UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY DOSWELL,

Plaintiff-Appellant,

v. No. 94-6780

DAVE SMITH,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-94-316-R)

Argued: December 1, 1997

Decided: March 13, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, reversed in part, vacated and remanded by unpublished opinion. Senior Judge Phillips wrote the opinion, in which

Judge Murnaghan joined. Judge Widener wrote a concurring opinion.

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COUNSEL

ARGUED: Patrick M. Curran, Student Counsel, Appellate Litigation

Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Collin Jefferson Hite, Assistant Attorney

General, OFFICE OF THE ATTORNEY GENERAL, Richmond,

Virginia, for Appellee. ON BRIEF: Steven H. Goldblatt, Director,
Mary L. Clark, Supervising Attorney, James M. Oleske, Student

Counsel, J. Christian Word, Student Counsel, Appellate Litigation

Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. James S. Gilmore, III, Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PHILLIPS, Senior Circuit Judge:

Larry Doswell, a Virginia prison inmate, appeals from the judgment of the district court dismissing on the merits his claims of violations of due process and free exercise rights by Virginia prison

officials in transferring him to a prison facility which did not provide

the kosher food required by his asserted religious belief. Because we

cannot discern the legal basis for the court's dismissal of the free

exercise claim, we vacate the judgment dismissing it and remand the

claim for reconsideration. Because we believe the due process claim

to be subsumed within and dependent upon the free exercise claim,

we decline to disturb its dismissal.

I.

Doswell is an inmate of the Virginia Department of Corrections

("VDOC"). Sometime in 1991, while incarcerated at Greensville Correctional Center ("Greensville"), Doswell decided to convert to the

Jewish faith. After he had informed prison officials of his religious

conversion, Doswell was transferred to Buckingham Correctional

Center ("Buckingham"), which at the time was the only correctional

institution in Virginia to offer kosher meals.1 Doswell received kosher

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1 At oral argument, the State indicated that as part of state-wide reorganization Augusta Correctional Center now serves kosher meals to

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meals at Buckingham continuously until April 6, 1994, when he was

transferred to Augusta Correctional Center ("Augusta"), a move the

Commonwealth asserts was necessary after its discovery of a plot by

Doswell to kill two correctional officers at Buckingham.

Upon arriving at Augusta, Doswell was placed in segregated confinement. He was not informed of the reason for his transfer nor why

he was placed in segregated confinement. When informed that he

could not receive kosher meals at Augusta, Doswell refused to eat the

regular fare offered there but instead purchased prepackaged cheese,

crackers, and noodles from the prison commissary. After nearly a

month of this practice, Doswell filed this action pro se.

In the action Doswell sought a temporary restraining order enjoining the wardens at Augusta and Buckingham from holding him in

segregated confinement at Augusta, from denying him a kosher diet,

and challenged the transfer from Buckingham to Augusta.

Following some procedural preliminaries, the district court granted

in part and denied in part the Commonwealth's motion for summary

judgment. Construing Doswell's complaint to allege under 42 U.S.C.

§ 1983 both a free exercise claim respecting the kosher diet denial and

a procedural due process claim respecting the transfer, the court

granted the motion to dismiss the procedural due process claim and

denied the motion to dismiss the free exercise claim on the basis that

there were as to that claim genuine issues of material fact. In dismissing the due process claim, the court concluded that Doswell's transfer

did not implicate a protected liberty or property interest under Virginia law and therefore the State was free to transfer Doswell without

providing either pre or post-deprivation procedures. See JA 100-01.

After a bench trial, the court then denied Doswell's free-exercise

claim. Relying on the basic principle that the Free Exercise Clause

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inmates who demonstrate a sincerely held religious motivation. The State

continues to maintain, however, that Doswell is not entitled to kosher

meals at Augusta because he does not have a sincerely held religious

belief justifying his receipt of kosher meals. The State's continued

refusal to afford Doswell kosher meals prevents these recent developments from mooting Doswell's claims.

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only protects the exercise of sincerely held religious beliefs, the court

concluded "that any personal belief that [Doswell] should keep

[k]osher is based primarily on a desire to eat food which has not been

prepared or otherwise touched by other inmates." JA 309. Since Doswell described himself as an Orthodox Jew, the court credited the testimony of an ordained rabbi who (over objection from Doswell) stated

in deposition testimony that Doswell was not an Orthodox Jew.

Because Doswell was not born Jewish and because he had not undergone the extensive and formalized process required for conversion,

Doswell had not satisfied the requirements of the Orthodox faith.

Doswell's deposition testimony also demonstrated, in the court's

view, a limited understanding of his self-proclaimed religious faith.

Doswell knew little if anything of Jewish holidays, customs, or practices and did not understand the difference between the various

branches of the Jewish faith. In addition, Doswell demonstrated a limited understanding of what constitutes "kosher" food, appearing erroneously to believe that kosher food must be prayed over. At no time

had Doswell consulted with a Jewish rabbi to better inform himself.

On the basis of this evidence, the district court found that Doswell's stated preference for kosher food was not religiously motivated

but was instead based on a secular desire for clean food not prepared

by other prisoners. Although the court did "not question the sincerity

of Doswell's belief that he is a Jew or his desire to follow the tenets

of that faith," the court found that Doswell's belief that "Judaism

requires him to keep [k]osher [was] mistaken." JA 309. On these findings, the court concluded that Doswell had failed to prove the existence of a protected free exercise right and dismissed the claim on that

basis. This appeal followed.

II.

Doswell challenges both the district court's dismissal by summary

judgment of his due process claim and the dismissal following bench

trial of his free exercise claim.2

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2 At the time briefs in this appeal were filed, Doswell also contended

that his allegations should be interpreted as raising a claim under the

Religious Freedom Restoration Act. The Supreme Court's decision in

City of Boerne v. Flores, 117 S. Ct. 2157 (1997), striking down that Act

makes consideration of this claim unnecessary.

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A.

We take first the free exercise claim.

In evaluating it, we begin with the basic principle that "[p]rison

walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley , 482 U.S. 78, 84 (1987).

In particular, imprisonment does not completely abrogate a prisoner's

right to a free exercise of his religion. See O'Lone v. Estate of

Shabazz, 482 U.S. 342, 348-49 (1987). But, "[l]awful incarceration

brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying

our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948). For

that reason, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. Here, the district

court dismissed the claim on the basis that Doswell had failed to

prove the existence of the protected free exercise right claimed, and

so did not reach the question whether there might be penological justification for infringing upon it. The only issue before us, therefore,

is whether the court erred in concluding that no free exercise right had

been proved to exist, that is, whether the evidence failed to show that

Doswell's asserted belief that he should observe kosher dietary laws

was a belief "sincerely held and . . . in [his] own scheme of things,

religious." United States v. Seeger, 380 U.S. 163, 185 (1965).

Certain established principles for evaluating the sincerity and religious basis for a purported belief are of particular relevance to this

claim as it comes to us. It is well-settled that"religious beliefs need

not be acceptable, logical, consistent, or comprehensible to others in

order to merit First Amendment protection." Thomas v. Review Bd.

Ind. Empl. Sec. Div., 450 U.S. 707, 714 (1981). Adherents "may not

be put to the proof of their religious doctrines or beliefs. Religious

experiences which are as real as life to some may be incomprehensible to others." United States v. Ballard, 322 U.S. 78, 86 (1944).

Here, the district court did "not question the sincerity of Doswell's

belief that he is a Jew or his desire to follow the tenets of that faith,"

JA 309, but, on our reading of the court's opinion, concluded that any

belief that this required him to observe a kosher diet was secular as

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opposed to religious in nature. Several statements in the district

court's opinion lead us to this conclusion. The court observed that

"individual practices not based in sincere, religious beliefs are not

protected . . . ." Id. at 308 (emphasis in original). And, that "the court

cannot find that Doswell's belief that he must practice a [k]osher diet

is based on a religious belief." Id. at 309.

Whether one's beliefs and practices are religiously motivated is of

course a difficult question for courts of law to decide. In deciding it,

they must take care to "avoid any predisposition toward conventional

religions so that unfamiliar faiths are not branded mere secular

beliefs." Africa v. Com. of Pa., 662 F.2d 1025, 1031 (3d Cir. 1981).

But the inquiry, however difficult, is necessary, for while "the very

concept of ordered liberty precludes allowing every person to make

his own standards on matters of conduct in which society as a whole

has important interests," Wisconsin v. Yoder , 406 U.S. 205, 215-16

(1972), the Free Exercise Clause protects those beliefs that are "religious" and sincerely held.

The inquiry is of course particularly difficult when the asserted

belief is a new or exotic one outside the mainstream of traditional,

clearly established, religious beliefs held and practiced in the society.

See, e.g. Africa, 662 F.2d at 1032-33 (assessing whether a locally

practiced belief system called MOVE was religious in nature);

Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir. 1982) (concluding

that Native-American's belief that his hair was a"sense organ" was

a protected religious belief under the First Amendment).

The belief asserted here, that as one professing the Jewish faith,

Doswell was under obligation to observe kosher dietary laws, is not

of such an exotic character. It involves a practice indisputably integral

to that religious faith as traditionally practiced for millennia. That the

practitioner's understanding of the origins, exact contours, or reasons

for that particular practice may be mistaken, or incomplete, or at serious odds with the understanding of others holding the belief, including even those most expert by education or experience in interpreting

its true nature, is beside the point. See Thomas 450 U.S. at 715-16

(observing that "the guarantee of free exercise is not limited to beliefs

which are shared by all of the members of a religious sect"); Dettmer

v. Landon, 799 F.2d 929, 932 (4th Cir. 1986) ("The Supreme Court

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has recognized that differing beliefs and practices are not uncommon

among followers of a particular creed.") (citation omitted).

To the extent therefore that the district court rested its decision

solely on the basis that Doswell's belief "that Judaism require[d] him

to keep [k]osher, [was] mistaken," the district court strayed from the

proper judicial path in assessing whether a professed belief is or is not

religious in nature. For though the sincerity of a professed religious

belief may surely be questioned, its "validity" as a religious belief

may not be questioned on the basis that the holder does not understand its true nature. See Seeger, 380 U.S. at 184. If this was the legal

basis for the court's decision, the decision would therefore be legally

flawed and could not stand.

But, that this was the legal basis is not sufficiently clear from the

total context of the court's opinion to provide a confident basis for

declaring it error requiring reversal. Two other possible views that

can as plausibly be deduced as the basis for the court's decision

require attention. They relate to the "sincerity" prong of the free exercise inquiry, specifically to the court's observation that while the

court did "not question [hence found?] the sincerity of Doswell's

belief that he is a Jew or his desire to follow the tenets of that faith",

it nevertheless concluded that his belief that "Judaism requires him to

keep [k]osher is mistaken." JA 309. This might indicate two quite different views of how the sincerity of belief requirement applied here.

One would be that the assumed (or found) sincerity of Doswell's

religious belief extended only to a general acceptance of Judaism and

its tenets but not specifically to the practice of kosher as one of its

tenets--again because of Doswell's mistaken understanding of that

particular tenet. That is to say, that a belief indisputably "religious"

in nature could not be one sincerely held by one who was mistaken

in his understanding of its exact nature. That is no more acceptable

than is the closely-related view above discussed that one ignorant of

the true meaning of a particular religious tenet could not therefore

hold it as a "religious" belief. To the extent this was the basis of the

court's ultimate determination, it also would be legal error. But,

again, we cannot be confident enough that it was the basis for the

court's decision to reverse the judgment on that ground.

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There remains one other equally plausible basis for the court's

decision that must be taken into account. This would be the view that

though Doswell's belief that he must keep kosher was sincerely held,

the reason for the sincerely held belief was the purely secular one of

personal hygiene and sanitation and not because it was "rooted in

[his] religion." Thomas, 450 U.S. at 713. That is suggested by the

court's express finding that the belief was "based primarily on a

desire to eat food which has not been prepared or touched by other

inmates," JA 309, and the complementary statement that "the court

cannot find that [the belief] is based on a religious belief." Id.

These observations may properly reflect a recognition that the

same belief may be sincerely held by some as a religious belief and

as sincerely held by others as a simple matter of secular preference;

that the proper free exercise inquiry is therefore whether a belief is

sincerely held as a religious belief; and that this will sometimes

require distinguishing between the two as possible grounds for a particular sincerely held belief. If so, the view reflected comports with

settled free exercise doctrine and could properly have informed the

district court's factual assessment. See, e.g., Frazee v. Illinois

Employment Security Dept., 489 U.S. 829, 833 (1989) (recognizing,

in determining whether work-free Sabbath belief,"however sincere,"

was protected, "the difficulty of distinguishing between religious and

secular convictions and in determining whether a professed belief is

sincerely held"). But, again, it is not clear from all that was said that

this was the view actually applied.

In sum, we see in the district court's opinion three possible alternative understandings of the applicable free exercise principles that may

have provided the legal framework for the court's final decision.

Whichever was the view actually held, it necessarily informed the

court's ultimate factual finding that Doswell's asserted belief was not

a sincerely held religious one. Either of two, if the basis for decision,

would have involved legal misapprehensions fatally tainting the ultimate decision: (1) that Doswell's particular belief was not a "religious" one because it was at odds with a proper understanding of its

true nature, or (2) that it was not a "sincerely held" one because "mistaken" as to its true nature. The third, that the belief, though sincerely

held was sincerely held not as a religious belief but for purely secular

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reasons, comports with free exercise doctrine and would have provided a proper legal framework for the court's factual assessment.

In this circumstance, we conclude that we must vacate the judgment dismissing this claim and remand it for reconsideration in light

of this opinion. Vacatur and remand is required because we cannot

know what the district court's dispositive factual findings would be

if made under the proper legal framework, or whether, when so made,

those findings would be supported by the evidence.

Within that framework, the proper inquiry is narrowly whether

Doswell's asserted belief that he should observe a kosher diet is sincerely held as a religious belief or only for purely secular reasons.

That he may be ignorant or mistaken as to the true nature of this belief

as it is understood by others is irrelevant to whether his particular

belief is "religious" or to whether he holds it "sincerely." Such ignorance or mistake as might be found would be relevant only to the

issue whether for him it was sincerely held as a religious belief. And,

on that issue, an adverse determination could only be based on a

mediate finding that in asserting the belief Doswell was deliberately

misrepresenting its true basis in his belief system. 3

B.

Challenging the district court's dismissal of the procedural due process claim by summary judgment, Doswell contends that although

under Meachum v. Fano, 427 U.S. 215 (1976), procedural due process protections were not triggered merely by his transfer within the

prison system, they were triggered by the impact had upon the liberty

interests implicated in the Free Exercise Clause. See Williams v. Lane,

851 F.2d 867, 880 (7th Cir. 1988).

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3 Resolution of that issue in Doswell's favor would not of course end

the matter. The claim might yet be defeated by the Commonwealth's

defense of penological justification for the transfer that allegedly

impinged on the free exercise right. See Turner , 482 U.S. at 89. That

potential issue has not been addressed by the district court and we

express no opinion upon it.

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We have concluded that we should consider this claim to be essentially subsumed within the remanded free exercise claim, and decline

therefore to disturb the district court's disposition. So far as we can

see, assuming without deciding the viability of Doswell's legal theory, success on this claim directly depends upon success on the free

exercise claim. If the latter claim fails, so must the due process claim

under Doswell's theory. If the free exercise claim were to succeed, we

can think of no further remedy for violation of the related due process

claim than would be provided on the free exercise claim.

III.

Accordingly, we vacate the judgment dismissing the free exercise

claim and remand it for further proceedings consistent with this opinion. We affirm dismissal of the procedural due process claim.

SO ORDERED

WIDENER, Circuit Judge, concurring:

If the district court on remand finds it to be clear that the belief of

Doswell which has prompted his objection to a diet other than kosher

occupies the same place in his life as the belief in a kosher diet holds

in the lives of Orthodox Jews, and the same is sincerely held, then he

is entitled to the kosher diet, unless there is some other reason the

Commonwealth need not supply it. See Seeger, 380 U.S. 163 at 176

and 187.

On that basis, I concur in the majority opinion.

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