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. e du/thir dc ir c uit_1998/174Filed 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 ShoreSarah 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 wi th the serious and difficult task of balancing an individu al's First Amendment right to free exercise of religion with t he 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 Je wish inmates detained in the Pennsylvania prison system have a constitutional right to hot kosher meals provided t o them at the Commonwealth's expense.

2As inmates at the Pennsylvania State Correctional

Institute in Somerset (the "Prison"), Appellants Je ffrey Johnson and Bruce Shore (the "Inmates") sued Appell ees Raymond Sobina, the Prison Superintendent, and Mart in Horn, the Commissioner of the Pennsylvania Departme nt of Corrections (the "Prison Officials"), in federal di strict court. Johnson, a former inmate, and Shore, still an inmat e, are members of the Jewish faith. They allege that the P rison Officials' denial to them of a daily kosher diet, i ncluding two hot kosher meals, violated several of their constit utional rights. The district court granted partial summary judgment to both sides and entered an injunction re quiring the Prison Officials to provide Shore with a cold k osher diet at the Prison's expense. Both sides appeal from tha t 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 respec t. Because we decide that the district court's injunct ion is moot, we will vacate that part of the order grantin g prospective relief.

I.

In November 1996, Johnson and Shore were inmates at the Prison. Johnson was serving one to two years fo r 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. P oupko, the laws of kosher are "categorically binding upon every Jewish man and woman." JA at 64. Kosher laws dictat e what foods can be eaten and how they can be prepare d. Kosher food cannot be prepared in a non-kosher kitc hen, but a sealed, frozen kosher meal can be stored in a
conventional freezer and heated in a conventional o r microwave oven.

A Department of Corrections policy provides that al l inmates shall receive three meals a day, two of whi ch are hot. Johnson, who previously had received kosher fo ods while in the federal prison system, arrived at the Prison in

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

grievance system, Johnson requested a kosher diet f rom Prison officials. The Prison's Grievance Coordinato r denied his request, and Sobina affirmed this decision, sta ting: "Mr. Johnson has the ability to pick and choose items th at are to his liking, whether it be for religious or perso nal 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 law s of kashrut. However, neither Johnson nor his Rabbi eve r explained to Prison officials what a kosher diet en tails. Johnson appealed Sobina's decision to the Central O ffice of the Pennsylvania Department of Corrections. Upon
recommendation of the Central Office Review Committ ee, Commissioner Horn upheld the decision.

Shore arrived at the Prison in December 1995. In Oc tober and November 1996, Shore attempted for the first ti me 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 agai nst 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, a nd violated the Religious Freedom Restoration Act ("RF RA"), 42 U.S.C. SS 2000bb to 2000bb-4 (West 1997). The Supre me Court subsequently declared RFRA unconstitutional. City of Boerne v. Flores, 117 S. Ct. 2157, 2172 (1997) (RFR A exceeds Congress's Fourteenth Amendment enforcement powers). Johnson and Shore allege that after theyfi led suit, they were subject to a continuing pattern of retali ation and anti-semitic harassment from other inmates and pris on 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 Of ficials to provide Johnson and Shore with kosher food at every meal.

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1. The Inmates made these allegations in a March 19 97 motion for emergency preliminary injunction. The record does n ot indicate that the district court ever ruled on this motion, and neith er these allegations

nor the accompanying motion for injunctive relief are n ow before us.

4The Prison subsequently provided Johnson and Shore with

a kosher diet consisting of milk, unpeeled fruit, u ncut raw vegetables and a vanilla-flavored liquid nutritiona l 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 a ffidavit submitted on the Inmates behalf, dietician Joanne Perelman stated that this diet "probably [provided] the proscribed [sic] number of calories and the require d 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 ag ainst this original cold kosher diet as a long-term solut ion, but endorsed it pending the final outcome of the litiga tion, 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 te mporary 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 affi davit 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 a s the Recommend Dietary Allowance values set by the Natio nal Academy of Sciences. Based on this analysis, Shedle ski concluded that "the diet is adequate and sufficient ly 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 beca me moot. He remains a plaintiff only for the purpose of seek ing damages.

At the close of discovery, the parties filed cross- motions for summary judgment. The Inmates argued that the c old kosher diet the Prison was providing them was constitutionally inadequate and that they, like oth er prisoners, were entitled to two hot, appetizing mea ls a day. Shore asked that the Prison be required to purchase frozen

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

the Prison kitchen. The cost of purchasing frozen k osher meals is around $2.00 per meal, or approximately $4 .00 per inmate per day.2 On the other hand, the cold ko sher diet costs the prison $7.24 per inmate per day. Id. at 316.

On August 29, 1997, the magistrate judge filed a re port 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 th e Equal Protection Clause of the Fourteenth Amendment , the district court issue an injunction requiring the Pr ison Officials to (1) continue providing Shore the cold kosher diet and (2) refrain from charging Shore for kosher meal s. The magistrate judge also determined that Johnson and S hore had no equal protection right to hot kosher meals, and recommended that the district court grant the Priso n Officials qualified immunity from the Inmates' clai ms for money damages. On September 24, 1997, after the par ties filed objections to the magistrate judge's report, the district court filed an opinion and order granting partial s ummary judgment to both sides and entering an injunction a s recommended. Both sides appealed.

Oral argument was heard on June 10, 1998, at which
time counsel for the Prison Officials made the foll owing two concessions: (1) the Prison Officials are required to provide Shore with some form of kosher diet and (2) they ma y not charge him for it. These concessions have narrowed not only the scope of our review, but also the jurisdic tion of the
district court.

We have plenary review over the district court's de cision to grant summary judgment. Sabo v. Metropolitan Lif e Ins.

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2. For the first time at oral argument, the Prison Officials asserted that the provision of kosher meals was actually more exp ensive than this because the Prison needed to buy an additional froz en meal for heat testing. This assertion is not supported by the rec ord. The declaration of
Prison Food Services Chief Marcia Noles does state that frozen kosher meals have to be heat tested, but her cost evaluati on does not indicate that a separate meal must be purchased for this pur pose. See JA at 83-

84.

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

is appropriate if there are no genuine issues of ma terial fact and the moving party is entitled to judgment as a m atter of law. Id.; Rule 56(c), Federal Rules of Civil Proced ure.

II.

The First Amendment provides that "Congress shall m ake no law respecting an establishment of religion, or prohibiting a free exercise thereof . . . ." U.S. C onst. 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' decisi on contravenes their sincere religious beliefs, Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981), a nd that it is not "reasonably related to legitimate penolog ical interests," Cooper v. Tard, 855 F.2d 125, 129 (3d C ir. 1988).

The scope of our review has been narrowed by the Pr ison Officials' concessions at oral argument. Relevant t o the First Amendment claim, the Prison Officials concede d that
the Inmates are entitled to receive some kosher die t. In light of this concession, the Prison Officials' cross-app eal challenging the sincerity of the Inmates' religious beliefs is moot. The only issue, then, is whether the Free Exe rcise Clause requires the Prison Officials to provide the Inmates with hot kosher meals, as distinguished from the co ld kosher diet.3 On this particular issue, the distric t court granted the Prison Officials partial summary judgme nt. We conclude that summary judgment was appropriate beca use the First Amendment requires only that the Prison O fficials provide the Inmates with a kosher diet sufficient t o sustain the Inmates in good health, and the Inmates have fa iled to create a genuine issue that the cold kosher diet compromises their health.

"[A] prison regulation impinging on inmates'

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3. The Prison Officials' total denial of any kosher diet prior to the
establishment of the cold kosher diet is relevant t o 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.

7constitutional rights is valid if reasonably relate d to

legitimate penological interests." Cooper, 855 F.2d at 128. The Supreme Court has noted that this inquiry neces sarily involves the balance of two competing principles: F irst, an individual does not surrender the protections which the Constitution provides him when he passes through th e prison gate; and second, prison officials must be g iven
substantial deference in the administration of thei r institutions. Turner v. Safley, 482 U.S. 78, 84 (19 87). In light of these considerations, the Court has formul ated a four-factor test for evaluating the validity of pri son regulations, which we previously have summarized as follows: (1) whether there is a rational connection between the regulation and the penological interest asserte d; (2)
whether inmates have alternative means of exercisin g 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 met hods for accommodation exist at de minimis cost to the penol ogical 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 O fficials. 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 se rvice, rather than one that gives rise to many administrat ive 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, i ncluding bringing additional foods from new sources into the Prison and the possible belief by other Inmates that Johns on 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 th e Inmates' general ability to exercise their faith, t his interest weighs in the Prison Officials' favor because the I nmates are free to pray, meet with a Rabbi and have weekly religious services. See Cooper, 855 F.2d at 129. Ho wever, the importance of alternative means of religious ob servance

8is an irrelevant consideration when the belief at i ssue is a

"religious commandment," rather than a "positive expression of belief." Ward, 1 F.3d at 878 (discuss ing 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 altern ative ways of expressing belief may be found. It is another th ing to require a believer to defile himself, according to the believer's conscience, by doing something that is c ompletely forbidden by the believer's religion." Id. As in Wa rd, the Inmates here are "defiling" themselves under the la ws of kosher when forced to eat non-kosher foods. By acknowledging this, we do not intend to suggest tha t all "religious commandments" must be accommodated, whatever their costs to legitimate penological conc erns. However, in such situations the centrality of the r eligious tenet carries greater weight and the existence of a lternative
means of observance is of no use in the ultimate ba lancing
which Turner commands.

The third Turner factor--impact on guards, other in mates
and Prison resources--is also neutral. The Prison O fficials argue that providing Johnson and Shore with hot kos her meals will cause resentment among the other inmates , who will perceive Johnson and Shore as recipients of sp ecial 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 i ndicates that, subsequent to their requests for kosher foods and the provision of the cold kosher diet, both other inmat es and Prison guards retaliated against and harassed them. We therefore believe that the preferential treatment p roblem, although legitimate, will exist no matter what kosh er diet the Prison is required to serve to Shore.

Finally, the fourth Turner factor--the reasonablene ss of alternatives--ultimately favors the Prison Official s. To the
extent this factor relates to financial considerati ons, it
favors the Inmates. The Prison Officials assert cos t as a legitimate penological justification for denying th e Inmates' request, but providing the hot kosher meals would b e

9cheaper 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 "reaso nable accommodations for dietary restrictions." 37 Pa. Co de 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 av oid "unnecessarily perpetuating the involvement of the federal courts in the affairs of prison administration." 48 2 U.S. at 89 (quoting Procunier v. Martinez, 416 U.S. 396, 40 7 (1974)). Moreover, a careful reading of Turner sugg ests that the fourth factor is most important when the desire d action accommodates an inmate more fully than the challeng ed regulation. See Turner, 482 U.S. at 91 (regulation may not be reasonable if suggested alternative "fully accom modates the prisoner's rights at de minimis cost to valid p enological interests"). If the cold kosher diet currently bein g provided satisfies kosher requirements, then the hot kosher diet which the Inmates suggest does not accommodate the Inmates any more "fully;" it merely accommodates th em in a more palatable manner. Taste, however, is not a r elevant
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 g ood health without violating the kosher laws. See Ashel man v. Wawrzaszek, 111 F.3d 674, 678 (9th Cir. 1997); Kaha ne 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 (2 d Cir. 1992). In reaching this conclusion, we emphasize th at each prison should receive substantial deference in form ulating its particular plan for dietary accommodation. Here , the Prison is fully permitted to create the diet it bel ieves 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 k eep the

10Inmates in good health. This conclusion is supporte d by the

affidavit of Prison dietician Brian Shedleski, who found the kosher diet to be nutritionally adequate after a de tailed analysis of the diet as applied to each Inmate's in dividual characteristics. Once the Prison Officials put fort h 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 affid avit of dietician Joanne Perelman, who gave the opinion tha t the original kosher diet placed the Inmates in a "compr omised dietary condition." JA at 230. However, Perelman di d not consider the cold kosher diet after its augmentatio n, which added granola, pretzels, cereal and saltines. Rathe r, she concluded that the original kosher diet was unhealt hy 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 I nmates should be "monitored medically on an ongoing basis for
nutritional deficiencies." Id. at 231. Perelman's c onclusion in this regard was based on the fact that medical monitoring is appropriate for individuals "placed o n liquid diets for the purpose of weight control," id. at 23 0, which clearly is not the case here. For these reasons, Pe relman's
affidavit is insufficient to rebut Shedleski's thor ough 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 grante d the Prison Officials summary judgment on this issue.

III.

The Inmates' second theory is that the Prison Offic ials' failure to provide the hot kosher diet violates the Equal Protection Clause, U.S. Const. amend. XIV, S 1, bec ause the

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

district court granted summary judgment to the Pris on Officials on this issue.

Initially, the Prison Officials argue that the Inma tes waived their equal protection argument because they did not explicitly raise an equal protection claim in e ither their complaint or their summary judgment papers. We gene rally
will not consider issues raised for the first time on appeal, Harris v. City of Philadelphia, 35 F.3d 840, 845 (3 d Cir. 1994); however, the argument was raised sufficientl y in the district court. See Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 388 (3d Cir. 1 993). In Venuto, defendants in a malicious prosecution actio n argued that the plaintiffs waived their argument th at being forced into bankruptcy was a "special grievance" su pporting their claim. Even though the plaintiffs had not rai sed the issue, the district court considered it on the meri ts and ruled against them. We held that the issue was pres erved for appeal because the plaintiffs could have sought leave to amend their complaint, the district court was put o n notice,
it decided the issue on the merits and the defendan t 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 dis cusses the equal protection claims. The subsequent objecti ons to the report by the Inmates and the Prison Officials certainly put the district court on notice that equal protect ion was an issue. Indeed, the district court "considered the r ecord in light of the Report and Recommendations and the objections thereto," Add. at 2, and adopted the rep ort, with certain modifications, as its opinion. Id. at 6. In addition,

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4. The Inmates also had argued that the Equal Prote ction Clause prohibits the Prison Officials from charging them f or a kosher diet, and the district court granted the Inmates summary judg ment on this issue. The Prison Officials' cross-appeal challenges that portion of the district court's order. At oral argument, however, the Priso n Officials conceded that they could not--and will not--charge Shore for kosher meals. Therefore, their appeal will be dismissed as moot.

12the Inmates could have sought leave to amend their

complaint, Rule 15(a), Federal Rules of Civil Proce dure, but the magistrate judge's consideration of the equal p rotection issues probably made amendment seem unnecessary. Finally, because both parties have addressed the me rits of the equal protection claim fully, the Prison Offici als will not be prejudiced. Therefore, we can proceed to the mer its of the equal protection claim.

The Inmates base their equal protection claim on th e fact that, although to stay kosher they must eat cold fo ods and a liquid supplement only, the Prison accommodates M uslim inmates by providing hot alternatives on days when the Prison serves pork. "[I]n order to maintain an equa l protection claim with any significance independent of [their] free exercise [claim] . . . [the Inmates] must also allege and prove that they received different treatment from o ther similarly situated individuals or groups." Brown v. Borough of Mahaffey, 35 F.3d 846, 850 (3d Cir. 1994). The I nmates' 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 alt ernative to pork to all inmates when it appears on the menu. However, although Muslims are not allowed to eat po rk, the Inmates have presented no evidence that this altern ative, which is available to all inmates, is provided for the purpose of accommodating Muslims. Even assuming tha t the pork alternative is offered to accommodate Musl ims, Muslim and Jewish inmates are not similarly situate d. 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 f rom items already in the Prison kitchen, but the propos ed hot kosher diet would require the Prison to undertake t he 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 inmate s are not similarly situated, because the accommodati on of Jewish inmates would require substantially greater effort
than the accommodation of Muslims inmates. See Dext er v.

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

same disease not similarly situated unless they can be treated with the same procedure); cf. Klinger v. De partment 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 E qual Protection Clause requires the Prison Officials to provide hot kosher meals is without merit, and summary judg ment 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 fr om cruel and unusual punishment. U.S. Const. amend. VIII. Ag ain, we generally will not consider issues raised for th efirst time on appeal. Harris, 35 F.3d at 845. The Inmates argu e that they did not raise this issue in the district court because initially the magistrate judge only approved the co ld kosher diet on an interim basis. The Eighth Amendment only became an issue, they argue, when the magistrate ju dge'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 viola ted the Eighth Amendment was relevant even if the diet was only temporary. The Inmates could have raised their Eigh th Amendment claim, like their equal protection claim, in their objections to the magistrate judge's second report. Alternatively, they could have amended their compla int to include a count for an Eighth Amendment violation. Unlike their equal protection claim, the Inmates did not r aise their Eighth Amendment claim by either of these means, an d the district court did not consider the Eighth Amendmen t in reaching its decision. We therefore decline to cons ider this
issue.

V.

The Inmates argue that the district court erred by granting the Prison Officials qualified immunity fr om money

14damages, holding that the law entitling Jewish inma tes to

a kosher diet under the First Amendment was not cle arly 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 Official s were entitled to qualified immunity on those claims is m oot. The only question, then, is whether the Prison Official s are entitled to qualified immunity on the Inmates' Firs t
Amendment claims. We have held that the First
Amendment does not entitle the Inmates to hot koshe r 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 Inm ates with any kosher diet prior to that time. The Inmates can not receive damages from the Prison Officials for such a violation, however, if the Prison Officials are ent itled to qualified immunity.

A public official is entitled to qualified immunity from monetary liability unless a "reasonable public offi cial [in his or her position] would know that his or her specifi c 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 i nquiry is divided into two separate issues. See Sharrar v. Fe lsing, 128 F.3d 810, 826 (3d Cir. 1997). First, we must de termine
whether the Prison Officials' conduct violated clea rly established law; then--but only if we answer thefir st inquiry affirmatively--we must determine whether an objectively reasonable prison official would have r ealized the illegality of his conduct. See id. Employing th is

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5. Initially, the Inmates argue that Horn waived hi s qualified immunity defense. However, in their answer to the Inmates' c omplaint, the Prison Officials allege that they are immune from suit. In addition the Inmates had the opportunity to present objections to the me rits of the magistrate judge's recommendation that Horn receive qualified immunity, and the district court fully considered the merits of the i mmunity claims. The issue was preserved for appeal. See Venuto, 11 F.3d at 388.

15analysis, we believe the district court correctly h eld that the

Prison Officials are entitled to qualified immunity because the right of a prisoner to receive a kosher diet wa s not clearly established prior to November 1996.

The law was clearly established if "reasonable offi cials in the [Prison Officials'] position at the relevant ti me 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 decisi on of the Supreme Court or this Court, and we are aware of no ne, that clearly establishes their right to a kosher di et. This, however, may not end the inquiry, because the court s of appeals are divided as to whether, and to what exte nt, outof-circuit decisions may be considered in determini ng 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 t o a kosher diet was not clearly established when Horn a nd Sobina refused the Inmates' requests for kosher mea ls. Only two courts of appeals have recognized the righ t of a Jewish inmate to receive a kosher diet, Ward, 1 F.3 d at 879

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6. The courts of appeals have taken three different approaches to this issue: (1) decisions from other courts of appeals m ay 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 C ir. 1997); Norfleet ex

rel. Norfleet v. Arkansas Dep't of Human Servs., 989 F.2 d 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, 4 59 (6th Cir. 1997) (en banc) ("Although decisions of other courts can clea rly establish the law, such decisions must both point unmistakenly to the unconstitutionality of the conduct and be so clearly foreshadowed by ap plicable direct authority as to leave no doubt in the mind of a rea sonable officer that his conduct was unconstitutional.") (internal quota tion omitted), and (3) such decisions never may be considered, see Jen kins 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, 11 8 S. Ct. 412 (1997); Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Ci r. 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 intere sts 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 distri ct court properly granted qualified immunity to the Prison O fficials.7

VI.

In their cross-appeal, the Prison Officials argue t hat the district court entered prospective relief in Shore' s favor in violation of the Prison Litigation Reform Act of 19 96 ("PLRA"). Pub. L. No. 104-134, 1996 U.S.C.C.A.N. (1 10 Stat. 1321) 66-77 (codified in scattered sections of 11, 18, 28, and 42 U.S.C.). The PLRA, which took effect on Apri l 26, 1996, 110 Stat. at 1321-1, reforms the federal cour ts' adjudicatory powers over prisoner-initiated civil l itigation. Among its many provisions, the PLRA limits the powe r of district courts to grant prospective relief:

Prospective relief in any civil action with respect to prison conditions shall extend no further th an necessary to correct the violation of the Fe deral right of a particular plaintiff or plaintiffs. The co urt shall not grant or approve any prospective relief unle ss the court finds that such relief is narrowly drawn, ex tends no further than necessary to correct the violat ion of the Federal right, and is the least intrusive me ans necessary to correct the violation of the Fe deral right.

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7. Because the law was not clearly established, we need not decide whether an objectively reasonable prison official i n 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 misunderstandi ng of kosher law.

In addition, we need not reach Horn's argument that summary judgment was appropriate because he was not "person ally involve[d]" in the decision to deny the Inmates a hot kosher diet. See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ("perso nal involvement" giving rise to S 1983 liability requires "personal direction or . . .

actual knowledge and acquiescence").

17The court shall give substantial weight to a ny 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 kosh er diet and to refrain from charging him for it without mak ing findings required by S 3626(a). This argument prese nts several important PLRA interpretive issues, for exa mple: (1) what, if any, specific findings does the PLRA requi re 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 th at relief-- pursuant to S 3626(b)8-- in the district court befo re taking an appeal to this Court? We must leave these questi ons 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 ju diciary
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 jurisdicti on of the federal courts and requires dismissal of the ca se." Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 33 5

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8. Section 3626(b) provides:

(2) Immediate termination of prospective rel ief.--In any civil
action with respect to prison conditions, a defenda nt or intervener shall

be entitled to the immediate termination of any prospective relief if

the relief was approved or granted in the absenc e of afinding by the court that the relief is narrowly drawn, ext ends no further than necessary to correct the violation of the Fe deral right, and is the least intrusive means necessary to correct t he violation of the Federal right.

(3) Limitation.--Prospective relief shall no t terminate if the

court makes written findings based on the record t hat prospective relief remains necessary to correct a current and o ngoing violation of the Federal right, extends no further than neces sary 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 t his

fundamental principle prohibits federal courts from deciding on the merits any case over which they lac k subject matter jurisdiction. See Steel Co. v. Citiz ens 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 reli ef a plaintiff is requesting, mootness doctrine bars a f ederal court from deciding the merits of the issue. Philad elphia Police & Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 161 (3d Cir. 1989) ("Fu ll compliance with an injunction amounting to the enti rety 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 d iet and to refrain from charging him for it. At oral argument, however, the Prison Officials conceded that (1) Shore was en titled to a kosher diet and (2) they were not permitted to ch arge him for it. By complying with these concessions, as the y have been since November 1996, the Prison Officials are providing Shore with all the relief to which he constitutionally is entitled. Under these circumsta nces, there is no live "case or controversy" regarding pr ospective relief before us, and Article III ousts both us and the district court of jurisdiction to consider the meri ts of this issue. Accordingly, that part of the district court 's order enjoining the Prison Officials to provide Shore wit h a cold

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9. The Supreme Court has crafted a well-established exception to the mootness rule: Mootness will not prevent jurisdicti on where the conduct in question is "capable of repetition, yet evading review." Spencer v. Kemna, 118 S. Ct. 978, 988 (1998). This doctrine ap plies only where: "(1) the challenged action [is] in its duration too shor t 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.

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

vacated as moot.

VII.

We have not reached today's decision without sympat hy for the plight of Mr. Shore and Mr. Johnson. The di et which the Prison has chosen to afford them is one which, perhaps, few would select as a matter of personal c hoice. Nonetheless, we must take proper heed of the federa l 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 com plex and intractable, and, more to the point, they ar e not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that r equires expertise, planning, and the commitment of r esources, all of which are peculiarly within the provi nce of the legislative and executive branches of govern ment. Prison administration is, moreover, a task t hat has been committed to the responsibility of thos e branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal syst em is involved, federal courts have . . . addition al reason to accord deference to the appropriate prison a uthorities.

Turner, 482 U.S. at 84-85. In light of this admonit ion and the enactment of the PLRA, we are left wondering wh y the Inmates did not bring their claim in state court, w here they would be entitled to the full protection of the Pen nsylvania Constitution and enforcement of Department of Corre ctions regulations, without the strictures imposed by the PLRA. Notwithstanding the concerns expressed by the Inmat es' counsel at oral argument, we have full confidence t hat the Pennsylvania judiciary will enforce the civil right s 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. T hat part of the district court's order granting partial summ ary judgment to both parties and granting Horn and Sobi na qualified immunity will be affirmed. That part of t he district

20court'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