* This order and judgment is not binding precedent, e xcept under the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

### JUL 12 2001 

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

KAMAL K. PATEL,

Plaintiff-Appellant,

v. TOM L. WOOTEN, Ex-Warden, FCI Florence; LOU ROCKVAM, Food Service Administrator; JENNY ROPER, Ex-Food Service Administrator; WENDELL BELL, Assistant Food Service Administrator,

Defendants-Appellees. No. 00-1187 (D.C. No. 96-M-286) (D. Colo)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination1 Plaintiff’s First Amendment claim, his only other c laim to survive his first

appeal, was dismissed by stipulation. See R. Vol. I, docs. 91, 92. -2- of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Kamal K. Patel, a federal prisoner appear ing pro se, appeals from the district court’s grant of summary judgment to d efendants in his action brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. At this juncture, plaintiff’s remaining claim is fo r damages against defendants based on his assertion that they violate d his Fifth Amendment right to the equal protection of the law while he was housedat the Federal Correctional Institution, Florence, Colorado (“FCI-Florence”). See Patel v. United States , No. 97-1083, 1997 WL 764570 (10th Cir. Dec. 4, 1997). 1 Plaintiff was housed at FCI-Florence from March 25, 1993 until January 2 6, 1997. He is a Hindu and therefore does not eat meat. He alleges that defen dants failed to provide him with an appropriate substitute for meat on either of FCI -Florence’s two meal plans, even though defendants always provided Jewish and M uslim inmates with a substitute for pork, which Jews and Muslims do not eat. The district court decided that plaintiff was not t reated differently than other inmates because no inmate, whatever his relig ious faith, was allowed to-3-

choose the protein source in his meal. R. doc. 130 , at 12. The district court therefore concluded that plaintiff had failed to es tablish a constitutional claim. Id. The district court also held in the alternative t hat defendants were following Bureau of Prisons (BOP) policy related to inmate me als and, as a result, were entitled to qualified immunity on plaintiff’s claim. Id. Plaintiff argues on appeal that: (1) BOP regulatio ns do not shield defendants because defendants failed to accommodate his religious dietary restrictions while accommodating the dietary needs of inmates of other faiths, even after they knew that he was a Hindu and did no t eat meat; and (2) regulations governing the BOP’s “common fare” r eligious meal plan allowed defendants to replace a meat item with a vegetarian item from the shelf, but they refused to exercise this option. We review the grant of summary judgment de novo. Eastman Kodak Co. v. Image Technical Servs., Inc. , 504 U.S. 451, 465 n.10 (1992). Summary judgment is appropriate if there is no genuine issue of mate rial fact and the moving parties are entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). To withstand summary judgment, the nonmoving party “must come forward with ‘specific f acts showing that there is a genuine issue for trial .’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quoting Rule 56(e) (empha sis added)). The evidence is2 This circuit has previously required a plaintiff to meet a heightened

pleading standard when subjective intent was an ele ment of the substantive claim and the defendant raised a qualified immunity defense. See, e.g. , Breidenbach v. Bolish , 126 F.3d 1288, 1292 (10th Cir. 1997) (reviewing d enial of motion to dismiss); Gehl Group v. Koby , 63 F.3d 1528, 1535 (10th Cir. 1995) (reviewing grant of summary judgment). We recently held, revi ewing a dismissal under Fed. R. Civ. P. 12(b)(6), that our heightened plead ing requirement does not survive the Supreme Court’s opinion in Crawford-El v. Britton , 523 U.S. 574 (1998). Currier v. Doran , 242 F.3d 905, 916 (10th Cir. 2001). Even though we were reviewing a dismissal in Currier , we noted that Crawford-El decided that the D.C. Circuit’s heightened pleading requirement at t he summary judgment stage was improper. Currier , 242 F.3d at 913-14, 916. Thus, there is no quest ion that our heightened pleading requirement at the summary judgment stage was also overturned by Crawford-El

. -4- considered in the light most favorable to the non-moving party. Behrens v. Pelletier , 516 U.S. 299, 309 (1996). When defendants base amotion for summary judgment on the defense of qualified immunity, the plaintiff must show that defendants violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). “[T]he Due Process Clause of the Fifth Amendment co ntains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.” Washington v. Davis , 426 U.S. 229, 239 (1976). The challenged disparate treatmen t must be the result of purposeful discrimination. Harris v. McRae , 448 U.S. 297, 323 n.26 (1980). 2 Because plaintiff is a prisoner, however, our analy sis of his equal protection claim-5-

is guided by the Supreme Court’s decision in Turner v. Safley , 482 U.S. 78 (1987). Washington v. Harper , 494 U.S. 210, 223-24 (1990) (“We made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.”). In Turner , the Supreme Court adopted a lower standard of scrutiny in evaluating the constitutionality of prison rules an d regulations, in order to balance prisoners’ constitutional rights with the deference due officials delegated the responsibility of administering prisons. Id. at 84-85. The Court decided that “when a prison regulation impinges on inmates’ cons titutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. Four factors are relevant to determining t he validity of a prison regulation that infringes a prisoner’s constitution al right: (1) whether a valid and rational connection exists between the regulation a nd a legitimate governmental interest advanced as a justification; (2) whether, notwithstanding the regulation, alternative means exist for the prisoner to exercis e the right; (3) what effect an accommodation of the prisoner’s constitutional right would have on guards, inmates and prison resources; and (4) whether an al ternative is available which would accommodate the prisoner’s rights at a de min imis cost to valid penological interests. Id. at 89-91. Because the district court found that p laintiff had not-6-

made a prima facie showing of a constitutional viol ation, it did not consider these factors. We hold that plaintiff made a sufficient threshold showing of an equal protection violation and the case must be remanded for the district court to do the
Turner analysis. To briefly summarize the evidence more fully presented in his district court brief: pork was always accompanied by a protein substitute on the main cafeteria line. R. Vol. III, Doc. 106, Ex. A at 25, Ex. F at 54, Ex. G. This was done not as a matter of regulation, but as a matter of discretion. Id. , Ex. A at 25. The practice originated because it would ac commodate Jewish and Muslim inmates, who did not eat pork for religious reasons , although other inmates would also choose an alternative to pork. Id. , Ex. C at 15-16. Pork was never served on the “common fare” religious diet, and meat was f requently the only entree.
See id. , Ex. D, Att. A. The common fare plan ostensibly s erves the dietary needs of all faiths, but specifically mentions only issue s of concern to Jews and Muslims. Id. , Ex. D. Protein substitutes such as beans, cheese , and peanut butter were not regularly available on the salad bar. Id. , Ex. B, ¶ 3. Such protein substitutes were regularly stocked in the kitchen and were readily available, however. Id. , Ex. C at 18-19. The common fare regulations spec ifically allowed hot entrees on that meal plan to be replaced with “ shelf stabilized meals from the commissary.” Id. , Ex. D, Att. A at 1-7. Plaintiff told defendants that he desired-7-

a substitute for meat due to his religious beliefs. Id. , Ex. H. In response, defendants told him to choose the common fare plan or to pick and choose between the main line and the salad bar if he did n ot wish to eat a meat entree. Id. Defendants argue that they did not serve a substitute for pork to accommodate the religious needs of Jewish and Musli m inmates, and plaintiff therefore cannot show that they discriminated again st him. This argument is without merit. By defendants’ admission, they inte nded to accommodate Jewish and Muslim inmates’ dietary restrictions on the common fare plan. Id. , Ex. D. Plaintiff presented evidence that defendants began a practice of providing a meat substitute for pork on the main cafeteria line to a ccommodate Jewish inmates. Id. , Ex. C at 15-16. Moreover, whatever the reason th at defendants provided a meat substitute for pork on the main cafeteria li ne, the effect of that practice was to accommodate the religious dietary needs of J ewish and Muslin inmates. Plaintiff’s evidence therefore creates a genuine is sue of fact as to whether defendants intentionally discriminated against him after he pointed out that the meat they provided as a substitute for pork on bothplans did not satisfy the requirement of his Hindu faith to avoid meat as wel l as pork. A fair inference can be drawn that defendants deliberately treated plain tiff differently than Jewish and Muslim inmates.3 Plaintiff moves to supplement the record with evide nce that FCI-El Reno,

Oklahoma, provides a no-flesh alternative to meat. Plaintiff offers this evidence ostensibly to prove that BOP policy did not preventdefendants from accommodating his requests for such a substitution at FCI-Florence. Because this evidence was created several years after the events plaintiff complains of at FCI-Florence, and because it was not presented to the district court, we decline to consider it now. Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1458 n.13 (10th Cir. 1997).

-8- Defendants also argue that the alleged disparate tr eatment between plaintiff and other inmates was justified because they were following BOP policy. 3 This argument ignores that defendants’ conduct is not ju dged by whether it comported with BOP policy, but by whether this conduct comported with the Constitution.
See Turner , 482 U.S. at 84-85. We decline to decide in the f irst instance whether the BOP meal regulations are valid under Turner

. Defendants maintain that plaintiff did not raise in the district court his argument that the common fare regulations allowed t hem to substitute a shelf item for the planned entree. Contrary to defendants’ as sertion, plaintiff advanced this argument in his response to their motion for summary judgment. See, e.g. , R. Vol. III, Doc. 106, at 2, 5, 16, Ex. B, at 2 ¶ 7 , Ex. D, Att. 1, at 1-7. In sum, because plaintiff made a prima facie showin g of an equal protection claim, we REVERSE the district court’s grant of sum mary judgment to defendants, and REMAND for the district court to ap point counsel for plaintiff4 Defendants on appeal do not assert the defense of q ualified immunity, so

we decline to address it. -9- and to conduct further proceedings consistent with this order and judgment. 4 Plaintiff’s motion to supplement the record with ne wly discovered evidence is denied.

Entered for the Court

David M. Ebel Circuit Judge-10-

00-1187, Patel v. Wooten
PORFILIO , Senior Circuit Judge, dissent.

I dissent for two reasons. First, I believe the co urt has lost sight of the nature of this case. In an attempt to ferret out t he constitutionality of the menu policies of the Bureau of Prisons, this dispositionignores, I believe, the absence from this case of either the Bureau of Prisons or any official responsible for those policies. Second, because this action is merely on e for damages in which the liability of four individuals employed at FCI-Flore nce is the only issue, the disposition fails to take their immunity into accou nt. Because the BOP was dismissed from this case, I bel ieve the constitutionality of its regulations is not a quest ion before us. In my opinion, therefore, the Turnerinquiry ordered here is inapposite. This case is simply about the action of four discrete individuals and t heir individual liability, not the regulations and policy of the BOP. Moreover, a finding that the BOP policy in questionis in violation of the Constitution could not resolve this case. Because the case is postured only as a claim of damages from the named defendants, their i mmunity would foreclose judgment for the plaintiff. Oddly enough, a findin g that the menu policy is constitutionally supportable would not be dispositi ve either. There would remain-11-

unresolved the plaintiff’s claim the defendants are liable because they refused to take what he contends are discretionary actions all owed under the BOP policy. Finally, I submit we have no indication in the reco rd that the policy in issue is viable. Indeed, having long ago been transferre d from FCI-Florence, Mr. Patel has submitted to us information purporting to show he was able to obtain an acceptable menu from another federal penal institut ion. Thus, I seriously question whether the constitutional issue is not mo ot. I am concerned also that the remand would result in a needless waste of prec ious judicial resources. Further, I agree with the district court that the d efendants are at least qualifiedly immune from suit in this case. Saucier v. Katz , U.S. , 121 S. Ct. 2151, 2156 (2001) reminds us unless it would be clear to a reasonable official in the circumstances of the case that his actions w ere unlawful, immunity should be granted. The Court emphasized this result obtai ns even if the official’s actions could be considered unconstitutional, 121 S. Ct. at2158. In this case, the district court properly noted the defendants were “following orders” by enforcing the policy they believed required by the BOP. Thus, the immunity paradigm requires that we ask, “ Was it clear at the time the defendants acted that what they did violated th e law?” Because this court itself is not presently prepared to answer that que stion, I find it difficult to fathom how the defendants could be held to a higher standard of knowledge.