Moore v. Hartley , 608 F. App'x 714 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
FREDERICK D. MOORE,
Plaintiff - Appellant,
v. No. 15-1151
(D.C. No. 1:15-CV-00262-LTB)
STEVE HARTLEY, Warden, Cheyenne (D. Colo.)
Mountain Re-Entry Center; PATSY
PAULK, Deputy Director of Programs,
Cheyenne Mountain Re-Entry Center;
SAHIB BROWN, Chief of Programs;
Cheyenne Mountain Re-Entry Center;
KELLY LEHMAN, Unit Manager,
Cheyenne Mountain Re-Entry Center;
MARIA JUAREZ, Unit Manager,
Cheyenne Mountain Re-Entry Center,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Frederick Moore, a state prisoner proceeding pro se, appeals the dismissal of
his constitutional and Religious Land Use and Institutionalized Persons Act
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(“RLUIPA”) claims under 28 U.S.C. § 1915(e)(2)(B). We have jurisdiction under 28
U.S.C. § 1291, and affirm.
I
Moore claims that while in custody at the Cheyenne Mountain Re-Entry
Center (“CMRC”), he was required to recite the CMRC credo. He asserts that this
requirement violated his rights under the First Amendment and RLUIPA. In support
of this claim, Moore submits that the CMRC credo is a statement with religious
significance. He also complains that CMRC officials violated his Eighth Amendment
rights by requiring him to document the behavior of others in custody, and that
defendants’ conduct in general violated his Fourteenth Amendment rights.
The district court dismissed his claims under § 1915(e)(2)(B). It concluded
that Moore had failed to exhaust administrative remedies as required by 42 U.S.C.
§ 1997e(a), and that he had in any event failed to state a claim upon which relief
could be granted. Moore timely appealed.
II
Construing his appellate filings liberally, see Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991), Moore contends that because failure to exhaust is an
affirmative defense, it does not provide grounds for a sua sponte dismissal under
§ 1915(e)(2)(B). However, the district court did not rely solely on Moore’s failure to
exhaust in dismissing the complaint; rather, it also concluded that Moore failed to
state a claim on the merits. Moore does not intelligibly challenge the latter
determination on appeal. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159
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(10th Cir. 1991) (“Despite the liberal construction afforded pro se pleadings, the
court will not construct arguments or theories for the plaintiff in the absence of any
discussion of those issues.”). And that failing is fatal to his appeal. When a district
court provides two alternative bases for its ruling and an appellant challenges only
one of those grounds, the district court’s judgment “would still stand on the
alternative ground which was not appealed” even if we were to accept the appellant’s
arguments. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004).1
Moore makes a conclusory statement that he should have been entitled to more
process below, but never explains how additional procedures would have made his
claims legally cognizable. This argument accordingly provides no basis for relief.
See Merryfield v. Jordan, 584 F.3d 923, 925 n.2 (10th Cir. 2009) (concluding that pro
se plaintiff “waived . . . issues due to a wholesale lack of reasoned argument”).
III
The judgment of the district court is AFFIRMED. We GRANT Moore’s
motion to proceed in forma pauperis, and remind him of his obligation to continue
1
Because Moore waived any challenge to the district court determination
regarding the merits of his claims, we express no opinion as to whether he
sufficiently pled his RLUIPA claim. See Holt v. Hobbs, 135 S. Ct. 853, 862-63
(2015) (holding that RLUIPA requires a prison with policies that command inmates
to “engage in conduct that seriously violates [their] religious beliefs” to show that
those policies are the least restrictive means of advancing a compelling governmental
interest).
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making partial payments until the fees are paid in full.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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