The Honorable Lyle E. Strom, United States District Judge for 1

the District of Nebraska.

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No. 95-4197

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Ralph Thomas, *

*

Appellant, *

*

v. *

* Appeal from the United States

Frank O. Gunter; Karen * District Court for the

Shortridge, Superintendent; * District of Nebraska

Robert Houston, Associate *

Superintendent, *

*

Appellees. *

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 Submitted: September 9, 1996

 Filed: January 8, 1997

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Before McMILLIAN, MAGILL and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

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McMILLIAN, Circuit Judge.

Plaintiff Ralph Thomas appeals from a final order entered in the

United States District Court for the District of Nebraska granting summary 1

judgment in favor of defendant prison officials, Thomas v. Gunter, No.

8:CV89-00728 (D. Neb. Nov. 9, 1995) (Memorandum Opinion), following our

remand with directions in an earlier appeal. Id., 32 F.3d 1258, 1262 (8th

Cir. 1994) (Thomas). For reversal, plaintiff argues that (1) defendants

violated his First Amendment rights by denying him daily access to a sweat

lodge for prayer and (2) the denial of access also violated his Fourteenth

Amendment right to equal protection because inmates of
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other religions had daily access to prison facilities for prayer. For the

reasons discussed below, we affirm.

I. Background

Plaintiff, a Native American, was incarcerated at the Omaha

Correctional Center ("OCC") from January 1989 through February 1990.

During this period, plaintiff requested defendants to provide daily and

extended access on weekday afternoons to the prison sweat lodge for prayer.

The sweat lodge is located in a restricted area of the prison and only

approved inmates are allowed in the area. The sweat lodge is available to

inmates for three hours on Saturday and three hours on Sunday mornings, and

occasionally, if enough interest is shown, on weekend afternoons. The

sweat lodge is also available for two and one-half hours on Wednesday

evenings during daylight savings time and on all holidays. 

When the prison chapel is not scheduled for use by a particular

religious group, it is open to all religions when the coordinator is

available. The prison chapel is available to Christians from 9:00-10:00

a.m. on Sundays, and 12:30-1:00 p.m. on Monday through Thursdays, and to

Muslims from 1:00-1:30 p.m. everyday and 1:30-3:00 p.m. on Fridays. 

Plaintiff submitted a request for daily access to the sweat lodge

from 12:30-4:30 p.m. Defendants denied plaintiff's request allegedly for

security reasons. Plaintiff brought this 42 U.S.C. § 1983 action against

defendants claiming denial of daily access to the prison sweat lodge

violated his First and Fourteenth Amendment rights. Plaintiff later

modified his request to brief daily access in his third amended complaint.

The district court, upon recommendation of the magistrate, initially

granted defendants' motion for summary judgment both on
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the merits (i.e., whether the limitation of access to the sweat lodge was

constitutional) and on the issue of whether defendants were entitled to

qualified immunity. Plaintiff appealed and this court reversed the

district court's order and remanded the case for further proceedings

consistent with our opinion. Thomas, 32 F.3d at 1262. We held there was

a genuine issue of material fact as to whether the refusal to allow brief

daily access to the prison sweat lodge was rationally related to a

legitimate penological interest. We further stated that prison officials

would not be entitled to qualified immunity unless a rational relationship

could be drawn between legitimate penological interests and the denial of

even brief access to the prison sweat lodge. On remand, the district court

granted defendants' motion for summary judgment on the qualified immunity

issue. Slip op. at 19. Plaintiff appeals.

II. Discussion

We review a grant of summary judgment de novo. The question before

the district court, and this court on appeal, is whether the record, when

viewed in the light most favorable to the non-moving party, shows that

there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.

Liberty Lobby, Inc.. 477 U.S. 242, 249-50 (1986); Get Away Club, Inc. v.

Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co.

v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992). 

In the first appeal, this court applied the doctrine of qualified

immunity to the facts of the present case, as they had been developed at

that point: 

It is true that officials engaged in executive functions,

such as the operation of penal institutions, enjoy qualified

immunity. This immunity, however, is available only if their

"conduct does not violate clearly
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established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982);

accord Smith v. Marcantonio, 910 F.2d 500, 501 (8th Cir. 1990).

The proper inquiry in the present case, therefore, is whether

the free exercise of religion within a penal setting is a

clearly established right. 

It has been "clearly established" since Cruz v. Beto, 405

U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (per curiam),

that prison officials may not deny an inmate "a reasonable

opportunity of pursuing his faith comparable to the opportunity

afforded fellow prisoners who adhere to conventional religious

precepts." Id. at 322, 92 S. Ct. at 1081. . . . [W]hile a

special chapel or place of worship need not be provided for

every faith, reasonable opportunities must be afforded to all

prisoners. . . .

We cannot say, without reasons advanced by [defendants],

that they acted reasonably in denying [plaintiff] daily access

to the sweat lodge for prayer. If a rational relationship can

be shown between legitimate penological interests and the

denial of even brief access to the sweat lodge, such a denial

may not have been unreasonable. In the absence of such a

justification, [defendants] would not be entitled to qualified

immunity from § 1983 liability.

Thomas, 32 F.3d at 1261. 

On remand, the district court reviewed defendants' conduct,

concentrating its analysis on the objective reasonableness of the conduct

in relation to the clearly established law in force at the time of the

alleged violation. The district court concluded that defendants had

provided the Native American inmates with a reasonable opportunity to

pursue their faith. Thus, the district court held defendants were entitled

to qualified immunity.

For reversal, plaintiff argues that defendants failed to establish

the required rational relationship between the denial of daily access to

the sweat lodge and legitimate penological
 Our holding does not address the merits of defendants'

2

conduct; rather, it addresses whether it was objectively

reasonable.

 At oral argument, counsel for plaintiff argued that

3

defendants were unreasonable in failing to offer daily access for

less than the requested four hours per day. Thus, plaintiff would

have this court place on defendants the burden of not only

evaluating the reasonableness of an inmate's request but also

considering all possible alternatives which the inmate did not

request or propose. 

We disagree with this position. If a request is made by an inmate,

prison officials are obligated to investigate the reasonableness of

that request but are not required to investigate lesser requests

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interests. Defendants argue that they demonstrated beyond genuine dispute

that a rational relationship exists. 

It has been "clearly established law" since 1972 that prison

officials must afford inmates a reasonable opportunity to practice their

religion. See Cruz v. Beto, 405 U.S. 319, 322 (1972)(per curiam)(Cruz).

In Cruz, the Supreme Court held that it was unconstitutional to deny a

Buddhist prisoner equal access to the prison chapel and equal opportunity

to earn points of good merit for religious conviction. Id. at 322. In

dicta, however, the Court explained that its holding was not to be

construed as mandating that all religious groups, however few, must have

identical facilities or access, and special accommodations need not be

given to all faiths. Id. at n.2. 

Upon de novo review, we hold that defendants' denial of plaintiff's

initial request for daily and extended access on weekday afternoons to the

sweat lodge was rationally related to legitimate penological interests.2

First, Native Americans, with six scheduled hours per week at the sweat

lodge, had more scheduled worship time per week than any other religious

group, including Christians, who had three hours per week, and Muslims, who

had five hours per week. Second, Native Americans also had access to the

non-denominational chapel whenever it was available. Finally, plaintiff

specifically requested four hours of daily access to the sweat lodge where

inmates of other religions were allowed only a half hour of daily access

for prayer. 

3
which could have been made. 

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Defendants acted reasonably in denying daily and extended access on

weekday afternoons to the sweat lodge. First, the sweat lodge was located

near a truck delivery entrance where deliveries were made during business

hours Monday through Friday, the precise hours plaintiff requested access

to the sweat lodge. The open entrance would have posed a security risk and

required defendants to station more guards at the entrance. This would

have required defendants to reallocate resources to accommodate the Native

Americans. Finally, the inmates were scheduled to work in educational and

vocational activities during the requested hours. Daily access to the

sweat lodge at the requested time would have been in direct conflict with

these scheduled activities. Thus, there was a rational relationship

between legitimate penological interests and the denial of plaintiff's

request for daily and extended access on weekday afternoons to the sweat

lodge.

III. Conclusion

We hold the district court did not err in granting summary judgment

in favor of defendants on qualified immunity grounds. Defendants' denial

of plaintiff's request for daily and extended access on weekday afternoons

to the prison sweat lodge was rationally related to legitimate penological

interests. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.