### The Honorable Lyle E. Strom, United State s District Judge for 1 

### the District of Nebraska. ___________ No. 95-4197

___________ 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. *

___________ Submitted: September 9, 1996 Filed: January 8, 1997

___________ Before McMILLIAN, MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

Pl aintiff Ralph Thomas appeals from a final order entered in th e United States District Court for the District of Nebraska gran ting summary 1 judgment in favor of defendant prison officials, Thomas v. Gunter , No
. 8:CV89 -00728 (D. Neb. Nov. 9, 1995) (Memorandum Opinion), following ou r 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 h im daily access to a sweat lodge for prayer and (2) the denial of access al so violated his Fourteenth Amendment right to equal protection because inmates of

### -2-

other religions had daily access to prison facil ities for prayer. For the reasons discussed below, we affirm.

I. Background

Plainti ff, a Native American, was incarcerated at the Omah a Co rrectional Center ("OCC") from January 1989 through February 1990

. During this period, plaintiff requested defendants to provide daily an d extended access on weekday afternoons to the prison sweat lodge for prayer

. The swea t lodge is located in a restricted area of the prison and onl y approved inmates are allowed in the area. The s weat lodge is available to inmates for three hours on Saturday and three hours on Sunday mornings, an d occasionally, if enough interest is shown, on weekend afternoons. Th e sweat lodg e is also available for two and one-half hours on Wednesda y evenings during daylight savings time and on all holidays.

Whenthe prison chapel is not scheduled for use by a particula r reli gious group, it is open to all religions when the coordinator i s 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.

Plain tiff submitted a request for daily access to the sweat lodg e from 12:30-4:30 p.m. Defendants denied plaintiff's request allegedly for security reasons. Pl aintiff brought this 42 U.S.C. § 1983 action against defe ndants claiming denial of daily access to the prison sweat lodg e violat ed his First and Fourteenth Amendment rights. Plaintiff late r modified his request to brief daily access in hi s third amended complaint.
The district court, upon recommendat ion of the magistrate, initially granted defendants' motion for summary judgment both on

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the merits (i.e., whe ther the limitation of access to the sweat lodge was
con stitutional) and on the issue of whether defendants were entitled t o qualif ied immunity. Plaintiff appealed and this court reversed th e distri ct court's order and remanded the case for further proceeding s consistent with our o pinion. Thomas , 32 F.3d at 1262. We held there was a genuine issue of ma terial fact as to whether the refusal to allow brief dai lyaccess to the prison sweat lodge was rationally related to a legitimate penologica l interest. We further stated that prison officials would not be entitled to qualified immunity unle ss a rational relationship could be drawn betwee n legitimate penological interests and the denial of
even brief access to the prison sweat lodge. On remand, the district cour t granted defendants' m otion 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, a nd this court on appeal, is whether the record, when viewe d in the light most favorable to the non-moving party, shows tha t there is no genuine issue as to any material fact and that the moving part y 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. LibertyLobby, 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 th e first appeal, this court applied the doctrine of qualifie d immunityto the facts of the present case, as they had been developed at that point:

It is true that officials engaged in ex ecutive functions, such a s the operation of penal institutions, enjoy qualifie d immunity. This immunity, however, is available only if their "conduct does not violate clearly

### -4- establ ished statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fit zgerald , 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), tha t prison officials may not deny an inmate "a reasonabl e opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoner s 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 fo r everyfaith, reasonable opportunities must be afforded to all prisoners. . . .
We cannot sa y, without reasons advanced by [defendants], that they acted reasonab ly in denying [plaintiff] daily access to the sweat lodge for p rayer. If a rational relationship can be sho wn between legitimate penological interests and th e denial of even brief access to the sweat lodge, such a denial may not have been unreasonable. In the absence of such a justification, [defendan ts] would not be entitled to qualified immunity from § 1983 liability.

Thomas , 32 F.3d at 1261.

On r emand, the district court reviewed defendants' conduct , concentrating its ana lysis on the objective reasonableness of the conduct in relat ion to the clearly established law in force at the time of th e allege d violation. The district court concluded that defendants ha d provid ed the Native American inmates with a reasonable opportunity t o pursue their faith. Thus, the district court held defendants were entitle d to qualified immunity.

Fo r reversal, plaintiff argues that defendants failed to establis h 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 

### cond uct; rather, it addresses whether it was objectivel y reasonable.

At oral argument, counsel for plaintiff argued tha t 3 

### defendants were unreasonable in failing to offer daily access for less than the requested four h ours per day. Thus, plaintiff would have this court place on defendants the burden of not onl y evaluating the reasonableness of an inmate's request but als o co nsidering all possible alternatives which the inmate did no t request or propose. We disagree with this position. If a request is made by an inmate, prison officials are obligated to investigate the reasonable ness of tha t request but are not required to investigate lesser request s -5- interests. Defendants argue that they demonstra ted beyond genuine dispute that a rational relationship exists.

It has been "clearly established law" since 1972 that priso n 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 equ al access to the prison chapel and equal opportunity to ea rn points of good merit for religious conviction. Id . at 322. I n dic ta, however, the Court explained that its holding was not to b e construed as mandating that all religious groups, however few, must have identi cal facilities or access, and special accommodations need not b e given to all faiths. Id. at n.2.

Upon de n ovo review, we hold that defendants' denial of plaintiff's initial request for daily and extended access onweekday afternoons to the sweat lodge was rationally related to legitimate penological interests. 2 First, Native Americans, with six scheduled hours per week at the swea t lodge, had more scheduled worship time per week than any other religious group, including Christians, who had three hours per week, and Muslims, wh o had five hours per we ek. Second, Native Americans also had access to the non-denominational chapel whenever it was available. Finally, plaintiff specifically requested four hours of daily acces s 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. -6- Defendant s acted reasonably in denying daily and extended access on weekday afternoons to the sweat lodge. First, t he 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 an d required defendants to station more guards at the entrance. This woul d 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 th e sweat lodge at the re quested time would have been in direct conflict with these scheduled activities. Thus, there was a rational relationshi p betw eenlegitimate 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 t he district court did not err in granting summary judgment in favor of defendant s on qualified immunity grounds. Defendants' denial of plaintiff's request for daily and extended ac cess on weekday afternoons to the prison sweat lodge was rationally relatedto legitimate penological interests.
Accordingly, we affirm the judgment of the district court.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.