## F I L E D United States Court of Appeals Tenth Circuit 

### January 18, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAID AHMAD, also known as Jumaat At-Tariq, Plaintiff - Appellee,

v. No. 04-1450 ROBERT FURLONG; MIKE EHRMANN, Defendants - Appellants. and JOHN WATTS; STEVE BERGMAN, Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 01-F-1164 (PAC))

Edward T. Farry, Jr., Farry and Rector, L.L.P., Col orado Springs, Colorado, for the Defendants - Appellants. James P. Rouse, Rouse & Associates, P.C., GreenwoodVillage, Colorado, for the Plaintiff - Appellee.

Before TACHA, Chief Circuit Judge, HOLLOWAY, Senior Circuit Judge, and HARTZ, Circuit Judge.-2-

HARTZ , Circuit Judge.

Appellants Mike Ehrmann, a corrections officer at C olorado’s Sterling Correctional Facility (SCF), and Robert Furlong, a former warden of the facility, appeal the district court’s refusal to decide wheth er they are entitled to qualified immunity on a claim under the Religious Land Use an d Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq . The district court held that it need not address the merits of the defense because their Ame nded Answer did not raise qualified immunity as a defense to the RLUIPA claim . Even accepting the district court’s view that the defense was not raised in App ellants’ Amended Answer, we hold that the defense was adequately raised in thei r motion for summary judgment and the district court should have addressed it. W e reverse and remand for it to do so.
BACKGROUND Said Ahmad, an inmate at SCF and an “adherent to th e Suni branch of Islam,” Aplt. App. at 130, filed in the United Stat es District Court for the District of Colorado a pro se civil rights complaint and two amended complaints raising several federal constitutional claims. All claims revolved around the prison’s policy of refusing to allow prisoners to congregate for prayer outside their assigned cells without prior approval. The defenda nts named in the Third-3-

Amended Complaint were Appellants, as well as John Watts, a correctional officer at SCF, and Steven Bergman, SCF’s hearings officer and case manager. Mr. Ahmad then obtained counsel, who filed a Fourth Amended Complaint which added a claim under RLUIPA. (The Fourth Amen ded Complaint dropped Mr. Bergman as a defendant. Later, Mr. Ahmad filed a Fifth Amended Complaint which added as a defendant the new warden of SCF, G ary Golder, solely for purposes of seeking injunctive relief. Mr. Golder is not a party to this appeal.) RLUIPA forbids a prison from “impos[ing] a substant ial burden on the religious exercise” of an inmate “unless [it] demon strates that imposition of the burden on that person . . . (1) is in furtherance o f a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA defines religious
exercise to “include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S. C. § 2000cc-5(7)(A). Appellants contend that they are not personally lia ble for any alleged RLUIPA violation because they are entitled to quali fied immunity. Qualified immunity protects from litigation a public official whose possible violation of a plaintiff’s civil rights was not clearly a violatio n at the time of the official’s actions. It “is an entitlement not to stand trial or face the other burdens of litigation. The privilege is an immunity from suitrather than a mere defense to-4-

liability.” Roska v. Peterson , 328 F.3d 1230, 1239 (10th Cir. 2003) (internal quotation marks, citations, and italics omitted). When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). “The plaintiff must first establish that the defendant’s actions violated a constitutional or statutory right. If the plaintiff establishes aviolation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant’s unlawful conduct.” Id . (internal quotation marks and citations omitted). The issue on appeal is not the merits of Appellants ’ qualified-immunity claim, but whether they adequately raised the defen se below. Their answer to Mr. Ahmad’s Third Amended Complaint (which did not include a RLUIPA claim) stated the defense. Then in response to the Fourth Amended Complaint, they and defendant Watts filed an Amended Answer and Jury De mand containing the following paragraphs: Original Answer and Affirmative Defenses Reaffirmed 3. The Defendants reassert and reaffirm their orig inal ANSWER as well as the affirmative defenses in the ANSWER, to wit: Defendants are immune under the doctrine of Q ualified Immunity; and any conduct of the defendants was bas ed on a legitimate penological interest and or authorized b y law. RLUIPA Claim 4. The Defendants deny that they have violated any provisions of RLUIPA.-5-

RLUIPA Affirmative Defenses 5. RLUIPA is unconstitutional, violates the separation of powers doctrine, and the establishment clause. RLU IPA was not properly enacted pursuant to the Commerce Clause an d or the Spending Clause. Finally, RLUIPA violates the Tent h Amendment. Aplt. App. at 141. On September 5, 2003, Appellants moved for summary judgment. In their Motion for Summary Judgment they state: “The State Defendants move for Summary Judgment, Fed. R. Civ. P. 56, and dismissal of the § 1983 and RLUIPA claims against them for the reasons iterated below. ” Id . at 182. Five reasons are listed: (1) “No violation of § 1983”; (2) “There i s No Violation of RLUIPA”; (3) “No Personal Participation”; (4) “Qualified Immunity”; and (5) “No Evidence to Support Punitive Damages.” Id . at 182-83. Under the qualified-immunity heading Appellants state: [Appellants] were/are Colorado State Officials at C DOC’s SCF and are presumptively entitled to Qualified Immunity. All conduct engaged in by [Appellants] was pursuant to and cons istent with a valid regulation: CDOC Administrative Regulation 80 0-01 dated 10- 1-99. Therefore, these two defendants are entitled to Qualified Immunity for this reason. Id . at 183. In their memorandum in support they further contend , “[Appellants] are here sued in their individual capacity and are ther efore presumed to be immune from suit and liability.” Id . at 195. They then set forth their description of qualified-immunity doctrine and conclude, “Therefor e the claims must be-6-

dismissed against the State Defendants in their ind ividual capacity.” Id . at 197. The section does not address any specific claim, me ntioning neither RLUIPA nor any specific constitutional provisions, nor does itspecifically exempt any claim from their assertion of qualified immunity. Mr. Ah mad’s responsive brief, however, specifically argues that Appellants are no t entitled to qualified immunity on the RLUIPA claim. In the section headed, “Summa ry Judgment is inappropriate with respect to Defendant’s [sic] Aff irmative Defense of Qualified Immunity,” id . at 236, it states:

Furthermore, even if the Court were to find that Pl aintiff’s right to exercise his religion in this context was not “clearly established” under pre-RLUIPA analysis, RLUIPA’s he ightened standard requires that once Plaintiff has asserted that his religious freedom has been violated, Defendants must (1) have a compelling state interest in prohibiting the practice and (2) must be employing the least restrictive means of reaching that intere st. 42 U.S.C. § 2000cc-1. Defendants have made no efforts to ens ure that their policy of prohibiting group prayer outside the cell s, nor their policy of prohibiting individual Muslim prayer outside the cell, is the least restrictive means available to them. Defendants we re aware of RLUIPA. . . . As argued above, the fact that Plain tiff was allowed to pray in the multi-purpose room prior to January of 2000 tends to show that there is a least [sic] restrictive means of allowing corporate prayer in that room. Id . at 238-39. In the Final Pretrial Order, filed be fore Appellants’ motion for summary judgment was decided, Appellants again assert in general terms the defense of qualified immunity.-7-

On August 5, 2004, the magistrate judge issued a re commendation on Appellants’ motion for summary judgment. The recom mendation addresses qualified immunity with respect to each of Mr. Ahma d’s constitutional claims and concludes that Appellants (and defendant Watts) sho uld be granted qualified immunity with respect to these claims. Because Mr. Ahmad failed to show that Mr. Watts personally participated in any of the all eged wrongs, the recommendation also says that he should be granted summary judgment on a separate retaliation claim (filed only against him) and on the RLUIPA claims. Finally, the recommendation concludes that the pris on’s prohibition against congregate prayer in the living units does not viol ate RLUIPA, but that Mr. Ahmad should be allowed to go forward against Appellants on his claim that RLUIPA was violated by the prison’s refusal to allo w him to engage in individual demonstrative prayer outside his cell. The RLUIPA discussion twice states that Appellants had not raised a qualified-immunity defe nse to the RLUIPA claim. One footnote states:

[Appellants], in their individual capacities, do no t assert qualified immunity as a defense to plaintiff’s requ est for monetary relief on his RLUIPA claims. See Amended Answer, filed March 21, 2003, ¶¶ 4-5; State Defendants’ Brief in Support of MSJ, at 11-13 (asserting qualified immunity defense against const itutional claims only). Id . at 328 n.16. And a later footnote-8-

note[s] again that [Appellants] did not assert qual ified immunity as a defense to plaintiff’s RLUIPA claim in their Amende d Answer, filed March 21, 2003. . . . Further, [Appellants] argued in their motion for summary judgment that they were entitled to qualifi ed immunity . . . on plaintiff’s constitutional claims only. . . . Qualified immunity is an affirmative defense which must be asserted in an answer or in a motion for summary judgment. Id . at 348 n.24. The magistrate judge thus recommended that all clai ms against Appellants be dismissed except the individual-prayer RLUIPA claim. Appellants filed an objection to the recommendation, disputing that the y had failed to plead and argue qualified immunity with respect to the RLUIPA claim . The district court rejected the objection and issued an order adopting the reco mmendation, stating: The burden of pleading qualified immunity is on [Ap pellants]. . . . Under a separate heading labeled “RLUIPA Claim” in [Appellants’] Amended Answer, [Appellants] deny violating RLUIPA. Another heading, labeled “RLUIPA Affirmative Defenses,” cla ims that RLUIPA is unconstitutional. If [Appellants] had wi shed to claim qualified immunity as to the added RLUIPA claim, th ey should have done so under “RLUIPA Affirmative Defenses” in thei r Amended Answer. They did not do so. Therefore, [Appellant s] have failed to properly plead qualified immunity to the RLUIPA Cla im . . . . Id . at 371. Appellants appeal the district court’s failure to r esolve the merits of their qualified-immunity defense to the RLUIPA claim.
DISCUSSION-9-

Appellants’ Amended Answer and Motion for Summary J udgment are both ambiguous with respect to whether they are raising a qualified-immunity defense to the RLUIPA claim. The district court’s analysis was straightforward: It resolved the ambiguity against Appellants with resp ect to the Amended Answer and then concluded that the failure to plead the de fense barred its consideration by the court. In our view, a less rigid approach i s required. We do not question the district court’s resolution of the ambiguity in the Amended Answer. Were we required to decide one way or the other with respec t to whether qualified immunity to the RLUIPA claim had been raised in the Amended Answer, we might well agree with the district court. Neverthe less, in light of (1) the purposes for requiring affirmative defenses to be pleaded, ( 2) the ambiguity in both the Amended Answer and the Motion for Summary Judgment, and, critically, (3) Mr. Ahmad’s discussion of the qualified-immunity de fense to the RLUIPA claim in his response to the motion, we hold as a matter of law that the defense was adequately presented to the court and should have b een decided. See FDIC v. Oaklawn Apartments, 959 F.2d 170, 173 (10th Cir. 1992) (Whether an aff irmative defense has been waived is a mixed question of law and fact, which “require[s] us to accept the district court’s factual conclusions unless clearly erroneous but review the application of the facts to the law unde r a de novo standard.”); Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th Cir. 1986) (mixed questionof-10-

law and fact is reviewed de novo when issue involve s primarily consideration of legal principles). We first address whether failure to plead qualified immunity to the RLUIPA claim in their Amended Answer is fatal to Ap pellants’ argument. “In pleading to a preceding pleading, a party shall setforth affirmatively . . . any . . . affirmative defense.” Fed. R. Civ. P. 8(c). “Sinc e qualified immunity is a defense, the burden of pleading it rests with the d efendant.” Gomez v. Toledo , 446 U.S. 635, 640 (1980). The D.C. Circuit has held that an affirmative defen se may not be raised for the first time in a post-answer motion without firs t amending the answer. Harris v. Secretary, U.S. Dep’t of Veterans Affairs , 126 F.3d 339, 344-45 (D.C. Cir. 1997). But strict adherence to the pleading requir ement is inappropriate when the purpose of the requirement has been otherwise fulfi lled. “The purpose of . . . pleading [an affirmative defense] is to give the op posing party notice of the [defense] and a chance to argue, if he can, why the imposition of [the defense] would be inappropriate.” Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found. , 402 U.S. 313, 350 (1971). Accordingly, “[m]ost other courts are not so stric t [as the D.C. Circuit]. They do permit a defendant to raise an affirmative defense for the first time in a post-answer motion if the defense i s raised in sufficient time that there is no prejudice to the opposing party merely because of the delay.” 2 James-11-

Wm. Moore et al., Moore’s Federal Practice, § 8.07[ 2] (3d ed. 1997). See Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir. 1995) (“Rule 8(c)’s core purpose [is] to act as a safeguard against surprise and unfair prejudice . . . . Where, as here, a plaintiff clearly anticipates that an issue will be litigated, and is not unfairly prejudiced when the defendant actually raises it, a mere failure to plead the defense more particularly will not consti tute a waiver.”); Saks v. Franklin Covey Co. , 316 F.3d 337, 350 (2d Cir. 2003) (“[A] district c ourt may still entertain affirmative defenses [not pleaded i n the answer] at the summary judgment stage in the absence of undue prejudice to the plaintiff, bad faith or dilatory motive on the part of the defendant, futil ity, or undue delay of the proceedings.”); Pro v. Donatucci , 81 F.3d 1283, 1286 n.2 (3d Cir. 1996) (“Our court previously has taken the position that whethe r an affirmative defense that must be pleaded in the answer is waived will depend on whether the defense was raised at a pragmatically sufficient time and the p laintiff was prejudiced in the ability to respond.” (internal quotation marks omitted)); Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999) (“[T]here i s ample authority in this Circuit for the proposition that absent unf air surprise or prejudice to the plaintiff, a defendant’s affirmative defense is notwaived when it is first raised in a pre-trial dispositive motion.”); Giles v. Gen. Elec. Co. , 245 F.3d 474, 491-92 (5th Cir. 2001) (“Although failure to raise an affi rmative defense under rule 8(c)-12-

in a party’s first responsive pleading generally re sults in a waiver, where the matter is raised in the trial court in a manner that does not result in unfair surprise technical failure to comply with Rule 8(c) is not f atal.” (internal quotation marks, brackets, and ellipses omitted)); Moore, Owen, Thomas & Co. v. Coffey , 992 F.2d 1439, 1445 (6th Cir. 1993) (“It is well established , however, that failure to raise an affirmative defense by responsive pleading does not always result in waiver.”); Fin. Timing Publ’ns, Inc. v. Compugraphic Corp. , 893 F.2d 936, 944 n.9 (8th Cir. 1990) (affirmative defense not waived when other “n otices were sufficient to avoid unfair surprise”); Camarillo v. McCarthy , 998 F.2d 638, 639 (9th Cir. 1993) (“Qualified immunity is an affirmative defense thatshould be pled by the defendant. In the absence of a showing of prejudic e, however, an affirmative defense may be raised for the first time at summary judgment.” (internal citation omitted)); Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989) (“[I]f a plaintiff receives notice of an affirmativ e defense by some means other than pleadings, the defendant’s failure to comply w ith Rule 8(c) does not cause the plaintiff any prejudice. When there is no prej udice, the trial court does not err by hearing evidence on the issue.” (internal quotat ion marks and citation omitted)). We have recognized the same underlying principle in the context of a plaintiff’s complaint: “A plaintiff should not be prevented from pursuing a claim-13-

simply because of a failure to set forth in the complaint a theory on which the plaintiff could recover, provided that a late shiftin the thrust of the case will not prejudice the other party in maintaining its defens e.” Green Country Food Mkt., Inc. v. Bottling Group, LLC , 371 F.3d 1275, 1279 (10th Cir. 2004). And we hav e held that an affirmative defense was not waived fortrial purposes when it had first been raised in a motion for summary judgment three months earlier. Ball Corp. v. Xidex Corp. , 967 F.2d 1440, 1443-44 (10th Cir. 1992) (“This co urt has held that the purpose behind rule 8(c) is that of p utting plaintiff on notice well in advance of trial that defendant intends to present a defense in the nature of an avoidance.” (internal quotation marks and brackets omitted)). We agree with the D.C. Circuit that the best proced ure is to plead an affirmative defense in an answer or amended answer. And, as that court pointed out, absence of prejudice to the opposing party is not the only proper consideration in determining whether to permit an a mended answer; a motion to amend may also be denied on grounds such as “‘undue delay, bad faith or dilatory motive . . . , or repeated failure to cure deficien cies by amendments previously allowed.’” Harris , 126 F.3d at 345 (quoting Foman v. Davis , 371 U.S. 178, 182 (1962)) (internal brackets omitted). Accordingly, courts should not permit a party to circumvent these other restrictions on amendment s simply by filing a dispositive motion rather than a motion to amend. See id. But that concern can-14-

be obviated without a strict requirement that the a nswer be amended before raising a defense in a motion for summary judgment. Rather than demanding that the defendant first move to amend the answer, we ne ed only apply the same standards that govern motions to amend when we dete rmine whether the defendant should be permitted to “constructively” a mend the answer by means of the summary-judgment motion. Because we review forabuse of discretion a district court’s ruling on a motion to amend, see The Tool Box, Inc. v. Ogden City Corp. , 419 F.3d 1084, 1086-87 (10th Cir. 2005), we applythe same standard to a ruling on whether an affirmative defense may first be raised in a motion for summary judgment. Having determined that Appellants were not necessar ily barred from raising a RLUIPA qualified-immunity defense in their motion for summary judgment, we now turn to whether the defense was so raised. The district court did not address the issue; in its view, it was irrelevant whether t he motion for summary judgment raised the defense because the defense was foreclos ed by Appellants’ failure to plead it in an answer. There is no need, however, for a remand to the district court to decide the issue, because the record compe ls the conclusion that the defense was raised in the summary-judgment motion. To be sure, Appellants’ motion did not clearly rais e qualified immunity with respect to the RLUIPA claim. Although both th e motion and supporting-15-

memorandum asserted qualified immunity as to “[a]ll ” their conduct, and requested that “the claims” be dismissed on this ba sis, Aplt. App. at 183, 197, they did not expressly mention RLUIPA in the context of qualified immunity. One who did not read the Amended Answer as assertin g qualified immunity with respect to the RLUIPA claim might have reasonably r ead the motion as raising qualified immunity only with respect to the constit utional claims. If Mr. Ahmad’s response had not addressed qualified immunity in th e RLUIPA context, the district court could have properly determined that it would be unfair to him to decide the issue. But in fact Mr. Ahmad’s response to Appellants’ mot ion for summary judgment did address RLUIPA qualified immunity. Th us, we need not worry about whether the ambiguity in Appellants’ motion m isled Mr. Ahmad into believing that qualified immunity was being relied upon only to defend against the constitutional claims. The district court migh t still have questioned whether Appellants actually intended to assert qualified im munity with respect to the RLUIPA claim, but that question was resolved by App ellants’ objection to the magistrate judge’s statements that they had not ass erted the defense. In this circumstance, no purpose would be served by resolvi ng the ambiguity in the summary-judgment motion against Appellants. If App ellants intended to raise the defense and Mr. Ahmad thought they had, why should a court insist on reading1 Perhaps a better analogy is to Fed. R. Civ. P. 15(b ), which provides that

when an issue “not raised by the pleadings [is] tri ed by express or implied consent of the parties, [it] shall be treated in all respec ts as if [it] had been raised in the pleadings,” Fed. R. Civ. P. 15(b). We have applied Rule 15(b) to a defense raised in a motion for summary judgment on the eve of tria l. See Suiter v. Mitchell Motor Coach Sales, Inc. , 151 F.3d 1275, 1279-80 (10th Cir. 1998). But the re is a split among the circuits (and within some circuits) on whether the rule applies at the summary-judgment stage. Compare Cruz v. Coach Stores, Inc ., 202 F.3d 560, 569 (2d Cir. 2000) (applying Rule 15(b) at summary-judgment stage); United States ex rel. Canion v. Randall & Blake , 817 F.2d 1188, 1193 (5th Cir. 1987) (same); Smith v. Transworld Sys., Inc. , 953 F.2d 1025, 1030 (6th Cir. 1992) (same); Walton v. Jennings Cmty. Hosp. Inc. , 875 F.2d 1317, 1320 n.3 (7th Cir. 1989) (same); Jackson v. Hayakawa , 605 F.2d 1121, 1129 (9th Cir. 1979) (same); and Kulkarni v. Alexander , 662 F.2d 758, 762 (D.C. Cir. 1978) (Rule 15(b)’s “general principle” has been applied at summary jud gment stage), with Crawford v. Gould, 56 F.3d 1162, 1168-69 (9th Cir. 1995) (“The prese nt case did not go to trial; it was decided on motions for summary judgme nt. Therefore, the situation which Rule 15(b) addresses simply did not arise in the present case.”); Blue Cross Blue Shield v. Wietz , 913 F.2d 1544, 1550 (11th Cir. 1990) (Rule 15(b) is “inapposite” when case decided on summary judgment) ; Harris , 126 F. 3d at 344 n.3 (Rule 15(b) does not apply when case does not r each trial); and Indep. Petroleum Ass’n. of Am. v. Babbitt , 235 F.3d 588, 596 (D.C. Cir. 2001) (“It is an open question whether the Federal Rules permit part ies to impliedly consent to ‘try’ issues not raised in their pleadings through summary judgment motions.”).

-16- the motion differently? Doing so would be similar to a court’s resolving a contractual ambiguity contrary to the intent of bot h contracting parties. See Restatement (Second) of Contracts § 201(1) (1979) ( “Where parties have attached the same meaning to a promise or agreement or a ter m thereof, it is interpreted in accordance with that meaning.”). 1 We hold as a matter of law that RLUIPA qualified immunity was raised for the district court to consider in ruling on the motion for summary judgment.-17-

At oral argument, counsel for Mr. Ahmad asserted th at his response to the summary-judgment motion did not acknowledge that Ap pellants had raised a qualified-immunity defense to the RLUIPA claim. He characterized the response as an “even if” argument, meaning that he was simpl y arguing that “even if” the pleadings alleged qualified immunity on the RLUIPA claim, Appellants were not entitled to summary judgment. But that is not how the response framed the argument, and the district court could not have rea sonably read the response that way. Moreover, Mr. Ahmad posed no objection to the RLUIPA qualifiedimmunity defense being raised before the district c ourt. Instead, the magistrate judge sua sponte concluded that Appellants had limited their qualif ied-immunity defense to the constitutional claims. Finally, having accepted the district court’s deter mination that qualified immunity with respect to the RLUIPA claim was not p leaded in the Amended Answer, but also having concluded that it was adequ ately raised by the summaryjudgment motion, we consider whether Appellants sho uld have been precluded from constructively amending their answer by raisin g the defense in the motion. No grounds for such preclusion are apparent to us. Indeed, perhaps because Mr. Ahmad read the Amended Answer as asserting the defense, his response to the motion for summary judgment raised no objection to Appellants’ claiming RLUIPA qualified immunity. Nor did his counsel at oral argument point to any-18-

prejudice he would have suffered had the district c ourt considered the defense. In particular, counsel acknowledged that no additional discovery would have been necessary. We therefore hold that the defense coul d be raised for the first time in the summary-judgment motion. Had the district court ruled otherwise, the ruling would have been an abuse of discretion. We REVERSE the district court’s ruling that Appella nts waived the defense of qualified immunity on the RLUIPA claim, and REMAND for a determination of the issue.