UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ROGER D. PFEIL, 

 Plaintiff - Appellant, 

v. 

ROBERT LAMPERT, in his official 

capacity as WYOMING DEPARTMENT 

OF CORRECTIONS DIRECTOR and in 

his individual capacity; MICHAEL 

PACHECO, in his official capacity as 

WYOMING DEPARTMENT OF 

CORRECTIONS HONOR FARM 

WARDEN and in his individual capacity, 

 Defendants - Appellees. 

No. 14-8035 

(D.C. No. 2:12-CV-00184-SWS) 

(D. Wyo.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, McKAY, and McHUGH, Circuit Judges. 

 

 Plaintiff Roger D. Pfeil, at all relevant times a Wyoming state prisoner, 

brought this action against Wyoming Department of Corrections (WDOC) Director 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 20, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Robert Lampert and Wyoming Honor Farm (WHF) Warden Michael Pacheco, in their 

individual and official capacities, alleging the denial of his rights under the Religious 

Land Use and Institutionalized Persons Act of 2000 (RLUIPA), actionable pursuant 

to 42 U.S.C. § 2000cc-1, and the Free Exercise Clause of the First Amendment, 

actionable under 42 U.S.C. § 1983. He later added claims for the denial of his rights 

under the Americans with Disabilities Act (ADA) and unconstitutional retaliation for 

protected activities related to this action. In a published decision on cross-motions 

for summary judgment, the district court ruled for defendants on all claims. See Pfeil 

v. Lampert, 11 F. Supp. 3d 1099 (D. Wyo. 2014). As explained below, we dismiss 

the appeal for mootness insofar as it involves RLUIPA claims and otherwise affirm 

the district court for substantially the reasons stated in its decision. 

PROCEDURAL SUMMARY 

 Mr. Pfeil has, until very recently, been incarcerated by the State of Wyoming 

since pleading guilty to second-degree murder in 1997. When he filed this action in 

August 2012, he was confined at the WHF, where he had been placed in May 2009. 

His complaint alleged that defendants had impeded the free exercise of his religious 

rights as a practicing Catholic in two primary respects: (1) enforcing a new policy 

prohibiting inmates from possessing hardbound books, thereby depriving him of his 

two bibles and a religious commentary,1

 which were printed in a font size that he 

 

1

 He also complained of the loss of a standard secular dictionary, which would 

not appear to raise any free-exercise implications. Even if it did, its inclusion in the 

(continued) 

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could read despite vision problems; and (2) not allowing a Eucharistic Minister to 

enter the prison under a policy conditioning admission on possession of a current 

approved application, which the minister did not have. The complaint also included a 

chronicle of alleged religious deprivations dating back to the late 1990s when 

Mr. Pfeil was confined in other facilities, many out of state (per contracts with 

WDOC). We agree with the district court that any redress for these ancillary 

allegations was barred by statute of limitations and/or exhaustion principles. See id.

at 1105 n.1, 1107. Events prior to August 2008 are barred by the four year 

limitations period applicable to claims under both § 1983, see Gee v. Pacheco, 

627 F.3d 1178, 1189-90 (10th Cir. 2010), and RLUIPA, see Pouncil v. Tilton, 

704 F.3d 568, 573 (9th Cir. 2012), cert. denied, 134 S. Ct. 76 (2013). As for 

exhaustion, Mr. Pfeil specifically identified the grievances through which he insisted 

he had exhausted his religious exercise claims, see R. Vol. 1, at 25-26 (complaint), 

283 (summary judgment memorandum), and these properly exhausted only the two 

claims noted above (and in particular did not exhaust any additional events within the 

limitations window after August 2008).2

 

 

analysis to follow would not alter our conclusions reached with respect to the other, 

clearly religious books. 

2

 In this vein, Mr. Pfeil objects that WDOC did not extend its own grievance 

procedures to Wyoming prisoners housed in out-of-state facilities, which he contends 

is required by the Western Interstate Corrections Compact (WICC), Wyo. Stat. Ann. 

§ 7-3-401. But the only state he was confined in during the limitations period was 

Virginia, which is not covered by the WICC, see id. § 7-3-401 (Art. VII). Similarly, 

on the merits, Mr. Pfeil’s reliance on WICC for holding WDOC Director Lampert 

(continued) 

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Both parties moved for summary judgment. In his briefing on the motions, 

Mr. Pfeil voiced additional complaints about defendants’ failure to accommodate his 

vision problems and alleged acts of retaliation (including a transfer from WHF to the 

Wyoming Honor Conservation Camp in October 2012) for filing this case. After 

defendants objected to the interjection of these new claims, Mr. Pfeil asked to 

supplement his pleadings to add them. The district court granted his request, deemed 

the pleadings amended accordingly, and gave defendants a short time to submit a 

brief and affidavits addressing the new claims, which they did. Nine months later, 

the district court granted summary judgment for defendants on all claims. 

ANALYSIS 

 Because Mr. Pfeil appeals from the grant of summary judgment, our review is 

de novo. See Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir. 2005). But we limit our 

review to the issues he has raised on appeal. See id. In addition, a significant portion 

of this appeal, involving Mr. Pfeil’s RLUIPA claims, has become moot. RLUIPA is 

limited to official capacity claims for equitable relief. See Sossamon v. Texas, 

131 S. Ct. 1651, 1655 (2011) (holding Eleventh Amendment immunity bars RLUIPA 

claims for money damages); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012) 

(noting RLUIPA does not permit individual capacity claims). Consequently, 

RLUIPA claims regarding prison conditions become moot if the inmate plaintiff is 

 

responsible for any religious inadequacies at that out-of-state facility would be 

unavailing. 

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released from custody. See Alvarez v. Hill, 667 F.3d 1061, 1063-65 (9th Cir. 2012). 

That has occurred here. Mr. Pfeil was released from WDOC custody on September 

9, 2014. Accordingly, we dismiss this appeal insofar as it involves his RLUIPA 

claims, vacate that portion of the district court’s judgment resolving those claims on 

the merits, and remand the claims for dismissal by the district court.3

 See, e.g., 

Watkins v. Mabus, 502 U.S. 954, 954 (1991) (effectuating Munsingwear4

 mootness 

procedure in appeal mooted only in part by intervening events). 

We turn now to the claims that remain in controversy on this appeal. 

A. Exclusion of Minister for Lack of Application with Current Information 

The district court’s opinion sets out the factual details of this claim. See Pfeil, 

11 F. Supp. 3d at 1111. Basically, a volunteer minister was not permitted to enter the 

prison to provide Catholic services on one occasion because personal information on 

his application was not current, as required by prison policy for admission of outside 

volunteers. Mr. Pfeil claimed this policy violated his rights under the Free Exercise 

Clause.5

 The fact that we are now concerned only with this constitutional claim has a 

 

3

 We note that the parties were afforded an opportunity to address the mootness 

issue through an order to show cause, to which they failed to respond. 

4

 United States v. Munsingwear, Inc., 340 U.S. 36 (1950). 

5

 To the extent Mr. Pfeil complains of the incident itself, as distinct from the 

policy it implemented, his constitutional claim would necessarily fail because WDOC 

Director Lampert and Warden Pacheco did not personally participate in it. See

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Of course, even if a 

participating official had been sued, adherence to this policy—which we hold to be 

constitutionally permissible—would not afford a basis for liability. 

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significant consequence for our analysis of Mr. Pfeil’s case. As with a RLUIPA 

claim, he must show that the policy substantially burdened his religious beliefs. Kay 

v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). But even assuming such a burden, 

the policy will survive constitutional scrutiny if it is reasonably related to legitimate 

penological interests.6

 See id. at 1218-19 (following O’Lone v. Estate of Shabazz, 

482 U.S. 342 (1987), and Turner v. Safley, 482 U.S. 78 (1987)). Once such interests 

are identified, “[t]he burden then returns to the prisoner to show that these articulated 

concerns were irrational.” Id. at 1218 n.2 (internal quotation marks omitted). 

The district court concluded that even if the policy excluding volunteers 

lacking up to date information imposed a substantial burden on Mr. Pfeil’s religious 

practice, it was justified by legitimate penological interests. In this regard, the court 

recognized the interests in “maintaining security, safety, and orderly operation” 

served by a prison policy requiring current information on the background of those 

permitted to enter and interact with inmates. Pfeil, 11 F. Supp. 3d at 1115. The court 

elaborated on this point while discussing the counterpart RLUIPA claim: 

The WDOC, in order to protect inmates and volunteers, and maintain 

security of the facility, conducts criminal background checks and 

maintains updated contact information for each volunteer. Volunteers 

are also required to complete orientation and training related to safety 

and security issues such as emergency response conditions, facility 

evacuation, and learning the primary rules and lines of authority. 

 

6

 In contrast, RLUIPA requires the government to justify a substantial burden on 

religion by demonstrating a compelling interest served by the least restrictive means 

available. Kay, 500 F.3d at 1221 (discussing 42 U.S.C. § 2000cc-1). 

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Plaintiff argues there is no compelling safety and security interest 

in requiring ministers to complete a new application and go through the 

entire approval process each and every year. However, prison officials 

need not wait for a problem to arise before taking steps to minimize 

security risks. The requirement that each volunteer provide current 

contact information before being admitted to a WDOC facility is an 

appropriate proactive approach to ensuring facility safety and security 

and is the least restrictive means for doing so. 

Id. at 1113 (citations and internal quotation marks omitted). 

The district court went on to explain the reasonableness of the volunteer policy 

under the O’Lone/Turner framework in light of the rational connection between the 

policy and the interests supporting it, the availability of other means for inmates to 

exercise their religion, the adverse impact on prison operation and personnel if the 

policy were not enforced, and the lack of ready practical alternatives to safeguard the 

interests involved. See id. at 1115-17; see also Kay, 500 F.3d at 1219 (identifying 

such considerations as relevant in assessing the reasonableness of prison policies 

affecting religious practice of inmates). On appeal Mr. Pfeil has not raised any 

cogent objection to this thorough analysis. We affirm the district court’s grant of 

summary judgment to defendants on this claim. 

B. Prohibition on Possession of Hardbound Books 

In 2012, WDOC adopted and WHF implemented a new property-control policy 

prohibiting inmates from possessing hardbound books in their living quarters. The 

primary reasons for the new policy were that hardbound books can be used for hiding 

contraband or weapons and that the hard covers themselves can be used as weapons. 

Pfeil, 11 F. Supp. 3d at 1105-06. In addition, eliminating such books reduces the 

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time and resources the prison must expend to inspect and search property in inmates’ 

cells. Id. at 1106. Finally, the policy was also adopted to meet requirements for 

accreditation with the American Correctional Association. Id. As a result of the 

policy, Mr. Pfeil had to relinquish two bibles and a biblical reference work, which 

were sent to his family for safekeeping. He claims that prohibiting his possession of 

these books, and not providing him with adequate replacements, violated his rights 

under the Free Exercise Clause. 

The district court rejected this claim under the O’Lone/Turner framework as 

well. Again, it noted that important prison interests in security, safety, and orderly 

operation (as specified above) support the prohibition on possession of hardbound 

books in inmate living quarters. Id. at 1115. Mr. Pfeil insists these interests are 

exaggerated—a criticism that (when warranted) carries weight under the compelling 

interest standard for RLUIPA claims. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 

1318 (10th Cir. 2010). But we do not think the criticism has force here; rather, we 

agree with the district court that, viewed with the deference owed the professional 

judgment of prison administrators on such matters, the concerns noted above are 

sufficient to justify the challenged policy under the legitimate interest standard for 

Free Exercise claims. See Pfeil, 11 F. Supp. 3d at 1115. 

As it did with the volunteer policy, the district court went on to discuss the 

rational connection between the hardbound book policy and the interests it served, 

the availability of other means for inmates to exercise their religion (particularly their 

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ability to obtain softbound religious books through purchase, rebinding of hardbound 

books,7

 or from the prison library), the adverse impact on prison operation if the 

policy were not enforced, and the lack of ready practical alternatives that would 

safeguard the interests involved. See id. at 1115-17; see also id. at 1112-14 

(discussing at length the means available to inmates to replace proscribed hardbound 

religious books). Mr. Pfeil takes issue in particular with the conclusion that he had 

alternatives to his hardbound religious books, objecting that (1) he could not afford to 

purchase replacements for his confiscated books and (2) even if he could afford 

replacements, they were not available in a font size large enough for him to read due 

to vision problems. The first objection is readily answered by precedent rejecting the 

notion that prisons must subsidize inmates’ access to religious materials. Even under 

the stricter obligations imposed by RLUIPA, the State is “not require[d] . . . to pay 

for an inmate’s devotional accessories.” Cutter v. Wilkinson, 544 U.S. 709, 720 n.8 

(2005). And we have specifically invoked this no subsidy principle to hold that a 

prison does not have to pay for softbound versions of confiscated hardbound 

religious texts. See Abdulhaseeb, 600 F.3d at 1320-21. 

As for font size, Mr. Pfeil does not cite any authority holding that the 

constitution requires prisons to purchase religious books to accommodate the 

 

7

 The prisons have machines available to convert books from hardbound to 

softbound. Mr. Pfeil objects that he was not offered this service for his confiscated 

religious books, but he has not cited any evidence showing that he specifically asked 

for this to be done and was denied. 

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physical limitations (or personal preferences) of their inmates. Indeed, such an 

obligation would be inconsistent with the no subsidy principle applied in 

Abdulhaseeb, which unqualifiedly held that prisons are not required to provide 

replacements for confiscated hardbound books at all. This aspect of Mr. Pfeil’s case 

is more aptly considered in connection with accommodation obligations under the 

ADA, which is primarily how he presented it to the district court. His ADA claim is 

addressed in the next section of this order and judgment. 

Mr. Pfeil has failed to demonstrate any error in the district court’s analysis of 

his Free Exercise claim regarding the prohibition on possession of hardbound books. 

We therefore affirm the grant of summary judgment to defendants on this claim as 

well. 

C. ADA Claim 

Mr. Pfeil claims that the failure to provide him with large print versions of his 

confiscated religious books violated his right to reasonable accommodation under the 

ADA. The district court identified two distinct dispositive deficiencies with respect 

to this claim: (1) it had not been exhausted in Mr. Pfeil’s grievances over 

confiscation of his books; and (2) on the merits, he had not shown the requisite 

disability to trigger a duty to accommodate under the ADA. Pfeil, 11 F. Supp. 3d at 

1119. We agree with the first point and need not reach the second. 

Absent a controlling statutory or regulatory directive specifying the requisite 

content of prison grievances (and none have been cited to us here), an inmate 

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properly exhausts a claim if his grievance provides enough information regarding the 

nature of the alleged wrong to enable prison officials to investigate and address his 

complaint. Kikumura v. Osagie, 461 F.3d 1269, 1283-85 (10th Cir. 2006), overruled 

on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as explained in

Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008). The relevant 

materials here are the grievances (initial grievance and subsequent appeals) Mr. Pfeil 

submitted complaining of the confiscation of his religious books pursuant to the 

prohibition on hardbound books. Even judged under the fairly lenient standard 

clarified in Kikumura, Mr. Pfeil’s grievances did not exhaust an ADA claim. 

The only legal rights invoked in the grievances were those under RLUIPA and 

the Free Exercise Clause, which Mr. Pfeil alleged were violated by the confiscation 

of hardbound religious books that he could not afford to replace. Nowhere is there 

any mention of an ADA claim. But his omission went much further than just not 

invoking the ADA. He simply never asked for an accommodation of any vision 

problems, which is the essence of his present ADA claim. Indeed, he never even 

mentioned a disability. His only reference remotely relevant to an ADA claim was 

on appeal from the denial of his initial grievance when he said in passing that a 

softbound bible given to him by a prison chaplain did not offset the loss of his own 

because its print happened to be too small for him to read. He said nothing about any 

disabling limitation arising from a vision impairment (the macular degeneration and 

cataracts he now claims require accommodation made their first appearance in the 

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affidavit he filed with the complaint initiating this lawsuit). In sum, Mr. Pfeil did not 

provide enough information in his grievances to enable prison officials to investigate 

and address the material elements of the ADA claim he later brought in this case. 

D. Retaliation 

The district court methodically addressed Mr. Pfeil’s various allegations of 

retaliation and explained why he failed to demonstrate a triable claim. See Pfeil, 

11 F. Supp. 3d at 1117-18. That discussion need not be repeated here. We have 

reviewed Mr. Pfeil’s arguments on appeal and conclude that no error has been shown 

with respect to the district court’s determination.8

 

Mr. Pfeil does, however, raise a related procedural objection that should be 

specifically addressed. He asserts that he did not receive the affidavits attached to 

defendants’ summary judgment memorandum regarding his retaliation claim and 

contends that the district court’s reliance on them was therefore impermissible. He 

never raised this issue with the district court, however, so there is no determination 

regarding the facts of the matter for us to review, nor can we as an appellate court 

determine the facts for ourselves. But even assuming the facts to be as Mr. Pfeil 

asserts, we reject his objection on the ground that it comes far too late in the day to 

serve as a proper basis for disturbing the district court’s judgment. 

 

8

 Indeed, we would add that the allegations of retaliation have a further legal 

deficiency not noted by the district court: the lack of personal participation by the 

named defendants in the actions Mr. Pfeil claims were retaliatory. 

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Mr. Pfeil does not dispute that he received the memorandum to which the 

affidavits were attached as exhibits. The memorandum was filed on June 28, 2013. 

The district court did not rule on summary judgment until March 31, 2014. The 

affidavits were explicitly cited and relied on throughout the memorandum, but 

Mr. Pfeil raised no objection about their alleged absence in the nine months that 

preceded the ruling on summary judgment. Nor, after the district court relied on the 

affidavits in its summary judgment order, did Mr. Pfeil raise any objection by way of 

post-judgment motion. The only mention of any problem in this regard was in a 

letter he sent to the court clerk two months after filing this appeal. His inaction thus 

deprived the district court of the opportunity to look into the matter and take steps to 

cure any omission before deciding summary judgment, and then further deprived the 

district court of an opportunity to address the matter in post-judgment proceedings 

before jurisdiction was lost through his commencement of appeal. It also deprived 

defendants of a timely opportunity either to dispute their alleged omission or to 

correct it while the matter was still under advisement in the district court. Just such 

considerations underlie our general rule barring consideration of arguments that an 

appellant has not raised in the district court. See, e.g., Cahill v. Am. Family Mut. Ins. 

Co., 610 F.3d 1235, 1239 (10th Cir. 2010); Wall v. Astrue, 561 F.3d 1048, 1067 & 

n.25 (10th Cir. 2009). Under the circumstances, we hold that Mr. Pfeil has forfeited 

any objection that he was not provided the affidavits attached to defendants’ 

summary judgment memorandum on the retaliation claim. 

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 The judgment of the district court is affirmed. Mr. Pfeil’s motion to proceed 

in forma pauperis on appeal is granted. His motion for declaratory and injunctive 

relief for spoliation of evidence is denied. 

 Entered for the Court 

 Carolyn B. McHugh 

 Circuit Judge 

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