                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       July 21, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 JO H N N Y L. H A RD EM A N ,

               Plaintiff - Appellant,                   No. 06-5044
          v.                                          N. D. Oklahoma
 CH AR LES STEW AR T; CH AR LES                  (D.C. No. 01-CV -304-JHP)
 LINCK S,
            Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Johnny L. Hardeman is serving a life sentence in the custody of the

Oklahoma D epartment of Corrections (DOC). Between M arch 23, 2000, and

August 17, 2001, he w as housed at the D ick C onner Correctional Center (DCCC).

On April 25, 2001, M r. Hardeman filed a complaint under 42 U.S.C. § 1983 in the

United States District Court for the Northern District of Oklahoma, alleging that



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
during his stay at the DCCC he was denied his free exercise of religion in a

variety of ways. 1 The defendants, DCCC Chaplain Charles Lincks and DCCC

Deputy W arden Charles Stewart, filed a motion to dismiss the complaint or grant

sum mary judgment. A M artinez report was prepared by the DCCC. See Martinez

v. Aaron, 570 F.2d 317 (10th Cir. 1978). The district court granted dismissal in

part and summary judgment in part on January 31, 2006. M r. Hardeman appeals

that disposition. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

      M r. Hardeman’s claims arise from his asserted affiliation with the Hebrew

Israelites, see United States v. Beasley, 72 F.3d 1518, 1521 (11th Cir. 1996)

(describing the development and rise of the H ebrew Israelites in the 1980s). In

his complaint he alleged violations of his rights under the First and Fourteenth

Amendments by the DCCC’s denial of a separate time and place for worship for

the H ebrew Israelites (they were combined with the O rthodox and Reform Jew s);

denial of access to religious items, including garments, teas, candles, and

literature; failure to recognize that the faith of H ebrew Israelites constitutes a

religion; denial of holy days and feasts; and (a claim not mentioned in his brief on

appeal) denial of a financial account for the group. He sought compensatory and

punitive damages, and any other relief to which he was entitled.




      1
        M r. Hardeman also raised claims under Oklahoma law before the district
court, but he does not mention those claims in his brief to us.

                                          -2-
      The district court dismissed his claim for compensatory damages as barred

by the Prison Litigation Reform Act (PLRA) because he did not allege any

physical injury. See 42 U.S.C. § 1997e(e); Searles v. Van Bebber, 251 F.3d 869,

877 (10th Cir. 2001) (PLRA limits inmate’s ability to recover for nonphysical

harms such as mental or emotional injuries). To the extent that M r. Hardeman’s

complaint could be construed to request injunctive relief, the court dismissed the

claim as moot because he has since been transferred from the DCCC and does not

allege that he is likely to return there. See Martinez v. Chavez, 574 F.2d 1043,

1044 (10th Cir. 1978).

      M r. Hardeman’s claims for nominal or punitive damages, however, could

not be resolved on the motion to dismiss, so the district court proceeded to

address the motion for summary judgment. The court construed M r. Hardeman’s

complaint liberally to include a claim under the Equal Protection Clause, which it

then rejected because “[a]lthough Plaintiff alleges that as a Hebrew Israelite, he

was treated differently from inmates of ‘recognized’ religions, he does not allege

or demonstrate that inmates of other religions were allow ed to access or possess

religious items or to engage in religious practices without following the relevant

DOC or DCCC policy.” R. Doc. 46 at 14-15 (Order, February 13, 2006). The

court also granted summary judgment to the defendants on M r. Hardeman’s free-

exercise claims, because the defendants were correct in asserting that he had

“‘provided no evidence that Defendants denied him the right to practice his faith,

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or that their actions prohibited him from practicing his beliefs.’” R. Doc. 46 at 10

(quoting defendants’ motion). The court said that M r. Hardeman had failed to

show that a worship time separate from the Jewish services was necessary to the

practice of his faith; that he had failed to controvert the defendants’ evidence that

their actions in denying him access to items in the DCCC property room were

based on M r. Hardeman’s failure to comply with DOC policy in requesting

them— regulations imposed on members of all religions; and that he had failed to

comply with applicable policies in requesting recognition of religious fast and

feast days. The court concluded that all of defendants’ actions towards

M r. Hardeman’s requests “reflect an effort to accommodate Plaintiff’s religious

needs within the parameters established by DOC policy.” Id. at 15.

Consequently, M r. Hardeman had failed to show any violation of his

constitutional rights and the defendants were entitled to qualified immunity.

      On appeal the defendants argue that M r. Hardeman’s entire complaint

should have been dismissed without prejudice by the district court because it

contained claims that had not been administratively exhausted, as required by the

PLRA. See 42 U.S.C. § 1997e(a); Ross v. County of Bernalillo, 365 F.3d 1181,

1190 (10th Cir. 2004) (adopting the total-exhaustion doctrine for § 1983 suits

under the PLRA). But they did not make this argument in their motion to dismiss

before the district court. Failure to exhaust administrative remedies under the

PLRA is not a jurisdictional defect. See Steele v. Fed. Bureau of Prisons, 355

                                         -4-
F.3d 1204, 1208 (10th Cir. 2003). W e will not address a challenge to exhaustion

raised for the first time on appeal when the plaintiff’s complaint is not defective

on its face. See McDonald v. Kinder-M organ, Inc., 287 F.3d 992, 999 (10th Cir.

2002) (“[A]bsent extraordinary circumstances, we will not consider arguments

raised for the first time on appeal. This is true whether an appellant is attempting

to raise a bald-faced new issue or a new theory on appeal that falls under the same

general category as an argument presented at trial.” (internal citation and

quotation marks omitted)); cf. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.

2004) (failure-to-exhaust defense can be w aived by failure to raise it).

M r. Hardeman’s complaint alleged the filing of several administrative grievances

and their negative disposition, and he attached relevant paperw ork. See

Fitzgerald v. C orrs. C orp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005) (“To

successfully allege exhaustion a prisoner must: (1) plead his claims with a short

and plain statement showing that he is entitled to relief, in compliance with

Fed.R.Civ.P. 8(a)(2); and (2) attach a copy of the applicable administrative

dispositions to the complaint, or, in the absence of written documentation,

describe with specificity the administrative proceeding and its outcome.” (internal

quotation marks, brackets, and ellipsis omitted)). Accordingly, we turn to the

merits of the appeal.

      Although M r. Hardeman challenges on appeal the district court’s rulings,

he does not dispute the court’s conclusions that he failed to follow the required

                                         -5-
prison procedures or show that worship with the facility’s Jewish population is

inconsistent with Hebrew Israelite practice outside the prison context. Rather, he

appears to raise two arguments not directly addressed by the district court. The

first, that the combination of worship services for the Hebrew Israelites and the

Jewish population resulted in fights and disturbances, was not raised in his

complaint or his response to the defendants’ motion, so we will not address it on

appeal. The second is his claim that the DOC’s failure to recognize the Hebrew

Israelite faith is a First Amendment violation. W e do not see how failure to

recognize his faith has in itself any effect of restricting his religious practice;

such effects would only be through the consequences of nonrecognition— such as

denial of religious items— that M r. H ardeman raised in separate claims.

Therefore, although the district court did not address this claim separately, its

disposition of his other free-exercise claims is responsive to this one also.

      W e AFFIRM the district court’s judgment for substantially the reasons

stated in its order. W e GRANT M r. Hardeman’s m otion to file an untimely reply

brief and have considered the brief.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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