                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              December 5, 2008
                               TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                 Clerk of Court

JOSHUA J. ROBERTSON,

             Plaintiff - Appellant,                      No. 08-3235
      v.                                                 (D. Kansas)
STATE OF KANSAS; KANSAS                          (D.C. No. 5:07-CV-03162-SAC)
DEPARTMENT OF CORRECTIONS;
ROGER WERHOLTZ, Secretary of the
Kansas Department of Corrections, in his
individual and official capacity; CHUCK
SIMMONS, Deputy Secretary Facility
Management Policy Review Committee
Chairperson, in his individual and official
capacity; WILLIAM CUMMINGS,
Secretary of Corrections Designee for
Grievance Procedure, in his individual and
official capacity; LOUIS E. BRUCE,
Warden, Hutchinson Correctional Facility,
in his individual and official capacity;
RAYMOND ROBERTS, Warden, El Dorado
Correctional Facility, in his individual and
official capacity; RICHARD KOERNER,
Warden, Topeka Correctional Facility, in
his individual and official capacity; (FNU)
(LNU), the agents, subordinates and
employees of Roger Werholtz, Secretary of
Corrections, and their successors in interest,
in their individual and official capacities;
DALE R. CALL, Warden Raymond
Roberts’ designee, in his individual and
official capacity; GLORIA GEITHER,
Kansas Department of Corrections Religious
 Programs Coordinator, in her individual and
 official capacity; and ROBERT GATES,
 Secretary of Defense of the United States of
 America, and his agents, subordinates,
 employees and successors in interest, in
 their individual and official capacities,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      After examining appellant’s brief and the appellate record, this court 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.

      Proceeding pro se, state prisoner Joshua Robertson filed a complaint in

federal district court alleging defendants violated his First Amendment rights by

refusing to permit him to cohabitate and procreate with Jennifer Self, a female

state prisoner. Robertson’s complaint raised similar claims premised on the

Religious Land Use and Institutionalized Person Act (“RLUIPA”). Robertson

      *
        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.


                                         -2-
also invoked both the First Amendment and RLUIPA in several challenges to his

murder conviction and the terms of his incarceration. The district court dismissed

Robertson’s complaint, concluding the claims challenging the legality of his

conviction and incarceration and those seeking release from prison must be

brought in a separate action for habeas corpus relief. 1 The court also ruled that

Robertson failed to demonstrate a constitutional entitlement to conjugal visits.

See Ramos v. Lamm, 639 F.2d 559, 580 n.26 (10th Cir. 1980) (“[T]he weight of

present authority clearly establishes that there is no constitutional right to contact

visitation.”). Finally, the district court denied Robertson’s RLUIPA claim,

concluding a prohibition on heterosexual cohabitation and procreation was the

least restrictive means to further Defendants’ compelling interest in institutional

security. Robertson filed a motion pursuant to Rule 59(e) of the Federal Rules of

Civil Procedure which the district court denied.

      On appeal, Robertson challenges only the disposition of his claim that

RLUIPA provides him with the right to cohabitate with Jennifer Self. Having

reviewed the record, Robertson’s brief, and the applicable law, we can discern no

reversible error by the district court. Accordingly, the dismissal of Robertson’s

complaint is affirmed for substantially the reasons stated in the district court

      1
        On appeal, Robertson alleges the district court failed to address his claim
that he should be released from incarceration and permitted to serve in the United
States Marine Corps. This portion of the district court’s order addressed that
claim. Robertson’s attempts to characterize the claim as arising under RLUIPA
are unavailing.

                                          -3-
orders dated December 10, 2007, and August 15, 2008. Robertson’s motion for

injunction is denied as moot and his motion to proceed in forma pauperis on

appeal is granted. Robertson is reminded that he remains obligated to continue

making partial payments until his appellate filing fee is paid in full. See 28

U.S.C. § 1915(b).

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




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