F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JIM M Y SEA RLES,
Plaintiff-Appellee,
No. 05-3031
v. (D.C. No. 01-CV-3379-JTM )
(D . Kan.)
L. E. BRUCE, W arden, Hutchinson
Correctional Facility; STEVEN
DECHANT, Deputy W arden for
KDOC, Hutchinson Correctional
Facility; W ILLIAM CU M M INGS,
Deputy Secretary of Corrections for
KDO C,
Defendants-Appellants,
and
KARIM KHALIL GREEN, Chaplain
for KDOC, Hutchinson
C orrectional Facility; FN U LN U,
Unknown Security Person,
Defendants.
OR D ER AND JUDGM ENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.
Defendants-Appellants appeal from the denial of a motion for sum mary
judgment seeking qualified immunity and the denial of a motion to reconsider that
ruling. For the reasons stated below, we lack jurisdiction and dismiss the appeal.
I. Background and Procedural H istory
Plaintiff-Appellee Jimmy Searles, appearing pro se, 1 was incarcerated as a
state prisoner at the Hutchinson Correctional Facility in Hutchinson, Kansas, at
all tim es relevant to the acts that form the basis of his claims in this action. H e
filed a complaint under 42 U.S.C. § 1983 alleging that defendants denied him the
use of Tefillin 2 and a meaningful religious observance of the Jewish festival of
Sukkoth in 1999 and 2000, both in violation of his First Amendment right to free
exercise of religion.
Defendants filed a motion for summary judgment asserting, inter alia,
qualified immunity due to lack of personal participation and requesting summary
judgment on the merits of plaintiff’s claims (First Summary Judgment M otion).
The district court denied the motion as to qualified immunity, finding that
1
Because plaintiff appears pro se, we review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
2
Tefillin are leather boxes with attached leather straps containing passages
from the Torah that are used in Jewish prayer.
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plaintiff adequately had alleged personal participation of each of the defendants.
The court granted summary judgment on the merits of all of plaintiff’s claims
except the denial of a “festive meal” of apples and honey, stating that “a factual
issue remains concerning whether defendants provided apples as part of the
plaintiff’s meal in celebration of Rosh Hoshana [sic].” Aplt. App. at 37-38. The
court also noted the existence of a “larger issue,” namely, “the authorization for
festive meals w hile in segregation,” and stated that defendants “offer no rationale
for the policy of denying inmates festive meals while in segregation.” Id. at 38.
On the record provided to us, it appears that the denial of the festive meal
was not raised in the original complaint. Instead, it appears in “Count III” of
plaintiff’s amended complaint, apparently in the allegation that defendants denied
him a meaningful observance of Rosh Hashanah in 2000. Id. at 51. 3 Shortly
after plaintiff filed his amended complaint, defendants filed a “supplemental”
motion for summary judgment in which they argued that plaintiff failed to
establish their personal participation in the denial of the festive meal because his
claims were merely conclusory allegations unsupported by any facts (Second
Summary Judgment M otion). The district court denied the motion, concluding
that whether or not defendants provided plaintiff with a festive meal remained a
disputed fact issue. The court also ruled that defendants’ citation to
3
The amended complaint was filed in M arch 2004, nearly five months after
the district court ruled on the First Summary Judgment M otion.
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§ 20-105(IV)(A) of the Kansas Department of Internal M anagement Policy and
Procedure, which apparently states that inmates in segregation shall be treated as
nearly as possible like any other inmate in the general population of the
institution or facility, 4 “does not settle the factual dispute at issue here.” Id. at
63.
Defendants Bruce, DeChant, and Cummings (but not Green) (hereinafter,
appellants) then filed a third motion for summary judgment, which was amended
three times (Third Summary Judgment M otion). They argued that they are
entitled to qualified immunity because there is no clearly established right to a
favorable result from the grievance process. They based this argument on the
factual assertions set forth in the final pretrial order, namely, that defendant
Green denied the festive meal and appellants denied plaintiff’s grievances of that
denial.
The district court denied the motion, framing plaintiff’s claim against
appellants as a violation of his constitutional right to have his religiously based
dietary requirements accommodated rather than, as appellants had framed it, a
violation of his right to a favorable result from the grievance process. Citing its
earlier order denying the First Summary Judgment M otion, the court stated that
plaintiff had alleged that he was denied a festive meal. The court concluded that,
4
Because we have not found a copy of this section in the appendices, we rely
on the district court’s representation of its contents.
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at the time of the alleged denial, there was a clearly established constitutional
right to accommodation of religiously based dietary requirements, and reiterated
its concern that appellants offered no rationale for a policy of denying festive
meals to inmates in segregation. Id. at 141-42. Appellants filed a motion for
reconsideration of that order, which the district court denied.
II. Discussion
Under the collateral order doctrine, “a district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of law , is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.” M itchell v. Forsyth, 472 U.S. 511, 530 (1985).
However, this jurisdiction is limited to appeals challenging “not which facts the
parties might be able to prove, but, rather, whether or not certain given facts
showed a violation of ‘clearly established’ law.” Johnson v. Jones, 515 U.S. 304,
311 (1995) (quoting M itchell, 472 U.S. at 528). An appellate court, therefore,
generally “need not consider the correctness of the plaintiff’s version of the facts,
nor even determine whether the plaintiff’s allegations actually state a claim.”
M itchell, 472 U.S. at 528.
Based on M itchell and Johnson, we lack jurisdiction over this appeal
because appellants challenge the denial of qualified immunity on the facts, not the
law. Appellants do not argue that the district court erred in ruling that the denial
of the festive meal violated plaintiff’s clearly established constitutional right to
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have his religiously based dietary requirements accommodated. 5 Instead, they
argue that, in the final pretrial order, plaintiff alleges only that they denied his
grievances, not that they denied him a festive meal. They conclude that, because
the final pretrial order does not include a claim that appellants had a policy to
deny festive meals to inmates in segregation, the alleged policy is irrelevant to the
qualified immunity analysis, and the court erred by basing its analysis on it.
In substance, this argument challenges the district court’s treatment of
plaintiff’s remaining claim as one “that defendants . . . denied him a festive meal
in celebration of Rosh Hashona [sic] while he was in segregation[,]” Aplt. App. at
138. Apparently, the district court construed this claim to include the existence
of a “policy of denying festive meals while in segregation[,]” id. at 142. By their
argument, therefore, appellants ask us to address the nature and extent of their
personal participation in the denial of the festive meal based on the wording of
the final pretrial order. 6 This would require us to consider the factual basis of
plaintiff’s claim rather than a purely legal issue based on certain given facts.
5
W e note that, even if appellants had raised this as an issue, we would
affirm the order denying the Third Summary Judgment M otion for substantially
the same reasons as the district court.
6
W e note that the district court expressed its conclusions on appellants’
personal participation in an earlier order, albeit prior to the filing of the final
pretrial order. Aplt. App. at 36 (denying qualified immunity because “plaintiff
adequately alleged the personal participation of each of the defendants”).
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Accordingly, we lack jurisdiction under the collateral order doctrine. See
Johnson, 515 U.S. at 311. 7
Conclusion
Because we lack jurisdiction, we DISM ISS the appeal and REM AND this
action to the district court for further proceedings.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
7
W e decline to address appellants’ alternative argument concerning their
proffered rationales for a policy to deny festive meals to inmates in segregation.
Appellants raised these arguments in the Second Summ ary Judgment M otion, the
denial of which they have not appealed. It appears that motion did not rely on the
qualified immunity defense. Therefore, it is unlikely that appellants could have
taken an interlocutory appeal from the order denying it.
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