UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOSEPH ANTHONY MCKINLEY, Plaintiff-Appellant,

v. MITZI MADDOX; DARLENE ROBINSON, Defendants-Appellees. No. 11-6263 (D.C. No. 5:11-CV-00051-D) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and LUCERO , Circuit Judges.

Joseph Anthony McKinley, an inma te in the custody of the Oklahoma Department of Corrections (ODOC), appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 civil ri ghts action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse a nd remand for further

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 14, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - proceedings consistent with this orde r and judgment. We grant McKinley’s application to proceed in fo rma pauperis (IFP) on appeal. Background McKinley filed a pro se civil rights complaint against Mitzi Maddox and Darlene Robinson. He alleged that Maddox and Robinson are employees at the Enid Community Corrections Center (ECCC) , where McKinley was incarcerated beginning on October 13, 2010. Robinson is a Case Manager, and Maddox is the Case Manager Supervisor. McKinley al leged in his complaint that Maddox and Robinson denied him his right to practic e his religion and participate in offsite religious activities from Oct ober 18 to November 22, 2010. McKinley claimed that on October 18, Maddox and Robinson informed him that he was restricted from leaving ECCC, and therefore not permitted to participate in any outside activities, because he wa s on Executive Review. Defendants told McKinley that they needed to prepare a packet and submit it fo r approval before he could go offsite. That same day, howev er, Maddox approved McKinley’s request to go offsite to play piano at a banquet. On Octobe r 22, Maddox also allowed McKinley to go shopping offsite. He alleged that each w eek thereafter he was again permitted to participate in offsite shopping activities. On October 25, 2010, Maddox sent a memo to Reginald Hines, Deputy Director of Community Corrections. Maddox’s memo referenced “Exception for Executive Review,” and indicated that Mc Kinley was serving a four-year sentence- 3 - for drug trafficking. R. at 21. Maddox stated, “ECCC is requesting that Mr. McKinley be allowed to attend church services, go on shopping trips, and be placed on a [work] crew.” Id

. McKinley alleged that he signed up at ECCC Central Control to go to an offsite church service on October 31, 2010. He was permitted to leave ECCC, and he proceeded to the church. Bu t before the service began, an ECCC officer located him at the church and brought him back to ECCC. McKinley alleged that, when he returned, a lieutenant recited to him Maddox’s position re garding his restrictions and referred him to a memo that Maddox had submitted to Central Control on October 20,
2010. On November 15, 2010, McKinley subm itted written Requests to Staff to Maddox and Robinson, asking for copies of the documentation related to his Executive Review. Maddox res ponded that the forms she had previously sent to Hines had been re-transmitted to Hines’ of fice on November 16. She stated that she would stay on top of the issue and tr y to get Hines’ approval that week. The next day, November 17, McKinley wa s selected to be on a work crew. He again signed out of ECCC a nd was permitted to go offs ite. On November 18, McKinley spoke to Maddox about his Exec utive Review, disputing that he was subject to such restrictions . He noted that, while he had not been allowed to go offsite for religious activities, he had been permitted to go offsite for othe r activities. That same day, McKinley s ubmitted another Request to Staff to Maddox, challenging- 4 - his placement on Executive Review. Maddox responded, “Mr. Hines has the authority to review for extra privileges granted at community . Executive Reviews are considered higher risk. I have no [written policies] to provide you.” Id. at 15. On November 22, 2010, Hines approved McKinley’s participation in offsite activities, per Maddox’s October 25 memo . Robinson responded to McKinley’s November 15 Request to Staff on November 29, indicating that she had given him a copy of a written policy and talked to him extensively about Executive Review. She noted, as well, that he had been approved for offs ite activities. McKinley’s complaint referenced 42 U.S.C. § 1983 and explicitly alleged violations of the First Amendment of the United States Constitution, the religious-liberty and equal- protection provisions of th e Oklahoma Constitution, the Oklahoma Religious Freedom Act, and ODOC policies. Maddox and Robinson moved to dismiss McKinley’s complaint, contending he had failed to exhaust his administrative remedies. In a report and recommendation (R&R), a magistrate judge concluded that defendants’ motion should be denied because McKinley had exhausted his administrative remedies. But the magistra te judge recommended an alternative basis for dismis sal, concluding that McKinl ey’s complaint should be dismissed under 28 U.S.C. § 191 5(e)(2)(B)(ii) because he fail ed to allege a pervasive violation of his right to fr eely exercise his religion, or facts demonstrating that Maddox and Robinson persona lly participated in the alleged violation of his- 5 - constitutional rights. 1 The magistrate judge also r ecommended that the court decline to exercise supplementa l jurisdiction over McKinl ey’s state-law claims. McKinley filed objections to the magist rate judge’s R&R, asserting additional factual allegations. He stated that he is a devout Baptist, elaborating that “it is a necessary requirement [for him] to be un der the guidance, trai ning, counseling and tutelage of a pastor/teacher . . . . Bible study and worshi p services are significant to the growth of Plaintiff’s fa ith.” R. at 99-100. McKinl ey questioned the validity of the Executive Review restrictions because Maddox allowed him to go offsite for various non-religious activiti es before Hines finally a pproved him going offsite for any purpose. He also alleged that Ma ddox was the employee at ECCC responsible for coordinating religious services, but ther e were no religious se rvices or activities offered onsite at ECCC during the time that he was restricted from going to offsite church services. McKinley claimed that he had talked to Robinson and Maddox about the lack of religious services at ECCC. McKinley asserted that defendants denied him his right to exercise his religious beliefs by precluding him from attending offsite services fo r over one month, while failing to provide onsite church services or allowing faith -based volunteers onsite dur ing that time period. McKinley also claimed that the only o ffenders at ECCC who were restricted from attending offsite church services were those who had been convicted of drug

1 The provisions of 28 U.S. C. § 1915 govern IFP proceed ings in federal courts. As he does in this appeal, McKinley proceeded IFP in the district court.- 6 - trafficking. He referenced ECCC’s St eps Program under which offenders are not permitted to attend worship se rvices outside of ECCC until they have reached Step
2. 2 McKinley asserted that, under the Exec utive Review restrictions, he remained precluded from attending offsite church se rvices even after reaching Step 2. The district court reviewed the magistra te judge’s R&R de novo. In addition to the allegations in his complaint, the court also considered McKinley’s supplemental factual allegations in his objections to the R&R. Citing Gallagher v. Shelton , 587 F.3d 1063 (10th Cir. 2009), the c ourt held “that a one-month delay in obtaining approval of Plaintif f’s request to attend religi ous services does not amount to a First Amendment violation.” R. at 1 08. The court determined that McKinley had not shown a substantial burden on his religious belie fs based on the temporary delay in attending offsite chur ch services while his admi nistrative request was being processed. Furthermore, a lthough McKinley characterized the defendants’ actions as restricting a constitutional ri ght, the court noted that the “right” to attend religious services outside of the ECCC was based on the facility’s Steps Program under which offenders earned such privileges, and that “[a]ny contention that these rules [under that program] are invalid as not reasonably relate d to legitimate pe nological interests is untenable.” R. at 109 (quotations omitted). The district court adopted the

2 McKinley had previously attached a copy of the policy describing the Steps Program to his opposition to the de fendants’ motion to dismiss.- 7 - magistrate judge’s R&R and dismissed McKinley’s compla int for failure to state a claim upon which relief can be granted. Standard of Review “We review de novo the district court’ s decision to dismiss an IFP complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to st ate a claim.” Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). “We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we empl oy for Federal Rule of Civil Procedure 12(b)(6) motions to dismis s for failure to state a claim.” Id. Thus, “we look to the specific allegations in the comp laint to determine wh ether they plausibly support a legal claim for reli ef,” and “factual allegations in a complaint must be enough to raise a right to relief above the specu lative level.” Id. at 1218 (quotations and brackets omitted). “In determining whet her a dismissal is pr oper, we must accept the allegations of the comp laint as true and construe those allegations, and any reasonable inferences that mi ght be drawn from them, in th e light most favorable to the plaintiff.” Id. at 1217 (quotation omitted). In addition, “we must construe a pro se appellant’s comp laint liberally.” Id. at 1218 (quotation omitted). Discussion On appeal, McKinley contends that the district court erred in dismissing his action because his complaint states claims for relief under the Fi rst and Fourteenth Amendments and the Equal Prot ection Clause, as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U. S.C. § 2000cc-1. Because the district- 8 - court addressed only whether McKinley’s complaint stated a First-Amendment free-exercise claim, we a ddress that claim first. “Under the First and Fourteenth Amendm ents, inmates are entitled to the reasonable opportunity to pursue their si ncerely-held religious beliefs. What constitutes a ‘reasonable opportunity’ is de termined in refere nce to legitimate penological objectives.” Gallagher , 587 F.3d at 1069 (citation omitted). In order to state a constitutional violati on based on a free-exercise clai m, a prisoner must allege that defendants “substantiall y burdened his sincerely-he ld religious beliefs.” Id. (quotation and brackets omitted). And he “must assert conscious or intentional interference with his free exercise right s to state a valid claim under § 1983.” Id. at 1070 (quotation omitted). If the prisoner satisfies this initial step, defendants “may identify the legitimate penologi cal interests that justified the impinging conduct,” and “[t]he burden then returns to the prisoner to show that these articu lated concerns were irrational.” Kay , 500 F.3d at 1218 & n.2 (quotations and brackets omitted). The court then balances fact ors set forth by the Suprem e Court “to determine the reasonableness of the regulation.” Id. at 1219 (listing the relevant factors). 3 Relying on Gallagher , the district court dismisse d McKinley’s claim at the initial step, holding that he failed to alle ge facts demonstrati ng a substantial burden on the exercise of his sincerel y-held religious beliefs. In Gallagher , the prisoner

3 A prisoner asserting a § 1983 claim must also alle ge facts showing personal participation by the defendants in the constitutional violation. See Gallagher , 587 F.3d at 1069.- 9 - alleged that two of his requests for speci al food on religious holidays were not approved by the defendants until after those holidays had passed, and on one occasion he was served food that was not pr epared according to kos her requirements. 587 F.3d at 1070. We held that the “defenda nts’ actions were, at most, isolated acts of negligence, not pervasive violations of [the prisoner’s] right to free exercise of religion.” Id. We therefore affirmed the district court’s dismissal of the prisoner’s claims because he failed to allege a substantial burden on th e exercise of his religious beliefs. Id. at 1070-71. Citing Gallagher , the district court reasoned that McKinley had not alleged a substantial burden on the exercise of hi s religious beliefs based on the temporary delay in being permitted to attend offsite church services while his administrative request was be ing processed. We conclude that the district court construed too narrowly the facts alleged by McKinley . Properly construed, Gallagher is distinguishable. First, McKinley alleged more than “acts of negligence.” Id. at 1070. If his only allegation were that defendants neglig ently delayed the approval of his request for religious accommodation, his claim woul d indeed be subject to dismissal under Gallagher . But McKinley alleged that Maddo x intentionally prevented him from attending offsite religious se rvices under the guise of Executive Review restrictions when she had the authority to override those restrictions based on her granting McKinley permission to go offsite fr om ECCC for non-reli gious purposes. Moreover, McKinley alleges that Maddox wa s the employee at E CCC responsible for- 10 - coordinating religious services , yet she failed to provide al ternative, onsite religious services during the time that she precluded him from attending offsite services. Second, McKinley did not a llege only “isolated acts.” Id. In Gallagher , only “a few” of the prisoner’s requests for sp ecial food on religious holidays were not timely approved, and he al leged only a single violati on of his kosher diet. Id. We recently addressed a “de minimus bur den” on religious exercise in Abdulhaseeb v. Calbone , 600 F.3d 1301, 1321 (10th Cir. 2010) ( quotation omitted). In that case, we initially defined “substantial burden”; as relevant here, a substantial burden exists “when a government . . . prevents particip ation in conduct motivated by a sincerely held religious belief.” Id. at 1315. 4 We then emphasized “that [not] every infringement on a religious exercise wi ll constitute a subs tantial burden.” Id. at 1316. In Abdulhaseeb , a prisoner claimed that on one occasion he was forced to accept foods on his meal tray that were impermissible under hi s Islamic diet. Id. at 1321. We affirmed summary judgment fo r the defendants on the prisoner’s claim, stating, “We are not willing to conclude . . . that every single pr esentation of a meal an inmate considers impermissible constit utes a substantial burden on an inmate’s religious exercise.” Id.

4 We set forth this definiti on of “substantial burden” in Abdulhaseeb as that term is used in RLUIPA. See 600 F.3d at 1315; 42 U.S.C. § 2000cc-1(a). But we noted that Congress intended “substantial burde n” under RLUIPA to be interpreted consistent with “the Supreme Court’s ar ticulation of the con cept of substantial burden on religious exercise.” 600 F.3d at 1315 (quotati on and brackets omitted). Therefore, our discussion of substantial burden in Abdulhaseeb applies as well to a First-Amendment free- exercise claim.- 11 - Here, unlike in Gallagher or Abdulhaseeb , McKinley allege s more than an isolated or de minimus burden on his exercise of his sincerely-held religious beliefs: he claims he was intentionally denied the right to attend all church services, either offsite or onsite at ECCC, for a month. Defendants do not point us to any case law holding that such a burden on religious exercise is insubsta ntial. Thus, we hold that the district court erred in dismissing Mc Kinley’s First-Amendment free-exercise claim, and we remand to the district cour t for further proceedin gs. We express no view on whether McKinley can meet the ot her requirements for a claim for relief, including allegations of fact s showing each defendant’s pe rsonal participation in the constitutional violation. See Gallagher , 587 F.3d at 1069. McKinley also contends that his comp laint states claims for relief under RLUIPA and the Equal Protection Clause. The district court did not address the sufficiency of his complaint with respect to these claims . Defendants emphasize that McKinley did not cite either RLUIPA or the federal Equal Protection Clause in his complaint. In light of our re mand, we leave it to the distri ct court to determine in the first instance if the factual allegations in McKinley’s pro se complaint “plausibly support a legal claim for re lief” under RLUIPA or th e Equal Protection Clause, Kay , 500 F.3d at 1218 (quotation om itted), and whether McKinley should be granted an opportunity to amend his complaint to avoid dismissal, see id at 1217 (holding dismissal of a pro se complaint under § 1 915(e)(2)(B)(ii) is proper only if “it would be futile to give [the plaintif f] an opportunity to amend”).- 12 - The judgment of the district cour t is REVERSED AND REMANDED for further proceedings consistent with this or der and judgment. Mc Kinley’s application to proceed IFP on appeal is GRANTED.

Entered for the Court
Mary Beck Briscoe Chief Judge