                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 9 2002
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 DAVID CROCKER; EDWARD J.
 FORD, JR; KEVIN DWIGHT LEWIS;
 and KENNETH HARVEY,

          Plaintiffs - Appellants,
 v.

 T. DURKIN, Associate Warden,                          No. 02-3140
 Bureau of Prisons, Leavenworth, KS;             D.C. No. 98-CV-3157-CM
 MICHAEL CROWELL, Chaplain,                            (D. Kansas)
 Bureau of Prisons, Leavenworth, KS;
 A. MENDEZ, Lieutenant, Bureau of
 Prisons, Leavenworth, KS; E.
 ONTIVEROS, Counselor, Bureau of
 Prisons, Leavenworth, KS; and
 LARRY SMITH, Disciplinary Hearing
 Officer,

          Defendants - Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      This is a civil rights action brought pursuant to Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), by four federal prisoners.

Appellants allege that certain federal prison officials participated in religious

discrimination in violation of the Religious Freedom Restoration Act (“RFRA”),

42 U.S.C. § 2000bb-1 (2002). Appellants are members of the Nation of Islam

faith. They allege that while incarcerated at the United States Penitentiary in

Leavenworth, Kansas, they were subjected to several instances of religious

discrimination. Appellants sued certain prison officials in their official capacities

seeking injunctive relief, and also in their individual capacities seeking monetary

damages. The district court dismissed the claims for injunctive relief on behalf of

three of the four Appellants as moot since they were no longer incarcerated at

USP Leavenworth. The district court also granted summary judgment on the

merits of all the remaining claims, holding that in each instance the conduct of the

Defendants did not substantially burden the free exercise of the inmates’ religion.

This appeal followed.

      We review the grant of a motion to dismiss and a motion for summary


                                          -2-
judgment de novo, applying the same standards applied in the district court,

accepting as true all well-pleaded facts. See Simms v. Oklahoma, 165 F.3d 1321,

1326 (10th Cir. 1999).

                                   I. Mootness

      With respect to the issue of mootness, we agree with the district court that

the claims for injunctive relief on behalf of Messrs. Ford, Lewis, and Harvey are

moot and non-justiciable. The alleged discriminatory actions occurred while all

four Appellants were incarcerated at USP Leavenworth. Since that time, Messrs.

Ford and Lewis have been relocated to the United States Penitentiary in Florence,

Colorado, and Mr. Harvey has been relocated to the United States Penitentiary in

Pollock, Louisiana. As the district court noted, “[t]hey are no longer subject to

the rules and regulations of USP Leavenworth, and the possibility of reoccurrence

of any alleged violations depends upon plaintiffs being transferred back to USP

Leavenworth at some point in the future.” Crocker v. Durkin, No. 98-3157-CM,

at 4 (D. Kan. filed Apr. 26, 2002). We have repeatedly refused to recognize such

a possibility as an exception to the mootness doctrine. See Nasious v. Ray, 3 Fed.

Appx. 745, 747, 2001 WL 46228 at *1 (10th Cir. Jan. 19, 2001); Green v.

Branson, 108 F.3d 1296, 1300 (10th Cir. 1997); McKinnon v. Talladega County,

745 F.2d 1360, 1363 (11th Cir. 1984).

      Consistent with this analysis, the district court did not err in dismissing the


                                         -3-
claims for injunctive relief on behalf of Messrs. Ford, Lewis, and Harvey as moot.

As the district court noted, however, the equitable claims of Mr. Crocker as well

as all of the claims for monetary damages remain justiciable. We now turn to the

district court’s grant of summary judgment on the merits of those claims.

                                II. RFRA Claims

      Appellants allege eleven separate instances in which prison officials

burdened Appellants’ religious freedom in violation of RFRA. RFRA states that

government officials “shall not substantially burden a person’s exercise of

religion.” 42 U.S.C. § 2000bb-1(a) (2002). We have previously held that “a

plaintiff establishes a prima facie claim pursuant to RFRA by proving the

following three elements: (1) a substantial burden imposed by the federal

government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242

F.3d 950, 960 (10th Cir. 2001). Once a plaintiff has met his prima facie burden,

the government must show that the imposition “is in furtherance of a compelling

governmental interest.” Id. at 962 (internal quotations and citation omitted). We

have recognized, in the prison context, that the maintenance of safety and order is

a compelling governmental interest. Id. at 962.

      Applying these legal standards, the district court examined each of the

eleven alleged instances of religious discrimination in detail. The district court

concluded that, in each instance, the Plaintiffs had failed to show a substantial


                                         -4-
burden on the free exercise of their religion. Despite this conclusion, with respect

to certain of those allegations, the district court went on to consider whether the

Government was pursuing a compelling interest and using the least restrictive

means.

      We conclude that in each of the eleven instances of alleged religious

discrimination the Appellees’ actions did not rise to the level of a substantial

burden on the free exercise of religion as that standard is defined in our cases.

Therefore, we need not reach either the issue of whether the Government has

carried its burden of showing a compelling governmental interest or whether it

pursued the least restrictive means.

      AFFIRMED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




                                          -5-
