Stewart v. Beach

• Decision Date: 18 December 2012
• Docket Number: No. 12–3013.,12–3013.
• Citation: 701 F.3d 1322
• Parties: Sturgeon STEWART, Plaintiff–Appellant, v. (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.
• Court: U.S. Court of Appeals — Tenth Circuit

701 F.3d 1322

Sturgeon STEWART, Plaintiff–Appellant,

v.(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.

No. 12–3013.

United States Court of Appeals, Tenth Circuit.

Dec. 18, 2012.

Submitted on the briefs: ^*

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

Steven R. Fabert, Assistant Attorney General, Topeka, KS, for Defendants–Appellees.

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:

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.

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 substantialpressure 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.

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 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' conductviolated 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 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

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 ...