PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

STURGEON STEWART, Plaintiff-Appellant,

v. (FNU) BEACH; (FNU) WILSON, Officers, El Dorado Correctional Facility, in their individual capacities; RAY ROBERTS, Warden, El Dorado Correctional Facility, in his individual capacity, Defendants-Appellees. No. 12-3013

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 5:08-CV-03295-JAR-KGG)

Submitted on the briefs: * Holly A. Dyer, Daniel J. Buller, of F oulston Siefkin LLP, Wichita, Kansas, for Plaintiff-Appellant. Steven R. Fabert, Assistant Attorn ey General, Topeka, Kansas, for Defendants-Appellees.

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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. FILED United States Court of Appeals Tenth Circuit 

### December 18, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Before KELLY , O’BRIEN , and MATHESON , Circuit Judges.

KELLY , Circuit Judge.
Sturgeon Stewart appeals from the dist rict court’s judgment in favor of defendants on his claims under the First Ame ndment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5 (RLUIPA). Exercising jurisd iction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND Stewart was an inmate in the custody of the Kansas Department of Corrections (KDOC) and confined at the El Dorado Co rrectional Facility (El Dorado). In accordance with his Ra stafarian religious beliefs, he does not cut or comb his hair, which he keeps in dreadlocks. In December 2006, Stewart learned that his mother had been diagnosed with cancer. To be closer to her, Stewart re quested a voluntary tran sfer to the Lansing Correctional Facility (Lansing). His request was granted. On the day of the transfer, January 23, 2007, one of the de fendants, Officer Agnes Beach, 1 refused to allow Stewart to board the transpor t vehicle because he could not comb out his dreadlocks, as was required by the KDOC policy then in e ffect. In relevant part, that policy, Internal Management Policy and Pr ocedure (IMPP) § 12-110, provided:

1 Although defendant Beach is now known as Agnes Linaweaver, we refer to her by the name Beach, as listed in the caption of the complaint.- 3 - Prior to boarding a KDOC Transporta tion Unit vehicle, inmates may be required to comb out their hair as a security procedure against contraband. . . . To ensure that this procedure can be effectively accomplished, inmate s shall not have hair brai ds, corn rows, or other hair arrangements wherein contraba nd can be easily hidden, and which cannot be readily combed out. R. at 38. Beach consulted with her supe rvisor, defendant Thad Wilson, who gave Stewart a choice—either cut his hair or fo rego the transfer. Stewart informed Beach and Wilson that he was a practicing Rastafar ian and therefore was strictly forbidden to cut his hair. Stewart suggested the o fficers pat down his hair and use a metal detector to search for cont raband, but Wilson cancelled th e transfer and sent Stewart to administrative segregation. 2 Stewart alleged that he al so spoke about having to cut his hair with a Unit Team member and w ith the El Dorado Warden, defendant Ray Roberts. On January 30, Stewart filed a grieva nce seeking a religious exception to IMPP § 12-110 and suggesting that his ha ir could be searched by hand. The grievance was denied on the ground that th e policy represented a safety and security measure that had to be followed. Stewart filed a grievance appea ling that denial to Roberts. Roberts received the appeal on February 5, 2007, and denied it the same day. Also on February 5, Stewart cut o ff his dreadlocks. He was transferred to Lansing the next day.

2 It appears from th e record that Stewart was alr eady housed in administrative segregation prior to this even t. In any event, it does not appear he sought damages for his placement in segregation afte r his initial transfer was cancelled.- 4 - In December 2008, Stewart filed this action pro se. He asserted that defendants essentially forced him to choose between adheri ng to his religious beliefs and transferring closer to his ailing mother, and that this violat ed his rights under the Free Exercise Clause and RLUIPA. He sought damages and a declaration that defendants’ actions violated those ri ghts. He was permitted to proceed in forma pauperis , and service on Beach and Roberts was effected through the United States Marshal’s Office in February 2009. W ilson, who had retired from the KDOC, was not served at that time. On August 2, 2010, Judge Monti L. Belo t ruled on the parties’ cross-motions for summary judgment, granting Beach and Roberts’s motion in part and denying it in part, and denying Stewart’s motion. Ju dge Belot first concluded that factual disputes existed regarding the Free Exercise Claim: (1) whether defendants’ position on Stewart’s transfer placed substantial pressure on him to engage in conduct contrary to a sincerely held religious belief in order to be closer to his cancer-stricken mother, and (2) whether IMPP § 12-110 wa s reasonably related to legitimate penological interests in security given th at there was an alternative to requiring Stewart to cut his hair—a hand search and search with a metal detector. 3 Judge Belot therefore denied summary j udgment to all parties on the Free Exercise claim.

3 As Judge Belot noted, IMPP § 12-110 wa s eventually changed to permit the use of hand searches and me tal detectors on hair that could not be combed out.- 5 - Judge Belot next ruled that the claims against Roberts should be dismissed for lack of personal participation because hi s only act was to deny Stewart’s grievance appeal. Turning to Beach’s request for qualifie d immunity, Judge Belot defined the right at issue to be “the right to reasonably exercise one’s religion in prison,” R. at 162, and concluded that the ri ght was clearly established under Makin v. Colorado Department of Corrections , 183 F.3d 1205, 1210-11 & n.4 ( 10th Cir. 1999). On that basis, Judge Belot denied qua lified immunity to Beach. Finally, Judge Belot dismissed the RLUI PA claim on the ground that RLUIPA does not permit claims agains t individuals. In so doi ng, Judge Belot noted the absence of Tenth Circuit authority on the matter and consequently followed the lead of three other circuits. 4 On August 4, 2010, Judge Belot grante d Stewart’s motion for appointment of counsel. In February 2011, the case was reassigne d to Judge Julie A. Robinson, and by April 2011, Wilson was served. On Octobe r 17, 2011, Beach and Wilson filed a joint motion to dismiss, asserting that the comp laint failed to stat e a claim because the

4 Judge Belot also determined that Mr. Stewart’s request for a declaratory judgment was moot. Mr. Stewart “does not appeal that ruling.” Aplt. Opening Br. at 4 n.2.- 6 - alleged facts did not establ ish a constitutional violati on and because they were entitled to qualified immunity. 5 Judge Robinson granted the motion on th e ground that Beach and Wilson were entitled to qualified immunity . Judge Robinson first dete rmined that Judge Belot’s earlier rulings did not preclude her from reconsidering qualified immunity because those rulings were interlocut ory, and the law-of-the-case doctrine does not apply to such rulings unless a party is prejudiced by lack of notice and the opportunity to be heard, which was not the case here. Judge Robinson then turned to qualif ied immunity. Judge Belot had defined the constitutional right at issu e as “the right to reasonabl y exercise one’s religion in prison,” R. at 162, but J udge Robinson considered th is too broad and instead examined “whether it was cl early established that [defe ndants] violated [Stewart’s] First Amendment free exercise right by requiring him to cut his hair for security
reasons.” Id. at 249. Judge Robinson determined that the right was not clearly established because the rele vant Tenth Circuit law (i .e., cases regarding prison grooming regulations) was unse ttled: The cases tended to turn on a fact-specific inquiry and reached differing conclusions regarding the constitutionality of the regulation at issue. Looking outside of the Tenth Circuit yiel ded similarly mixed results and therefore provided no basis for concluding that defendants’ conduct

5 Wilson also sought dismissal because he was served outside of the applicable statute of limitations. The district court disagreed, and Wilson has not appealed that ruling.- 7 - violated a clearly established right. Acco rdingly, Judge Robinson granted the motion to dismiss. This appeal followed. II. DISCUSSION Stewart raises a number of issues on a ppeal. We will addre ss those issues in the order we find to be mo st analytically logical. A. First Amendment claim against Roberts Stewart argues that Judge Belot should not have granted summary judgment to Roberts on the Free Exercise claim because there remain genuine issues of fact regarding Roberts’s “participation, exercise of control, and s upervision.” Aplt. Opening Br. at 31. But the only such fact he points to is Roberts’s summary denial of his grievance appeal. St ewart claims that when Robe rts denied the appeal, he knew that Stewart was a practicing Rastaf arian and had propos ed less restrictive alternatives to cutting his hair. He also points out that at the time Judge Belot granted Roberts’s motion for summary judgmen t, he was pro se a nd incarcerated, and there had been no discovery. We reject these arguments. A § 1983 cl aim requires “persona l involvement in the alleged constitutional violation.” Gallagher v. Shelton , 587 F.3d 1063, 1069 (10th Cir. 2009). The “denia l of a grievance, by itself without any connection to the violation of constitutional ri ghts alleged by plaintiff, does not establish personal participation under § 1983.” Id. Whatever knowledge Robe rts may have had when he denied the appeal, his only involvement was to deny the grievance appeal, which- 8 - is insufficient for § 1983 lia bility. Further, Stewart has not suggested how his incarceration, his then-pro se status, or the lack of discove ry affects this conclusion.
B. Law of the case doctrine “The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in s ubsequent stages in the same case.” Rimbert v. Eli Lilly & Co. , 647 F.3d 1247, 1251 (10th Cir. 2011) (internal quotation marks omitte d). Relying on this doctrin e, Stewart contends that Judge Belot’s order denying qualified immunity was ba sed on a question of law— whether the right at issue was clearly es tablished—and therefore was a final and immediately-appealable decision, particularly in view of the fact that Beach did not immediately appeal that order. He ther efore concludes that Judge Robinson could not revisit the qualified immunity issue. 6

6 In making this argument, Mr. Stewar t has not drawn a di stinction between defendants Beach and Wilson. Wilson was not a party to the case when Judge Belot ruled on qualified immunity, so it app ears there was no impediment to Judge Robinson later deciding whether Wilson was entitled to qua lified immunity. Furthermore, we harbor some doubt th at Judge Belot’s denial of qualified immunity turned solely on whether the law was clearly established. Prior to discussing qualified immunity, Ju dge Belot concluded that th ere were disputed issues of fact precluding summary judgment for e ither side on Stewart’s Free Exercise claim. That conclusion is also relevant to the first part of the two-part qualified immunity analysis—whether there was a constitutional violation. See Leverington v. City of Colo. Springs , 643 F.3d 719, 732 (10th Cir. 201 1) (describing the two-part analysis). When a district court denies qualified imm unity at summary judgment on the ground that there is a genuine issue of fact re garding the presence of a constitutional violation, a defendant generally may not take an in terlocutory appeal. Johnson v. Martin , 195 F.3d 1208, 1214 (10th Cir. 199 9). But there is an exception (continued)- 9 - We disagree. Whether a prior decision constitutes law of th e case is a legal issue that we review de novo. Anthony v. Baker , 955 F.2d 1395, 1397 (10th Cir. 1992). The law of the case doctrine does not apply “to rulings revisited prior to entry of a final judgment.” Rimbert , 647 F.3d at 1251. Hence, “district courts generally remain free to reconsider their earlier interlocut ory orders.” Id. This is so “even when a case is reassigned from one judge to another in the same court.” Id. “The law of the case doctrine does no t bind a judge to following rulings in the same case by another judge of coordinate jurisdiction as long as pr ejudice does not ensue to the party seeking the benefi t of the doctrine.” Id. (brackets and internal quotation marks omitted). Stewart’s argument suggests an exception to these rules when an order denies a motion for summary judgment seeking qua lified immunity. Although such an “order retains it s interlocutory character as simply a step along the route to final judgment,” Ortiz v. Jordan , 131 S. Ct. 884, 889 (2011), it is considered final for purposes of appeal if it “p resents ‘a purely legal is sue,’ illustratively, the determination of ‘what law was “clearly established”’ at the time the defendant acted.” Id. at 891 (quoting Johnson v. Jones , 515 U.S. 304, 313 (1995)). But this

to this rule when a defenda nt’s appeal “is based on the argument that, even under the plaintiff’s version of the fact s, the defendant did not violat e clearly established law.” Id. Hence, we consider it necessary to decide whether Judge Belot’s order constituted the law of the case under Mr. Stewart’s theory, notwithstanding what appears to us to be a mixe d basis (legal and factual) for his denial of qualified immunity.- 10 - does not mean that such a decision becomes the law of the case, and beyond reconsideration of the trial c ourt. An immediate appeal may be taken, but as we stated in Haberman v. Hartford Insurance Group , “when the material facts are not in dispute and the denial of summary judgment is based on the interpretation of a purely legal question, such a decision is appealable after final judgment .” 443 F.3d 1257, 1264 (10th Cir. 2006) (emphasis added). 7 Thus, to the extent Judge Belot’s order denying Beach qualified immun ity turned on the purely le gal issue of whether the constitutional right he considered to be at i ssue was clearly established at the time of Beach’s conduct, it remained appealable even after final j udgment. And to the extent that order turned on a disputed question of fact, the issue of qualified immunity would be appealable only afte r a trial on the merits, “but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in
court.” Ortiz , 131 S. Ct. at 889. Accordingly, there is no force to Stewart’s argument that Judge Belot’s denial of qualified immunity was binding on Judge Robinson as the law of the case because it was a final appealab le order from which Beach did not immediately appeal. C. Judge Robinson’s qualified immunity ruling Qualified immunity shields “governme nt officials performing discretionary functions . . . from liability fo r civil damages insofar as th eir conduct does not violate

7 In Copar Pumice Co. v. Morris , 639 F.3d 1025, 1031 ( 10th Cir. 2011), we considered whether Ortiz undermined Haberman ’s rule and concluded that it did not.- 11 - clearly established statutor y or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (19 82). “In resolving a motion to dismiss based on qualified immun ity, a court must cons ider ‘whether the facts that a plaintiff has alleged make out a violation of a cons titutional right,’ and ‘whether the right at issue wa s clearly established at the time of defendant’s alleged misconduct.’” Leverington v. City of Colo. Springs , 643 F.3d 719, 732 (10th Cir. 2011) (ellipsis omitted) (quoting Pearson v. Callahan , 555 U.S. 223, 232 (2009)). We review dismissals based on qualified immunity de novo. Denver Justice & Peace Comm., Inc. v. City of Golden , 405 F.3d 923, 927 (10th Cir. 2005). Courts have discretion to decide “whi ch of the two prongs of the qualified immunity analysis should be addressed firs t in light of the ci rcumstances in the particular case at hand.” Pearson , 555 U.S. at 236. Here, Judge Robinson addressed only the second prong, concluding that the ri ght at issue was not clearly established. “The relevant, dispositive inquiry in de termining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Thomas v. Durastanti , 607 F.3d 655, 669 (10th Cir. 2010) (internal quotation marks omitted). Stewart argues that Judge Robinson’s defi nition of the constitutional right at issue was too narrow. Ag ain, Judge Robinson’s defi nition was “whether it was clearly established that [Beach and Wils on] violated [Stewart ’s] First Amendment free exercise right by requiring him to cut his hair for security reas ons.” R. at 249.- 12 - Stewart asserts that the S upreme Court and the Tenth Ci rcuit emphasize a broader standard and advocates for Judge Belot’s defi nition: “the right to reasonably exercise one’s religion in prison,” Id. at 162. We disagree with Stewart’s contention th at a broader standard is necessary. To be sure, “officials can still be on notice that their con duct violates es tablished law even in novel factual circumstances.” Hope v. Pelzer , 536 U.S. 730, 741 (2002). And in some cases, “a genera l constitutional rule already identified in the decisional law may apply with obvious cl arity to the specific conduc t in question, even though the very action in question has not previously been held unlawful.” United States v.
Lanier , 520 U.S. 259, 271 (1997) (brackets and internal quotation marks omitted). But in other cases, “general statements of the law are not inherently capable of giving fair and clear warning.” Id. For example, in Reichle v. Howards , the Supreme Court recently reiterated its long-held view that “the right al legedly violated must be established, not as a broad proposition, but in a part icularized sens e so that the contours of the right are clea r to a reasonable official.” 132 S. Ct. 2088, 2094 (2012) (citations and internal quotati on marks omitted). Applying th is test to th e free-speech claim before it, the Court conc luded that “the right in ques tion is not the general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise suppor ted by probable cause.” Id. So too here, Judge Robinson’s fo rmulation of the First Amendment free-exercise right at issue is more specific—to be free from having to cut one’s hair- 13 - for prison security reasons ba sed on one’s sincerely held re ligious beliefs. We might add that cutting is apparently required beca use Stewart’s hair could not be combed out. Aplt. Reply Br. at 1-3. Stewart’s fo rmulation—the right to reasonably exercise one’s religion in prison—reflects an adm ittedly established First Amendment right prisoners retain: “a r easonable opportunity to pur sue [one’s] religion. Mosier v. Maynard , 937 F.2d 1521, 1525 (10th Cir. 1991). But “when a prison regulation impinges on inmates’ constitutio nal rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley , 482 U.S. 78, 89 (1987). Thus, “what constitutes a reasonable opportun ity [to pursue one’s religion] must be evaluated with refere nce to legitimate penological objectives.” Mosier , 937 F.2d at 1525. The additional level of specificity is helpful to focus on case law that would have given Beach and Wilson “reasonable wa rning that the conduct then at issue violated constitutional rights.” Lanier , 520 U.S. at 269. Contrary to Stewart’s suggestion, a more precise de finition does not lead to an overreliance on factual similarity but to a proper reliance. See Mecham v. Frazier , 500 F.3d 1200, 1206 (10th Cir. 2007) (explaining that “the facts of the cases compared need not be identical, [but] they must be sufficiently analogous to satisfy the particularized context necessary to suppor t liability” (citation omitte d)). Applying Stewart’s formulation would encompass a very broad sp ectrum of conduct dir ected at prisoners- 14 - and result in the examination of cases th at would not have gi ven Beach and Wilson the requisite warning unde r the facts of this case. 8 Stewart alternately contends that even under a more specific definition, Beach and Wilson violated a clearly established constitutional right . “Ordinarily, in order for the law to be clearly esta blished, there must be a S upreme Court or Tenth Circuit decision on point, or the clearly establishe d weight of authority from other courts must have found the law to be as the plainti ff maintains.” Thomas , 607 F.3d at 669 (internal quotation marks omitted). Stewar t has pointed to no Supreme Court cases and only one Tenth Circuit case, Longstreth v. Maynard , 961 F.2d 895 (10th Cir. 1992). Stewart cites Longstreth for its proposition that “[a]lthough religious challenges to prison grooming codes do not always succeed, c ourts have consistently held that at a minimum the challenges do raise significant claims which require full evidentiary development.” Id. at 903 n.7. We see nothing in Longstreth that clearly established that a corrections officer violates a prisoner’s free exer cise right by requiring the pr isoner to cut his hair for security reasons beca use it cannot be readily combed out. Longstreth , which

8 We acknowledge that in Makin v. Colorado De partment of Corrections , we considered the “general right to the reasona ble opportunity to exercise one’s religion” to be the best formulation to encompass the defendants’ refusal to accommodate the religious dietary requirement s of a prisoner in segrega tion during the Muslim holy month of Ramadan. 183 F. 3d at 1210 n.4. In so doing, we rejected the narrower right proposed by the defendant s: “the parameters of special feeding accommodation for the celebration of Ramadan.” Id. We do not find Makin persuasive as applied to the facts of this case because Judge Robi nson’s definition was not as narrow as the definition we rejected in Makin

.- 15 - comprised three consolidated appeals, concerned a prison policy that prohibited hair more than three inch es in length and that wavered over time between permitting and disallowing religious exemptions . As to one plaintiff, Longstreth considered there to be no factual dispute regarding the re asons for the policy but remanded for a determination whether the denial of an exemption for religious reasons was proper because there were disputed factual issues regarding the sincerity of the prisoner’s religious beliefs. Id. at 901-02. The other two plai ntiffs had sought preliminary injunctive relief agains t the requirement that they cut th eir hair. The district courts denied preliminary relief on the ground that plaintiffs we re not likely to succeed on the merits of their claims. We reversed. Analyzing whet her the plaintiffs had shown there were “questions so seri ous, substantial, difficult, a nd doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry,” we concluded only that there were “serious and substantial questions” regardi ng “[t]he impact of a prison regulation which may impinge on tenets of an inmate’s religious beliefs.” Id. at 903. In the absence of controlling authority, we may conclude that a constitutional right is clearly established if there is a “robust consensu s of cases of persuasive authority.” Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2084 ( 2011) (internal quotation marks omitted). To that end, we have reviewed all of th e extra-circuit cases Stewart has identified, as well as those cases Judge Robinson discussed in her order. We agree with Judge Robinson’s conclusion that they cut both ways. In some cases, courts have found that pris on regulations requiring haircu ts or prohibiting beards- 16 - violate a prisoner’s fr ee exercise rights. See, e.g. , Shepherd v. Sanchez , 27 F. App’x 31, 33 (2d Cir. 2001); Benjamin v. Coughlin , 905 F.2d 571, 576-77 (2d Cir. 1990); Teterud v. Burns , 522 F.2d 357, 359 & n. 1 (8th Cir. 1975); Wright v. Raines , 457 F. Supp. 1082, 1088-90 (D. Kan. 1978). Shepherd and Benjamin involved Rastafarian plaintiffs. In ot her cases, courts ha ve found that such regulations did not offend the First Amendment because the re gulations were reasonably related to legitimate penological interests. See, e.g. , Henderson v. Terhune , 379 F.3d 709, 715 (9th Cir. 2004); Williams v. Wilkinson , No. 96-3715, 1997 WL 809971, at *3 (6th Cir. Dec. 18, 1997) (unpublished); Harris v. Chapman , 97 F.3d 499, 504 (11th Cir. 1996); Hicks v. Garner , 69 F.3d 22, 25 (5th Cir. 1995); Cole v. Flick , 758 F.2d 124, 131 (3d Cir. 1985); Perry v. Davies , 757 F. Supp. 1223, 1223-24 (D. Kan. 1991). Williams , Harris , and Hicks involved Rastafar ian plaintiffs. If this mixed bag were not enough, there are other problems with some of the cases Stewart relies on. Reed v. Faulkner , 842 F.2d 960 (7th Cir. 1988), concerned the enforcement of a grooming policy agains t Rastafarians but not against American Indians. The district cour t held a bench trial and conc luded that the policy did not violate the Free Exercise Clause. Reversi ng, the Seventh Circuit determined that “[t]he regulation on ha ir length is plausibl y supported by considera tions of safety and security,” id. at 963, but remanded for further c onsideration because of two serious problems with the district court’s findings. First, the appellate court considered deficient the district court’ s finding that the regulation was supported by “a security- 17 - concern for potential racial conflict from the professed Rastaf arian belief that dreadlock symbolizes black superiority.” Id. at 962; see also id. at 964-65 (discussing this finding). Second, the appe llate court found fault with the district court’s handling of the equa l protection claim. Thus, Reed does not lend particular support to Stewart’s argument that the right at issue here was clearly established. Two other cases St ewart relies on, Teterud and Wright , turn in relevant part on the conclusion that there we re less restrictive means of furthering a penological interest. Teterud , 522 F.2d at 362-63; Wright , 457 F. Supp. at 1089-90. This is a stricter standard than Turner ’s legitimate-penological-inter est test, which considers the absence of ready alternatives imposing no more than de minimis cost to the prison, as evidence that a pr ison regulation is reasonable, Turner , 482 U.S. at 90-91. So Teterud and Wright are of little help to an offi cer trying to determine whether enforcement of a regulation or policy in fringes a prisoner’s fr ee exercise right. 9 Regarding Dreibelbis v. Marks , 675 F.2d 579 (3d Cir. 19 82), Stewart fails to note that after remand and on a subsequent a ppeal, the circuit c ourt affirmed the conclusion that the regulation at issue was a valid restrict ion on the prisoner’s religious freedom, see Dreibelbis v. Marks , 742 F.2d 792, 794- 95 (3d Cir. 1984). Further, another of Stewart’s cases, Singh v. Goord , 520 F. Supp. 2d 487

9 Using the same standard in a ca se involving the Religious Freedom Restoration Act of 1993, the court in Harris v. Chapman reached the opposite conclusion, holding “that a reasonable hair length regulation sa tisfies the least restrictive means test.” 97 F.3d at 504. This further indicates how unclear the relevant constitutional ri ght was at the time of the incident here.- 18 - (S.D.N.Y. 2007), was decided afte r the incident at issue here , so it is not relevant to whether the law was clearly established. Is sum, from our survey of these cases, the most we can say is that Beach and Wilson had warning that enforcement of a grooming policy that required hair be capable of being co mbed out (or cut) might violate Stewart’s free exercise right if the policy was not reasonably related to legitima te penological interests. But we cannot say that it was clearly established that their enforcem ent of the KDOC policy violated Stewart’s constitutional rights. We theref ore conclude that Beach and Wilson are entitled to qualified immunity on St ewart’s First Amendment claim. D. RLUIPA claim RLUIPA “protects institutionalized pers ons who are unable freely to attend to their religious needs and are therefore de pendent on the governme nt’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson , 544 U.S. 709, 721 (2005). It does so by limiting the burdens that a government may place on a prisoner’s free exer cise rights:
No government shall impose a substantia l burden on the religious exercise of a person residing in or c onfined to an inst itution, as defined in section 1997 of this title, even if the burde n results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compel ling governmental interest; and (2) is the least restrictive means of fu rthering that compelling governmental interest.- 19 - 42 U.S.C. § 2000cc-1(a) (em phasis added). RLUIPA also provides a cause of action against a government: “A person may assert a violation of this chapter as a claim or defense in a judicial proceed ing and obtain appropriate re lief against a government.” Id. § 2000cc-2(a). Thus, by its plain terms, RLUIPA app lies to a “government.” RLUIPA defines “government,” in releva nt part, as “(i) a State, county, municipality, or other governmental entity created under the aut hority of a State; (ii) any branch, department, ag ency, instrumentality, or offi cial of an entity listed in clause (i); and (iii) any other pers on acting under color of State law.” Id. § 2000cc-5(4)(A)(i)-(iii). St ewart focuses on subclause (iii)’s use of the word “person” in arguing that Judge Belot er red in concluding that RLUIPA does not permit a claim against individual defendants. Stewart relies on a number of district court decisions from various ci rcuits holding that RLUIPA permits such a claim, but we are persuaded by the late r circuit court decisions th at have held it does not. The interpretation of a stat ute is a question of law that we review de novo. McGraw v. Barnhart , 450 F.3d 493, 49 7 (10th Cir. 2006). 10 Four circuits have held

10 We disagree with the appellees that Stewart has waived re view of this issue through the invited error doctrine, whic h “precludes a party from arguing that the district court erred in adopti ng a proposition that the party had urged the district court to adopt,” United States v. Deberry , 430 F.3d 1294, 1302 (10th Cir. 2005). Appellees argue that in his response to their motion to dismiss, St ewart invited Judge Robinson to agree with Judge Belot’s dismissal of the RLUIPA claim, a nd that he cannot now complain about Judge Robinson ’s treatment of the claim as abandoned. But the only statement in Stewart’s response regardi ng the RLUIPA claim was his observation that “[t]he RLUIPA claim was dismissed with Judge Belot finding that individual capacity suits were not availa ble under RLUIPA.” R. at 218. Judge Robinson’s view (continued)- 20 - that, despite defining the term “governme nt” to include “any other person acting under color of State law,” RLUIPA does not provide a cause of action against individual defendants in th eir individual capacities. See Sharp v. Johnson , 669 F.3d 144, 153-55 (3d Cir. 2012); Nelson v. Miller , 570 F.3d 868, 885-89 (7th Cir. 2009); Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 327-29 (5th Cir. 2009), aff’d , Sossamon v. Texas , 131 S. Ct. 1651 (2011); Smith v. Allen , 502 F.3d 1255, 1271-75 (11th Cir. 2007), abrogated on other gr ounds by Sossamon , 131 S. Ct. at 1655, 1657 n.3 (abrogating Smith as to its holding that RL UIPA abrogated a state’s sovereign immunity from suit for money dama ges). In these case s, the courts have focused on the fact that C ongress enacted RLUIPA pursua nt to the Spending Clause of the Constitution. See 42 U.S.C. § 2000cc-1(b)(1) (sta ting that RLUIPA “applies in any case in which . . . the s ubstantial burden [on religious free exercise rights] is

of this statement was that Stewart had “concede[d] th at the RLUIPA claim was dismissed by Judge Belot and he does not attempt to assert that claim against Defendant Wilson.” Id. at 241. Judge Robinson then stated: “Although Judge Belot did not dismiss the RLUIPA claim against Defendant Wilson because he had not yet been served, the Court finds th at [Stewart] treats this claim as drop ped, and the Court therefore dismisses it.” Id. at 241-42. In our view, Stewart did not invite Judge Robinson to adopt any position regarding the RLUIPA claim or waive his right to appeal Judge Belot’s ruling by simply stating, in his response to the mo tion to dismiss, what Judge Belot’s ruling was. Moreover, Beach and Wilson had no occasion to raise th e RLUIPA issue in their motion to dismiss becau se the claim had already b een dismissed by the time Wilson was served. Hence, Stewart had no r eason to address it again in his response.- 21 - imposed in a program or activity that re ceives Federal financial assistance”). 11 They have noted the similarity between RLUIPA ’s reference to “any other person acting under color of State law” and the “under color of” language in § 1983, which does create a cause of action agai nst state employees in their individual capacities. But ultimately these courts have concluded that “Spending Cl ause legislation is not legislation in its operation; instead, it operates like a contr act, and individual RLUIPA defendants are not parties to the c ontract in their indi vidual capacities.”
Sossamon , 560 F.3d at 328 (footnote omitted); see also Sharp , 669 F.3d at 154; Nelson , 570 F.3d at 887; Smith , 502 F.3d at 1272-73. Thus, “only the grant recipient—the state—may be liable for [a] violation [of RLUIPA].” Sossamon , 560 F.3d at 328. “[T]he Spending Power cannot be used to subject individual defendants, such as state employees, to individual liab ility in a priv ate cause of action.” Smith , 502 F.3d at 1274. 12

11 Congress also invoked its Commerce Clause power by stating that RLUIPA “applies in any case in which . . . the subs tantial burden [on religious free exercise rights] affects, or removal of that subs tantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.” 42 U.S.C. § 2000cc-1(b)(2). However, we conclude that the Spendi ng Clause is “the most natural source of congressiona l authority to pass RLUIPA,” because, as Stewart has invoked RLUIPA, “there is no evidence c oncerning the effect of the substantial burden on ‘commerce with fore ign nations, among the several States, or with Indian tribes.’” Sossamon , 560 F.3d at 328 n.34. Thus we do not analyze whether Congress’s reliance on the Commerce Clau se supports a cause of action under RLUIPA against individual defendant s in their individual-capacities.
12 The Fourth Circuit has reached the same conclusion, a lthough on the ground that RLUIPA does not provide clear notice to the states that thei r receipt of federal (continued)- 22 - We agree with the analysis of these c ourts and therefore hol d that there is no cause of action under RLUIPA fo r individual-capacity claims. 13 Accordingly, we affirm Judge Belot’s ruling on this issue. III. CONCLUSION The judgment of the dist rict court is AFFIRMED.

funding is conditioned on subj ecting its officials “to an individual capacity damages claim.” Rendelman v. Rouse , 569 F.3d 182, 189 (4th Cir. 2009).
13 The record does not reflect whether KDOC receives federal funding, but the parties have not contested th is point, and it appears th at all states receive such funding. See Cutter , 544 U.S. at 716 n.4 (“Every Stat e . . . accepts federal funding for its prisons.”).