               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 18-3271
                      ___________________________

                              Jimmy R. Heikkila

                     lllllllllllllllllllllPlaintiff - Appellant

                                        v.

  Wendy Kelley, Director, Arkansas Department of Correction; Randy Watson,
  Warden, Varner Unit, Arkansas Department of Correction; Joshua Mayfield,
                 Administrator of Religious Services, ADC

                    lllllllllllllllllllllDefendants - Appellees
                                     ____________

                  Appeal from United States District Court
               for the Eastern District of Arkansas - Pine Bluff
                                ____________

                         Submitted: August 28, 2019
                         Filed: September 11, 2019
                                [Unpublished]
                               ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

PER CURIAM.
       Jimmy Heikkila appeals the district court’s1 grant of summary judgment in his
pro se action raising claims under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), in which he challenged Arkansas
Department of Correction (ADC) policies limiting the practice of Native American
Religion (NAR). We review the grant of summary judgment de novo, viewing the
evidence and all fair inferences from it in the light most favorable to Heikkila. See
Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006).

       Heikkila originally raised claims concerning access to eagle feathers,
headdresses, and ceremonial pipes and tobacco; the district court dismissed the claims
as moot because Heikkila stipulated that those issues had been resolved. We
conclude that the dismissal was proper, as Heikkila agreed that the issues had been
resolved. We will not consider the merits of those claims on appeal. See United
States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016) (ordinarily, this court will not
consider argument raised for first time on appeal). As to Heikkila’s claims that the
denial of access to a sweat lodge violated his rights to free exercise and equal
protection, we conclude that the district court properly granted summary judgment.
The ADC’s sweat lodge ban was reasonably related to legitimate safety and security
interests, see Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 831 (8th Cir. 2009) (to
establish free-exercise violation, inmate must prove that government infringed
sincerely held religious belief and that infringement was not reasonably related to
legitimate penological interest); and Heikkila failed to show that the ban was based
on the intent to discriminate against NAR adherents, see Patel v. United States
Bureau of Prisons, 515 F.3d 807, 816 (8th Cir. 2008) (to establish equal protection
claim, prisoner must show differential treatment was motivated by intentional or
purposeful discrimination). Heikkila’s claim for damages under RLUIPA also failed,


      1
       The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable J.
Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas.

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as damages are not available in this context. See Haight v. Thompson, 763 F.3d 554,
568 (6th Cir. 2014) (every circuit to consider question has held that RLUIPA does not
allow money damages against state prison officials, even where suit is against
officials in their individual capacities).

       As to Heikkila’s claim that he was entitled to injunctive relief under RLUIPA
based on the denial of access to a sweat lodge, he argues on appeal that the district
court improperly rejected his non-traditional sweat lodge proposal, as the ADC did
not consider his alternative rather than a total sweat lodge ban. See 42 U.S.C.
§ 2000cc-1 (government may not impose substantial burden on religious exercise of
an institutionalized person unless burden is the least restrictive means of furthering
compelling government interest). Heikkila’s claim for a non-traditional sweat lodge
was first asserted in his response to appellees’ motion for summary judgment,
however, and we therefore conclude it was not properly pleaded in the district court.
See N. States Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004)
(where complaint contained no allegations that would notify defendant of claim, party
could not manufacture claim late in litigation to avoid summary judgment). Thus, we
modify the dismissal of Heikkila’s non-traditional sweat lodge claim to be without
prejudice, and we express no opinion on its merits. We affirm as to all other issues
Heikkila raises on appeal.
                        ______________________________




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