1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-1998

Johnson v. Horn

Precedential or Non-Precedential:

Docket 97-3581,97-3582

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Recommended Citation

"Johnson v. Horn" (1998). 1998 Decisions. Paper 174.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/174
Filed July 28, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-3581, 97-3582 

JEFFREY E. JOHNSON; BRUCE HOWARD SHORE, 

 Appellants in No. 97-3581 

v. 

MARTIN F. HORN; RAYMOND J. SOBINA, 

 Appellants in No. 97-3582 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 96-cv-00318J) 

Argued: June 10, 1998 

Before: BECKER, Chief Judge, ALDISERT and WEIS, 

Circuit Judges 

(Filed: July 28, 1998) 

 Jon Pushinsky (argued) 

 1808 Law & Finance Building 

 Pittsburgh, PA 15219 

 Attorney for Appellants/ 

 Cross-Appellees 

 Jeffrey E. Johnson and 

 Bruce Howard Shore 
 Sarah B. Vandenbraak, 

 Chief Counsel (argued) 

 Jill Fluck, Assistant Counsel 

 Pennsylvania Department of 

 Corrections 

 2520 Lisburn Road, P.O. Box 598 

 Camp Hill, PA 17001-0598 

 Attorneys for Appellees/ 

 Cross-Appellants 

 Martin F. Horn and 

 Raymond J. Sobina 

 Isaac M. Jaroslawicz, 

 Director of Legal Affairs 

 The Aleph Institute 

 9450 Collins Avenue 

 Surfside, FL 33154 

 Attorney for Amicus Curiae 

 The Aleph Institute 

 Burton Caine 

 Temple University School of Law 

 1719 North Broad Street 

 Philadelphia, PA 19122 

 Attorney for Amicus Curiae 

 American Civil Liberties Union of 

 Pennsylvania 

OPINION OF THE COURT 

ALDISERT, Circuit Judge. 

This case once again presents the federal courts with the 

serious and difficult task of balancing an individual's First 

Amendment right to free exercise of religion with the 

principle, derived from the concepts of separation of powers 

and federalism inherent in our constitutional order, that 

federal courts should afford substantial deference to the 

administration of state correctional institutions. 

Specifically, we are asked to decide whether two Jewish 

inmates detained in the Pennsylvania prison system have a 

constitutional right to hot kosher meals provided to them at 

the Commonwealth's expense. 

 2 
As inmates at the Pennsylvania State Correctional 

Institute in Somerset (the "Prison"), Appellants Jeffrey 

Johnson and Bruce Shore (the "Inmates") sued Appellees 

Raymond Sobina, the Prison Superintendent, and Martin 

Horn, the Commissioner of the Pennsylvania Department of 

Corrections (the "Prison Officials"), in federal district court. 

Johnson, a former inmate, and Shore, still an inmate, are 

members of the Jewish faith. They allege that the Prison 

Officials' denial to them of a daily kosher diet, including two 

hot kosher meals, violated several of their constitutional 

rights. The district court granted partial summary 

judgment to both sides and entered an injunction requiring 

the Prison Officials to provide Shore with a cold kosher diet 

at the Prison's expense. Both sides appeal from that order. 

We have jurisdiction over that part of the district court's 

order granting summary judgment pursuant to 28 U.S.C. 

S 1291, and we will affirm the order in that respect. 

Because we decide that the district court's injunction is 

moot, we will vacate that part of the order granting 

prospective relief. 

I. 

In November 1996, Johnson and Shore were inmates at

the Prison. Johnson was serving one to two years for 

attempted theft by deception and Shore was serving four to 

eight years for burglary. 

Both Johnson and Shore are Jewish and consider 

themselves bound by the laws of kashrut, or kosher.

According to the affidavit of Rabbi Dr. Baruch A. Poupko, 

the laws of kosher are "categorically binding upon every 

Jewish man and woman." JA at 64. Kosher laws dictate 

what foods can be eaten and how they can be prepared. 

Kosher food cannot be prepared in a non-kosher kitchen, 

but a sealed, frozen kosher meal can be stored in a

conventional freezer and heated in a conventional or 

microwave oven. 

A Department of Corrections policy provides that all 

inmates shall receive three meals a day, two of which are 

hot. Johnson, who previously had received kosher foods 

while in the federal prison system, arrived at the Prison in 

 3 
May 1996. In June and July 1996, utilizing the Prison's 

grievance system, Johnson requested a kosher diet from 

Prison officials. The Prison's Grievance Coordinator denied 

his request, and Sobina affirmed this decision, stating: "Mr. 

Johnson has the ability to pick and choose items that are 

to his liking, whether it be for religious or personal diet 

reasons." JA at 39. If Sobina meant to suggest that

Johnson's diet was a matter of personal choice, his

response demonstrated a misunderstanding of the laws of 

kashrut. However, neither Johnson nor his Rabbi ever 

explained to Prison officials what a kosher diet entails. 

Johnson appealed Sobina's decision to the Central Office of 

the Pennsylvania Department of Corrections. Upon 

recommendation of the Central Office Review Committee, 

Commissioner Horn upheld the decision. 

Shore arrived at the Prison in December 1995. In October 

and November 1996, Shore attempted for the first time to 

obtain kosher meals through the Prison's grievance 

procedures. As with Johnson, his request was denied. 

In November 1996, Johnson and Shore filed suit against 

Horn and Sobina in federal district court, alleging that the 

denial of kosher meals violated the First Amendment, giving 

rise to a cause of action under 42 U.S.C. S 1983, and 

violated the Religious Freedom Restoration Act ("RFRA"), 42 

U.S.C. SS 2000bb to 2000bb-4 (West 1997). The Supreme 

Court subsequently declared RFRA unconstitutional. City of 

Boerne v. Flores, 117 S. Ct. 2157, 2172 (1997) (RFRA 

exceeds Congress's Fourteenth Amendment enforcement

powers). Johnson and Shore allege that after theyfiled suit, 

they were subject to a continuing pattern of retaliation and 

anti-semitic harassment from other inmates and prison 

guards.1 Complaints to Sobina about the alleged 

harassment were unavailing. 

On November 13, 1996, the district court issued a 

temporary restraining order requiring the Prison Officials to 

provide Johnson and Shore with kosher food at every meal. 

_________________________________________________________________ 

1. The Inmates made these allegations in a March 1997 motion for 

emergency preliminary injunction. The record does not indicate that the 

district court ever ruled on this motion, and neither these allegations 

nor 

the accompanying motion for injunctive relief are now before us. 

 4 
The Prison subsequently provided Johnson and Shore with 

a kosher diet consisting of milk, unpeeled fruit, uncut raw 

vegetables and a vanilla-flavored liquid nutritional 

supplement called "Resource" (the "cold kosher diet"). The 

Prison charged the Inmates for the kosher food by 

deducting funds from their inmate accounts. In an affidavit 

submitted on the Inmates behalf, dietician Joanne 

Perelman stated that this diet "probably [provided] the 

proscribed [sic] number of calories and the required 

nutritional composition of vitamins and minerals." JA at 

230. However, she felt the diet placed the Inmates"in a 

compromised dietary condition" because the liquid 

nutritional supplement provided "the bulk of their 

nutrition." Id. The magistrate judge recommended against 

this original cold kosher diet as a long-term solution, but 

endorsed it pending the final outcome of the litigation, with 

the understanding that the Prison would continue to

provide the cold kosher diet to the Inmates. Based on this 

recommendation, the district court dissolved the temporary 

restraining order on December 24, 1996. 

The cold kosher diet eventually was augmented to 

include granola, pretzels, cereal and saltines. Id. at 236. 

Prison dietician Brian Shedleski stated in his affidavit that 

he had performed an in-depth analysis of this diet using a 

computer model which considered the height, weight, age, 

gender and activity level of each Inmate, as well as the 

Recommend Dietary Allowance values set by the National 

Academy of Sciences. Based on this analysis, Shedleski 

concluded that "the diet is adequate and sufficiently meets 

the nutritional criteria set forth by the National Academy of 

Sciences." JA at 235. 

Johnson was released from custody on August 9, 1997, 

at which time his claims for injunctive relief became moot. 

He remains a plaintiff only for the purpose of seeking 

damages. 

At the close of discovery, the parties filed cross-motions 

for summary judgment. The Inmates argued that the cold 

kosher diet the Prison was providing them was 

constitutionally inadequate and that they, like other 

prisoners, were entitled to two hot, appetizing meals a day. 

Shore asked that the Prison be required to purchase frozen 

 5 
kosher meals which could be heated for him twice a day in 

the Prison kitchen. The cost of purchasing frozen kosher 

meals is around $2.00 per meal, or approximately $4.00 

per inmate per day.2 On the other hand, the cold kosher 

diet costs the prison $7.24 per inmate per day. Id. at 316. 

On August 29, 1997, the magistrate judge filed a report 

recommending that the district court grant partial 

summary judgment to both sides. Specifically, the 

magistrate judge recommended that, in order for the Prison 

Officials to comply with the First Amendment and the 

Equal Protection Clause of the Fourteenth Amendment, the 

district court issue an injunction requiring the Prison 

Officials to (1) continue providing Shore the cold kosher diet 

and (2) refrain from charging Shore for kosher meals. The 

magistrate judge also determined that Johnson and Shore 

had no equal protection right to hot kosher meals, and 

recommended that the district court grant the Prison 

Officials qualified immunity from the Inmates' claims for 

money damages. On September 24, 1997, after the parties 

filed objections to the magistrate judge's report, the district 

court filed an opinion and order granting partial summary 

judgment to both sides and entering an injunction as 

recommended. Both sides appealed. 

Oral argument was heard on June 10, 1998, at which 

time counsel for the Prison Officials made the following two 

concessions: (1) the Prison Officials are required to provide 

Shore with some form of kosher diet and (2) they may not 

charge him for it. These concessions have narrowed not 

only the scope of our review, but also the jurisdiction of the 

district court. 

We have plenary review over the district court's decision 

to grant summary judgment. Sabo v. Metropolitan Life Ins. 

_________________________________________________________________ 

2. For the first time at oral argument, the Prison Officials asserted that 

the provision of kosher meals was actually more expensive than this 

because the Prison needed to buy an additional frozen meal for heat 

testing. This assertion is not supported by the record. The declaration of 

Prison Food Services Chief Marcia Noles does state that frozen kosher 

meals have to be heat tested, but her cost evaluation does not indicate 

that a separate meal must be purchased for this purpose. See JA at 83- 

84. 

 6 
Co., 137 F.3d 185, 195 (3d Cir. 1998). Summary judgment 

is appropriate if there are no genuine issues of material fact 

and the moving party is entitled to judgment as a matter of 

law. Id.; Rule 56(c), Federal Rules of Civil Procedure. 

II. 

The First Amendment provides that "Congress shall make 

no law respecting an establishment of religion, or 

prohibiting a free exercise thereof . . . ." U.S. Const. amend. 

I. In order to establish that the Prison Officials' denial of a 

hot kosher diet violates the Free Exercise Clause, the 

Inmates must show that the Prison Officials' decision 

contravenes their sincere religious beliefs, Africa v. 

Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981), and that 

it is not "reasonably related to legitimate penological 

interests," Cooper v. Tard, 855 F.2d 125, 129 (3d Cir. 

1988). 

The scope of our review has been narrowed by the Prison 

Officials' concessions at oral argument. Relevant to the 

First Amendment claim, the Prison Officials conceded that 

the Inmates are entitled to receive some kosher diet. In light 

of this concession, the Prison Officials' cross-appeal 

challenging the sincerity of the Inmates' religious beliefs is 

moot. The only issue, then, is whether the Free Exercise 

Clause requires the Prison Officials to provide the Inmates 

with hot kosher meals, as distinguished from the cold 

kosher diet.3 On this particular issue, the district court 

granted the Prison Officials partial summary judgment. We 

conclude that summary judgment was appropriate because 

the First Amendment requires only that the Prison Officials 

provide the Inmates with a kosher diet sufficient to sustain 

the Inmates in good health, and the Inmates have failed to 

create a genuine issue that the cold kosher diet 

compromises their health. 

"[A] prison regulation impinging on inmates' 

_________________________________________________________________ 

3. The Prison Officials' total denial of any kosher diet prior to the 

establishment of the cold kosher diet is relevant to the Inmates' damages 

count, but summary judgment is appropriate on that count because the 

Prison Officials are entitled to qualified immunity. See infra part V. 

 7 
constitutional rights is valid if reasonably related to 

legitimate penological interests." Cooper, 855 F.2d at 128. 

The Supreme Court has noted that this inquiry necessarily 

involves the balance of two competing principles: First, an 

individual does not surrender the protections which the 

Constitution provides him when he passes through the 

prison gate; and second, prison officials must be given 

substantial deference in the administration of their 

institutions. Turner v. Safley, 482 U.S. 78, 84 (1987). In 

light of these considerations, the Court has formulated a 

four-factor test for evaluating the validity of prison 

regulations, which we previously have summarized as

follows: (1) whether there is a rational connection between 

the regulation and the penological interest asserted; (2) 

whether inmates have alternative means of exercising their 

rights; (3) what impact accommodation of the right will 

have on guards, other inmates and the allocation of Prison 

resources generally and (4) whether alternative methods for 

accommodation exist at de minimis cost to the penological 

interest asserted. Cooper, 855 F.2d at 129 (citing Turner, 

482 U.S. 78, 89-90 (1987)). 

The first Turner factor clearly favors the Prison Officials. 

The Prison has a legitimate penological interest in keeping 

its food service system as simple as possible. Ward v. 

Walsh, 1 F.3d 873, 877 (9th Cir, 1993) ("The prison has a 

legitimate interest in running a simplified food service, 

rather than one that gives rise to many administrative 

difficulties."); see Kahey v. Jones, 836 F.2d 948, 950 (5th 

Cir. 1988). In addition, we believe Shore's request for hot 

kosher food creates legitimate security concerns, including 

bringing additional foods from new sources into the Prison 

and the possible belief by other Inmates that Johnson and 

Shore are receiving special treatment. 

The second Turner factor--alternative means of 

observance--is neutral, favoring neither the Prison Officials 

or the Inmates. Insofar as that factor addresses the 

Inmates' general ability to exercise their faith, this interest 

weighs in the Prison Officials' favor because the Inmates 

are free to pray, meet with a Rabbi and have weekly

religious services. See Cooper, 855 F.2d at 129. However, 

the importance of alternative means of religious observance 

 8 
is an irrelevant consideration when the belief at issue is a 

"religious commandment," rather than a "positive 

expression of belief." Ward, 1 F.3d at 878 (discussing 

Jewish kosher laws). As the United States Court of Appeals 

for the Ninth Circuit has stated: "It is one thing to curtail 

various ways of expressing belief, for which alternative ways 

of expressing belief may be found. It is another thing to 

require a believer to defile himself, according to the 

believer's conscience, by doing something that is completely 

forbidden by the believer's religion." Id. As in Ward, the 

Inmates here are "defiling" themselves under the laws of 

kosher when forced to eat non-kosher foods. By 

acknowledging this, we do not intend to suggest that all 

"religious commandments" must be accommodated, 

whatever their costs to legitimate penological concerns. 

However, in such situations the centrality of the religious 

tenet carries greater weight and the existence of alternative 

means of observance is of no use in the ultimate balancing 

which Turner commands. 

The third Turner factor--impact on guards, other inmates 

and Prison resources--is also neutral. The Prison Officials 

argue that providing Johnson and Shore with hot kosher 

meals will cause resentment among the other inmates, who 

will perceive Johnson and Shore as recipients of special 

treatment. At oral argument, counsel for the Prison Officials 

maintained that this concern would not exist if the Prison 

continues to provide only the cold kosher diet. We are not 

persuaded by this distinction. To the contrary, the record 

viewed in the light most favorable to the Inmates indicates 

that, subsequent to their requests for kosher foods and the 

provision of the cold kosher diet, both other inmates and 

Prison guards retaliated against and harassed them. We 

therefore believe that the preferential treatment problem, 

although legitimate, will exist no matter what kosher diet 

the Prison is required to serve to Shore. 

Finally, the fourth Turner factor--the reasonableness of 

alternatives--ultimately favors the Prison Officials. To the 

extent this factor relates to financial considerations, it 

favors the Inmates. The Prison Officials assert cost as a 

legitimate penological justification for denying the Inmates' 

request, but providing the hot kosher meals would be 

 9 
cheaper than providing the current kosher diet. The cost 

factor, which might suggest a certain arbitrariness on the 

part of prison officials could be given some weight were we 

free to apply the state regulation requiring "reasonable 

accommodations for dietary restrictions." 37 Pa. Code 

S 93.6. However, it is not our function to look to such 

sources in circumstances like those presented here. See 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

122-123 (1984). As Turner makes clear, we are to avoid 

"unnecessarily perpetuating the involvement of the federal 

courts in the affairs of prison administration." 482 U.S. at 

89 (quoting Procunier v. Martinez, 416 U.S. 396, 407 

(1974)). Moreover, a careful reading of Turner suggests that 

the fourth factor is most important when the desired action 

accommodates an inmate more fully than the challenged 

regulation. See Turner, 482 U.S. at 91 (regulation may not 

be reasonable if suggested alternative "fully accommodates 

the prisoner's rights at de minimis cost to valid penological 

interests"). If the cold kosher diet currently being provided 

satisfies kosher requirements, then the hot kosher diet 

which the Inmates suggest does not accommodate the 

Inmates any more "fully;" it merely accommodates them in 

a more palatable manner. Taste, however, is not a relevant 

constitutional consideration. 

Balancing these factors, we hold that the First 

Amendment requires the Prison Officials to provide the 

Inmates with a diet sufficient to sustain them in good 

health without violating the kosher laws. See Ashelman v. 

Wawrzaszek, 111 F.3d 674, 678 (9th Cir. 1997); Kahane v. 

Carlson, 527 F.2d 492, 496 (2d Cir. 1975), re-aff'd under 

Turner test by Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 

1992). In reaching this conclusion, we emphasize that each 

prison should receive substantial deference in formulating 

its particular plan for dietary accommodation. Here, the 

Prison is fully permitted to create the diet it believes best 

serves its legitimate penological interests as long as that 

diet (1) is kosher, and (2) sustains the Inmates in good 

health. 

Applying the Turner reasonableness test to the case at 

bar, the cold kosher diet currently being provided passes 

constitutional muster because it is sufficient to keep the 

 10 
Inmates in good health. This conclusion is supported by the 

affidavit of Prison dietician Brian Shedleski, who found the 

kosher diet to be nutritionally adequate after a detailed 

analysis of the diet as applied to each Inmate's individual 

characteristics. Once the Prison Officials put forth this 

evidence, in order to survive summary judgment the 

Inmates were required to "designate `specific facts showing 

that there is a genuine issue for trial.' " Celotex Corp. v. 

Catrett, 477 U.S. 317, 324 (1986) (quoting Rule 56(e), 

Federal Rules of Civil Procedure). The Inmates made no 

such designation. 

To rebut Shedleski, the Inmates presented the affidavit of 

dietician Joanne Perelman, who gave the opinion that the 

original kosher diet placed the Inmates in a "compromised 

dietary condition." JA at 230. However, Perelman did not 

consider the cold kosher diet after its augmentation, which 

added granola, pretzels, cereal and saltines. Rather, she 

concluded that the original kosher diet was unhealthy 

because it relied heavily on the use of the liquid 

supplement to provide essential nutrients. Perelman's 

failure to consider the complete kosher diet strips her 

affidavit of any real probative value. Moreover, we cannot 

credit Perelman's statement that, because the cold kosher 

diet includes the Resource liquid supplement, the Inmates 

should be "monitored medically on an ongoing basis for 

nutritional deficiencies." Id. at 231. Perelman's conclusion 

in this regard was based on the fact that medical 

monitoring is appropriate for individuals "placed on liquid 

diets for the purpose of weight control," id. at 230, which 

clearly is not the case here. For these reasons, Perelman's 

affidavit is insufficient to rebut Shedleski's thorough 

analysis. Therefore, there is no genuine issue that the cold 

kosher diet, in its current form, will sustain the Inmates in 

good health, and the district court properly granted the 

Prison Officials summary judgment on this issue. 

III. 

The Inmates' second theory is that the Prison Officials' 

failure to provide the hot kosher diet violates the Equal 

Protection Clause, U.S. Const. amend. XIV, S 1, because the 

 11 
Prison provides a hot pork alternative to Muslims. 4 The 

district court granted summary judgment to the Prison 

Officials on this issue. 

Initially, the Prison Officials argue that the Inmates 

waived their equal protection argument because they did 

not explicitly raise an equal protection claim in either their 

complaint or their summary judgment papers. We generally 

will not consider issues raised for the first time on appeal, 

Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 

1994); however, the argument was raised sufficiently in the 

district court. See Venuto v. Carella, Byrne, Bain, Gilfillan, 

Cecchi & Stewart, P.C., 11 F.3d 385, 388 (3d Cir. 1993). In 

Venuto, defendants in a malicious prosecution action 

argued that the plaintiffs waived their argument that being 

forced into bankruptcy was a "special grievance" supporting 

their claim. Even though the plaintiffs had not raised the 

issue, the district court considered it on the merits and 

ruled against them. We held that the issue was preserved 

for appeal because the plaintiffs could have sought leave to 

amend their complaint, the district court was put on notice, 

it decided the issue on the merits and the defendant was 

not prejudiced because both parties had briefed the issue 

fully on appeal. Id. 

For similar reasons, the Inmates' equal protection claims 

are properly before us. Even though the Inmates did not 

raise this claim in their complaint or their motion for 

summary judgment, the magistrate judge's report discusses 

the equal protection claims. The subsequent objections to 

the report by the Inmates and the Prison Officials certainly 

put the district court on notice that equal protection was an 

issue. Indeed, the district court "considered the record in 

light of the Report and Recommendations and the 

objections thereto," Add. at 2, and adopted the report, with 

certain modifications, as its opinion. Id. at 6. In addition, 

_________________________________________________________________ 

4. The Inmates also had argued that the Equal Protection Clause 

prohibits the Prison Officials from charging them for a kosher diet, and 

the district court granted the Inmates summary judgment on this issue. 

The Prison Officials' cross-appeal challenges that portion of the district 

court's order. At oral argument, however, the Prison Officials conceded 

that they could not--and will not--charge Shore for kosher meals. 

Therefore, their appeal will be dismissed as moot. 

 12 
the Inmates could have sought leave to amend their 

complaint, Rule 15(a), Federal Rules of Civil Procedure, but 

the magistrate judge's consideration of the equal protection 

issues probably made amendment seem unnecessary. 

Finally, because both parties have addressed the merits of 

the equal protection claim fully, the Prison Officials will not 

be prejudiced. Therefore, we can proceed to the merits of 

the equal protection claim. 

The Inmates base their equal protection claim on the fact 

that, although to stay kosher they must eat cold foods and 

a liquid supplement only, the Prison accommodates Muslim 

inmates by providing hot alternatives on days when the 

Prison serves pork. "[I]n order to maintain an equal 

protection claim with any significance independent of [their] 

free exercise [claim] . . . [the Inmates] must also allege and 

prove that they received different treatment from other 

similarly situated individuals or groups." Brown v. Borough 

of Mahaffey, 35 F.3d 846, 850 (3d Cir. 1994). The Inmates' 

claim fails because they failed to create a genuine issue 

that they are similarly situated to Muslim inmates.

It is true that the Prison Officials provide an alternative 

to pork to all inmates when it appears on the menu.

However, although Muslims are not allowed to eat pork, the 

Inmates have presented no evidence that this alternative, 

which is available to all inmates, is provided for the 

purpose of accommodating Muslims. Even assuming that 

the pork alternative is offered to accommodate Muslims, 

Muslim and Jewish inmates are not similarly situated. The 

Inmates have not pointed to evidence in the record as to 

what alternatives to pork appear on the Prison menu as an 

accommodation to Muslim inmates. Accordingly, there is no 

basis for comparing the non-pork diet with the cold kosher 

diet. Moreover, the pork substitutes are provided from 

items already in the Prison kitchen, but the proposed hot 

kosher diet would require the Prison to undertake the extra 

effort to obtain frozen meals from a new vendor and

specially heat them in a conventional or microwave oven. 

Under these circumstances, Muslim and Jewish inmates 

are not similarly situated, because the accommodation of 

Jewish inmates would require substantially greater effort 

than the accommodation of Muslims inmates. See Dexter v. 

 13 
Kirschner, 984 F.2d 979, 986 (9th Cir. 1992) (patients with 

same disease not similarly situated unless they can be 

treated with the same procedure); cf. Klinger v. Department 

of Corrections, 31 F.3d 727, 732-733 (8th Cir. 1994) (men 

and women at different prisons with different 

administrative and security concerns not similarly 

situated). Therefore, the Inmates' claim that the Equal 

Protection Clause requires the Prison Officials to provide 

hot kosher meals is without merit, and summary judgment 

on that issue was appropriate. 

IV. 

The Inmates argue for the first time on appeal that the 

cold kosher diet violates their right to be free from cruel 

and unusual punishment. U.S. Const. amend. VIII. Again, 

we generally will not consider issues raised for thefirst time 

on appeal. Harris, 35 F.3d at 845. The Inmates argue that 

they did not raise this issue in the district court because 

initially the magistrate judge only approved the cold kosher 

diet on an interim basis. The Eighth Amendment only

became an issue, they argue, when the magistrate judge's 

second report recommended the diet's approval as a 

permanent solution. This argument is meritless. 

First, insofar as the Inmates' complaint requests 

monetary relief, whether the cold kosher diet violated the 

Eighth Amendment was relevant even if the diet was only 

temporary. The Inmates could have raised their Eighth 

Amendment claim, like their equal protection claim, in their 

objections to the magistrate judge's second report.

Alternatively, they could have amended their complaint to 

include a count for an Eighth Amendment violation. Unlike 

their equal protection claim, the Inmates did not raise their 

Eighth Amendment claim by either of these means, and the 

district court did not consider the Eighth Amendment in 

reaching its decision. We therefore decline to consider this 

issue. 

V. 

The Inmates argue that the district court erred by 

granting the Prison Officials qualified immunity from money 

 14 
damages, holding that the law entitling Jewish inmates to 

a kosher diet under the First Amendment was not clearly 

established. We believe the district court properly granted 

immunity.5 Because summary judgment was appropriate on 

the Inmates' equal protection and Eighth Amendment 

claims, the question of whether the Prison Officials were 

entitled to qualified immunity on those claims is moot. The 

only question, then, is whether the Prison Officials are 

entitled to qualified immunity on the Inmates' First 

Amendment claims. We have held that the First 

Amendment does not entitle the Inmates to hot kosher 

meals, and the Prison Officials have conceded that they 

must provide some kosher diet. However, because the

Prison Officials did not agree to provide even the cold 

kosher diet until November 1996, the Inmates have a

colorable First Amendment claim against the Prison 

Officials based on their failure to provide the Inmates with 

any kosher diet prior to that time. The Inmates cannot 

receive damages from the Prison Officials for such a 

violation, however, if the Prison Officials are entitled to 

qualified immunity. 

A public official is entitled to qualified immunity from 

monetary liability unless a "reasonable public official [in his 

or her position] would know that his or her specific conduct 

violated clearly established rights." Grant v. City of 

Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing Anderson 

v. Creighton, 483 U.S. 635, 636-637 (1987)). This inquiry is 

divided into two separate issues. See Sharrar v. Felsing, 

128 F.3d 810, 826 (3d Cir. 1997). First, we must determine 

whether the Prison Officials' conduct violated clearly 

established law; then--but only if we answer thefirst 

inquiry affirmatively--we must determine whether an

objectively reasonable prison official would have realized 

the illegality of his conduct. See id. Employing this 

_________________________________________________________________ 

5. Initially, the Inmates argue that Horn waived his qualified immunity 

defense. However, in their answer to the Inmates' complaint, the Prison 

Officials allege that they are immune from suit. In addition the Inmates 

had the opportunity to present objections to the merits of the magistrate 

judge's recommendation that Horn receive qualified immunity, and the 

district court fully considered the merits of the immunity claims. The 

issue was preserved for appeal. See Venuto, 11 F.3d at 388. 

 15 
analysis, we believe the district court correctly held that the 

Prison Officials are entitled to qualified immunity because 

the right of a prisoner to receive a kosher diet was not 

clearly established prior to November 1996. 

The law was clearly established if "reasonable officials in 

the [Prison Officials'] position at the relevant time could 

have believed, in light of what was in the decided case law, 

that their conduct would be lawful." See Acierno v. Cloutier, 

40 F.3d 597, 616 (3d Cir. 1994) (in banc) (internal

quotations omitted). The Inmates point to no decision of the 

Supreme Court or this Court, and we are aware of none, 

that clearly establishes their right to a kosher diet. This, 

however, may not end the inquiry, because the courts of 

appeals are divided as to whether, and to what extent, outof-circuit decisions may be considered in determining 

whether the law was clearly established.6 We need not 

answer this difficult question, because we conclude that, 

under any standard, the law entitling the Inmates to a 

kosher diet was not clearly established when Horn and 

Sobina refused the Inmates' requests for kosher meals. 

Only two courts of appeals have recognized the right of a 

Jewish inmate to receive a kosher diet, Ward, 1 F.3d at 879 

_________________________________________________________________ 

6. The courts of appeals have taken three different approaches to this 

issue: (1) decisions from other courts of appeals may be considered, see 

Baptiste v. J.C. Penney Co., 1998 WL 348150, at *8 n.9 (10th Cir. June 

30, 1998) (can rely on "clearly established weight of authority from other 

courts"); Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997); Norfleet ex 

rel. 

Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289, 291 (8th Cir. 

1993). Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989); 

Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989), (2) such decisions 

may be considered only in exceptional circumstances, see Wilson v. 

Layne, 141 F.3d 111, 117 (4th Cir. 1998) (en banc) ("inappropriate as a 

general matter"); Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997) (en 

banc) ("Although decisions of other courts can clearly establish the law, 

such decisions must both point unmistakenly to the unconstitutionality 

of the conduct and be so clearly foreshadowed by applicable direct 

authority as to leave no doubt in the mind of a reasonable officer that 

his conduct was unconstitutional.") (internal quotation omitted), and 

(3) such decisions never may be considered, see Jenkins ex rel. Hall v. 

Talladega City Bd. of Educ., 115 F.3d 821, 823 & n.4 (11th Cir.), cert. 

denied sub nom. Jenkins ex rel. Hall v. Herring, 118 S. Ct. 412 (1997); 

Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995). 

 16 
(9th Cir.), Kahane, 527 F.2d at 496 (2d Cir.), and at least 

one of them does not view that right as a per se 

entitlement, Ward, 1 F.3d at 879 (remanding for 

consideration of whether prison's legitimate interests 

justified denial of kosher meals); cf. Kahey , 836 F.2d at 951 

(prison not required to comply with Muslim inmate's

particularized diet request). Therefore, the district court 

properly granted qualified immunity to the Prison Officials.7 

VI. 

In their cross-appeal, the Prison Officials argue that the 

district court entered prospective relief in Shore's favor in 

violation of the Prison Litigation Reform Act of 1996 

("PLRA"). Pub. L. No. 104-134, 1996 U.S.C.C.A.N. (110 Stat. 

1321) 66-77 (codified in scattered sections of 11, 18, 28, 

and 42 U.S.C.). The PLRA, which took effect on April 26, 

1996, 110 Stat. at 1321-1, reforms the federal courts' 

adjudicatory powers over prisoner-initiated civil litigation. 

Among its many provisions, the PLRA limits the power of 

district courts to grant prospective relief: 

 Prospective relief in any civil action with respect to 

 prison conditions shall extend no further than 

 necessary to correct the violation of the Federal right of 

 a particular plaintiff or plaintiffs. The court shall not 

 grant or approve any prospective relief unless the court 

 finds that such relief is narrowly drawn, extends no 

 further than necessary to correct the violation of the 

 Federal right, and is the least intrusive means 

 necessary to correct the violation of the Federal right. 

_________________________________________________________________ 

7. Because the law was not clearly established, we need not decide 

whether an objectively reasonable prison official in Horn's and Sobina's 

positions would have believed his conduct violated the Inmates' First 

Amendment right to a kosher diet. In particular, we express no opinion 

as to the reasonableness of Sobina's misunderstanding of kosher law. 

In addition, we need not reach Horn's argument that summary 

judgment was appropriate because he was not "personally involve[d]" in 

the decision to deny the Inmates a hot kosher diet. See Rode v. 

Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ("personal involvement" 

giving rise to S 1983 liability requires "personal direction or . . . 

actual 

knowledge and acquiescence"). 

 17 
 The court shall give substantial weight to any adverse 

 impact on public safety or the operation of a criminal 

 justice system caused by the relief. 

18 U.S.C. S 3626(a)(1)(A). 

The Prison Officials argue that the district court ordered 

them to continue providing Shore with the cold kosher diet 

and to refrain from charging him for it without making 

findings required by S 3626(a). This argument presents 

several important PLRA interpretive issues, for example: (1) 

what, if any, specific findings does the PLRA require a 

district court to make before granting prospective relief? 

and (2) must a party challenging the district court's entry 

of prospective relief make a motion to terminate that relief-- 

pursuant to S 3626(b)8-- in the district court before taking 

an appeal to this Court? We must leave these questions to 

another day, however, because the concessions made by 

the Prison Officials at oral argument render these issues 

moot. 

The Constitution limits the power of the federal judiciary 

to the resolution of "cases and controversies." See U.S. 

Const. art. III, S 2, cl. 1; Whitmore v. Arkansas, 495 U.S. 

149, 154-155 (1990). Mootness "ousts the jurisdiction of 

the federal courts and requires dismissal of the case." 

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 335 

_________________________________________________________________ 

8. Section 3626(b) provides: 

 (2) Immediate termination of prospective relief.--In any civil 

action 

 with respect to prison conditions, a defendant or intervener shall 

be 

 entitled to the immediate termination of any prospective relief if 

the 

 relief was approved or granted in the absence of afinding by the 

 court that the relief is narrowly drawn, extends no further than 

 necessary to correct the violation of the Federal right, and is the 

 least intrusive means necessary to correct the violation of the 

 Federal right. 

 (3) Limitation.--Prospective relief shall not terminate if the 

court 

 makes written findings based on the record that prospective relief 

 remains necessary to correct a current and ongoing violation of the 

 Federal right, extends no further than necessary to correct the 

 violation of the Federal right, and that the prospective relief is 

 narrowly drawn and the least intrusive means to correct the 

 violation. 
 18 
(1980). The Supreme Court recently clarified that this 

fundamental principle prohibits federal courts from

deciding on the merits any case over which they lack 

subject matter jurisdiction. See Steel Co. v. Citizens for a 

Better Environment, 118 S. Ct. 1003, 1012 (1998) 

(specifically disapproving the practice of assuming

jurisdiction and proceeding to the merits). Absent 

exceptional circumstances not present here,9 where a 

defendant agrees to afford all the prospective relief a 

plaintiff is requesting, mootness doctrine bars a federal 

court from deciding the merits of the issue. Philadelphia 

Police & Fire Ass'n for Handicapped Children, Inc. v. City of 

Philadelphia, 874 F.2d 156, 161 (3d Cir. 1989) ("Full 

compliance with an injunction amounting to the entirety of 

the relief sought renders an issue moot."); see 13A Charles 

Alan Wright et al., Federal Practice and Procedure S 3533.2, 

at 238-239. 

The district court entered an injunction requiring the 

Prison Officials to provide Shore the cold kosher diet and to 

refrain from charging him for it. At oral argument, however, 

the Prison Officials conceded that (1) Shore was entitled to 

a kosher diet and (2) they were not permitted to charge him 

for it. By complying with these concessions, as they have 

been since November 1996, the Prison Officials are 

providing Shore with all the relief to which he 

constitutionally is entitled. Under these circumstances, 

there is no live "case or controversy" regarding prospective 

relief before us, and Article III ousts both us and the 

district court of jurisdiction to consider the merits of this 

issue. Accordingly, that part of the district court's order 

enjoining the Prison Officials to provide Shore with a cold 

_________________________________________________________________ 

9. The Supreme Court has crafted a well-established exception to the 

mootness rule: Mootness will not prevent jurisdiction where the conduct 

in question is "capable of repetition, yet evading review." Spencer v. 

Kemna, 118 S. Ct. 978, 988 (1998). This doctrine applies only where: "(1) 

the challenged action [is] in its duration too short to be fully litigated 

prior to cessation or expiration, and (2) there[is] a reasonable 

expectation that the same complaining party [will] be subject to the same 

action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per 

curiam). The actions of the Prison Officials do not satisfy either of 

these 

conditions. 

 19 
kosher diet and to refrain from charging him for it will be 

vacated as moot. 

VII. 

We have not reached today's decision without sympathy 

for the plight of Mr. Shore and Mr. Johnson. The diet which 

the Prison has chosen to afford them is one which, 

perhaps, few would select as a matter of personal choice. 

Nonetheless, we must take proper heed of the federal 

courts' role in prison oversight. On this point, we turn 

again to the words of the Supreme Court: 

 [T]he problems of prisons in America are complex and 

 intractable, and, more to the point, they are not readily 

 susceptible of resolution by decree. Running a prison is 

 an inordinately difficult undertaking that requires 

 expertise, planning, and the commitment of resources, 

 all of which are peculiarly within the province of the 

 legislative and executive branches of government. 

 Prison administration is, moreover, a task that has 

 been committed to the responsibility of those branches, 

 and separation of powers concerns counsel a policy of 

 judicial restraint. Where a state penal system is 

 involved, federal courts have . . . additional reason to 

 accord deference to the appropriate prison authorities. 

Turner, 482 U.S. at 84-85. In light of this admonition and 

the enactment of the PLRA, we are left wondering why the 

Inmates did not bring their claim in state court, where they 

would be entitled to the full protection of the Pennsylvania 

Constitution and enforcement of Department of Corrections 

regulations, without the strictures imposed by the PLRA. 

Notwithstanding the concerns expressed by the Inmates' 

counsel at oral argument, we have full confidence that the 

Pennsylvania judiciary will enforce the civil rights of prison 

inmates to the full extent permitted by the law. 

We have considered all the parties' arguments and 

conclude that no further discussion is necessary. That part 

of the district court's order granting partial summary 

judgment to both parties and granting Horn and Sobina 

qualified immunity will be affirmed. That part of the district 

 20 
court's order enjoining Horn and Sobina to provide Shore a 

kosher diet at no cost will be vacated as moot. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 21