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

                             FOR THE TENTH CIRCUIT                             June 4, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
STEPHEN CRAIG BURNETT,

      Plaintiff - Appellant,

v.                                                           No. 17-6202
                                                     (D.C. No. 5:16-CV-00609-M)
OKLAHOMA DEPARTMENT OF                                      (W.D. Okla.)
CORRECTIONS,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, McKAY, and BALDOCK, Circuit Judges.
                 _________________________________

      Stephen Craig Burnett sued the Oklahoma Department of Corrections (ODOC)

alleging that certain prison policies substantially burden his religious rights in

violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA),

42 U.S.C. §§ 2000cc-2000cc-5. Mr. Burnett alleged two claims and sought

declaratory and injunctive relief. The district court dismissed one claim for failure to



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
exhaust his administrative remedies and the second claim for lack of standing.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    Background

      Mr. Burnett is an Oklahoma inmate and a member of the Jewish faith. In his

pro se complaint, he challenged aspects of ODOC’s Religious Services policy,

claiming that they substantially burden his religious practice. In his first claim, he

objected to several provisions of the policy related to kosher diets. Inmates may

request a kosher diet by completing an ODOC form that sets forth rules inmates must

follow and the consequences for violation of those rules. Mr. Burnett alleged that he

has not submitted the request form because it would subject him to policies that

violate RLUIPA, specifically: the possibility of waiting periods of up to 60 days to

receive the diet, increasingly severe suspensions from the kosher diet without due

process if the inmate consumes any non-kosher food, and the necessity to reapply for

a kosher diet following a suspension and upon transfer to another facility. He asked

the district court to order certain changes to the policy, including eliminating all

requirements for obtaining a kosher diet other than a request based on an inmate’s

statement of his sincere religious belief.

      In his second claim, Mr. Burnett challenged the limitations on religious items

under the Religious Services policy, which lists the items that inmates may possess in

their cells and those that are permitted for communal use. He alleged that this policy

violates RLUIPA by denying him access to other religious items that are essential to



                                             2
his religious practice. He asked the court to order changes to this policy, including

adding certain religious items to the list of allowable items.

      ODOC moved to dismiss Mr. Burnett’s complaint under

Fed. R. Civ. P. 12(b)(6) for failure to exhaust his administrative remedies, as required

by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). A magistrate judge

recommended dismissing his claim challenging the religious items policy on that

basis, but concluded that his claim challenging the kosher diet policy should instead

be dismissed for lack of standing. After de novo review of Mr. Burnett’s objections

to the magistrate judge’s report and recommendation, the district court adopted it and

dismissed his complaint without prejudice.

II.   Discussion

      We review de novo a district court’s dismissal of an inmate’s claim for failure

to exhaust administrative remedies. Gallagher v. Shelton, 587 F.3d 1063, 1067

(10th Cir. 2009). Although failure to exhaust is an affirmative defense, it may be

raised in a motion to dismiss asserting a failure to state a claim when the grounds for

this defense appear on the face of the complaint. See Jones v. Bock, 549 U.S. 199,

214-15 (2007); cf. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225-26 (10th Cir.

2007) (holding a district court may, in some cases, dismiss a prisoner’s complaint sua

sponte for failure to exhaust administrative remedies after giving the prisoner an

opportunity to address both exhaustion and whether exhaustion was excused). We

also review de novo the dismissal of a complaint for lack of standing. COPE v. Kan.



                                            3
State Bd. of Educ., 821 F.3d 1215, 1220 (10th Cir. 2016).1 Because Mr. Burnett

proceeds pro se, “we construe his pleadings and papers liberally, but our role is not to

act as his advocate.” Gallagher, 587 F.3d at 1067.

      A.     Dismissal of Claim Challenging Religious Items Policy for Failure to
             Exhaust Administrative Remedies

      The district court held that Mr. Burnett failed to exhaust his claim challenging

the ODOC religious items policy. The first step in the ODOC grievance procedure

required him to attempt an informal resolution of the issue with a staff member.

Mr. Burnett made “affirmative but not conclusive statements” regarding his

exhaustion of remedies in his complaint. Aquilar-Avellaveda, 478 F.3d at 1225. He

affirmatively alleged that he had pursued the ODOC grievance process before filing

suit, but the request to staff that he attached to his complaint addressed only the

kosher diet policy; it did not mention religious items or the religious items policy. In

response to ODOC’s motion to dismiss, Mr. Burnett did not contend that he had

exhausted this claim. See Gallagher, 587 F.3d at 1068 (noting prisoner did not

contest his failure to exhaust in response to dismissal motion). Instead, he argued




      1
        Contrary to Mr. Burnett’s assertion, the district court was not required to
convert ODOC’s dismissal motion into a motion for summary judgment because it
relied on documents that he incorporated by reference in, or attached as exhibits to,
his complaint. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).


                                            4
that exhaustion was excused because administrative remedies were not available to

him.2 The district court rejected his contention.

       On appeal, Mr. Burnett points to his allegations that ODOC’s grievance

procedure does not provide an available administrative remedy because no staff

member processing grievances has the authority to grant the relief he requested in his

complaint and inmates may not challenge the legality of an ODOC policy. He also

maintains that the ODOC grievance policy, on its face, is so complex, confusing, and

labyrinthine that it cannot be effectively utilized by an ordinary prisoner.3

Mr. Burnett contends that these allegations demonstrate that administrative remedies

were unavailable to him under the Supreme Court’s reasoning in Ross v. Blake,

136 S. Ct. 1850 (2016).

       In Ross, the Court gave examples of “circumstances in which an administrative

remedy, although officially on the books, is not capable of use to obtain relief,”

including, as relevant here, (1) a procedure that “operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief,” and (2) “an

       2
        Because Mr. Burnett does not dispute the issue, we proceed on the
assumption that he bore the burden to demonstrate that exhaustion was excused in
response to ODOC’s motion to dismiss. Cf. Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011) (holding in affirming summary judgment that “[o]nce a defendant
proves that a plaintiff failed to exhaust . . . the onus falls on the plaintiff to show that
remedies were unavailable to him . . . .”).
       3
         We can consider the text of the ODOC grievance policy in reviewing the
district court’s dismissal order. The policy is referenced in Mr. Burnett’s complaint,
it is central to his contention that administrative remedies were unavailable, and he
does not dispute the authenticity of the copy of the policy filed with ODOC’s Special
Report. See Smith, 561 F.3d at 1098.

                                             5
administrative scheme . . . [that is] so opaque that it becomes, practically speaking,

incapable of use.” Id. at 1859. It held that a prisoner asserting a claim involving

staff misconduct may be able to show he did not have an “available” administrative

remedy where there is evidence that, contrary to a written grievance policy, wardens

routinely dismiss grievances involving that issue as procedurally improper. Id. at

1860-62.

       Mr. Burnett has not shown that ODOC’s grievance process was unavailable to

him. He alleged that he could not obtain through that process the relief that he

requested in his complaint because no staff member reviewing grievances can rule on

the legality of a prison policy. But an administrative procedure is not unavailable

because it fails to provide the specific relief that an inmate demands. Rather,

“Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the

forms of relief sought and offered through administrative avenues.” Booth v.

Churner, 532 U.S. 731, 741 n.6 (2001). In Booth, the Supreme Court rejected a

prisoner’s contention that he lacked an “available” administrative remedy where the

applicable grievance process “has authority to take some action in response to a

complaint, but not the remedial action an inmate demands to the exclusion of all

other forms of redress.” Id. at 736. It held that a prisoner who seeks only money

damages is required to complete a grievance process even though it does not provide

for that type of relief. Id. at 734; see also id. at 741 (holding it was “highly

implausible that [Congress] meant to give prisoners a strong inducement to skip the

administrative process simply by limiting prayers for relief to money damages not

                                            6
offered through administrative grievance mechanisms”).4 Thus, Mr. Burnett fails to

show that the ODOC grievance process was unavailable to him because it cannot

provide the specific relief that he seeks in his complaint.5

      Mr. Burnett also contends that the ODOC grievance process cannot be

effectively utilized by an ordinary prisoner due to its complexity. But as the

Supreme Court explained, grievance procedures “need not be sufficiently ‘plain’ as

to preclude any reasonable mistake or debate with respect to their meaning.” Ross,

136 S. Ct. at 1859. Here, Mr. Burnett points to nothing in the ODOC policy

persuading us that the grievance process meets the “significantly higher bar” of being

“essentially unknowable—so that no ordinary prisoner can make sense of what it

demands.” Id. (internal quotation marks omitted). He therefore fails to satisfy the

Supreme Court’s standard for demonstrating that the ODOC’s administrative scheme

is unavailable.6


      4
        Mr. Burnett contends that the Supreme Court overruled Booth in Ross. Not
so. Ross cited Booth for the proposition that an administrative procedure is
unavailable when it “lacks authority to provide any relief.” Ross, 136 S. Ct. at 1859
(emphasis added; internal quotation marks omitted).
      5
        To the extent that Mr. Burnett now argues that the ODOC grievance process
lacks authority to provide him any relief on his claim challenging the limited list of
allowable religious items under the ODOC policy, we decline to consider that issue
because he failed to raise and develop it in the district court. See Gallagher,
587 F.3d at 1068. We note, however, that some relief other than invalidation of the
policy appears to be available. The Religious Services policy, itself, permits inmates
to request that additional items be added to the list of allowable religious items.
      6
        Mr. Burnett also asserts that, in practice, ODOC officials apply the grievance
policy in a manner that hinders inmates’ successful use and completion of the
                                                                            (continued)
                                            7
      Mr. Burnett next contends that the district court erred in denying as moot his

motion for leave to conduct discovery on exhaustion of administrative remedies. The

magistrate judge reviewed his discovery requests and held that they “would not have

affected the findings” in the report and recommendation. R. at 245. Mr. Burnett

argues that ODOC’s responses to his discovery requests would show that he had no

available administrative remedy. We disagree. He first contends that discovery

would have proven his allegation that no staff member reviewing grievances could

grant the relief that he sought in challenging the religious items policy. But as we

have explained, establishing that fact would not be sufficient to show that he lacked

an available administrative remedy. And his anticipated responses to his other

discovery requests would not demonstrate that ODOC’s grievance policy is so

opaque that “no ordinary prisoner can discern or navigate it.” Ross, 136 S. Ct. at

1859. We see no abuse of discretion in the district court’s denial of discovery. See

Garcia v. Tyson Foods, Inc. 770 F.3d 1300, 1309 (10th Cir. 2014) (reviewing district

court’s denial of motion to compel discovery for an abuse of discretion). Mr. Burnett

has not shown “that the denial of discovery resulted in actual and substantial

prejudice.” Id. (internal quotation marks omitted).




grievance process. See Ross, 136 S. Ct. at 1860 (noting administrative remedies may
be unavailable where prison officials “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation”). But he
did not allege that any prison official interfered with his ability to pursue a grievance
regarding the religious items policy.

                                            8
      The district court did not err in holding that it was evident from Mr. Burnett’s

complaint that he had not exhausted his claim challenging the religious items policy,

and that he failed to show in response to ODOC’s motion to dismiss that the ODOC

grievance process—which he made no attempt to pursue—was unavailable. We

affirm the district court’s dismissal of that claim for failure to exhaust administrative

remedies.

      B.     Dismissal of Claim Challenging Kosher Diet Policy for Lack of
             Standing

      Standing to bring a claim under RLUIPA is “governed by the general rules of

standing under Article III of the Constitution.” 42 U.S.C. § 2000cc-2(a). The district

court dismissed Mr. Burnett’s claim challenging the kosher diet policy on an

alternative ground not raised by ODOC: his lack of standing to bring this claim.

See Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 851 (10th Cir. 2015) (explaining that

because standing implicates subject matter jurisdiction it is “a threshold issue in

every case before a federal court” (internal quotation marks omitted)). “At the start

of litigation, a plaintiff must show standing under Article III by demonstrating:

(1) an injury in fact; (2) a causal connection between the injury and the challenged

action; and (3) a likelihood that a favorable decision will redress the injury.” Ind v.

Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (alteration and internal

quotation marks omitted).

      The district court noted Mr. Burnett’s requested relief: an injunction ordering

ODOC to change its kosher diet policy in specific ways and a declaration that the


                                            9
challenged provisions of the policy are violating his rights under RLUIPA.

According to his complaint, however, Mr. Burnett is not subject to any aspect of the

kosher diet policy because he has not requested that diet by submitting the ODOC

request form. The court therefore concluded that, “[a]s it now stands, [Mr. Burnett]

is not suffering an actual or continuing injury under the relevant policy.” R. at 242.

Therefore, because of his failure to submit to the policy, the court held that he lacked

standing to challenge it. For this proposition the district court cited several cases

from other courts, including Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096

(2d Cir. 1997) (stating that “[a]s a general matter, to establish standing to challenge

an allegedly unconstitutional policy, a plaintiff must submit to the challenged

policy”) (cited with approval in United States v. Hardman, 297 F.3d 1116, 1121

(10th Cir. 2002)); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-68 (1972)

(holding African-American plaintiff who had not applied for membership lacked

standing to challenge lodge’s all-white membership policy); and Madsen v. Boise

State University, 976 F.2d 1219, 1220 (9th Cir. 1992) (per curiam) (“There is a long

line of cases . . . that hold that a plaintiff lacks standing to challenge a rule or policy

to which he has not submitted himself . . . .”).

       Most of Mr. Burnett’s appeal arguments do not address the district court’s

ruling that he lacks standing because he is not subject to the ODOC kosher diet

policy provisions that he challenges. In particular, the cases he cites regarding

challenges to kosher diet policies in Florida prisons are inapposite on the standing

issue. In United States v. Secretary, Florida Department of Corrections,

                                             10
778 F.3d 1223, 1225-26 (11th Cir. 2015), the United States challenged the Florida

Department of Corrections’ kosher diet policy under 42 U.S.C. § 2000cc-2(f), which

authorizes the government to “bring an action for injunctive or declaratory relief to

enforce compliance with [RLUIPA].” And in Rich v. Secretary, Florida Department

of Corrections, 716 F.3d 525, 528 (11th Cir. 2013), the prisoner asserted a claim

under RLUIPA challenging his prison’s failure to provide any kosher meals to

inmates.

      We also reject Mr. Burnett’s attempt to re-characterize his claim as asserting

injury based on ODOC’s denial of a request to receive a kosher diet. That is not the

claim he alleged in his complaint. See R. at 10 (alleging “an actual controversy as to

whether the challenged portion of the DOC religious policy violates Plaintiff’s . . .

rights under the RLUIPA”); id. at 11 (asserting that particular portions of the kosher

diet policy violate RLUIPA); id. at 14 (seeking relief including the elimination of

challenged provisions of the kosher diet policy and an injunction prohibiting removal

of Jewish inmates from the kosher diet except upon their request); id. at 18 (listing

provisions of kosher diet policy challenged in the complaint).

      Mr. Burnett has not shown error in the district court’s dismissal of his claim

challenging the kosher diet policy based on a lack of standing. We therefore affirm

dismissal on that basis.




                                          11
III.   Conclusion

       The district court’s judgment is affirmed. We grant Mr. Burnett’s motion for

leave to proceed on appeal without prepayment of costs and fees.


                                          Entered for the Court


                                          Bobby R. Baldock
                                          Circuit Judge




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