims concerning his diet. They denied that any of them had seized plaintiff’s holy book, and argued that plaintiff had not exhausted h is administrative remedies on his claim that his holy book was unlawfully seized. The magistrate judge recommended that defendants’ m otion be granted in part and denied in part. 1 The district court reviewed the case de novo and granted-4-

the motion in it entirety. It held that plaintiff’ s claims for injunctive relief were moot because plaintiff had been transferred away fr om FCI Florence. It held, further, that plaintiff did not have a clearly esta blished constitutional right to a diet conforming to his religious beliefs, and that defendants were entitled to qualified immunity on plaintiff’s claims related to his diet as a result. The court held that plaintiff had not shown that defendants a cted with the intention to deprive him of his holy book, and that his claims that it was unlawfully seized were therefore inadequate. The court also held that plaintiff had failed to exhaust his administrative remedies on claims related to hi s book. On appeal, plaintiff argues that the district courterred: (1) in dismissing his claims that defendants failed to provide him wi th a diet conforming to his religious practice in violation of the First, Fifth , and Eighth Amendments, the Religious Freedom Restoration Act, and their own re gulations; (2) in dismissing his claim that some of the defendants seized his Bh agvad Gita in violation of the First Amendment; and (3) in holding that defendants were entitled to qualified immunity. We note at the outset that the district court corre ctly dismissed plaintiff’s claims for injunctive relief. Plaintiff’s claims f or declaratory relief are likewise moot. He has been transferred away from FCI Floren ce and there is no indication-5-

that he will be transferred back. Only plaintiff’s claims for money damages remain. In addition, the Supreme Court has recently held th e Religious Freedom Restoration Act unconstitutional. See City of Boerne v. Flores , 117 S. Ct. 2157, 2172 (1997). We therefore need not consider the me rits of plaintiff’s RFRA claim. We review the grant of summary judgment de novo, ap plying the same standard as that applied by the district court. Se e Clemmons v. Bohannon , 956 F.2d 1523, 1525 (10th Cir. 1992). “Summary jud gment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We also review de novo defendants’ claim that they are entitled to qualified immunity. See Davis v. Gracey , 111 F.3d 1472, 1478 (10th Cir. 1997). Qualified immunity is analyzed in two steps: first, we determine whether plaintiff has alleged the violation of a constitutional right, “a nd then we decide whether that right was clearly established such that a reasonabl e person in the defendant’s position would have known that [his] conduct violat ed the right.” Id. (quoting2 The government informs the court that plaintiff err ed, and that this

defendant’s name is “Rockvam.” -6- Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siege rt v. Gilley , 500 U.S. 226, 231 (1991))). Plaintiff adequately alleged that defendants failed to accommodate his religious dietary needs in violation of the First and Fifth Amendments. Thus, the first part of the qualified immunity inquiry is sat isfied. As for the second step, it was established in this circuit in 1991 that prison ers have a constitutional right to a diet conforming to sincerely held religious belie fs, unless the regulation denying that accommodation “is reasonably related to legiti mate penological interests.” LaFevers v. Saffle , 936 F.2d 1117, 1119 (10th Cir. 1991) (quoting Turner v. Safley , 482 U.S. 78, 89 (1987)). Because plaintiff’s complaint relates to events that are alleged to have occurred in 1993 or later, defendants are not entitled to qualified immunity on the claims related to his die t. Plaintiff must demonstrate, however, that each rema ining defendant personally participated in the alleged deprivation of his constitutional rights. See Kaul v. Stephan , 83 F.3d 1208, 1213 & n.3 (10th Cir. 1996) (§ 1983 case). Evidence in the record shows that defendants Wooten , Bell, Rockvam, 2and Roper knew that plaintiff requested meat substitutes for religious reasons. See R. doc. 41, ex. 16, 20; doc. 52, PE 5, 7. Plaintif f has therefore established a-7-

genuine issue of material fact as to these defendan ts, and his First Amendment claim must be remanded. There is no evidence to sh ow that defendants Fishman, Lyde, Peltier, Lincoln, McNamara, Armijo, or One Jo hn Doe knew about plaintiff’s religious beliefs as they related to hi s diet, however. These defendants are therefore entitled to summary judgment on all o f plaintiff’s claims related to his diet. Plaintiff’s equal protection claim must also be rem anded for further proceedings. Cf. LaFevers , 936 F.2d at 1120 (remanding state inmate’s equal protection claim for determination whether his reli gious dietary requirements were sincerely held). Plaintiff has pointed out th at defendants’ regulation for the “common fare” religious diet program purports to ac commodate religious dietary needs. See R. doc. 41, ex. 3. He alleges in his affidavit, h owever, that he has observed that Muslim inmates are provided a pork su bstitute, while Hindu inmates are not afforded a meat substitute. See id. doc. 52, PE 2 at 1-2. Defendants have asserted no reason, at this point, that would justi fy treating Muslims and Hindus differently with respect to diet substitutions. Pl aintiff has sufficiently supported his equal protection claim at this juncture. Cf. Abbott v. McCotter , 13 F.3d 1439, 1441 (10th Cir. 1994) (affirming dismissal of priso ner’s conclusory allegations that failed to describe different treatment of clas ses of inmates).-8-

Plaintiff’s Eighth Amendment claim was properly dis missed. Plaintiff alleged that during a three-week lockdown in late 1 995, he was frequently given two meat sandwiches in his brown bag meal instead o f one meat and one meatless sandwich, and was subjected to “severe hunger.” Ap pellant’s Opening Br. at 4. The relevant exhibit shows that two meat sandwiches were served only on Fridays, however, and indicates that there was foodin each Friday’s brown bag meal other than the meat sandwiches. See R. doc. 52, PE 11. This showing is insufficient to demonstrate cruel and unusual punis hment. Cf. LaFevers , 936 F.2d at 1120 (holding prisoner given three meals each day does not state Eighth Amendment claim). Defendants are entitled to summary judgment on plai ntiff’s claims that his Bhagvad Gita was unlawfully seized during the lockd own. Although his claim for money damages for the alleged unlawful seizure does not require exhaustion of administrative remedies, see McCarthy v. Madigan , 503 U.S. 140, 149 (1992), plaintiff’s evidence (as opposed to his allegations ) fails to name which defendants participated in the alleged seizure. His evidence is therefore inadequate to establish the personal participation of any defendant in the alleged seizure of his book. See Kaul , 83 F.3d at 1213 & n.3.-9-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED in part and REVERSED in part and the case is REMANDED for further proceedings consistent with th e order and judgment. The mandate shall issue forthwith.

Entered for the Court

J. Thomas Marten District Judge