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

### NOV 13 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TYRONE R. HAMMONS, individually and on behalf of those similarly situated, Plaintiff-Appellant,

v. JAMES L. SAFFLE, Director of Oklahoma Department of Corrections and/or his successors,

Defendant-Appellee. No. 02-5009

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 00-CV-143-H)

Tyrone R. Hammons filed briefs, pro se. Philip J. Weiser, University of Colorado School of Law, Boulder, Colorado, for Plaintiff-Appellant. Gregory Thomas Metcalfe, Assistant Attorney General , (Machelle Y. Thompson, Assistant Attorney General, with him on the briefs) , Oklahoma City, Oklahoma, for Defendant-Appellee.

Before MURPHY , BALDOCK , and O’BRIEN , Circuit Judges.

MURPHY , Circuit Judge.2

I. INTRODUCTION Plaintiff-appellant Tyrone R. Hammons is incarcerat ed at the Dick Conner Correctional Center in Hominy, Oklahoma. Defendant s-appellees James L. Saffle, et al., implemented prison policies in May 1999 and June 2002, prohibiting in-cell possession and use of oils thatHammons uses for his five daily Muslim prayers. Hammons, proceeding pro se , filed this action under 42 U.S.C. § 1983 seeking a declaratory judgment that h is First Amendment right to freely exercise his religion was violated. In addi tion, Hammons sought damages and injunctive relief, costs and fees, and punitive damages in the amount of $100,000 for the alleged violations of his First Am endment rights. Appellees moved for summary judgment. The district court granted appellees’ motion, ruling, as a matter of law, that Hammons’ First Ame ndment rights were not violated and that defendant Saffle was entitled to qualified immunity. Hammons appealed and was appointed counsel on appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, this court affirms the district court’s grant of summary judgment to appellees on the First Amendment and qualified immunity issues. Because t his court holds that, given the unique facts and procedural posture of this cas e, Hammons should be allowed to have the district court consider whether he has stated a claim under the Religious Land Use and Institutionalized Persons Ac t (“RLUIPA”), 42 U.S.C. §3

2000cc, it remands the case to the district court for further proceedi ngs not inconsistent with this opinion.
II. BACKGROUND Hammons is a devout Muslim. He abides by the tenet s of Islam that purport to advise followers to use Muslim prayer oi ls to enhance the spiritual value of their five daily prayers. Prior to May 19 99, Hammons was allowed to purchase his prayer oils subject to limitations and was allowed to possess and use them in his cell “without incident.” In May 1999, James L. Saffle, the director of the O klahoma Department of Corrections (“DOC”) who has final policy-making aut hority, enacted a new policy (“1999 Policy”) that banned sales of Muslim prayer oils in prison canteens and the in-cell possession and use of such oils by inmates. Muslim inmates could, however, access prayer oils through voluntee r chaplains who could provide the oils for inmate use during a religious service. Under the 1999 Policy, however, the volunteer chaplains had to take the pr ayer oils with them out of the prison facilities when they left. These volunteer chaplains were not available during each of the five daily Muslim prayers. More over, all inmates still could purchase “imitation designer colognes and oils” fro m the prison canteen and keep them in their cells. Hammons provided evidence that these “imitation designer colognes and oils” were not the prayer oils he used during his daily prayers4

because they were not prepared at the “spirit level .” There is no evidence, however, that the prayer oils’ chemical basis diffe rs from that of the “imitation designer colognes and oils” that continued to be so ld under the 1999 Policy. Evidence also indicates that the “imitation designe r colognes and oils” sold in the prison canteen under the 1999 Policy had a strongerscent than the prayer oils Hammons had been able to purchase and use prior to the implementation of the 1999 Policy. A committee formed to review all DOC policies regar ding canteen purchases found, in May 2001, that the “religious o ils” used by inmates were in fact “imitation designer colognes/perfumes.” Two s eparate tests conducted with drug-detecting dogs (“drug dogs”) determined that t he “imitation designer colognes/perfumes” masked the scent of drugs and in terfered with the drug dogs’ ability to successfully detect drugs. The committe e recommended that these substances no longer be sold in the prison canteens or by inmate clubs. Appellees conceded at oral argument that the drug d og tests were not conducted on the Muslim prayer oils used by Hammons. In response to the committee’s recommendations, app ellees enacted a new policy in June 2002 (“2002 Policy”) which prohibits the sale of both Muslim prayer oils and “imitation designer colognes/perfum es” in the prison canteen or by any inmate group. In addition, inmates are not allowed to use or possess these5

substances in their cells. Muslim inmates can own a bottle of prayer oil so long as it is used and stored in designated worship area s. Hammons’ assertion that Muslim inmates cannot access these designated worsh ip areas five times per day is not disputed by appellees.
III. DISCUSSION This court reviews an award of summary judgment de novo , viewing the record in the light most favorable to the non-movin g party. Hulsey v. Kmart,
Inc. , 43 F.3d 555, 557 (10th Cir. 1994). Moreover, thi s court construes a pro se party’s pleadings liberally. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Summary judgment is only appropriate when there is no genuine issue of material fact and the moving party is entitled to j udgment as a matter of law. Fed. R. Civ. P. 56(c). An issue of material fact i s genuine if a reasonable jury could return a verdict for the non-movant. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). If there is no genuine issue of material fact in dispute, this court then determines if the substantive law was co rrectly applied by the district

court. Sundance Assocs. Inc. v. Reno , 139 F.3d 804, 807 (10th Cir. 1998). This court reviews a district court’s conclusion that a defendant is entitled to qualified immunity de novo

. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002).6

A. First Amendment Claim Hammons argues that his First Amendment right to fr eely exercise his religion was violated by appellees’ 1999 Policy, wh ich prohibited in-cell use and possession of prayer oils while allowing in-cell us e and possession of imitation colognes and perfumes. Hammons does not argue thatthe 2002 Policy violates his First Amendment right to freely exercise his re ligion. Therefore, this court only rules on the constitutionality of the 1999 Pol icy. The Free Exercise Clause mandates that prison autho rities afford prisoners reasonable opportunities to exercise their sincerel y held religious beliefs. O’Lone v. Estate of Shabazz , 482 U.S. 342, 348 (1987). Inmates’ free exercise rights are, however, subject to prison restrictions rationally related to legitimate penological interests. Id. at 349. In this case, appellees had legitimate penological interests in preventing the use and pos session of illegal drugs, in maintaining prison order and safety, in crime deter rence, and in inmate rehabilitation. See Turner v. Safley , 482 U.S. 78, 91 (1987). In addition, appellees’ policies were rationally re lated to their valid penological interests. In determining whether a go vernmental policy is rationally related to a legitimate interest, this court weighs several factors. O’Lone , 482 U.S. at 350. First, the court considers whether th ere is a logical connection between the prison regulation and the asserted peno logical interest. Id. ; Turner ,7

482 U.S. at 89-91. Second, the court considers whe ther alternative means of exercising the religious right in question remain o pen to inmates. Turner , 482 U.S. at 90. Third, the court assesses the impact the accommodation of the right in question would have on guards, other inmates, an d on the allocation of prison

resources. Id. Fourth, the court considers whether any policy alt ernatives exist that would accommodate the right in question at de minimis cost to the prison. Id. at 91. Hammons argues that the 1999 Policy was not logical ly connected to appellees’ penological interests because the policy allowed inmates to access oils through volunteer chaplains but did not allow them to possess or use the oils in their prison cells. This argument fails because al lowing inmates to purchase the oils but to only possess them outside their cells i n designated, supervised areas did further appellees’ penological interests. Cons training prayer oil use to supervised, communal areas decreased the likelihood that these oils would have been used by inmates to mask the odor of drugs or t o slip out of handcuffs. Thus, the 1999 Policy was logically related to appe llees’ penological interests. Likewise, appellees’ failure to initially ban imitation colognes and perfumes, which have a stronger scent than Muslim p rayer oils, does not preclude a finding that the 1999 Policy was logical. Suprem e Court precedent indicates that appellees can, in some circumstances, implemen t policies that are logical but8

yet experiment with solutions and address problems one step at a time. City of Renton v. Playtime Theaters, Inc. , 475 U.S. 41, 52-53 (1986). These “one step at a time” policies that are held to be logical includ e, at a minimum, those cases where the final policy is not “under-inclusive.” Playtime Theaters , 475 U.S. at 52-53. In this case, appellees’ 2002 Policy bans i n-cell possession of both imitation colognes and perfumes and of prayer oils, and is therefore not “underinclusive.” Although some evidence indicates that Hammons’ prayer oils have a weaker scent than that of the imitation designer co lognes and perfumes sold in the canteen under the 1999 Policy, the prison admin istration nevertheless determined that such prayer oils can mask the scentof drugs. Appellees’ choice to take the less direct route of banning in-cell po ssession of prayer oils three years prior to banning in-cell possession of imitat ion colognes and perfumes does not preclude a holding that the 1999 Policy was nev ertheless rationally related to their legitimate penological interests. See Playtime Theaters, 475 U.S. at 52-53. Second, although Hammons could not possess and use his prayer oils in his cell under the 1999 Policy, he had alternative mean s of exercising his religion. Courts are particularly deferential to the policy j udgment of corrections officials in cases where other avenues remain available to in mates for the exercise of the asserted right. Turner , 482 U.S. at 90. Prison regulations allowed Hammo ns to purchase and access his prayer oils through a volun teer chaplain under the 19999

Policy. Hammons argues that this alternative is il lusory because he could not access and use prayer oils every time he recited hi s five daily prayers and because the chaplain is biased against Muslims. In some circumstances, it is indeed true that a pri son’s reliance on volunteers to provide inmates with religiously mand ated items does not suffice to constitute an alternative means for the inmates’ ex ercise of their religion. See Beerheide v. Suthers , 286 F.3d 1179, 1186 (10th Cir. 2002). In Beerheide , however, the DOC’s purported alternative was a bare assertion that the Jewish community could

choose to provide the free, religiously mandatory kosher meals to prisoners that the DOC failed to provide. Id. Beerheide is distinguishable from the case at bar on two levels. First, the DOC in Beerheide merely offered the speculative alternative that the Jewish communi ty could choose to provide kosher meals and the district court found that dail y provision of kosher food by the community was not feasible. Id

. In contrast, the DOC in this case has an inhouse chaplain and also customarily has volunteer c haplains come into the prison and provide Muslim inmates with their religious oil s, albeit not as often as Hammons desires. Second, the DOC in Beerheide was effectively forcing Jewish inmates to affirmatively consume non-kosher food th at they believed polluted their bodies, imperiled their souls, and was expres sly forbidden by their religion. See id. at 1186-87, 1192. The Beerheide court reasoned that “[i]t is one thing to10

curtail various ways of expressing belief, for whic h alternative ways of expressing belief may be found [; i]t is another th ing to require a believer to defile himself . . . by doing something that is completely forbidden by the believer’s religion.” Id. at 1192 (quotation omitted). Unlike Beerheide , the DOC in this case merely curtails a way of expressing a belief for which alternative ways of expressing that belief may be found. It do es not force an inmate to affirmatively take an action that defiles his body. Appellees’ restriction of a religious item that is asserted to merely enhance the religious experience of prayer is not comparable in gravity to the Beerheide DOC’s forcing inmates to eat food that they believed imperiled their souls b ecause it violated a religious mandate that they not pollute their bodies with non -kosher food. See id. This case is therefore distinguishable from Beerheide

. Furthermore, Hammons’ lack of in-cell access to prayer oils five times per day does not preclude this court’s conclusion that an alternative means of exercising his religion existed. See O’Lone , 482 U.S. at 351-53. This court has held that an alternative means exists so long as some means, albeit not plaintiff’s preferred means, of religious exercise is available

. See Clifton v. Craig , 924 F.2d 182, 183-84 (10th Cir. 1991). In addition, the mere diminishment, as opposed to complete denial, of Hammons’ spiritual experience i s relevant in determining whether the proffered penological interests suffice to justify the infringement.11

Makin v. Colo. Dept. of Corr. , 183 F.3d 1205, 1213 (10th Cir. 1999). As explained above, Hammons had the alternative of acc essing and using his prayer oils through volunteer chaplains. Hammons admits t hat the denial of in-cell access to prayer oils for each of his five daily pr ayers “significantly lessen[ed the] degree in the character of [his] spiritual exp erience,” but did not completely eradicate the value of his prayers. Therefore, thi s court holds that Hammons had an alternative means of exercising his religion. Third, accommodating Hammons’ need to access his pr ayer oils five times per day would likely have heavily burdened prison r esources and other inmates’ religious interests. See O’Lone , 482 U.S. at 352-53. Courts must be particularly deferential to the discretion of corrections offici als when the accommodation of an asserted right will have a significant ripple ef fect on fellow inmates or on prison staff. Beerheide , 286 F.3d at 1190. Evidence in the record demonstrates that the prison administration attempted to allocat e access to its chaplain and religious resources among Muslim inmates and inmate s from a variety of other religious denominations. Hammons admits that the c haplain and prison chapel were not available to Muslim inmates five times perday because “too many other religious groups ha[d] to be accommodated.” Thus, this is not a case where the difficulties of accommodation stem from the difficu lties inherent in implementing any new policy. Id. Accommodating Hammons’ desire to use prayer oils five12

times per day would have taken resources away from other religious groups that also needed access to the chapel and chaplain. The refore, the third factor weighs in favor of a finding that the 1999 Policy was rati onally related to a legitimate penological interest. See O’Lone , 482 U.S. at 352-53. Fourth, no evidence in the record suggests that an alternative existed to accommodate Hammons’ need to use the prayer oils fi ve times per day at only a de minimis cost to appellees’ valid penological interests. See Turner , 482 U.S. at 89-91. There is no evidence in the record of any a lternative that would have allowed Hammons to access his prayer oils five time s per day without imposing a heavy burden on prison resources. Hammons does all ege, however, that prior to the implementation of the revised policies he was a llowed to use his prayer oils in his cell “without incident.” The mere lack of i ncident under the former policy, however, does not establish that such an incident w ould not occur in the future. The 1999 Policy’s ban of prayer oils reflected appe llees’ informed judgment that such an incident could occur in the future. This c ourt must defer to the prison administration’s judgment in analyzing the policy. See Procunier v. Martinez , 416 U.S. 396, 405 (1974). Given the above factors, this court holds that appe llees’ 1999 Policy was rationally related to a legitimate penological inte rest. This court therefore1 The qualified immunity issue is not affected by ourremand of the

RLUIPA issue. On appeal, Hammons seeks injunctive relief under RLUIPA and qualified immunity applies only to claims for damag es. Anderson v. Creighton , 483 U.S. 635, 646 (1987); Kikumura v. Hurley , 242 F.3d 950, 962-63 (10th Cir. 2001). 13 affirms the district court’s grant of summary judgment in appellees’ favor on Hammons’ First Amendment claim. Since Hammons failed to show that his clearly estab lished First Amendment rights were violated, this court affirms the district court’s holding that Saffle is entitled to qualified immunity. 1 See Saucier v. Katz , 533 U.S. 194, 202 (2001); Anderson v. Creighton , 483 U.S. 635, 640 (1987). Qualified immunity shields government officials from suit if the officials’ conduct does not violate clearly established rights of which a reaso nable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Although it was clearl y established that Hammons had the general right to t he reasonable opportunity to exercise his religion, Hammons failed to prove thathis free exercise rights were in fact violated. See id. ; Makin , 183 F.3d at 1210 n.4. Therefore, Saffle is entitled to qualified immunity. Pueblo Neighborhood Health Ctrs. v. Losavio , 847 F.2d 642, 646 (10th Cir. 1988). B. Religious Land Use and Institutionalized Person s Act claim Hammons argues, for the first time on appeal, that the district court should have construed his complaint to assert a claim unde r RLUIPA, given his pro se2 RLUIPA provides, in relevant part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an instituti on . . . even if the burden results from a rule of general applicability, unles s 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 t hat compelling

governmental interest. 42 U.S.C. § 2000cc-1(a). In addition, RLUIPA defin es “religious exercise” as “includ[ing] any exercise of religion, whether o r not compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A ). 14 status in the proceedings below. 2 Pro se plaintiffs are required to allege the necessary underlying facts to support a claim undera particular legal theory. See Bellmon , 935 F.2d at 1110; Dunn v. White , 880 F.2d 1188, 1197 (10th Cir. 1989). In this case, Hammons filed his complaint in February 2000 asserting that the 1999 Policy violated his religious freedom rights. RLUIPA was enacted in September 2000. The district court entered summaryjudgment for appellees in November 2001. At the summary judgment proceedings , evidence of appellees’ proposed 2002 Policy was presented. Hammons, howev er, never raised a RLUIPA claim. Accordingly, appellees were never gi ven an opportunity to defend against a RLUIPA claim. Neither party broug ht the newly enacted legislation to the attention of the district court. Hammons argues on appeal that had the district court applied the new RLUIPA legislation to the facts of his case it woul d not have granted summary3 Appellees argue that RLUIPA does not bar the grant of summary judgment

in their favor because it is unconstitutional. Sin ce a RLUIPA claim was never argued before the district court, however, this cou rt does not reach the question of the statute’s constitutionality. See, e.g., Dist. 22 United Mine Workers of Am. v. Utah , 229 F.3d 982, 991-92 (10th Cir. 2000). We note t hat a party challenging the constitutionality of legislation should call th e attention of the court to its consequential duty to notify the attorney general o f the challenge pursuant to 28 U.S.C. § 2403(a). See Fed. R. Civ. P. 24(c); Fed. R. App. P. 44(a). 15 judgment in appellees’ favor. Hammons argues that appellees’ 2002 Policy, which prohibits in-cell possession and use of both prayer oils and of nonreligious imitation designer colognes and perfumes, violates RLUIPA. Given the unique facts and procedural posture of th is case, the district court never considered whether Hammons’ complaint s tated a claim under RLUIPA. On remand, the district court should construe Hammons’ pro se complaint in light of RLUIPA or consider whether to appoint counsel to assist Hammons in presenting the RLUIPA claim. Marshall v. Columbia Lea Regional Hosp. , 2003 WL 22230113 at *21 (10th Cir. Sept. 29, 2003 ). If it is determined that Hammons has stated a claim for relief under RLUIPA, appellees may then raise any appropriate defenses to the RLUIPA claim. See Fed. R. Civ. P. 8(a); Fed. R. Civ. P. 12(b). 3

IV. CONCLUSION For the foregoing reasons, this court AFFIRMS the district court’s grant of summary judgment in appellees’ favor on Hammons’ Fi rst Amendment claim.16

This court AFFIRMS the district court’s ruling that Saffle is entitled to qualified immunity. This court REMANDS the case to the district court for proceedings on a RLUIPA claim not inconsistent with this opinio n.