Case Information
*1 Before HARTZ , BALDOCK , and McHUGH , Circuit Judges.
_________________________________ I. INTRODUCTION
Mr. Mario Williams, a Muslim serving a life sentence in Oklahoma state prison, sued prison officials for alleged violations of his religious-freedom and equal-protection rights. He named as Defendants in a putative class action Justin Jones, who was at the time Director of the Oklahoma Department of Corrections (ODOC), and Warden Tim Wilkinson and Chaplain Brian Wideman, both of the Davis Correctional Facility (DCF), where Mr. Williams was in maximum-security confinement when he filed the Complaint in this action. Mr. Williams claims these prison officials violated his statutory and *2 constitutional free-exercise rights by eliminating communal Muslim prayer services for maximum-security inmates at DCF. He further alleges these prison officials violated his free-exercise rights by denying his faith-based request for a kosher diet. And he asserts an equal-protection violation based on these actions. Mr. Williams pursues these claims on behalf of a “fluid” class of all Muslims in the Oklahoma state prison system.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse in part, affirm in part, and remand for further proceedings. We reverse and remand as to the district court’s 12(b)(6) dismissal of Mr. Williams’s communal-services and kosher-diet claims and its denial of Mr. Williams’s motions to appoint counsel and for class certification. But we affirm the 12(b)(6) dismissal of Mr. Williams’s equal-protection claim and his personal- capacity claims against former Director Jones and the district court’s denial of Mr. Williams’s motion to amend.
*3 II. BACKGROUND [2]
A. Factual Background Shortly after Mr. Williams arrived at DCF in August 2008, the prison began allowing Muslim maximum-security inmates to attend Friday communal-prayer services in accordance with Islam. In July 2009 the prison suspended such meetings, citing space and security concerns, but indicated the communal-prayer services would resume in two weeks. DCF never reinstituted the communal-prayer services for Muslim maximum- security inmates. In September 2012, Mr. Williams requested that the prison reinstate the services; DCF denied the request, again citing safety and security concerns. Mr. Williams then initiated and completed the DCF grievance process, thereby exhausting his administrative remedies.
Also on August 16, 2012, nearing the completion of his Ramadan fast, Mr. Williams requested a kosher diet pursuant to his religion. [3] On August 22, 2012, after his *4 request had been denied, he submitted a “Request to Staff” (RTS) documenting and renewing his unsuccessful request and quoting the following verse from Surah 5 of the Qur’an as a “[v]erification to my religious practice” :
This day are all things [g]ood and pure made lawful unto you. The food of the People of the Book (Jewish) is lawful unto you and yours is lawful unto them.
He then requested, “[p]lease change my diet over to Kosher, pursuant to the above mention[ed] Qu’ranic [sic] verse.” Mr. Williams’s Complaint alleges that he “requested a religious diet mandated by his religion.” The RTS form which is attached to the Complaint reflects that prison staff denied his request on August 28, 2012, noting “[d]enied as per OP 030112. The muslim faith is not listed on attachment[.]” In turn, ODOC policy OP 030112, Attachment E, allows only prisoners of the Jewish, Messianic Jewish, or House of Yahweh religions a kosher diet upon request.
Mr. Williams then submitted an Offender Grievance Report Form to the Reviewing Authority in compliance with ODOC’s administrative remedies process. On this form, he stated, “[a]llow me a Kosher Diet in accordance to my faith, ‘Holy Qu’ran’ [sic]: Surah 5:5.” When the Reviewing Authority denied this request, Mr. Williams unsuccessfully appealed to the Administrative Review Authority (ARA), again asserting a religious freedom right to be provided a kosher diet in accordance with his religious the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal.”). Mr. Williams quoted DCF Policy OP 030112 V.A. “Religious Rites” as follows:
“All tenets of an offender’s faith practice that require accommodations by the dept. must be supported and verified by the faith’s recognized sacred text.” *5 beliefs. The parties agree that Mr. Williams exhausted his administrative remedies as to his kosher-diet claim.
B. Procedural Background
On April 29, 2013, Mr. Williams filed his pro se § 1983 Complaint and motion for class certification and a motion for the appointment of counsel in the Western District of Oklahoma. On May 10, 2013, the case was transferred to the Eastern District of Oklahoma, where Mr. Williams already had a number of unrelated cases pending.
Director Jones filed a motion to dismiss on July 31, 2013, arguing that Mr. Williams had failed to allege Direct Jones’s personal participation in the conduct constituting the violation. The district court entered three Orders on March 18, 2014, denying class certification and appointment of counsel and granting Director Jones’s 12(b)(6) Motion to Dismiss. That same day, the district court also made a minute entry denying Mr. Williams’s motion for a preliminary injunction. (Dkt. No. 29.) On June 19, 2014, Defendants Wilkinson and Wideman filed a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and on June 27, *6 2014, Mr. Williams filed a motion to amend requesting leave to rejoin Director Jones and to add Corrections Corporation of America, a private company that contracts with the ODOC to run DCF.
The district court denied the motion to amend and separately dismissed without prejudice Mr. Williams’s communal-services claim for failure to exhaust administrative remedies. The district court also dismissed with prejudice for failure to state a claim upon which relief can be granted Mr. Williams’s faith-based kosher-diet request and his equal- protection claim. And the district court found the action frivolous and counted it as Mr. Williams’s first “strike” under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). The Final Judgment was entered that same day and refers specifically to the earlier dismissal of former Director Jones from the action. Mr. Williams filed a timely Notice of Appeal on March 26, 2015.
As an initial matter, Mr. Williams concedes events occurring since he filed his pro se Complaint have mooted certain of his claims. First, Mr. Williams’s official-capacity § 1983 claim against Director Patton seeking an injunction allowing Mr. Williams to attend Friday prayer services is moot because Mr. Williams was transferred from maximum-security status at DCF to Lexington, a medium-security prison, where he is allowed to and does attend communal-religious services. Also, Mr. Williams’s official- qualified immunity defense under 28 U.S.C. § 1915(e) because Mr. Williams’s Complaint does not provide a “factual backdrop [that] clearly beckons” dismissal on that basis. See Part III.B.1.a, infra. Robert Patton replaced former Director Jones as ODOC Director and was
therefore automatically substituted as the defendant here.
See
Fed. R. App. P. 43(c)(2).
*7
capacity
§ 1983 claims seeking an injunction against former Director Jones, Warden
Wilkinson, and Chaplain Wideman are moot because Mr. Jones resigned as the ODOC’s
director and Mr. Williams is no longer housed at DCF where Warden Wilkinson and
Chaplain Wideman are located.
See Jordan v. Sosa
,
But these events have not mooted Mr. Williams’s remaining claims, which include his personal-capacity § 1983 claims seeking money damages from former Director Jones, Warden Wilkinson, and Chaplain Wideman and his official-capacity claim under the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, against Director Patton, seeking an injunction allowing him to receive kosher food.
III. DISCUSSION
Mr. Williams appeals the district court’s orders (A) dismissing without prejudice his communal-services RLUIPA and First Amendment claims for failure to exhaust administrative remedies; (B) dismissing with prejudice his kosher-diet RLUIPA and First Amendment claims, Equal Protection claim, and personal-capacity claims against Director Jones, each for failure to state a claim; and (C) denying his motions to appoint counsel, for class certification, and to amend his Complaint. We affirm in part and reverse in part.
A. Exhaustion of Administrative Remedies
Relying on incorrect information provided by ODOC, the district court found Mr. Williams had failed to exhaust his administrative remedies on his communal-services claim. Defendants now concede Mr. Williams had exhausted his administrative remedies as to this claim. As a result, the parties seek remand of Mr. Williams’s communal- services claim for initial consideration by the district court. We agree and remand Mr. Williams’s claims arising from DCF’s cessation of Friday communal-religious services for maximum-security Muslim inmates that have not become moot.
B. Failure to State a Claim
“We review a Rule 12(b)(6) dismissal de novo. At the motion-to-dismiss stage,
we must accept all the well-pleaded allegations of the complaint as true and must
construe them in the light most favorable to the plaintiff.”
Thomas v. Kaven
, 765 F.3d
1183, 1190 (10th Cir. 2014) (internal quotation marks and citation omitted). In doing so,
we “ask whether it is plausible that the plaintiff is entitled to relief.”
Gallagher v. Shelton
,
1. RLUIPA
Defendants argued to the district court that Mr. Williams, as a Muslim, is required by Islam to eat halal food rather than kosher food. And because Mr. Williams has not alleged that he requested and was denied halal food, the Defendants contend he has failed to state a claim that being denied a kosher diet substantially burdens his religious exercise in violation of RLUIPA. The district court agreed, finding, with our emphasis, that Mr. Williams
does not assert he requires a kosher diet to practice his sincerely-held beliefs. Instead, he states he “requested a diet (kosher) per his religious faith on 8/22/2012.” He, however, has failed to articulate why he needs a kosher diet, instead of a halal diet, to practice his religion. In addition, he has not shown that his religious exercise is subject to a substantial burden by the government.
The district court erred by inserting a “religious requirement” element into RLUIPA and by concluding that Mr. Williams had not pleaded a substantial burden on his religious exercise.
In advocating this approach, Defendants seem to have relied on an outdated
version of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb
to 2000bb-4.
[9]
Under a previous version of RFRA, we held that “[t]o exceed the
‘substantial burden’ threshold, government regulation must significantly inhibit or
constrain conduct or expression that manifests some
central tenet
of a prisoner’s
individual beliefs.”
Werner v. McCotter
,
*11 a. The statutory and interpretive framework of RLUIPA Like the amended version of RFRA, RLUIPA includes no requirement that a plaintiff’s sincerely held religious belief be fundamental to, or a central tenet of, his religion. In relevant part, RLUIPA provides as follows:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . 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.
42 U.S.C. § 2000cc-1(a). We have previously distilled the elements a plaintiff must plead
to state a RLUIPA claim to an allegation the plaintiff “wishes to engage in (1) a religious
exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a
substantial burden imposed by the government.”
Abdulhaseeb v. Calbone
,
Significant for our purposes, “Congress defined ‘religious exercise’ capaciously to
include ‘any exercise of religion,
whether or not compelled by, or central to
, a system of
religious belief.’”
Holt v. Hobbs
,
To survive a motion to dismiss, therefore, Mr. Williams was required to allege
only that his request to eat a kosher diet was motivated by a sincerely held religious belief
and that his exercise of that belief has been substantially burdened by the government.
Abdulhaseeb
,
the defendants to show the substantial burden results from a compelling governmental
interest and that the government has employed the least restrictive means of
accomplishing its interest.”
Abdulhaseeb
,
because of material issues of disputed fact on whether the denial of a halal-certified diet substantially burdened the exercise of his sincerely held religious beliefs when a non- pork, vegetarian diet was available to him). Accordingly, we must review Mr. Williams’s Complaint to determine whether he has alleged a substantial burden on his exercise of a sincerely-held religious belief.
Defendants contend Mr. Williams’s “Complaint was devoid of any assertion that he had to have a kosher diet to practice sincerely-held religious beliefs.” Specifically, they argue “Plaintiff-Appellant, a Muslim inmate, asked to be served a kosher diet. A halal diet was available for the asking. Plaintiff-Appellant made no assertion a halal diet was unavailable to him.” Defendants therefore rely on the fact that prison policy allows followers of Islam to request a halal diet, which other Muslim prisoners accept as consistent with the tenets of Islam. But, as discussed, the fact that a prisoner’s sincerely- held belief is idiosyncratic compared to a more widely shared interpretation of a particular religion does not change the subjectivity of the inquiry, particularly at the pleading stage. Nor is it fatal to Mr. William’s RLUIPA claim that other Muslim inmates are content with a halal diet:
Even if others of the same faith may consider the exercise at issue unnecessary or less valuable than the claimant, even if some may find it illogical, that doesn’t take it outside the law’s protection. Instead, RLUIPA protects any exercise of a sincerely held religious belief. When a sincere religious claimant draws a line ruling in or out a particular religious exercise, “it is not for us to say that the line he drew was an unreasonable one.”
Yellowbear v. Lampert
,
Next, Defendants point to the verse from Surah 5 of the Qur’an offered by Mr.
Williams as support for his request for a kosher diet, which states “[t]he food of the
People of the Book (Jewish) is lawful unto you and yours is lawful unto them.” They
contend this verse is permissive because it allows Mr. Williams to eat either a kosher or a
halal diet. Defendants argue, therefore, that the verse cannot support Mr. William’s
request for a kosher diet because a halal diet is available to him upon request. But as
discussed, Mr. William’s belief need not be supported by the text of the Qur’an at all.
Furthermore, “[u]nder [RLUIPA], it isn’t for judges to decide whether a claimant who
seeks to pursue a particular religious exercise has ‘correctly perceived the commands of
[his] faith’ or to become ‘arbiters of scriptural interpretation.’”
Yellowbear
, 741 F.3d at
54–55 (quoting
Thomas
,
Nor may the courts decide at the pleading stage that the tenets of the subject
religion can be satisfied by alternative methods.
Thomas
,
Mr. Williams has met that burden here. In his Complaint, Mr. Williams alleges he
is a Muslim and notes his belief that a kosher diet is “mandated by his religion.” He also
states that “every time [he] ate a prison meal,” he suffered mental anguish and sometimes
a lost appetite “due to the fact he could not practice his religion pursuant to his religious
precepts.” Reading Mr. Williams’s pro se Complaint liberally and taking all reasonable
inferences as true, we conclude he has asserted that the request for a kosher diet is
motivated by his sincerely held religious belief. As a result, we conclude that Mr.
Williams’s Complaint sufficiently pleads this element of a RLUIPA claim for purposes of
Rule 12(b)(6).
See
42 U.S.C. § 2000cc-1(a);
Twombly
,
In reaching this conclusion, we acknowledge the Complaint is not entirely clear on whether Mr. Williams’s sincerely held religious belief permits him to eat only a kosher diet, or whether he believes he can exercise his faith by eating either a kosher or a halal diet. We faced a similar ambiguity in Abdulhaseeb . But as Judge Gorsuch noted in his concurring opinion there, even where “we have struggled to ascertain the exact parameters of [a] pro se complaint,” the pro se prisoner, “[a]s both the summary judgment non-movant and a pro se litigant . . . deserves the benefit of the doubt.” 600 F.3d at 1324–25 (Gorsuch, J., concurring). Thus, the panel in Abdulhaseeb read the inmate’s complaint as alleging a sincerely held religious belief that he could eat only halal-certified food and not the non-pork, vegetarian option the prison and some other *16 Muslim inmates believed complied with Islam. Id. at 1325. Such a charitable reading is likewise appropriate here. at 1325–26. We therefore give Mr. Williams the benefit of the doubt and interpret his Complaint as alleging his requested religious exercise—eating a kosher diet—was motivated by a sincerely held religious belief that he could eat only a kosher diet and not the halal diet offered by DCF. Accordingly, here, as in Abdulhaseeb , the Complaint gives us “no opportunity to consider whether a prisoner who may eat ODOC’s [halal] diet but who is denied any access to [kosher] foods can state a RLUIPA claim.” See id. at 1325–26.
b. Substantial burden on religious exercise
“In addition to [alleging for purposes of RLUIPA] that the relevant exercise of
religion is grounded in a sincerely held religious belief, [Mr. Williams] also [bears] the
burden of [alleging] that the [ODOC’s denial of his kosher-diet request] substantially
burdened that exercise of religion.”
Holt
,
In Yellowbear , we defined a burden on religious exercise as “substantial” under RLUIPA
when (at the very least) the government (1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief, (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or (3) places considerable pressure on the plaintiff to violate a sincerely held religious belief—for example, by presenting an illusory or Hobson’s choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise.
For example, in
Abdulhaseeb
we reversed the district court’s decision granting
summary judgment in favor of the defendants because of a genuine issue of material fact
as to whether the prisoner’s exercise of a sincerely held religious belief had been
*18
substantially burdened by denying his request for a halal-certified diet.
[i]t is a reasonable inference that ODOC’s failure to provide a halal diet either prevents Mr. Abdulhaseeb’s religious exercise, or, at the least, places substantial pressure on Mr. Abdulhaseeb not to engage in his religious exercise by presenting him with a Hobson’s choice—either he eats a non- halal diet in violation of his sincerely held beliefs, or he does not eat. at 1316–17 (emphasis added). That is, the denial of Mr. Abdulhaseeb’s halal-certified
request raised a reasonable inference (and thus a genuine issue of material fact at the summary-judgment stage) that the prison had substantially burdened his religious exercise under either the second or third definitional categories recognized in Yellowbear .
Here, Defendants argue the prison denied Mr. Williams’s kosher-diet request
because it already offered a halal diet to Muslim prisoners. In the prison’s understanding,
denying Mr. Williams’s faith-based kosher-diet request does not substantially burden his
religious exercise because a halal diet complies with Islam and is available. But as we
explained in
Yellowbear
, the subjective inquiry focuses on “the coercive impact [of] the
government’s actions on [Mr. Williams’s] ability to engage in a religious exercise,
as he
understands that exercise and the terms of his faith
.”
Mr. Williams’s Complaint has facial plausibility that the government substantially burdened the exercise of his sincerely-held religious belief. The Complaint alleges Mr. Williams made a religiously-motivated request for a kosher diet, and that Defendants denied that request. We used similar facts to illustrate our interpretation of “substantial burden” under RLUIPA in Yellowbear :
Take, for example, the case of the prison that fails to provide Jewish or Muslim inmates with food that satisfies their religious dietary restrictions. The prison may not formally require prisoners to violate their religious convictions—after all, the prison might say, there is no rule compelling prisoners to eat the food it provides, prisoners can purchase and supply their own—but surely the choice as presented remains a heavily freighted one.
*20
In summary, Mr. Williams’s Complaint alleges that he “requested a religious diet
mandated by his religion.” And in his internal requests and grievances to prison staff, Mr.
Williams asked DCF to “[p]lease change my diet over to Kosher, pursuant to [Holy
Qur’an: Surah 5:5]” and “[a]llow me a Kosher Diet in accordance to my faith, ‘Holy
Qu’ran’ [sic]: Surah 5:5.” The Complaint also alleges that DCF denied Mr. Williams’s
requests for a kosher diet. Accordingly, the Complaint adequately pleads that Mr.
Williams “wishes to engage in (1) a religious exercise (2) motivated by a sincerely held
belief, which exercise (3) is subject to a substantial burden imposed by the government.”
Abdulhaseeb
,
We therefore reverse the district court’s dismissal of Mr. Williams’s kosher-diet RLUIPA claim and remand for further consideration in the district court.
2. First Amendment
The Complaint also alleges a First Amendment claim that survives Defendants’
Rule 12(b)(6) Motion to Dismiss. “Even though they are incarcerated, prisoners retain
fundamental constitutional rights. These rights include the reasonable opportunity to
pursue one’s religion as guaranteed by the free exercise clause of the First Amendment.”
Makin v. Colo. Dep’t of Corr.
,
conforming to their religious beliefs.”
Beerheide v. Suthers
,
“[I]n order to allege a constitutional violation based on a free exercise claim, a
prisoner-plaintiff must survive a two-step inquiry. First, the prisoner-plaintiff must
[allege] that a prison regulation substantially burdened sincerely-held religious beliefs.”
See Kay v. Bemis
,
For purposes of Rule 12(b)(6), Mr. Williams has adequately stated a First Amendment free exercise claim if the Complaint alleges that Defendants substantially burdened the exercise of his sincerely-held religious belief. Id . Defendants contend he has failed to do so, again arguing the availability of a halal diet for Muslim inmates refutes any claim that denial of a kosher diet substantially burdened Mr. Williams’s free-exercise rights. But Mr. Williams’ First Amendment claim, like his RLUIPA claim, is not dependent on an allegation that a kosher diet is necessary to the practice of Islam. Id. at 1220. Instead, “a prisoner’s belief in religious dietary practices is constitutionally protected if the belief is ‘genuine and sincere,’ even if such dietary practices are not doctrinally ‘required’ by the prisoner’s religion.” Id. (citing LaFevers v. Saffle , 936 F.2d 1117, 1119 (10th Cir. 1991)). And, as with a RLUIPA claim, investigation into “the sincerity of [a First Amendment claimant’s] beliefs [is] premature at this stage of the claim.” at 1219.
The Complaint adequately alleges Mr. Williams’s request to exercise his sincerely
held religious belief by eating a kosher diet. And the Complaint further alleges that DCF
denied his requested accommodation. This is sufficient to satisfy the first step of a First
Amendment free-exercise inquiry and to survive a Rule 12(b)(6) motion. The district
*23
court thus erred in dismissing Mr. Williams’s Complaint because he “failed to articulate
why he needs a kosher diet, instead of a halal diet, to practice his religion.” “It is not
within the judicial ken to question the centrality of particular beliefs or practices to a
faith,
or the validity of particular litigants’ interpretations of those creeds
.”
Hernandez v.
Comm’r
,
3. Former Director Jones
The district court granted former Director Jones’s separate 12(b)(6) Motion to
Dismiss on the ground that Mr. Williams had failed to plead Director Jones’s personal
participation in the alleged constitutional violations. In reaching that conclusion, the
district court focused exclusively on precedent discussing “personal participation,”
see,
e.g.
,
Polk Cty. v. Dodson
,
“Personal liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.”
Brown v. Montoya
,
To state a claim for a supervisor’s personal liability under § 1983, a plaintiff must
plead “(1) the defendant promulgated, created, implemented or possessed responsibility
for the continued operation of a policy that (2) caused the complained of constitutional
harm, and (3) acted with the state of mind required to establish the alleged constitutional
deprivation.” at 1199;
Pahls
,
The level of scienter required is based on the state of mind required to establish a
violation of the constitutional provision at issue.
Dodds
,
Here, the Complaint alleges Director Jones “is the Director of DOC and
is
responsible for
OP-030112 ~ ‘Religious Policy & Regulations.’” Mr. Williams therefore
argues Director Jones was ultimately responsible for the policy ending communal-
religious services for maximum-security Muslim inmates and the policy excluding
Muslims from the list approved to request a kosher diet. He further contends that this
single allegation standing alone is enough to state a claim under Rule 12(b)(6) for § 1983
supervisor liability. We disagree. Even liberally construing Mr. Williams’s pro se
Complaint,
Price v. Philpot
,
a. Communal-services claim
Nowhere in the Complaint does Mr. Williams identify a policy for which Director Jones was responsible that relates to the cessation of communal services for maximum- security Muslim prisoners. And the allegations relating to the communal-services claim contained in “Count I” of the Complaint fail to plead any personal involvement of Director Jones in formulating or supervising a policy to cancel communal-religious services for Muslim maximum-security inmates at DCF. Despite that deficiency, Mr. Williams argues he has stated a claim because this court has already determined that “the *27 director of ODOC has final policymaking authority for ODOC.” Abdulhaseeb , 600 F.3d at 1312. But Mr. Williams takes this statement out of context.
In Abdulhaseeb , we considered whether the RLUIPA claims against prison officials acting in their official capacities were rendered moot by Eleventh Amendment immunity. Id. Ultimately, we found it unnecessary to resolve that issue because regardless of whether Mr. Abdulhaseeb could recover money damages against the defendants in their official capacities, “the courts may still fashion some effective relief.” Id. We reasoned that the director of ODOC was a party to the litigation, the denial of a halal-certified diet was based on ODOC policies, “the director of ODOC has final policymaking authority for ODOC,” and “a judgment in [Mr. Abdulhaseeb’s] favor may require ODOC to modify those policies.” Id. Thus, it was still possible for the court to reach a result with real world consequences and the RLUIPA claims were not moot.
Here, unlike in
Abdulhaseeb,
Mr. Williams has failed to identify a particular
ODOC policy related to the cessation of communal services for maximum-security
Muslim prisoners.
See Pahls
,
b. Kosher-diet claim
We also affirm the dismissal of Mr. Williams’s claim against Director Jones for the denial of his kosher-diet request. For this claim, Mr. Williams has identified an ODOC policy that excludes Muslims from the list of prisoners entitled to request a kosher diet. But the Complaint contains no allegations that Director Jones’s formulation of the policy was motivated by a discriminatory intent. As such, it also fails to state a claim as a matter of law.
Mr. Williams’s Complaint “does not contain any factual allegation sufficient to
plausibly suggest [Director Jones’s] discriminatory state of mind.”
Iqbal
,
C. Other Motions
Mr. Williams’s appeal also encompasses the district court’s denial of three other motions: his motion for appointment of counsel, for class certification, and to amend his Complaint. We reverse the first two and affirm the third. Additionally, because we reverse the district court’s dismissal of Mr. Williams’s RLUIPA and First Amendment claims, we also reverse the district court’s minute entry summarily denying Mr. Williams’s Motion for Preliminary Injunction and the district court’s application of a strike pursuant to 28 U.S.C. § 1915(g). And we authorize Mr. Williams to proceed in forma pauperis because, as our analysis above shows, his claims are not frivolous for purposes of 28 U.S.C. § 1915(e).
1. Appointment of Counsel and Leave to Proceed in Forma Pauperis
The district court found that Mr. Williams’s claims lacked sufficient merit to
warrant appointment of counsel and denied his motion.
See McCarthy v. Weinberg
, 753
F.2d 836, 838 (10th Cir. 1985). Because we reverse and remand as to Mr. Williams’s
RLUIPA and First Amendment claims, we also reverse the district court’s denial of Mr.
1000, 1012 (10th Cir. 2014) (affirming dismissal of an equal-protection claim because it
was a rephrasing of a free-exercise claim dismissed at summary judgment). Here, as in
Fields
, Mr. Williams’s cursory equal-protection claim “is nothing more than a rephrasing
of his free-exercise claim.” (internal quotation marks omitted) (citing
Prince v.
Massachusetts
,
Williams’s motion to appoint counsel based on the assessment that such claims lacked merit. We therefore remand so the district court can reassess the merits of Mr. Williams’ motion for the appointment of counsel in light of our decision.
And we grant Mr. Williams leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1) (providing that “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor” under certain circumstances). We also reverse the district court’s finding that Mr. Williams’s claims are frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and vacate the first strike assessed against him by the district court.
2. Class Certification
Mr. Williams pursues his RLUIPA and First Amendment claims on behalf of a
“fluid” class of all Muslims in the state prison system. “When the district court has
applied the proper standard in deciding whether to certify a class, we may reverse that
decision only for abuse of discretion.”
Adamson v. Bowen
,
The district court here performed an abbreviated Rule 23 class-certification
analysis. It found that as a pro se litigant, Mr. Williams could not represent the class on
his own and denied the motion on that basis.
See
Fed. R. Civ. P. 23(a)(4) (requiring the
class representative to fairly and adequately protect the interests of the class). The district
court’s ruling is “consistent with our practice of not certifying pro se class actions.”
Lowery v. Edmondson
,
The district court denied Mr. Williams’s motion to amend as untimely. We affirm.
Mr. Williams filed his motion to amend on June 27, 2014, more than a year after
he filed the Complaint on April 29, 2013. Moreover, he filed it almost a year after former
Director Jones filed his Rule 12(b)(6) Motion to Dismiss on July 31, 2013. Rule 15(a)(1)
allows a plaintiff to amend a complaint once as a matter of course within 21 days of filing
the complaint or within 21 days of either service of a responsive pleading or service of a
*32
motion under Rule 12(b)(6).
See
Fed. R. Civ. P. 15(a)(1)(A), (B). “In all other cases, a
party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.” 15(a)(2).
As the district court observed, “untimeliness alone is a sufficient reason to deny leave to
amend, especially when the party filing the motion has no adequate explanation for the
delay.”
Frank v. U.S. West, Inc.
,
IV. CONCLUSION
We reverse the district court’s dismissal of Mr. Williams’s communal-services RLUIPA and First Amendment claims for failure to exhaust administrative remedies and his kosher-diet RLUIPA and First Amendment claims for failure to state a claim. We also reverse the district court’s denial of Mr. Williams’s motion to appoint counsel, class certification, and motion for a preliminary injunction. We remand for further proceedings consistent with the foregoing and authorize Mr. Williams to proceed in forma pauperis. But we affirm the district court’s dismissal of Mr. Williams’s equal-protection claim and personal-capacity claims against former Director Jones for failure to state a claim and its denial of his motion to amend.
Because we reverse and remand as to several of Mr. Williams’s claims and motions, we hold that his claims are not frivolous for purposes of 28 U.S.C.
§ 1915(e)(2)(B)(i) and we remove the strike imposed by the district court pursuant to 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT Carolyn B. McHugh Circuit Judge
Notes
[*] 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 Rule 32.1 of the Federal Rules of Appellate Procedure and Tenth Circuit Rule 32.1.
[1] Mr. Williams named the Final Judgment in his notice of appeal. Accordingly, we
have jurisdiction to review the district court’s order dismissing Mr. Williams’s personal-
capacity claims against former Director Jones (Dkt. No. 28), its order dismissing Mr.
Williams’s other claims for failure to state a claim (Dkt. No. 46), and its orders denying
Mr. Williams’s other motions.
See Gallagher v. Shelton
,
[2] Because this matter comes to us on appeal from the dismissal of Mr. Williams’s
Complaint based on Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, we recount the facts as described in the pro se Complaint, accepting well-
pleaded allegations as true for purposes of our review.
See Ashcroft v. Iqbal
, 556 U.S.
662, 680–82 (2009). Additionally, although Mr. Williams is represented in this appeal on
certain claims, he initially filed the Complaint and his appellate brief pro se. We liberally
construe pro se pleadings,
Hall v. Scott
,
[3] Attached to Mr. William’s complaint is his Declaration in Support of Class
Action Complaint and documents from the DCF grievance procedures. Our factual
recitation includes information from these documents.
See Jacobsen v. Deseret Book Co.
,
[5] In their 12(b)(6) Motion to Dismiss, Defendants Wilkinson and Wideman did not
raise a qualified immunity defense and they have not filed any other responsive pleading
raising qualified immunity as an affirmative defense. Accordingly, it is premature to
consider how such a defense might affect Mr. Williams’s claims.
See Kay v. Bemis
, 500
F.3d 1214, 1221 n.6 (10th Cir. 2007) (reversing 12(b)(6) dismissal of prisoner’s
religious-freedom claim and noting that qualified immunity remained an issue to be
addressed on remand because the prison defendants had not yet filed any responsive
pleadings outlining their defenses);
cf. Trujillo v. Williams
,
[7] To the extent Mr. Williams requests further clarification or relief in his Motion for Clarification on the Parties to this Appeal, his motion is denied.
[8] Also, we generally review for an abuse of discretion a district court’s dismissal of a claim as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). But when the district court’s frivolousness determination turns on an issue of law, as it does here, we review the order de novo. Because we reverse and remand as to a number of Mr. Williams’s claims, we hold that they are not frivolous and also remove the “strike” imposed by the district court under 28 U.S.C. § 1915(g).
[9] “This court has recognized that [RFRA] and First Amendment precedent
provides guidance in interpreting RLUIPA.”
Abdulhaseeb v. Calbone
,
[10] The Supreme Court subsequently held that RFRA does not apply to the States.
See City of Boerne v. Flores
,
[11] DCF Policy OP 030112 V.A., “Religious Rites,” as quoted by Mr. Williams, appears to be similarly outdated. See note 4, supra.
[12] RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s professed
religiosity.”
Cutter v. Wilkinson
,
[14] We note that at least one district court within the Tenth Circuit has found that a Muslim inmate met his burden for RLUIPA and First Amendment purposes of showing his religious exercise was substantially burdened by a prison’s refusal to provide him kosher food pursuant to his faith-based request. Harvey v. Adams Cty. Sheriff’s Office ,
[15] In
Turner
, the Supreme Court identified the following factors relevant to
whether legitimate penological interests justify the conduct infringing upon a prisoner’s
constitutional right:
(1) whether there exists a rational connection between the prison policy or
regulation and a legitimate governmental interest advanced as its
justification; (2) whether there are alternative means of exercising the right
notwithstanding the policy or regulation; (3) what effect accommodating
the exercise of the right would have on guards, other prisoners, and prison
resources generally; and (4) whether there are ready, easy-to-implement
alternatives that would accommodate the prisoner’s rights.
Makin v. Colo. Dep’t of Corr.
,
[16] “We acknowledge that other circuits [may] require that a prison regulation must
interfere with a tenet or belief that is ‘central’ [to] or mandated by religious doctrine
before a prisoner may state a claim under § 1983. The Tenth Circuit does not follow such
a rule.”
Kay
,
[17] Similarly, here, we acknowledge that injunctive relief may still be available against current ODOC Director Patton in his official capacity.
[18] The Complaint also alleges Defendants violated Mr. Williams’ Fourteenth Amendment right to Equal Protection because under the ODOC policy, Jews, Messianic Jews, and House of Yahweh adherents “are allowed to be provided diets mandated by their religion,” whereas “the same policy” does not allow this to Muslims. We need not analyze Mr. Williams’s equal-protection claim in detail because we hold that he “has not distinguished this claim from his free-exercise claim.” Fields v. City of Tulsa , 753 F.3d