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

                           FOR THE TENTH CIRCUIT                         June 24, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
WAHIID MUJAHEED ALAMIIN,

             Plaintiff-Appellant,

v.                                                        No. 12-6153
                                                   (D.C. No. 5:08-CV-01371-F)
DEBBIE MORTON,                                            (W.D. Okla.)

             Defendant-Appellee,

and

RICHARD TINKER, Chaplain; EDWIN
CARNS; MELISSA HALVORSON;
DAVID MILLER, LEO BROWN,

             Defendants.


                            ORDER AND JUDGMENT*


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit
Judge.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Wahiid Mujaheed AlAmiin, a Muslim prisoner in the custody of the Oklahoma

Department of Corrections (ODOC), appeals the district court’s judgment in favor of

ODOC employee Debbie Morton on two claims under the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc-1(a),

2000cc-2. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                      Background

                                 A. Legal Background

      RLUIPA prohibits a government from “impos[ing] a substantial burden on the

religious exercise” of a prisoner “unless the government demonstrates that imposition

of the burden on that person . . . (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1(a). Accordingly, a prisoner bringing a

RLUIPA claim “must demonstrate he wishes 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.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312

(10th Cir. 2010). Once the prisoner has satisfied this requirement, “the burden of

proof shifts to the defendants to show the substantial burden results from a

‘compelling governmental interest’ and that the government has employed the ‘least

restrictive means’ of accomplishing its interest.” Id. at 1318.




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                                B. Factual Background

      Mr. AlAmiin is incarcerated at Lawton Correctional Facility (LCF), a private

correctional facility that contracts with ODOC. Ms. Morton, as the ODOC Director’s

designee to the Administrative Review Authority, enforced ODOC policy in handling

numerous grievances filed by Mr. AlAmiin.

      This appeal concerns two requests arising from Mr. AlAmiin’s practice of

Islam. First, he requested a halal or a kosher diet, which was denied because ODOC

did not provide a halal meal option and allowed only Jewish, Messianic Jewish, and

House of Yahweh prisoners to request a kosher diet. Second, he requested the ability

to possess prayer oil in his cell and on his person. This request was denied because

ODOC policy limits prisoners’ possession of religious perfumes and oils to a small

vial to be kept and used only in the designated communal area for worship and

storage. When Mr. AlAmiin sued, among other claims, he alleged that Ms. Morton’s

enforcement of ODOC’s halal-meal and prayer-oil policies imposed a substantial

burden on his religious exercise in violation of RLUIPA.

      During the litigation, ODOC adopted a halal-meal option for Muslim inmates.

In addition, pursuant to a settlement agreement between Mr. AlAmiin and other

defendants in the litigation, the district court entered an injunction requiring that

while he is housed at LCF, Mr. AlAmiin shall be served a halal diet that is prepared

and served in conformance with ODOC’s policy regarding kosher meal preparation

and service. Ms. Morton contended that these developments mooted the halal-meal


                                           -3-
claim. In response, Mr. AlAmiin disputed the adequacy of the handling and

preparation procedures set forth in the new halal-meal policy. The district court

agreed with Ms. Morton and dismissed the halal-meal claim against her as moot. It

also held that to the extent that Mr. AlAmiin claimed the new policy was insufficient,

he would have to exhaust his administrative remedies before pursuing litigation.

      The prayer-oil claim proceeded to summary judgment. The district court

concluded that the undisputed facts established that ODOC’s restriction on in-cell

and personal possession of prayer oil served a compelling governmental interest in

maintaining prison security and represented the least restrictive means of furthering

that interest. Accordingly, the district court entered judgment for Ms. Morton on the

prayer-oil claim.

                                       Analysis

                                A. Halal-Meal Claim

      Mr. AlAmiin argues that despite the adoption of the halal-meal policy and the

entry of the injunction, the halal-meal claim against Ms. Morton should be allowed to

proceed. Having reviewed the issue of mootness de novo, see Faustin v. City &

Cnty. of Denver, 268 F.3d 942, 947 (10th Cir. 2001), we affirm the dismissal.

      “Article III delimits the jurisdiction of federal courts, allowing us to consider

only actual cases or controversies.” Abdulhaseeb, 600 F.3d at 1311 (internal

quotation marks omitted). “The crucial question is whether granting a present

determination of the issues offered will have some effect in the real world.”


                                         -4-
Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (internal

quotation marks omitted).

      The only relief available to Mr. AlAmiin under RLUIPA is injunctive relief

against Ms. Morton in her official capacity. See Sossamon v. Texas, 131 S. Ct. 1651,

1663 (2011) (holding that states have not waived their sovereign immunity against

suits for money damages under RLUIPA); Stewart v. Beach, 701 F.3d 1322, 1335

(10th Cir. 2012) (“[T]here is no cause of action under RLUIPA for

individual-capacity claims.”). But the policy underlying the denial of his halal-meal

requests has been amended, and thanks to the injunction entered in his favor against

other defendants in this litigation, Mr. AlAmiin now has what he originally sought—

LCF will provide him with halal meals that are prepared and served according to

kosher standards. Given that the burden on Mr. AlAmiin’s religious exercise has

been lifted, and the only available relief against Ms. Morton is prospective, there is

nothing to be gained in the real world by continuing to litigate the halal-meal claim.1

See, e.g., 42 U.S.C. § 2000cc-3(e) (providing that “[a] government may avoid the

preemptive force” of RLUIPA by eliminating the substantial burden imposed by a

policy or practice, including “by changing the policy or practice” or “by providing

exemptions from the policy or practice”); U.S. Dep’t of Agric., 414 F.3d at 1212 (“By
1
      Although Mr. AlAmiin notes that it is within ODOC’s power to transfer him
away from LCF, it is speculative whether he would be transferred or whether he
would then receive a diet that would substantially burden his religious exercise.
Further, claims based on any such events would have to be administratively
exhausted before being litigated. See 42 U.S.C. § 1997e(a).


                                          -5-
eliminating the issues upon which this case is based, adoption of the new rule has

rendered the appeal moot.”).

      Moreover, even if the claim were not moot, it still could not proceed in this

litigation. As the district court recognized, Mr. AlAmiin’s current contentions, which

focus on the suitability of ODOC’s new halal-meal policy, are qualitatively different

than the issues he administratively exhausted, which concerned ODOC’s flat denial

of his request for a halal or a kosher diet. Before challenging the adequacy of the

new halal-meal policy through litigation, Mr. AlAmiin must exhaust his

administrative remedies. See 42 U.S.C. § 1997e(a).

                                  B. Prayer-Oil Claim

      Mr. AlAmiin asserted that ODOC’s policy regarding prayer oils substantially

burdens his ability to pray, as his beliefs require that he purify and anoint himself

with oil before each of the five daily prayers required of Muslims. Ms. Morton did

not challenge his showing of substantial burden, but instead argued that ODOC’s

prayer-oil policy is the least restrictive means of achieving a compelling

governmental interest. The district court agreed with Ms. Morton. We review the

grant of summary judgment de novo. Abdulhaseeb, 600 F.3d at 1311.

                          Compelling Governmental Interest

      Ms. Morton identified four interests in restricting the use and possession of

prayer oils, all having to do with prison security: (1) scented oil masks the scent of

drugs and contraband; (2) oil facilitates sexual activity; (3) oil makes it more difficult


                                          -6-
to physically control inmates because they may coat themselves and cell surfaces

with it; and (4) oil is used as a bartering item with inmates unable to purchase it. On

appeal, Mr. AlAmiin argues that there are genuine issues of material fact regarding

the legitimacy of these security concerns. Particularly, he points out that ODOC

allows in-cell possession of up to fourteen ounces of baby oil, which can also be used

to engage in the behaviors that ODOC identifies. We need not consider all of

Ms. Morton’s proffered rationales, however, because at the very least, the record

supports the rationale that the prayer-oil policy serves the compelling governmental

interest of enhancing prison security through minimizing contraband.

      Ms. Morton presented evidence that ODOC performed tests using prayer oils

obtained from an ODOC-approved provider and ODOC drug dogs, and that in the

tests the oils hampered the dogs’ ability to detect drugs. An affidavit from ODOC’s

Deputy Director of Institutions Ken Klingler averred that the “use of drug dogs is a

vital tool” to ODOC because “[t]he ingenuity of inmates to find places and ways to

hide contraband is nearly beyond comprehension to those outside of DOC” and

“[w]ithout the effective use of drug dogs, drugs would go undetected.” Aplt. App.

Vol. 2 at 645. All of this evidence indicates that in banning in-cell possession of

prayer oils ODOC acted on facts, rather than “mere speculation, exaggerated fears, or

post-hoc rationalizations,” Abdulhaseeb, 600 F.3d at 1318 (internal quotation marks

omitted), and requires the conclusion that ODOC’s policy banning in-cell possession

of prayer oil furthers a compelling governmental interest. See also Hammons v.


                                         -7-
Saffle, 348 F.3d 1250, 1255 (10th Cir. 2003) (holding, in First Amendment challenge

to ODOC’s in-cell ban on prayer oils, that “allowing inmates to purchase the oils but

to only possess them outside their cells in designated, supervised areas did further

appellees’ penological interests”). Given the context-specific nature of ODOC’s

drug-dog tests and the deference the federal courts must accord prison administration

in matters of prison security, see Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005),

Mr. AlAmiin’s more generalized evidence regarding drug dogs’ ability to distinguish

between scents does not create a genuine issue of material fact as to Oklahoma’s

compelling interest.

      Mr. AlAmiin also contends that Ms. Morton did not “make any kind of

individualized showing of a compelling interest in applying the on-person prayer oil

ban to [him].” Aplt. Br. at 20. See Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.

2001) (“[U]nder RFRA [the Religious Freedom Restoration Act, which contains the

same compelling-interest test as RLUIPA], a court does not consider the prison

regulation in its general application, but rather considers whether there is a

compelling government reason, advanced in the least restrictive means, to apply the

prison regulation to the individual claimant.”). To the contrary, Ms. Morton

presented evidence that it would be infeasible for ODOC to allow selective on-person

or in-cell possession of prayer oils. Mr. Klingler’s affidavit averred that the very

presence of oils in the inmate population creates the risk of bartering and increases

the chances of violence, with inmates forcibly taking other inmates’ oils. Moreover,


                                          -8-
Mr. Klingler stated that there is a risk that inmates might stockpile small amounts of

oil to amass a larger quantity. In all of these situations, inmates in possession of oils

could then use them in an effort to stymy drug dogs.

                                Least Restrictive Means

      As with the compelling-interest element, Mr. AlAmiin argues that Ms. Morton

did not sufficiently show that ODOC made an individualized assessment that

applying the general policy to him was the least restrictive means of achieving the

government’s interest. See Kikumura, 242 F.3d at 962. As discussed, however,

Ms. Morton presented sufficient evidence of the infeasibility of allowing only certain

inmates to possess prayer oils on their persons and in their cells.

      Mr. AlAmiin also points out that California prisons have allowed in-cell

possession of as much as twelve ounces of prayer oil. See Lewis v. Ollison,

571 F. Supp. 2d 1162, 1172 (C.D. Cal. 2008) (concluding that rule limiting prisoner

to in-cell possession of twelve ounces of prayer oil was not substantial burden on

prisoner’s religious exercise). The record lacks any evidence regarding California’s

regulations, however, and the mere fact that California has allowed in-cell possession

of prayer oil does not necessarily mean that Oklahoma’s decision to restrict in-cell

possession cannot qualify as the least restrictive means to achieve its interest.

      Finally, Mr. AlAmiin argues that Ms. Morton did not demonstrate that ODOC

considered whether less-restrictive policies would adequately further its interest in

security. In the district court, he suggested two potential alternatives that would be


                                          -9-
less restrictive: (1) allowing the in-cell possession of unscented prayer oil; or

(2) allowing him access to his stored prayer oil before prayers five times a day.2 In

analogous circumstances under the Religious Freedom Restoration Act, we have held

that “the government’s burden is two-fold: it must support its choice of regulation,

and it must refute the alternative schemes offered by the challenger, but it must do

both through the evidence presented in the record.” United States v. Wilgus,

638 F.3d 1274, 1289 (10th Cir. 2011).

      [W]e have an obligation to ensure that the record supports the
      conclusion that the government’s chosen method of regulation is least
      restrictive and that none of the proffered alternative schemes would be
      less restrictive while still satisfactorily advancing the compelling
      governmental interests. Therefore, we review the evidence adduced by
      the district court as part of our de novo consideration of whether the
      [state’s policy or] regulations are the least restrictive means of
      forwarding the government’s compelling interests.

Id.

      As discussed above, the record evidence supports ODOC’s choice of policy.

Similarly, it defeats Mr. AlAmiin’s proffered alternatives.

      Regarding the unscented-oil suggestion, it is unclear that Mr. AlAmiin ever

actually sought to possess unscented oils; the record indicates that his grievances and

his Amended Complaint concerned scented oils. Further, there is no record evidence


2
        In the conclusion to his appellate brief, Mr. AlAmiin also suggests that he be
allowed to mix minute quantities of scented oil with unscented substances such as
water or unscented oil. We do not consider this alternative because it is raised for the
first time on appeal. See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc.,
413 F.3d 1163, 1167 (10th Cir. 2005).


                                         - 10 -
that ODOC’s approved prayer-oil providers offer unscented oils. And regarding the

alternative of providing access to the communal area before each daily prayer, the

evidence shows that ODOC has limited staffing resources that are stretched with

every additional duty and that ODOC depends heavily on volunteers to staff religious

programs. Given these prison realities, it is not practical to expect ODOC to provide

Mr. AlAmiin timely access to the communal worship area five times per day, every

day. See also Hammons, 348 F.3d at 1256-57 (“[A]ccommodating [prisoner’s] need

to access his prayer oils five times per day would likely have heavily burdened prison

resources and other inmates’ religious interests.”).

                                      Conclusion

      Mr. AlAmiin’s motion for leave to proceed without prepayment of costs and

fees is granted. Mr. AlAmiin is reminded that he is obligated to continue making

partial payments until the entire obligation is paid. Ms. Morton’s motion and

amended motion to strike are denied. The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge




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