Gary L. Kretchmar v. Jeffrey Beard, Ph.d. Secretary, Pennsylvania Department of Corrections

DLD-275 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-4039
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GARY L. KRETCHMAR,
v.
JEFFREY BEARD, PH.D. SECRETARY,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
MARGARET M. GORDON, CLINICAL DIETICIAN,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 05-cv-06108)
District Judge: Honorable J. Curtis Joyner
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Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
June 21, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges.
(Filed: July 18, 2007)
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OPINION
_______________________
PER CURIAM
Appellant, Gary Kretchmar, timely appeals from the District Court’s Order
granting defendants’ motion to dismiss.

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Kretchmar is an inmate confined at the Pennsylvania State Correctional Institution
at Graterford. He is a practicing Reform Jew who currently receives a non-rotating menu
of cold food items to accommodate his request for a Kosher diet. In his complaint against
Jeffrey Beard, Secretary of the Pennsylvania Department of Corrections, and Margaret
Gordon, a clinical dietician employed by the Department, Kretchmar argues that the
failure of SCI Graterford to provide him with two hot meals per day and a rotating menu,
in accordance with the general menu operating guidelines, violates the constitution and
laws of both the United States and the Commonwealth of Pennsylvania. He also objects
to being served food that did not meet his religious dietary requirements during the
Passover holiday in 2005.
The District Court dismissed appellant’s state law claims on the basis of Eleventh
Amendment immunity and dismissed his federal law claims for failing to allege a
substantial burden on the exercise of his religious beliefs. The Court did not grant leave
to amend the complaint and denied his motion for reconsideration, finding that his claims
regarding the 2005 Passover holiday had not been exhausted, and that the complaint did
not attempt to articulate a due process claim.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and undertake plenary
review of the District Court’s ruling on immunity and dismissal under Rule 12(b)(6). See
United States v. Gov’t of V.I., 363 F.3d 276, 284 (3d Cir. 2004); County Concrete Corp.
v. Town of Roxbury, 442 F.3d 159, 163 (3d Cir. 2006). We review the denial of leave to

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amend the complaint for abuse of discretion. See Anderson v. Ayling, 396 F.3d 265, 271
(3d Cir. 2005); In re Adams Golf, Inc. Securities Litig., 381 F.3d 267, 280 n.13 (3d Cir.
2004). Before prisoners may bring a suit regarding prison conditions, they must first
exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); see also Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004).
We agree with the District Court’s able analysis of defendants’ claims of
immunity. Individual state officials may not be sued in federal court for violations of
state law, unless immunity has been waived. See Blanciak v. Allegheny Ludlum Corp.,
77 F.3d 690, 697 (3d Cir. 1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 106 (1984). Likewise, they may not be sued on a federal claim in their official
capacities when the relief sought essentially serves to compensate a party for injury
allegedly caused by the past action of the state official. See Blanciak, 77 F.3d at 697.
They may, however, be subject to federal suit in their official capacities where the
plaintiff seeks prospective, injunctive relief from an ongoing violation of federal law.
See id.; Ex parte Young, 209 U.S. 123 (1908). Thus, as explained by the District Court,
defendants are immune from all claims except those alleging an ongoing violation of the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.
§ 2000cc, and of appellant’s First Amendment rights as protected by 42 U.S.C. § 1983.
As we have previously held that the cold Kosher diet of which Kretchmar
complains survives Constitutional scrutiny, see Johnson v. Horn, 150 F.3d 276, 283 (3d

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While DeHart v. Horn, 227 F.3d 47, 54-55 (3d Cir. 2000), overruled a portion of1
the analysis used in Johnson, it left the earlier case’s substantive holding intact. See id. at
58-59.
We agree with the District Court’s conclusion that appellant’s RLUIPA and2
§ 1983 claims relating to lack of hot meals and menu rotation were properly exhausted
before bringing suit. See Memorandum and Order of July 18, 2006, at 9-12.
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Cir. 1998), all that remains is to determine whether the practice runs afoul of RLUIPA.1 2
To state a claim under RLUIPA, an institutionalized person must allege a “substantial
burden on [her] religious exercise.” 42 U.S.C. 2000cc-1. Here, we agree with the
District Court’s conclusion that the complaint fails to allege a substantial burden on
appellant’s religious exercise. Appellant concedes that he is being given a religiously
compliant diet that meets his nutritional needs. While he may prefer a wider variety of
hot meals, the diet he currently receives is not the type of burden that puts substantial
pressure on him to modify his behavior and violate his beliefs. See Lovelace v. Lee, 472
F.3d 174, 187 (4th Cir. 2006) (citing Thomas v. Review Bd. Of Ind. Employment Sec.
Div., 450 U.S. 707, 718 (1981)); San Jose Christian Coll. v. City of Morgan Hill, 360
F.3d 1024, 1034 (9th Cir. 2004).
The District Court did not abuse its discretion in denying Kretchmar’s motion for
reconsideration. Appellant’s objections to being served non-Kosher food during Passover
of 2005 were not exhausted before this suit was filed and were properly dismissed. The
District Court likewise was correct that it had no duty to conduct a due process analysis
when the complaint raised no such claim.

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Because this appeal lacks arguable merit, we will dismiss it under 28 U.S.C.
§ 1915(e)(2)(B).

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