FILED
United States Court of Appeals
Tenth Circuit
June 17, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MICHAEL D. LOWERY,
Plaintiff - Appellant,
No. 12-7076
v. (D.C. No. 09-CV-00286-RAW-SPS)
(E.D. Okla.)
DREW EDMONDSON; JUSTIN
JONES; DEBBIE L. MORTON; LEO
BROWN,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges. **
Plaintiff-Appellant Michael D. Lowery, along with two other inmates, filed
a civil rights complaint pro se pursuant to 42 U.S.C. § 1983 and the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc–2000cc-5. The inmates alleged that Defendants-Appellees Drew
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Edmondson, former Attorney General for the State of Oklahoma, and Justin
Jones, Debbie Morton, and Leo Brown, three Oklahoma Department of
Corrections (ODOC) officials, violated their rights to free exercise of religion and
equal protection under the First and Fourteenth Amendments and RLUIPA. Mr.
Lowery appeals the court’s dismissal of his complaint. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
Background
Mr. Lowery, an inmate and member of the Moorish Science Temple of
America Inc., challenges an ODOC policy that prevents him from storing his fez,
a type of religious headgear, in his cell. I R. 23–40. The ODOC policy provides
that religious “[h]eadgear must lay flat upon the head.” Id. at 153. Mr. Lowery’s
fez stands five inches above his head. Id. at 30. Thus, Mr. Lowery must store his
fez in the chaplain’s office, where he may retrieve it before prayer. Id. at 31.
On July 21, 2009, the inmates filed their complaint seeking injunctive relief
and damages. Id. at 23–40. They requested appointment of counsel and class
action certification, both of which were denied. Lowery v. Edmondson, No. CIV
09-286-RAW-SPS, 2009 WL 2212389, at *1 (E.D. Okla. July 23, 2009). This
court declined review of the lower court’s interlocutory order. I R. 98–99.
Defendants moved to dismiss or in the alternative for summary judgment.
Id. at 241–52. Plaintiffs opposed the motion and sought discovery under Fed. R.
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Civ. P. 56(d). 1 Id. at 424–33. The court denied the request, and dismissed the co-
plaintiffs’ claims for failure to exhaust administrative remedies and dismissed Mr.
Lowery’s claims with the exception of his claim arising under 42 U.S.C. § 1983
regarding his keeping a fez in his cell and wearing it for religious services.
Lowery v. Edmondson, No. CIV 09-286-RAW-SPS, 2011 WL 1226991, at *3
(E.D. Okla. Mar. 29, 2011). Defendants filed a second motion to dismiss or for
summary judgment, and on September 27, 2012, the court granted the motion and
entered judgment in favor of Defendants. Lowery v. Edmondson, No. CIV 09-
286-RAW-SPS, 2012 WL 4481456, at *2 (E.D. Okla. Sept. 27, 2012); I R. 1083.
On October 25, 2012, Mr. Lowery filed a notice of appeal. I R. 1084.
Then, on November 19, 2012, he filed a motion to alter or amend, which the court
denied. Id. at 1085–91; Doc. 164. Mr. Lowery’s co-plaintiffs have not appealed.
Discussion
Mr. Lowery raises four arguments on appeal. He challenges: (1) dismissal
of his complaint for failure to allege personal participation; (2) denial of his
motion for class certification; (3) dismissal of his co-plaintiffs’ claims for failure
to exhaust administrative remedies; and (4) denial of his request for discovery. 2
1
Formerly Rule 56(f).
2
On points two through four, Mr. Lowery purports to appeal the denial of
his motion to alter or amend as well. Aplt. Br. 13, 17, 20. But he filed a notice
of appeal before the court denied this motion and has not filed an amended notice
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Mr. Lowery first argues the district court erred in dismissing his complaint
for lack of personal participation. Aplt. Br. 6–12. We review de novo the court’s
decision under Rule 12(b)(6). Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir.
2013). Because Mr. Lowery is pro se, we construe his pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). However, pro se status
“does not relieve the plaintiff of the burden of alleging sufficient facts on which a
recognized legal claim could be based. . . . [C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can
be based.” Fogle v. Pierson, 435 F.3d 1252, 1263 n.7 (10th Cir. 2006) (quotation
omitted).
According to the district court, Mr. Lowery failed to allege that Defendants
“personally participated in not allowing him to keep his fez in his cell or wear it
for religious services.” Lowery, 2012 WL 4481456, at *2. “[P]ersonal
participation in the specific constitutional violation complained of is essential.”
Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (citation omitted). Mr.
Lowery sued Drew Edmondson (former Attorney General for the State of
Oklahoma), Justin Jones (Director for the ODOC), Debbie Morton (Director
Designee for the ODOC), and Leo Brown (Religious Coordinator for the ODOC).
However, he insufficiently pleads personal involvement. First, he identifies no
of appeal. See I R. 1084; Doc. 164. We thus lack jurisdiction to consider the
motion to alter or amend. See Fed. R. App. P. 4(a)(4)(B)(ii).
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actions on the part of Edmondson or Jones that infringed upon his rights. Second,
we have previously held that the mere denial of a grievance, which Morton
allegedly did, is inadequate for personal participation. See Stewart v. Beach, 701
F.3d 1322, 1328 (10th Cir. 2012). And third, his allegation that Brown and Jones
are Masons, which explains their dislike of Mr. Lowery’s religion, is conclusory
at best. To the extent Mr. Lowery sought to challenge a prison policy, he had the
burden to name and explain the various defendants’ involvement, if only as
policymakers, see, e.g., Lovelace v. Lee, 472 F.3d 174, 193 (4th Cir. 2006)
(allowing a RLUIPA claim to proceed against the warden); this he has not done. 3
Mr. Lowery next contends the court erred in denying his motion for class
certification. Aplt. Br. 13. “We review the standard the district court used in
making its Rule 23 determination de novo and the merits of that determination for
an abuse of discretion.” DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194
(10th Cir. 2010) (quotation omitted). The court denied certification because
plaintiffs, appearing pro se, could not “fairly and adequately protect the interests
of the class.” Lowery, 2009 WL 2212389, at *1 (citing Fed. R. Civ. P. 23(a)(4)).
Such a ruling is consistent with our practice of not certifying pro se class actions.
See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)
3
It appears that Mr. Lowery named the Assistant Warden/Religious
Director of the institution in his initial complaint but later dismissed him because
he was no longer employed there and had no role in crafting or enforcing the
policy. See I R. 15; 387–88.
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(“[T]he competence of a layman is clearly too limited to allow him to risk the
rights of others.” (quotation omitted)). And upon finding one certification
requirement unmet, the court was under no obligation to discuss the others. See
Tabor v. Hilti, Inc., 703 F.3d 1206, 1228 (10th Cir. 2013).
Third, Mr. Lowery alleges the court abused its discretion in dismissing his
co-plaintiffs’ claims for failure to exhaust administrative remedies. Aplt. Br.
17–20. Neither co-plaintiff has filed a notice of appeal or brief in this case. And
Mr. Lowery, who is not an attorney, cannot raise claims on their behalf. See
Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986) (“The general rule . . . is
that a plaintiff must assert his own constitutional rights.”). We thus reject Mr.
Lowery’s third point.
Finally, Mr. Lowery appeals the denial of his request for discovery under
Fed. R. Civ. P. 56(d). We review the court’s decision for abuse of discretion.
Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006). The court denied Mr.
Lowery’s request because “most of the claims about which he asks to conduct
discovery were not exhausted, pursuant to 42 U.S.C. § 1997e(a).” Doc. 103. Our
review confirms that Mr. Lowery’s request for discovery focused on an alleged
conspiracy, but he failed to raise such allegations in his administrative grievance.
Thus, the claims were unexhausted, and the court did not abuse its discretion.
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We DENY IFP status and DISMISS the appeal. We remind Mr. Lowery
that he should make immediate payment on the unpaid balance due.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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