Johnson v. Horn, 97-3581

• Decision Date: 16 October 1998
• Docket Number: 97-3582,No. 97-3582,No. 97-3581,Nos. 97-3581,97-3581,s. 97-3581
• Citation: 150 F.3d 276
• Parties: Jeffrey E. JOHNSON; Bruce Howard Shore, Appellants in, v. Martin F. HORN; Raymond J. Sobina, Appellants in
• Court: U.S. Court of Appeals — Third Circuit

Page 276

150 F.3d 276

Jeffrey E. JOHNSON; Bruce Howard Shore, Appellants in No. 97-3581, v. Martin F. HORN; Raymond J. Sobina, Appellants in No. 97-3582.

Nos. 97-3581, 97-3582.

United States Court of Appeals, Third Circuit.

Argued June 10, 1998.

Decided July 28, 1998.

As Amended Oct. 16, 1998.

Jon Pushinsky (argued), Pittsburgh, PA for Appellants/Cross-Appellees Jeffrey E. Johnson and Bruce Howard Shore.

Sarah B. Vandenbraak, Chief Counsel (argued), Jill Fluck, Assistant Counsel Pennsylvania Department of Corrections Camp Hill, PA, for Appellees/ Cross-Appellants Martin F. Horn and Raymond J. Sobina.

Isaac M. Jaroslawicz, Director of Legal Affairs The Aleph Institute, Surfside, FL, for Amicus Curiae The Aleph Institute

Burton Caine Temple University School of Law, Philadelphia, PA, for Amicus Curiae American Civil Liberties Union of Pennsylvania

Before: BECKER, Chief Judge, ALDISERT and WEIS, Circuit Judges

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This case once again presents the federal courts with the serious and difficult task of balancing an individual's First Amendment right to free exercise of religion with the principle, derived from the concepts of separation of powers and federalism inherent in our constitutional order, that federal courts should afford substantial deference to the administration of state correctional institutions. Specifically, we are asked to decide whether two Jewish inmates detained in the Pennsylvania prison system have a constitutional right to hot kosher meals provided to them at the Commonwealth's expense.

As inmates at the Pennsylvania State Correctional Institute in Somerset (the "Prison"), Appellants Jeffrey Johnson and Bruce Shore (the "Inmates") sued Appellees Raymond Sobina, the Prison Superintendent, and Martin Horn, the Commissioner of the Pennsylvania Department of Corrections (the "Prison Officials"), in federal district court. Johnson, a former inmate, and Shore, still an inmate, are members of the Jewish faith. They allege that the Prison Officials' denial to them of a daily kosher diet, including two hot kosher meals, violated several of their constitutional rights. The district court granted partial summary judgment to both sides and entered an injunction requiring the Prison Officials to provide Shore with a cold kosher diet at the Prison's expense. Both sides appeal from that order.

We have jurisdiction over that part of the district court's order granting summary judgment pursuant to 28 U.S.C. § 1291, and we will affirm the order in that respect. Because we decide that the district court's injunction is moot, we will vacate that part of the order granting prospective relief.

I.

In November 1996, Johnson and Shore were inmates at the Prison. Johnson was serving one to two years for attempted theft by deception and Shore was serving four to eight years for burglary.

Both Johnson and Shore are Jewish and consider themselves bound by the laws of kashrut, or kosher. According to the affidavit of Rabbi Dr. Baruch A. Poupko, the laws of kosher are "categorically binding upon every Jewish man and woman." JA at 64. Kosher laws dictate what foods can be eaten and how they can be prepared. Kosher food cannot be prepared in a non-kosher kitchen, but a sealed, frozen kosher meal can be stored in a conventional freezer and heated in a conventional or microwave oven.

A Department of Corrections policy provides that all inmates shall receive three meals a day, two of which are hot. Johnson, who previously had received kosher foods while in the federal prison system, arrived at the Prison in May 1996. In June and July 1996, utilizing the Prison's grievance system, Johnson requested a kosher diet from Prison officials. The Prison's Grievance Coordinator denied his request, and Sobina affirmed this decision, stating: "Mr. Johnson has the ability to pick and choose items that are to his liking, whether it be for religious or personal diet reasons." JA at 39. If Sobina meant to suggest that Johnson's diet was a matter of personal choice, his response demonstrated a misunderstanding of the laws of kashrut. However, neither Johnson nor his Rabbi ever explained to Prison officials what a kosher diet entails. Johnson appealed Sobina's decision to the Central Office of the Pennsylvania Department of Corrections. Upon recommendation of the Central Office Review Committee, Commissioner Horn upheld the decision.

Shore arrived at the Prison in December 1995. In October and November 1996, Shore attempted for the first time to obtain kosher meals through the Prison's grievance procedures. As with Johnson, his request was denied.

In November 1996, Johnson and Shore filed suit against Horn and Sobina in federal district court, alleging that the denial of kosher meals violated the First Amendment, giving rise to a cause of action under 42 U.S.C. § 1983, and violated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb to 2000bb-4 (West 1997). The Supreme Court subsequently declared RFRA unconstitutional. City of Boerne v. Flores, 521 U.S. 507, ----, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624 (1997) (RFRA exceeds Congress's Fourteenth Amendment enforcement powers). Johnson and Shore allege that after they filed suit, they were subject to a continuing pattern of retaliation and anti-semitic harassment from other inmates and prison guards. ¹ Complaints to Sobina about the alleged harassment were unavailing.

On November 13, 1996, the district court issued a temporary restraining order requiring the Prison Officials to provide Johnson and Shore with kosher food at every meal. The Prison subsequently provided Johnson and Shore with a kosher diet consisting of milk, unpeeled fruit, uncut raw vegetables and a vanilla-flavored liquid nutritional supplement called "Resource" (the "cold kosher diet"). The Prison charged the Inmates for the kosher food by deducting funds from their inmate accounts. In an affidavit submitted on the Inmates' behalf, dietician Joanne Perelman stated that this diet "probably [provided] the proscribed [sic] number of calories and the required nutritional composition of vitamins and minerals." JA at 230. However, she felt the diet placed the Inmates "in a compromised dietary condition" because the liquid nutritional supplement provided "the bulk of their nutrition." Id. The magistrate judge recommended against this original cold kosher diet as a long-term solution, but endorsed it pending the final outcome of the litigation, with the understanding that the Prison would continue to provide the cold kosher diet to the Inmates. Based on this recommendation, the district court dissolved the temporary restraining order on December 24, 1996.

The cold kosher diet eventually was augmented to include granola, pretzels, cereal and saltines. Id. at 236. Prison dietician Brian Shedleski stated in his affidavit that he had performed an in-depth analysis of this diet using a computer model which considered the height, weight, age, gender and activity level of each Inmate, as well as the Recommended Dietary Allowance values set by the National Academy of Sciences. Based on this analysis, Shedleski concluded that "the diet is adequate and sufficiently meets the nutritional criteria set forth by the National Academy of Sciences." JA at 235.

Johnson was released from custody on August 9, 1997, at which time his claims for injunctive relief became moot. He remains a plaintiff only for the purpose of seeking damages.

At the close of discovery, the parties filed cross-motions for summary judgment. The Inmates argued that the cold kosher diet the Prison was providing them was constitutionally inadequate and that they, like other prisoners were entitled to two hot, appetizing meals a day. Shore asked that the Prison be required to purchase frozen kosher meals which could be heated for him twice a day in the Prison kitchen. The cost of purchasing frozen kosher meals is around $2.00 per meal, or approximately $4.00 per inmate per day. ² On the other hand, the cold kosher diet costs the prison $7.24 per inmate per day. Id. at 316.

On August 29, 1997, the magistrate judge filed a report recommending that the district court grant partial summary judgment to both sides. Specifically, the magistrate judge recommended that, in order for the Prison Officials to comply with the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, the district court issue an injunction requiring the Prison Officials to (1) continue providing Shore the cold kosher diet and (2) refrain from charging Shore for kosher meals. The magistrate judge also determined that Johnson and Shore had no equal protection right to hot kosher meals, and recommended that the district court grant the Prison Officials qualified immunity from the Inmates' claims for money damages. On September 24, 1997, after the parties filed objections to the magistrate judge's report, the district court filed an opinion and order granting partial summary judgment to both sides and entering an injunction as recommended. Both sides appealed.

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

We have plenary review over the district court's decision to grant summary judgment. Sabo v. Metropolitan Life Ins. Co., 137 F.3d 185, 195 (3d Cir.1998). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; Rule 56(c), Federal Rules of Civil Procedure.

II.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."...