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Johnson v. Horn

July 28, 1998

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)

Before: Becker, Chief Judge, Aldisert and Weis, Circuit Judges

The opinion of the court was delivered by: Aldisert, Circuit Judge.

Argued: June 10, 1998

Filed: July 28, 1998

OPINION OF THE COURT

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, 117 S. Ct. 2157, 2172 (1997) (RFRA exceeds Congress's Fourteenth Amendment enforcement powers). Johnson and Shore allege that after theyfiled suit, they were subject to a continuing pattern of retaliation and anti-semitic harassment from other inmates and prison guards.1 Complaints to Sobina about the alleged harassment were unavailing.

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

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

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

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

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 ...


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