FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2013
Elisabeth A. Shumaker
Clerk of Court
WAHIID MUJAHEED ALAMIIN,
Plaintiff-Appellant,
v. No. 12-6153
(D.C. No. 5:08-CV-01371-F)
DEBBIE MORTON, (W.D. Okla.)
Defendant-Appellee,
and
RICHARD TINKER, Chaplain; EDWIN
CARNS; MELISSA HALVORSON;
DAVID MILLER, LEO BROWN,
Defendants.
ORDER AND JUDGMENT*
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit
Judge.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Wahiid Mujaheed AlAmiin, a Muslim prisoner in the custody of the Oklahoma
Department of Corrections (ODOC), appeals the district court’s judgment in favor of
ODOC employee Debbie Morton on two claims under the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc-1(a),
2000cc-2. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
A. Legal Background
RLUIPA prohibits a government from “impos[ing] a substantial burden on the
religious exercise” of a prisoner “unless the government demonstrates that imposition
of the burden on that person . . . (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). Accordingly, a prisoner bringing a
RLUIPA claim “must demonstrate he wishes to engage in (1) a religious exercise
(2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial
burden imposed by the government.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312
(10th Cir. 2010). Once the prisoner has satisfied this requirement, “the burden of
proof shifts to the defendants to show the substantial burden results from a
‘compelling governmental interest’ and that the government has employed the ‘least
restrictive means’ of accomplishing its interest.” Id. at 1318.
-2-
B. Factual Background
Mr. AlAmiin is incarcerated at Lawton Correctional Facility (LCF), a private
correctional facility that contracts with ODOC. Ms. Morton, as the ODOC Director’s
designee to the Administrative Review Authority, enforced ODOC policy in handling
numerous grievances filed by Mr. AlAmiin.
This appeal concerns two requests arising from Mr. AlAmiin’s practice of
Islam. First, he requested a halal or a kosher diet, which was denied because ODOC
did not provide a halal meal option and allowed only Jewish, Messianic Jewish, and
House of Yahweh prisoners to request a kosher diet. Second, he requested the ability
to possess prayer oil in his cell and on his person. This request was denied because
ODOC policy limits prisoners’ possession of religious perfumes and oils to a small
vial to be kept and used only in the designated communal area for worship and
storage. When Mr. AlAmiin sued, among other claims, he alleged that Ms. Morton’s
enforcement of ODOC’s halal-meal and prayer-oil policies imposed a substantial
burden on his religious exercise in violation of RLUIPA.
During the litigation, ODOC adopted a halal-meal option for Muslim inmates.
In addition, pursuant to a settlement agreement between Mr. AlAmiin and other
defendants in the litigation, the district court entered an injunction requiring that
while he is housed at LCF, Mr. AlAmiin shall be served a halal diet that is prepared
and served in conformance with ODOC’s policy regarding kosher meal preparation
and service. Ms. Morton contended that these developments mooted the halal-meal
-3-
claim. In response, Mr. AlAmiin disputed the adequacy of the handling and
preparation procedures set forth in the new halal-meal policy. The district court
agreed with Ms. Morton and dismissed the halal-meal claim against her as moot. It
also held that to the extent that Mr. AlAmiin claimed the new policy was insufficient,
he would have to exhaust his administrative remedies before pursuing litigation.
The prayer-oil claim proceeded to summary judgment. The district court
concluded that the undisputed facts established that ODOC’s restriction on in-cell
and personal possession of prayer oil served a compelling governmental interest in
maintaining prison security and represented the least restrictive means of furthering
that interest. Accordingly, the district court entered judgment for Ms. Morton on the
prayer-oil claim.
Analysis
A. Halal-Meal Claim
Mr. AlAmiin argues that despite the adoption of the halal-meal policy and the
entry of the injunction, the halal-meal claim against Ms. Morton should be allowed to
proceed. Having reviewed the issue of mootness de novo, see Faustin v. City &
Cnty. of Denver, 268 F.3d 942, 947 (10th Cir. 2001), we affirm the dismissal.
“Article III delimits the jurisdiction of federal courts, allowing us to consider
only actual cases or controversies.” Abdulhaseeb, 600 F.3d at 1311 (internal
quotation marks omitted). “The crucial question is whether granting a present
determination of the issues offered will have some effect in the real world.”
-4-
Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (internal
quotation marks omitted).
The only relief available to Mr. AlAmiin under RLUIPA is injunctive relief
against Ms. Morton in her official capacity. See Sossamon v. Texas, 131 S. Ct. 1651,
1663 (2011) (holding that states have not waived their sovereign immunity against
suits for money damages under RLUIPA); Stewart v. Beach, 701 F.3d 1322, 1335
(10th Cir. 2012) (“[T]here is no cause of action under RLUIPA for
individual-capacity claims.”). But the policy underlying the denial of his halal-meal
requests has been amended, and thanks to the injunction entered in his favor against
other defendants in this litigation, Mr. AlAmiin now has what he originally sought—
LCF will provide him with halal meals that are prepared and served according to
kosher standards. Given that the burden on Mr. AlAmiin’s religious exercise has
been lifted, and the only available relief against Ms. Morton is prospective, there is
nothing to be gained in the real world by continuing to litigate the halal-meal claim.1
See, e.g., 42 U.S.C. § 2000cc-3(e) (providing that “[a] government may avoid the
preemptive force” of RLUIPA by eliminating the substantial burden imposed by a
policy or practice, including “by changing the policy or practice” or “by providing
exemptions from the policy or practice”); U.S. Dep’t of Agric., 414 F.3d at 1212 (“By
1
Although Mr. AlAmiin notes that it is within ODOC’s power to transfer him
away from LCF, it is speculative whether he would be transferred or whether he
would then receive a diet that would substantially burden his religious exercise.
Further, claims based on any such events would have to be administratively
exhausted before being litigated. See 42 U.S.C. § 1997e(a).
-5-
eliminating the issues upon which this case is based, adoption of the new rule has
rendered the appeal moot.”).
Moreover, even if the claim were not moot, it still could not proceed in this
litigation. As the district court recognized, Mr. AlAmiin’s current contentions, which
focus on the suitability of ODOC’s new halal-meal policy, are qualitatively different
than the issues he administratively exhausted, which concerned ODOC’s flat denial
of his request for a halal or a kosher diet. Before challenging the adequacy of the
new halal-meal policy through litigation, Mr. AlAmiin must exhaust his
administrative remedies. See 42 U.S.C. § 1997e(a).
B. Prayer-Oil Claim
Mr. AlAmiin asserted that ODOC’s policy regarding prayer oils substantially
burdens his ability to pray, as his beliefs require that he purify and anoint himself
with oil before each of the five daily prayers required of Muslims. Ms. Morton did
not challenge his showing of substantial burden, but instead argued that ODOC’s
prayer-oil policy is the least restrictive means of achieving a compelling
governmental interest. The district court agreed with Ms. Morton. We review the
grant of summary judgment de novo. Abdulhaseeb, 600 F.3d at 1311.
Compelling Governmental Interest
Ms. Morton identified four interests in restricting the use and possession of
prayer oils, all having to do with prison security: (1) scented oil masks the scent of
drugs and contraband; (2) oil facilitates sexual activity; (3) oil makes it more difficult
-6-
to physically control inmates because they may coat themselves and cell surfaces
with it; and (4) oil is used as a bartering item with inmates unable to purchase it. On
appeal, Mr. AlAmiin argues that there are genuine issues of material fact regarding
the legitimacy of these security concerns. Particularly, he points out that ODOC
allows in-cell possession of up to fourteen ounces of baby oil, which can also be used
to engage in the behaviors that ODOC identifies. We need not consider all of
Ms. Morton’s proffered rationales, however, because at the very least, the record
supports the rationale that the prayer-oil policy serves the compelling governmental
interest of enhancing prison security through minimizing contraband.
Ms. Morton presented evidence that ODOC performed tests using prayer oils
obtained from an ODOC-approved provider and ODOC drug dogs, and that in the
tests the oils hampered the dogs’ ability to detect drugs. An affidavit from ODOC’s
Deputy Director of Institutions Ken Klingler averred that the “use of drug dogs is a
vital tool” to ODOC because “[t]he ingenuity of inmates to find places and ways to
hide contraband is nearly beyond comprehension to those outside of DOC” and
“[w]ithout the effective use of drug dogs, drugs would go undetected.” Aplt. App.
Vol. 2 at 645. All of this evidence indicates that in banning in-cell possession of
prayer oils ODOC acted on facts, rather than “mere speculation, exaggerated fears, or
post-hoc rationalizations,” Abdulhaseeb, 600 F.3d at 1318 (internal quotation marks
omitted), and requires the conclusion that ODOC’s policy banning in-cell possession
of prayer oil furthers a compelling governmental interest. See also Hammons v.
-7-
Saffle, 348 F.3d 1250, 1255 (10th Cir. 2003) (holding, in First Amendment challenge
to ODOC’s in-cell ban on prayer oils, that “allowing inmates to purchase the oils but
to only possess them outside their cells in designated, supervised areas did further
appellees’ penological interests”). Given the context-specific nature of ODOC’s
drug-dog tests and the deference the federal courts must accord prison administration
in matters of prison security, see Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005),
Mr. AlAmiin’s more generalized evidence regarding drug dogs’ ability to distinguish
between scents does not create a genuine issue of material fact as to Oklahoma’s
compelling interest.
Mr. AlAmiin also contends that Ms. Morton did not “make any kind of
individualized showing of a compelling interest in applying the on-person prayer oil
ban to [him].” Aplt. Br. at 20. See Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.
2001) (“[U]nder RFRA [the Religious Freedom Restoration Act, which contains the
same compelling-interest test as RLUIPA], 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.”). To the contrary, Ms. Morton
presented evidence that it would be infeasible for ODOC to allow selective on-person
or in-cell possession of prayer oils. Mr. Klingler’s affidavit averred that the very
presence of oils in the inmate population creates the risk of bartering and increases
the chances of violence, with inmates forcibly taking other inmates’ oils. Moreover,
-8-
Mr. Klingler stated that there is a risk that inmates might stockpile small amounts of
oil to amass a larger quantity. In all of these situations, inmates in possession of oils
could then use them in an effort to stymy drug dogs.
Least Restrictive Means
As with the compelling-interest element, Mr. AlAmiin argues that Ms. Morton
did not sufficiently show that ODOC made an individualized assessment that
applying the general policy to him was the least restrictive means of achieving the
government’s interest. See Kikumura, 242 F.3d at 962. As discussed, however,
Ms. Morton presented sufficient evidence of the infeasibility of allowing only certain
inmates to possess prayer oils on their persons and in their cells.
Mr. AlAmiin also points out that California prisons have allowed in-cell
possession of as much as twelve ounces of prayer oil. See Lewis v. Ollison,
571 F. Supp. 2d 1162, 1172 (C.D. Cal. 2008) (concluding that rule limiting prisoner
to in-cell possession of twelve ounces of prayer oil was not substantial burden on
prisoner’s religious exercise). The record lacks any evidence regarding California’s
regulations, however, and the mere fact that California has allowed in-cell possession
of prayer oil does not necessarily mean that Oklahoma’s decision to restrict in-cell
possession cannot qualify as the least restrictive means to achieve its interest.
Finally, Mr. AlAmiin argues that Ms. Morton did not demonstrate that ODOC
considered whether less-restrictive policies would adequately further its interest in
security. In the district court, he suggested two potential alternatives that would be
-9-
less restrictive: (1) allowing the in-cell possession of unscented prayer oil; or
(2) allowing him access to his stored prayer oil before prayers five times a day.2 In
analogous circumstances under the Religious Freedom Restoration Act, we have held
that “the government’s burden is two-fold: it must support its choice of regulation,
and it must refute the alternative schemes offered by the challenger, but it must do
both through the evidence presented in the record.” United States v. Wilgus,
638 F.3d 1274, 1289 (10th Cir. 2011).
[W]e have an obligation to ensure that the record supports the
conclusion that the government’s chosen method of regulation is least
restrictive and that none of the proffered alternative schemes would be
less restrictive while still satisfactorily advancing the compelling
governmental interests. Therefore, we review the evidence adduced by
the district court as part of our de novo consideration of whether the
[state’s policy or] regulations are the least restrictive means of
forwarding the government’s compelling interests.
Id.
As discussed above, the record evidence supports ODOC’s choice of policy.
Similarly, it defeats Mr. AlAmiin’s proffered alternatives.
Regarding the unscented-oil suggestion, it is unclear that Mr. AlAmiin ever
actually sought to possess unscented oils; the record indicates that his grievances and
his Amended Complaint concerned scented oils. Further, there is no record evidence
2
In the conclusion to his appellate brief, Mr. AlAmiin also suggests that he be
allowed to mix minute quantities of scented oil with unscented substances such as
water or unscented oil. We do not consider this alternative because it is raised for the
first time on appeal. See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc.,
413 F.3d 1163, 1167 (10th Cir. 2005).
- 10 -
that ODOC’s approved prayer-oil providers offer unscented oils. And regarding the
alternative of providing access to the communal area before each daily prayer, the
evidence shows that ODOC has limited staffing resources that are stretched with
every additional duty and that ODOC depends heavily on volunteers to staff religious
programs. Given these prison realities, it is not practical to expect ODOC to provide
Mr. AlAmiin timely access to the communal worship area five times per day, every
day. See also Hammons, 348 F.3d at 1256-57 (“[A]ccommodating [prisoner’s] need
to access his prayer oils five times per day would likely have heavily burdened prison
resources and other inmates’ religious interests.”).
Conclusion
Mr. AlAmiin’s motion for leave to proceed without prepayment of costs and
fees is granted. Mr. AlAmiin is reminded that he is obligated to continue making
partial payments until the entire obligation is paid. Ms. Morton’s motion and
amended motion to strike are denied. The judgment of the district court is affirmed.
Entered for the Court
Wade Brorby
Senior Circuit Judge
- 11 -