DeHart v. Horn

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

1-5-2000

DeHart v Horn

Precedential or Non-Precedential:

Docket 99-3072

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Filed January 3, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-3072

ROBERT PERRY DEHART

Appellant

v.

MARTIN HORN, Commissioner of Corrections;

JAMES S. PRICE, Superintendent of SCI Greene;

UNITED STATES OF AMERICA

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civil Action No. 95-cv-01238)

District Judge: Honorable William L. Standish

Argued July 27, 1999

BEFORE: SCIRICA and STAPLETON, Circuit Judges,

and GREEN,* District Judge

(Opinion Filed January 3, 2000)

_________________________________________________________________

* Honorable Clifford Scott Green, Senior United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

Edward A. Olds (Argued)

1007 Mount Royal Boulevard

Pittsburgh, PA 15223

Attorney for Appellant

J. Bart DeLone (Argued)

Office of Attorney General

of Pennsylvania

15th Floor, Strawberry Square

Harrisburg, PA 17120

and

Rodney M. Torbic

Office of Attorney General

of Pennsylvania

6th Floor, Manor Complex

Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiff-Appellant, Robert P. DeHart ("DeHart"), an

inmate at the Pennsylvania State Correctional Institute

("SCI") at Greene, commenced this civil rights action

against Martin Horn, Commissioner of the Department of

Corrections of Pennsylvania, and James Price,

Superintendent of SCI at Greene (collectively "the prison" or

"prison officials"), as a result of their failure to provide him

with a diet consistent with his Buddhist religious beliefs.

DeHart appeals the final order of the District Court,

granting the defendants' motion for summary judgment. He

insists that the defendants' failure to accommodate his

religious belief, which requires him to follow a vegetarian

diet, violates both his right to free religious expression

under the First Amendment and his right to equal

protection of the law under the Fourteenth Amendment. We

will reverse the judgment of the District Court and remand

the case for further proceedings consistent with this

opinion.

2

I.

DeHart is currently serving a life sentence at SCI at

Greene. Since his incarceration, he, with the assistance of

the City of 10,000 Buddhas, a center of Buddhist teaching,

has taught himself Buddhism. Based on his own reading of

the Sutras, which are Buddhist religious texts, DeHart

became a vegetarian. DeHart testified before the District

Court that the First Precept in Buddhism prohibits the

killing of any living thing, and he has interpreted that

Precept as requiring that he follow a vegetarian diet. The

prison officials do not challenge the sincerity of DeHart's

beliefs. They do, however, challenge whether vegetarianism

is a central tenet of any recognized Buddhist sect.

A brief overview of the process by which Pennsylvania

prisons provide meals to inmates is necessary for a proper

understanding of DeHart's request. Pursuant to a master

menu, all inmates at SCI Greene receive the same meals.

The food for those meals is obtained through bulk

purchases. Those inmates whose health requires dietary

modifications or restrictions receive a therapeutic diet. In

order for an inmate to receive a therapeutic diet, however,

it must be prescribed by an institution doctor. The

therapeutic diet consists of the same foods (in different

proportions) that are served on the master menu. The

therapeutic meals are prepared individually, and all

inmates who have been prescribed a therapeutic diet eat

together in one dining hall after it has been cleared of the

other inmates.

DeHart proposes that he be served a vegetarian meal

when other inmates are served the therapeutic meals.

DeHart secured the affidavit of a dietician, who averred that

DeHart's nutritional needs could be satisfied by doubling

the portions of vegetables and grains already served and

then adding an eight-ounce cup of a soy-based milk

product at each meal.1 The cost of this supplement, which

_________________________________________________________________

1. As the affidavit of DeHart's dietician notes, his proposed diet does

not

meet the Recommended Daily Allowance ("RDA") standards for Vitamin

D, riboflavin, B-6, and zinc as set forth by the National Academy of

Sciences and adopted by the American Correctional Association. As she

3

is 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 diet that comports with his religious beliefs.

That grievance was denied, and DeHart appealed the denial

to Superintendent Price, who concurred in the result. The

denial was again upheld on appeal by the DOC Central

Office Review Committee. DeHart then filed this suit

pursuant to 42 U.S.C. S 1983.

A preliminary injunction hearing was held before a

Magistrate Judge, who found that vegetarianism is not

mandated by Buddhism and, for that reason, recommended

that DeHart be denied preliminary relief. The District Court

adopted the Magistrate Judge's recommendation. DeHart

then appealed to this Court, and we affirmed the denial of

preliminary injunctive relief. See DeHart v. Horn, No. 97-

3048 (3d Cir. Aug. 25, 1997) (hereinafter "Memorandum

Opinion"). In the Memorandum Opinion affirming the

District Court's decision, this Court admonished the

_________________________________________________________________

explained, it did provide more than two-thirds of the RDA standard in

each instance, and these deficiencies did not cause her to qualify her

opinion that the proposed diet was sufficient to meet DeHart's

nutritional needs. The District Court made no findings regarding the

significance, if any, of these deficiencies. The Pennsylvania DOC Food

Services Administrative Directive requires that, for the master menu, a

registered dietician verify that the diet "meets or exceeds the dietary

allowances as stated in the [RDAs] . . . ." App. 652. For the therapeutic

diets, however, the regulation merely requires that the diet "be designed

and certified by a Registered Dietician as being nutritionally correct."

App. 656. The regulation also provides that it "should be interpreted to

have sufficient flexibility so as to be consistent with law . . . ." App.

657.

On remand, the District Court may find it necessary to determine how

this Administrative Directive should be interpreted in a context like

this.

If it should determine that the proposed diet is inconsistent with the

Administrative Directive, however, the issue would remain whether

under Turner v. Safley, 482 U.S. 78, 89 (1987), the prison rules and

regulations as a whole, as applied to this case, are reasonably related to

legitimate penological interests.

2. The dietician indicated that a day's supply of soy-based milk product

would cost $1.71 if purchased in a supermarket and would cost less if

purchased directly from a distributor.

4

District Court not to interject itself into Buddhist doctrinal

disputes: "We agree with [DeHart] that the district court

could properly determine only whether he sincerely held his

religious beliefs, not whether his beliefs are doctrinally

correct or central to a particular school of Buddhist

teaching." Memorandum Opinion at 2 (citing Employment

Division v. Smith, 494 U.S. 872, 886-87 (1990)).

On remand, the parties engaged in additional discovery,

and cross-motions for summary judgment were filed. The

Magistrate Judge recommended that summary judgment be

granted in favor of the prison officials. DeHartfiled

objections to the Magistrate Judge's Report and

Recommendation, arguing, inter alia, that the Magistrate

Judge ignored this Court's instructions and again based his

opinion on a finding that vegetarianism is not a central

tenet of the Buddhist religion. The District Court adopted

the Report and Recommendation over that objection, and

this appeal followed.

II.

The District Court had jurisdiction over this case,

pursuant to 28 U.S.C. S 1331, and this Court has

jurisdiction over the present appeal pursuant to 28 U.S.C.

S 1291. We exercise plenary review over the District Court's

decision to grant summary judgment. See Wicker v. Consol.

Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). Summary

judgment is appropriate only if there is no genuine issue of

material fact, and the moving party is entitled to a

judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

In our review, we must view all evidence and draw all

inferences therefrom in the light most favorable to the

nonmoving party. See Wicker, 142 F.3d at 696.

III.

The First Amendment provides that "Congress shall make

no law respecting an establishment of religion, or

prohibiting the free exercise thereof . . . ." U.S. Const.

amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303

(1940), the Supreme Court held that the First Amendment

was incorporated by the Fourteenth Amendment and, thus,

5

applicable to the states. Although DeHart is incarcerated,

the Supreme Court has made clear that "convicted

prisoners do not forfeit all constitutional protections by

reason of their conviction and confinement in prison." Bell

v. Wolfish, 441 U.S. 520, 545 (1979). "Inmates clearly

retain protections afforded by the First Amendment, . . .

including its directive that no law shall prohibit the free

exercise of religion." O'Lone v. Shabazz, 482 U.S. 342, 348

(1987) (citations omitted). Nevertheless, the fact of

incarceration and the valid penological objectives of

deterrence of crime, rehabilitation of prisoners, and

institutional security require certain limitations on the

exercise of constitutional rights by inmates. See Pell v.

Procunier, 417 U.S. 817, 822-23 (1974).

In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme

Court articulated the standard for reviewing a prison

regulation challenged on constitutional grounds: "[W]hen a

prison regulation impinges on inmates' constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interests." This test is intended to

effect an accommodation between two well-established

principles. "The first of these principles is that federal

courts must take cognizance of the valid constitutional

claims of prison inmates." Id. at 84. The"second . . . is the

recognition that `courts are ill equipped to deal with the

increasingly urgent problems of prison administration' and

[that] separation of powers concerns counsel a policy of

judicial restraint." Id. at 84-85 (quoting Procunier v.

Martinez, 416 U.S. 396, 405 (1974)). Thus, while this

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.

Turner goes on to provide guidance on how to apply its

reasonableness standard. As we recently explained in

Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999)

(internal citations omitted):

6

[Turner] directs courts to assess the overall

reasonableness of such regulations by weighing four

factors. "First, there must be a `valid, rational

connection' between the prison regulation and the

legitimate governmental interest put forward to justify

it," and this connection must not be "so remote as to

render the policy arbitrary or irrational." Second, a

court must consider whether inmates retain alternative

means of exercising the circumscribed right. Third, a

court must take into account the costs that

accommodating the right would impose on other

inmates, guards, and prison resources generally. And

fourth, a court must consider whether there are

alternatives to the regulation that "fully accommodate[ ]

the prisoner's rights at de minimis cost to valid

penological interests."

1. Rational Connection to Penological Interests

The prison asserts that two penological interests are

served by denying DeHart's request for a vegetarian diet: (1)

the interest in a simplified and efficient food service; and (2)

the interest in avoiding possible resentment and jealousy

on the part of other inmates. The District Court found that

the denial of DeHart's religious diet was rationally related to

those two legitimate, penological goals. Given the deference

we must show to the reasoned judgment of prison officials

and our recent decision in Johnson v. Horn, 150 F.3d 276

(3d Cir. 1998), we agree.

In Johnson, two Pennsylvania prison inmates sued prison

officials, alleging a violation of their free exercise rights. The

inmates were Jewish and were seeking a kosher diet in

conformity with their religious beliefs. In that case,

however, the prison officials conceded that the inmates

were entitled to receive a kosher diet; the only issue was

whether that diet had to consist of hot or cold meals. See

id. at 281. This Court, thus, never addressed the

fundamental issue in this case -- i.e., whether the prison is

constitutionally required to serve a diet that conforms with

DeHart's religious beliefs. Nevertheless, the Court's analysis

is helpful here.

In Johnson, the Court specifically held that "[t]he Prison

has a legitimate penological interest in keeping its food

7

service system as simple as possible." Id. at 282; see also

Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 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 bringing additional foods from new sources into

the Prison and the possible belief by other inmates that

[plaintiffs] are receiving special treatment." Johnson, 150

F.3d at 282.

Johnson, thus, forecloses any argument as to the

legitimacy of a prison's interest in an efficient food system

or in avoiding inmate jealousy; those interests are

legitimate penological concerns under Turner. Moreover, we

agree that the prison's refusal to grant DeHart's request for

a religious diet bears some rational relation to those

concerns. The fifty-five therapeutic trays prepared at each

meal complicates the food service regimen of the prison,

and preparation of additional special meals would add

incrementally to the burden. Similarly, while the evidence

indicates that the provision of therapeutic meals has never

given rise to problems in the past, it is not irrational to

think that providing DeHart with a vegetarian diet to

accommodate his religious beliefs might involve some risk

of inmate jealousy.

This determination commences rather than concludes

our inquiry for two reasons. First, while a rational nexus

between a regulation and a legitimate penological interest is

essential to its validity, see Turner, 482 U.S. at 89-90, not

all prison regulations that are rationally related to such an

interest pass Turner's "overall reasonableness" standard.

Turner, thus, calls for more than traditional rational basis

review. As the remaining factors evidence, the Turner

standard also takes into account the extent of the burden

imposed by the regulation on an inmate's religious

expression, as well as the impact that accommodating the

inmate's constitutional claim would have on the entire

prison community and its resources.

Second, Turner teaches that the "governmental objective

must be [both] a legitimate and neutral one." Id. at 90

(emphasis added). The Court "found it important to inquire

whether prison regulations restricting inmates' First

8

Amendment rights operated in a neutral fashion, without

regard to the content of the expression." Id. DeHart brought

to the District Court's attention the fact that the defendants

in Johnson had urged a judge and a magistrate judge of the

same court not to order them to provide kosher meals to

Jewish inmates because the prison was voluntarily

providing such a diet. DeHart further pointed out that the

kosher diet being voluntarily provided consisted of milk,

uncut fruit and vegetables, and a nutritional supplement,

and that the cost to the prison for these kosher meals was

substantially more than the cost of the liquid supplement

diet he was requesting.3 The defendants comment on these

facts only in response to DeHart's Equal Protection

argument. Their sole response is: "In Johnson, the Court

was presented with kosher laws that are a commandment

of the Orthodox Jewish faith. . . . Here, vegetarianism while

an expression of belief, is not a commandment of

Buddhism." Appellees' Br. at 29.

While the District Court did not comment on the fact that

the defendants were providing specially prepared kosher

_________________________________________________________________

3. DeHart also called to the Court's attention the following observations

of the District Court during the initial stage of the Johnson case:

The facts as to which there is no genuine dispute may be

summarized as follows: 1) keeping kosher is a religious obligation

central to the practice of Orthodox Jews, including plaintiffs; 2)

although there are increased dollar costs associated with

accommodating a kosher diet, those costs are not significant in

light

of the nature of the diet which plaintiffs testified they could eat

and

remain kosher in accordance with the advice of their religious

leaders; 3) there are no realistic grounds for believing that

accommodating the plaintiffs' kosher diet will have any impact on

the defendants' legitimate goals of maintaining institutional order

and safety, and the marginal administrative costs of separating

genuine from false claims that a prisoner is an Orthodox Jew who

is required to keep kosher, in light of the administrative

apparatus

already in place in the Department of Corrections, is minimal.

I conclude that there is a constitutional right for these

plaintiffs as

Orthodox Jews to keep kosher as described in the evidentiary record

of this case, i.e., to a kosher diet not requiring the

establishment of

a separate kitchen or segregated handling procedures.

App. at 152.

9

meals with nutritional supplements to the Jewish inmates

at greater cost, we assume that it must have accepted the

distinction tendered by the defense. As we explain

hereafter, the proffered distinction is untenable. If, on

remand, the District Court can articulate no other reason

why DeHart and the Jewish inmates are not similarly

situated, it must enter judgment for DeHart. As we have

noted, neutrality in the regulation of religious expression is

a sine qua non of validity under Turner.4

2. Alternative Means of Religious Expression

This factor requires a court to focus on the burden that

the regulation imposes on an inmate's ability to engage in

constitutionally protected activity. Turner instructs that

where " `other avenues' remain available for the exercise of

the asserted right, . . . courts should be particularly

conscious of the `measure of judicial deference owed to

corrections officials . . . in gauging the validity of the

regulation.' " Turner, 482 U.S. at 90 (quoting Pell v.

Procunier, 417 U.S. at 827). Conversely, where the

regulation leaves no alternative means of exercising the

asserted right, the inmate's interest in engaging in the

prohibited activity is entitled to greater weight in the

balancing process.

_________________________________________________________________

4. We agree with the dissent that a court must examine whether the

interest asserted as a justification for the regulation is "unrelated to

the

suppression of expression." Waterman v. Farmer, 183 F.3d 208, 215 (3d

Cir. 1999) (quoting Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). The

inquiry cannot stop there, however. As we have pointed out above,

immediately after setting forth the "neutrality" requirement, the Turner

Court stressed that it was "important to inquire whether prison

regulations restricting inmates' First Amendment rights operated in a

neutral fashion, without regard to the content of the expression." Turner,

482 U.S. at 90 (emphasis added); see also Thornburgh, 490 U.S. at 420

(finding regulations facially valid under the Turner standard, but

remanding "for an examination of the validity of the regulations as

applied"). The fundamental inquiry under Turner is whether what the

prison is doing is reasonably related to legitimate penological interests,

and we are confident that the Court did not mean to suggest that such

a relationship can exist where a prison, without substantial justification

related to legitimate, penological interests, chooses to accommodate the

religious dietary needs of Jewish inmates while refusing to accommodate

an inmate of another faith.

10

In Johnson, we applied this teaching in the context of an

asserted right to a diet in conformity with one's religious

beliefs. There we contrasted situations involving alternative

means of religious expression with situations involving

religious commandments that the prison regulation

requires the inmate to violate. We explained:

[T]he importance of alternative means of religious

observance is an irrelevant consideration when the

belief at issue is a "religious commandment," rather

than a "positive expression of belief." [ Ward v. Walsh,

1 F.3d 873, 878 (9th Cir. 1993)] (discussing Jewish

kosher laws). As the United States Court of Appeals for

the Ninth Circuit has stated: "It is one thing to curtail

various ways of expressing belief, for which alternative

ways of expressing belief may be found. It is another

thing to require a believer to defile himself, according

to the believer's conscience, by doing something that is

completely forbidden by the believer's religion." Id. As

in Ward, the Inmates here are "defiling" themselves

under the laws of kosher when forced to eat non-

kosher foods. By acknowledging this, we do not intend

to suggest that all "religious commandments" must be

accommodated, whatever their costs to legitimate

penological concerns. However, in such situations the

centrality of the religious tenet carries greater weight

and the existence of alternative means of observance is

of no use in the ultimate balancing which Turner

commands.

Johnson, 150 F.3d at 282.

The District Court erroneously interpreted the distinction

we drew in Johnson as calling for an assessment of whether

vegetarianism was a "central tenet" of Buddhism or some

recognized sect thereof. In the course of its analysis, the

Court relied heavily on the testimony of Richard McKinney,

an expert in the doctrine and practices of Buddhism, at the

preliminary injunction hearing. Based on that testimony, it

made the following findings:

Plaintiff practices Mahayana Buddhism, which is one

of three major traditions of Buddhist practice, along

with the Hinayana and Vajrayana traditions. . . . He

11

has obtained information 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 Ten Thousand Buddhas immediately prior to

the hearing in this matter, and they informed him that

vegetarianism is a "branch, not a root of their

particular approach to Buddhism."[5]

_________________________________________________________________

5. Mr. McKinney gave the following explanation of the "branch, not root"

concept:

Q. What do you mean by that?

A. By that I mean that it is not a root practice, it is a -- like a

branch on a tree, it is a -- a practice that one can engage in.

They

happen to engage in that practice.

Q. Who are they?

A. Both the monk and the nun that I was talking about.

Q. Are they within the City of Ten Thousand Buddhists?

A. They're part of the organization.

* * *

Q. With the experience that you have, do you consider the strict

vegetarian practice as it is practiced within the City of Ten

Thousand Buddhas to be a high form of practice within Buddhism?

A. I'm hesitating because the idea of higher or lower practice, in

which I just said, is -- the root practices have to do with the

precepts. The vegetarianism is not higher, it is just a practice

which

grows out of the precept of not harming.

Q. Okay. Is vegetarianism mandated by Buddhism?

A. No.

App. at 104-05.

On cross-examination, Mr. McKinney further testified:

Q. Do some Buddhists practice vegetarianism as a matter of

religious belief or conviction?

A. Yes.

Q. Okay. And, in fact, isn't it the case that the-- that the monks

or some people associated with the City of Ten Thousand Buddhas

practice vegetarianism?

12

While supporting plaintiff 's right to pursue Buddhism

as plaintiff understands it, Mr. McKinney stated that

no one practice is an absolute necessity for Buddhism,

and that one should "practice what one is able to

practice within the environment and conditions that

one can." Mr. McKinney also opined that sutras are

guidelines, and that plaintiff is interpreting them"in a

very literalistic manner."

What the court is faced with, then, is a situation where

plaintiff may sincerely believe that he would defile

himself by not following 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 sect

of Buddhists to which plaintiff has appealed for

guidance in the past.

* * *

Since vegetarianism is neither a central part of

Buddhism, nor a commandment of that religion,

plaintiff 's wish to pursue vegetarianism must be

considered an expression of his faith as opposed to his

adherence to a religious commandment. This being the

case, the existence of alternative means of expression,

including prayer and possession of religious texts,

makes this factor one which weighs in the prison's

favor as well.

_________________________________________________________________

A. Yes.

Q. And isn't it the case that at least some of the people in the

City

of Ten Thousand Buddhas perform the custom where they eat one

vegetarian meal before noon or early in the day and that's the only

meal that they eat?

A. There are many Teravadan monks who do the same.

Q. Okay. And that's a function of their religious conviction and

religious belief, is that correct?

A. It's a function of their religious practice.

App. at 106-07.

13

District Court Slip Op. at 16, 17 (internal citations omitted).

The District Court's reliance on the fact that DeHart's

beliefs are not shared by others in the Buddhist religion is

inconsistent with both Supreme Court caselaw and the

precedent of this Court. As the Supreme Court cautioned in

Employment Division v. Smith:

"[I]t is not within the judicial ken to question the

centrality of particular beliefs or practices to a faith, or

the validity of particular litigants' interpretations of

those creeds." Hernandez v. Commissioner, 490 U.S.

[680,] 699 [(1989)]. Repeatedly and in many different

contexts, we have warned that courts must not

presume to determine the place of a particular belief in

a religion or the plausibility of a religious claim.

494 U.S. 872, 886-87 (1990) (plurality opinion). Although

the Court was divided in Smith, the concurring and

dissenting opinions both expressly agreed with the

majority's admonition. See id. at 906 (O'Connor, J.,

concurring) ("I agree with the Court . . . [that] `[i]t is not

within the judicial ken to question the centrality of

particular beliefs or practices to a faith.' ") (quoting

Hernandez); id. at 919 (Blackmun, J., dissenting) ("I agree

. . . that courts should refrain from delving into questions

whether, as a matter of religious doctrine, a particular

practice is `central' to the religion").

Smith is not an aberration. Rather, it is part of a

consistent and resounding theme echoed throughout many

Supreme Court opinions. See Thomas v. Review Bd. of

Indiana Employment Security Div., 450 U.S. 707, 715-16

(1981) ("[T]he guarantee of free exercise is not limited to

beliefs which are shared by all of the members of a religious

sect. . . . [I]t is not within the judicial function and judicial

competence to inquire [who has] more correctly perceived

the commands of their common faith."); Jones v. Wolf, 443

U.S. 595, 602-06 (1979); Presbyterian Church in U.S. v.

Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393

U.S. 440, 450 (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 (1944).

14

The course to be followed in a case of this kind was

charted by this Court in Africa v. Pennsylvania, 662 F.2d

1025 (3d Cir. 1981), which also involved an inmate's

request for a special diet said to be mandated by the Free

Exercise Clause. The inmate was a member of MOVE, " `a

revolutionary' organization, `absolutely opposed to all that

is wrong.' " Id. at 1026. We there posed the issues for

decision as follows:

The relevant case law in the free exercise area suggests

that two threshold requirements must be met before

particular beliefs, alleged to be religious in nature, are

accorded first amendment protection. A court's task is

to decide whether the beliefs avowed are (1) sincerely

held, and (2) religious in nature, in the claimant's

scheme of things. United States v. Seeger, 380 U.S.

163, 185, 85 S. Ct. 850, 863, 13 L.Ed.2d 733 (1965);

Callahan v. Woods, 658 F.2d 679 (9th Cir. Oct. 5,

1981). If either of these two requirements is not

satisfied, the court need not reach the question, often

quite difficult in the penological setting, whether a

legitimate and reasonably exercised state interest

outweighs the proffered first amendment claim.

Africa, 662 F.2d at 1029-30. It was clear that Africa's

beliefs were sincerely held. We concluded, however, that

those beliefs were not "religious in nature" and,

accordingly, we had no occasion to reach the issue of

whether the state's legitimate interest outweighed the

proffered free exercise claim.

When we explained the necessity of finding a sincerely

held belief, we were careful in Africa to stress that the case

law did not require a finding of an orthodox belief:

Judges are not oracles of theological verity, and the

Founders did not intend for them to be declarants of

religious orthodoxy. See United States v. Ballard, 322

U.S. 78, 85-88, 64 S. Ct. 882, 885-87, 88 L.Ed. 1148

(1944). The Supreme Court has emphasized, however,

that "while the `truth' of a belief is not open to

question, there remains the significant question

whether it is `truly held.' " Seeger, supra, 380 U.S. at

185, 85 S. Ct. at 863. Without some sort of required

15

showing of sincerity on the part of the individual or

organization seeking judicial protection of its beliefs,

the first amendment would become "a limitless excuse

for avoiding all unwanted legal obligations."

Id. at 1030 (internal footnotes omitted) (emphasis added).

We reiterated the same theme in the course of explaining

the necessity of a finding that Africa's sincerely held beliefs

were religious in nature:

As was observed earlier, the judicial branch is neither

authorized nor equipped to pronounce upon the veracity

of a religious precept. Unless, however, every

individual's subjective definition of a religion is to be

controlling in first amendment litigation, "a court must,

at least to a degree, examine the content of the

supposed religion, not to determine its truth or falsity,

or whether it is schismatic or orthodox, but to determine

whether the subject matter it comprehends is

consistent with the assertion that it is, or is not, a

religion." Malnak, supra, 592 F.2d at 208 (concurring

opinion).

Id. at 1034 n.18 (emphasis added).

While Africa was decided before Turner, there is nothing

in Turner, subsequent Supreme Court jurisprudence, or the

jurisprudence of our circuit that is inconsistent with the

holding in Africa. Even unorthodox beliefs are afforded

protection under the Free Exercise Clause of the First

Amendment, so long as they are sincerely held and

religious in nature. In the present case, the defendants

conceded that DeHart's beliefs are sincerely held and

religious in nature. It necessarily follows that DeHart's

beliefs were constitutionally protected. It also necessarily

follows that the District Court erred by according them less

weight because they were not shared or considered

essential by others in the Buddhist religion.6

_________________________________________________________________

6. By so concluding, we do not mean to suggest that evidence of the

tenets of established religions is irrelevant in a context like this.

Quite

the contrary, such evidence may bear on the determination of whether

a person's beliefs are sincerely held and whether they are religious in

nature.

16

Having established that DeHart's beliefs are entitled to

constitutional protection and that the prison is restricting

his ability to practice his religion in accordance with those

beliefs, the second prong of Turner requires us to examine

whether DeHart has alternative means of exercising the

circumscribed right. As this Court and others have noted,

whether an alternative means of expression remains

available depends on how the relevant First Amendment

right is defined. See Waterman v. Farmer, 183 F.3d 208,

218 (3d Cir. 1999); Amatel v. Reno, 156 F.3d 192, 201 (D.C.

Cir. 1998). For this reason, the Supreme Court has

instructed that " `the right' in question must be viewed

sensibly and expansively." Thornburgh v. Abbott, 490 U.S.

401, 417 (1989) (quoting Turner, 482 U.S. at 92). In Turner,

the challenged prison regulation prohibited correspondence

between an inmate and inmates at other institutions. The

Court, in applying the second factor, did not inquire

whether inmates had alternative means of communicating

with inmates at other institutions. Rather, it concluded that

because the regulation barred "communications only within

a limited class of other people," it did not deprive prisoners

of alternative means of expression. Turner, 482 U.S. at 92.

Similarly, in Thornburgh, where the challenged regulation

prevented inmates from receiving sexually explicit material

that posed a threat to security, the Court found that

alternative means of expression were available because the

regulations permitted "a broad range of publications to be

sent, received, and read." Thornburgh, 490 U.S. at 418.

The distinction in Johnson on which the District Court

seized simply recognizes that courts must consider the

nature of the right for which the inmate seeks

accommodation -- i.e., whether, in the context of the

inmate's belief system, it is a "religious commandment" or

a "positive expression of belief" -- in order sensibly to

define the relevant right. Thus, if failure to accommodate

an inmate's request forces that inmate to do something that

is proscribed by his or her religion, as he or she

understands it, we must recognize that there are no

alternative means by which he or she may engage in the

relevant religious practice. See Johnson, 150 F.3d at 282 (in

such cases "the importance of alternative means of religious

observance is an irrelevant consideration"). The present

17

case provides a perfect example -- by denying DeHart's

request for a vegetarian diet, the prison officials forced him

to do something forbidden by his religious beliefs. There are

simply no alternative means by which DeHart can maintain

a diet in conformity with his religious beliefs; he is either

provided a vegetarian diet, or he is not.

In contrast, where a prison regulation merely limits a

form of positive expression of one's religious faith and

beliefs -- as, for example, prayer, worship, meditation,

scripture study, etc. -- the second Turner factor requires

consideration of the alternative means of expression that

are left open.7 If, as in O'Lone v. Shabazz, 482 U.S. 342

(1987), Muslim inmates are prohibited from attending

Jumu'ah, a congregate service held only on Friday

afternoons, do they have other opportunities for congregate

worship at other times? To the extent alternative avenues of

expression are open, Johnson dictates that the weight

accorded the inmate's interest in the prohibited form of

expression is entitled to less weight.

Following our reasoning in Johnson, we find that no

alternative means of expression exist for DeHart, because

by failing to provide him with a vegetarian diet, the prison

officials have forced DeHart "to defile himself, according to

[his own] conscience, by doing something that is completely

forbidden by [his] religion." Johnson, 150 F.3d at 282

(quoting Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993)).

As we stressed in Johnson, however, the absence of

_________________________________________________________________

7. We, thus, agree with the dissent that "Johnson makes clear that the

centrality of a religious practice . . . is a valid consideration in

applying

the Turner test." The issue for decision here, however, is whether the

Court in determining the "centrality" of a particular belief must look to

the sincerely held religious beliefs of the inmate involved or to the

"orthodox" beliefs of others. As we have explained, we read Smith and

Africa together as requiring that courts not"pronounce on the veracity

of a religious precept." Africa, 662 F.2d at 1034 n.18. Provided that the

relevant precept is sincerely held and religious in nature, we must afford

it constitutional protection. Thus, in this case, because the prison has

conceded that DeHart's belief -- i.e., that his religion requires him to

follow a specific diet -- is sincerely held and religious in nature, that

belief is entitled to the full measure of constitution protection, whether

or not it is shared by others in the Buddhist religion.

18

alternatives for DeHart does not necessarily mean that his

interest in a vegetarian diet must be accommodated.

Nevertheless, it does mean that that interest is entitled to

substantially more weight in the "overall reasonableness"

analysis than it would be if there were adequate substitute

means of expression.

We recognize that our holding conflicts with the recent

decision of the Sixth Circuit Court of Appeals in Spies v.

Voinovich, 173 F.3d 398 (6th Cir. 1999). The facts in that

case were similar to those here: a prisoner desired a strict

vegan meal -- i.e., absolutely no food stuffs derived from

animals -- in conformity with his Buddhist religious beliefs.

In Spies, however, the prisoner conceded that, while a

vegetarian diet was required by Buddhism, a vegan diet

was not. The prison had provided the prisoner with a

vegetarian diet, but it refused to provide a vegan diet. The

prisoner brought suit, alleging infringement of his free

exercise rights. The Sixth Circuit Court of Appeals held

that, although Spies's vegan beliefs were sincerely held

religious beliefs, because they were not required by

Buddhism, the prison could continue to provide a

vegetarian meal, thereby granting Spies an "alternative

means" of exercising his religion. See id. at 407. We,

respectfully, disagree with the Spies analysis.

Under the First Amendment, citizens are not limited to

practicing an organized religion. Whether other Buddhists

agree with DeHart's beliefs is simply not relevant to the

Turner analysis. The analysis conducted by the District

Court presupposes that a person is limited to practicing a

religion according to a specific prescription and that only

those customs, which others recognize as required, will be

unassailable. Cf. United States v. Ballard, 322 U.S. 78, 87

(1944) ("[Man] was granted the right to worship as he

pleased and to answer to no man for the verity of his

religious views."). To us, that seems contrary to the very

point of the First Amendment, which was designed to

protect the free exercise of any religion, whether it be

organized, accepted, or not. See Spies v. Voinovich, 173

F.3d 398, 409 (6th Cir. 1999) (Moore, J., dissenting) ("the

First Amendment does not provide greater protection for

centralized religions with established sets of mandatory

19

doctrines than it provides for less established or individual-

based religions").

3. Remaining Factors and the Weighing Process

The first two Turner factors focus on the prison's decision

-- to what extent is it justified by legitimate and neutral

concerns and what options does it leave open to the inmate.

The third and fourth factors, on the other hand, focus on

the specific religious practice or expression in which the

inmate wishes to engage -- what will be the consequences

of accommodating the inmate for guards, other inmates,

and the allocation of prison resources.

As we have previously noted, DeHart desires a meal,

served along with the therapeutic meals, consisting of an

eight-ounce cup of soy milk and increased 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 not currently purchased by the DOC. The District Court

found that the prison could provide DeHart a cup of the soy

milk at each meal for a total cost of $1.71 per day.

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 plaintiff a strict vegetarian diet would have

on the institution, guards and other inmates. There is

no undisputed evidence concerning the impact this

factor has, and it is neutral for purposes of the motion

for summary judgment.

District Court Slip Op. at 17. With respect to the fourth

factor, the District Court concluded that "the cost factor

favors the prison, while the fact that an available

alternative exists favors plaintiff 's position. This factor is

also neutral." District Court Slip Op. at 18.

The District Court ultimately granted summary judgment

against DeHart on the following ground:

Considering the evidence in the light most favorable to

plaintiff, two of the four Turner factors weigh in favor of

defendants, while the final two factors are neutral.

Thus, the court concludes that application of the

20

Turner balancing test results in the conclusion that the

First Amendment does not require Prison Officials to

provide plaintiff a vegetarian diet.

District Court Slip Op. at 18.

The District Court's analysis of the third factor is

unacceptable. It is true that there is "no undisputed

evidence" regarding the impact that accommodating DeHart

would have on the prison community. DeHart's evidence

regarding the service of therapeutic and kosher meals and

what it would take to meet his religious requirements would

support an inference that any impact would be minimal.

On the other hand, the defendants have tendered evidence

tending to show that, if DeHart is accommodated, others

will demand similar treatment. But the fact that there is no

undisputed evidence is not a reason for concluding that the

third factor is neutral. If there is conflicting evidence, the

conflict needs to be resolved and findings made about the

size and quality of the impact on the prison community.

Without such findings, it is not possible for the District

Court to engage in the sensitive weighing process that

Turner envisions.

This brings us to a final fundamental problem with the

District Court's analysis. Turner does not call for placing

each factor in one of two columns and tallying a numerical

result. The objective is to determine whether the regulation

is reasonable given the defendants' penological concerns

and the inmate's interest in engaging in the constitutionally

protected activity. Turner thus contemplates a weighing

process, and various factors necessarily will be entitled to

different weights depending on the circumstances. We have

already spoken about how the weight to be given to the

second factor will vary depending on the availability of

alternatives. The same is true of the first factor; direct

threats to the security of the institution will justify

infringements on First Amendment rights that speculative

efficiency concerns will not. Accordingly, the Court, while

giving due deference to the expertise of prison officials,

must take into account the character of the legitimate

penological interest advanced and the degree to which that

interest will be served by the challenged regulation.

21

IV.

Finally, DeHart asserts an equal protection claim,

arguing that he is similarly situated to the Jewish inmates

in Johnson whose dietary restrictions were accommodated

by the defendants. As with his First Amendment claim,

DeHart's equal protection claim must be analyzed under

the Turner framework. See Turner, 482 U.S. at 89 ("[W]hen

a prison regulation impinges on inmates' constitutional

rights, the regulation is valid it is reasonably related to

legitimate penological interests."). Thus, in order to recover,

DeHart "must prove that the distinction between himself

and the other inmates was not reasonably related to some

legitimate penological purpose." Clark v. Groose, 36 F.3d

770, 773 (8th Cir. 1994).

As we noted earlier, the District Court did not comment

on the fact that the defendants are currently providing

specially prepared kosher diets to Jewish inmates at greater

cost. We have already rejected defendants' argument that

DeHart may be treated differently because his diet is not

required by Buddhism generally. Thus, as with the First

Amendment claim, if DeHart can demonstrate that no

legitimate penological purpose is served by treating him

differently from the inmates in Johnson, he must prevail on

his equal protection claim. Due to the absence offindings

as to whether the prison's decision to treat DeHart

differently from Jewish inmates is "reasonably related to

legitimate penological interests," Turner, 482 U.S. at 89,

however, we will remand this issue to the District Court.

V.

For the foregoing reasons, the judgment of the District

Court will be reversed, and the case will be remanded for

further proceedings consistent with this opinion.

22

SCIRICA, Circuit Judge, concurring in part and dissenting

in part.

I agree with the majority that this case should be

remanded for further factual assessment of the factors set

forth in Turner v. Safley, 482 U.S. 78, 89 (1987). I also

agree with the majority's admonition that those factors are

to be balanced, not tallied. I write separately because I

respectfully disagree with the majority's position as to

whether an analysis of an inmate's "alternative means of

religious expression" under Turner properly may include an

assessment of the centrality of the religious tenet on which

an inmate's requested accommodation is based.

Turner requires us to uphold a prison's regulation if it is

reasonably related to a legitimate penological interest. Once

a prison establishes a legitimate interest, the four Turner

factors gauge the regulation's overall reasonableness. I

agree that the defendants here established the necessary

legitimate penological interest, and established that the

prison's special diet regulation is rationally related to that

interest (the first Turner factor). I disagree with the

majority's analysis of the remaining Turner factors.

The second Turner factor assesses the existence of

alternative means by which an inmate can practice his

religion, not whether there are alternatives to the specific

activity at issue.1 O'Lone v. Shabazz, 482 U.S. 342, 351-52

(1987). Here, the District Court concluded that DeHart had

many alternative ways to exercise his right -- meditation,

prayer, or reading religious texts -- all of which the prison

allowed. The District Court based its analysis of this factor

on a determination that vegetarianism is not a

"commandment" of Buddhism (even of the particular sect to

which DeHart belongs), but is merely a positive expression

of DeHart's faith. The majority rejects this analysis, stating

that the court erred in making any assessment at all about

the central tenet issue, because under Employment Div.,

_________________________________________________________________

1. For this reason, I believe the majority's conclusion that "[t]here are

simply no alternative means by which DeHart can maintain a diet in

conformity with his religious beliefs" is based on too narrow a

characterization of the "right" at issue.

23

Dep't of Human Resources v. Smith, 494 U.S. 872 (1990),

such inquiry is forbidden.

I do not believe that Smith forbids inquiry into the central

tenet issue when assessing Turner's second factor. Smith

addressed whether a criminal law banning peyote use was

unconstitutional where the use was religious. Holding that

it was not, the Court rejected application of a"compelling

interest" test, stating that it would be improper for judges

to assess the centrality of religious beliefs in assessing

whether to apply a compelling interest test. Id. at 886. The

Court did not indicate that the centrality issue should

never be considered, and did not address the centrality

issue in the context of assessing a challenged prison

regulation.2

_________________________________________________________________

2. For the same reason, I do not believe that Africa v. Pennsylvania, 662

F.2d 1025 (3d Cir. 1981) concludes our inquiry here. The key issue there

was whether Africa's purported religion ("MOVE") was in fact a religion.

We held that it was not. As the majority acknowledges, Africa did not

reach the issue that DeHart presents: whether the state's penological

interests outweigh an inmate's free exercise claim. In this case, the

parties do not dispute that DeHart's beliefs are religious in nature, or

sincerely held. (Interestingly, the record shows that only after DeHart

filed several grievances objecting to a diet that included vegetables

cooked in butter did he raise the issue of his religious practices.) Nor

are

the parties (or the court) attempting to assess the truth or falsity of

DeHart's beliefs. Instead, as Turner requires, we assess the central tenet

issue to determine whether DeHart has alternative ways to exercise his

First Amendment rights. Similarly, in Africa we expressly acknowledged

that a court must examine the content of an asserted religion (at least

to a degree) in order to determine whether it is, in fact, a religion.

Africa,

662 F.2d at 1034 n.18. In short, to interpret Africa to preclude any

objective evidence on the centrality issue would eviscerate Turner's

second prong. On this point, I note that in Johnson we analyzed the

issue in terms of the requirements of the kosher laws, and not merely

the inmates' subjective interpretations of those laws. Similarly, the

court

in Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (a case we quoted in

Johnson) stated that on remand the district court could consider the

inmate's "challenge to the orthodoxy of the rabbi who testified on behalf

of the state." Clearly, the inquiry does not end with the inmate's claims;

the defendant is entitled to put on evidence of the centrality of the

practice at issue, and the district court is entitled to weigh that

evidence

against the inmate's testimony.

24

Turner, however, did address the issue of assessing a

challenged prison regulation, noting expressly the deference

to be accorded to prison officials' decisions, and the

separation of powers concerns that counsel a policy of

judicial restraint. Turner, 482 U.S. at 84-85. Turner

requires courts to consider whether an inmate has

alternative means of exercising his right to religious

freedom. That question cannot be answered withoutfirst

determining the centrality of the practice or belief at issue;

that is, whether or not it is commanded by the inmate's

religion. As we held in Johnson -- in the specific context of

evaluating the second Turner factor --"the importance of

alternative means of religious observance is an irrelevant

consideration when the belief at issue is a `religious

commandment' rather than a positive expression of belief."

Johnson, 150 F.3d at 282. The Jewish inmates in Johnson

would have been " `defiling' themselves under the laws of

kosher when forced to eat non-kosher foods . . . In such

situations, the centrality of the religious tenet carries

greater weight and the existence of alternative means of

observance is of no use in the ultimate balance which

Turner commands." Id. at 282.

It seems to me that our holding in Johnson makes clear

that the centrality of a religious practice -- in particular,

whether it is a commandment of the religion or a positive

expression of belief -- is a valid consideration in applying

the Turner test. If the practice is a commandment (as is

keeping kosher for certain Jewish inmates), then alternative

means of expression are irrelevant, and the second Turner

factor will weigh in an inmate's favor. But if the practice is

a positive expression of belief and the inmate has

alternative means of expression, then the factor may weigh

in the defendant's favor, depending on the facts.

Here, the evidence established that vegetarianism (or, by

extension, the more restrictive veganism that DeHart

wishes to practice) is not a commandment of either

Buddhism in general or of the particular branch of

Buddhism that DeHart practices. This is shown by the

testimony of the defendants' expert witness, and by the

written correspondence between DeHart and his spiritual

mentors, members of The City of Ten Thousand Buddhas.

25

In response to DeHart's query about vegetarianism, The

City of Ten Thousand Buddhas advised him that although

vegetarianism is preferred, it was not mandated in his

situation: "Clearly you are not in an ideal situation for

doing so. The Buddha, in giving us the Precepts,

consistently provided minor acceptions [sic] in cases where

it would be impossible to hold them to the finest detail . . .

[I]t would seem enough that you are sincere in your wish to

maintain the Buddha's precepts and that you try your very

best to follow the Buddha's instructions as closely as

possible, while practicing patience with our states and with

your environment." Thus, even the particular Buddhist

temple to which DeHart belongs does not believe that

DeHart's vegetarianism is a required practice, and does not

view his failure to keep the diet as a defiling offense. For

this reason, the situation of the Jewish inmates in Johnson

properly is distinguished from that of DeHart. In this

regard, I respectfully disagree with the majority's contrary

position (and instructions regarding entry of judgment on

remand).3

As to the third and fourth Turner factors-- the impact on

the prison of accommodating DeHart's request for special

meals, and whether there are easy alternatives by which

_________________________________________________________________

3. The majority instructs the District Court to enter judgment for DeHart

unless it can distinguish this case from Johnson on grounds other than

the central tenet issue. The majority's instruction is based on its

interpretation of Turner's requirement that in order for a regulation to

be

rationally related to a legitimate penological interest, the regulation

must

be neutral. Turner, 482 U.S. at 89-90. I do not believe Turner's

neutrality

requirement supports the majority's directive, for it asks whether the

challenged regulation operates in a neutral way, without regard to the

content of expression. Id. at 90. Moreover, we have previously explained

that Turner's neutrality requirement is met if the prison's asserted

interest giving rise to the regulation is unrelated to suppressing

expression. See Waterman v. Farmer, 183 F.3d 208, 215 (3d Cir. 1999)

(quoting Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). We held in

Waterman that New Jersey's interest in rehabilitating sex offenders was

not related to the suppression of expression, and the challenged

regulation therefore was neutral. Id. So, too, the prison's interest here

in

an efficient food service system is not related to the suppression of

religious expression. Accordingly, its special diet regulation is neutral

for

purposes of the Turner analysis.

26

DeHart can be accommodated at de minimus cost -- I agree

that further fact-finding is necessary. But unlike the

majority, I believe that on remand the court first must

clarify the nature of DeHart's requested accommodation.

DeHart frames the issue as a request for a vegetarian diet.

Vegetarian diets typically avoid meat, fish, and poultry.

DeHart's proposed diet is more restrictive. Not only must it

be free of meat, fish, and poultry, but also free of eggs,

dairy products, pungent root materials such as onions or

garlic, and any material derived from any animal product.

In this respect, DeHart's requested diet4 is even more

restrictive than a vegan diet (one disallowing all animal

products) because it also would prohibit any non-animal

food or material that is prepared with animal products (for

example, vitamin supplements that may include bone

derivatives or bread made with animal byproduct

preservatives, both of which DeHart has declined). On this

point, it bears noting that the Court of Appeals for the

Sixth Circuit in Spies v. Voinovich, 173 F.3d 398 (6th Cir.

1999) (which the majority distinguishes) held that a prison

was not constitutionally required to provide a Buddhist

inmate with a vegan diet. In sum, a clear understanding of

the precise nature and parameters of the special diet that

DeHart seeks (for example, whether the diet prohibit fruits

and vegetables that have been fertilized with organic

material) is essential to a proper assessment of the

_________________________________________________________________

4. The majority apparently believes that DeHart can be accommodated

with extra portions of vegetables and bread, and with a cup of specially-

purchased soy milk with each meal. But, as noted supra, the record

contains conflicting evidence as to the precise nature of the diet that

DeHart seeks (including a "beans and rice" diet that DeHart suggested at

the preliminary injunction hearing). Moreover, DeHart has not rebutted

the testimony of the defendants' expert that the"extra portions plus soy

milk" diet fails to meet the relevant regulatory nutritional requirements

for inmates, is based on an out-of-date master prison menu (and is

therefore not accurate with respect to food items that the prison has

available), and cannot fully be evaluated because it proposes only a five-

day menu, compared to the prison's forty-two day menu cycle. Unless

DeHart addresses these issues on remand, his proposed diet does not

appear to be a viable one.

27

resulting burden on the prison in complying with his

request, and the overall balancing of the Turner factors.5

In assessing the burden on the prison of accommodating

DeHart's request, I believe the majority fails to take

sufficient account of the evidence of the potential for "ripple

effect" within the prison. The Supreme Court has

encouraged courts to give "particular deference" to the

informed discretion of corrections officials on this issue.

Turner, 482 U.S. at 90.

Finally, with respect to DeHart's equal protection claim

that he is being treated differently from Jewish inmates

who request and receive kosher meals, I do not believe that

DeHart has stated a valid claim. In order to do so, he must

come forward with some evidence of discriminatory intent

on the part of the defendants. DeHart has not done so.

Accordingly, I would affirm the grant of summary judgment

on this issue.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

5. The majority's point as to the need for a bona fide balancing of the

factors is well-taken. But we have noted that in the course of conducting

that balancing, the first Turner factor "looms especially large."

Waterman,

183 F.3d at 208.

28