DEHART V. HORN

DEHART v. HORN SCI

Robert Perry DEHART Appellant v. Martin HORN, Commissioner of Corrections; James S. Price, Superintendent of SCI Greene;  United States ofAmerica

No. 99-3072.

Argued:  July 27, 1999. -- September 08, 2000

Before:  SCIRICA and STAPLETON, Circuit Judges, and GREEN,DistrictJudge.*Before:  BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG,SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, FUENTES, and STAPLETON,Circuit Judges.

Edward A. Olds (Argued), Pittsburgh, PA, for Appellant.J. Bart DeLone(Argued), Office of Attorney General of Pennsylvania, Harrisburg, PA, Rodney M.Torbic, Office of Attorney General of Pennsylvania, Pittsburgh, PA, forAppellees.

OPINION OF THE COURT

Plaintiff-Appellant, Robert P. DeHart (“DeHart”), an inmate atthe Pennsylvania State Correctional Institute (“SCI”) at Greene,commenced this civil rights action against Martin Horn, Commissioner of theDepartment of Corrections of Pennsylvania, and James Price, Superintendent ofSCI at Greene (collectively “the prison” or “prisonofficials”), as a result of their failure to provide him with a dietconsistent with his Buddhist religious beliefs.   DeHart appeals the finalorder of the District Court, granting the defendants' motion for summaryjudgment.   He insists that the defendants' failure to accommodate hisreligious belief, which requires him to follow a vegetarian diet, violates bothhis right to free religious expression under the First Amendment and his rightto equal protection of the law under the Fourteenth Amendment.   We willreverse the judgment of the District Court and remand the case for furtherproceedings consistent with this opinion.

I.

DeHart is currently serving a life sentence at SCI at Greene.   Withthe assistance of the City of 10,000 Buddhas, a center of Buddhist teaching, hehas taught himself Buddhism during his incarceration.   Based on his ownreading of the Sutras, which are Buddhist religious texts, DeHart became avegetarian.   DeHart testified before the District Court that the FirstPrecept in Buddhism prohibits the killing of any living thing, and he hasinterpreted that Precept as requiring that he follow a vegetarian diet.  The prison officials do not challenge the sincerity of DeHart's beliefs andacknowledge that many Buddhists practice vegetarianism as part of the exerciseof their religion.   The prison officials do, however, challenge whethervegetarianism is mandated by any recognized Buddhist sect.

A brief overview of the inmate meal process at DeHart's institution isnecessary to understand his request.   Pursuant to a master menu, allinmates at SCI Greene receive the same meals.   The food for those mealsis obtained through bulk purchases.   Those inmates whose health requiresdietary modifications or restrictions receive a therapeutic diet.   Inorder for an inmate to receive a therapeutic diet, however, it must beprescribed by an institution doctor.   The therapeutic diet consists ofthe same foods (in different proportions) that are served on the master menu.  The therapeutic meals are prepared individually, and all inmates whohave been prescribed a therapeutic diet eat together in one dining hall afterit has been cleared of other inmates.

DeHart proposes that he be served a vegetarian meal when other inmates areserved therapeutic meals.   DeHart secured the affidavit of a dietician,who averred that DeHart's nutritional needs could be satisfied by doubling thecurrent portions of vegetables and grains and adding an eight-ounce cup of asoy-based milk product at each meal.1  The cost of this supplement, whichis not currently purchased by the Department of Corrections(“DOC”), would be $1.71 per day.2

On June 17, 1995, DeHart submitted a written grievance, requesting a dietthat comports with his religious beliefs.   That grievance was denied, andDeHart appealed the denial to Superintendent Price, who concurred in theresult.   The denial was again upheld on appeal by the DOC Central OfficeReview Committee.   DeHart then filed this suit pursuant to 42 U.S.C.ß 1983.

A preliminary injunction hearing was held before a Magistrate Judge, whofound that vegetarianism is not mandated by Buddhism and, for that reason,recommended that DeHart be denied preliminary relief.   The District Courtadopted the Magistrate Judge's recommendation.   DeHart then appealed tothis Court, and we affirmed the denial of preliminary injunctive relief.  See Dehart v. Horn, 127 F.3d 1094 (3d Cir.1997) (hereinafter “MemorandumOpinion”).   In the Memorandum Opinion affirming the DistrictCourt's decision, this Court admonished the District Court not to interjectitself into Buddhist doctrinal disputes:  “We agree with [DeHart]that the district court could properly determine only whether he sincerely heldhis religious beliefs, not whether his beliefs are doctrinally correct orcentral to a particular school of Buddhist teaching.”   MemorandumOpinion at 2 (citing Employment Division v. Smith, 494 U.S. 872, 886-87, 110S.Ct. 1595, 108 L.Ed.2d 876 (1990)).

On remand, the parties engaged in additional discovery and filedcross-motions for summary judgment.   The Magistrate Judge recommendedthat summary judgment be granted in favor of the prison officials.  DeHart filed objections to the Magistrate Judge's Report and Recommendation,arguing, inter alia, that the Magistrate Judge ignored this Court'sinstructions and again based his opinion on a finding that vegetarianism is notmandated by the Buddhist religion.   The District Court adopted the Reportand Recommendation over that objection, and this appeal followed.

Following a decision of a panel reversing the judgment of the DistrictCourt, a majority of the active judges of this Court voted to rehear the appealen banc, and the panel opinion was vacated.

II.

We exercise plenary review over the District Court's decision to grantsummary judgment.   See Wicker v. Consol. Rail Corp., 142 F.3d 690, 696(3d Cir.1998).   Summary judgment is appropriate only if there is nogenuine issue of material fact, and the moving party is entitled to a judgmentas a matter of law.   See id.;  Fed.R.Civ.P. 56(c).   In ourreview, we must view all evidence and draw all inferences therefrom in thelight most favorable to the nonmoving party.   See Wicker, 142 F.3d at696.

III.

 The First Amendment provides that “Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercisethereof ․” U.S. Const. amend. I.   In Cantwell v.Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the SupremeCourt held that the First Amendment was incorporated by the FourteenthAmendment and, thus, applicable to the states.   Although DeHart isincarcerated, the Supreme Court has made clear that “convicted prisonersdo not forfeit all constitutional protections by reason of their conviction andconfinement in prison.”  Bell v. Wolfish, 441 U.S. 520, 545, 99S.Ct. 1861, 60 L.Ed.2d 447 (1979).  “Inmates clearly retainprotections afforded by the First Amendment, ․ including its directivethat no law shall prohibit the free exercise of religion.”  O'Lonev. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citationsomitted).   Nevertheless, the fact of incarceration and the validpenological objectives of deterrence of crime, rehabilitation of prisoners, andinstitutional security justify limitations on the exercise of constitutionalrights by inmates.   See Pell v. Procunier, 417 U.S. 817, 822-23, 94 S.Ct.2800, 41 L.Ed.2d 495 (1974).   Thus, a prison inmate “retains [only]those rights that are not inconsistent with his status as a prisoner or withthe legitimate penological objectives of the corrections system.” Id. at822, 94 S.Ct. 2800.

 In Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987), the Supreme Court articulated the standard for reviewing a prisonregulation challenged on constitutional grounds:  “[W]hen a prisonregulation impinges on inmates' constitutional rights, the regulation is validif it is reasonably related to legitimate penological interests.”  This test is intended to effect an accommodation between two well-establishedprinciples.  “The first of these principles is that federal courtsmust take cognizance of the valid constitutional claims of prisoninmates.”  Id. at 84, 107 S.Ct. 2254.   The “second․ is the recognition that ‘courts are ill equipped to deal withthe increasingly urgent problems of prison administration’ and [that]separation of powers concerns counsel a policy of judicial restraint.”Id. at 84-85, 107 S.Ct. 2254 (quoting Procunier v. Martinez, 416 U.S. 396, 405,94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)).   Thus, while this standard ofreview requires a court to respect the security, rehabilitation andadministrative concerns underlying a prison regulation, without requiring proofthat the regulation is the least restrictive means of addressing thoseconcerns, it also requires a court to give weight, in assessing the overallreasonableness of regulations, to the inmate's interest in engaging inconstitutionally protected activity.

Turner goes on to provide guidance on how to apply its reasonablenessstandard.   As we recently explained in Waterman v. Farmer, 183 F.3d 208,213 (3d Cir.1999) (internal citations omitted):

[Turner ] directs courts to assess the overall reasonableness of suchregulations by weighing four factors.  “First, there must be a‘valid, rational connection’ between the prison regulation and thelegitimate governmental interest put forward to justify it,” and thisconnection must not be “so remote as to render the policy arbitrary orirrational.”   Second, a court must consider whether inmates retainalternative means of exercising the circumscribed right.   Third, a courtmust take into account the costs that accommodating the right would impose onother inmates, guards, and prison resources generally.   And fourth, acourt must consider whether there are alternatives to the regulation that“fully accommodate[ ] the prisoner's rights at de minimis cost to validpenological interests.”

 Of course, the Turner analysis is appropriate only in cases where aprison policy is impinging on inmates' constitutional rights. Turner, thus,assumes as a predicate that the plaintiff inmate has demonstrated that aconstitutionally protected interest is at stake.   In this case, DeHartasserts that his dietary requirements are derived from his Buddhist beliefs,thus implicating the First Amendment's guarantee of the free exercise of one'sreligion.   The mere assertion of a religious belief does notautomatically trigger First Amendment protections, however.   To thecontrary, only those beliefs which are both sincerely held and religious innature are entitled to constitutional protection.   As we explained inAfrica v. Pennsylvania:

The relevant case law in the free exercise area suggests that two thresholdrequirements must be met before particular beliefs, alleged to be religious innature, are accorded first amendment protection.   A court's task is todecide whether the beliefs avowed are (1) sincerely held, and (2) religious innature, in the claimant's scheme of things.  United States v. Seeger, 380U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965);  Callahan v.Woods, 658 F.2d 679 (9th Cir.1981).   If either of these two requirementsis not satisfied, the court need not reach the question, often quite difficultin the penological setting, whether a legitimate and reasonably exercised stateinterest outweighs the proffered first amendment claim.

662 F.2d 1025, 1029-30 (3d Cir.1981).

 Thus, if a prisoner's request for a particular diet is not the resultof sincerely held religious beliefs, the First Amendment imposes no obligationon the prison to honor that request, and there is no occasion to conduct theTurner inquiry.   It is in this way that prisons are protected from randomrequests for special diets by inmates whose alleged dietary restrictions arenot the result of their religious convictions but rather their secularpredilections.3  In this case, however, the defendants have stipulated forthe purposes of their motions for summary judgment that the belief whichoccasions DeHart's request for a special diet is “(1) sincerely held, and(2) religious in nature, in [his] scheme of things.”  Africa, 662F.2d at 1030.   It, thus, follows that DeHart has a constitutionallyprotected interest upon which the prison administration may not unreasonablyinfringe.   Accordingly, under Turner, we must inquire whether there is arational connection between the prison's refusal to give DeHart his requesteddiet and a legitimate penological interest.   If so, we must thendetermine whether the refusal is reasonable in light of the nature of theprison's penological interest, DeHart's interest in practicing his religion,the overall effect on the prison community of granting his request, and theavailability of ways to accommodate DeHart's request at de minimis cost tovalid penological interests.   We will address those issues seriatim.

1. Rational Connection to Penological Interests

The prison asserts that two penological interests are served by denyingDeHart's request for a vegetarian diet:  (1) an interest in a simplifiedand efficient food service;  and (2) an interest in avoiding possibleresentment and jealousy on the part of other inmates.   The District Courtfound that the denial of DeHart's religious diet was rationally related tothose two legitimate, penological goals.   Given the deference we mustshow to the reasoned judgment of prison officials, we agree.

In Johnson v. Horn, 150 F.3d 276 (3d Cir.1998), two Pennsylvania prisoninmates sued prison officials, including Commissioner Horn, alleging aviolation of their free exercise rights.   The inmates were Jewish andwere seeking a kosher diet in conformity with their religious beliefs.  In that case, however, the prison officials conceded that the inmates wereentitled to receive a kosher diet;  the only issue was whether that diethad to consist of hot or cold meals.   See id. at 281.   This Courtthere specifically held that “[t]he Prison has a legitimate penologicalinterest in keeping its food service system as simple as possible.” Id. at 282;  see also Ward v. Walsh, 1 F.3d 873, 877 (9thCir.1993) (same);  Kahey v. Jones, 836 F.2d 948, 949-50 (5th Cir.1988)(same).   We further observed that the inmates' “request for a[religious diet] creates legitimate security concerns, including bringingadditional foods from new sources into the Prison and the possible belief byother inmates that [plaintiffs] are receiving special treatment.”  Johnson, 150 F.3d at 282.

We think it clear that a prison's interest in an efficient food system andin avoiding inmate jealousy are legitimate penological concerns under Turner.  Moreover, we agree that the prison's refusal to grant DeHart's requestfor a religious diet bears some rational relation to those concerns.   Thefifty-five therapeutic trays prepared at each meal complicates the food serviceregimen of the prison, and preparation of additional special meals would addincrementally to that burden.   Similarly, while the evidence indicatesthat the provision of therapeutic meals has never given rise to problems in thepast, it is not irrational to think that providing DeHart with a vegetariandiet to accommodate his religious beliefs might involve some risk of inmatejealousy.

 This determination commences rather than concludes our inquiry.  First, while a rational nexus between a regulation and a legitimate penologicalinterest is essential to its validity, see Turner, 482 U.S. at 89-90, 107 S.Ct.2254, not all prison regulations that are rationally related to such aninterest pass Turner 's “overall reasonableness” standard.  As the remaining factors evidence, the Turner standard also takes intoaccount the extent of the burden imposed by the regulation on an inmate'sreligious expression, as well as the impact that accommodating the inmate'sconstitutional claim would have on the entire prison community and itsresources.

2. Alternative Means of Religious Expression

This factor requires a court to focus on the burden that the regulationimposes on an inmate's ability to engage in constitutionally protectedactivity.  Turner instructs that where “ ‘other avenues'remain available for the exercise of the asserted right, ․ courts shouldbe particularly conscious of the ‘measure of judicial deference owed tocorrections officials ․ in gauging the validity of theregulation.’ ”  Turner, 482 U.S. at 90, 107 S.Ct. 2254(quoting Pell v. Procunier, 417 U.S. at 827, 94 S.Ct. 2800).   Conversely,where the regulation leaves no alternative means of exercising the assertedright, the inmate's interest in engaging in constitutionally protected activityis entitled to greater weight in the balancing process.

As the Supreme Court made clear in O'Lone v. Estate of Shabazz, 482 U.S.342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), and Thornburgh v. Abbott, 490 U.S.401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), when determining whether“alternative means of exercising the right” remain open, “‘the right’ in question must be viewed sensibly andexpansively.”  Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874 (quotingTurner, 482 U.S. at 92, 107 S.Ct. 2254).   O'Lone involved aconstitutional challenge to policies adopted by New Jersey prison officialswhich resulted in the inmates' inability to attend Jumu'ah, a weekly Muslimcongregational service.   The Supreme Court explained that “Jumu'ahis commanded by the Koran and must be held every Friday after the sun reachesits zenith and before the Asr, or afternoon prayer․ There is no questionthat respondents' sincerely held religious beliefs compelled attendance atJumu'ah.”  Id. at 345, 107 S.Ct. 2400 (internal citations omitted).  Indeed, when it reached the second prong of the Turner test, the Courtnoted that, “of course, there are no alternative means of attendingJumu'ah.”  Id. at 351, 107 S.Ct. 2254.   The O'Lone plaintiffsdid, however, have alternative means of expressing their Muslim faithgenerally.   The Court explained:

[W]e think it appropriate to see whether under the[ ] [prison's] regulationsrespondents retain the ability to participate in other Muslim religiousceremonies.   The record establishes that respondents are not deprived ofall forms of religious exercise, but instead freely observe a number of theirreligious obligations.   The right to congregate for prayer or discussionis virtually unlimited except during working hours, ․ and thestate-provided imam has free access to the prison.   Muslim prisoners aregiven different meals whenever pork is served in the prison cafeteria.  Special arrangements are also made during the month-long observance of Ramadan,a period of fasting and prayer․ We think this ability on the part ofrespondents to participate in other religious observances of their faithsupports the conclusion that the restrictions at issue here were reasonable.

Id. at 352, 107 S.Ct. 2400 (emphasis added) (internal citation and quotationomitted).

In Thornburgh, the Supreme Court elaborated on how courts should define theright in question when performing the “alternatives” analysisenvisioned by the second prong of Turner. Specifically, the Court stated:

The Court in Turner, [where a prison regulation barred correspondencebetween inmates in different institutions], did not require that prisoners beafforded other means of communicating with inmates at other institutions, 482U.S. at 92, 107 S.Ct. 2254, ․ nor did it in O'Lone require that there bealternative means of attending the Jumu'ah religious ceremony, 482 U.S. at 351,107 S.Ct. 2400 ․ Rather, it held in Turner that it was sufficient ifother means of expression (not necessarily other means of communicating withinmates in other prisons) remained available, and in O'Lone if prisoners werepermitted to participate in other Muslim religious ceremonies․

Id. at 417-18, 109 S.Ct. 1874.   It follows from Thornburgh that, whenwe are deciding whether DeHart has alternative means of exercising thecircumscribed right, the “right” which is being circumscribed ishis right to free religious expression.   In other words, we must inquirewhether DeHart has alternative means of exercising his Buddhist beliefsgenerally (e.g., by prayer, worship, meditation, scripture study, etc.).

DeHart testified before the Magistrate Judge that he is permitted to pray,to recite the Sutras, to meditate, and to correspond with the City of 10,000Buddhas, a center of Buddhist teaching.   In addition, the prison hasallowed DeHart to purchase and use special items, such as canvas (as opposed toleather) sneakers.   See App. 304-05.   Thus, there are other avenuesof religious practice open to him at SCI-Greene, and these alternative means ofexpressing his Buddhist faith must be taken into account in determining theoverall reasonableness of the prison's decision not to afford him a specialdiet.

We will require reconsideration of this second Turner factor on remand fortwo reasons.   First, the District Court understandably considered itselfbound by our decision in Johnson to determine whether vegetarianism is a“commandment” for Buddhists or only a “positive expression ofbelief.”   We hold today, however, that this distinction isinconsistent with controlling Supreme Court authority. Second, while theDistrict Court accepted the fact that vegetarianism is a commandment inDeHart's sincerely held religious belief system, it erroneously concluded thatDeHart's interest in practicing vegetarianism could be discounted solelybecause the adherents of the “three major traditions of Buddhistpractice” did not share DeHart's view that a vegetarian diet wasmandatory.

 As DeHart stresses, Johnson did direct an inquiry into “thecentrality of the religious tenet” at issue and distinguished between“religious commandments” and “positive expression ofbelief,” suggesting that “the importance of alternative means ofreligious observance is an irrelevant consideration” when the practice inquestion is a commandment.  Johnson v. Horn, 150 F.3d 276, 282 (3dCir.1998).   We are now convinced, however, that the distinction werecognized in Johnson is inconsistent with both Supreme Court precedent and ourown caselaw.   Accordingly, we overrule the analysis in Johnson pertainingto the second prong of the Turner analysis.

In Johnson, the Court said the following:

[T]he importance of alternative means of religious observance is anirrelevant consideration when the belief at issue is a “religiouscommandment,” rather than a “positive expression of belief.” [Ward v. Walsh, 1 F.3d 873, 878 (9th Cir.1993).]   As the UnitedStates Court of Appeals for the Ninth Circuit has stated:  “It isone thing to curtail various ways of expressing belief, for which alternativeways of expressing a belief may be found.   It is another thing to requirea believer to defile himself, according to the believer's conscience, by doingsomething that is completely forbidden by the believer's religion.” Id. ․  By acknowledging this, we do not intend to suggestthat all “religious commandments” must be accommodated, whatevertheir costs to legitimate penological concerns.   However, in suchsituations the centrality of the religious tenet carries greater weight and theexistence of alternative means of observance is of no use in the ultimatebalancing which Turner commands.

Johnson, 150 F.3d at 282 (emphasis added).

Thus, under Johnson where the religious practice being prohibited by theprison is commanded by the believer's faith, the existence of otheropportunities for exercising one's religious faith is wholly irrelevant to theanalysis.   The “religious commandment”/“positiveexpression of belief” distinction on which the panel in Johnson relied,however, directly conflicts with the Supreme Court's analysis in O'Lone.  The Court there expressly held that, although attendance at Jumu'ah was arequirement of the respondents' religion (i.e., a “religiouscommandment”), because other means of practicing their religion wereavailable, the second Turner factor weighed in favor of the relevantrestriction's reasonableness.   Recognition that a particular practice isrequired by an inmate's religion, thus, does not end this portion of theanalysis.   Rather, as the Supreme Court made clear in O'Lone andThornburgh, courts must examine whether an inmate has alternative means ofpracticing his or her religion generally, not whether an inmate has alternativemeans of engaging in the particular practice in question.

 Nor, we believe, was the second factor of the Turner test intended torequire courts to determine whether an inmate's sincerely held religious beliefis sufficiently “orthodox” to deserve recognition.   As wehave noted, not only did the District Court undertake to evaluate the“centrality” of a vegetarian diet in the Buddhist faith, it alsopurported to determine what was generally accepted Buddhist doctrine and todiscount DeHart's sincerely held religious belief because it was not in thatmainstream.4  This is simply unacceptable.   It would be inconsistentwith a long line of Supreme Court precedent to accord less respect to asincerely held religious belief solely because it is not held by others.5

The Supreme Court cautioned in Employment Division v. Smith:

“[I]t is not within the judicial ken to question the centrality ofparticular beliefs or practices to a faith, or the validity of particularlitigants' interpretations of those creeds.”  Hernandez v.Commissioner, 490 U.S. [680,] 699, 109 S.Ct. 2136, 104 L.Ed.2d 766[ (1989) ].   Repeatedly and in many different contexts, wehave warned that courts must not presume to determine the place of a particularbelief in a religion or the plausibility of a religious claim.

494 U.S. 872, 886-87, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (pluralityopinion).   Although the Court was divided in Smith, the concurring anddissenting opinions both expressly agreed with the majority's admonition.  See id. at 906, 110 S.Ct. 1595 (O'Connor, J., concurring) (“Iagree with the Court ․ [that] ‘[i]t is not within the judicial kento question the centrality of particular beliefs or practices to afaith.’ ”) (quoting Hernandez );  id. at 919, 110S.Ct. 1595 (Blackmun, J., dissenting) (“I agree ․ that courtsshould refrain from delving into questions whether, as a matter of religiousdoctrine, a particular practice is ‘central’ to thereligion”).

Smith is not an aberration.   Rather, it is part of a consistent andresounding theme echoed throughout many Supreme Court opinions.   SeeThomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-16,101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“[T]he guarantee of free exerciseis not limited to beliefs which are shared by all of the members of a religioussect․ [I]t is not within the judicial function and judicial competenceto inquire [who has] more correctly perceived the commands of their commonfaith.”);  Jones v. Wolf, 443 U.S. 595, 602-06, 99 S.Ct. 3020, 61L.Ed.2d 775 (1979);  Presbyterian Church in U.S. v. Mary Elizabeth BlueHull Mem. Presbyterian Church, 393 U.S. 440, 450, 89 S.Ct. 601, 21 L.Ed.2d 658(1969) ( “the First Amendment forbids ․ courts from ․assessing the relative significance to the religion of the tenets”); United States v. Ballard, 322 U.S. 78, 85-87, 64 S.Ct. 882, 88 L.Ed.1148 (1944);  see also Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3dCir.1981) (“Judges are not oracles of theological verity, and theFounders did not intend for them to be declarants of religiousorthodoxy.”);  id. at 1034 n. 18 (“[T]he judicial branch isneither authorized nor equipped to pronounce upon the veracity of a religiousprecept.”).6

In summary, where a prison regulation limits an inmate's ability to engagein a particular religious practice, the second prong of Turner requires anexamination of whether there are other means available to the inmate forexpressing his religious beliefs.   If the prison does afford the inmatealternative means of expressing his religious beliefs, that fact tends tosupport the conclusion that the regulation at issue is reasonable.   Inthis case, the record shows that, while the prison's regulations haveprohibited DeHart from following a diet in conformity with his religiousbeliefs, he has some alternative means of expressing his Buddhist beliefs.

3. Remaining Factors and the Weighing Process

The first two Turner factors focus on the prison's decision-to what extentis it justified by legitimate and neutral concerns and what options does itleave open to the inmate;  in this case, both of those factors suggestthat the prison's decision not to provide DeHart with a diet in conformity withhis religious beliefs is reasonable.   The third and fourth factors, onthe other hand, focus on the specific religious practice or expression at issueand the consequences of accommodating the inmate for guards, for other inmates,and for the allocation of prison resources.

As we have previously noted, DeHart desires a meal, served concurrently withthe therapeutic meals, consisting of an eight-ounce cup of soy milk andincreased portions of the non-meat and non-dairy items from the master menu.  The soy milk supplement is the only item DeHart requests that is notcurrently purchased by the DOC. The District Court found that the prison couldprovide DeHart a cup of the soy milk at each meal for a total cost of $1.71 perday.

The District Court's analysis of the third Turner factor was as follows:

The third factor in the Turner test is the impact which providing plaintiffa strict vegetarian diet would have on the institution, guards and otherinmates.   There is no undisputed evidence concerning the impact thisfactor has, and it is neutral for purposes of the motion for summaryjudgment.

Dist. Ct. Slip Op. at 17.   With respect to the fourth factor, theDistrict Court concluded that “the cost factor favors the prison, whilethe fact that an available alternative exists favors plaintiff's position.  This factor is also neutral.”   Dist. Ct. Slip Op. at 18.

The District Court ultimately granted summary judgment against DeHart on thefollowing ground:

Considering the evidence in the light most favorable to plaintiff, two ofthe four Turner factors weigh in favor of defendants, while the final twofactors are neutral.   Thus, the court concludes that application of theTurner balancing test results in the conclusion that the First Amendment doesnot require Prison Officials to provide plaintiff a vegetarian diet.

Id.

The District Court's analysis of the third factor is unacceptable. It istrue that there is “no undisputed evidence” regarding the impactthat accommodating DeHart would have on the prison community.   DeHart'sevidence regarding the service of therapeutic meals and what it would take tomeet his religious requirements would support an inference that any impactwould be insubstantial.   On the other hand, the defendants have tenderedevidence tending to show that, if DeHart is accommodated, others will demandsimilar treatment.   But the fact that there is no undisputed evidence isnot a reason for concluding that the third factor is neutral.   If thereis conflicting evidence, the conflict needs to be resolved and findings need tobe made about the size and quality of the impact on the prison community.  Without such findings, it is not possible for the District Court toengage in the weighing process that Turner envisions.

One piece of evidence regarding the impact of DeHart's request on the prisoncommunity is particularly worthy of mention.   DeHart brought to theDistrict Court's attention the fact that the same prison administration hadurged the Court in the Johnson case not to order them to provide kosher mealsto Jewish inmates because the prison was voluntarily providing such a diet.  DeHart further pointed out that the kosher diet being voluntarilyprovided consisted of milk, uncut fruit and vegetables, and a nutritionalsupplement, and that the cost to the prison for these kosher meals wassubstantially more than the cost of the liquid supplement diet he wasrequesting.7  The defendants comment on these facts only in response toDeHart's Equal Protection argument.   Their sole response is: “In Johnson, the Court was presented with kosher laws that are acommandment of the Orthodox Jewish faith․ Here, vegetarianism while anexpression of belief, is not a commandment of Buddhism.”  Appellees' Br. at 29.

We address hereafter the significance of this distinction in our discussionof DeHart's Equal Protection claim.   The important point in the contextof the Free Exercise claim and the third factor of the Turner test, however, isthat the defendants' treatment of Jewish inmates, in the absence of somefurther explanation, casts substantial doubt on their assertion thataccommodating DeHart's request would result in significant problems for theprison community.   We, of course, do not rule out the possibility thatthere may be a satisfactory explanation for this apparent disparity intreatment.   The Jewish inmates in Johnson were not, as we understand it,in the same institution as DeHart.   But the third factor cannot besatisfactorily evaluated without taking into account the fact that the dietaryneeds of Jewish inmates are apparently accommodated without substantialnegative consequences in terms of efficiency and security.   Similarly, itis difficult to see how one can determine under the fourth factor whetherDeHart's requested diet places more than a de minimis burden on prisonresources without taking the treatment of Jewish inmates into account.

 Turner does not call for placing each factor in one of two columns andtallying a numerical result.   The objective is to determine whether theregulation is reasonable given the prison administrators' penological concernsand the inmate's interest in engaging in the constitutionally protectedactivity.   We agree with the defendants that where, as here, “otheravenues” remain available for the exercise of the inmate's religiousfaith, “courts should be particularly conscious of the ‘measure ofjudicial deference owed to correction officials․' ” Turner, 482 U.S. at 90, 107 S.Ct. 2254 (quoting Pell v. Procunier, 417U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)). Nevertheless, Turner doescontemplate a judgment by the court regarding the reasonableness of thedefendant's conduct under all of the circumstances reflected in the record.8 A decision or practice that represents an “exaggeratedresponse” to even a legitimate penological concern will not justify aninfringement of First Amendment rights.   See id. at 87, 107 S.Ct. 2254.  This is a case in which (1) the designated penological interests to beserved are efficiency and avoidance of inmate jealousy, (2) there is anexisting administrative process in the institution for serving individuallyprepared meals and DeHart has made a prima facie showing that this process canaccommodate his religious needs with the addition of a cup of soy milk, and (3)the defendants in other institutions are served kosher meals which wouldappear, without further explanation, to impose a greater burden on prisonefficiency and occasion a similar risk of jealousy.   In suchcircumstances, Turner requires a more thorough analysis of the reasonablenessof the restriction imposed on DeHart's religious expression.  Accordingly, we will reverse the summary judgment of the District Court andremand so that the parties may more fully develop the record and the Court mayinquire more deeply into the relevant issues.

In the interest of avoiding miscommunication, we make one final comment onthe Free Exercise issue.   The defendants suggest in the context of thesecond Turner factor and DeHart's Equal Protection claim that DeHart might beentitled to a religious diet if it were required by the Buddhist faith, i.e.,if he were able to point to some institutional verification for his belief.  We do not understand them to contend in the context of the third Turnerfactor that an inability to treat sincere, but unorthodox, religious believersdifferently than orthodox adherents to traditional faiths would substantiallyburden prison resources or prison administration.   We do not, of course,suggest that such is the case.   We note only that nothing said in thisopinion bars prison officials in a religious diet case from attempting to makesuch an argument.

A case from the Supreme Court may help to illustrate the distinction that wehere posit.   In Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263(1972) (per curiam), the plaintiff inmate was Buddhist.   He complainedthat adherents of other religions were permitted to exercise their religiousfaiths in ways that he was not.   Allegedly, the prison encouragedparticipation in other religious programs but discouraged the practice ofBuddhism.   The plaintiff's complaint was dismissed for failure to state aclaim.   The Supreme Court reversed, observing:

If Cruz was a Buddhist and if he was denied a reasonable opportunity ofpursuing his faith comparable to the opportunity afforded fellow prisoners whoadhere to conventional religious precepts, then there was palpablediscrimination by the State against the Buddhist religion․

The First Amendment, applicable to the States by reason of the FourteenthAmendment, Torcaso v. Watkins, 367 U.S. 488, 492-493, 81 S.Ct. 1680, 6 L.Ed.2d982 [ (1961) ], prohibits government from making a law“prohibiting the free exercise” of religion.   If theallegations of this complaint are assumed to be true, as they must be on themotion to dismiss, Texas has violated the First and Fourteenth Amendments.

Id. at 322, 92 S.Ct. 1079.

The Court then added the following footnote:

We do not suggest, of course, that every religious sect or group within aprison-however few in number-must have identical facilities or personnel.  A special chapel or place of worship need not be provided for everyfaith regardless of size;  nor must a chaplain, priest, or minister beprovided without regarded to the extent of the demand.   But reasonableopportunities must be afforded to all prisoners to exercise the religiousfreedom guaranteed by the First and Fourteenth Amendments without fear ofpenalty.

Id. at 322 n. 2, 92 S.Ct. 1079.

The Supreme Court was speaking of disparate treatment of adherents ofdifferent religious faiths, not disparate treatment of orthodox andnon-orthodox adherents of the same religion.   In the context of the thirdTurner factor, the situations may be analogous, however.   In other words,the fact that it is impermissible to discriminate against an inmate solelybecause of the non-orthodox character of his or her faith does not exclude thepossibility that there may be legitimate administrative burdens or otherpenological concerns that will justify distinguishing between orthodox andnon-orthodox believers.9  As we have indicated, however, we will leaveresolution of that issue for another day.

IV.

DeHart's Equal Protection claim focuses on the Jewish inmates in Johnsonwhose dietary restrictions were accommodated by the defendants.   Turneris equally applicable here, and the appropriate analysis for this claim is thesame as that for DeHart's Free Exercise claim.   See Turner, 482 U.S. at89, 107 S.Ct. 2254 (“[W]hen a prison regulation impinges on inmates'constitutional rights, the regulation is valid if it is reasonably related tolegitimate penological interests.”).   Once again, we note that thestipulation regarding DeHart's sincerity and the religious nature of hisdietary request establishes that he has a constitutionally protected interest.  Clearly, absent a compelling interest, the state could not favor othersand disfavor DeHart, in the context of society at large, based on the characterof his religious beliefs.   See Maldonado v. Houstoun, 157 F.3d 179, 184(3d Cir.1998) (holding that a classification that draws upon suspectdistinctions, such as religion, “is subject to strict scrutiny and willpass constitutional muster only if it is narrowly tailored to serve acompelling state interest”).   Nevertheless, DeHart cannot obtainrelief if the difference between the defendants' treatment of him and theirtreatment of Jewish inmates is “reasonably related to legitimatepenological interests.”   See Clark v. Groose, 36 F.3d 770, 773 (8thCir.1994) (holding that in order for an inmate to recover on an equalprotection claim, the inmate “must prove that the distinction betweenhimself and the other inmates was not reasonably related to some legitimatepenological purpose.”).

As we have earlier noted, the defendants explain that they provide kosherdiets to Orthodox Jewish inmates because such diets “are a commandment ofthe [O]rthodox Jewish faith” and that they have denied DeHart the dietthat his personal religious faith mandates because such a diet “is not acommandment of Buddhism.”   Appellees' Brief at 29.10  Neitherthe defendants nor the District Court has explained, however, how thisdistinction is reasonably grounded in legitimate penological concerns, and anynexus between the two is not self-evident.11  In the absence of such anexus, the distinction drawn between orthodox and non-orthodox believers cannotjustify the refusal of DeHart's request.   Accordingly, we will remandthis issue as well for further development and factual findings.

V.

The judgment of the District Court will be reversed, and this matter will beremanded to the District Court for further proceedings consistent with thisopinion.

FOOTNOTES

1.  As the affidavit of DeHart's dietician notes, his proposed dietdoes not meet the Recommended Daily Allowance (“RDA”) standards forVitamin D. riboflavin, B-6, and zinc as set forth by the National Academy ofSciences and adopted by the American Correctional Association.   As sheexplains, it does provide more than two-thirds of the RDA standard in eachinstance, and these deficiencies did not cause her to qualify her opinion thatthe proposed diet was sufficient to meet DeHart's nutritional needs.   TheDistrict Court made no findings regarding the significance, if any, of thesedeficiencies.   The Pennsylvania DOC Food Services AdministrativeDirective requires that, for the master menu, a registered dietician verifythat the diet “meets or exceeds the dietary allowances as stated in the[RDAs] ․” App. 652.   For the therapeutic diets, however, theregulation merely requires that the diet “be designed and certified by aRegistered Dietician as being nutritionally correct.”   App. 656.  The regulation also provides that it “should be interpreted tohave sufficient flexibility so as to be consistent with law ․”App. 657.   On remand, the District Court may find it necessary todetermine how this Administrative Directive should be interpreted in thiscontext.   If it should determine that the proposed diet is inconsistentwith the Administrative Directive, however, the issue would remain whetherunder Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987),the prison rules and regulations as a whole, as applied to this case, arereasonably related to legitimate penological interests.

2.  The dietician indicated that a day's supply of soy-based milkproduct would cost $1.71 if purchased in a supermarket and would cost less ifpurchased directly from a distributor.

3.  Prison officials are, of course, entitled both to make a judgmentabout the sincerity and religious nature of an inmate's belief when he or sheasks for different treatment and to act in accordance with that judgment.  If the request is not a constituent part of a larger pattern ofreligious observance on the part of the inmate, for example, the assertedreligious basis for the request may be rejected as pretext.   Moreover,while novel belief systems may be both sincerely held and religious in nature,their non-traditional character is relevant to both the “sincerelyheld” and “religious in nature” issues.   As werecognized in Africa, in determining whether a particular, non-traditionalbelief or practice is religious in nature, “the courts have‘look[ed] to the familiar religions as models in order to ascertain, bycomparison, whether the new set of ideas or beliefs is confronting the sameconcerns, or serving the same purposes, as unquestioned and accepted“religions.” ’ ”   Africa, 662 F.2dat 1032 (quoting Malnak v. Yogi, 592 F.2d 197, 207 (3d Cir.1979) (Adams, J.,concurring)).

4.  The District Court made the following findings:Plaintiff practicesMahayana Buddhism, which is one of three major traditions of Buddhist practice,along with the Hinayana and Vajrayana traditions․ He has obtainedinformation from the City of Ten Thousand Buddhists in this respect.   Mr.McKinney spoke to two members of the Board of Directors for the City of TenThousand Buddhas immediately prior to the hearing in this matter, and theyinformed him that vegetarianism is a “branch, not a root of theirparticular approach to Buddhism.”While supporting plaintiff's right topursue Buddhism as plaintiff understands it, Mr. McKinney stated that no onepractice is an absolute necessity for Buddhism, and that one should“practice what one is able to practice within the environment andconditions that one can.”   Mr. McKinney also opined that sutras areguidelines, and that plaintiff is interpreting them “in a veryliteralistic manner.”What the court is faced with, then, is a situationwhere plaintiff may sincerely believe that he would defile himself by notfollowing the strict vegetarian diet he has described.   His belief,however, is clearly not shared by any other Buddhist identified to the court,and is specifically rejected as a “central” tenet by the very sectof Buddhists to which plaintiff has appealed for guidance in thepast.  *   *   *Since vegetarianism isneither a central part of Buddhism, nor a commandment of that religion,plaintiff's wish to pursue vegetarianism must be considered an expression ofhis faith as opposed to his adherence to a religious commandment.   Thisbeing the case, the existence of alternative means of expression, includingprayer and possession of religious texts, makes this factor one which weighs inthe prison's favor as well.Dist. Ct. Slip Op. at 16, 17 (internal citationsomitted).

5.  We stress that the second factor of the Turner test is directedsolely to evaluating the interest of the inmate in having his requestaccommodated.   Our holding with respect to the impropriety ofdisregarding a sincerely held belief solely because it is not an orthodox onerelates specifically to the issue of whether alternative means of expressionare available to the inmate.   As we note, hereafter, in the context ofthe third Turner factor, our holding with respect to the second factor does notmean that it is impermissible for prison officials to distinguish betweendifferent categories of religious believers when such a distinction isreasonably related to legitimate penological interests.   See pp. 58-59,infra.

6.  We recognize that the views we here express are in tension with therecent decision of the Sixth Circuit Court of Appeals in Spies v. Voinovich,173 F.3d 398 (6th Cir.1999).   The prisoner there desired a strict veganmeal-i.e., absolutely no foodstuff derived from animals-in conformity with hisBuddhist religious beliefs.   He conceded that, while a vegetarian dietwas required by Buddhism, a vegan diet was not.   The prison had providedthe prisoner with a vegetarian diet, but it refused to provide a vegan diet.  The prisoner brought suit, alleging infringement of his Free Exerciserights.   The Sixth Circuit Court of Appeals held that, although Spies'svegan beliefs were sincerely held religious beliefs, because they were notrequired by Buddhism, the prison could continue to provide a vegetarian meal.  While the result reached in Spies may be an appropriate one, werespectfully disagree with the Court's analysis.

7.  DeHart also called to the Court's attention the followingobservations of the District Court during the initial stage of the Johnsoncase:The facts as to which there is no genuine dispute may be summarized asfollows:  1) keeping kosher is a religious obligation central to thepractice of Orthodox Jews, including plaintiffs;  2) although there areincreased dollar costs associated with accommodating a kosher diet, those costsare not significant in light of the nature of the diet which plaintiffstestified they could eat and remain kosher in accordance with the advice oftheir religious leaders;  3) there are no realistic grounds forbelieving that accommodating the plaintiffs' kosher diet will have any impacton the defendants' legitimate goals of maintaining institutional order andsafety, and the marginal administrative costs of separating genuine from falseclaims that a prisoner is an Orthodox Jew who is required to keep kosher, inlight of the administrative apparatus already in place in the Department ofCorrections, is minimal.I conclude that there is a constitutional right forthese plaintiffs as Orthodox Jews to keep kosher as described in theevidentiary record of this case, i.e., to a kosher diet not requiring theestablishment of a separate kitchen or segregated handling procedures.App. at152.

8.  The Court of Appeals cases dealing with inmate requests forreligious diets do not reach a uniform result.   This reflects, in largepart, a recognition that the issue in such cases requires a contextual,record-sensitive analysis.For cases concluding that the record mandatedprovision of a religious diet, see Makin v. Colorado Dept. of Corrections, 183F.3d 1205, 1211 (10th Cir.1999) (prison officials' failure to accommodateinmate's meal requirements during the Muslim holy month of Ramadan violated hisFirst Amendment right to free exercise of his religion);  Johnson v.Horn, 150 F.3d 276 (3d Cir.1998) (holding that prison must provide kosher dietto Jewish inmates);  Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir.1997)(holding that prison must provide prisoners with nutritional diet in conformitywith kosher laws);  Whitney v. Brown, 882 F.2d 1068 (6th Cir.1989)(holding that prison must permit Jewish inmates to hold modified PassoverSeders);  Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975) (requiringprison to provide a kosher diet).For cases finding the record inadequate todetermine whether a religious diet was required, see Ward v. Walsh, 1 F.3d 873(9th Cir.1993) (recognizing general right to a religious diet but remanding foran evaluation of the prison's interests in denying the diet);  LaFeversv. Saffle, 936 F.2d 1117 (10th Cir.1991) (reversing District Court's dismissalof prisoner's claim that prison's failure to provide a vegetarian diet violatedhis First Amendment rights);  Hunafa v. Murphy, 907 F.2d 46 (7thCir.1990) (remanding case involving Muslim prisoner's claim that failure toprovide a diet without pork violated his First Amendment rights because ofinsufficient evidence in the record to gauge the magnitude of the prison'sadministrative and security concerns);  McElyea v. Babbitt, 833 F.2d 196(9th Cir.1987) (per curiam) (recognizing general right of prisoners to a dietin conformity with their religious beliefs but remanding due to an issue offact as to the sincerity of the prisoner's belief).For cases finding the recordsufficient to sustain a denial of a religious diet, see Kahey v. Jones, 836F.2d 948 (5th Cir.1988) (holding that prison was not required to provide a dietconsistent with prisoner's religious beliefs because doing so would createadministrative difficulties);  Martinelli v. Dugger, 817 F.2d 1499, 1507n. 29 (11th Cir.1987) (upholding prison's policy of not providing kosher diet aJewish inmate because doing so would “require excessive budgetaryallowances”).See also Bass v. Coughlin, 976 F.2d 98 (2d Cir.1992) (percuriam) (clearly established for qualified immunity purposes that “prisonofficials must provide a prisoner a diet that is consistent with his religiousscruples”).

9.  Similarly, our rejection of Johnson 's“commandment”/ “positive expression of belief”distinction in the context of the second Turner factor does not rule out thepossibility that legitimate penological concerns may properly allow prisonofficials to consider the extent to which an individual sincerely believes thata given practice is a fundamental component of his or her religious faith.

10.  The defendants also argue that the record is devoid of anyevidence of a discriminatory intent on their part.   A fair inference canbe drawn from the record, however, that the relevant disparity in treatment wasthe result of deliberate choice.

11.  Under the deferential Turner standard, a prison administrationthat leaves open other avenues for religious expression can deny dietaryrequests that impose substantial burdens on valid penological interests.  In this context, it is not readily apparent why a prison administration shouldbe concerned with whether the request comes from a sincere orthodox believer ora sincere non-orthodox one.

top of page