                                                                            FILED
                                                                United States Court of Appeals
                                      PUBLISH                           Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  December 18, 2012

                                                                    Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                       Clerk of Court


STURGEON STEWART,

             Plaintiff-Appellant,

v.                                                        No. 12-3013

(FNU) BEACH; (FNU) WILSON,
Officers, El Dorado Correctional Facility,
in their individual capacities; RAY
ROBERTS, Warden, El Dorado
Correctional Facility, in his individual
capacity,

             Defendants-Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF KANSAS
                  (D.C. No. 5:08-CV-03295-JAR-KGG)


Submitted on the briefs:*

Holly A. Dyer, Daniel J. Buller, of Foulston Siefkin LLP, Wichita, Kansas, for
Plaintiff-Appellant.

Steven R. Fabert, Assistant Attorney General, Topeka, Kansas, for
Defendants-Appellees.


*
      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.
Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


KELLY, Circuit Judge.


      Sturgeon Stewart appeals from the district court’s judgment in favor of

defendants on his claims under the First Amendment’s Free Exercise Clause and the

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc

to 2000cc-5 (RLUIPA). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND

      Stewart was an inmate in the custody of the Kansas Department of Corrections

(KDOC) and confined at the El Dorado Correctional Facility (El Dorado). In

accordance with his Rastafarian religious beliefs, he does not cut or comb his hair,

which he keeps in dreadlocks.

      In December 2006, Stewart learned that his mother had been diagnosed with

cancer. To be closer to her, Stewart requested a voluntary transfer to the Lansing

Correctional Facility (Lansing). His request was granted. On the day of the transfer,

January 23, 2007, one of the defendants, Officer Agnes Beach,1 refused to allow

Stewart to board the transport vehicle because he could not comb out his dreadlocks,

as was required by the KDOC policy then in effect. In relevant part, that policy,

Internal Management Policy and Procedure (IMPP) § 12-110, provided:
1
       Although defendant Beach is now known as Agnes Linaweaver, we refer to her
by the name Beach, as listed in the caption of the complaint.


                                         -2-
      Prior to boarding a KDOC Transportation Unit vehicle, inmates may be
      required to comb out their hair as a security procedure against
      contraband. . . . To ensure that this procedure can be effectively
      accomplished, inmates shall not have hair braids, corn rows, or other
      hair arrangements wherein contraband can be easily hidden, and which
      cannot be readily combed out.

R. at 38. Beach consulted with her supervisor, defendant Thad Wilson, who gave

Stewart a choice—either cut his hair or forego the transfer. Stewart informed Beach

and Wilson that he was a practicing Rastafarian and therefore was strictly forbidden

to cut his hair. Stewart suggested the officers pat down his hair and use a metal

detector to search for contraband, but Wilson cancelled the transfer and sent Stewart

to administrative segregation.2 Stewart alleged that he also spoke about having to cut

his hair with a Unit Team member and with the El Dorado Warden, defendant Ray

Roberts.

      On January 30, Stewart filed a grievance seeking a religious exception to

IMPP § 12-110 and suggesting that his hair could be searched by hand. The

grievance was denied on the ground that the policy represented a safety and security

measure that had to be followed. Stewart filed a grievance appealing that denial to

Roberts. Roberts received the appeal on February 5, 2007, and denied it the same

day. Also on February 5, Stewart cut off his dreadlocks. He was transferred to

Lansing the next day.


2
       It appears from the record that Stewart was already housed in administrative
segregation prior to this event. In any event, it does not appear he sought damages
for his placement in segregation after his initial transfer was cancelled.


                                         -3-
      In December 2008, Stewart filed this action pro se. He asserted that

defendants essentially forced him to choose between adhering to his religious beliefs

and transferring closer to his ailing mother, and that this violated his rights under the

Free Exercise Clause and RLUIPA. He sought damages and a declaration that

defendants’ actions violated those rights. He was permitted to proceed in forma

pauperis, and service on Beach and Roberts was effected through the United States

Marshal’s Office in February 2009. Wilson, who had retired from the KDOC, was

not served at that time.

      On August 2, 2010, Judge Monti L. Belot ruled on the parties’ cross-motions

for summary judgment, granting Beach and Roberts’s motion in part and denying it

in part, and denying Stewart’s motion. Judge Belot first concluded that factual

disputes existed regarding the Free Exercise Claim: (1) whether defendants’ position

on Stewart’s transfer placed substantial pressure on him to engage in conduct

contrary to a sincerely held religious belief in order to be closer to his cancer-stricken

mother, and (2) whether IMPP § 12-110 was reasonably related to legitimate

penological interests in security given that there was an alternative to requiring

Stewart to cut his hair—a hand search and search with a metal detector.3 Judge Belot

therefore denied summary judgment to all parties on the Free Exercise claim.




3
       As Judge Belot noted, IMPP § 12-110 was eventually changed to permit the
use of hand searches and metal detectors on hair that could not be combed out.


                                          -4-
       Judge Belot next ruled that the claims against Roberts should be dismissed for

lack of personal participation because his only act was to deny Stewart’s grievance

appeal.

       Turning to Beach’s request for qualified immunity, Judge Belot defined the

right at issue to be “the right to reasonably exercise one’s religion in prison,” R.

at 162, and concluded that the right was clearly established under Makin v. Colorado

Department of Corrections, 183 F.3d 1205, 1210-11 & n.4 (10th Cir. 1999). On that

basis, Judge Belot denied qualified immunity to Beach.

       Finally, Judge Belot dismissed the RLUIPA claim on the ground that RLUIPA

does not permit claims against individuals. In so doing, Judge Belot noted the

absence of Tenth Circuit authority on the matter and consequently followed the lead

of three other circuits.4

       On August 4, 2010, Judge Belot granted Stewart’s motion for appointment of

counsel.

       In February 2011, the case was reassigned to Judge Julie A. Robinson, and by

April 2011, Wilson was served. On October 17, 2011, Beach and Wilson filed a joint

motion to dismiss, asserting that the complaint failed to state a claim because the




4
       Judge Belot also determined that Mr. Stewart’s request for a declaratory
judgment was moot. Mr. Stewart “does not appeal that ruling.” Aplt. Opening Br.
at 4 n.2.


                                          -5-
alleged facts did not establish a constitutional violation and because they were

entitled to qualified immunity.5

      Judge Robinson granted the motion on the ground that Beach and Wilson were

entitled to qualified immunity. Judge Robinson first determined that Judge Belot’s

earlier rulings did not preclude her from reconsidering qualified immunity because

those rulings were interlocutory, and the law-of-the-case doctrine does not apply to

such rulings unless a party is prejudiced by lack of notice and the opportunity to be

heard, which was not the case here.

      Judge Robinson then turned to qualified immunity. Judge Belot had defined

the constitutional right at issue as “the right to reasonably exercise one’s religion in

prison,” R. at 162, but Judge Robinson considered this too broad and instead

examined “whether it was clearly established that [defendants] violated [Stewart’s]

First Amendment free exercise right by requiring him to cut his hair for security

reasons.” Id. at 249. Judge Robinson determined that the right was not clearly

established because the relevant Tenth Circuit law (i.e., cases regarding prison

grooming regulations) was unsettled: The cases tended to turn on a fact-specific

inquiry and reached differing conclusions regarding the constitutionality of the

regulation at issue. Looking outside of the Tenth Circuit yielded similarly mixed

results and therefore provided no basis for concluding that defendants’ conduct
5
        Wilson also sought dismissal because he was served outside of the applicable
statute of limitations. The district court disagreed, and Wilson has not appealed that
ruling.


                                           -6-
violated a clearly established right. Accordingly, Judge Robinson granted the motion

to dismiss. This appeal followed.

II.   DISCUSSION

      Stewart raises a number of issues on appeal. We will address those issues in

the order we find to be most analytically logical.

      A.     First Amendment claim against Roberts

      Stewart argues that Judge Belot should not have granted summary judgment to

Roberts on the Free Exercise claim because there remain genuine issues of fact

regarding Roberts’s “participation, exercise of control, and supervision.” Aplt.

Opening Br. at 31. But the only such fact he points to is Roberts’s summary denial

of his grievance appeal. Stewart claims that when Roberts denied the appeal, he

knew that Stewart was a practicing Rastafarian and had proposed less restrictive

alternatives to cutting his hair. He also points out that at the time Judge Belot

granted Roberts’s motion for summary judgment, he was pro se and incarcerated, and

there had been no discovery.

      We reject these arguments. A § 1983 claim requires “personal involvement in

the alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069

(10th Cir. 2009). The “denial of a grievance, by itself without any connection to the

violation of constitutional rights alleged by plaintiff, does not establish personal

participation under § 1983.” Id. Whatever knowledge Roberts may have had when

he denied the appeal, his only involvement was to deny the grievance appeal, which


                                          -7-
is insufficient for § 1983 liability. Further, Stewart has not suggested how his

incarceration, his then-pro se status, or the lack of discovery affects this conclusion.

      B.     Law of the case doctrine

      “The law of the case doctrine posits that when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages in

the same case.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011)

(internal quotation marks omitted). Relying on this doctrine, Stewart contends that

Judge Belot’s order denying qualified immunity was based on a question of law—

whether the right at issue was clearly established—and therefore was a final and

immediately-appealable decision, particularly in view of the fact that Beach did not

immediately appeal that order. He therefore concludes that Judge Robinson could

not revisit the qualified immunity issue.6


6
       In making this argument, Mr. Stewart has not drawn a distinction between
defendants Beach and Wilson. Wilson was not a party to the case when Judge Belot
ruled on qualified immunity, so it appears there was no impediment to Judge
Robinson later deciding whether Wilson was entitled to qualified immunity.

       Furthermore, we harbor some doubt that Judge Belot’s denial of qualified
immunity turned solely on whether the law was clearly established. Prior to
discussing qualified immunity, Judge Belot concluded that there were disputed issues
of fact precluding summary judgment for either side on Stewart’s Free Exercise
claim. That conclusion is also relevant to the first part of the two-part qualified
immunity analysis—whether there was a constitutional violation. See Leverington v.
City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011) (describing the two-part
analysis). When a district court denies qualified immunity at summary judgment on
the ground that there is a genuine issue of fact regarding the presence of a
constitutional violation, a defendant generally may not take an interlocutory appeal.
Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999). But there is an exception
                                                                             (continued)
                                          -8-
       We disagree. Whether a prior decision constitutes law of the case is a legal

issue that we review de novo. Anthony v. Baker, 955 F.2d 1395, 1397 (10th Cir.

1992). The law of the case doctrine does not apply “to rulings revisited prior to entry

of a final judgment.” Rimbert, 647 F.3d at 1251. Hence, “district courts generally

remain free to reconsider their earlier interlocutory orders.” Id. This is so “even

when a case is reassigned from one judge to another in the same court.” Id. “The

law of the case doctrine does not bind a judge to following rulings in the same case

by another judge of coordinate jurisdiction as long as prejudice does not ensue to the

party seeking the benefit of the doctrine.” Id. (brackets and internal quotation marks

omitted).

       Stewart’s argument suggests an exception to these rules when an order denies

a motion for summary judgment seeking qualified immunity. Although such an

“order retains its interlocutory character as simply a step along the route to final

judgment,” Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011), it is considered final for

purposes of appeal if it “presents ‘a purely legal issue,’ illustratively, the

determination of ‘what law was “clearly established”’ at the time the defendant

acted.” Id. at 891 (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)). But this



to this rule when a defendant’s appeal “is based on the argument that, even under the
plaintiff’s version of the facts, the defendant did not violate clearly established law.”
Id. Hence, we consider it necessary to decide whether Judge Belot’s order
constituted the law of the case under Mr. Stewart’s theory, notwithstanding what
appears to us to be a mixed basis (legal and factual) for his denial of qualified
immunity.

                                           -9-
does not mean that such a decision becomes the law of the case, and beyond

reconsideration of the trial court. An immediate appeal may be taken, but as we

stated in Haberman v. Hartford Insurance Group, “when the material facts are not in

dispute and the denial of summary judgment is based on the interpretation of a purely

legal question, such a decision is appealable after final judgment.” 443 F.3d 1257,

1264 (10th Cir. 2006) (emphasis added).7 Thus, to the extent Judge Belot’s order

denying Beach qualified immunity turned on the purely legal issue of whether the

constitutional right he considered to be at issue was clearly established at the time of

Beach’s conduct, it remained appealable even after final judgment. And to the extent

that order turned on a disputed question of fact, the issue of qualified immunity

would be appealable only after a trial on the merits, “but at that stage, the defense

must be evaluated in light of the character and quality of the evidence received in

court.” Ortiz, 131 S. Ct. at 889. Accordingly, there is no force to Stewart’s

argument that Judge Belot’s denial of qualified immunity was binding on Judge

Robinson as the law of the case because it was a final appealable order from which

Beach did not immediately appeal.

      C.     Judge Robinson’s qualified immunity ruling

      Qualified immunity shields “government officials performing discretionary

functions . . . from liability for civil damages insofar as their conduct does not violate


7
      In Copar Pumice Co. v. Morris, 639 F.3d 1025, 1031 (10th Cir. 2011), we
considered whether Ortiz undermined Haberman’s rule and concluded that it did not.


                                          - 10 -
clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “In resolving

a motion to dismiss based on qualified immunity, a court must consider ‘whether the

facts that a plaintiff has alleged make out a violation of a constitutional right,’ and

‘whether the right at issue was clearly established at the time of defendant’s alleged

misconduct.’” Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir.

2011) (ellipsis omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

We review dismissals based on qualified immunity de novo. Denver Justice & Peace

Comm., Inc. v. City of Golden, 405 F.3d 923, 927 (10th Cir. 2005).

      Courts have discretion to decide “which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236. Here, Judge Robinson addressed

only the second prong, concluding that the right at issue was not clearly established.

“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Thomas v. Durastanti, 607 F.3d 655, 669

(10th Cir. 2010) (internal quotation marks omitted).

      Stewart argues that Judge Robinson’s definition of the constitutional right at

issue was too narrow. Again, Judge Robinson’s definition was “whether it was

clearly established that [Beach and Wilson] violated [Stewart’s] First Amendment

free exercise right by requiring him to cut his hair for security reasons.” R. at 249.


                                          - 11 -
Stewart asserts that the Supreme Court and the Tenth Circuit emphasize a broader

standard and advocates for Judge Belot’s definition: “the right to reasonably exercise

one’s religion in prison,” Id. at 162.

       We disagree with Stewart’s contention that a broader standard is necessary.

To be sure, “officials can still be on notice that their conduct violates established law

even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

And in some cases, “a general constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific conduct in question, even though

the very action in question has not previously been held unlawful.” United States v.

Lanier, 520 U.S. 259, 271 (1997) (brackets and internal quotation marks omitted).

But in other cases, “general statements of the law are not inherently capable of giving

fair and clear warning.” Id. For example, in Reichle v. Howards, the Supreme Court

recently reiterated its long-held view that “the right allegedly violated must be

established, not as a broad proposition, but in a particularized sense so that the

contours of the right are clear to a reasonable official.” 132 S. Ct. 2088, 2094 (2012)

(citations and internal quotation marks omitted). Applying this test to the free-speech

claim before it, the Court concluded that “the right in question is not the general right

to be free from retaliation for one’s speech, but the more specific right to be free

from a retaliatory arrest that is otherwise supported by probable cause.” Id.

       So too here, Judge Robinson’s formulation of the First Amendment

free-exercise right at issue is more specific—to be free from having to cut one’s hair


                                          - 12 -
for prison security reasons based on one’s sincerely held religious beliefs. We might

add that cutting is apparently required because Stewart’s hair could not be combed

out. Aplt. Reply Br. at 1-3. Stewart’s formulation—the right to reasonably exercise

one’s religion in prison—reflects an admittedly established First Amendment right

prisoners retain: “a reasonable opportunity to pursue [one’s] religion. Mosier v.

Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991). But “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

Thus, “what constitutes a reasonable opportunity [to pursue one’s religion] must be

evaluated with reference to legitimate penological objectives.” Mosier, 937 F.2d

at 1525.

      The additional level of specificity is helpful to focus on case law that would

have given Beach and Wilson “reasonable warning that the conduct then at issue

violated constitutional rights.” Lanier, 520 U.S. at 269. Contrary to Stewart’s

suggestion, a more precise definition does not lead to an overreliance on factual

similarity but to a proper reliance. See Mecham v. Frazier, 500 F.3d 1200, 1206

(10th Cir. 2007) (explaining that “the facts of the cases compared need not be

identical, [but] they must be sufficiently analogous to satisfy the particularized

context necessary to support liability” (citation omitted)). Applying Stewart’s

formulation would encompass a very broad spectrum of conduct directed at prisoners




                                          - 13 -
and result in the examination of cases that would not have given Beach and Wilson

the requisite warning under the facts of this case.8

      Stewart alternately contends that even under a more specific definition, Beach

and Wilson violated a clearly established constitutional right. “Ordinarily, in order

for the law to be clearly established, there must be a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Thomas, 607 F.3d at 669

(internal quotation marks omitted). Stewart has pointed to no Supreme Court cases

and only one Tenth Circuit case, Longstreth v. Maynard, 961 F.2d 895 (10th Cir.

1992). Stewart cites Longstreth for its proposition that “[a]lthough religious

challenges to prison grooming codes do not always succeed, courts have consistently

held that at a minimum the challenges do raise significant claims which require full

evidentiary development.” Id. at 903 n.7.

      We see nothing in Longstreth that clearly established that a corrections officer

violates a prisoner’s free exercise right by requiring the prisoner to cut his hair for

security reasons because it cannot be readily combed out. Longstreth, which
8
       We acknowledge that in Makin v. Colorado Department of Corrections, we
considered the “general right to the reasonable opportunity to exercise one’s religion”
to be the best formulation to encompass the defendants’ refusal to accommodate the
religious dietary requirements of a prisoner in segregation during the Muslim holy
month of Ramadan. 183 F.3d at 1210 n.4. In so doing, we rejected the narrower
right proposed by the defendants: “the parameters of special feeding accommodation
for the celebration of Ramadan.” Id. We do not find Makin persuasive as applied to
the facts of this case because Judge Robinson’s definition was not as narrow as the
definition we rejected in Makin.


                                          - 14 -
comprised three consolidated appeals, concerned a prison policy that prohibited hair

more than three inches in length and that wavered over time between permitting and

disallowing religious exemptions. As to one plaintiff, Longstreth considered there to

be no factual dispute regarding the reasons for the policy but remanded for a

determination whether the denial of an exemption for religious reasons was proper

because there were disputed factual issues regarding the sincerity of the prisoner’s

religious beliefs. Id. at 901-02. The other two plaintiffs had sought preliminary

injunctive relief against the requirement that they cut their hair. The district courts

denied preliminary relief on the ground that plaintiffs were not likely to succeed on

the merits of their claims. We reversed. Analyzing whether the plaintiffs had shown

there were “questions so serious, substantial, difficult, and doubtful as to make them

a fair ground for litigation and thus for more deliberate inquiry,” we concluded only

that there were “serious and substantial questions” regarding “[t]he impact of a prison

regulation which may impinge on tenets of an inmate’s religious beliefs.” Id. at 903.

      In the absence of controlling authority, we may conclude that a constitutional

right is clearly established if there is a “robust consensus of cases of persuasive

authority.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011) (internal quotation

marks omitted). To that end, we have reviewed all of the extra-circuit cases Stewart

has identified, as well as those cases Judge Robinson discussed in her order. We

agree with Judge Robinson’s conclusion that they cut both ways. In some cases,

courts have found that prison regulations requiring haircuts or prohibiting beards


                                          - 15 -
violate a prisoner’s free exercise rights. See, e.g., Shepherd v. Sanchez, 27 F. App’x

31, 33 (2d Cir. 2001); Benjamin v. Coughlin, 905 F.2d 571, 576-77 (2d Cir. 1990);

Teterud v. Burns, 522 F.2d 357, 359 & n.1 (8th Cir. 1975); Wright v. Raines,

457 F. Supp. 1082, 1088-90 (D. Kan. 1978). Shepherd and Benjamin involved

Rastafarian plaintiffs. In other cases, courts have found that such regulations did not

offend the First Amendment because the regulations were reasonably related to

legitimate penological interests. See, e.g., Henderson v. Terhune, 379 F.3d 709, 715

(9th Cir. 2004); Williams v. Wilkinson, No. 96-3715, 1997 WL 809971, at *3

(6th Cir. Dec. 18, 1997) (unpublished); Harris v. Chapman, 97 F.3d 499, 504

(11th Cir. 1996); Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995); Cole v. Flick,

758 F.2d 124, 131 (3d Cir. 1985); Perry v. Davies, 757 F. Supp. 1223, 1223-24

(D. Kan. 1991). Williams, Harris, and Hicks involved Rastafarian plaintiffs.

      If this mixed bag were not enough, there are other problems with some of the

cases Stewart relies on. Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988), concerned

the enforcement of a grooming policy against Rastafarians but not against American

Indians. The district court held a bench trial and concluded that the policy did not

violate the Free Exercise Clause. Reversing, the Seventh Circuit determined that

“[t]he regulation on hair length is plausibly supported by considerations of safety and

security,” id. at 963, but remanded for further consideration because of two serious

problems with the district court’s findings. First, the appellate court considered

deficient the district court’s finding that the regulation was supported by “a security


                                         - 16 -
concern for potential racial conflict from the professed Rastafarian belief that

dreadlock symbolizes black superiority.” Id. at 962; see also id. at 964-65

(discussing this finding). Second, the appellate court found fault with the district

court’s handling of the equal protection claim. Thus, Reed does not lend particular

support to Stewart’s argument that the right at issue here was clearly established.

      Two other cases Stewart relies on, Teterud and Wright, turn in relevant part on

the conclusion that there were less restrictive means of furthering a penological

interest. Teterud, 522 F.2d at 362-63; Wright, 457 F. Supp. at 1089-90. This is a

stricter standard than Turner’s legitimate-penological-interest test, which considers

the absence of ready alternatives imposing no more than de minimis cost to the

prison, as evidence that a prison regulation is reasonable, Turner, 482 U.S. at 90-91.

So Teterud and Wright are of little help to an officer trying to determine whether

enforcement of a regulation or policy infringes a prisoner’s free exercise right.9

Regarding Dreibelbis v. Marks, 675 F.2d 579 (3d Cir. 1982), Stewart fails to note

that after remand and on a subsequent appeal, the circuit court affirmed the

conclusion that the regulation at issue was a valid restriction on the prisoner’s

religious freedom, see Dreibelbis v. Marks, 742 F.2d 792, 794-95 (3d Cir. 1984).

Further, another of Stewart’s cases, Singh v. Goord, 520 F. Supp. 2d 487
9
       Using the same standard in a case involving the Religious Freedom
Restoration Act of 1993, the court in Harris v. Chapman reached the opposite
conclusion, holding “that a reasonable hair length regulation satisfies the least
restrictive means test.” 97 F.3d at 504. This further indicates how unclear the
relevant constitutional right was at the time of the incident here.


                                         - 17 -
(S.D.N.Y. 2007), was decided after the incident at issue here, so it is not relevant to

whether the law was clearly established.

      Is sum, from our survey of these cases, the most we can say is that Beach and

Wilson had warning that enforcement of a grooming policy that required hair be

capable of being combed out (or cut) might violate Stewart’s free exercise right if the

policy was not reasonably related to legitimate penological interests. But we cannot

say that it was clearly established that their enforcement of the KDOC policy violated

Stewart’s constitutional rights. We therefore conclude that Beach and Wilson are

entitled to qualified immunity on Stewart’s First Amendment claim.

      D.     RLUIPA claim

      RLUIPA “protects institutionalized persons who are unable freely to attend to

their religious needs and are therefore dependent on the government’s permission and

accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709,

721 (2005). It does so by limiting the burdens that a government may place on a

prisoner’s free exercise rights:

      No government shall impose a substantial burden on the religious
      exercise of a person residing in or confined to an institution, as defined
      in section 1997 of this title, even if the burden results from a rule of
      general applicability, 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.



                                           - 18 -
42 U.S.C. § 2000cc-1(a) (emphasis added). RLUIPA also provides a cause of action

against a government: “A person may assert a violation of this chapter as a claim or

defense in a judicial proceeding and obtain appropriate relief against a government.”

Id. § 2000cc-2(a). Thus, by its plain terms, RLUIPA applies to a “government.”

      RLUIPA defines “government,” in relevant part, as “(i) a State, county,

municipality, or other governmental entity created under the authority of a State;

(ii) any branch, department, agency, instrumentality, or official of an entity listed in

clause (i); and (iii) any other person acting under color of State law.” Id.

§ 2000cc-5(4)(A)(i)-(iii). Stewart focuses on subclause (iii)’s use of the word

“person” in arguing that Judge Belot erred in concluding that RLUIPA does not

permit a claim against individual defendants. Stewart relies on a number of district

court decisions from various circuits holding that RLUIPA permits such a claim, but

we are persuaded by the later circuit court decisions that have held it does not.

      The interpretation of a statute is a question of law that we review de novo.

McGraw v. Barnhart, 450 F.3d 493, 497 (10th Cir. 2006).10 Four circuits have held


10
       We disagree with the appellees that Stewart has waived review of this issue
through the invited error doctrine, which “precludes a party from arguing that the
district court erred in adopting a proposition that the party had urged the district court
to adopt,” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). Appellees
argue that in his response to their motion to dismiss, Stewart invited Judge Robinson
to agree with Judge Belot’s dismissal of the RLUIPA claim, and that he cannot now
complain about Judge Robinson’s treatment of the claim as abandoned. But the only
statement in Stewart’s response regarding the RLUIPA claim was his observation
that “[t]he RLUIPA claim was dismissed with Judge Belot finding that individual
capacity suits were not available under RLUIPA.” R. at 218. Judge Robinson’s view
                                                                             (continued)
                                          - 19 -
that, despite defining the term “government” to include “any other person acting

under color of State law,” RLUIPA does not provide a cause of action against

individual defendants in their individual capacities. See Sharp v. Johnson, 669 F.3d

144, 153-55 (3d Cir. 2012); Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir. 2009);

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 327-29 (5th Cir. 2009), aff’d,

Sossamon v. Texas, 131 S. Ct. 1651 (2011); Smith v. Allen, 502 F.3d 1255, 1271-75

(11th Cir. 2007), abrogated on other grounds by Sossamon, 131 S. Ct. at 1655,

1657 n.3 (abrogating Smith as to its holding that RLUIPA abrogated a state’s

sovereign immunity from suit for money damages). In these cases, the courts have

focused on the fact that Congress enacted RLUIPA pursuant to the Spending Clause

of the Constitution. See 42 U.S.C. § 2000cc-1(b)(1) (stating that RLUIPA “applies in

any case in which . . . the substantial burden [on religious free exercise rights] is




of this statement was that Stewart had “concede[d] that the RLUIPA claim was
dismissed by Judge Belot and he does not attempt to assert that claim against
Defendant Wilson.” Id. at 241. Judge Robinson then stated: “Although Judge Belot
did not dismiss the RLUIPA claim against Defendant Wilson because he had not yet
been served, the Court finds that [Stewart] treats this claim as dropped, and the Court
therefore dismisses it.” Id. at 241-42.
       In our view, Stewart did not invite Judge Robinson to adopt any position
regarding the RLUIPA claim or waive his right to appeal Judge Belot’s ruling by
simply stating, in his response to the motion to dismiss, what Judge Belot’s ruling
was. Moreover, Beach and Wilson had no occasion to raise the RLUIPA issue in
their motion to dismiss because the claim had already been dismissed by the time
Wilson was served. Hence, Stewart had no reason to address it again in his response.


                                          - 20 -
imposed in a program or activity that receives Federal financial assistance”).11 They

have noted the similarity between RLUIPA’s reference to “any other person acting

under color of State law” and the “under color of” language in § 1983, which does

create a cause of action against state employees in their individual capacities. But

ultimately these courts have concluded that “Spending Clause legislation is not

legislation in its operation; instead, it operates like a contract, and individual

RLUIPA defendants are not parties to the contract in their individual capacities.”

Sossamon, 560 F.3d at 328 (footnote omitted); see also Sharp, 669 F.3d at 154;

Nelson, 570 F.3d at 887; Smith, 502 F.3d at 1272-73. Thus, “only the grant

recipient—the state—may be liable for [a] violation [of RLUIPA].” Sossamon,

560 F.3d at 328. “[T]he Spending Power cannot be used to subject individual

defendants, such as state employees, to individual liability in a private cause of

action.” Smith, 502 F.3d at 1274.12



11
       Congress also invoked its Commerce Clause power by stating that RLUIPA
“applies in any case in which . . . the substantial burden [on religious free exercise
rights] affects, or removal of that substantial burden would affect, commerce with
foreign nations, among the several States, or with Indian tribes.” 42 U.S.C.
§ 2000cc-1(b)(2). However, we conclude that the Spending Clause is “the most
natural source of congressional authority to pass RLUIPA,” because, as Stewart has
invoked RLUIPA, “there is no evidence concerning the effect of the substantial
burden on ‘commerce with foreign nations, among the several States, or with Indian
tribes.’” Sossamon, 560 F.3d at 328 n.34. Thus we do not analyze whether
Congress’s reliance on the Commerce Clause supports a cause of action under
RLUIPA against individual defendants in their individual-capacities.
12
      The Fourth Circuit has reached the same conclusion, although on the ground
that RLUIPA does not provide clear notice to the states that their receipt of federal
                                                                            (continued)
                                       - 21 -
       We agree with the analysis of these courts and therefore hold that there is no

cause of action under RLUIPA for individual-capacity claims.13 Accordingly, we

affirm Judge Belot’s ruling on this issue.

III.   CONCLUSION

       The judgment of the district court is AFFIRMED.




funding is conditioned on subjecting its officials “to an individual capacity damages
claim.” Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009).
13
        The record does not reflect whether KDOC receives federal funding, but the
parties have not contested this point, and it appears that all states receive such
funding. See Cutter, 544 U.S. at 716 n.4 (“Every State . . . accepts federal funding
for its prisons.”).


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