Robert Perry Dehart v. MARTIN HORN, Commissioner of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-4250
___________
ROBERT PERRY DEHART,
Appellant
v.
MARTIN HORN, Commissioner of Corrections;
JAMES S. PRICE, Superintendent SCI Greene;
UNITED STATES OF AMERICA (Intervenor in D.C.)
_________________________
On Appeal From the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 95-cv-01238)
District Judge: Honorable William L. Standish
_____________________
Argued October 1, 2004

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BEFORE: ROTH and CHERTOFF, Circuit Judges and
IRENAS,* Senior District Judge.
(Filed: November 30, 2004)
Edward A. Olds, Esq. (Argued)
1007 M ount Royal Boulevard
Pittsburgh, PA 15223
Counsel for Appellant
Gerald J. Pappert, Attorney General
J. Bart DeLone, Esq. (Argued)
Calvin R. Koons, Esq.
John G. Knorr, III, Esq.
Office of the Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Rodney M. Torbic, Esq.
Office of Attorney General of Pennsylvania
564 Forbes Avenue
5th Floor
Manor Complex
Pittsburgh, PA 15219
Counsel for Appellees James S. Price and Martin Horn
* Honorable Joseph E. Irenas, Senior District Judge for the United
States District Court for the District of New Jersey, sitting by
designation.

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3
Bonnie R. Schlueter, Esq.
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Catherine Y. Hancock, Esq.
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Room 9547
Washington, DC 20530
Michael S. Raab, Esq.
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Room 9136
Washington, DC 20530
Counsel for Appellee United States of America
___________
OPINION OF THE COURT
___________
IRENAS, Senior District Judge.
Robert Perry DeHart (“DeHart”) is an inmate at SCI-

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4
Greene (“the Prison”), a Pennsylvania state correctional facility.
He is serving a life sentence for murder, as well as shorter
consecutive sentences for robbery, burglary and escape, and has
been incarcerated in the state correctional system since 1980.
He brings this action pursuant to 42 U.S.C. §1983 against
Martin Horn, Pennsylvania’s Commissioner of Corrections, and
James S. Price, the Superintendent of the Prison (“Appellees”),
alleging that his Free Exercise and Equal Protection rights under
the First and Fourteenth Amendments were violated by the
Prison’s refusal to provide him with a diet comporting with his
Buddhist beliefs. DeHart also brought a claim pursuant to the
Religious Land Use and Institutionalized Persons Act of 2000,
42 U.S.C. § § 2000cc et seq. (2000) (“RLUIPA”). The District
Court of the Western District of Pennsylvania granted summary
judgment for the Appellees on DeHart’s constitutional claims,
and dismissed his RLUIPA claim for failure to comply with the
exhaustion requirement of 42 U.S.C. § 1997e(a). We affirm the
District Court’s grant of summary judgment as to the
constitutional claims and reverse the dismissal of DeHart’s
RLUIPA claim.
I.
DeHart is a practitioner of M ahayana Buddhism, a
religion to which he was introduced while a prisoner. He has
practiced his religion daily since early 1990, although his
interest in and study of Buddhism dates back to the early 1980s.
He meditates and recites mantras for up to five hours a day and

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5
corresponds with the City of Ten Thousand Buddhas, a religious
organization located in Talmadge, California. According to
DeHart’s self-taught understanding of Buddhist religious texts,
he is not permitted to eat any meat or dairy products, nor can he
have foods containing “pungent vegetables” such as onions,
garlic, leeks, shallots and chives. As a result, DeHart became a
vegetarian in 1989, and began declining food trays containing
meat in 1993. When he does accept food trays, he eats only
fruit, certain cereals, salads when served without dressing, and
vegetables served with margarine. DeHart supplements his
meals with items purchased from the commissary, including
peanut butter, peanuts, pretzels, potato chips, caramel popcorn,
and trail mix. He requests that the Prison provide him with a
diet free of meat, dairy products and pungent vegetables.
The legal issues related to DeHart’s request are best
understood against the background of the system employed to
feed prisoners in Pennsylvania’s correctional facilities. Inmates
receive standardized meals prepared pursuant to a master menu,
which is designed to provide all of an inmate’s daily nutritional
requirements. Food for the inmates is purchased and prepared
in bulk. Inmates are given limited choice in what appears on
their food trays; they are able to decline pork products and elect
to receive an alternative protein source, such as tofu or a bean
burger, when available. The only deviations from the mass
production of meals are for inmates with health conditions
necessitating therapeutic dietary modifications and inmates with
particular religious dietary restrictions. Doctors prescribe a

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1Hart also filed an official grievance objecting to the use of
butter in the preparation of vegetables a month before, although
he did not mention the religious basis for his complaint. DeHart
first raised the issue of his religious beliefs in a written letter to
Superintendent James Price dated May 22, 1995, in which he
specifically mentioned that his Buddhist beliefs prohibited the
consumption of meat, dairy and pungent vegetables.
2DeHart’s proposed diet is referred to in the briefs and court
documents alternately as a vegetarian and a vegan diet. Because
he refuses to eat meat, fish and dairy products, we will use the
term vegan to describe his dietary preferences.
6
variety of therapeutic diets, and the master menu includes seven
different menus for diabetic inmates, sodium and fat restricted
menus, and a menu for inmates with renal problems. Jewish
inmates who adhere to a kosher diet receive special meals in the
form of a “cold kosher bag,” which contain raw fruits and
vegetables, Ensure® dietary supplements, pretzels, crackers,
coffee and granola. Muslim inmates receive special meals in
their cells during Ramadan, when they observe a daylight fast.
The Prison provides a post-sunset evening meal after the normal
supper hour and a breakfast bag, called a “Sahoora Bag,” to be
eaten before sunrise. As a result of concerns about food
spoilage and serving temperature, the Sahoora Bag contains
some items not served on that day’s master menu. Special items
for the therapeutic and religious diets are purchased through the
medical department and prison commissary.
DeHart submitted a written grievance to the Prison on
June 17, 1995, requesting a diet free of “animal products and by-
products”consistent with his religious beliefs.1 After his
request for a vegan2 diet was denied, DeHart unsuccessfully
appealed his request to Superintendent Price and the Department
of Corrections Central Office Review Committee. He also sent
a letter to Commissioner Horn outlining his religious dietary
restrictions, dated July 1, 1995. After completing the appeals
process within the Department of Corrections, DeHart filed this

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3The Turner factors are outlined and discussed infra Part III.
7
suit, pursuant to 42 U.S.C. § 1983, in the Western District of
Pennsylvania.
This appeal marks DeHart’s third appearance before this
Court. In his first appeal, we affirmed the District Court’s
denial of preliminary injunctive relief. DeHart v. Horn, 127
F.3d 1094 (3d Cir. 1997) (mem.) (“DeHart I”). The District
Court held that DeHart’s request for a preliminary injunction
should be denied on the ground that keeping a vegan diet was
not a command of Buddhism. Despite upholding the result, this
Court emphasized that the District Court should not determine
“whether [DeHart’s] beliefs are doctrinally correct or central to
a particular school of Buddhist teaching.” Id. at 2.
We next heard DeHart’s appeal of the District Court’s
first grant of summary judgment for the Appellees. The District
Court held that the Prison’s policy of denying individual dietary
requests of inmates was reasonably related to a legitimate
penological interest under the standard set out in Turner v.
Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).3
After the decision of a panel to reverse the District Court’s
judgment, DeHart’s appeal was reheard en banc. DeHart v.
Horn, 227 F.3d 47 (2000) (en banc) (“DeHart II”). This Court
reversed the district court’s judgment and remanded for
reconsideration of the second, third and fourth Turner factors.
Id. In doing so, we overruled the distinction drawn by our
decision in Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998),
between religious commandments and positive expressions of
belief. 227 F.3d at 54. Specifically, we ordered the district
court to reconsider whether DeHart retained other means of
exercising his religious beliefs in light of our overruling
Johnson. Id. We also asked the District Court to assess the
impact of granting DeHart’s request for a meat and dairy-free
diet on the prison community in light of the accommodations
made to Jewish inmates adhering to the kosher dietary rules. Id.

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4We use the notation “R.R.” to designate page numbers in the
Reproduced Record.
8
at 58-59. With respect to DeHart’s Equal Protection claim, we
emphasized that our overruling of Johnson required Appellees
to offer a legitimate penological reason for treating DeHart
differently than Jewish inmates other than simply drawing a line
between inmates with orthodox and non-orthodox religious
beliefs. Id. at 61.
On remand after DeHart II, the District Court adopted the
Magistrate’s Report and Recommendation to grant summary
judgment for Appellees. DeHart v. Horn, No. 95-1238 (W.D.
Pa. Sept. 23, 2003). The District Court rejected Appellees’
argument that DeHart’s beliefs were not sincere and religious in
nature. See Magis. Rep. & Rec. on Mot. for Summ. J., at R.R.
19a-24a.4 The district court concluded that the second Turner
factor weighed in favor of the Prison because DeHart had more
than adequate alternative means of expressing his religious
beliefs: he was permitted to meditate, recite the Sutras
(Buddhist religious texts), correspond with the City of Ten
Thousand Buddhas, purchase canvas sneakers instead of leather,
have Buddhist materials sent to him from outside the prison and
have a Buddhist religious advisor visit him in prison. See id. at
R.R. 25a-26a. With regard to the third Turner factor, the
District Court found that the dietary accommodation proposed
by DeHart was much more burdensome than what was provided
to Jewish and Muslim inmates because his diet would require
individualized preparation of meals and special ordering of food
items not on the master menu. See id. at R.R. 26a-34a. The
district court concluded that DeHart’s dietary requests could not
be accommodated without imposing more than a de minimis
cost on the Prison. See id. at R.R. 34a-36a.
DeHart’s complaint, as initially filed, also claimed that
his right to freely exercise his religious beliefs had been
impaired in violation of the Religious Freedom Restoration Act,

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9
42 U.S.C. § §2000bb et seq. (1993) (“RFRA”). In City of
Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed. 624
(1997), the Supreme Court declared RFRA unconstitutional as
applied to the States, and DeHart’s claim was extinguished.
After DeHart II and before the district court’s decision on
remand, RLUIPA was enacted as a replacement for RFRA.
DeHart was granted leave to amend his complaint to state a
claim under the new statute. DeHart v. Horn, No. 95-1238
(W.D. Pa. Jan. 30, 2001). However, in a separate order, the
District Court adopted the Magistrate’s Report and
Recommendation that DeHart’s RLUIPA claim be dismissed for
failure to exhaust all administrative remedies as required by 42
U.S.C. § 1997e. DeHart v. Horn, No. 95-1238 (W.D. Pa. Feb.
27, 2003). The District Court concluded that RLUIPA adopted
a different substantive standard of review for prisoner religious
freedom claims than RFRA. See Magis. Rep. & Rec. on Mot.
to Dismiss, at R.R. 44a. Therefore, because DeHart presented
his claim to the prison grievance process while RFRA provided
the applicable standard, his claim was no longer exhausted now
that it was based on RLUIPA. See id. at R.R. 46a.
DeHart appeals both the grant of summary judgment on
his First and Fourteenth Amendment claims and the dismissal of
his RLUIPA claim.
II.
We have jurisdiction to hear this appeal pursuant to 28
U.S.C. § 1291. Our review of a district court’s grant of
summary judgment is plenary and we employ the same standard
as applied below. United States ex rel. Quinn v. Omnicare, 382
F.3d 432, 436 (3d Cir. 2004). A district court may grant
summary judgment when there is no genuine issue of material
fact to be resolved at trial and the moving party is entitled to
judgment as a matter of law. Id. Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the

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10
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56 (c). The substantive law
governing the dispute will determine which facts are material,
and only disputes over those facts “that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “In reviewing the grant
of summary judgment, we must affirm if the record evidence
submitted by the non-movant ‘is merely colorable or is not
significantly probative.’” Port Auth. of New York & New Jersey
v. Affiliated FM Ins. Co., 311 F.3d 226, 232 (3d Cir. 2002).
III.
A.
In Turner v. Safley the Supreme Court identified the
crucial balance in assessing inmates’ claims that their
constitutional rights were violated by prison regulations. While
“[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution. . . . ‘the problems of
prisons in America are complex and intractable, and, more to the
point, they are not readily susceptible of resolution by decree.’”
482 U.S. at 84 (quoting Procunier v. Martinez, 416 U.S. 396,
404-405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)). Recognizing
this tension in principles, Turner established the standard of
review for prisoner constitutional claims: “when a prison
regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.” Id. at 89. We elaborated in DeHart II
that:
[T]his standard of review requires a court to
respect the security, rehabilitation and
administrative concerns underlying a prison
regulation, without requiring proof that the

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5In DeHart II we upheld the District Court’s finding that this
factor favored the Prison. We held that a prison’s interests in an
efficient food system and in avoiding inmate jealousy were
legitimate penological concerns. 227 F.3d at 53. Additionally,
the Prison’s refusal to provide DeHart with a religious diet bore
some rational relation to that interest. Id.
11
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.
227 F.3d at 51. Thus, DeHart’s appeal forces us to resolve the
tension between a court’s duty to redress constitutional
violations resulting from neutral prison regulations and its
obligation not to unreasonably interfere with the complex issues
involved in managing the day-to-day activities of a prison.
Turner articulated a four factor test for determining
whether a prison regulation is reasonably related to a legitimate
penological interest. 482 U.S. at 79. As we explained in
Waterman v. Farmer, 183 F.3d 208, 213 n.6 (1999) (citation
omitted):
[Turner] requires courts to consider (1) whether a
rational connection exists between the regulation
and a neutral, legitimate government interest;5 (2)
whether alternative means exist for inmates to
exercise the constitutional right at issue; (3) what
impact the accommodation of the right would
have on inmates, prison personnel, and allocation
of prison resources; and (4) whether obvious, easy
alternatives exist.
We cautioned in DeHart II that this approach “does not call for

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6In DeHart II we explained that Turner was equally applicable
to DeHart’s Free Exercise and Equal Protection claims, and that
the analysis significantly overlapped. 227 F.3d at 61.
7We instructed the district court to reconsider its analysis of
the second Turner factor on remand in light of our decision to
overrule Johnson. 227 F.3d at 54. The District Court
subsequently held that this factor also favored the Prison, as
DeHart was able to express his Buddhist beliefs through
meditation, correspondence with Buddhist religious
organizations, and through the purchase of canvas, rather than
leather, sneakers, amongst other accommodations. See Magis.
Rep. & Rec. on Mot. for Summ. J., at R.R. 19a-24a. DeHart has
not appealed this finding, so that only the third and fourth
factors are at issue in this appeal.
12
placing each factor in one of two columns and tallying a
numerical result,” but that assessing the reasonableness of a
prison regulation requires consideration of all the evidence in
the record. 227 F.3d at 59.6
When we reversed the District Court’s grant of summary
judgment in DeHart II, we directed the district court to
reevaluate its findings on the second,7 third and fourth Turner
factors. 227 F.3d at 57-59. Specifically, we asked the District
Court to assess the potential impact on the prison community of
granting DeHart’s request for a special diet comporting with his
religious beliefs in light of the prison system’s experience with
providing other religious diets. Id. at 58. We also asked the
district court to reexamine whether DeHart’s religious dietary
restrictions could be accommodated in such a way as to impose
only a de minimis cost on the Prison. Id. We noted that “the
defendants’ treatment of Jewish inmates, in the absence of some
further explanation, casts substantial doubt on their assertion
that accommodating DeHart’s request would result in significant
problems for the prison community.” Id. We are satisfied that
the District Court on remand properly considered the impact on
other inmates, guards and the prison administration of providing

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8Aff. of Karen Avon, at R.R. 195a-232a. Avon includes as an
appendix to her affidavit modifications based on one week’s
master menu. For example, on Monday inmates were served for
supper egg salad made with one egg yolk, three egg whites,
onion, celery and mayonnaise, one half cup noodles, one half
cup succotash, one half cup beet and onion salad, fresh fruit and
eight ounces of skim milk. Avon proposed that DeHart be
served one half cup of noodles, one cup succotash, one cup beet
and onion salad, two slices of whole grain bread, two teaspoons
of margarine, fresh fruit, eight ounces of soy milk and eight
ounces of iced tea. Id. at R.R. 202a.
9Margaret Gordon, a clinical dietitian for the Commonwealth
of Pennsylvania, testified at her deposition that the following
non-meat, non-dairy items from the master menu contained
garlic and onions: “garden burgers, the chili, the bean chili, the
tofu salad, the stewed tomatoes, the vegetable soup, . . . , the
bean and pasta casserole, the vegetable bean soup, . . . , the soy
pasta sauce, the pasta bean soup, . . . , the soy barbeque, the fried
potatoes, the baked beans, . . . , and the bean burger.” Dep. of
Margaret Gordon, at R.R. 712a. Avon’s proposed menu
included stewed tomatoes, baked beans, and beet and onion
13
of religious diets for adherents of other faiths, and we agree that
the third Turner factor favors the Prison. While neither party
separately addressed the district court’s findings on the fourth
Turner factor in this appeal, we are also satisfied with the
District Court’s analysis on that issue.
B.
The third Turner factor requires that we analyze the
impact of accommodating DeHart’s dietary requests on inmates,
prison personnel, and allocation of prison resources. When
DeHart II was decided, DeHart proposed that he be served a diet
created by dietician Karen Avon which modified serving sizes
of items on the master menu and added soy milk and whole
grain bread as supplements.8 The Avon diet, however, includes
items that contain pungent vegetables.9 Although DeHart has

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salad. Aff. of Karen Avon, at R.R. 202a-210a.
10DeHart’s affidavit submitted in support of his Opposition to
the Appellees’ Motion for Summary Judgment, which his
counsel affirmed during oral argument, included the following
statements:
4. I cannot eat dairy products, pungent vegetables, or meat
products, in any form and follow my religious beliefs.
5. I would agree to eat extra servings of vegetables, and
extra servings of non-meat items such as tofu, beans, soy
milk, and peanut butter, which are consistent with my
religious beliefs. These items, with the exception of soy
milk, appear in the main menu offered to all inmates,
nearly every day and are readily available. They are also
regularly mixed with onions and garlic, which are
prohibited pungent vegetables.
. . .
7. Now that the Commonwealth serves alternate protein
sources such as tofu, peanut butter and beans, if they were
to give me servings of those items without pungent
vegetables, it would come far closer to satisfying my
nutritional needs than they do now.
Aff. of Robert P. DeHart, at R.R. 256a-260a (emphasis added).
14
repeatedly affirmed the Avon diet, he has also continued to
insist that he be served no pungent vegetables.10 DeHart’s
proposed diet now appears to be that he be served extra portions
of vegetables and grains on the master menu, consistent with the
Avon diet, but with the portions individually prepared to his
dietary specifications. Alternatively, he proposes that he receive
extra daily servings of the alternative protein sources available
at the Prison, but specially prepared without pungent vegetables
and outside of their rotation on the master menu. Therefore, to
the extent that DeHart II’s discussion of the third and fourth
Turner factors used the Avon diet as its comparison point, our
prior ruling provides little guidance for our analysis.
The District Court held that DeHart’s proposed diet
would place a greater burden on the Prison than the dietary

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11In DeHart II we directed the District Court to determine how
and if the Pennsylvania Department of Corrections Food
Services Administrative Directive requiring a registered
dietician to verify that the master menu meets or exceeds the
recommended daily nutritional allowances would apply to
DeHart’s proposed diet. 227 F.3d at 49 n.1. If the District
Court found that DeHart’s proposed diet fell short of the
nutritional standards contained in the Administrative Directive,
we indicated that the issue would remain under Turner whether
the directive was reasonably related to a legitimate penological
interest. Id. Neither party nor the District Court addressed this
question on remand. However, we recognize the link between
good health and a nutritionally adequate diet, and note that the
prison has a significant interest in keeping prisoners healthy,
given the costs of medical treatment and the difficulty in
preventing the spread of illness between prisoners in close
quarters.
15
accommodations granted to Jewish and Muslim inmates. See
Magis. Rep. & Rec. on Mot. for Summ. J., at R.R. 30a-36a.
DeHart’s diet would require individualized preparation of his
meals, which is made more burdensome by the fact that the
Prison’s kitchen was set up only for bulk food preparation. Id.
Additionally, it would require special ordering soy milk, whole
grain bread and extra servings of the few alternative protein
sources DeHart would eat, all at extra cost to the Prison. Id.
Secured food storage would be required in order to prevent theft
of the specially ordered items. Id. The District Court noted that
DeHart’s proposed diet was not nutritionally adequate, and
would require regular nutritional audits by a contract dietician,
also at extra cost to the Prison.11 Id. In contrast, the District
Court found that the religious diets provided to Jewish and
Muslim inmates did not require special ordering of items not
already available at the Prison or through the Prison’s current
vendors, nor did they require individualized preparation of
meals. Id.
On appeal, DeHart argues that the cold kosher meals

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12There are no inmates receiving the cold kosher diet at SCI-
Greene, so we compare DeHart’s request to the diet served to
Jewish inmates at SCI-Pittsburgh. The record does not specify
exactly how many Muslim inmates there are at SCI-Greene or
in the Pennsylvania correctional system, but the record indicates
that the number is considerable.
13For example, the therapeutic diets include items that do not
appear on the master menu, such as pineapple and grapefruit
juice, apricots, sugar free beverages, cold cuts, chicken pieces
in broth, pineapple chunks, and applesauce. Aff. of Karen
Avon, at R.R. 219a-232a.
16
served to Jewish inmates and the Sahoora bags provided to
Muslim inmates during Ramadan also require individualized
preparation and the serving of items not appearing, or outside
their rotation, on the master menu. He contends that there is no
reason why granting his request would pose any greater burden
on the Prison than other special diets because individualized
preparation is required for all the therapeutic meals and religious
diets. Additionally, he argues that his dietary request is no more
likely to lead to an increase in requests for dietary
accommodations than any of the other special diets served at the
Prison.
DeHart’s arguments overlook a crucial distinction. None
of the other special diets served at the Prison require
individualized preparation and reorganization of the way prison
kitchens prepare food and are provided to accommodate an
inmate’s religious beliefs.12 Other religious diets involve
supplementing or alternating regular prison meals with
additional foods already available at the prison. However,
providing a diet free of pungent vegetables would mandate that
the prison alter the way it prepares meals. This problem is only
heightened by DeHart’s failure to put forward, in specific terms,
a diet that would fit within his restrictions. While some of the
therapeutic diets include specially prepared items and foods not
included on the master menu,13 the failure to provide medically

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17
necessary therapeutic diets puts the health of inmates at risk and
could result in significant medical expenses.
With respect to the dietary accommodations provided to
Jewish inmates, the cold kosher meals do not require special
ordering of items not already available at the Prison. The kosher
meals involve negligible preparation, as they are uncooked, and
in the case of some fruits and vegetables, uncut as well. In fact,
the diet DeHart requests bears a greater resemblance to the hot
kosher meals we declined to require in Johnson. The Sahoora
bags provided to Muslim inmates require some special
preparation in order to prevent foods in the breakfast bags from
spoiling overnight, and add the complication of being served
outside of normal mealtimes. However, these Sahoora bags do
not require major changes to how the prison purchases, stores or
prepares food, in contrast to the special preparation of single
servings sought by DeHart.
With regard to the fourth Turner factor, the District Court
found that there was no alternative that could fully
accommodate DeHart’s religious dietary restrictions while
imposing only a minimal burden on the Prison. See Magis. Rep.
& Rec. on Mot. For Summ. J., at R.R. 34a-36a. Simply
providing double servings of vegetables and grains on the
master menu, or daily servings of the available alternative
protein sources, would not meet DeHart’s needs because they
include pungent vegetables, which he has repeatedly affirmed
that he would not eat. Id. at R.R. 35a. Special ordering of soy
milk, whole grain bread and extra servings of alternative protein
sources is costly and burdensome, as is the individualized
preparation of master menu items without pungent vegetables.
Id. DeHart denies that his proposed diet poses any special
burden, but we agree that the record supports the conclusion that
his religious dietary restrictions cannot be met, by the menu he
suggests or any obvious and easy alternative, with only a de
minimis cost to the Prison.

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18
In DeHart II we affirmed the District Court’s conclusion
that first Turner factor favored the Prison, and reversed its
findings as to the second, third and fourth factors. On remand,
the district court determined that those factors also favored the
Prison, a conclusion that we affirm today. Although analysis
under Turner is not a mere tabulation of factors, it is clear from
the foregoing analysis that the Prison’s denial of DeHart’s
request for a diet consistent with his Buddhist beliefs is
reasonably related to the Prison’s legitimate interest in efficient
food provision.
IV.
As we noted in DeHart II, the analysis of DeHart’s Equal
Protection claim incorporates much of the discussion of the third
and fourth Turner factors. 227 F.3d at 61. In our earlier
opinion, we directed the District Court to reconsider its grant of
summary judgment for Appellees in light of our invalidation of
the distinction drawn between religious commandments and
positive expressions of belief. Id. We held that “the distinction
drawn between orthodox and non-orthodox believers cannot
justify the refusal of DeHart’s request” in the absence of some
nexus between this distinction and a legitimate penological
concern. Id. On remand and in this appeal, the Appellees argue
instead that DeHart is not similarly situated to any group for
equal protection purposes because his request poses a greater
burden than the dietary accommodations given to Jewish and
Muslim inmates. DeHart argues that he is similarly situated to
Jewish and Muslim inmates, and again contests the District
Court’s conclusion that his proposed diet is more burdensome.
However, because we find that the burden imposed by DeHart’s
proposed diet exceeds the burden imposed by accommodating
Muslim and Jewish inmates, we affirm the District Court’s grant
of summary judgment for Appellees on DeHart’s Equal

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14As a result of our conclusion that DeHart is not similarly
situated to any other group of inmates, there is no need to
consider the Turner factors in addressing his Equal Protection
claim.
15Although the District Court’s order does not so specify, we
conclude that the dismissal for failure to exhaust administrative
remedies was with prejudice, and therefore final and appealable
under 28 U.S.C. § 1291. Plaintiff has never argued that the
dismissal should be without prejudice, but instead contends that
exhaustion is not required. In essence, the district court’s ruling
was an adjudication on the merits of his contention because it
addressed the question of whether RLUIPA so altered the
standard of review as to require re-exhaustion of claims grieved
under RFRA. Plaintiff has elected to stand on his dismissed
complaint, rather than attempt to exhaust his RLUIPA claim. As
a result, the order is appealable. See Deutsch v. United States,
67 F.3d 1080, 1083 (3d Cir. 1995); Borelli v City of Reading,
532 F.3d 950, 951-52 (3d Cir. 1976).
19
Protection claim.14
V.
Subsequent to our decision in DeHart II, DeHart
amended his complaint to state a claim under the newly enacted
Religious Land Use and Institutionalized Persons Act.
Appellees filed a motion to dismiss the amended complaint on
the ground that DeHart had not exhausted the prison
administrative grievance process for his RLUIPA claim. The
District Court accepted the Magistrate’s Report and
Recommendation to dismiss and DeHart now appeals.15 We
exercise plenary review over a district court’s decision to grant
a motion to dismiss, and to the extent that our review turns on
the statutory construction of the exhaustion requirement in
Section 1997e(a), our review is also plenary. Spruill v. Gillis,
372 F.3d 218, 226 (3d Cir. 2004) (citations omitted).
Section 1997(e)(a) provides that “[n]o action shall be

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brought with respect to prison conditions under Section 1983 .
. . or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a)
(1996). This stringent exhaustion requirement was established
by the Prison Litigation Reform Act of 1995 (“PLRA”),
replacing language that required prisoners to exhaust only those
“plain, speedy, and effective remedies as are available.” Civil
Rights of Institutionalized Persons Act, Pub. L. No. 96-247, 94
Stat. 349, § 7(a) (1980), amended by Prison Litigation Reform
Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 at 66 (1996).
The PLRA was enacted with a two-fold purpose: to limit the
number of prison condition lawsuits then flooding the courts and
to return control over prison policies and decision-making to
local prison officials. See Porter v. Nussle, 534 U.S. 516, 524-
25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
This Court has repeatedly held that Section 1997e(a)
makes exhaustion of prison administrative remedies mandatory,
regardless of the efficacy of the grievance process. See, e.g.,
Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (holding that
“the PLRA amended § 1997e(a) in such a way as to make
exhaustion of all administrative remedies mandatory–whether or
not they provide the inmate-plaintiff with the relief he says he
desires”); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000)
(finding exhaustion mandatory in Eighth Amendment claim
brought by prisoner under § 1983 even though plaintiff sought
monetary damages), aff’d 532 U.S. 731 (2001). We held that an
across-the-board, mandatory exhaustion requirement serves the
underlying policies of the PLRA, including:
(1) avoiding premature interruption of the
administrative process and giving the agency a
chance to discover and correct its own errors; (2)
conserving scarce judicial resources, since the
complaining party may be successful in
vindicating his rights in the administrative process

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21
and the courts may never have to intervene; and
(3) improving the efficacy of the administrative
process.
Nyhuis, 204 F.3d at 75. Although we rejected a judicially-
created futility exception to the exhaustion requirement in
Nyhuis, 204 F.3d at 71, we have never held that a prisoner must
exhaust his claims more than once.
Appellees argue that DeHart has not given the Prison an
opportunity to address his claim under what they assert is a new
substantive standard contained in RLUIPA, and as a result, the
District Court’s dismissal for failure to exhaust administrative
remedies is proper. Appellees have never contended that
DeHart did not exhaust all the available administrative remedies
when the claim was brought under RLUIPA’s predecessor,
RFRA. In fact, DeHart’s suit predates the PLRA, and therefore
he is not required to exhaust all remedies under the PLRA’s
stringent standard. It is clear from the record that prior to filing
suit, DeHart exhausted all the administrative remedies available
to him in seeking a diet that comported with his religious
beliefs. The issue is then whether RLUIPA and RFRA are
sufficiently different as to justify requiring DeHart to present his
claim for a second time to the prison grievance process.
Because we disagree with Appellees’ contention that RLUIPA
enacted a new substantive standard of review for prisoner
religious claims, we hold that DeHart has satisfied the
exhaustion requirement of Section 1997e(a) and may proceed
with his RLUIPA claim.
RFRA provided that “[g]overnment shall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability.” 42 U.S.C.
§ 2000bb-1(a) (1993). RFRA included an exception to its
blanket rule: “Government may substantially burden a person’s
exercise of religion only if it demonstrates that application of the
burden to the person—(1) is in furtherance of a compelling

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governmental interest, and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. §
2000bb-1(b).
RFRA had been passed in response to the Supreme
Court’s decision in Employment Division v. Smith, in which the
Court declined to apply strict scrutiny to a facially neutral,
generally applicable law that incidentally burdened members of
a particular religious group. 494 U.S. 872, 110 S.Ct. 1595, 108
L.Ed.2d 876 (1990). In doing so, the Court held that application
of the compelling government interest test it set forth in
Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965
(1963), would have created the “anomaly” of a “constitutional
right to ignore neutral laws of general applicability.” City of
Boerne, 521 U.S. at 513 (citing Smith, 494 U.S. at 885). The
Congressional findings accompanying RFRA specifically
repudiated the Court’s decision in Smith, see 42 U.S.C. §
2000bb(a)(4), with Congress stating that the purpose of RFRA
was “to restore the compelling interest test as set forth in
Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its
application in all cases where free exercise of religion is
substantially burdened.” 42 U.S.C. § 2000bb(b)(1) (citations
omitted).
In City of Boerne, the Supreme Court overturned RFRA
as it applied to the States. It held that Congress had exceeded
the scope of its enforcement powers under Section 5 of the
Fourteenth Amendment in enacting RFRA. The Court
concluded that RFRA was an impermissible attempt to change
substantive constitutional law rather than remedy constitutional
violations, given the broad scope of the Act, its applicability to
the States, and the lack of evidence of First Amendment
violations on par with the type of widespread abuse as
demonstrated in support of the Voting Rights Act of 1965. City
of Boerne, 521 U.S. at 530, 532.
Following the decision in City of Boerne, Congress

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attempted to preserve RFRA’s compelling governmental
interest/least restrictive means test by recasting it in a form that
could avoid the fatal constitutional problems of that statute. The
result of this effort, RLUIPA, essentially reiterates the language
of RFRA as it applies to institutionalized persons:
No government shall impose a substantial burden
on the religious exercise of a person residing in or
confined to an institution, as defined in section
1997 of this title, even if the burden results from
a rule of general applicability, unless the
government demonstrates that imposition of the
burden on that person–
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a) (2000). Congress was explicit in its
intent to replicate in RLUIPA the substantive portions of RFRA.
146 Cong. Rec. E1563-01 (daily ed. Sept. 22, 2000) (statement
of Rep. Canady) (“[Section 2000cc-1(a)] applies the RFRA
standard to protect the religious exercise of persons residing in
or confined to institutions”); 146 Cong. Rec. S7774-01 (daily
ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy)
(“[RLUIPA] applies the standard of the Religious Freedom
Restoration Act”).
Contrary to the position of Appellees and the District
Court, it cannot be argued that RLUIPA does not apply the same
standard to prisoner free exercise claims as did RFRA. The
statutory language is nearly identical, and statements by
RLUIPA’s sponsors in the Congressional Record indicate that
the legislative intent was to reenact RFRA in constitutional

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16Appellees raised the question of RLUIPA’s constitutionality
before the District Court, but the issue was mooted by the
District Court’s holding that DeHart had not exhausted his
RLUIPA claim. The United States of America joined this case
as an intervenor to defend the constitutionality of RLUIPA
before the District Court. The Supreme Court recently granted
certiorari in a case raising this issue. See Cutter v. Wilkinson,
349 F.3d 257 (6th Cir. 2003) (holding that RLUIPA violates the
Establishment Clause), cert. granted, 73 U.S.L.W. 3229 (U.S.
Oct. 12, 2004) (No. 03-9877). The constitutionality of RLUIPA
may be an issue on remand to the District Court.
24
form.16 See 146 Cong. Rec. E1563-01; 146 Cong. Rec. S7774-
01. RLUIPA makes two fundamental changes to RFRA. First,
it pares the scope of the legislation from RFRA’s broad
applicability down to only land use issues and claims by
institutionalized persons. Compare 42 U.S.C § 2000bb-1
(“Government shall not substantially burden a person’s exercise
of religion even if the burden results from a rule of general
applicability . . .”), with 42 U.S.C. § 2000cc (“No government
shall impose or implement a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a
person . . .”), and 42 U.S.C. § 2000cc-1 (“No government shall
impose a substantial burden on the religious exercise of a person
residing in or confined to an institution, . . . , even if the burden
results from a rule of general applicability. . .”). Second, it
shifts the source of Congress’ power to pass the Act. While
RFRA was styled as an expression of congressional authority
under Section 5 of the Fourteenth Amendment, RLUIPA was
enacted pursuant to Congress’ powers under the Spending
Clause, U.S. Const. art. I, § 8, cl. 1, and the Commerce Clause,
U.S. Const. art. I, § 8, cl. 3. See 42 U.S.C. § 2000cc-1(b)
(“This section applies in any case in which – (1) the substantial
burden is imposed in a program or activity that receives Federal
financial assistance; or (2) the substantial burden affects, or
removal of that substantial burden would affect, commerce with
foreign nations, among the several States, or with Indian
tribes.”). RLUIPA makes no change to the standard by which

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prisoners’ free exercise claims are reviewed.
The District Court’s reliance on Wilson v. Moore, No.
4:01CV158-RV, 2002 W L 950062 (N.D. Fla. Feb. 28, 2002), is
in error. In Wilson, the Northern District of Florida dismissed
several claims made by the plaintiff, an inmate in a Florida state
correctional facility, on the ground that the plaintiff had not
exhausted his claims under the new RLUIPA standard, even
though the claims were filed before RLUIPA was enacted. The
crucial difference between Wilson and the instant case is that
DeHart exhausted his free exercise claim under RFRA, which
applied the same standard as contained in RLUIPA, whereas in
Wilson, the plaintiff’s grievances were filed well after RFRA
was declared unconstitutional. See Wilson, 2002 WL 950062,
at *3-4 (noting that plaintiff filed grievances on July 10, A ug.
21, Aug. 22, Dec. 18, and Dec. 25, 2000). As a result, the prison
reviewed the Wilson plaintiff’s claim under the pre-RFRA
standard employed in Smith and O’Lone v. Shabazz, 482 U.S.
342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), which applied the
Turner reasonableness test to prisoner free exercise claims.
Wilson, 2002 WL 950062, at *5. The actual holding of Wilson
is that RLUIPA substantively changed the standard of review
from what it was before RFRA was passed and after RFRA was
declared unconstitutional, and not, as the district court and
Appellees suggest, from the standard contained in RFRA itself.
DeHart is not required to re-exhaust his RLUIPA claim.
He appropriately presented his grievance to the Prison under the
identical standard before commencing the instant lawsuit in
1995. The Prison has had its opportunity to correct its own
errors under the compelling interest/least restrictive alternative
test of RFRA and RLUIPA. Forcing DeHart to present the same
claim under the same standard as a prerequisite to judicial
review of his RLUIPA claim is unnecessary and serves none of
the purposes of the PLRA’s exhaustion requirement.
VI.

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For the foregoing reasons, the judgment of the District
Court with respect to DeHart’s First and Fourteenth Amendment
claims will be affirmed. The judgment of the District Court
with respect to DeHart’s claim under the Religious Land Use
and Institutionalized Persons Act will be reversed and remanded
for further proceedings consistent with this opinion.

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