                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-7576


JOHAN EICHEN KRIEGER,

                Plaintiff - Appellant,

           v.

BETTY A. BROWN; BOYD BENNETT,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
Chief District Judge. (5:08-ct-03090-FL)


Argued:   September 21, 2012                 Decided:   November 8, 2012


Before SHEDD, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote          the
opinion, in which Judge Shedd and Judge Thacker joined.


ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant.    Kimberly D. Grande, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Lindsey Carpenter, Third Year Law Student,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for
Appellant.    Roy Cooper, Attorney General, Peter A. Regulski,
Assistant   Attorney  General,   NORTH  CAROLINA  DEPARTMENT  OF
JUSTICE, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

      Johan Krieger, who is incarcerated in a state correctional

facility in North Carolina, brought this action alleging that

prison       officials        violated     the        Religious       Land      Use     and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to

2000cc-5,      by    denying     his     requests       for    an   “outdoor      worship

circle”      and    certain    “sacred     items”       related     to    his   religious

practice of Asatru.           The district court awarded summary judgment

in   favor    of    the    prison     officials,       and    Krieger     appeals.        We

conclude that the district court correctly held that Krieger did

not show that his practice of Asatru was substantially burdened

by the denial of an outdoor worship circle and the requested

sacred    items,     and,     thus,    that       Krieger    failed      to   establish    a

prima    facie      case    under     RLUIPA.         Accordingly,       we   affirm   the

district court’s judgment.



                                           I.

      Krieger       practices       Asatru,       a   polytheistic        religion     that

originated in Northern Europe several centuries ago.                            Asatru is

a decentralized religion, which does not have a spiritual leader

or a governing religious authority.                         Practitioners of Asatru

adhere to general principles of the religion, but each member or

group of members exercises their faith in a personal manner.



                                              2
      The     North          Carolina       Department          of     Corrections            (NCDOC)

recognizes Asatru as an “approved religion.”                                   In developing its

policy     concerning          the    accommodation            of    inmates          who    practice

Asatru, the NCDOC consulted outside sources, including Valgard

Murray,     the        leader    of       the   “Asatru        Alliance,”          which      is    the

“oldest and largest Asatru church in North America.”

      Based       on    the     information        provided          by    Murray,          the   NCDOC

established a policy permitting incarcerated individuals access

to certain items used in the most common Asatru ceremony, known

as a “Blot.”            These permitted items include an altar, an altar

cloth,     altar       candles,       a    small       evergreen       twig,       a   sacrificial

bowl,    mead     made       from     honey     or      a    fruit     juice      substitute,         a

cardboard staff, a large picture of a “Thor Hammer,” pictures of

other Gods and Goddesses of the Asatru faith, a cardboard sword,

runes,      and    folk         music.          The         NCDOC     also       permits          Asatru

practitioners           to    possess       several         items     for       use    in     certain

private worship practices, including the “study of runes.”                                          The

permitted items relating to private worship include a cloth bag,

a   maximum       of    25    small       plastic       or     bone       runes,       a    religious

medallion, and several sources of reading material.

      In    2005,       Krieger       submitted         requests          to    NCDOC       officials

seeking the construction of a large outdoor worship circle made

of stones.        Included in his request were diagrams detailing the

desired dimensions for the circle and the materials necessary

                                                   3
for its construction, including two tons of gravel, shrubbery,

one-half      ton    of   small   stones,        and   at   least     400    pounds     of

concrete to construct an altar.

      Krieger also submitted requests for numerous sacred items

for personal and group worship that were not included in the

NCDOC’s “approved religious property” list. 1                       The sacred items

Krieger requested for group worship included a large piece of

cloth for creating a banner, a large horn cup, an “oath ring,”

“heathen      music,”     and   cardboard       replicas     of     Thor’s    hammer,    a

spear, a shield, an axe, and a bow and arrow.                        The sacred items

he   sought    for    private     worship       included    an    amber     bead,   three

feathers,      a    “shuffling     rune   set,”        a   “cloth    helm,”    a    small

ceremonial bowl, a horn cup, incense, honey, and pendants with

images of a shield, an axe, and a bow and arrow.

      The NCDOC’s Religious Practices Committee denied Krieger’s

requests.      Krieger unsuccessfully filed numerous grievances and

appeals with NCDOC officials. 2


      1
        Krieger submitted several requests for sacred items,
including four differing lists of items.   For purposes of this
appeal, we describe only the narrowed list of requested sacred
items that Krieger has identified in this Court. That list also
includes altar candles, a ceremonial bowl, a cardboard replica
of a sword, a casting rune set, and pendants with images of
Thor’s hammer and a spear, which are permitted items under the
NCDOC’s policy.
      2
       For purposes of this appeal, we assume without deciding
that Krieger exhausted his remedies as required by the Prison
(Continued)
                                            4
       In 2009, Krieger filed an amended complaint in the district

court under 42 U.S.C. § 1983, naming as defendants two NCDOC

employees, Betty A. Brown, Director of Chaplaincy; and Robert

Lewis,    Director      of   Prisons     (collectively,         Brown).        In   his

primary claim, Krieger alleged that by denying his requests for

an   outdoor    worship      circle    and     various    sacred      items,   prison

officials placed a substantial burden on his exercise of Asatru,

in   violation    of    RLUIPA.        Additionally,      Krieger      alleged      that

Brown violated his right to free religious exercise under the

First Amendment.

       In support of his claims, Krieger alleged that to practice

Asatru,    he   “must    utilize      sacred   items     in    the   performance     of

well-established        rituals.”        Krieger       also     submitted      various

pleadings and several exhibits, including (1) “The Handbook of

Asatru,” with a forward written by Valgard Murray; (2) a “World

Tree     Publication,”       written     by     Murray        and    another    Asatru

practitioner; and (3) a publication entitled, “Our Sacred Land.”

Krieger later amended his request for an outdoor worship circle

in the district court, seeking only outdoor space for a worship




Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Jones
v. Bock, 549 U.S. 199 (2007) (holding that failure to exhaust
available administrative remedies under the PLRA is not a
jurisdictional requirement).



                                          5
circle and enough rocks to form a loose circle rather than “an

exact replica of [his previously submitted] design.”

     Brown filed a motion for summary judgment, arguing that the

absence of an outdoor worship circle and the requested sacred

items did not place more than an incidental burden on Krieger’s

exercise of his religion.       Brown included as exhibits affidavits

submitted by Brown and by Lewis, describing the NCDOC policies

regarding Asatru and discussing the impracticality of Krieger’s

requests.

     The    district   court   granted   Brown’s   motion   for   summary

judgment, concluding that Krieger failed to establish a prima

facie case under RLUIPA.       Based on this conclusion, the district

court held that Krieger’s First Amendment claim also failed.

Krieger timely filed an appeal in this Court. 3



                                   II.

                                   A.

     We review de novo a district court’s grant of a motion for

summary judgment.      Couch v. Jabe, 679 F.3d 197, 200 (4th Cir.

2012).     Summary judgment is appropriate when there is no genuine




     3
       Krieger does not appeal the district court’s dismissal of
his First Amendment claims.



                                    6
issue    of   material       fact    and    the     moving   party      is   entitled      to

judgment as a matter of law.                Id.; Fed. R. Civ. P. 56(a).

      RLUIPA provides, in relevant part, that

      [n]o government shall impose a substantial burden on
      the religious exercise of a person residing in or
      confined to an institution . . . unless the government
      demonstrates that imposition of the burden on that
      person--(1)  is   in   furtherance  of   a  compelling
      government interest; and (2) is the least restrictive
      means   of  furthering   that   compelling  government
      interest.

42 U.S.C. § 2000cc-1(a).               A plaintiff alleging a violation of

RLUIPA    bears       the   burden    of    establishing       a   prima     facie      case,

showing (1) that he seeks to engage in an exercise of religion,

and (2) that the challenged conduct substantially burdens that

exercise.     See      42    U.S.C.     §    2000cc-1(b).          If     the     plaintiff

establishes       a    prima    facie       case,    the     burden      shifts    to     the

government to demonstrate that the limitation on the plaintiff’s

religious exercise is the least restrictive means of furthering

a   compelling        government      interest.        Couch,      679    F.3d     at     200;

Lovelace v. Lee, 472 F.3d 174, 185-86 (4th Cir. 2006).

                                             B.

        Krieger    argues      that    the     district      court       engaged     in    an

erroneous analysis when determining that his practice of Asatru

was not substantially burdened by the NCDOC’s denials of his

requests for an outdoor worship circle and various sacred items.

In particular, Krieger asserts that the district court erred by


                                              7
evaluating         the    significance          of    the    requested     items     to      the

practice of Asatru.                 Krieger maintains that the district court

instead should have concluded that he met his burden by showing

that   the        deprivation        of    an   outdoor      worship     circle     and      the

various          sacred     items         required      him       to    practice        Asatru

“differently than he otherwise would have.”                             We disagree with

Krieger’s arguments.

       Initially, we observe that the parties agree that Krieger

satisfied the first prong of his initial burden under RLUIPA,

namely, to show that he sought to engage in an exercise of his

religion, Asatru.               Thus, the focus of the parties’ argument on

appeal      is    whether       Krieger     satisfied       the   second    prong       of   his

initial burden, to demonstrate that his religious exercise was

substantially burdened by the NCDOC’s denial of his requests.

       The term “substantial burden” is not defined by statute.

However,          we     have       explained        that     a    governmental         entity

substantially burdens an individual’s religious exercise within

the meaning of RLUIPA when an entity’s act or omission puts

“substantial pressure” on a person “to modify his behavior and

to violate his beliefs.”                  Lovelace, 472 F.3d at 187.

       In    conducting         a    “substantial       burden”        analysis,    a     court

should      not    judge    the      significance       of    a   particular       belief     or

practice to the religion at issue.                           Cutter v. Wilkinson, 544

U.S. 709, 725 n.13 (2005); Lovelace, 472 F.3d at 187 n.2.                                    The

                                                 8
statutory language of RLUIPA protects “any exercise of religion,

whether    or     not    compelled        by,       or   central    to,   a   system     of

religious belief.”           42 U.S.C. § 2000cc-5(7)(A) (emphasis added).

Thus,     to    demonstrate       that     his       religious     practice     has    been

substantially         burdened,      a    plaintiff       must     demonstrate    that    a

governmental entity substantially pressured him to modify his

behavior and to violate his religious beliefs.                            See Lovelace,

472 F.3d at 187.            A plaintiff is not required, as part of this

prima facie showing, to prove that the exercise at issue is

required by or essential to his religion.                        See Cutter, 544 U.S.

at 725 n.13.

       In the present case, the district court correctly concluded

that     Krieger      failed    to       demonstrate       that     his   behavior     was

modified        and   his    religious       beliefs        were     violated    by    the

deprivation of the outdoor worship circle and the listed sacred

items.         The district court began its analysis by considering

Krieger’s        arguments     regarding            an    outdoor     worship     circle.

Krieger asserted that deprivation of the outdoor worship circle

would require him to pray indoors, and that the “Blot” ceremony

is “best performed outdoors.”                   However, Krieger failed to offer

any explanation regarding the reason why indoor worship would

compromise his religious beliefs.

       In the absence of any such explanation, the district court

examined the Asatru literature submitted by Krieger to determine

                                                9
whether        indoor    worship     violated      any       generally-held       belief

relating to the practice of Asatru.                    The district court noted

that although the literature “highlight[ed] the significance of

land to the Asatru religion” and described Asatru as a religion

“based on the laws of nature,” one publication expressed that

“communing with Gods and Goddesses” indoors is possible.                             In

addition, the district court emphasized that the practice of

Asatru    is     individualized      and     lacks     any    mandatory    aspect    of

exercise, a fact readily acknowledged by Krieger.                          Thus, the

district       court     correctly    concluded        that     Krieger    failed     to

provide any basis for his claim that the NCDOC’s denial of an

outdoor worship circle substantially burdened his exercise of

Asatru.

     We    observe        that    before     reaching        this   conclusion,     the

district court found that the use of an outdoor worship circle

was not “essential” to the practice of Asatru.                            However, as

stated above, a plaintiff is not required to prove that any

particular aspect of his religious exercise is essential to his

faith     in     order    to     establish      that   the     exercise     has     been

substantially burdened.            See Cutter, 544 U.S. at 725 n.13.

     Although the district court should not have used the term

“essential” in discussing the different characteristics of the

practice of Asatru, this error in terminology did not affect the

court’s application of the “substantial burden” test.                         Krieger

                                           10
was not required to prove that use of an outdoor worship circle

was essential to the practice of Asatru.                       Instead, the district

court    engaged        in   the     correct    “substantial         burden”       analysis,

focusing     on    Krieger’s         failure        to   demonstrate        that     he    was

pressured to modify his behavior and to violate his beliefs when

the NCDOC denied his request for an outdoor worship circle.

      The    district        court    also     did    not    err    in    concluding      that

Krieger failed to produce enough evidence to support a finding

that the NCDOC’s denial of the requested sacred items inflicted

a substantial burden on his ability to practice Asatru.                              Krieger

alleged     in    his    amended      complaint       that    the    sacred       items   were

“necessary” to perform “well-established rituals.”                                Relying on

this blanket assertion, Krieger did not identify those rituals,

or explain why the absence of the sacred items had an impact on

the rituals and violated his beliefs.                       Without this information,

the   district      court      could     not    evaluate       the       degree    to     which

Krieger’s religious exercise was impaired.                           Moreover, although

the     literature       submitted       to     the      district        court     discusses

numerous items that may be used in the practice of Asatru, the

literature also included a list of “mandatory religious items

for Asatru worship,” which was identical to the list of items

permitted by the NCDOC in its policy regarding the practice of

Asatru.



                                               11
      In sum, Krieger failed to demonstrate a substantial burden

on the exercise of his religion by asserting merely that the

NCDOC     failed    to    accommodate     certain   requests   related    to   his

religious practice, and by relying on literature emphasizing the

individual manner in which practitioners of Asatru may observe

their faith.        Because Krieger did not show that the deprivation

of   an   outdoor    worship     circle    and   the   requested   sacred   items

modified his behavior and violated his religious beliefs, the

district     court       correctly   determined     that    Krieger   failed   to

establish a prima facie case under RLUIPA.                   See Lovelace, 472

F.3d at 187.

      Accordingly,         we   affirm    the    district   court’s   award     of

summary judgment to Brown.

                                                                         AFFIRMED




                                          12
