                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                ___________

                                No. 09-3550
                                ___________

Stephen A. Hodgson,                     *
                                        *
              Appellant,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Joan Fabian; David Crist; John          *
King; Eddie Miles; Kathy                * [UNPUBLISHED]
Halvorson; Regina Stepney;              *
Greg Skrypek; David Reishus;            *
Sheryl Vezner; Mary Perez; John         *
Doe; Jane Doe, in their individual      *
and official capacities,                *
                                        *
              Appellees.                *
                                   ___________

                           Submitted: June 2, 2010
                              Filed: June 7, 2010
                               ___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ___________

PER CURIAM.
       Minnesota inmate Stephen Hodgson appeals the district court’s1 grant of
summary judgment for defendants in his action brought under 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc et seq., in which he alleged violations of his right to practice his Wiccan
religion. For the reasons that follow, we affirm.

       We agree with the district court that Hodgson did not establish that either his
inability to keep prayer oils in his cell or a delay in receiving his religious mail
substantially burdened his religion. See Patel v. U.S. Bureau of Prisons, 515 F.3d
807, 813-14 (8th Cir. 2008) (both First Amendment free-exercise claim and RLUIPA
claim require showing of substantial burden on ability to practice one’s religion); Van
Wyhe v. Reisch, 581 F.3d 639, 657 (8th Cir. 2009) (inmate must establish substantial
burden on religious exercise), cert denied, 78 U.S.L.W. 3500 (U.S. May 24, 2010)
(No. 09-953). Even if we assume that the prison’s policy limiting the herbs Hodgson
could purchase imposed a substantial burden, defendants provided evidence of
multiple safety and security concerns supporting the policy, and we agree with the
district court that defendants’ evidence showed that the policy is the least restrictive
means of furthering these compelling governmental interests. See Singson v. Norris,
553 F.3d 660, 662-63 (8th Cir. 2009) (“safety and security are compelling government
interests”); Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (in absence of
substantial evidence indicating officials have exaggerated response to prison security
considerations, courts should ordinarily defer to their expert judgment).

      Assuming that the prison’s policy regarding smudging and incense burning
imposed a substantial burden, we find that the prison’s safety and security concerns
were sufficient to ban these activities indoors. See Singson, 553 F.3d at 662-63;
Fegans, 537 F.3d at 903. Because the record reflects that Hodgson had made only one

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Susan
Richard Nelson, United States Magistrate Judge for the District of Minnesota.

                                          -2-
request to hold services outdoors, and the request was denied due to special
circumstances at the time, we find that he did not establish an equal protection
violation. See Patel, 515 F.3d at 815-16 (for equal protection claim, inmate must
show he is treated differently from similarly situated inmates based on suspect
classification, and prison’s decision was motivated by intentional discrimination).

        We conclude that summary judgment was also proper on Hodgson’s claim that
defendants violated his First Amendment free-speech rights by delaying receipt of his
mail. To the extent Hodgson raised a facial challenge to the regulation banning
sexually explicit material, we have previously recognized a government interest in
similar regulations. See, e.g., Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir. 1993)
(sexually explicit publication may be expected to circulate among prisoners with
potential for “coordinated disruptive conduct”). As to his claim that the regulations
were unconstitutional as applied, we note that Hodgson received all of the mail at
issue after using the prison’s appeal procedure, cf. Woodford v. Ngo, 548 U.S. 81, 88-
89 (2006) (exhaustion gives agency opportunity to correct its own mistakes before
being haled into court); and although defendants acknowledge that one item was
initially improperly withheld, summary judgment is not defeated by “a random
misapplication of a reasonable regulation,” see Holloway v. Pigman, 884 F.2d 365,
367 (8th Cir. 1989). Further, Hodgson did not establish a due process violation based
on his inability to grieve mailroom decisions. See Buckley v. Barlow, 997 F.2d 494,
495 (8th Cir. 1993) (per curiam) (prison grievance procedures confer no substantive
rights).

     Finally, we find no abuse of discretion in the district court’s denial of
Hodgson’s motion to take judicial notice of a finding by a state administrative agency.
See Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 796-97 (8th Cir. 2009).

      Accordingly, the judgment is affirmed.
                      ______________________________



                                         -3-
