Deaullandy Coleman v. Sergeant Jones

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-7382

DEAULLANDY GORAN COLEMAN,

Plaintiff – Appellant,

v.

SERGEANT JONES; MAJOR JOHNSON,

Defendants – Appellees,

and

CHAPLAIN SCHWARTZLOW,

Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. Anthony John Trenga, Senior District Judge. (1:18-cv-00931-AJT-IDD;

1:18-cv-00896-AJT-JFA)

Argued: January 27, 2022 Decided: June 17, 2022

Before KING, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished opinion. Judge Harris wrote the opinion, in which

Judge King and Judge Thacker joined.

ARGUED: Barrett Anderson, Timothy Shriver, UNIVERSITY OF VIRGINIA SCHOOL

OF LAW, Charlottesville, Virginia, for Appellant. Justin Lee Criner, THE BEALE LAW

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FIRM, PC, North Chesterfield, Virginia, for Appellees. ON BRIEF: J. Scott Ballenger,

Sarah Shalf, Eva Lilienfeld, Third Year Law Student, Kimberly Veklerov, Third Year Law

Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,

Charlottesville, Virginia, for Appellant. William F. Etherington, Thomas N. Jamerson,

Greer Q. Drummond, THE BEALE LAW FIRM, PC, North Chesterfield, Virginia, for

Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:

While an inmate at Virginia’s Henrico County Regional Jail, Deaullandy Coleman,

a devout Muslim, requested the Kosher diet provided to Jewish inmates, which he said

would satisfy the requirements of his faith. His requests were denied, and to comply with

Islamic dictates, he was required instead to eat the vegetarian “Common Fare” meals made

available to all non-Jewish inmates with religious dietary restrictions. Coleman alleges

that this meatless diet left him malnourished, unhealthy, and too weak to pray properly.

Coleman filed an action in district court, alleging that by denying him access to

Kosher meals, prison officials impermissibly burdened his religious exercise under the Free

Exercise Clause and engaged in religious discrimination prohibited by the Establishment

Clause and Equal Protection Clause. He also brought similar state-law claims under

analogous provisions of the Virginia Constitution.

At summary judgment, the district court found that there were triable issues of fact

as to whether Coleman was provided with nutritionally adequate meals that conformed to

his sincere religious beliefs and whether the denial of Kosher meals to Muslim inmates was

the result of intentional religious discrimination. Nevertheless, the court went on to grant

summary judgment to the defendant prison officials on qualified immunity grounds,

holding that they had violated no “clearly established” right. Because the district court’s

qualified immunity analysis appears to be incomplete and fails to account for its findings

on the merits, we vacate and remand for further consideration.

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I.

A.

During the time relevant to this appeal, Coleman was incarcerated at the Henrico

County Regional Jail (“Henrico”) in Virginia. 1 As a devout Muslim, Coleman follows

Halal dietary restrictions, governing the foods he may eat consistent with his faith.

According to Coleman, his sincere religious beliefs permit him to consume Kosher meat.

Henrico provides three types of meals to its inmates. The “regular diet,” available

to all inmates, includes meat. So does the “Kosher diet,” which is made available only to

Jewish inmates. Finally, there are “Common Fare” meals, provided to all non-Jewish

inmates with religious dietary restrictions. Because those meals must be acceptable to a

wide range of religious believers, they are exclusively vegetarian. Henrico pays its

contractor the same amount for each type of meal, and the contractor also could provide,

at that same cost, a meal with meat that is “dual-certified” as both Kosher- and Halal-

compliant.

When Coleman arrived at Henrico, he was placed on the default regular diet, which

is not Halal-compliant. Seeking food consistent with his religious beliefs, on March 8,

2018, he requested Halal-compliant meals from Sergeant Josie Jones. Six weeks later, after

multiple follow-up requests, he was approved for the vegetarian Common Fare diet.

1

Coleman has since been transferred to a different Virginia Department of

Corrections facility, so any claims for prospective equitable relief are moot. See Williams

v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). On appeal, Coleman advances only claims

for monetary damages.

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The events giving rise to this lawsuit began approximately a week later, when

Coleman met with Sergeant Jones to request Kosher meals instead. Coleman explained

that he was not getting enough calories from the “no-meat” Common Fare diet and that the

Kosher diet – which included meat – would allow him to get enough to eat while also

satisfying his religious obligations. 2 J.A. 56–57; id. at 54. Coleman made a second request

for the Kosher diet in mid-May, which was forwarded to Major Sandra Johnson for review.

On May 23, 2018, Sergeant Jones denied Coleman’s request. Jones noted, on

Coleman’s request form, his “concern about not getting enough calories” on the Common

Fare diet. J.A. 232. She also noted her response – that the Common Fare meals were

certified by a dietician – and then refused to allow the Kosher diet because Coleman is not

Jewish. Although Henrico has no written policy about which inmates may receive which

religious meals, Jones understood – and told Coleman – that the Kosher diet was

exclusively for Jewish inmates and would not be provided to Muslims. See, e.g., J.A. 64

(“[H]e said well, Sergeant Jones, why can’t I get a kosher meal? And I said because your

religion is Muslim.”). Coleman also spoke with Major Johnson about his request for the

Kosher diet, and Johnson likewise denied that request, also on the ground that Coleman is

not Jewish. See, e.g., J.A. 103 (“If you’re saying you’re Muslim then you get halal. If

you’re saying you’re Jewish, you’ll get [K]osher.”).

2

At summary judgment, Coleman put forth expert testimony explaining that Islamic

and Jewish dietary restrictions share many similarities, and that religious scholars have

concluded that Muslims may consume Kosher meat when faced with a lack of access to

Halal-certified meat.

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The parties disagree about the effects of this denial on Coleman’s health. Coleman

alleges that the vegetarian Common Fare diet to which he was restricted was nutritionally

inadequate, leaving him undernourished and too weak to pray properly. According to

Coleman, he experienced significant stomach pain and bowel issues, and lost between 15

and 25 pounds during his incarceration at Henrico. The defendants, for their part, do not

dispute that Coleman lost a significant amount of weight, but they contend that this was

because Coleman stopped eating at various points and not because of any inadequacies in

the Common Fare diet.

B.

In July 2018, Coleman filed a pro se complaint under 42 U.S.C. § 1983, alleging

that Sergeant Jones and Major Johnson violated his rights by denying him access to a diet

consistent with his religious beliefs. 3 In November 2019, after procuring counsel, Coleman

filed the amended and operative complaint in this case. In it, Coleman raised two sets of

federal claims relevant to this appeal. First, Coleman alleged that the defendants violated

his rights under the First Amendment’s Free Exercise Clause by failing to provide him with

nutritionally adequate meals conforming to his religious beliefs, instead subjecting him to

a vegetarian diet that caused adverse health effects. Second, Coleman alleged that by

providing Jewish but not Muslim inmates with religiously compliant meals that included

meat, the defendants engaged in religious discrimination prohibited by the First

3

A third defendant, Chaplain Gerald Schwartzlow, has since been dismissed from

the case.

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Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection

Clause. He also alleged violations of similar provisions of the Virginia Constitution. 4

After discovery, the district court granted summary judgment to the defendants on

all counts. Coleman v. Jones, No. 1:18-CV-931 (AJT/IDD), 2020 WL 5077735, at *9

(E.D. Va. Aug. 26, 2020). With respect to the merits of Coleman’s federal claims, the

district court found genuine issues of material fact that would preclude an award of

summary judgment. Id. at *6–8. But the court agreed with the defendants that they

nevertheless were entitled to qualified immunity as a matter of law, because the rights they

allegedly violated were not sufficiently “clearly established.” Id. at *8.

1.

The defendants contested only Coleman’s free exercise claim on the merits, so that

claim was the focus of the court’s thorough merits analysis. The court found, first, that

Coleman had established a triable issue as to the sincerity of his religious belief that a

Kosher meal, with meat, would “satisfy the strictures of eating Halal according to his faith.”

Id. at *5. It likewise found a material dispute of fact as to whether the denial of Kosher

meals had “substantially burdened” the exercise of Coleman’s religious beliefs, as required

to make out a free exercise claim. Id. at *6; see id. at *4 (“[T]he plaintiff must show that

4

Coleman’s complaint also included a claim under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. The district court

dismissed this claim, noting that RLUIPA does not provide for monetary damages against

the defendants and that Coleman’s transfer from Henrico mooted any claims for equitable

relief. See Coleman v. Jones, No. 1:18-CV-931 (AJT/IDD), 2020 WL 5077735, at *4 (E.D.

Va. Aug. 26, 2020). Coleman does not challenge that dismissal on appeal.

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the prison’s policies or actions ‘imposed a substantial burden on his exercise of sincerely

held religious beliefs.’” (quoting Wright v. Lassiter, 921 F.3d 413, 418 (4th Cir. 2019))).

The court was careful to identify the precise nature of the “substantial burden” it

was recognizing. To the extent Coleman argued that it was the denial of meat itself that

burdened his religious exercise – that he was entitled, in other words, to a diet that was

both Halal-compliant and non-vegetarian – the district court disagreed. In the court’s view,

so long as a prisoner is provided with a diet that meets his religious needs and is

nutritionally adequate, “courts have generally been reluctant” to treat the absence of meat

as a “substantial burden.” Id. at *6 (citing, inter alia, Patel v. U.S. Bureau of Prisons, 515

F.3d 807 (8th Cir. 2008)). But, the court continued, an inmate does have a right to receive

a nutritionally adequate diet consistent with his religious beliefs, and cannot be forced to

“choose between daily nutrition and religious practice.” Id. (internal quotation marks

omitted). And here, there was a “significant dispute of fact” as to whether the vegetarian

Common Fare diet to which Coleman was limited was nutritionally adequate, as the

defendants contended, or whether, as Coleman alleged, that diet caused him to lose weight,

suffer significant health issues, and have difficulty praying. Id. Given that dispute of fact,

the court concluded, a “reasonable jury could find” the necessary substantial burden on

religious exercise. Id.

Finally, the court had no difficulty in applying the last step of the Free Exercise

Clause analysis: whether the denial of Coleman’s requests for Kosher meals was

“reasonably related to legitimate penological interests” under Turner v. Safley, 482 U.S. 78

(1987). Each of the four factors laid out in that decision, the court determined, weighed

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“heavily” in Coleman’s favor: Kosher meals cost no more than any other meal, and beyond

vague administrative concerns, the defendants had offered no justification for why they

could not simply add one additional Kosher meal to their order from their contractor or, if

they preferred, avail themselves of the dual-certification option, ordering meals certified

as both Kosher and Halal and providing them to Jewish and Muslim inmates alike.

Coleman, 2020 WL 5077735, at *6–7. “In short,” the district court concluded, “the

administrative burden is so low, and the impact on the functioning of Henrico and the food

service so minimal, that a reasonable jury could easily find” that the defendants’ policy

was not reasonably related to any legitimate penological objective. Id. at *7.

2.

The district court turned next to Coleman’s Establishment Clause and Equal

Protection claims which, the court noted, shared the “same rationale” and factual predicate,

id. at *8: By providing Jewish inmates but not Muslim inmates like Coleman with a

religiously compliant meal that included meat, the defendants favored one religion over

another and discriminated against Coleman based on his religion, violating both the First

Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection

Clause. Id. at *7–8. The defendants contested neither of these claims on the merits, instead

relying entirely on a qualified immunity defense. Id. And here again, the district court

found that a reasonable jury could agree with Coleman that the defendants had engaged in

impermissible religious discrimination. Id.

As the district court explained, Kosher meals were the only religiously compliant

meals that included meat; all other religiously compliant meals, including Halal meals,

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were strictly vegetarian. Id. And as it had noted already in applying the Turner factors to

Coleman’s free exercise claim, the defendants had “largely failed to provide a reasonable

explanation” as to why Coleman could not have been provided a Halal meal with meat, or

why dual-certified Halal and Kosher meals with meat could not be provided to all Jewish

and Muslim inmates. Id. at *7. As a result, the court concluded, a reasonable jury could

believe that the defendants were “preferencing Judaism” in violation of the Establishment

Clause. Id. Similarly, a reasonable jury could conclude not only that “Muslim inmates

were treated differently than similarly situated Jewish inmates,” but that “such differential

treatment was based on intentional discrimination that was not related to any legitimate

penological interest,” in violation of the Equal Protection Clause. Id. at *8.

3.

Having concluded that Coleman had established triable issues of fact on the merits

of his claims, the district court turned finally to the issue of qualified immunity. As the

court explained, qualified immunity protects officials like the defendants in this case from

damages liability unless they have violated a right that is “clearly established” at the time

of the violation – that is, a right “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” See id. at *8 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). The defendants argued that they were entitled to

qualified immunity “because there was no clearly established right to be given meals with

meat in them when there existed a religiously-compliant vegetarian alternative,” and the

district court agreed: “Courts have consistently found that inmates are entitled to meals

that are consistent with their religious beliefs, . . . but also that there is no right to non-

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vegetarian meals.” Id. The district court offered no other reasoning, save to note that the

defendants believed they were “satisfying [Coleman’s] religious beliefs that he must only

eat Halal, and were satisfying Jewish inmates’ beliefs that they must eat Kosher.” Id.

The district court also held that the defendants were entitled to qualified immunity

on Coleman’s state constitutional claims. As Coleman argued and the district court

recognized, the defendants had not presented a theory of state-law immunity that would

protect them. Id. at *9 & n.11. But the district court believed that Virginia courts would

apply the same “clearly established” qualified immunity analysis that governed federal

constitutional claims, and thus, for the reasons already given, granted qualified immunity

for the state constitutional claims, as well. Id. at *9.

II.

On appeal, Coleman argues that the district court erred in granting qualified

immunity to the defendant officers as a matter of law, largely because the court’s qualified

immunity holdings cannot be squared with its findings on the merits of Coleman’s claims.

The defendants do not dispute the district court’s merits analysis. They continue to argue,

however, that because there is no right to a diet including meat – clearly established or

otherwise – they are entitled to qualified immunity on all counts. We agree with Coleman,

to this extent: The district court’s qualified immunity analysis does not account for its

determination that a reasonable jury could find both that Coleman was deprived of a

nutritionally adequate and religiously compliant diet with no sufficient justification and

that he was subjected to intentional discrimination based on his religion. Nor does it

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account for Virginia’s distinct state immunity doctrines. Accordingly, we remand for

further consideration of the qualified immunity issue by the district court.

A.

With respect to Coleman’s federal claims, there is no question as to the governing

qualified immunity standard. “Qualified immunity shields federal and state officials from

money damages” unless a plaintiff can show both the violation of a constitutional right and

“that the right was clearly established at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation marks omitted). “To be clearly

established, a right must be sufficiently clear that every reasonable official would [have

understood] that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (alteration in original) (internal quotation marks omitted).

1.

The law governing Coleman’s Free Exercise Clause claim is equally well-settled.

Under the Free Exercise Clause, as the district court recognized, a prisoner has a right to a

nutritionally adequate diet that is consistent with his religious beliefs. See Coleman, 2020

WL 5077735, at *6; Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014) (describing prisoner’s

Free Exercise Clause right to “a diet consistent with his religious scruples” (cleaned up));

Ross v. Blackledge, 477 F.2d 616, 619 (4th Cir. 1973) (remanding for evidentiary hearing

on whether “there is adequate nourishment in the pork-free foods currently available to

[Muslim] prisoners”). The defendants agree, expressly embracing the long-standing

principle that what prisons must provide a religious inmate is “a diet sufficient to sustain

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the prisoner in good health without violating [his religion’s] dietary laws.” See Response

Br. at 10 (quoting Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975)).

Moreover, an inmate’s free exercise right to this dietary accommodation was

“clearly established” in our circuit well before the 2018 events at issue in this appeal. See,

e.g., Wall, 741 F.3d at 502 (explaining that right to religious dietary accommodations in

prison is “clearly established” for qualified immunity purposes); Lovelace v. Lee, 472 F.3d

174, 198–99 (4th Cir. 2006) (same). And it is equally settled that a prison official “violates

this clearly established right if he intentionally and without sufficient justification denies

an inmate his religiously mandated diet.” Wall, 741 F.3d at 502. Again, none of these

basic principles is disputed in this case.

Nor, finally, have the defendants disputed the district court’s finding that on this

summary judgment record, a reasonable jury could find that Coleman in fact was denied a

Halal-compliant diet that was nutritionally adequate. As the district court explained, this

point was contested by the parties, with Coleman alleging that his Common Fare meatless

diet, though religiously compliant, left him badly malnourished, and the defendants

contending that Coleman’s vegetarian meals were nutritionally sufficient. Coleman, 2020

WL 5077735, at *6 (“There remains a significant dispute of fact as to whether [Coleman’s]

physical health issues and his inability to pray were caused by Henrico’s failure to allow

him to eat the Kosher meal[.]”). But Coleman, the court concluded, who relied on medical

records as well as interrogatories, had established a triable issue of fact for a jury on the

question. Id. And, as described above, the district court also found that Coleman had

established a strong case that he was denied Kosher meals for no good reason, so that a

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reasonable jury “easily” could find that the alleged burden on his religious exercise was

“not reasonably related to any legitimate penological objective” under Turner. Id. at *7.

Despite all this – an undisputed and clearly established right to nutritionally

adequate and religiously compliant meals, plus a jury question as to whether that right was

abridged without justification under the Turner standard – the defendants argue, and the

district court agreed, that they are entitled to qualified immunity for one reason: because

there is no clearly established right to a nutritionally adequate and religiously compliant

diet that includes meat. See id. at *8. But even assuming that is correct, it is a complete

non sequitur here. Coleman’s arguments, to be sure, often emphasize the lack of meat in

the Common Fare diet to which he was restricted. But his claim is not that he was denied

meat; it is – to quote his complaint – that he was denied “nutritionally adequate meals that

conform to his sincere religious beliefs.” J.A. 18 (emphasis added). Indeed, the district

court understood as much in its merits analysis, distinguishing between a free-standing

“right to meat” – which courts “generally [have] been reluctant to find” – and the right to

a nutritionally sufficient and religiously compliant meal, as to which there remained a

“significant dispute of fact” that would preclude an award of summary judgment.

Coleman, 2020 WL 5077735, at *6. The district court offered no rationale other than the

absence of a “right to non-vegetarian meals” for its qualified immunity ruling, and it did

not address the apparent incongruity between that ruling and its merits determination. Id.

at *8. Accordingly, we remand so that the district court may more fully evaluate the

qualified immunity issue in the first instance.

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To be clear, we do not rule out the possibility that there is some other basis on which

the defendants could claim qualified immunity. At oral argument, for instance, a question

arose as to whether the individual defendants, Sergeant Jones and Major Johnson, would

have been on notice as to any nutritional deficiency in Coleman’s Halal-compliant

Common Fare meals. That could be an important question: The “clearly established”

standard requires not only that existing precedent clearly identify the right in question, but

also that it be clear to the defendant that his conduct would violate that right in the situation

as he reasonably understood it. See District of Columbia v. Wesby, 138 S. Ct. 577, 589–90

(2018); see also Lovelace, 472 F.3d at 198–99 (explaining that qualified immunity is

precluded where officer acts intentionally in depriving prisoner of religiously compliant

meals). But this issue has not been addressed by the parties in their briefs or passed on by

the district court. Nor is the answer obvious: There are record indications that Jones at

least was aware of Coleman’s concerns about the nutritional adequacy of his Common Fare

diet, see J.A. 232 (Jones noting Coleman’s complaint that he was “not getting enough

calories”), but also indications that she believed those meals to be nutritionally sufficient,

see id. (Jones noting that prison menus are “certified by Henrico County [dieticians]”).

Under these circumstances, we follow our normal course and leave this question – and any

others bearing on the defendants’ qualified immunity defense – to the district court in the

first instance. See, e.g., Fusaro v. Cogan, 930 F.3d 241, 263 (4th Cir. 2019) (adhering “to

the principle that the district court should have the first opportunity to perform the

applicable analysis”).

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2.

We reach a similar conclusion with respect to the grant of qualified immunity on

Coleman’s religious discrimination claims. First, it has been clearly established since well

before 2018, when the events at issue here occurred, that intentional or purposeful

discrimination based on religion, if not sufficiently justified, violates the Equal Protection

Clause, see, e.g., Morrison v. Garraghty, 239 F.3d 648, 654–55 (4th Cir. 2001) (outlining

equal protection standard in prison context), and that preferring one religious sect over

another violates the Establishment Clause, see Larson v. Valente, 456 U.S. 228, 244–46

(1982) (describing Establishment Clause bar on denominational discrimination). None of

that is disputed by the defendants, and the district court carefully applied this well-

established law in assessing the merits of Coleman’s religious discrimination claims. 5

Coleman, 2020 WL 5077735, at *7–8.

Second, the district court determined that on this summary judgment record, a

reasonable jury could find that the defendants intentionally discriminated against Coleman

based on his Muslim religion, and did so without any legitimate penological justification

under the Turner standard that applies in the prison context. See id. The defendants, the

5

As the district court explained, Coleman’s religious discrimination claims sound

in both the Establishment Clause and the Equal Protection Clause, and its analysis under

each clause overlaps in significant respects. See Coleman, 2020 WL 5077735, at *8. On

appeal, Coleman addresses the two claims together, as variations on a claim of intentional

discrimination based on religion, while noting that the Free Exercise Clause also protects

against religious discrimination. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 532 (1993). Following Coleman’s lead, we address these

discrimination claims together in this opinion, as well.

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district court noted, had “largely failed to provide a reasonable explanation” as to why

Jewish inmates but not Muslim inmates were provided with religiously compliant meals

that included meat. Id. at *7. And given the ease with which the defendants could have

accommodated Coleman’s request for Kosher meals, their refusal to do so – on the sole

ground that Coleman is Muslim and not Jewish – created a jury question as to whether their

differential treatment of similarly-situated prisoners was “based on intentional

discrimination” and unrelated to “any legitimate penological interest.” Id. at *8.

Again, we find it difficult to reconcile those findings with a grant of qualified

immunity based only on the absence of a clearly established “right to non-vegetarian

meals,” id. Whether or not Coleman has a freestanding right to meat, it is clearly

established that the defendants may not deny him a diet with meat “based on intentional

discrimination” against Muslims – and a jury could find, the district court concluded, that

the defendants did exactly that. Id. Indeed, we and other courts have suggested that when,

as here, there is a triable issue as to whether defendants engaged in a constitutional violation

that incorporates intent as an element, qualified immunity may be inappropriate. See

Thorpe v. Clarke, __ F. 4th. __, 2022 WL 2128301, at *4 (4th Cir. June 14, 2022) (“[W]hen

plaintiffs have made a showing sufficient to demonstrate an intentional violation of the

Eighth Amendment, they have also made a showing sufficient to overcome any claim to

qualified immunity.” (internal quotation marks omitted)); Lowe v. City of Monrovia, 775

F.2d 998, 1011 (9th Cir. 1985) (holding that a government official is not entitled to

qualified immunity from a Section 1981 or 1983 action that is based on a claim of

intentional discrimination), amended, 784 F.2d 1407 (9th Cir. 1986); see also Williams v.

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Hansen, 326 F.3d 569, 582 (4th Cir. 2003) (King, J., dissenting) (in equal protection

context, defendants “should not be awarded qualified immunity” where plaintiffs alleged

facts indicating that disparate treatment was “both injurious and motivated by

discriminatory animus”).

The district court has not explained why the defendants are entitled to qualified

immunity as a matter of law given its determination that they may have intentionally

discriminated against Coleman because he is a practicing Muslim. Nor have the defendants

addressed that issue in their briefing before us. 6 Accordingly, as with the grant of qualified

immunity on Coleman’s free exercise claim, we remand so that the district court may

further consider this issue.

6

In their brief, the defendants do not discuss qualified immunity at all in connection

with Coleman’s discrimination claims – despite relying solely on qualified immunity with

respect to those claims before the district court. See Coleman, 2020 WL 5077735, at *7–

8. Instead, they assert in a single sentence that Coleman’s equal protection claim fails on

the merits because “[n]o intentional discrimination has been shown, merely different

treatment.” Response Br. at 13. The district court, of course, ruled precisely to the

contrary, holding that a reasonable jury “could find that Muslim inmates were treated

differently than similarly situated Jewish inmates at Henrico, and that such differential

treatment was based on intentional discrimination that was not related to any legitimate

penological interest.” Coleman, 2020 WL 5077735, at *8 (emphasis added). If the

defendants intend to argue that this ruling – which they never acknowledge – was in error,

then their argument is doubly waived: First, the defendants did not contest this claim on

the merits in the district court, see id. at *8 (“Defendants again do not contest the underlying

claims, but instead claim they are entitled to qualified immunity.”), and we generally will

not address contentions raised for the first time on appeal. See Muth v. United States, 1

F.3d 246, 250 (4th Cir. 1993). And second, a single conclusory sentence that does not even

refer to the allegedly improper district court holding is insufficient to preserve an argument

on appeal. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006).

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B.

Finally, we turn to the district court’s grant of qualified immunity on Coleman’s

state constitutional claims. As noted above, in addition to his federal constitutional claims,

Coleman alleged violations of similar provisions of the Virginia Constitution: Article I,

Section 16, which guarantees religious liberty and has both a free exercise and an

establishment clause; and Article I, Section 11, which guarantees, among other things, the

right “to be free from any governmental discrimination upon the basis of religious

conviction.” See Va. Const. art. I § 16; id. § 11. Although the defendants did not expressly

assert qualified immunity as to these state-law claims, the district court read their general

reference to “qualified immunity” as applying to all constitutional claims, both state and

federal. See Coleman, 2020 WL 5077735, at *9 n.11. And although the defendants did

not explain why they might be entitled to qualified immunity as to Coleman’s state-law

claims, the district court believed the matter was straightforward: “[T]hough Virginia

courts [had] not expressly ruled whether federal qualified immunity analysis applies

equally to state constitutional claims,” those courts likely would apply the same federal

“clearly established” standard that applies to federal constitutional claims. Id. at *9.

Accordingly, for the reasons the district court already had given in connection with

Coleman’s federal claims, the defendants also were entitled to qualified immunity on his

state constitutional claims. Id.

Contrary to the district court’s understanding, however, Virginia’s state law of

immunity for individual defendants does not mirror the federal immunity analysis. As the

Virginia Supreme Court recently explained, “federal immunity doctrines . . . are

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independent of state immunity doctrines.” See Viers v. Baker, 841 S.E.2d 857, 861 (Va.

2020). Instead of applying the “clearly established” standard familiar in federal court,

Virginia courts consider first whether an official’s employer is protected by sovereign

immunity, and then, if it is, whether the official is entitled to shield himself with the

immunity of his employer under a multi-factor test. See Messina v. Burden, 321 S.E.2d

657, 663 (Va. 1984); James v. Jane, 282 S.E.2d 864, 869 (Va. 1980). Here again, we

follow our normal course and remand so that the district court may consider the application

of Virginia’s qualified immunity law in the first instance. 7

III.

For the foregoing reasons, we vacate the district court’s grant of summary judgment

to the defendants and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

7

We appreciate that the district court decided this question without briefing from

the defendants, which may have led to the confusion over the applicable law. Indeed, the

defendants have declined at every turn – including before this court – to put forth an actual

theory under which they are entitled to qualified immunity on Coleman’s state

constitutional claims. We leave it to the district court to consider whether the defendants

waived any argument on state-law qualified immunity by failing to raise it earlier before

that court.

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