      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

PAUL T. STAVENJORD,                            )
                                               )        Supreme Court No. S-14917
                      Appellant,               )
                                               )        Superior Court No. 3AN-10-11932 CI
      v.                                       )
                                               )        OPINION
JOSEPH SCHMIDT,                                )
CRAIG TURNBULL, and                            )        No. 6989 – March 20, 2015
MIKE ENSCH,                                    )
                                               )
                      Appellees.               )
                                               )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Mark Rindner, Judge.

              Appearances: Paul T. Stavenjord, pro se, Wasilla, Appellant.
              John K. Bodick, Assistant Attorney General, Anchorage, and
              Michael C. Geraghty, Attorney General, Juneau, for
              Appellees.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              BOLGER, Justice.


I.    INTRODUCTION
              Paul Stavenjord, a Buddhist inmate, asked to receive a Kosher diet and to
be permitted to purchase a prayer shawl. Prison officials at the Alaska Department of
Corrections (the Department) denied his requests. Stavenjord filed a complaint alleging
violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and
various constitutional provisions. But the superior court granted the Department’s
motion for summary judgment, concluding that Stavenjord had failed to demonstrate (1)
that a Kosher diet and prayer shawl were necessary for the practice of his religion; (2)
that he was sincere in his requests for religious accommodation; and (3) that the
Department’s lack of accommodations substantially burdened the practice of his religion.
Under our summary judgment standard, however, the initial burden falls on the moving
party — the Department. Furthermore, religious necessity is not an element of RLUIPA.
Because summary judgment was granted by placing the initial burden on the non-moving
party and by focusing on Stavenjord’s failure to make an evidentiary showing not
required under RLUIPA, we reverse and remand.
II.   FACTS
             Paul Stavenjord is an inmate currently residing at the Goose Creek
Correctional Center in Wasilla. In his verified complaint, Stavenjord asserted that he is
a Buddhist monk ordained by the Tenshin Ryushin-Ji Buddhist Temple, a qualified
teacher of Buddhism with thirty years of experience studying the Hinayana, Mahayana,
Vajrayana, and Zen sects, and a “Prison Ministries Advisor” of the Tenshin Ryushin-Ji
Temple.
      A.     The Kosher Diet
             In August 2010 Stavenjord submitted a request for a vegan diet to the
kitchen manager at Spring Creek Correctional Center (Spring Creek) in Seward, where
he was then incarcerated. The request was granted, and Stavenjord remained on a vegan
diet for two months. In October he asked that this diet be discontinued, writing:
             Please remove my name from the vegan diet list. Try tasting
             the food once in a while. I can’t believe you allow such poor
             quality in your kitchen.


                                           -2-                                      6989

            Three months later, in January 2011, Stavenjord submitted a request “to be
placed on a Kosher diet, for religious reasons.” Chaplain Mike Ensch, the Chaplaincy
Coordinator for the Department, reviewed this request and recommended that it be
denied:
            The Department of Corrections will only authorize vegetarian
            or vegan for [Stavenjord’s] religious diet. This is a fairly
            standard practice in many Correctional systems in the USA
            and is adequate for his religion.
The superintendent of Spring Creek, Craig Turnbull, adopted Ensch’s recommendation,
writing, “No reason to approve this preference.      Not related to Buddhist faith.”
Stavenjord appealed Turnbull’s decision, arguing:
            It is a substantial burden on my religious practice to be
            denied a religious (kosher) diet. Both Ensch and Turnbull are
            acting as “arbiters-of-orthodoxy concerning what Buddhist[s]
            require” when neither are Buddhist or are knowledg[e]able in
            Stavenjord’s practice of Madhyamaka Buddhism.
Timothy Lyden, the Standards Administrator for the Department, responded in a letter
dated May 27, 2011, writing:
            I have carefully reviewed documentation in relation to your
            request. However, you have not provided any information
            indicating that the practice of Madhyamaka Buddhism
            prescribes a kosher diet. In addition, I have not been able to
            find any evidence of this claim after extensive review of
            resources on Madhyamaka Buddhism. Based upon this
            information, I do not find that your desire for a kosher diet
            [can] be established to be any more than a personal
            preference. As a result, I uphold the previous decisions
            rendered on this grievance.
This was the Department’s final action concerning Stavenjord’s request for a Kosher
diet.




                                         -3-                                    6989

         B.   The Prayer Shawl
              Sometime before August 2010, Stavenjord requested authorization to
purchase a prayer shawl. This request was denied.
              Stavenjord appealed to Lyden, arguing that, because the Department’s
policies and procedures expressly permit the use of “prayer shawls during religious
activity,” it was unreasonable to refuse to allow Stavenjord to purchase a shawl. Lyden
affirmed the denial of his request, writing:
              Although policy specifically references the allowable use of
              prayer shawls, policy also extends discretionary authority to
              the superintendent [of the prison] to restrict their use along
              with other religious activities. As a result, no violation is
              found.
This was the Department’s final action concerning Stavenjord’s request for a prayer
shawl.
III.     PROCEEDINGS
              In June 2011 Stavenjord filed suit in the Anchorage Superior Court,
alleging that prison officials at Spring Creek violated RLUIPA, as well as the First and
Fourteenth Amendments to the U.S. Constitution, by denying his requests to receive a
Kosher diet and purchase a prayer shawl.
              In April 2012 Stavenjord filed a motion for summary judgment on these
claims. He submitted an affidavit stating, “It is my sincerely held religious belief that
these two requests will benefit my exercise of religion,” and referring to his verified
complaint. The verified complaint contained a number of relevant statements:
                     (1)    “The request submitted by Stavenjord for a
              Kosher (religious) diet, was Stavenjord’s firmly held
              religious belief that a Kosher diet would benefit him as an
              important religious practice.”




                                           -4-                                     6989

                     (2)   “The request for religious diet was Stavenjord’s
              firmly held religious belief that this diet would benefit his
              religious exercise.”
                     (3)    “It is Stavenjord’s firmly held religious belief
              that a Kosher diet is the closest to Buddhist requirements
              possible for a Buddhist that eats meat.”
                     (4)   “Stavenjord’s inability to possess and use a
              prayer shawl, and inability to partake in a religious diet,
              forced him to refrain from religiously motivated conduct and
              imposed substantial burden on his exercise of religion.”
              The Department opposed Stavenjord’s motion and filed a cross-motion for
summary judgment. The Department submitted no affidavit with its opposition and
cross-motion, but (1) attached copies of grievance-related documents regarding
Stavenjord’s original request for a vegan diet, his later request to get off the vegan diet,
and his subsequent request for a Kosher diet, and (2) referred generally to evidence from
a preliminary injunction hearing “regarding what items are necessary for the practice of
Buddhism.” The preliminary injunction hearing involved separate RLUIPA claims that
Stavenjord had brought against the Department, and neither party introduced evidence
at the hearing regarding the two claims at issue here. Nevertheless, the Department
argued that because there had been no evidence at the hearing that a prayer shawl or
Kosher diet was necessary for the practice of Buddhism, Stavenjord’s claims must be
dismissed.
              The superior court ruled as follows:
                     [Stavenjord] contends that his requests for a Kosher
              diet and a prayer shawl were denied and that this denial
              violates his rights under the RLUIPA and the First
              Amendment. The court previously conducted an evidentiary
              hearing and issued a decision relevant to this matter in
              conjunction with the Motion for Preliminary Injunction.
              There is no evidence that a prayer shawl or a Kosher diet [is]


                                            -5-                                       6989

              necessary for the practice of Buddhism. [Stavenjord]
              previously requested and was allowed a vegan diet in
              conformance with his Buddhist practice, which he then
              rejected because he did not like the food. This suggests that
              the request for a Kosher diet is related to food preference and
              not to religious requirements. Likewise, based on the
              evidentiary hearing previously conducted[,] the court finds
              that the denial of a prayer shawl does not violate
              [Stavenjord’s] rights under either the First Amendment or the
              RLUIPA. [Stavenjord’s] Motion for Summary Judgment is
              denied. The State’s Cross-motion for Summary Judgment is
              granted.
              Stavenjord moved for reconsideration, asserting, as he asserted in
connection with the denial of his preliminary injunction motion, that the superior court
erred in applying RLUIPA by judging his personal religious beliefs based on those of
Buddhism in general and by concluding that RLUIPA protects only religious practices
that are “necessary” for the exercise of a claimant’s religion. He further asserted that the
court erred by relying on the evidence at the preliminary injunction hearing when that
hearing addressed neither the prayer shawl nor the religious diet. And he noted the
court’s suggestion that his religious beliefs were insincere was an issue that rarely can
be decided on summary judgment.
              In its court-ordered response to the reconsideration motion, the Department
conceded that Stavenjord’s legal analysis was correct in part and that “the focus should
have been on Stavenjord’s practice of religion and the sincerity of that practice as it
relates to his demand for a prayer shawl and [K]osher diet.”1 But the Department
nonetheless urged the court to affirm its decision on other grounds:



       1
             The Department failed to mention that in the earlier preliminary injunction
proceeding, it had successfully persuaded the superior court to use the erroneous
“religious necessity” analysis in its ruling.

                                            -6-                                       6989
             Since Stavenjord has failed to sustain his burden of proof that
             the prayer shawl [and] [K]osher diet are necessary to practice
             his religion, that he is sincere in his request for these religious
             accommodations, or that the lack of these accommodations
             substantially burden[s] his practice of his religion[,] the
             court’s order granting summary judgment must stand.
             The superior court then modified its ruling in two respects. Trying to
remedy its legal error of evaluating religious beliefs of Buddhists in general rather than
Stavenjord’s personal religious beliefs, it changed the third sentence, and then included
additional comments at the end of the order (before the denial and grant of summary of
judgment):
                     [Stavenjord] contends that his requests for a Kosher
             diet and a prayer shawl were denied and that this denial
             violates his rights under the RLUIPA and the First
             Amendment. The court previously conducted an evidentiary
             hearing and issued a decision relevant to this matter in
             conjunction with the Motion for Preliminary Injunction.
             There is no evidence that a prayer shawl or a Kosher diet [is]
             necessary for Stavenjord’s practice of his religion.
             [Stavenjord] previously requested and was allowed a vegan
             diet in conformance with his Buddhist practice, which he then
             rejected because he did not like the food. This suggests that
             the request for a Kosher diet is related to food preference and
             not to religious requirements. Likewise, based on the
             evidentiary hearing previously conducted[,] the court finds
             that the denial of a prayer shawl does not violate
             [Stavenjord’s] rights under either the First Amendment or the
             RLUIPA. Stavenjord previously did not assert that a prayer
             shawl was necessary for the practice of his religion. The
             assertion that he needs a prayer shawl is a recent one. Given
             his history, Stavenjord has failed to meet his burden that the
             prayer shawl or [K]osher diet [is] necessary to practice his
             religion, that he is sincere in his request for these
             accommodations[,] or that the lack of accommodations



                                            -7-                                     6989

              substantially burden[s] his practice of his religion.
              (Emphasis added.)
              Stavenjord appeals the grant of summary judgment against him.
IV.    STANDARD OF REVIEW
              Summary judgment is appropriate where, “view[ing] the facts in the light
most favorable to the non-moving party,” “the record presents no genuine issue of
material fact and . . . the movant is entitled to judgment as a matter of law.”2 The moving
party has the initial burden of proving, through admissible evidence, that summary
judgment is warranted.3 We review a grant of summary judgment de novo.4
V.     DISCUSSION
              RLUIPA provides, in relevant part:
              No government shall impose a substantial burden on the
              religious exercise of a person residing in or confined to an
              institution . . . even if the burden results from a rule of
              general applicability, unless the government demonstrates
              that imposition of the burden on that person
                           (1) is in furtherance        of a     compelling
                     government interest; and
                            (2) is the least restrictive means of furthering
                     that compelling government interest.[5]



      2
            Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (internal
quotation marks omitted).
       3
              Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska
2008); Alaska R. Civ. P. 56(c) (“There must . . . be served and filed with each motion
[for summary judgment] a memorandum showing 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.”).
       4
              Olson, 251 P.3d at 1030.
       5
              42 U.S.C. § 2000cc-1(a) (2012).

                                           -8-                                       6989

The Act defines “religious exercise” as “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”6
              Stavenjord argued before the superior court that the Department’s denial
of his requests for a Kosher diet and a prayer shawl imposed a substantial burden on his
religious exercise. On appeal, he maintains that the superior court misapplied RLUIPA
by requiring him to show that “the prayer shawl or [K]osher diet [is] necessary to
practice his religion.” He also argues that the sincerity of his professed beliefs is a
material question of fact that should not have been determined at the summary judgment
stage.7
              The superior court concluded that summary judgment was warranted
because “Stavenjord has failed to meet his burden that the prayer shawl or [K]osher diet
[is] necessary to practice his religion, that he is sincere in his request for these
accommodations[,] or that the lack of accommodations substantially burden[s] his
practice of religion.” But this analysis makes several false steps.
              First, the superior court order suggests that Stavenjord was required to
prove the elements of his RLUIPA claim in order to defeat the Department’s motion for
summary judgment. But the initial burden was on the Department, as the moving party,
to show that it was entitled to summary judgment; “[o]nly when the moving party
establishes a prima facie case for summary judgment is the non-moving party required



          6
              Id. § 2000cc-5(7)(A).
          7
              In addition to his RLUIPA claim, Stavenjord argued before the superior
court that the Department violated the First and Fourteenth Amendments of the U.S.
Constitution by denying his requests. However, his briefing to this court focuses
exclusively on the RLUIPA claim. We therefore will not address the constitutional
claim. Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (“[I]ssues not briefed or
only cursorily briefed are considered waived . . . .”).

                                           -9-                                    6989

to come forward with contradictory evidence.”8 It was error to address Stavenjord’s
burden without first determining whether the Department had met its burden.
              Second, Stavenjord is correct that the sincerity of a claimant’s religious
beliefs is not normally amenable to summary disposition.9 Although the Department did
point to evidence suggesting that Stavenjord had ulterior, non-religious motives for his
requests for religious accommodation,10 Stavenjord’s claims of sincerity in his verified
complaint were sufficient to create a triable question of fact on this issue.
              Third, as Stavenjord argues, RLUIPA protects “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.”11 Therefore,
Stavenjord was not required to show that his personal religious beliefs were consistent
with the beliefs of other Buddhists, as the Department suggested in its motion for
summary judgment.12 Nor was Stavenjord required to show that a prayer shawl and


       8
              Mitchell, 193 P.3d at 760 n.25.
       9
              See Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007) (“The inquiry into
the sincerity of a free-exercise plaintiff’s religious beliefs is almost exclusively a
credibility assessment, and therefore the issue of sincerity can rarely be determined on
summary judgment.” (alteration and internal quotation marks omitted)).
       10
              See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (“[O]f course, a prisoner’s
request for an accommodation must be sincerely based on a religious belief and not some
other motivation.” (citing Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2774
n.28 (2014))).
       11
              42 U.S.C. § 2000cc-5(7); Krieger v. Brown, 496 F. App’x 322, 325 (4th
Cir. 2012) (“A plaintiff is not required . . . to prove that the exercise at issue is required
by or essential to his religion.”).
       12
              See Holt, 135 S. Ct. at 862-63 (“[E]ven if [prisoner’s beliefs were
idiosyncratic], the protection of RLUIPA, no less than the guarantee of the Free Exercise
Clause, is ‘not limited to beliefs which are shared by all of the members of a religious
                                                                            (continued...)

                                            -10-                                        6989

Kosher diet were necessary for the practice of his religion, as the superior court appears
to have concluded.13
              On appeal, the Department argues that it was entitled to summary judgment
under the correct RLUIPA standard. We disagree. The prima facie elements of a
RLUIPA claim are the “wish[] to engage in (1) a religious exercise (2) motivated by a
sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the
government.”14 Therefore, to be entitled to summary judgment regarding this showing,15
the Department as the moving party was required to demonstrate that the record


       12
              (...continued)
sect.’ ” (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715-16
(1981))); see also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2012)
(“[T]he issue is not whether the [prison’s practice] substantially burdens the religious
exercises of any Muslim practitioner, but whether it substantially burdens Mr.
Abdulhaseeb’s own exercises of his sincerely held religious beliefs.” (emphasis in
original)).
      13
             See Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (prison’s refusal to
provide a Roman Catholic plaintiff with a diet free from the meat of four-legged animals
and free from all meat on Fridays and during Lent violated RLUIPA even though
Catholicism does not require such a diet); Koger v. Bryan, 523 F.3d 789, 797 (7th Cir.
2008) (plaintiff’s adherence to a vegetarian diet was a “religious exercise” for purposes
of RLUIPA even though a vegetarian diet was not required to practice Thelema).
       14
             Abdulhaseeb, 600 F.3d at 1312 (citing Kikumura v. Hurley, 242 F.3d 950,
960 (10th Cir. 2001)); see also Holt, 135 S. Ct. at 862.
      15
               Alternatively, the Department could meet its summary judgment burden by
showing that there is no genuine issue of material fact regarding its RLUIPA burden —
that is, demonstrating that the burden on Stavenjord’s religious exercise is the “least
restrictive means of furthering [a] compelling government interest” — and that it is
entitled to judgment as a matter of law. See 42 U.S.C. § 2000cc-1(a); see also Holt, 135
S. Ct. at 863-67 (analyzing whether a prison’s policy prohibiting beards was the least
restrictive means of preventing prisoners from hiding contraband or concealing their
identities).

                                           -11-                                      6989

contained “no genuine issue as to any material fact” regarding at least one of these three
elements and that it was entitled to judgment as a matter of law.16
              But the Department’s summary judgment motion — like the superior court
order — focused primarily on whether a Kosher diet or a prayer shawl was necessary for
the general practice of Buddhism. Although the Department stated on several occasions
that it had not substantially burdened Stavenjord’s personal religious exercise, these
statements were conclusory and without evidentiary support.
              Assuming Stavenjord’s practice of following a Kosher diet is motivated by
a sincerely held belief, it is a religious exercise.17 The denial of Stavenjord’s request for
that diet, absent any evidence of a reasonable alternative accommodation, imposes a
substantial burden on that religious exercise by “prevent[ing] participation in conduct
motivated by a sincerely held religious belief.”18
              The Tenth Circuit confronted a similar case in Abdulhaseeb v. Calbone,
where a prisoner claimed that the government’s refusal to provide a Halal meal that
included meat violated RLUIPA.19 The court accepted the prisoner’s assertions that
eating a Halal meal with meat was a religious exercise and that the request was motivated


       16
              Alaska R. Civ. P. 56(c).
       17
              See Abdulhaseeb, 600 F.3d at 1312-13.
       18
               Id. at 1315; see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d
1114, 1124-25 (9th Cir. 2013) (“ ‘[A] substantial burden . . . impose[s] a significantly
great restriction or onus upon [a religious] exercise.’ ” (quoting San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004))); Derek L. Gaubatz,
RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner
Provisions, 28 H ARV . J.L. & PUB . POL’Y 501, 558 (2005) (“There has been little dispute
in these cases that refusing to provide a diet that accords with the teachings of a
prisoner’s faith is a substantial burden.”).
       19
              600 F.3d at 1305-06.

                                            -12-                                       6989

by a sincerely held religious belief.20 Based on the prisoner’s verified complaint and
supporting affidavit, the court concluded that the government’s refusal to provide the
requested diet was a substantial burden because it prevented “participation in conduct
motivated by a sincerely held religious belief.”21
              Similarly, assuming Stavenjord’s use of the shawl is motivated by a
sincerely held belief,22 it also is a personal religious exercise. As with the Kosher diet,
the denial of Stavenjord’s shawl request, absent any evidence of a reasonable alternative
accommodation, prevents him from participating in that religious exercise.23 That
Stavenjord is being denied access to a prayer shawl is sufficient to defeat summary
judgment on his prima facie claim; Stavenjord is being “pressured to abandon [his]
religious belief[]” regarding the religious use of a shawl.24
              We note that the State did present evidence that Stavenjord previously
rejected a vegan diet out of culinary preference — not religious belief. But in the
absence of evidence showing that a vegan diet continues to be compatible with
Stavenjord’s religious beliefs and that the Department remains willing to provide this




         20
              Id. at 1313-15.

         21
              Id. at 1315-17.

         22
              See id. at 1312-13.

         23
              See id. at 1315; cf. Grumbley v. Michigan, No. 2:11-cv-185, 2011 WL
3418245, at *6 (W.D. Mich. Aug. 4, 2011) (holding inmate’s religious practice not
substantially burdened because prison made prayer shawls available).
         24
              Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1125 (9th Cir.
2013).

                                           -13-                                      6989

accommodation, this evidence goes only to Stavenjord’s sincerity, where a genuine issue
of material fact exists.25
              For these reasons, we cannot affirm the summary judgment grant under
either the superior court’s analysis or the Department’s proposed alternative grounds.
VI.    CONCLUSION
              We REVERSE the judgment of the superior court and REMAND for
further proceedings.




       25
              To be clear, this narrow holding does not preclude the superior court from
concluding that the vegan diet was a sufficient accommodation under RLUIPA’s
substantial burden element, if the Department provides evidentiary support for such a
conclusion. Cf. Ciempa v. Jones, 745 F. Supp. 2d 1171, 1197-98 (N.D. Okla. 2010),
aff’d, 511 F. App’x 781 (10th Cir. 2013) (“To the extent that Ciempa seeks to bring a
claim based on the failure to provide him with a Halal diet, he has failed to establish that
such failure imposes a substantial burden on his religious exercise. Ciempa himself
stated that his religious needs could be satisfied by the provision of a Kosher diet.”
(citation omitted)); Shoemaker v. Williams, No. CV 10-0826-JO, 2013 WL 528306, at
*2 (D. Or. Feb. 11, 2013) (“[Plaintiff] conceded that the vegetarian and fish meals
provided by [the prison] are halal and comply with the dietary restrictions of his religion.
Thus, there is no basis from which to conclude that his consumption of these meals
infringed his religious exercise.”).

                                           -14-                                       6989
