Colorado Springs Fellowship v. Harper ( 2022 )

Appellate Case: 21-1269 Document: 010110695792 Date Filed: 06/13/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 13, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
COLORADO SPRINGS FELLOWSHIP
CHURCH; DAVID A. ZIRPOLO; DAVID
BANKS; CLINTON A. STEWART;
DEMETRIUS K. HARPER,
Plaintiffs - Appellants,
v. No. 21-1269
(D.C. No. 1:19-CV-02024-WJM-KMT)
(D. Colo.)
E. WILLIAMS; JASON HENDERSON;
HUGH HIRWITZ, Acting Director,
Federal Bureau of Prisons, in their official
capacity, jointly and severally; JOHN
OLIVER,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
Plaintiffs Colorado Springs Fellowship Church, David A. Zirpolo, David
Banks, Clinton A. Stewart, and Demetrius K. Harper sued several officials of the
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-1269 Document: 010110695792 Date Filed: 06/13/2022 Page: 2
Federal Bureau of Prisons (“BOP”) for alleged violations of their First Amendment
rights and under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§§ 2000bb to 2000bb-4. The district court dismissed all claims, and the Plaintiffs
appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Plaintiffs Zirpolo, Banks, Stewart, and Harper (“Individual Plaintiffs”), all
members of the church, were incarcerated at the Federal Prison Camp in Florence,
Colorado. The church attempted to send DVD’s directly to the Individual Plaintiffs
in violation of BOP policy. That policy prohibits sending personal property,
including religious items, directly to inmates. As an accommodation, however, the
policy allows religious organizations to send religious materials to the BOP, which
then makes those materials available to all inmates.
Plaintiffs filed a lawsuit alleging that by prohibiting the Individual Plaintiffs
from keeping the DVD’s, BOP officials violated RFRA and Plaintiffs’ free exercise
and free speech rights. They also asserted state-law claims under the Colorado
Constitution. The church additionally asserted an Establishment Clause claim.
Defendants filed dispositive motions, which the district court granted. The
district court held the Individual Plaintiffs had failed to exhaust their claims as
required by 42 U.S.C. § 1997e(a). As for the church’s claims, the district court
dismissed its First Amendment and RFRA claims without prejudice, and its state-law
claims with prejudice. The church then filed an amended complaint again asserting
RFRA and First Amendment claims. The church’s supporting allegations were
2
Appellate Case: 21-1269 Document: 010110695792 Date Filed: 06/13/2022 Page: 3
virtually identical to the previous iteration, except for the addition of two new
defendants.
Defendants moved to dismiss the amended complaint, and the district court
granted the motion, this time with prejudice. On the church’s free exercise and free
speech claims, both parties acknowledged that Turner v. Safley, 482 U.S. 78 (1987),
provided the applicable standard, which is that any restrictions be “reasonably related
to legitimate penological interests,” id. at 89. The district court held the church’s
allegations did not satisfy Turner. The district court dismissed the church’s
Establishment Clause claim because the church failed to plausibly allege that the
BOP’s policy prevented the church from providing religious materials to inmates
while allowing other religious groups to do so, as required by Cutter v. Wilkinson,
544 U.S. 709, 723-24 (2005). This appeal followed. 1
II. DISCUSSION
On appeal, the church argues that the district court erred in applying the
Turner standard to its free exercise and free speech claims. It asserts that Turner
does not apply to claims brought by non-prisoners. But the church did not make this
argument before the district court. Indeed, the briefing below confirmed that the
church acknowledged Turner’s applicability to its free speech and free exercise
claims. Aplees. App., vol. 2 at 465.
1
The district court also dismissed the church’s RFRA claim, which the church
does not challenge on appeal.
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Appellate Case: 21-1269 Document: 010110695792 Date Filed: 06/13/2022 Page: 4
Because the church conceded Turner’s applicability to its free exercise and
free speech claims before the district court, it cannot now claim on appeal that the
district court erred in applying Turner. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1127 (10th Cir. 2011) (“If the theory was intentionally relinquished or
abandoned in the district court, we usually deem it waived and refuse to consider
it.”). We therefore consider the argument waived. 2
The church also challenges the district court’s dismissal of its Establishment
Clause claim, contending the district court incorrectly applied the Turner standard to
their claim. The district court did no such thing. Instead, it applied the standard set
forth in Cutter, 544 U.S at 723-24, which, as characterized by the district court,
required the church to allege that the BOP’s policy “impermissibly prevented it from
providing religious materials to inmates while allowing other religious groups to do
so.” Aplees. App., vol. 2 at 515. The district court found the church failed to
plausibly make such an allegation. The church did not challenge that conclusion in
its opening brief but attempted to do so in its reply brief. We therefore consider it
waived. See Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 647 (10th Cir.
2004) (“Generally, arguments raised for the first time on appeal in an appellant’s
reply brief are waived.”).
2
Even if the church had only forfeited the argument through neglect rather
than an intentional waiver, “a newly raised legal theory . . . may form a basis for
reversal only if the appellant can satisfy the elements of . . . plain error.” Id. at 1130
(italics omitted). The church, however, made no effort to do so. See id. at 1131 (“the
failure to argue for plain error and its application on appeal—surely marks the end of
the road for an argument for reversal not first presented to the district court”).
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Finally, although the Individual Plaintiffs are ostensibly appellants in this
matter, their briefing does not challenge or otherwise address the district court’s
reason for dismissing their claims: that they failed to exhaust their administrative
remedies as required by 42 U.S.C. § 1997e(a). We therefore summarily affirm the
district court’s conclusion. Cf. Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015) (explaining that appellant’s “first task” is “to explain what was
wrong with the reasoning that the district court relied on in reaching its decision”).
III. CONCLUSION
For the foregoing reasons, we affirm the dismissal of Plaintiffs’ claims.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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