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

                           FOR THE TENTH CIRCUIT                      February 20, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ROGER D. PFEIL,

             Plaintiff - Appellant,

v.                                                         No. 14-8035
                                                 (D.C. No. 2:12-CV-00184-SWS)
ROBERT LAMPERT, in his official                             (D. Wyo.)
capacity as WYOMING DEPARTMENT
OF CORRECTIONS DIRECTOR and in
his individual capacity; MICHAEL
PACHECO, in his official capacity as
WYOMING DEPARTMENT OF
CORRECTIONS HONOR FARM
WARDEN and in his individual capacity,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Plaintiff Roger D. Pfeil, at all relevant times a Wyoming state prisoner,

brought this action against Wyoming Department of Corrections (WDOC) Director


*
      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)(2); 10th Cir. R. 34.1(G). The case is 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Robert Lampert and Wyoming Honor Farm (WHF) Warden Michael Pacheco, in their

individual and official capacities, alleging the denial of his rights under the Religious

Land Use and Institutionalized Persons Act of 2000 (RLUIPA), actionable pursuant

to 42 U.S.C. § 2000cc-1, and the Free Exercise Clause of the First Amendment,

actionable under 42 U.S.C. § 1983. He later added claims for the denial of his rights

under the Americans with Disabilities Act (ADA) and unconstitutional retaliation for

protected activities related to this action. In a published decision on cross-motions

for summary judgment, the district court ruled for defendants on all claims. See Pfeil

v. Lampert, 11 F. Supp. 3d 1099 (D. Wyo. 2014). As explained below, we dismiss

the appeal for mootness insofar as it involves RLUIPA claims and otherwise affirm

the district court for substantially the reasons stated in its decision.

                             PROCEDURAL SUMMARY

       Mr. Pfeil has, until very recently, been incarcerated by the State of Wyoming

since pleading guilty to second-degree murder in 1997. When he filed this action in

August 2012, he was confined at the WHF, where he had been placed in May 2009.

His complaint alleged that defendants had impeded the free exercise of his religious

rights as a practicing Catholic in two primary respects: (1) enforcing a new policy

prohibiting inmates from possessing hardbound books, thereby depriving him of his

two bibles and a religious commentary,1 which were printed in a font size that he


1
      He also complained of the loss of a standard secular dictionary, which would
not appear to raise any free-exercise implications. Even if it did, its inclusion in the
                                                                              (continued)
                                         -2-
could read despite vision problems; and (2) not allowing a Eucharistic Minister to

enter the prison under a policy conditioning admission on possession of a current

approved application, which the minister did not have. The complaint also included a

chronicle of alleged religious deprivations dating back to the late 1990s when

Mr. Pfeil was confined in other facilities, many out of state (per contracts with

WDOC). We agree with the district court that any redress for these ancillary

allegations was barred by statute of limitations and/or exhaustion principles. See id.

at 1105 n.1, 1107. Events prior to August 2008 are barred by the four year

limitations period applicable to claims under both § 1983, see Gee v. Pacheco,

627 F.3d 1178, 1189-90 (10th Cir. 2010), and RLUIPA, see Pouncil v. Tilton,

704 F.3d 568, 573 (9th Cir. 2012), cert. denied, 134 S. Ct. 76 (2013). As for

exhaustion, Mr. Pfeil specifically identified the grievances through which he insisted

he had exhausted his religious exercise claims, see R. Vol. 1, at 25-26 (complaint),

283 (summary judgment memorandum), and these properly exhausted only the two

claims noted above (and in particular did not exhaust any additional events within the

limitations window after August 2008).2


analysis to follow would not alter our conclusions reached with respect to the other,
clearly religious books.
2
       In this vein, Mr. Pfeil objects that WDOC did not extend its own grievance
procedures to Wyoming prisoners housed in out-of-state facilities, which he contends
is required by the Western Interstate Corrections Compact (WICC), Wyo. Stat. Ann.
§ 7-3-401. But the only state he was confined in during the limitations period was
Virginia, which is not covered by the WICC, see id. § 7-3-401 (Art. VII). Similarly,
on the merits, Mr. Pfeil’s reliance on WICC for holding WDOC Director Lampert
                                                                           (continued)
                                            -3-
      Both parties moved for summary judgment. In his briefing on the motions,

Mr. Pfeil voiced additional complaints about defendants’ failure to accommodate his

vision problems and alleged acts of retaliation (including a transfer from WHF to the

Wyoming Honor Conservation Camp in October 2012) for filing this case. After

defendants objected to the interjection of these new claims, Mr. Pfeil asked to

supplement his pleadings to add them. The district court granted his request, deemed

the pleadings amended accordingly, and gave defendants a short time to submit a

brief and affidavits addressing the new claims, which they did. Nine months later,

the district court granted summary judgment for defendants on all claims.

                                     ANALYSIS

      Because Mr. Pfeil appeals from the grant of summary judgment, our review is

de novo. See Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir. 2005). But we limit our

review to the issues he has raised on appeal. See id. In addition, a significant portion

of this appeal, involving Mr. Pfeil’s RLUIPA claims, has become moot. RLUIPA is

limited to official capacity claims for equitable relief. See Sossamon v. Texas,

131 S. Ct. 1651, 1655 (2011) (holding Eleventh Amendment immunity bars RLUIPA

claims for money damages); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012)

(noting RLUIPA does not permit individual capacity claims). Consequently,

RLUIPA claims regarding prison conditions become moot if the inmate plaintiff is


responsible for any religious inadequacies at that out-of-state facility would be
unavailing.


                                          -4-
released from custody. See Alvarez v. Hill, 667 F.3d 1061, 1063-65 (9th Cir. 2012).

That has occurred here. Mr. Pfeil was released from WDOC custody on September

9, 2014. Accordingly, we dismiss this appeal insofar as it involves his RLUIPA

claims, vacate that portion of the district court’s judgment resolving those claims on

the merits, and remand the claims for dismissal by the district court.3 See, e.g.,

Watkins v. Mabus, 502 U.S. 954, 954 (1991) (effectuating Munsingwear4 mootness

procedure in appeal mooted only in part by intervening events).

      We turn now to the claims that remain in controversy on this appeal.

A. Exclusion of Minister for Lack of Application with Current Information

      The district court’s opinion sets out the factual details of this claim. See Pfeil,

11 F. Supp. 3d at 1111. Basically, a volunteer minister was not permitted to enter the

prison to provide Catholic services on one occasion because personal information on

his application was not current, as required by prison policy for admission of outside

volunteers. Mr. Pfeil claimed this policy violated his rights under the Free Exercise

Clause.5 The fact that we are now concerned only with this constitutional claim has a

3
       We note that the parties were afforded an opportunity to address the mootness
issue through an order to show cause, to which they failed to respond.
4
      United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
5
       To the extent Mr. Pfeil complains of the incident itself, as distinct from the
policy it implemented, his constitutional claim would necessarily fail because WDOC
Director Lampert and Warden Pacheco did not personally participate in it. See
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Of course, even if a
participating official had been sued, adherence to this policy—which we hold to be
constitutionally permissible—would not afford a basis for liability.

                                          -5-
significant consequence for our analysis of Mr. Pfeil’s case. As with a RLUIPA

claim, he must show that the policy substantially burdened his religious beliefs. Kay

v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). But even assuming such a burden,

the policy will survive constitutional scrutiny if it is reasonably related to legitimate

penological interests.6 See id. at 1218-19 (following O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987), and Turner v. Safley, 482 U.S. 78 (1987)). Once such interests

are identified, “[t]he burden then returns to the prisoner to show that these articulated

concerns were irrational.” Id. at 1218 n.2 (internal quotation marks omitted).

      The district court concluded that even if the policy excluding volunteers

lacking up to date information imposed a substantial burden on Mr. Pfeil’s religious

practice, it was justified by legitimate penological interests. In this regard, the court

recognized the interests in “maintaining security, safety, and orderly operation”

served by a prison policy requiring current information on the background of those

permitted to enter and interact with inmates. Pfeil, 11 F. Supp. 3d at 1115. The court

elaborated on this point while discussing the counterpart RLUIPA claim:

      The WDOC, in order to protect inmates and volunteers, and maintain
      security of the facility, conducts criminal background checks and
      maintains updated contact information for each volunteer. Volunteers
      are also required to complete orientation and training related to safety
      and security issues such as emergency response conditions, facility
      evacuation, and learning the primary rules and lines of authority.


6
       In contrast, RLUIPA requires the government to justify a substantial burden on
religion by demonstrating a compelling interest served by the least restrictive means
available. Kay, 500 F.3d at 1221 (discussing 42 U.S.C. § 2000cc-1).


                                           -6-
             Plaintiff argues there is no compelling safety and security interest
      in requiring ministers to complete a new application and go through the
      entire approval process each and every year. However, prison officials
      need not wait for a problem to arise before taking steps to minimize
      security risks. The requirement that each volunteer provide current
      contact information before being admitted to a WDOC facility is an
      appropriate proactive approach to ensuring facility safety and security
      and is the least restrictive means for doing so.

Id. at 1113 (citations and internal quotation marks omitted).

      The district court went on to explain the reasonableness of the volunteer policy

under the O’Lone/Turner framework in light of the rational connection between the

policy and the interests supporting it, the availability of other means for inmates to

exercise their religion, the adverse impact on prison operation and personnel if the

policy were not enforced, and the lack of ready practical alternatives to safeguard the

interests involved. See id. at 1115-17; see also Kay, 500 F.3d at 1219 (identifying

such considerations as relevant in assessing the reasonableness of prison policies

affecting religious practice of inmates). On appeal Mr. Pfeil has not raised any

cogent objection to this thorough analysis. We affirm the district court’s grant of

summary judgment to defendants on this claim.

B. Prohibition on Possession of Hardbound Books

      In 2012, WDOC adopted and WHF implemented a new property-control policy

prohibiting inmates from possessing hardbound books in their living quarters. The

primary reasons for the new policy were that hardbound books can be used for hiding

contraband or weapons and that the hard covers themselves can be used as weapons.

Pfeil, 11 F. Supp. 3d at 1105-06. In addition, eliminating such books reduces the

                                          -7-
time and resources the prison must expend to inspect and search property in inmates’

cells. Id. at 1106. Finally, the policy was also adopted to meet requirements for

accreditation with the American Correctional Association. Id. As a result of the

policy, Mr. Pfeil had to relinquish two bibles and a biblical reference work, which

were sent to his family for safekeeping. He claims that prohibiting his possession of

these books, and not providing him with adequate replacements, violated his rights

under the Free Exercise Clause.

      The district court rejected this claim under the O’Lone/Turner framework as

well. Again, it noted that important prison interests in security, safety, and orderly

operation (as specified above) support the prohibition on possession of hardbound

books in inmate living quarters. Id. at 1115. Mr. Pfeil insists these interests are

exaggerated—a criticism that (when warranted) carries weight under the compelling

interest standard for RLUIPA claims. See Abdulhaseeb v. Calbone, 600 F.3d 1301,

1318 (10th Cir. 2010). But we do not think the criticism has force here; rather, we

agree with the district court that, viewed with the deference owed the professional

judgment of prison administrators on such matters, the concerns noted above are

sufficient to justify the challenged policy under the legitimate interest standard for

Free Exercise claims. See Pfeil, 11 F. Supp. 3d at 1115.

      As it did with the volunteer policy, the district court went on to discuss the

rational connection between the hardbound book policy and the interests it served,

the availability of other means for inmates to exercise their religion (particularly their


                                          -8-
ability to obtain softbound religious books through purchase, rebinding of hardbound

books,7 or from the prison library), the adverse impact on prison operation if the

policy were not enforced, and the lack of ready practical alternatives that would

safeguard the interests involved. See id. at 1115-17; see also id. at 1112-14

(discussing at length the means available to inmates to replace proscribed hardbound

religious books). Mr. Pfeil takes issue in particular with the conclusion that he had

alternatives to his hardbound religious books, objecting that (1) he could not afford to

purchase replacements for his confiscated books and (2) even if he could afford

replacements, they were not available in a font size large enough for him to read due

to vision problems. The first objection is readily answered by precedent rejecting the

notion that prisons must subsidize inmates’ access to religious materials. Even under

the stricter obligations imposed by RLUIPA, the State is “not require[d] . . . to pay

for an inmate’s devotional accessories.” Cutter v. Wilkinson, 544 U.S. 709, 720 n.8

(2005). And we have specifically invoked this no subsidy principle to hold that a

prison does not have to pay for softbound versions of confiscated hardbound

religious texts. See Abdulhaseeb, 600 F.3d at 1320-21.

      As for font size, Mr. Pfeil does not cite any authority holding that the

constitution requires prisons to purchase religious books to accommodate the


7
       The prisons have machines available to convert books from hardbound to
softbound. Mr. Pfeil objects that he was not offered this service for his confiscated
religious books, but he has not cited any evidence showing that he specifically asked
for this to be done and was denied.


                                          -9-
physical limitations (or personal preferences) of their inmates. Indeed, such an

obligation would be inconsistent with the no subsidy principle applied in

Abdulhaseeb, which unqualifiedly held that prisons are not required to provide

replacements for confiscated hardbound books at all. This aspect of Mr. Pfeil’s case

is more aptly considered in connection with accommodation obligations under the

ADA, which is primarily how he presented it to the district court. His ADA claim is

addressed in the next section of this order and judgment.

        Mr. Pfeil has failed to demonstrate any error in the district court’s analysis of

his Free Exercise claim regarding the prohibition on possession of hardbound books.

We therefore affirm the grant of summary judgment to defendants on this claim as

well.

C. ADA Claim

        Mr. Pfeil claims that the failure to provide him with large print versions of his

confiscated religious books violated his right to reasonable accommodation under the

ADA. The district court identified two distinct dispositive deficiencies with respect

to this claim: (1) it had not been exhausted in Mr. Pfeil’s grievances over

confiscation of his books; and (2) on the merits, he had not shown the requisite

disability to trigger a duty to accommodate under the ADA. Pfeil, 11 F. Supp. 3d at

1119. We agree with the first point and need not reach the second.

        Absent a controlling statutory or regulatory directive specifying the requisite

content of prison grievances (and none have been cited to us here), an inmate


                                           - 10 -
properly exhausts a claim if his grievance provides enough information regarding the

nature of the alleged wrong to enable prison officials to investigate and address his

complaint. Kikumura v. Osagie, 461 F.3d 1269, 1283-85 (10th Cir. 2006), overruled

on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as explained in

Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008). The relevant

materials here are the grievances (initial grievance and subsequent appeals) Mr. Pfeil

submitted complaining of the confiscation of his religious books pursuant to the

prohibition on hardbound books. Even judged under the fairly lenient standard

clarified in Kikumura, Mr. Pfeil’s grievances did not exhaust an ADA claim.

      The only legal rights invoked in the grievances were those under RLUIPA and

the Free Exercise Clause, which Mr. Pfeil alleged were violated by the confiscation

of hardbound religious books that he could not afford to replace. Nowhere is there

any mention of an ADA claim. But his omission went much further than just not

invoking the ADA. He simply never asked for an accommodation of any vision

problems, which is the essence of his present ADA claim. Indeed, he never even

mentioned a disability. His only reference remotely relevant to an ADA claim was

on appeal from the denial of his initial grievance when he said in passing that a

softbound bible given to him by a prison chaplain did not offset the loss of his own

because its print happened to be too small for him to read. He said nothing about any

disabling limitation arising from a vision impairment (the macular degeneration and

cataracts he now claims require accommodation made their first appearance in the


                                         - 11 -
affidavit he filed with the complaint initiating this lawsuit). In sum, Mr. Pfeil did not

provide enough information in his grievances to enable prison officials to investigate

and address the material elements of the ADA claim he later brought in this case.

D. Retaliation

      The district court methodically addressed Mr. Pfeil’s various allegations of

retaliation and explained why he failed to demonstrate a triable claim. See Pfeil,

11 F. Supp. 3d at 1117-18. That discussion need not be repeated here. We have

reviewed Mr. Pfeil’s arguments on appeal and conclude that no error has been shown

with respect to the district court’s determination.8

      Mr. Pfeil does, however, raise a related procedural objection that should be

specifically addressed. He asserts that he did not receive the affidavits attached to

defendants’ summary judgment memorandum regarding his retaliation claim and

contends that the district court’s reliance on them was therefore impermissible. He

never raised this issue with the district court, however, so there is no determination

regarding the facts of the matter for us to review, nor can we as an appellate court

determine the facts for ourselves. But even assuming the facts to be as Mr. Pfeil

asserts, we reject his objection on the ground that it comes far too late in the day to

serve as a proper basis for disturbing the district court’s judgment.



8
       Indeed, we would add that the allegations of retaliation have a further legal
deficiency not noted by the district court: the lack of personal participation by the
named defendants in the actions Mr. Pfeil claims were retaliatory.


                                          - 12 -
      Mr. Pfeil does not dispute that he received the memorandum to which the

affidavits were attached as exhibits. The memorandum was filed on June 28, 2013.

The district court did not rule on summary judgment until March 31, 2014. The

affidavits were explicitly cited and relied on throughout the memorandum, but

Mr. Pfeil raised no objection about their alleged absence in the nine months that

preceded the ruling on summary judgment. Nor, after the district court relied on the

affidavits in its summary judgment order, did Mr. Pfeil raise any objection by way of

post-judgment motion. The only mention of any problem in this regard was in a

letter he sent to the court clerk two months after filing this appeal. His inaction thus

deprived the district court of the opportunity to look into the matter and take steps to

cure any omission before deciding summary judgment, and then further deprived the

district court of an opportunity to address the matter in post-judgment proceedings

before jurisdiction was lost through his commencement of appeal. It also deprived

defendants of a timely opportunity either to dispute their alleged omission or to

correct it while the matter was still under advisement in the district court. Just such

considerations underlie our general rule barring consideration of arguments that an

appellant has not raised in the district court. See, e.g., Cahill v. Am. Family Mut. Ins.

Co., 610 F.3d 1235, 1239 (10th Cir. 2010); Wall v. Astrue, 561 F.3d 1048, 1067 &

n.25 (10th Cir. 2009). Under the circumstances, we hold that Mr. Pfeil has forfeited

any objection that he was not provided the affidavits attached to defendants’

summary judgment memorandum on the retaliation claim.


                                         - 13 -
      The judgment of the district court is affirmed. Mr. Pfeil’s motion to proceed

in forma pauperis on appeal is granted. His motion for declaratory and injunctive

relief for spoliation of evidence is denied.


                                                   Entered for the Court


                                                   Carolyn B. McHugh
                                                   Circuit Judge




                                          - 14 -
