Robert Perry DeHART, Appellant v. Martin HORN, Commissioner of Corrections; James S. Price, Superintendent SCI Greene; United States of America (Intervenor in D.C.).
No. 03-4250
United States Court of Appeals, Third Circuit
Filed Nov. 30, 2004
Argued Oct. 1, 2004
390 F.3d 262
The Appellants argue that because the Solomon Amendment is intended to facilitate military recruiting, and because recruiters speak to students, the governmental interest underlying the Solomon Amendment “is not unrelated to expression.” (Appellant br. at 26.) But the question posed by O‘Brien is not whether the governmental interest is “unrelated to expression,” but instead whether the interest “is unrelated to the suppression of free expression.” 391 U.S. at 377, 88 S.Ct. 1673 (emphasis added). The Appellants’ argument deliberately omits the touchstone of suppression from the constitutional test. Once it is recognized that suppression of expression is the focus of O‘Brien, the Appellants’ argument falls apart, for the governmental interests served by the Solomon Amendment are manifestly unrelated to the suppression of anyone‘s expression.
It bears constant emphasis that the First Amendment test involves a balancing-of-interests as repeatedly emphasized above. The O‘Brien measure is quintessentially correct because this case involves a weighing of the government‘s interest in national defense and Appellants’ interest in First Amendment protections. In this posture it is difficult to conjure a case that is a more perfect fit for the exposition in O‘Brien.
For the foregoing reasons, I respectfully dissent.
Gerald J. Pappert, Attorney General, J. Bart DeLone, (Argued), Calvin R. Koons, John G. Knorr, III, Office of the Attorney General, Appellate Litigation Section, Harrisburg, PA, Rodney M. Torbic, Office of the Attorney General of Pennsylvania, Pittsburgh, PA, for Appellees James S. Price and Martin Horn.
Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, Catherine Y. Hancock, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, Michael S. Raab, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellee United States of America.
Before ROTH and CHERTOFF, Circuit Judges and IRENAS,* Senior District Judge.
OPINION OF THE COURT
IRENAS, Senior District Judge.
Robert Perry DeHart (“DeHart“) is an inmate at SCI-Greene (“the Prison“), a Pennsylvania state correctional facility. He is serving a life sentence for murder, as well as shorter consecutive sentences for robbery, burglary and escape, and has been incarcerated in the state correctional system since 1980. He brings this action pursuant to
I.
DeHart is a practitioner of Mahayana Buddhism, a religion to which he was introduced while a prisoner. He has practiced his religion daily since early 1990, although his interest in and study of Buddhism dates back to the early 1980s. He meditates and recites mantras for up to five hours a day and corresponds with the City of Ten Thousand Buddhas, a religious organization located in Talmadge, California. According to DeHart‘s self-taught understanding of Buddhist religious texts, he is not permitted to eat any meat or dairy products, nor can he have foods containing “pungent vegetables” such as onions, garlic, leeks, shallots and chives. As a result, DeHart became a vegetarian in 1989, and began declining food trays containing meat in 1993. When he does accept food trays, he eats only fruit, certain cereals, salads when served without dressing, and vegetables served with margarine. DeHart supplements his meals with items purchased from the commissary, including peanut butter, peanuts, pretzels, potato chips, caramel popcorn, and trail mix. He requests that the Prison provide him with a diet free of meat, dairy products and pungent vegetables.
The legal issues related to DeHart‘s request are best understood against the background of the system employed to feed prisoners in Pennsylvania‘s correctional facilities. Inmates receive standardized meals prepared pursuant to a master menu, which is designed to provide all of an inmate‘s daily nutritional requirements. Food for the inmates is purchased and prepared in bulk. Inmates are given limited choice in what appears on their food trays; they are able to decline pork products and elect to receive an alternative protein source, such as tofu or a bean burger, when available. The only deviations from the mass production of meals are for inmates with health conditions necessitating therapeutic dietary modifications and inmates with particular religious dietary restrictions. Doctors prescribe a variety of therapeutic diets, and the master menu includes seven different menus for diabetic inmates, sodium and fat restricted menus, and a menu for inmates with renal problems. Jewish inmates who adhere to a kosher diet receive special meals in the form of a “cold kosher bag,” which contain raw fruits and vegetables, EnsureⓇ dietary supplements, pretzels, crackers, coffee and granola. Muslim inmates receive special meals in their cells during Ramadan, when they observe a daylight fast. The Prison provides a post-sunset evening meal after the normal supper hour and a breakfast bag, called a “Sahoora Bag,” to be eaten before sunrise. As a result of concerns about food spoilage and serving temperature, the Sahoora Bag contains some items not served on that day‘s master menu. Special items for the therapeutic and religious diets are purchased through the medical department and prison commissary.
DeHart submitted a written grievance to the Prison on June 17, 1995, requesting a diet free of “animal products and by-products” consistent with his religious beliefs.1 After his request for a vegan2 diet was
This appeal marks DeHart‘s third appearance before this Court. In his first appeal, we affirmed the District Court‘s denial of preliminary injunctive relief. DeHart v. Horn, 127 F.3d 1094 (3d Cir. 1997) (mem.) (“DeHart I“). The District Court held that DeHart‘s request for a preliminary injunction should be denied on the ground that keeping a vegan diet was not a command of Buddhism. Despite upholding the result, this Court emphasized that the District Court should not determine “whether [DeHart‘s] beliefs are doctrinally correct or central to a particular school of Buddhist teaching.” Id. at 2.
We next heard DeHart‘s appeal of the District Court‘s first grant of summary judgment for the Appellees. The District Court held that the Prison‘s policy of denying individual dietary requests of inmates was reasonably related to a legitimate penological interest under the standard set out in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).3 After the decision of a panel to reverse the District Court‘s judgment, DeHart‘s appeal was reheard en banc. DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000) (en banc) (“DeHart II“). This Court reversed the district court‘s judgment and remanded for reconsideration of the second, third and fourth Turner factors. Id. In doing so, we overruled the distinction drawn by our decision in Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), between religious commandments and positive expressions of belief. 227 F.3d at 54. Specifically, we ordered the district court to reconsider whether DeHart retained other means of exercising his religious beliefs in light of our overruling Johnson. Id. We also asked the District Court to assess the impact of granting DeHart‘s request for a meat and dairy-free diet on the prison community in light of the accommodations made to Jewish inmates adhering to the kosher dietary rules. Id. at 58-59. With respect to DeHart‘s Equal Protection claim, we emphasized that our overruling of Johnson required Appellees to offer a legitimate penological reason for treating DeHart differently than Jewish inmates other than simply drawing a line between inmates with orthodox and non-orthodox religious beliefs. Id. at 61.
On remand after DeHart II, the District Court adopted the Magistrate‘s Report and Recommendation to grant summary judgment for Appellees. DeHart v. Horn, No. 95-1238 (W.D.Pa. Sept. 23, 2003). The District Court rejected Appellees’ argument that DeHart‘s beliefs were not sincere and religious in nature. See Magis. Rep. & Rec. on Mot. for Summ. J., at R.R. 19a-24a.4 The district court concluded that the second Turner factor weighed in favor of the Prison because DeHart had more than adequate alternative means of expressing his religious beliefs: he was permitted to meditate, recite the Sutras (Buddhist religious texts), correspond with
DeHart‘s complaint, as initially filed, also claimed that his right to freely exercise his religious beliefs had been impaired in violation of the Religious Freedom Restoration Act,
DeHart appeals both the grant of summary judgment on his First and Fourteenth Amendment claims and the dismissal of his RLUIPA claim.
II.
We have jurisdiction to hear this appeal pursuant to
III.
A.
In Turner v. Safley the Supreme Court identified the crucial balance in assessing inmates’ claims that their constitutional rights were violated by prison regulations. While “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution . . . ‘the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.’” 482 U.S. at 84, 107 S.Ct. 2254 (quoting Procunier v. Martinez, 416 U.S. 396, 404-405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)). Recognizing this tension in principles, Turner established the standard of review for prisoner constitutional claims: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. 2254. We elaborated in DeHart II that:
[T]his standard of review requires a court to respect the security, rehabilitation and administrative concerns underlying a prison regulation, without requiring proof that the regulation is the least restrictive means of addressing those concerns, it also requires a court to give weight, in assessing the overall reasonableness of regulations, to the inmate‘s interest in engaging in constitutionally protected activity.
227 F.3d at 51. Thus, DeHart‘s appeal forces us to resolve the tension between a court‘s duty to redress constitutional violations resulting from neutral prison regulations and its obligation not to unreasonably interfere with the complex issues involved in managing the day-to-day activities of a prison.
Turner articulated a four factor test for determining whether a prison regulation is reasonably related to a legitimate penological interest. 482 U.S. at 79, 107 S.Ct. 2254. As we explained in Waterman v. Farmer, 183 F.3d 208, 213 n. 6 (1999) (citation omitted):
[Turner] requires courts to consider (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest;5 (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist.
We cautioned in DeHart II that this approach “does not call for placing each factor in one of two columns and tallying a numerical result,” but that assessing the reasonableness of a prison regulation requires consideration of all the evidence in the record. 227 F.3d at 59.6
When we reversed the District Court‘s grant of summary judgment in DeHart II, we directed the district court to reevaluate
B.
The third Turner factor requires that we analyze the impact of accommodating DeHart‘s dietary requests on inmates, prison personnel, and allocation of prison resources. When DeHart II was decided, DeHart proposed that he be served a diet created by dietician Karen Avon which modified serving sizes of items on the master menu and added soy milk and whole grain bread as supplements.8 The Avon diet, however, includes items that contain pungent vegetables.9 Although DeHart has repeatedly affirmed the Avon diet, he has also continued to insist that he be served no pungent vegetables.10 DeHart‘s
The District Court held that DeHart‘s proposed diet would place a greater burden on the Prison than the dietary accommodations granted to Jewish and Muslim inmates. See Magis. Rep. & Rec. on Mot. for Summ. J., at R.R. 30a-36a. DeHart‘s diet would require individualized preparation of his meals, which is made more burdensome by the fact that the Prison‘s kitchen was set up only for bulk food preparation. Id. Additionally, it would require special ordering soy milk, whole grain bread and extra servings of the few alternative protein sources DeHart would eat, all at extra cost to the Prison. Id. Secured food storage would be required in order to prevent theft of the specially ordered items. Id. The District Court noted that DeHart‘s proposed diet was not nutritionally adequate, and would require regular nutritional audits by a contract dietician, also at extra cost to the Prison.11 Id. In contrast, the District Court found that the religious diets provided to Jewish and Muslim inmates did not require special ordering of items not already available at the Prison or through the Prison‘s current vendors, nor did they require individualized preparation of meals. Id.
On appeal, DeHart argues that the cold kosher meals served to Jewish inmates and the Sahoora bags provided to Muslim inmates during Ramadan also require individualized preparation and the serving of items not appearing, or outside their rotation, on the master menu. He contends that there is no reason why granting his request would pose any greater burden on the Prison than other special diets because
DeHart‘s arguments overlook a crucial distinction. None of the other special diets served at the Prison require individualized preparation and reorganization of the way prison kitchens prepare food and are provided to accommodate an inmate‘s religious beliefs.12 Other religious diets involve supplementing or alternating regular prison meals with additional foods already available at the prison. However, providing a diet free of pungent vegetables would mandate that the prison alter the way it prepares meals. This problem is only heightened by DeHart‘s failure to put forward, in specific terms, a diet that would fit within his restrictions. While some of the therapeutic diets include specially prepared items and foods not included on the master menu,13 the failure to provide medically necessary therapeutic diets puts the health of inmates at risk and could result in significant medical expenses.
With respect to the dietary accommodations provided to Jewish inmates, the cold kosher meals do not require special ordering of items not already available at the Prison. The kosher meals involve negligible preparation, as they are uncooked, and in the case of some fruits and vegetables, uncut as well. In fact, the diet DeHart requests bears a greater resemblance to the hot kosher meals we declined to require in Johnson. The Sahoora bags provided to Muslim inmates require some special preparation in order to prevent foods in the breakfast bags from spoiling overnight, and add the complication of being served outside of normal mealtimes. However, these Sahoora bags do not require major changes to how the prison purchases, stores or prepares food, in contrast to the special preparation of single servings sought by DeHart.
With regard to the fourth Turner factor, the District Court found that there was no alternative that could fully accommodate DeHart‘s religious dietary restrictions while imposing only a minimal burden on the Prison. See Magis. Rep. & Rec. on Mot. For Summ. J., at R.R. 34a-36a. Simply providing double servings of vegetables and grains on the master menu, or daily servings of the available alternative protein sources, would not meet DeHart‘s needs because they include pungent vegetables, which he has repeatedly affirmed that he would not eat. Id. at R.R. 35a. Special ordering of soy milk, whole grain bread and extra servings of alternative protein sources is costly and burdensome, as is the individualized preparation of master menu items without pungent vegetables. Id. DeHart denies that his proposed diet poses any special burden, but we agree that the record supports the conclusion that his religious dietary restrictions cannot be met, by the menu he suggests or any obvious and easy alternative, with only a de minimis cost to the Prison.
IV.
As we noted in DeHart II, the analysis of DeHart‘s Equal Protection claim incorporates much of the discussion of the third and fourth Turner factors. 227 F.3d at 61. In our earlier opinion, we directed the District Court to reconsider its grant of summary judgment for Appellees in light of our invalidation of the distinction drawn between religious commandments and positive expressions of belief. Id. We held that “the distinction drawn between orthodox and non-orthodox believers cannot justify the refusal of DeHart‘s request” in the absence of some nexus between this distinction and a legitimate penological concern. Id. On remand and in this appeal, the Appellees argue instead that DeHart is not similarly situated to any group for equal protection purposes because his request poses a greater burden than the dietary accommodations given to Jewish and Muslim inmates. DeHart argues that he is similarly situated to Jewish and Muslim inmates, and again contests the District Court‘s conclusion that his proposed diet is more burdensome. However, because we find that the burden imposed by DeHart‘s proposed diet exceeds the burden imposed by accommodating Muslim and Jewish inmates, we affirm the District Court‘s grant of summary judgment for Appellees on DeHart‘s Equal Protection claim.14
V.
Subsequent to our decision in DeHart II, DeHart amended his complaint to state a claim under the newly enacted Religious Land Use and Institutionalized Persons Act. Appellees filed a motion to dismiss the amended complaint on the ground that DeHart had not exhausted the prison administrative grievance process for his RLUIPA claim. The District Court accepted the Magistrate‘s Report and Recommendation to dismiss and DeHart now appeals.15 We exercise plenary review over a district court‘s decision to grant a motion to dismiss, and to the extent that our review turns on the statutory construction of the exhaustion requirement in Section 1997e(a), our review is also plenary. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004) (citations omitted).
This Court has repeatedly held that
(1) avoiding premature interruption of the administrative process and giving the agency a chance to discover and correct its own errors; (2) conserving scarce judicial resources, since the complaining party may be successful in vindicating his rights in the administrative process and the courts may never have to intervene; and (3) improving the efficacy of the administrative process.
Nyhuis, 204 F.3d at 75. Although we rejected a judicially-created futility exception to the exhaustion requirement in Nyhuis, 204 F.3d at 71, we have never held that a prisoner must exhaust his claims more than once.
Appellees argue that DeHart has not given the Prison an opportunity to address his claim under what they assert is a new substantive standard contained in RLUIPA, and as a result, the District Court‘s dismissal for failure to exhaust administrative remedies is proper. Appellees have never contended that DeHart did not exhaust all the available administrative remedies when the claim was brought under RLUIPA‘s predecessor, RFRA. In fact, DeHart‘s suit predates the PLRA, and therefore he is not required to exhaust all remedies under the PLRA‘s stringent standard. It is clear from the record that prior to filing suit, DeHart exhausted all the administrative remedies available to him in seeking a diet that comported with his religious beliefs. The issue is then whether RLUIPA and RFRA are sufficiently different as to justify requiring DeHart to present his claim for a second time to the prison grievance process. Because we disagree with Appellees’ contention that RLUIPA enacted a new substantive standard of review for prisoner religious claims, we hold that DeHart has satisfied the exhaustion requirement of
RFRA provided that “[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability.”
RFRA had been passed in response to the Supreme Court‘s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the Court declined to apply strict scrutiny to a facially neutral, generally applicable law that incidentally burdened members of a particular religious group. In doing so, the Court held that application of the compelling government interest test it set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), would have created the “anomaly” of a “constitutional right to ignore neutral laws of general applicability.” City of Boerne, 521 U.S. at 513, 117 S.Ct. 2157 (citing Smith, 494 U.S. at 885, 110 S.Ct. 1595). The Congressional findings accompanying RFRA specifically repudiated the Court‘s decision in Smith, see
In City of Boerne, the Supreme Court overturned RFRA as it applied to the States. It held that Congress had exceeded the scope of its enforcement powers under Section 5 of the Fourteenth Amendment in enacting RFRA. The Court concluded that RFRA was an impermissible attempt to change substantive constitutional law rather than remedy constitutional violations, given the broad scope of the Act, its applicability to the States, and the lack of evidence of First Amendment violations on par with the type of widespread abuse as demonstrated in support of the Voting Rights Act of 1965. City of Boerne, 521 U.S. at 530, 532, 117 S.Ct. 2157.
Following the decision in City of Boerne, Congress attempted to preserve RFRA‘s compelling governmental interest/least restrictive means test by recasting it in a form that could avoid the fatal constitutional problems of that statute. The result of this effort, RLUIPA, essentially reiterates the language of RFRA as it applies to institutionalized persons:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Contrary to the position of Appellees and the District Court, it cannot be argued that RLUIPA does not apply the same standard to prisoner free exercise claims as did RFRA. The statutory language is nearly identical, and statements by RLUIPA‘s sponsors in the Congressional Record indicate that the legislative intent was to reenact RFRA in constitutional form.16 See 146 Cong. Rec. E1563-01; 146 Cong. Rec. S7774-01. RLUIPA makes two fundamental changes to RFRA. First, it pares the scope of the legislation from RFRA‘s broad applicability down to only land use issues and claims by institutionalized persons. Compare
The District Court‘s reliance on Wilson v. Moore, No. 4:01CV158-RV, 2002 WL 950062 (N.D.Fla. Feb. 28, 2002), is in error. In Wilson, the Northern District of Florida dismissed several claims made by the plaintiff, an inmate in a Florida state correctional facility, on the ground that the plaintiff had not exhausted his claims under the new RLUIPA standard, even though the claims were filed before RLUIPA was enacted. The crucial difference between Wilson and the instant case is that DeHart exhausted his free exercise claim under RFRA, which applied the same standard as contained in RLUIPA, whereas in Wilson, the plaintiff‘s grievances were filed well after RFRA was declared unconstitutional. See Wilson, 2002 WL 950062, at *3-4 (noting that plaintiff filed grievances on July 10, Aug. 21, Aug. 22, Dec. 18, and Dec. 25, 2000). As a result, the prison reviewed the Wilson plaintiff‘s claim under the pre-RFRA standard employed in Smith and O‘Lone v. Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), which applied the Turner reasonableness test to prisoner free exercise claims. Wilson, 2002 WL 950062, at *5. The actual holding of Wilson is that RLUIPA substantively changed the standard of review from what it was before RFRA was passed and after RFRA was declared unconstitutional, and not, as the district court and Appellees suggest, from the standard contained in RFRA itself.
DeHart is not required to re-exhaust his RLUIPA claim. He appropriately presented his grievance to the Prison under the identical standard before commencing the instant lawsuit in 1995. The Prison has had its opportunity to correct its own errors under the compelling interest/least restrictive alternative test of RFRA and RLUIPA. Forcing DeHart to present the same claim under the same standard as a prerequisite to judicial review of his RLUIPA claim is unnecessary and serves none of the purposes of the PLRA‘s exhaustion requirement.
VI.
For the foregoing reasons, the judgment of the District Court with respect to DeHart‘s First and Fourteenth Amendment claims will be affirmed. The judgment of the District Court with respect to DeHart‘s claim under the Religious Land Use and Institutionalized Persons Act will be reversed and remanded for further proceedings consistent with this opinion.
Notes
4. I cannot eat dairy products, pungent vegetables, or meat products, in any form and follow my religious beliefs.
5. I would agree to eat extra servings of vegetables, and extra servings of non-meat items such as tofu, beans, soy milk, and peanut butter, which are consistent with my religious beliefs. These items, with the exception of soy milk, appear in the main menu offered to all inmates, nearly every day and are readily available. They are also regularly mixed with onions and garlic, which are prohibited pungent vegetables.
. . .7. Now that the Commonwealth serves alternate protein sources such as tofu, peanut butter and beans, if they were to give me servings of those items without pungent vegetables, it would come far closer to satisfying my nutritional needs than they do now. Aff. of Robert P. DeHart, at R.R. 256a-260a (emphasis added).