                                ___________

                                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.


     Plaintiff Ralph Thomas appeals from a final order entered in the
United States District Court1 for the District of Nebraska granting summary
judgment in favor of defendant prison officials, Thomas v. Gunter, No.
8:CV89-00728 (D. Neb. Nov. 9, 1995) (Memorandum Opinion), following our
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 him daily access to a sweat
lodge for prayer and (2) the denial of access also violated his Fourteenth
Amendment right to equal protection because inmates of




     1
     The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
other religions had daily access to prison facilities for prayer.         For the
reasons discussed below, we affirm.


I.   Background


     Plaintiff,     a   Native   American,   was   incarcerated    at   the   Omaha
Correctional Center ("OCC") from January 1989 through February 1990.
During this period, plaintiff requested defendants to provide daily and
extended access on weekday afternoons to the prison sweat lodge for prayer.
The sweat lodge is located in a restricted area of the prison and only
approved inmates are allowed in the area.     The sweat lodge is available to
inmates for three hours on Saturday and three hours on Sunday mornings, and
occasionally, if enough interest is shown, on weekend afternoons.               The
sweat lodge is also available for two and one-half hours on Wednesday
evenings during daylight savings time and on all holidays.


     When the prison chapel is not scheduled for use by a particular
religious group, it is open to all religions when the coordinator is
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.


     Plaintiff submitted a request for daily access to the sweat lodge
from 12:30-4:30 p.m.    Defendants denied plaintiff's request allegedly for
security reasons.   Plaintiff brought this 42 U.S.C. § 1983 action against
defendants claiming denial of daily access to the prison sweat lodge
violated his First and Fourteenth Amendment rights.               Plaintiff later
modified his request to brief daily access in his third amended complaint.


     The district court, upon recommendation of the magistrate, initially
granted defendants' motion for summary judgment both on




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the merits (i.e., whether the limitation of access to the sweat lodge was
constitutional) and on the issue of whether defendants were entitled to
qualified immunity.    Plaintiff appealed and this court reversed the
district court's order and remanded the case for further proceedings
consistent with our opinion.   Thomas, 32 F.3d at 1262.    We held there was
a genuine issue of material fact as to whether the refusal to allow brief
daily access to the prison sweat lodge was rationally related to a
legitimate penological interest.   We further stated that prison officials
would not be entitled to qualified immunity unless a rational relationship
could be drawn between legitimate penological interests and the denial of
even brief access to the prison sweat lodge.    On remand, the district court
granted defendants' motion 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, and this court on appeal, is whether the record, when
viewed in the light most favorable to the non-moving party, shows that
there is no genuine issue as to any material fact and that the moving party
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.
Liberty Lobby, 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 the first appeal, this court applied the doctrine of qualified
immunity to the facts of the present case, as they had been developed at
that point:


            It is true that officials engaged in executive functions,
      such as the operation of penal institutions, enjoy qualified
      immunity. This immunity, however, is available only if their
      "conduct does not violate clearly




                                    -3-
     established statutory or constitutional rights of which a
     reasonable person would have known." Harlow v. Fitzgerald, 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),
     that prison officials may not deny an inmate "a reasonable
     opportunity of pursuing his faith comparable to the opportunity
     afforded fellow prisoners 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 for
     every faith, reasonable opportunities must be afforded to all
     prisoners. . . .

           We cannot say, without reasons advanced by [defendants],
     that they acted reasonably in denying [plaintiff] daily access
     to the sweat lodge for prayer. If a rational relationship can
     be shown between legitimate penological interests and the
     denial of even brief access to the sweat lodge, such a denial
     may not have been unreasonable.     In the absence of such a
     justification, [defendants] would not be entitled to qualified
     immunity from § 1983 liability.


Thomas, 32 F.3d at 1261.


     On   remand,     the   district   court   reviewed   defendants'   conduct,
concentrating its analysis on the objective reasonableness of the conduct
in relation to the clearly established law in force at the time of the
alleged violation.      The district court concluded that defendants had
provided the Native American inmates with a reasonable opportunity to
pursue their faith.    Thus, the district court held defendants were entitled
to qualified immunity.


     For reversal, plaintiff argues that defendants failed to establish
the required rational relationship between the denial of daily access to
the sweat lodge and legitimate penological




                                       -4-
interests.        Defendants argue that they demonstrated beyond genuine dispute
that a rational relationship exists.


     It       has   been   "clearly   established   law"   since   1972   that   prison
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 equal access to the prison chapel and equal opportunity
to earn points of good merit for religious conviction.               Id. at 322.     In
dicta, however, the Court explained that its holding was not to be
construed as mandating that all religious groups, however few, must have
identical facilities or access, and special accommodations need not be
given to all faiths.         Id. at n.2.


     Upon de novo review, we hold that defendants' denial of plaintiff's
initial request for daily and extended access on weekday afternoons to the
sweat lodge was rationally related to legitimate penological interests.2
First, Native Americans, with six scheduled hours per week at the sweat
lodge, had more scheduled worship time per week than any other religious
group, including Christians, who had three hours per week, and Muslims, who
had five hours per week.        Second, Native Americans also had access to the
non-denominational chapel whenever it was available.               Finally, plaintiff
specifically requested four hours of daily access to the sweat lodge where
inmates of other religions were allowed only a half hour of daily access
for prayer.3


          2
        Our holding does not address the merits of defendants'
conduct; rather, it addresses whether it was objectively
reasonable.
              3
         At oral argument, counsel for plaintiff argued that
defendants were unreasonable in failing to offer daily access for
less than the requested four hours per day. Thus, plaintiff would
have this court place on defendants the burden of not only
evaluating the reasonableness of an inmate's request but also
considering all possible alternatives which the inmate did not
request or propose.
We disagree with this position. If a request is made by an inmate,
prison officials are obligated to investigate the reasonableness of
that request but are not required to investigate lesser requests

                                           -5-
     Defendants acted reasonably in denying daily and extended access on
weekday afternoons to the sweat lodge.     First, the 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 and
required defendants to station more guards at the entrance.       This would
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 the
sweat lodge at the requested time would have been in direct conflict with
these scheduled activities.       Thus, there was a rational relationship
between legitimate 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 the district court did not err in granting summary judgment
in favor of defendants on qualified immunity grounds.     Defendants' denial
of plaintiff's request for daily and extended access on weekday afternoons
to the prison sweat lodge was rationally related to legitimate penological
interests.


     Accordingly, we affirm the judgment of the district court.



     A true copy.

             Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




which could have been made.

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