Yu Kikumura v. Hurley

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 9 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

YU KIKUMURA,

Plaintiff-Appellant,

v.

JOHN M. HURLEY, E. J. No. 99-1284
GALLEGOS,

Defendants-Appellees,

_______________

UNITED STATES OF AMERICA,

Intervenor.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-B-1442)

Philip J. Weiser, University of Colorado School of Law, Boulder, Colorado, for
Appellant.

Melanie Bailey Lewis, of Hall & Evans, (Josh A. Marks with her on the briefs),
Denver, Colorado, for Appellees.

Matthew M. Collette, Appellate Staff Attorney, (Michael Jay Singer, Appellate
Staff Attorney, with him on the briefs), Civil Division, Department of Justice,
Washington, D.C., for the Intervenor and for Appellant.
Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff, a federal prisoner, brought suit against Defendants, prison

wardens, for their denial of his requests for certain pastoral visits, alleging

violations of his First and Fifth Amendment rights and statutory rights under the

Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1. Plaintiff

moved for a temporary restraining order and a preliminary injunction preventing

Defendants from denying the requested pastoral visits. The district court denied

Plaintiff’s motion, reasoning that Plaintiff had not demonstrated a substantial

likelihood of success on the merits or that he would suffer irreparable harm

absent an injunction. This court has jurisdiction pursuant to 28 U.S.C. §

1292(a)(1) to consider Plaintiff’s appeal of the district court’s denial of his

motion for a preliminary injunction. Because the district court committed legal

error in holding Plaintiff did not have a substantial likelihood of success on his

RFRA claim and would not be irreparably harmed absent an injunction, this court

affirms in part, reverses in part, and remands to the district court for further

proceedings consistent with this opinion.

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II. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant Yu Kikumura is an inmate in the United States

Penitentiary, Administrative Maximum, at Florence, Colorado (the

“Penitentiary”). Defendant John Hurley is Warden at the Penitentiary, and

Defendant E.J. Gallegos is an Associate Warden at the Penitentiary. In early

September 1997, the Reverend C. Harold Rickard, a retired United Methodist

minister, sent a letter to Plaintiff. Rickard explained in the letter that he had

heard about Plaintiff through the Reverend S. Michael Yasutake, a mutual friend

of Plaintiff and Rickard, and that he had served as a missionary in Japan for

numerous years. Rickard asked Plaintiff, who is originally from Japan, if

Plaintiff would accept a pastoral visit from him. Plaintiff replied to Rickard,

indicating that he would welcome the visit and encouraging Rickard to contact

prison officials to request the visit. Rickard’s request to visit Plaintiff was denied

by prison officials.

During the next several months Plaintiff, Rickard, and Yasutake repeatedly

contacted prison officials, hoping to persuade them to allow pastoral visits from

Rickard. 1 On December 23, 1997, Defendant Gallegos denied the requests.

1
During this time Plaintiff also requested pastoral visits from two other
Christian ministers who had served in Japan as missionaries. As the denial of
these pastoral visits raises many of the same issues as the denial of the visit by
Rickard, for simplicity this opinion will refer only to Rickard.

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Defendant Hurley then sent letters to Plaintiff and Yasutake explaining that the

requests were denied because they did not meet the criteria for pastoral visits

established by Bureau of Prisons (“BOP”) regulations. See 28 C.F.R. § 548.19.

Defendant Hurley interprets the regulations to allow pastoral visits if (1) the

inmate initiates the request and (2) the clergy person or representative is from the

inmate’s faith group. According to BOP regulations, inmates are also allowed

non-pastoral visits from representatives of civic and religious organizations if

there is an established relationship prior to confinement, although wardens are

given the power to waive the requirement of an established pre-confinement

relationship. See id. § 540.47.

Plaintiff appealed the denial of the visits through the appropriate

administrative appeals, but the original decision denying the visitation requests

was upheld. Defendant Hurley, who reviewed one of the administrative appeals

by Plaintiff, explained that Plaintiff did not meet the criteria for a pastoral visit

because Plaintiff had not initiated the request and because “Reverend Rickard is

of the Methodist faith, and you are of the Buddhist faith.” Plaintiff had registered

as a Buddhist for purposes of receiving a special diet at the Penitentiary, but

claims that he practices a mixture of both the Buddhist and Christian religions.

Although prison policy requires inmates to register under a certain religion for

purposes of receiving a special diet, there is no similar registration requirement

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for inmates seeking pastoral visits. Defendant Hurley further explained that

although he could have waived the requirement of a prior relationship so as to

permit the visit as one from a community group, he decided not to do so because

of unspecified security concerns. Plaintiff’s final administrative appeals were

also denied, with the Regional Director of the Federal Bureau of Prisons noting

that “[w]hile the requested visits in question may have been generally supportive

to you, there is no indication from the documents submitted by you or from our

staff interviews that these visits should have been considered primarily pastoral in

nature.”

Having exhausted all administrative appeals, Plaintiff filed suit in the

United States District Court for the District of Colorado. Plaintiff claimed that

his religious liberties under the First Amendment and RFRA were violated and

that his right to equal protection of the laws under the Fifth Amendment Due

Process Clause was also violated. In addition to money damages and a permanent

injunction, Plaintiff also requested a temporary restraining order and a

preliminary injunction requiring Defendants to allow the pastoral visits.

Plaintiff’s request for a preliminary injunction and temporary restraining

order was referred to Magistrate Judge O. Edward Schlatter. In his

recommendation, Judge Schlatter indicated that Plaintiff had not met the

requirements for granting a preliminary injunction or a temporary restraining

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order. With respect to the First Amendment claim, Judge Schlatter concluded that

Plaintiff had not demonstrated a substantial likelihood of success on the merits.

Judge Schlatter noted the difficult constitutional standard for free exercise claims

by inmates and concluded that it was unlikely Plaintiff could meet this burden. In

addition, Judge Schlatter reasoned that Plaintiff would not suffer irreparable

injury absent a preliminary injunction or restraining order because “[Plaintiff’s]

contact with the religious advisors at issue appears to be at least somewhat

tangential to his ability to practice his faith and, again, he is permitted to

correspond with these individuals.” With respect to Plaintiff’s other claims,

Judge Schlatter explained that RFRA had been declared unconstitutional by the

Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), and that Plaintiff

had not adequately supported his equal protection claim. Thus, Judge Schlatter

recommended that Plaintiff’s request for a preliminary injunction and temporary

restraining order be denied. Plaintiff filed objections to the magistrate’s

recommendation but the district court adopted Schlatter’s recommendation and

denied Plaintiff’s motion.

III. DISCUSSION

A district court’s denial of a motion for a preliminary injunction is

reviewed for an abuse of discretion, legal error, or clearly erroneous factual

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findings. 2 See Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283

(10th Cir. 1996). A movant is entitled to a preliminary injunction if he can

establish the following: (1) a substantial likelihood of success on the merits of the

case; (2) irreparable injury to the movant if the preliminary injunction is denied;

(3) the threatened injury to the movant outweighs the injury to the other party

under the preliminary injunction; and (4) the injunction is not adverse to the

public interest. See id. Because “a preliminary injunction is an extraordinary

remedy, the right to relief must be clear and unequivocal.” SCFC ILC, Inc. v.

Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) (citation omitted).

For some requested preliminary injunctions a movant has an “even heavier

burden of showing that the four factors listed above weigh heavily and

compellingly in movant’s favor before such an injunction may be issued.” Id.

The heightened burden applies to preliminary injunctions that (1) disturb the

status quo, (2) are mandatory as opposed to prohibitory, or (3) provide the movant

substantially all the relief he may recover after a full trial on the merits. See id. at

1098-99. Because Plaintiff’s requested relief would disturb the status quo, the

2
Although Plaintiff requested both a preliminary injunction and a temporary
restraining order in the district court, this court only has jurisdiction to consider
the denial of the preliminary injunction. See Populist Party v. Herschler, 746
F.2d 656, 661 n.2 (10th Cir. 1984) (stating that, absent exceptions which have not
been argued in the present case, denials of temporary restraining orders are not
appealable).

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heightened burden requirement applies. Thus, Plaintiff must demonstrate not only

that the four requirements for a preliminary injunction are met but also that they

weigh heavily and compellingly in his favor.

Plaintiff, however, would have this court apply neither the heightened

standard nor the general standard. Instead, Plaintiff argues a relaxed standard

should apply to the requirement that he demonstrate a substantial likelihood of

success on the merits if he is first able to satisfy the other three requirements for a

preliminary injunction. This court has stated that “[w]hen the other three

requirements for a preliminary injunction are satisfied, it will ordinarily be

enough that the plaintiff has raised questions going to the merits so serious,

substantial, difficult and doubtful, as to make them a fair ground for litigation.”

Otero Sav. & Loan Ass’n v. Fed. Reserve Bank of Kansas City, Mo., 665 F.2d

275, 278 (10th Cir. 1981) (quotation omitted). This court, however, has

previously addressed the interplay between the heightened burden plaintiffs must

meet for some requested preliminary injunctions and the relaxed standard for

showing a substantial likelihood of success on the merits once the movant has met

the other three requirements for a preliminary injunction. In SCFC this court

stated that “in cases where the requested preliminary injunction alters the status

quo . . . the movant will ordinarily find it difficult to meet its heavy burden of

showing that the four factors, on balance, weigh heavily and compellingly in its

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favor, without showing a substantial likelihood of success on the merits.” SCFC,

936 F.2d at 1101 n.11.

A. Exhaustion of Administrative Remedies

Defendants argue Plaintiff is prevented from claiming he has religious

beliefs that incorporate elements of both Buddhism and Christianity because he

failed to adequately explain during his administrative appeals his belief in both

the Christian and Buddhist religions or express a desire to register as both a

Christian and Buddhist. The Prison Litigation Reform Act states that “[n]o action

shall be brought with respect to prison conditions under section 1983 . . . , or any

other Federal law, by a prisoner . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). A litigant’s failure to raise

issues during an administrative appeal can constitute a failure to exhaust

administrative remedies. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th

Cir. 1991).

While Plaintiff never specifically claimed that his religious beliefs include

elements of both the Buddhist and Christian religions, he was not required to do

so to satisfy the exhaustion requirements of the Prison Litigation Reform Act.

Plaintiff’s lengthy written administrative appeals adequately reveal his claim that

the denial of the Christian pastoral visits was frustrating his search for “mundane

spiritual help.” In addition, although the Penitentiary requires inmates to register

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under a certain religion for purposes of receiving a special diet, both parties

concede that the Penitentiary has neither a requirement that an inmate register

under a certain religion for purposes of receiving pastoral visits nor a procedure

by which to do so. Thus, Plaintiff’s failure to express a desire to register as both

a Christian and Buddhist can not possibly constitute a failure to exhaust his

administrative remedies.

Although Plaintiff, arguing pro se, was not as clear about his religious

beliefs as he could have been, his maundering was not so severe as to constitute a

failure to exhaust his administrative remedies. Plaintiff is therefore not prevented

from now premising his claims on religious beliefs which incorporate elements of

both Buddhism and Christianity.

B. Substantial Likelihood of Success on the Merits

1. First Amendment Claim

The district court determined Plaintiff had not demonstrated a substantial

likelihood of success on the merits of his First Amendment claim, partly because

of the deference given prison officials when evaluating prisoners’ constitutional

claims. Because the district court’s decision was consistent with controlling

Supreme Court precedent, the district court’s conclusion was neither legal error

nor an abuse of discretion.

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 The Supreme Court has declared that courts are not to substitute their

judgment on matters of institutional administration for the determinations made

by prison officials, even when First Amendment claims have been made. See

O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). Although inmates clearly

retain their First Amendment right to the free exercise of religion, incarceration

necessarily limits that right. See id. at 348. The burden on the government to

defend its action is substantially less demanding when the prima facie

constitutional claim has been made by a prisoner challenging prison policy as

opposed to a similar claim made by a citizen who is not incarcerated. See id. at

349. Thus, “when a prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

The Supreme Court in Turner identified several factors relevant to whether

a prison regulation is reasonably related to legitimate penological interests. First,

there must be a valid, rational connection between the legitimate, neutral

government interest and the prison regulation, so that the policy is not “arbitrary

or irrational.” Id. at 89, 90. A second factor is whether there are alternate means

for the inmate to exercise the asserted constitutional right. See id. at 90. Finally,

courts should consider whether ready alternatives to the prison regulation are

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available and what impact accommodation of the asserted right would have on

guards, other inmates, and the allocation of prison resources. See id. at 90-91.

Defendant Hurley interprets BOP regulations to impose two requirements

for pastoral visits: the prisoner must initiate the request for the visit, and the

visitor must be a clergy person from or representative of the inmate’s faith.

Under the particular facts of this case, it is evident that Plaintiff did not initiate

the requests for the pastoral visits. 3

Defendants explain that permitting pastoral visits only when the inmate

initiates the requests aids in both keeping the number of pastoral visits at a

manageable level and preventing abuses of the system while also ensuring that

inmates are allowed to receive pastoral visits from appropriate persons whom the

inmates truly desire to have visit. Defendants claim that keeping the number of

pastoral visitors at a manageable level is important because of security concerns

and the limited resources of the Penitentiary.

It is well established that prison administrators can enact regulations that

restrict the number of visitors an inmate can have for purposes of maintaining

It is unnecessary for this court to address this regulatory interpretation
3

beyond its application to the denial of Rickard’s request to visit Plaintiff. The
evidence before us does not indicate that Plaintiff developed a relationship with
Rickard and thereafter initiated his own request for a visit. Nor is there any
record evidence to suggest that the warden has interpreted or applied the
regulation to forever prohibit a visit by Rickard solely because Rickard initiated
the very first request.

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institutional security. See Pell v. Procunier, 417 U.S. 817, 827-28 (1974); Ramos

v. Lamm, 639 F.2d 559, 581 (10th Cir. 1980). Because the Penitentiary’s policy

of allowing pastoral visits only when the prisoner initiates the request sufficiently

relates to the Penitentiary’s goal of allowing prisoners desired pastoral visits

while limiting the overall number of visits and preventing abuses of the system,

this court cannot conclude as a matter of law that the regulations, as interpreted

by Defendants, are “arbitrary or irrational.” Turner, 482 U.S. at 90.

Plaintiff argues the requirement that the inmate initiate the request is not

reasonably related to the penological interest of limiting the number of visitors

because there is no restriction on the number of pastoral visits an inmate can have

if the two requirements are met. Plaintiff’s argument, however, ignores the

deference courts are to give prison regulations that attempt to strike a balance

between prisoner rights and legitimate penological concerns. See generally

O’Lone, 482 U.S. at 344-53. The BOP regulation seeks not only to limit the total

number of pastoral visits and prevent abuses of the system, but also to ensure that

desired and potentially beneficial pastoral visits are allowed. A requirement that

the prisoner initiate the request for a pastoral visit is rationally connected to these

legitimate penological interests.

Under the Turner analysis it is relevant that Plaintiff can still communicate

with Rickard through written correspondence. See id. at 345, 352 (noting that

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although sincere religious beliefs compelled attendance at Jumu’ah service,

Muslin prisoner denied Jumu’ah attendance still had opportunity to participate in

other Muslim religious ceremonies); Ramos, 639 F.2d at 581 (explaining that

although prison regulations prevented inmate visits from non-family friends,

regulation was reasonable because prisoner was still able to communicate through

written correspondence). In addition, Defendants maintain that the pastoral

visitation requirements are necessary to prevent abuses of the program; this is the

“ripple effect” referred to by the Supreme Court in Turner. See Turner, 482 U.S.

at 90. Finally, Plaintiff has not demonstrated “obvious, easy alternatives” to the

pastoral visitation requirements that would accomplish the multiple goals of the

current policy. See id. Thus, the district court did not commit legal error or

abuse its discretion in concluding Plaintiff has not demonstrated a substantial

likelihood of success on his First Amendment claim.

2. RFRA Claim

The district court determined that Plaintiff had no likelihood of success on

his RFRA claim, stating that RFRA had been declared unconstitutional by the

Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997). In reaching this

conclusion the district court committed legal error.

In Flores the Supreme Court considered whether Congress exceeded its

power under Section 5 of the Fourteenth Amendment “in enacting the most far-

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reaching and substantial of RFRA’s provisions, those which impose its

requirements on the States.” Id. at 516. The Court explained that because RFRA,

as applied to the states, was not remedial or preventive legislation congruent and

proportional to the goal of enforcing constitutional free exercise rights, it

exceeded Congress’ power to enforce the Fourteenth Amendment. See id. at 519-

20, 533-34, 536.

The district court concluded Flores renders RFRA unconstitutional in the

context of Plaintiff’s suit against Defendants, who are federal employees in a

federal prison. Both parties concede that this court has yet to squarely address

whether Flores invalidates RFRA as applied to the federal government.

Defendants attempt to buttress the district court’s decision by citing to an

unpublished Tenth Circuit case and a handful of federal district court cases in

which Flores was interpreted to render RFRA unconstitutional not only in its

application to the states but also in its application to the federal government.

This court agrees, however, with both the Eighth and Ninth Circuits in their

conclusion that Flores does not determine the constitutionality of RFRA as

applied to the federal government. See Sutton v. Providence St. Joseph Med. Ctr.,

192 F.3d 826, 831-33 (9th Cir. 1999); Christians v. Crystal Evangelical Free

Church (In re Young), 141 F.3d 854, 858-59 (8th Cir. 1998). It is clear from the

analysis in Flores that the Court was focusing on Congress’ remedial powers to

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enforce the Fourteenth Amendment against states and local authorities. See

Flores, 521 U.S. at 516-17. Indeed, that was the only issue before the Court and

it involved a decision by local zoning authorities to deny a church a building

permit. See id. at 512. The district court decision on appeal stated only that

Congress exceeded its enforcement power under Section 5 of the Fourteenth

Amendment when it enacted RFRA. See id. Because Congress’ ability to make

laws applicable to the federal government in no way depends on its enforcement

power under Section 5 of the Fourteenth Amendment, the Flores decision does

not determine the constitutionality of RFRA as applied to the federal government.

See Sutton, 192 F.3d at 832 (“Congress acts under [the Enforcement Clause of the

Fourteenth Amendment] only when regulating the conduct of the states.”).

Defendants argue that even if Flores does not directly control the question

of RFRA’s constitutionality as applied to the federal government, the rationale of

the decision makes RFRA invalid in its entirety. Defendants rely on the Court’s

conclusion in Flores that “RFRA contradicts vital principles necessary to

maintain separation of powers and the federal balance,” arguing the same

concerns apply with equal force to RFRA as applied to the federal government.

Flores, 521 U.S. at 536.

Defendants’ attempt to extrapolate and rely on isolated language from the

Flores opinion is misguided. Although the Court did mention separation of

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powers concerns in Flores, this language must be read in the context of the entire

opinion and the question being considered. The Court was considering RFRA in

its application to the states. See id. at 516. Congress relied on its Fourteenth

Amendment enforcement power to apply RFRA to the states. See id. Congress’

enforcement power under the Fourteenth Amendment is limited to remedial or

preventive legislation that enforces the substantive provisions of the Fourteenth

Amendment. See id. at 519-20. The RFRA standard was so out of proportion to

any substantive constitutional violation that it could not be considered remedial or

preventive legislation. See id. at 532-34. Thus, the Supreme Court was

compelled to declare RFRA as applied to the states unconstitutional; a contrary

ruling would have effectively allowed Congress to “determine what constitutes a

constitutional violation.” Id. at 519. Such a result would, of course, “contradict[]

vital principles necessary to maintain separation of powers.” Id. at 536.

These separation of powers concerns the Court expressed in Flores,

however, do not apply to RFRA as applied to the federal government. Congress’

power to apply RFRA to the federal government comes not from its ability to

enforce the Fourteenth Amendment but rather from its Article I powers. See H.R.

Rep. No. 103-88, at 17 (1993) (“Finally, the Committee believes that Congress

has the constitutional authority to enact [RFRA]. Pursuant to Section 5 of the

Fourteenth Amendment and the Necessary and Proper Clause embodied in Article

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I, Section 8 of the Constitution, the legislative branch has been given the

authority to provide statutory protection for a constitutional value . . . .”). That

the RFRA standard for suits against the federal government is more protective

than what the Constitution requires does not make the statute unconstitutional:

“Congress has often provided statutory protection of individual liberties that

exceed the Supreme Court’s interpretation of constitutional protection.” In re

Young, 141 F.3d at 860; see also United States v. Marengo County Comm’n, 731

F.2d 1546, 1562 (11th Cir. 1984) (“[C]ongressional disapproval of a Supreme

Court decision does not impair the power of Congress to legislate a different

result, as long as Congress had that power in the first place.”). Thus, the

separation of powers concerns expressed in Flores do not render RFRA

unconstitutional as applied to the federal government. 4

Defendants maintain that even if RFRA as applied to the federal

government is constitutional, it can not be severed from the portion of RFRA

declared unconstitutional in Flores. It is well established that when a portion of a

statute is declared unconstitutional the constitutional portions of the statute are

4
Defendant’s do not challenge Congress’s Article I power to apply RFRA to
the federal government. Nor is it necessary in the resolution of this case to
consider Congress’s ability to use powers other than its enforcement power in the
Fourteenth Amendment to apply RFRA to the states in certain circumstances, as it
has recently done in the Religious Land Use and Institutionalized Persons Act of
2000, Pub. L. No. 106-274, 114 Stat. 803 (codified at 42 U.S.C. § 2000cc).

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presumed severable “[u]nless it is evident that the Legislature would not have

enacted those provisions which are within its power, independently of that which

is not.” I.N.S. v. Chadha, 462 U.S. 919, 931-32 (1983) (quotations omitted).

Defendants have presented no evidence that Congress intended RFRA to be

applied to the federal government only if it was also applied to state and local

governments. The invalid portion of RFRA does not alter the structure of RFRA,

it simply prevents the application of the statute to a certain class of defendants.

Thus, RFRA as applied to the federal government is severable from the portion of

RFRA declared unconstitutional in Flores, and independently remains applicable

to federal officials. See In re Young, 141 F.3d at 859 (reaching the same

conclusion); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“A

court should refrain from invalidating more of the statute than is necessary. . . .

Whenever an act of Congress contains unobjectionable provisions separable from

those found to be unconstitutional, it is the duty of this court to so declare, and to

maintain the act in so far as it is valid.” (quotations omitted)).

The district court also held that Plaintiff had not sufficiently demonstrated

“the restrictions he complains of place a substantial burden on his ability to

practice his faith.” Because this conclusion serves as an alternate basis for

affirming the district court’s ruling that Plaintiff had not demonstrated a

substantial likelihood of success on his RFRA claim, this court must also review

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that basis for legal error, clearly erroneous factual findings, or an abuse of

discretion.

RFRA provides that “[g]overnment shall not substantially burden a person’s

exercise of religion.” 42 U.S.C. § 2000bb-1(a). Thus, a plaintiff establishes a

prima facie claim under RFRA by proving the following three elements: (1) a

substantial burden imposed by the federal government on a (2) sincere (3)

exercise of religion. See id.; Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th

Cir. 1995) (noting that a plaintiff’s religious belief must be sincerely held). Since

the district court’s ruling, Congress has passed the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”), Pub. L. No. 106-274, 114

Stat. 803 (codified at 42 U.S.C. § 2000cc). In RLUIPA, Congress amended

certain provisions of RFRA, including the definition of “exercise of religion.”

See id. §§ 7(a)(3), 8(7)(a). The term “exercise of religion” was previously

defined in RFRA as “the exercise of religion under the First Amendment to the

Constitution.” See 42 U.S.C. § 2000bb-2(4) (1999). RLUIPA amended RFRA,

however, so that “exercise of religion” now means “religious exercise, as defined

in [42 U.S.C. §] 2000cc-5.” Id. § 2000bb-2(4). “[R]eligious exercise” is defined

in 42 U.S.C. § 2000cc-5(7)(A) to include “any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.”

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 Plaintiff does not claim the requested pastoral visits were required by his

religious beliefs. Under the definition of “religious exercise” in 42 U.S.C. §

2000cc-5(7)(A), however, a religious exercise need not be mandatory for it to be

protected under RFRA. 5 Plaintiff maintains that his desire to study Christianity

and practice Christian prayer necessitated visits by Christian pastors, and that

Reverend Rickard was particularly appropriate because of his experience as a

Christian missionary in Japan, Plaintiff’s native country. Pastoral visits of this

nature are protected activities under RFRA, particularly in light of the new

5
Defendants argue the judicial presumption against retroactive legislation
prevents consideration of the amendments to RFRA. See Landgraf v. USI Film
Prods., 511 U.S. 244, 265 (1994). This appeal arises from the district court’s
denial of Plaintiff’s motion for a preliminary injunction based primarily on the
conclusion that Plaintiff had not demonstrated a substantial likelihood of success
on the merits. Although Plaintiff does request compensatory and punitive
damages in his complaint, the primary relief requested is a permanent injunction
preventing Defendants from denying the pastoral visits. When the plaintiff’s
request for relief is a prospective injunction, application of new or amended
statutes is not a retroactive application of the law. See id. at 273-74; Adarand
Constructors, Inc. v. Slater, 228 F.3d 1147, 1158 (10th Cir. 2000). Indeed, this
court has a responsibility to consider the law currently in force when the plaintiff
seeks prospective relief. See Adarand, 228 F.3d at 1158 (“To ignore intervening
changes in the statutory and regulatory framework underlying this litigation would
be to shirk our responsibility to strictly scrutinize the real-world legal regime
against which Adarand seeks prospective relief.”). If Plaintiff demonstrates a
substantial likelihood of success on his injunctive claims, which must be
considered in light of the amendments to RFRA, he has demonstrated a
substantial likelihood of success on the merits of his claim, thus satisfying this
component of the preliminary injunction analysis.

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definition of “exercise of religion” adopted in RLUIPA. See id. § 2000cc-5(7)(A).

Because Plaintiff’s request for pastoral visits appear at this initial stage of

the litigation to be a protected religious exercise, and because Defendants do not

challenge the sincerity of Plaintiff’s religious beliefs, Plaintiff need only prove

that the denial of the pastoral visits was a “substantial burden” on his “exercise of

religion” in order to show a substantial likelihood of success on the RFRA claim.

Plaintiff has argued that the denial of pastoral visits from Reverend Rickard is a

“substantial burden” because Reverend Rickard is particularly well-suited to

provide religious assistance to Plaintiff. Reverend Rickard, Plaintiff explains, is

a Christian minister who is also familiar with the spiritual culture of Japan,

Plaintiff’s homeland. If Plaintiff is able to prove these allegations with

evidentiary support, he will have satisfied his prima facie burden to prove that the

denial of the visits was a “substantial burden” under RFRA, which adopts a

protective standard for prisoner religious rights. See generally 139 Cong. Rec.

S14,465 (daily ed. Oct. 27, 1993) (statement of Sen. Hatch) (“[E]xposure to

religion is the best hope we have for rehabilitation of a prisoner. Most prisoners,

like it or not, will eventually be returning to our communities. I want to see a

prisoner exposed to religion while in prison. We should accommodate efforts to

bring religion to prisoners.”); id. at S14,466 (statement of Sen. Dole) (“[I]f

religion can help just a handful of prison inmates get back on track, then the

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inconvenience of accommodating their religious beliefs is a very small price to

pay.”); id. (statement of Sen. Hatfield) (“Mr. Colson’s prison ministries group,

which has successfully rehabilitated many prisoners, has been denied access to

prisoners in Maryland . . . who did not identify themselves as [P]rotestants. . . .

[This is an] example[] of the need for us to pass this bill without this amendment

[which would exclude prisons from RFRA].”); cf. Ward v. Walsh, 1 F.3d 873, 878

(9th Cir. 1993) (finding that the opportunity to engage in private prayer was not

an adequate alternative to denial of access to an Orthodox Jewish rabbi, denial of

the ability to congregate with other Orthodox Jews for prayer and discussion, and

denial of a kosher diet). Plaintiff has not, however, submitted any evidence, in

the form of affidavits or otherwise, supporting his contention concerning the

particular attributes that make Reverend Rickard so well-suited for Plaintiff.

Thus, this issue must be remanded to allow Plaintiff an opportunity to provide

evidentiary support for his claim. 6

6
Although this opinion has referred solely to Reverend Rickard in
discussing Plaintiff’s desire to have pastoral visits by three former Christian
ministers who served in Japan as missionaries, the “substantial burden” analysis
requires a more precise discussion. Plaintiff would like pastoral visits from all
three ministers. Plaintiff has not, however, demonstrated how each of the
ministers could provide religious counseling unique from the others. Thus, at this
point, Plaintiff has advanced arguments that, if proven, would establish a right
under RFRA to visits from only one of the three ministers. Until Plaintiff
demonstrates an adequate justification for receiving visits from all three
ministers, there is not a “substantial burden” on Plaintiff’s “religious exercise” by
allowing Plaintiff to visit with only one of the three Christian ministers. Plaintiff

-23-
 Defendants argue that even if Plaintiff can establish a prima facie claim

under RFRA, the prison has a “compelling government interest” in denying the

requested pastoral visits. Once a plaintiff establishes a prima facie claim under

RFRA, the burden shifts to the government to demonstrate that “application of the

burden” to the claimant “is in furtherance of a compelling governmental interest”

and “is the least restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000bb-1(b). Although the Supreme Court in Turner

relaxed the government’s burden when a prisoner brings a free exercise claim

under the First Amendment, neither the text nor legislative history of RFRA

suggest that a relaxed standard applies to the government’s burden when a

prisoner makes a RFRA claim. See Jolly v. Coughlin, 76 F.3d 468, 475 (2d Cir.

1996) (“[T]he legislative history of RFRA makes clear that the compelling

interest test is to apply to free exercise claims by prison inmates.”); Douglas

Laycock, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev.

209, 239-43 (1994) (explaining how various amendments to RFRA that sought to

prevent prisoners from having a claim under RFRA or that would have lessened

the government’s burden under RFRA were considered and rejected). Thus, a

different analysis of the government’s burden is called for under RFRA as

opposed to a constitutional claim brought by a prisoner after Turner.

can attempt to make such a showing on remand.

-24-
 Under the Turner analysis, a court is to consider whether the prison

regulation is “reasonably related to legitimate penological interests.” Turner, 482

U.S. at 89. Under RFRA, however, a court is to consider whether the

“application of the burden” to the claimant “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000bb-1(b) (emphasis added).

Thus, under RFRA, a court does not consider the prison regulation in its general

application, but rather considers whether there is a compelling government

reason, advanced in the least restrictive means, to apply the prison regulation to

the individual claimant.

This is not to say, however, that prison officials do not have a compelling

interest under RFRA in maintaining institutional safety and order. See 139 Cong.

Rec. S14,468 (daily ed. Oct. 27, 1993) (statement of Sen. Hatch) (“Prison

officials clearly have a compelling interest in maintaining order, safety, security,

and discipline.”). Defendants argue compelling security concerns involving

Plaintiff justify the application of the prison regulations to Plaintiff. Although

the district court analyzed the prison regulations under the Turner test, it did not

consider the more demanding analysis of government interests required by RFRA.

In addition, although Defendants have addressed this argument, Plaintiff has not

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been afforded an opportunity to respond to Defendants’ argument. 7 It would thus

not be proper for this court to consider whether Defendants have met their

“compelling interest” burden under RFRA. The resolution of this issue, if

necessary, is remanded to the district court.

3. Equal Protection Claim

The district court determined that Plaintiff had not demonstrated a

substantial likelihood of success on the merits of his Equal Protection Claim.

Plaintiff has made no argument on appeal to convince this court that the district

court made clearly erroneous factual findings, abused its discretion, or legally

erred in arriving at this conclusion.

4. Qualified Immunity

Defendants assert Plaintiff cannot demonstrate a substantial likelihood of

success on any of his claims because they are entitled to qualified immunity.

Qualified immunity, however, does not apply to claims for equitable relief. See

Cannon v. City & County of Denver, 998 F.2d 867, 876 (10th Cir. 1993). The

primary relief Plaintiff requests is a permanent injunction preventing Defendants

from denying the pastoral visits. If Plaintiff is able to demonstrate a substantial

7
Defendants made this argument in their supplemental briefs addressing the
amendments to RFRA by RLUIPA. Because these briefs were submitted
simultaneously, Plaintiffs has not had an opportunity to respond to this argument.
See Kikumura v. Hurley, No. 99-2184 (10th Cir., order filed Oct. 27, 2000).

-26-
likelihood of success on his RFRA claim for injunctive relief, to which qualified

immunity does not apply, he will have satisfied this component of the preliminary

injunction analysis.

C. Irreparable Injury

The district court further held that “there is no indication that Mr.

Kikumura will suffer irreparable injury absent an injunction.” A plaintiff suffers

irreparable injury when the court would be unable to grant an effective monetary

remedy after a full trial because such damages would be inadequate or difficult to

ascertain. See Tri-State Generation & Transmission Assoc., Inc., v. Shoshone

River Power, Inc., 874 F.2d 1346, 1354 (10th Cir. 1989). Plaintiff claims he will

be irreparably harmed because monetary relief will not properly redress previous

denials of the pastoral visits. “When an alleged constitutional right is involved,

most courts hold that no further showing of irreparable injury is necessary.” 11A

Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed.

1995). Similarly, courts have held that a plaintiff satisfies the irreparable harm

analysis by alleging a violation of RFRA. See Jolly, 76 F.3d at 482 (“[A]lthough

the plaintiff’s free exercise claim is statutory rather than constitutional, the denial

of the plaintiff’s right to the free exercise of his religious beliefs is a harm that

cannot be adequately compensated monetarily.”); cf. Atchison, Topeka & Santa Fe

Ry. Co. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981) (“When the evidence

-27-
shows that the defendants are engaged in, or about to be engaged in, the act or

practices prohibited by a statute which provides for injunctive relief to prevent

such violations, irreparable harm to the plaintiffs need not be shown.”). Because

the relief available to Plaintiff after trial would not adequately compensate him

for the alleged violations of his religious rights, the district court committed legal

error in holding Plaintiff had not satisfied the irreparable injury prong of the

preliminary injunction analysis.

D. Balancing of the Injuries/Public Interest

The district court did not discuss the third and fourth prongs of the

preliminary injunction test. This court therefore has no occasion to examine these

issues, and leaves their resolution, if necessary, to the district court on remand.

IV. CONCLUSION

For the reasons stated above, this court affirms in part, reverses in part,

and remands to the district court for further proceedings consistent with this

opinion.

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No. 99-1284, Kikumura v. Hurley

HOLLOWAY, Circuit Judge, concurring and dissenting:

I am in agreement with much of the Majority Opinion concerning the

Religious Freedom Restoration Act (RFRA). In particular, I agree with that

opinion that the district court was in error in stating that RFRA had been declared

unconstitutional by City of Boerne v. Flores, 521 U.S. 507 (1997). Flores did not

determine the constitutionality of the RFRA as applied to the federal government;

the Court there decided that Congress exceeded its power to enforce the

Fourteenth Amendment as applied to the States. Moreover, I agree with the

Majority Opinion that RFRA is constitutional as applied to the federal

government, and that such portion of the statute can and should be severed from

the portion of RFRA declared unconstitutional in Flores. Therefore I am in

agreement that we should apply the requirement of RFRA that “Government shall

not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-

1(a). I further agree with the Majority Opinion in remanding the RFRA claim, as

discussed below.

However, I am unable to join the analysis of the Majority Opinion

concerning the First Amendment free exercise claim of Plaintiff Kikumura. As

recognized in Turner v. Safley, 482 U.S. 78, 89 (1987), protective measures for

security in the prison context must be “reasonably related to legitimate

penological interests.” I have a fundamental difference with the Majority Opinion
concerning application of the Regulation in question here, 28 C.F.R. § 548.19.

My concern is that the Regulation imposes a strict limitation on pastoral visits to

those from clergy or representatives of an inmate’s one declared faith. That to me

is an impermissible restriction because it is not “reasonably related to legitimate

penological interests.” Turner, 428 U.S. at 89.

Therefore, I cannot agree to uphold the regulation banning all pastoral

visitors of other faiths. Holding such a broad ban invalid under the Turner

standard as not reasonably related to legitimate penological interests does not

violate the teaching of O’Lone v. Shabazz, 482 U.S. 342, 353 (1987), not to

substitute our judgment on institutional administration for that of “those charged

with the formidable task of running a prison.”

The Majority Opinion correctly notes that among the factors identified by

the Supreme Court for determining whether a regulation is reasonably related to a

legitimate penological interest is whether there are obvious alternatives to the

prison’s regulation. Turner, 482 U.S. at 91. I believe that in this case such

obvious alternatives are readily available to the Defendants; if the Defendants are

troubled by the number of religious visits sought, or by information about the

persons seeking to contact inmates as clergy visitors, there are obvious,

reasonable alternative measures which can afford straightforward protections.

For instance, the Defendants can limit the number and frequency of pastoral visits

-2-
to those which the inmate favors or the Defendants can limit the number and

frequency of visits to levels they deem reasonable to maintain security.

Additionally, the clergy seeking to make pastoral visits can be scrutinized for any

potentiality of danger. Indeed, the Regulation itself notes the availability of such

protective measures by providing in § 548.19(a) that the “chaplain may request a

NCIC check and documentation of such clergyperson’s or faith group

representative’s credentials.”

Here, instead of using these recognized alternatives, the Defendants’ policy

is to impose a general ban on pastoral visitors not qualifying as representatives of

the inmate’s one declared faith. That broad ban reflects an “undifferentiated fear

or apprehension” without any evidentiary background for the imagined threat. Cf.

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969)

(invalidating student arm band prohibition based on “undifferentiated fear or

apprehension” of disturbance as not sufficient to overcome First Amendment

freedom of expression).

I find no vice in a requirement that an inmate identify the faith with which

he is affiliated as part of the procedure to request pastoral visits. Thus I do not

suggest striking down that requirement. My objection is with what follows – the

unjustified use of that identification of the inmate’s faith as a means of restricting

to that one faith those from whom pastoral visits or counseling is permitted and

-3-
the banning of all other pastoral visitors. Where, as here, the enrichment of other

religious support is desired, the restriction prohibiting such support makes no

sense in light of “the existence of obvious easy alternatives” which serve the same

security interests suggested by the Defendants and which the Supreme Court has

determined “may be evidence that the regulation is not reasonable, but is an

‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at 90.

Turner teaches that:

if an inmate claimant can point to an alternative that
fully accommodates the prisoner’s rights at de minimis
cost to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy the
reasonable relationship standard.

482 U.S. at 91; see also Lile v. McKune, 224 F.3d 1175, 1191 (10th Cir. 2000)

(stating that a court should look , inter alia, to “whether there are obvious, easy-

to-implement alternatives that would accommodate the prisoner’s right at little

cost to valid penological interests”); Abu-Jamal v. Price, 154 F.3d 128, 135 (3d

Cir. 1998) (holding defendant was “likely to show that the Department’s

discriminatory application of the business or profession rule to his writing is an

exaggerated response to the Department’s security objectives because there are

obvious easy alternatives to address the Department’s concerns”); Mauro v.

Arpaio, 147 F.3d 1137, 1144 (9th Cir. 1998) (“The availability of ‘obvious, easy’

alternatives that could be implemented at a ‘de minimis’ cost [weighs] against the

-4-
reasonableness of a regulation.”); Thomas v. Gunter, 32 F.3d 1258, 1260 (8th Cir.

1994); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (“We emphasize

that the fourth Turner factor is not a ‘least restrictive alternative” test, but rather

it allows an inmate to point to an alternative that fully accommodates the

prisoners’ rights at de minimis cost to valid penological interests as evidence that

a restriction is not reasonable.”).

This circuit’s opinion in Mann v. Reynolds, 46 F.3d 1055 (10th Cir. 1995),

is instructive. It concerned a challenge brought by state inmates to a prison

regulation prohibiting death row and maximum security prisoners from having

“barrier-free or contact visits” with counsel, on the ground that it violates the

inmate’s rights under the Sixth and Fourteenth Amendments. Id. at 1056.

Applying the four-factor Turner test, this court found “a lack of rationality in the

denial of contact visits between Inmates and their counsel” since the prison

allowed those same inmates “unfettered personal contact with virtually all those

with whom they interact except their lawyers.” Id. at 1060. We declared:

Thus, we find it disturbing in the Turner context the defendants have
not provided an explanation why they have singled out attorneys for
the restricted contact. Aside from the isolated occasions when
cigarettes, chewing gum, pens, and paper clips have been unwittingly
passed by uninitiated lawyers to Inmates, defendants were unable to
provide any evidence the restrictions on contact were reasonably
related to prison security. When this default is coupled with the
overlay of the “blanket adversarial” attitude of the defendants
specifically towards OIDS attorneys and the lack of restriction on
contact between Inmates and others, Turner suggests the limitation

-5-
 on contacts between lawyers and clients is not related to a legitimate
penological interest.

Id. at 1060-61 (emphasis added). Likewise here the Defendants have not

provided evidence that pastoral visitors who are not of the same one declared

faith as the Plaintiff present any threat to prison security because of their faith.

As noted, other concerns about those pastors as a security threat are fully

addressed by other measures.

Accordingly, I must dissent from the Majority Opinion’s holding that

Plaintiff Kikumura has not demonstrated a substantial likelihood of success on his

First Amendment claim; but, as noted, I agree with the Majority Opinion that

Plaintiff should have an opportunity to prove his allegations that Reverend

Rickard is well suited to provide religious assistance to Plaintiff and to consider

the Defendants’ showing on security interests under the standard imposed on the

Government under RFRA. 1

Turning to Plaintiff Kikumura’s RFRA claim, I am in agreement with the

analysis and disposition made in the Majority Opinion. It notes that RFRA

provides that “Government shall not substantially burden a person’s exercise of

1
I am mindful that if the Plaintiff prevails on his First Amendment free
exercise claim it may not be necessary to go further to consider his RFRA claim.
By the enactment of RFRA Congress has extended enlarged protection for the free
exercise of religion. Not being in the majority, it seems proper to me to state my
views on both the First Amendment claim and the statutory RFRA claim.

-6-
religion.” 42 U.S.C. § 2000bb-1(a). It also notes the passage of the Religious

Land Use and Institutionalized Persons Act of 2000, codified at 42 U.S.C. §

2000cc. The latter statute amended the RFRA and its definition of “exercise of

religion” so that the term now means “any exercise of religion, whether or not

compelled by, or central to a system of religious belief.” I join the Majority

Opinion in remanding the RFRA issue to allow the Plaintiff Kikumura an

opportunity to provide evidentiary support for his RFRA claim. If Plaintiff is

able to prove his allegations that Reverend Rickard is well suited to provide

religious assistance to Plaintiff, he will have shown a basis for his claim that

denial of pastoral visitation by Reverend Rickard is a substantial burden to

Plaintiff’s exercise of religion. I am agreeable to the remand for this purpose and

so that the Defendants may present any showing they may have on security issues

which they claim to be involved.

There remain the issues of the Plaintiff Kikumura’s claim of infringement

of his equal protection rights and the Defendants’ qualified immunity defense. I

join the Majority Opinion in holding that Plaintiff has not demonstrated a

substantial likelihood of success on his equal protection argument, and in the

holding that the qualified immunity defense does not apply to claims for equitable

relief.

-7-
No. 99-1284, Kikumura v. Hurley

EBEL, Circuit Judge, concurring:

I am in general agreement with the majority opinion. I write separately only

to express my disagreement with the majority’s conclusion that “[i]f Plaintiff is

able to prove these allegations with evidentiary support, he will have satisfied his

prima facie burden to prove that the denial of the visits was a ‘substantial burden’

under RFRA.” Slip op., supra, at 22 (emphasis added).

Whether a regulation operates as a substantial burden on a person’s

exercise of religion is a factual question. I am not prepared to say, on the skeletal

record before us, that the pastoral-visit regulations constitute a substantial burden

in this case. Plaintiff has explained that Reverend Rickard’s familiarity with

Japan and Japanese spiritual practices makes him a particularly appropriate choice

as Plaintiff’s pastor. However, the record does not establish why other Christian

ministers would not be adequate in the absence of knowledge of Japanese

practices nor does the record establish whether the Defendants would grant

Plaintiff pastoral access to other ministers whose counseling would be

substantially similar to that offered by the ministers Plaintiff has requested. In

short, the record does not yet establish that it would be a “substantial burden” to

Plaintiff’s religious exercise if he were required to resort to Christian counseling

from ministers other than Reverend Rickard and the other registered ministers.
 Because this is an intrinsically fact-based question, and there has been no

opportunity for the parties to develop these facts, I believe it is inappropriate for

us to rule on the issue as a matter of law at this time. We cannot determine what

would be a substantial burden without the benefit of seeing a full record. Since

we are remanding anyway for a balancing analysis, I would also remand to the

district court for it to determine whether there is a substantial burden in the first

instance, without prejudging the issue.

-2-