UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

JOSE ROJAS, 

 Plaintiff – Appellant, 

v. 

JAMES HEIMGARTNER, 

Defendant – Appellee. 

No. 14-3178 

(D.C. No. 5:13-CV-03073-JTM-KGG) 

(D. Kan.) 

ORDER AND JUDGMENT*

Before KELLY, LUCERO, and MCHUGH, Circuit Judges. 

 Jose Rojas, a Kansas state prisoner proceeding pro se, appeals the district court’s 

dismissal of his 42 U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C. § 1291, 

 

* After examining appellant’s brief and the 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) and 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 

March 20, 2015

Elisabeth A. Shumaker 

Clerk of Court

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we affirm. 

I 

 The policies of the prison in which Rojas is incarcerated permit inmates whose 

religion is classified as “Native American” to wear white bandanas during worship 

services. Muslim and Rastafarian inmates may wear close-fitting hemispheric black 

caps. In 2011, Rojas submitted a request to wear a bandana. The Director of Religious 

Programs at the Kansas Department of Corrections responded that bandanas could be 

worn during group worship services. Rojas then submitted a grievance to Warden James 

Heimgartner requesting permission to wear colored bandanas and to wear bandanas 

outside of group worship services. Around the time Rojas made his request, fifteen other 

prisoners, most of whom were members or suspected members of prison gangs, also 

sought permission to wear bandanas. Rojas’ request was ultimately denied because of 

concerns that individuals in prison gangs could use colored bandanas to communicate 

coded messages.

 Following the denial of his grievance, Rojas filed suit under § 1983. He alleged 

violations of his First and Fourteenth Amendment rights, as well as a violation of the 

American Indian Religious Freedom Act, 42 U.S.C. § 1996. The district court granted 

summary judgment against Rojas. He now appeals. 

II 

We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v. 

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Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). A party is entitled to summary 

judgment only if, viewing the evidence in the light most favorable to the non-moving 

party, the movant is entitled to judgment as a matter of law. Id. Because Rojas is 

proceeding pro se, we construe his filings liberally. See Haines v. Kerner, 404 U.S. 519, 

520 (1972) (per curiam). 

A 

 “Inmates . . . retain protections afforded by the First Amendment, including its 

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 

Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). However, “a prison regulation 

imping[ing] on inmates’ constitutional rights . . . is valid if it is reasonably related to 

legitimate penological interests.” Id. at 349 (quotation omitted). To state a claim for a 

free exercise violation, a prisoner must show that a prison regulation “substantially 

burdened . . . sincerely-held religious beliefs.” Boles v. Neet, 486 F.3d 1177, 1182 (10th 

Cir. 2007). Once the prisoner has made this showing, “the question of whether a prison 

regulation reasonably curtails constitutional rights requires close examination of the facts 

. . . , the specific regulation under review, and the alleged justifications for it.” Id. at 

1181. In making this determination, we consider: 

(1) whether a rational connection exists between the prison policy 

regulation and a legitimate governmental interest advanced as its 

justification; (2) whether alternative means of exercising the right are 

available notwithstanding the policy or regulation; (3) what effect 

accommodating the exercise of the right would have on guards, other 

prisoners, and prison resources generally; and (4) whether ready, easy-toAppellate Case: 14-3178 Document: 01019402381 Date Filed: 03/20/2015 Page: 3 
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implement alternatives exist that would accommodate the prisoner’s rights. 

Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007) (quotation omitted). 

 We agree with the district court that these factors cut against Rojas. The record 

shows that prisoners requesting to wear colored headbands outside of group worship 

raised “valid security concerns.” Boles, 486 F.3d at 1183; cf. Young v. Lane, 922 F.2d 

370, 375 (7th Cir. 1991) (upholding a restriction on the wearing of religious headwear on 

the basis that a security interest had been adequately identified). Rojas was permitted an 

alternative means of exercising his religious rights by wearing a white bandana during 

group worship. Cf. id. at 376 (noting that the policy at issue passed muster in part 

because it permits the limited wearing of religious headwear). Accommodating Rojas’ 

religious rights in his preferred fashion would require close monitoring by guards to 

prevent the transmission of gang messages, and could lead to gang activity that injures 

other prisoners. Cf. id. at 377 (noting that permitting the wearing of religious headwear 

“comes at the cost of less liberty and safety for the entire [prison] community, both 

inmates and guards”). Finally, Rojas has not identified an obvious alternative that would 

accommodate his rights without posing similar problems.1

B 

 

1

 We note that Rojas has not raised a claim under the Religious Land Use and 

Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. 

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“[T]o assert a viable equal protection claim, plaintiffs must first make a threshold 

showing that they were treated differently from others who were similarly situated to 

them.” Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011) (quotation omitted). 

Additionally, plaintiffs in a prison context have the burden of demonstrating that “the 

difference in treatment was not reasonably related to legitimate penological interests.” 

Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006) (quotation omitted). Rojas asserts 

that the regulations deny him the equal protection of the laws because they permit 

members of other religious groups to wear headwear outside of religious services, but 

deny him the right to wear colored bandanas or wear bandanas outside a group worship 

setting. 

The district court was correct to deny Rojas’ equal protection claim. Although the 

regulations permit black kufi caps or tams and disallow bandanas, the former types of 

headwear do not present the same security concerns as bandanas, justifying differential 

treatment in light of legitimate penological interests. See Benjamin v. Coughlin, 905 

F.2d 571, 579 (2d Cir. 1990) (upholding, against an equal protection challenge, a policy 

that disallowed Rastafarian crowns but allowed yarmulkes and kufis), disapproved of on 

other grounds, Frazier v. Dubois, 922 F.2d 560, 562 n.2 (10th Cir. 1990). “There is 

nothing in the Constitution which requires prison officials to treat all inmate groups alike 

where differentiation is necessary to avoid an imminent threat of institutional disruption 

or violence.” Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 136 (1977). 

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C 

As the district court correctly observed, the American Indian Religious Freedom 

Act does not create a cause of action. Lyng v. Nw. Indian Cemetery Protective Ass’n, 

485 U.S. 439, 455 (1988). Accordingly, Rojas’ claim under this statute is unavailing. 

III 

The judgment of the district court is AFFIRMED. We GRANT Rojas’ motion to 

proceed in forma pauperis, and appellant is reminded of his obligation to continue 

making partial payments until the fees are paid in full. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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