Pfeil v. Lampert

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 20, 2015
Elisabeth A. Shumaker
Clerk of Court
ROGER D. PFEIL,
Plaintiff - Appellant,
v. No. 14-8035
(D.C. No. 2:12-CV-00184-SWS)
ROBERT LAMPERT, in his official (D. Wyo.)
capacity as WYOMING DEPARTMENT
OF CORRECTIONS DIRECTOR and in
his individual capacity; MICHAEL
PACHECO, in his official capacity as
WYOMING DEPARTMENT OF
CORRECTIONS HONOR FARM
WARDEN and in his individual capacity,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and McHUGH, Circuit Judges.
Plaintiff Roger D. Pfeil, at all relevant times a Wyoming state prisoner,
brought this action against Wyoming Department of Corrections (WDOC) Director
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Robert Lampert and Wyoming Honor Farm (WHF) Warden Michael Pacheco, in their
individual and official capacities, alleging the denial of his rights under the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA), actionable pursuant
to 42 U.S.C. § 2000cc-1, and the Free Exercise Clause of the First Amendment,
actionable under 42 U.S.C. § 1983. He later added claims for the denial of his rights
under the Americans with Disabilities Act (ADA) and unconstitutional retaliation for
protected activities related to this action. In a published decision on cross-motions
for summary judgment, the district court ruled for defendants on all claims. See Pfeil
v. Lampert, 11 F. Supp. 3d 1099 (D. Wyo. 2014). As explained below, we dismiss
the appeal for mootness insofar as it involves RLUIPA claims and otherwise affirm
the district court for substantially the reasons stated in its decision.
PROCEDURAL SUMMARY
Mr. Pfeil has, until very recently, been incarcerated by the State of Wyoming
since pleading guilty to second-degree murder in 1997. When he filed this action in
August 2012, he was confined at the WHF, where he had been placed in May 2009.
His complaint alleged that defendants had impeded the free exercise of his religious
rights as a practicing Catholic in two primary respects: (1) enforcing a new policy
prohibiting inmates from possessing hardbound books, thereby depriving him of his
two bibles and a religious commentary,1 which were printed in a font size that he
1
He also complained of the loss of a standard secular dictionary, which would
not appear to raise any free-exercise implications. Even if it did, its inclusion in the
(continued)
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could read despite vision problems; and (2) not allowing a Eucharistic Minister to
enter the prison under a policy conditioning admission on possession of a current
approved application, which the minister did not have. The complaint also included a
chronicle of alleged religious deprivations dating back to the late 1990s when
Mr. Pfeil was confined in other facilities, many out of state (per contracts with
WDOC). We agree with the district court that any redress for these ancillary
allegations was barred by statute of limitations and/or exhaustion principles. See id.
at 1105 n.1, 1107. Events prior to August 2008 are barred by the four year
limitations period applicable to claims under both § 1983, see Gee v. Pacheco,
627 F.3d 1178, 1189-90 (10th Cir. 2010), and RLUIPA, see Pouncil v. Tilton,
704 F.3d 568, 573 (9th Cir. 2012), cert. denied, 134 S. Ct. 76 (2013). As for
exhaustion, Mr. Pfeil specifically identified the grievances through which he insisted
he had exhausted his religious exercise claims, see R. Vol. 1, at 25-26 (complaint),
283 (summary judgment memorandum), and these properly exhausted only the two
claims noted above (and in particular did not exhaust any additional events within the
limitations window after August 2008).2
analysis to follow would not alter our conclusions reached with respect to the other,
clearly religious books.
2
In this vein, Mr. Pfeil objects that WDOC did not extend its own grievance
procedures to Wyoming prisoners housed in out-of-state facilities, which he contends
is required by the Western Interstate Corrections Compact (WICC), Wyo. Stat. Ann.
§ 7-3-401. But the only state he was confined in during the limitations period was
Virginia, which is not covered by the WICC, see id. § 7-3-401 (Art. VII). Similarly,
on the merits, Mr. Pfeil’s reliance on WICC for holding WDOC Director Lampert
(continued)
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Both parties moved for summary judgment. In his briefing on the motions,
Mr. Pfeil voiced additional complaints about defendants’ failure to accommodate his
vision problems and alleged acts of retaliation (including a transfer from WHF to the
Wyoming Honor Conservation Camp in October 2012) for filing this case. After
defendants objected to the interjection of these new claims, Mr. Pfeil asked to
supplement his pleadings to add them. The district court granted his request, deemed
the pleadings amended accordingly, and gave defendants a short time to submit a
brief and affidavits addressing the new claims, which they did. Nine months later,
the district court granted summary judgment for defendants on all claims.
ANALYSIS
Because Mr. Pfeil appeals from the grant of summary judgment, our review is
de novo. See Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir. 2005). But we limit our
review to the issues he has raised on appeal. See id. In addition, a significant portion
of this appeal, involving Mr. Pfeil’s RLUIPA claims, has become moot. RLUIPA is
limited to official capacity claims for equitable relief. See Sossamon v. Texas,
131 S. Ct. 1651, 1655 (2011) (holding Eleventh Amendment immunity bars RLUIPA
claims for money damages); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012)
(noting RLUIPA does not permit individual capacity claims). Consequently,
RLUIPA claims regarding prison conditions become moot if the inmate plaintiff is
responsible for any religious inadequacies at that out-of-state facility would be
unavailing.
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released from custody. See Alvarez v. Hill, 667 F.3d 1061, 1063-65 (9th Cir. 2012).
That has occurred here. Mr. Pfeil was released from WDOC custody on September
9, 2014. Accordingly, we dismiss this appeal insofar as it involves his RLUIPA
claims, vacate that portion of the district court’s judgment resolving those claims on
the merits, and remand the claims for dismissal by the district court.3 See, e.g.,
Watkins v. Mabus, 502 U.S. 954, 954 (1991) (effectuating Munsingwear4 mootness
procedure in appeal mooted only in part by intervening events).
We turn now to the claims that remain in controversy on this appeal.
A. Exclusion of Minister for Lack of Application with Current Information
The district court’s opinion sets out the factual details of this claim. See Pfeil,
11 F. Supp. 3d at 1111. Basically, a volunteer minister was not permitted to enter the
prison to provide Catholic services on one occasion because personal information on
his application was not current, as required by prison policy for admission of outside
volunteers. Mr. Pfeil claimed this policy violated his rights under the Free Exercise
Clause.5 The fact that we are now concerned only with this constitutional claim has a
3
We note that the parties were afforded an opportunity to address the mootness
issue through an order to show cause, to which they failed to respond.
4
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
5
To the extent Mr. Pfeil complains of the incident itself, as distinct from the
policy it implemented, his constitutional claim would necessarily fail because WDOC
Director Lampert and Warden Pacheco did not personally participate in it. See
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Of course, even if a
participating official had been sued, adherence to this policy—which we hold to be
constitutionally permissible—would not afford a basis for liability.
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significant consequence for our analysis of Mr. Pfeil’s case. As with a RLUIPA
claim, he must show that the policy substantially burdened his religious beliefs. Kay
v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). But even assuming such a burden,
the policy will survive constitutional scrutiny if it is reasonably related to legitimate
penological interests.6 See id. at 1218-19 (following O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987), and Turner v. Safley, 482 U.S. 78 (1987)). Once such interests
are identified, “[t]he burden then returns to the prisoner to show that these articulated
concerns were irrational.” Id. at 1218 n.2 (internal quotation marks omitted).
The district court concluded that even if the policy excluding volunteers
lacking up to date information imposed a substantial burden on Mr. Pfeil’s religious
practice, it was justified by legitimate penological interests. In this regard, the court
recognized the interests in “maintaining security, safety, and orderly operation”
served by a prison policy requiring current information on the background of those
permitted to enter and interact with inmates. Pfeil, 11 F. Supp. 3d at 1115. The court
elaborated on this point while discussing the counterpart RLUIPA claim:
The WDOC, in order to protect inmates and volunteers, and maintain
security of the facility, conducts criminal background checks and
maintains updated contact information for each volunteer. Volunteers
are also required to complete orientation and training related to safety
and security issues such as emergency response conditions, facility
evacuation, and learning the primary rules and lines of authority.
6
In contrast, RLUIPA requires the government to justify a substantial burden on
religion by demonstrating a compelling interest served by the least restrictive means
available. Kay, 500 F.3d at 1221 (discussing 42 U.S.C. § 2000cc-1).
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Plaintiff argues there is no compelling safety and security interest
in requiring ministers to complete a new application and go through the
entire approval process each and every year. However, prison officials
need not wait for a problem to arise before taking steps to minimize
security risks. The requirement that each volunteer provide current
contact information before being admitted to a WDOC facility is an
appropriate proactive approach to ensuring facility safety and security
and is the least restrictive means for doing so.
Id. at 1113 (citations and internal quotation marks omitted).
The district court went on to explain the reasonableness of the volunteer policy
under the O’Lone/Turner framework in light of the rational connection between the
policy and the interests supporting it, the availability of other means for inmates to
exercise their religion, the adverse impact on prison operation and personnel if the
policy were not enforced, and the lack of ready practical alternatives to safeguard the
interests involved. See id. at 1115-17; see also Kay, 500 F.3d at 1219 (identifying
such considerations as relevant in assessing the reasonableness of prison policies
affecting religious practice of inmates). On appeal Mr. Pfeil has not raised any
cogent objection to this thorough analysis. We affirm the district court’s grant of
summary judgment to defendants on this claim.
B. Prohibition on Possession of Hardbound Books
In 2012, WDOC adopted and WHF implemented a new property-control policy
prohibiting inmates from possessing hardbound books in their living quarters. The
primary reasons for the new policy were that hardbound books can be used for hiding
contraband or weapons and that the hard covers themselves can be used as weapons.
Pfeil, 11 F. Supp. 3d at 1105-06. In addition, eliminating such books reduces the
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time and resources the prison must expend to inspect and search property in inmates’
cells. Id. at 1106. Finally, the policy was also adopted to meet requirements for
accreditation with the American Correctional Association. Id. As a result of the
policy, Mr. Pfeil had to relinquish two bibles and a biblical reference work, which
were sent to his family for safekeeping. He claims that prohibiting his possession of
these books, and not providing him with adequate replacements, violated his rights
under the Free Exercise Clause.
The district court rejected this claim under the O’Lone/Turner framework as
well. Again, it noted that important prison interests in security, safety, and orderly
operation (as specified above) support the prohibition on possession of hardbound
books in inmate living quarters. Id. at 1115. Mr. Pfeil insists these interests are
exaggerated—a criticism that (when warranted) carries weight under the compelling
interest standard for RLUIPA claims. See Abdulhaseeb v. Calbone, 600 F.3d 1301,
1318 (10th Cir. 2010). But we do not think the criticism has force here; rather, we
agree with the district court that, viewed with the deference owed the professional
judgment of prison administrators on such matters, the concerns noted above are
sufficient to justify the challenged policy under the legitimate interest standard for
Free Exercise claims. See Pfeil, 11 F. Supp. 3d at 1115.
As it did with the volunteer policy, the district court went on to discuss the
rational connection between the hardbound book policy and the interests it served,
the availability of other means for inmates to exercise their religion (particularly their
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ability to obtain softbound religious books through purchase, rebinding of hardbound
books,7 or from the prison library), the adverse impact on prison operation if the
policy were not enforced, and the lack of ready practical alternatives that would
safeguard the interests involved. See id. at 1115-17; see also id. at 1112-14
(discussing at length the means available to inmates to replace proscribed hardbound
religious books). Mr. Pfeil takes issue in particular with the conclusion that he had
alternatives to his hardbound religious books, objecting that (1) he could not afford to
purchase replacements for his confiscated books and (2) even if he could afford
replacements, they were not available in a font size large enough for him to read due
to vision problems. The first objection is readily answered by precedent rejecting the
notion that prisons must subsidize inmates’ access to religious materials. Even under
the stricter obligations imposed by RLUIPA, the State is “not require[d] . . . to pay
for an inmate’s devotional accessories.” Cutter v. Wilkinson, 544 U.S. 709, 720 n.8
(2005). And we have specifically invoked this no subsidy principle to hold that a
prison does not have to pay for softbound versions of confiscated hardbound
religious texts. See Abdulhaseeb, 600 F.3d at 1320-21.
As for font size, Mr. Pfeil does not cite any authority holding that the
constitution requires prisons to purchase religious books to accommodate the
7
The prisons have machines available to convert books from hardbound to
softbound. Mr. Pfeil objects that he was not offered this service for his confiscated
religious books, but he has not cited any evidence showing that he specifically asked
for this to be done and was denied.
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physical limitations (or personal preferences) of their inmates. Indeed, such an
obligation would be inconsistent with the no subsidy principle applied in
Abdulhaseeb, which unqualifiedly held that prisons are not required to provide
replacements for confiscated hardbound books at all. This aspect of Mr. Pfeil’s case
is more aptly considered in connection with accommodation obligations under the
ADA, which is primarily how he presented it to the district court. His ADA claim is
addressed in the next section of this order and judgment.
Mr. Pfeil has failed to demonstrate any error in the district court’s analysis of
his Free Exercise claim regarding the prohibition on possession of hardbound books.
We therefore affirm the grant of summary judgment to defendants on this claim as
well.
C. ADA Claim
Mr. Pfeil claims that the failure to provide him with large print versions of his
confiscated religious books violated his right to reasonable accommodation under the
ADA. The district court identified two distinct dispositive deficiencies with respect
to this claim: (1) it had not been exhausted in Mr. Pfeil’s grievances over
confiscation of his books; and (2) on the merits, he had not shown the requisite
disability to trigger a duty to accommodate under the ADA. Pfeil, 11 F. Supp. 3d at
1119. We agree with the first point and need not reach the second.
Absent a controlling statutory or regulatory directive specifying the requisite
content of prison grievances (and none have been cited to us here), an inmate
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properly exhausts a claim if his grievance provides enough information regarding the
nature of the alleged wrong to enable prison officials to investigate and address his
complaint. Kikumura v. Osagie, 461 F.3d 1269, 1283-85 (10th Cir. 2006), overruled
on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as explained in
Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008). The relevant
materials here are the grievances (initial grievance and subsequent appeals) Mr. Pfeil
submitted complaining of the confiscation of his religious books pursuant to the
prohibition on hardbound books. Even judged under the fairly lenient standard
clarified in Kikumura, Mr. Pfeil’s grievances did not exhaust an ADA claim.
The only legal rights invoked in the grievances were those under RLUIPA and
the Free Exercise Clause, which Mr. Pfeil alleged were violated by the confiscation
of hardbound religious books that he could not afford to replace. Nowhere is there
any mention of an ADA claim. But his omission went much further than just not
invoking the ADA. He simply never asked for an accommodation of any vision
problems, which is the essence of his present ADA claim. Indeed, he never even
mentioned a disability. His only reference remotely relevant to an ADA claim was
on appeal from the denial of his initial grievance when he said in passing that a
softbound bible given to him by a prison chaplain did not offset the loss of his own
because its print happened to be too small for him to read. He said nothing about any
disabling limitation arising from a vision impairment (the macular degeneration and
cataracts he now claims require accommodation made their first appearance in the
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affidavit he filed with the complaint initiating this lawsuit). In sum, Mr. Pfeil did not
provide enough information in his grievances to enable prison officials to investigate
and address the material elements of the ADA claim he later brought in this case.
D. Retaliation
The district court methodically addressed Mr. Pfeil’s various allegations of
retaliation and explained why he failed to demonstrate a triable claim. See Pfeil,
11 F. Supp. 3d at 1117-18. That discussion need not be repeated here. We have
reviewed Mr. Pfeil’s arguments on appeal and conclude that no error has been shown
with respect to the district court’s determination.8
Mr. Pfeil does, however, raise a related procedural objection that should be
specifically addressed. He asserts that he did not receive the affidavits attached to
defendants’ summary judgment memorandum regarding his retaliation claim and
contends that the district court’s reliance on them was therefore impermissible. He
never raised this issue with the district court, however, so there is no determination
regarding the facts of the matter for us to review, nor can we as an appellate court
determine the facts for ourselves. But even assuming the facts to be as Mr. Pfeil
asserts, we reject his objection on the ground that it comes far too late in the day to
serve as a proper basis for disturbing the district court’s judgment.
8
Indeed, we would add that the allegations of retaliation have a further legal
deficiency not noted by the district court: the lack of personal participation by the
named defendants in the actions Mr. Pfeil claims were retaliatory.
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Mr. Pfeil does not dispute that he received the memorandum to which the
affidavits were attached as exhibits. The memorandum was filed on June 28, 2013.
The district court did not rule on summary judgment until March 31, 2014. The
affidavits were explicitly cited and relied on throughout the memorandum, but
Mr. Pfeil raised no objection about their alleged absence in the nine months that
preceded the ruling on summary judgment. Nor, after the district court relied on the
affidavits in its summary judgment order, did Mr. Pfeil raise any objection by way of
post-judgment motion. The only mention of any problem in this regard was in a
letter he sent to the court clerk two months after filing this appeal. His inaction thus
deprived the district court of the opportunity to look into the matter and take steps to
cure any omission before deciding summary judgment, and then further deprived the
district court of an opportunity to address the matter in post-judgment proceedings
before jurisdiction was lost through his commencement of appeal. It also deprived
defendants of a timely opportunity either to dispute their alleged omission or to
correct it while the matter was still under advisement in the district court. Just such
considerations underlie our general rule barring consideration of arguments that an
appellant has not raised in the district court. See, e.g., Cahill v. Am. Family Mut. Ins.
Co., 610 F.3d 1235, 1239 (10th Cir. 2010); Wall v. Astrue, 561 F.3d 1048, 1067 &
n.25 (10th Cir. 2009). Under the circumstances, we hold that Mr. Pfeil has forfeited
any objection that he was not provided the affidavits attached to defendants’
summary judgment memorandum on the retaliation claim.
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The judgment of the district court is affirmed. Mr. Pfeil’s motion to proceed
in forma pauperis on appeal is granted. His motion for declaratory and injunctive
relief for spoliation of evidence is denied.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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