NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-1101

___________

DONALD D. PARKELL,

Appellant

v.

CHRISTOPHER SENATO, Food Services Administrator, in his individual and official 

capacities; MATTHEW DUTTON, Inmate Grievance Coordinator, in his individual and 

official capacities; FRANK PENNELL, Chaplain 2, in his individual and official 

capacities

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1-14-cv-00446)

District Judge: Honorable Sue L. Robinson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 7, 2017

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed July 11, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Donald Parkell appeals pro se from the District Court’s orders awarding summary 

judgment on his claims filed under the First Amendment, the Fourteenth Amendment, 

and the Religious Land Use and Institutionalized Persons Act (RLUIPA). We will affirm 

in part, vacate in part, and remand for further proceedings.

I.

Parkell initiated this action in April 2014 against three officials from the James T. 

Vaughn Correctional Center (VCC)—Food Services Administrator Christopher Senato, 

Chaplain Frank Pennell, and Inmate Grievance Coordinator Matthew Dutton—alleging 

that they denied him equal protection of the law, and violated his rights protected by the 

First Amendment and RLUIPA by failing to timely provide him with a kosher diet.

In February 2014, Chaplain Pennell approved Parkell’s change-of-religion request, 

from “Roman Catholic or Wicca” to Jewish.1 About two weeks later, after Parkell had 

requested a kosher diet in accordance with his change of religion, Senato sent him a 

memorandum stating that “to receive the kosher meals you need to have a rabbi verify to 

us that you are an Orthodox Jew.” Parkell submitted a grievance the next day, asking that 

he be placed on a kosher diet immediately, because eating non-kosher food violated his 

religious beliefs.2 Dutton returned this grievance as unprocessed, advising Parkell to 

 

1 Parkell has consistently self-identified throughout this litigation as “Jewish/Wicca.” As 

he explained in his complaint: “a study in historical proofs compelled me to believe in the 

Jewish interpretation of God, morality, law, nature . . . . [but] one irreconcilable belief [] 

will not allow a Rabbi to recognize my faith as Jewish, the belief in a dualistic deity.” 

2 As Parkell put it: “I must eat kosher and live according to kashruth law [Jewish dietary 

law]. I am not of Jewish descent, nor have I gone through conversion to satisfy other 
3

direct his request to Pennell. About two weeks later, Parkell submitted a “Religious Diet 

Participation Agreement”—later signed by security staff on April 17, 2014—indicating 

that he is “Kosher Practicing.” 

Under DOC Policy Number 5.3 in effect at that time,3it appears that Parkell 

should have been permitted a kosher diet after submitting this agreement. According to 

an affidavit filed in the District Court by Senato, however, the DOC at that time “required 

that those inmates requesting kosher diets be Orthodox Jews,” although he did not 

identify the source of the policy. He also stated that this unidentified policy changed in 

April 2016, permitting non-Jewish inmates to receive a kosher diet so long as it is part of 

a sincerely held religious belief.

Meanwhile, Parkell filed this action in April 2014. He later moved to voluntarily 

dismiss his request for injunctive relief in May 2016 after he was provided a kosher diet 

consistent with the April 2016 policy change and counsel for Defendants represented that 

they would continue to provide it. By order entered on July 27, 2016, the District Court 

granted Defendants’ motion for summary judgment in part, concluding that Dutton 

lacked sufficient personal involvement in this action and that Parkell’s RLUIPA claim 

was moot because he voluntarily dismissed his request for injunctive relief in May 2016. 

 

people. I simply believe that eating non-kosher food violates my soul’s purpose to 

celebrate and worship God and the Goddess through rituals demanded within Hebrew 

texts.”

3 Policy Number 5.3 (effective date July 16, 2012) provides that “[t]he DOC shall provide 

a religious diet to offenders who have self reported a religious affiliation and submit their 

written request on the DOC Religious Diet Participation Agreement.”
4

Ultimately, in a December 13, 2016 order, the District Court granted summary judgment 

on Parkell’s remaining equal-protection and First Amendment claims, concluding that 

Senato and Pennell were entitled to qualified immunity. This timely appeal ensued.

II.

We have jurisdiction under 28 U.S.C. § 1291. On appeal, Parkell challenges both 

summary judgment orders.4 We exercise plenary review over these judgments and apply 

the same test the District Court utilized—whether the record “shows that there is no 

genuine issue as to any material fact and that the moving party is entitled to judgment as 

a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (quoting Federal 

Rule of Civil Procedure 56(a)).

First, we agree with the Appellees that the District Court properly awarded 

summary judgment in their favor on Parkell’s RLUIPA claim. RLUIPA does not allow 

for the recovery of money damages, see Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir. 

2012); in other words, a RLUIPA plaintiff may seek only injunctive or declaratory relief. 

The District Court properly concluded that Parkell’s request for injunctive relief was 

moot because he had voluntarily dismissed it in May 2016.5 It also properly concluded 

 

4 Parkell does not contest the District Court’s dismissal of Dutton, and thus we will not 

address it. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well 

settled that an appellant's failure to identify or argue an issue in his opening brief 

constitutes waiver of that issue on appeal.”).

5 Parkell argues on appeal that the “capable of repetition” exception to mootness applies 

because Appellees “have shown the probability that they will return to a denial (and 

evade review).” He explains that when he is moved to another building, “it takes 3 to 5 

days for them to provide the diet to the new assigned unit.” But a party invoking the 
5

that he could not seek declaratory relief—which is “by definition prospective in nature,” 

CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013), and cannot 

be issued to address past wrongs.

The District Court resolved Parkell’s First Amendment and equal-protection 

claims6 on the basis of qualified immunity, which “shields federal and state officials from 

money damages unless a plaintiff pleads facts showing (1) that the official violated a 

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time 

of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal 

citation omitted). The District Court conceded—at least for purposes of summary 

judgment7—that a constitutional violation occurred here.8 It opined that “the DOC’s 

 

“capable of repetition” exception must show, among other things, “a reasonable 

expectation that . . . [he] will be subject to the same action again.” Rendell v. Rumsfeld, 

484 F.3d 236, 241 (3d Cir. 2007) (internal quotation marks and citation omitted). The 

“same action” here is the outright denial of kosher meals, and thus Parkell’s citation to 

temporary administrative delays is insufficient to invoke the exception, which is “narrow 

and available only in exceptional situations.” Id. (internal quotation marks and citation 

omitted). 

6 The District Court analyzed these claims collectively under the Turner v. Safley, 482 

U.S. 78 (1987), factors, correctly observing that “Turner is equally applicable to 

Prisoners' equal protection claims.” But the claims are distinct. Parkell predicated his 

First Amendment claim on the denial of his kosher-diet request, while his equalprotection claim—which he brought “as a class of one”—was predicated on “being 

required to have Jewish ancestry as one of the possible two ways to be recognized as 

Jewish.” His class-of-one claim fails—and could have been dismissed by the District 

Court—because he did not allege that he was the only inmate without Jewish ancestry at 

VCC who sought to be recognized as Jewish. See Renchenski v. Williams, 622 F.3d 315, 

338 (3d Cir. 2010). Thus we will address only his First Amendment claim.

7 Facts “accepted at the summary judgment stage of the proceedings, may not be the 

actual facts of the case.” Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012) 

(internal quotation marks and citation omitted).
6

religious diet policy in effect prior to April 6, 2016 (restricting kosher diets to only 

Orthodox Jews), was constitutionally infirm under Turner,” but concluded that Senato 

and Pennell were entitled to qualified immunity, because “given the novel issue plaintiff 

presented to defendants . . . reasonable officials in their position at the relevant time 

would have no reason to believe that their conduct was unlawful.” 

The District Court focused on Parkell’s particular beliefs, and essentially asked 

whether a practitioner of both Judaism and Wicca,9like Parkell, enjoyed a clearly 

established right to a kosher diet, answering this question with a “no.” Senato and 

Pennell frame the question similarly on appeal—they claim that Parkell “practiced a 

belief that was ‘impossible’ to define,” and argue that, “in the absence [of] case law or [a] 

framework with which to understand Plaintiff’s belief system, and any rights associated 

with it, Defendants acted reasonably in denying Plaintiff’s request for a kosher meal.” 

We do not doubt that Parkell’s belief system—which he characterizes as 

“Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates 

established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 

(2002). In Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir. 2011), for instance, a prison 

chaplain denied a prisoner’s request for a vegan diet, which the prisoner had requested 

 

8 The Court recognized that the “First Amendment violation was a continuing one for a 

two-year period, from April 2014 until April 6, 2016.”

9 The Seventh Circuit, among others, has “recognized that the Church of Wicca occupies 

a place in the lives of its members parallel to that of more conventional religions.” 

Knowles v. Pfister, 829 F.3d 516, 518 (7th Cir. 2016) (internal quotations marks and 

citation omitted).
7

because he adhered to Moorish Science, a “personal religious faith” according to the 

Court of Appeals. The chaplain denied the request on the ground that the tenets of 

Moorish Science required only a non-pork diet (not a strictly vegan diet), but the prisoner 

argued that his “religious beliefs require[d] a vegan diet no matter what other members of 

his sect believe[d].” Id. at 592. The Court of Appeals framed the First Amendment 

qualified-immunity question as whether the “chaplain [] had evaluated [the prisoner’s] 

sincerity (as opposed to his orthodoxy)[.]” Id. at 594. As Judge Easterbrook explained, 

“to decide whether [the] chaplain [] has qualified immunity, the district judge must 

determine whether he reasonably attempted to determine whether [the prisoner] has a 

sincere belief that his religion requires a vegan diet,” id. at 595, and “[i]f he turned [the 

prisoner] down for the sole reason that Moorish Science does not make a vegan diet a 

tenet of religious faith, then he violated [the prisoner’s] clearly established rights and is 

not entitled to immunity.” Id. at 594.

Based on the record before us, it appears that Senato and Pennell did just this. 

Even though Parkell advised them, in a March 2014 grievance, that his beliefs required 

him to eat kosher meals—beliefs the District Court found to be both religious in nature 

and sincere10—they denied his request for more than two years, and did so based on their 

assessment of the tenets of his belief system (because his belief system did not comport 

 

10 As the Court opined, “a review of the record reflects plaintiff’s consistency in 

expressing his sincere religious beliefs.” Senato conceded as much in his affidavit in 

support of his motion for summary judgment—he stated that Parkell was approved for a 

kosher diet in April 2016, and, to obtain such a diet, a prisoner must “demonstrate[] that 

his request for a kosher diet is part of a sincerely held religious belief.” 
8

with Orthodox Judaism). They are not entitled to qualified immunity under these 

circumstances.11 

Accordingly, we will vacate the portion of the District Court’s order affording 

Senato and Pennell qualified immunity on Parkell’s First Amendment claim12 and 

remand for further proceedings consistent with this opinion. We will affirm the District 

Court’s decision in all other respects. To ultimately prevail on his First Amendment 

claim, Parkell will still need to persuade a jury that his sincerely held religious beliefs 

required him to eat a kosher diet. See Vinning-El, 657 F.3d at 595 (7th Cir. 2011); see 

also Edwards, 666 F.3d at 1292 n.1 (“Our job [in reviewing a district court’s award of 

qualified immunity] is to determine only whether the evidence can be read to support . . . 

qualified immunity, not to predict how the jury will weigh that same evidence.”) 

(emphasis in original).

 

11 While we “must not define clearly established law at a high level of generality,” alKidd, 563 U.S. at 742, we have clearly established a prisoner’s right to a religiouslymotivated diet so long as the views underlying the diet are “(1) sincerely held, and (2) 

religious in nature, in [his] scheme of things.” DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 

2000) (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1029 (3d Cir. 1981). That

Parkell’s views are novel—or unorthodox—does not matter for purposes of qualified 

immunity. See Vinning-El, 657 F.3d at 594 (“[S]incerity rather than orthodoxy is the 

touchstone.”). 

12 We do not reach the question of whether Senato and Parkell are entitled to qualified 

immunity on Parkell’s equal-protection claim because that claim fails for other reasons. 

See supra, n.6.