                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                     February 20, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
DAVID A. CIEMPA,

             Plaintiff-Appellant,

v.                                                        No. 12-5087
                                             (D.C. No. 4:08-CV-00685-CVE-TLW)
JUSTIN JONES; WALTER                                      (N.D. Okla.)
DINWIDDLE; DEBBIE L. MORTON;
AL BLAIR; DICK BARTLEY;
KAMERON HARVANEK; G.
MCCLEARY; CURTIS HOOD; JAMES
CAVE; RICK BOYETT; JOHN DOE,
sued as: “Unknown Employee”; CHRIS
REDEAGLE; LEO BROWN,

             Defendants-Appellees.


DAVID A. CIEMPA,

             Plaintiff-Appellant,

v.                                                        No. 12-5088
                                             (D.C. No. 4:11-CV-00347-GKF-FHM)
JUSTIN JONES; LEO BROWN;                                  (N.D. Okla.)
MICHAEL T. OAKLEY; RONALD A.
ANDERSON,

             Defendants-Appellees.


                           ORDER AND JUDGMENT*
*
  After examining the briefs and appellate records, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
Before HARTZ, EBEL, and GORSUCH, Circuit Judges.


      These two appeals arise from disputes between David Ciempa and the

Oklahoma penitentiaries that house him. Mr. Ciempa is a member of the Nation of

Gods and Earths (NGE), a group derived from the Black Muslim movement that

Mr. Ciempa claims is religious in nature. In the first appeal (12-5087), Mr. Ciempa

complains that prison officials denied him access to certain issues of the NGE’s

periodical The Five Percenter and a book entitled The Soldier’s Guide; initially

didn’t allow him access to the book Stoic Warriors; didn’t permit him to purchase the

pork-free hygienic products of his choice; and failed to provide him with his

requested halal diet. In the second appeal (12-5088), Mr. Ciempa seeks a preliminary

injunction granting him permission to own items he says are necessary to exercise his

NGE faith, including DVDs (state prison policy doesn’t permit any prisoner to own

DVDs) as well as a large crown (state prison policy prohibits headgear exceeding one

inch in height to prevent the hiding and transfer of contraband).

      Taking the first appeal first, Mr. Ciempa argues that the failure to

accommodate his requests violated his rights under the First and Fourteenth

Amendments and the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA). In a detailed and thoughtful opinion, the district court treated NGE as a

religion within the meaning of the First Amendment and RLUIPA but nonetheless

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.
                                         -2-
granted summary judgment to most defendants on most claims. The only claims that

survived were two official-capacity, RLUIPA claims for injunctive relief and

nominal damages, one against defendant G. McCleary for preventing receipt of Stoic

Warriors, and one against defendants Justin Jones and Leo Brown for denying

Mr. Ciempa chapel time for NGE classes and meetings.

      Later, the district court wound up granting judgment to Mr. McCleary on the

Stoic Warriors claim. The court held Mr. Ciempa’s claim for injunctive relief was

moot because Oklahoma Department of Corrections (ODOC) officials relented and

permitted him to receive the book. The court further held Mr. Ciempa was not

entitled to any nominal damages for delay in providing him with Stoic

Warriors because the book was not itself a religious text and therefore the delay did

not substantially burden his religious exercise. Separately, the court ordered the

prison to submit a plan accommodating Mr. Ciempa’s request for chapel time using

the least restrictive means, as RLUIPA requires, see 42 U.S.C. § 2000cc-1(a)(2), or

to demonstrate that there are no less restrictive means than a total ban. Prison

officials submitted a plan to give NGE chapel time for one hour per week, supervised

by a chaplain and a security officer. The court approved the plan over Mr. Ciempa’s

objections.

      Now on appeal, Mr. Ciempa challenges the district court’s summary judgment

rulings and several procedural orders. Having carefully reviewed those arguments,

the record, and the applicable law, we find no persuasive reason to fault the district


                                          -3-
court’s careful analysis or much we might add to it. We therefore affirm the district

court’s decisions for the same reasons stated in its rulings. We pause briefly only to

add a few thoughts concerning one of Mr. Ciempa’s merits arguments and his claims

of procedural error.

      Mr. Ciempa contends the district court erred when it granted qualified

immunity to Mr. McCleary, Mr. Jones, and Mr. Brown with regard to their

individual-capacity liability under RLUIPA for the denial of Stoic Warriors and

chapel time. This court, however, recently clarified as a matter of law that “there is

no cause of action under RLUIPA for individual-capacity claims.” Stewart v. Beach,

701 F.3d 1322, 1335 (10th Cir. 2012). It is therefore clear Mr. Ciempa’s

individual-capacity RLUIPA claims are not cognizable and his claim of error is

foreclosed.

      Mr. Ciempa also argues that the district court erred in not considering new

claims he set out in various motions. In one instance, the court refused to consider

Mr. Ciempa’s new claims because they were not within the scope of the special

report defendants prepared and, so, the defendants had not been given adequate

notice of them. Ciempa v. Jones, 745 F. Supp. 2d 1171, 1199 (N.D. Okla. 2010).

The court stated it would not permit the scope of the lawsuit to be “a moving target;

Ciempa cannot add claims to this suit every time prison officials allegedly violate his

rights. He is free to file additional suits regarding incidents not covered in his third

amended complaint.” Id. In another instance, the court refused to permit


                                           -4-
Mr. Ciempa to add new allegations he set out in two motions to supplement his

response to defendants’ proposed plan for NGE chapel time. See R. at 107-08. We

see no abuse of the considerable discretion district courts possess concerning

attempts to supplement a complaint with substantial new allegations in motions

practice. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir.

2001).

         Mr. Ciempa further contends the court should have granted his motions for

appointment of counsel because he was not sophisticated enough to present his case

adequately. Our review is for an abuse of discretion, and we will reverse the denial

of counsel in a pro-se civil case “[o]nly in those extreme cases where the lack of

counsel results in fundamental unfairness.” Hill v. SmithKline Beecham Corp.,

393 F.3d 1111, 1115 (10th Cir. 2004). We see no fundamental unfairness in this

case. Although Mr. Ciempa is mistaken in certain respects regarding the application

of the law to the facts of his case, he ably presented his case and achieved a

considerable measure of success.

         Finally, Mr. Ciempa claims the court erred when it granted the defendants’

motion to seal certain copies of The Five Percenter that the defendants prohibited

him from receiving in prison. Mr. Ciempa contends the sealing hampered his ability

to defend the summary judgment motion regarding this portion of his claims. We

will, however, reverse a decision to seal only if “we have a definite and firm

conviction that [the court] made a clear error of judgment or exceeded the bounds of


                                          -5-
permissible choice in the circumstances.” Mann v. Boatright, 477 F.3d 1140, 1149

(10th Cir. 2007) (internal quotation marks omitted). Given the asserted justification

for sealing — that the materials contained gang-related material that could create an

unsafe prison environment — and the fact that the sealed copies were available for

the court’s in camera review, we cannot say the district court made a clear error of

judgment in sealing the publication.

      Turning to the second appeal before us (12-5088), Mr. Ciempa once again

asserts that prison officials violated his First Amendment and RLUIPA rights and

here he seeks a preliminary injunction. It appears the district court denied the motion

because Mr. Ciempa was not likely to succeed on the merits because he failed to

exhaust his administrative remedies. See Att’y Gen. of Okla. v. Tyson Foods, Inc.,

565 F.3d 769, 776 (10th Cir. 2009) (plaintiff must show likelihood of success on the

merits).

      On appeal, Mr. Ciempa contends he has no exhaustion problems because “the

relief requested in his administrative grievances was granted at the facility level,

thereby exhausting all available remedies.” Opening Br. at 3. In fact, however, the

warden informed him that his requests for the religious items would be “forwarded to

the Religious Services Unit with comments from [that] administration. . . . [Y]our

request will now be considered by the agency chaplain.” R. at 218. Later, the

religious services unit recommended denying all of Mr. Ciempa’s requests and it

appears the prison followed that recommendation. Id. at 217. Mr. Ciempa did try to


                                          -6-
appeal this decision administratively with the Administrative Review Authority

(ARA), but he failed to comply with grievance procedures. The ARA informed Mr.

Ciempa as much, instructed him on how he could fix the problem, and gave him a

chance to do so, id. at 221, but there is no evidence that he ever filed compliant

appeals. In these circumstances, we can find no abuse of discretion in the district

court’s decision to deny the requested preliminary injunction for a failure to show a

likelihood of success on the merits. While administrative appeals may be taxing, the

Supreme Court has long instructed that “unexhausted claims” like this “cannot be

brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007).

       The judgment of the district court in 12-5087 is affirmed. The district court’s

order denying preliminary injunctive relief in 12-5088 is also affirmed. The district

court granted Mr. Ciempa’s motion to proceed on appeal in forma pauperis, and we

remind him of his obligation to continue making partial payments of his appellate

filing fee until it is paid in full.


                                                Entered for the Court


                                                Neil M. Gorsuch
                                                Circuit Judge




                                          -7-
