Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 2, 2024 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court VIVEK LAKHUMNA,
Plaintiff - Appellant,
v. No. 23-4133 (D.C. No. 4:18-CV-00081-DN) CAPTAIN BRADBURY; (D. Utah) LIEUTENANT FNU EDDLEMAN; ROBBY KEMPLE, Officer; CHARLES MASON, Lieutenant, disciplinary hearing officer; LIEUTENANT PEI; OFFICER FNU QUAYLE; OFFICER JUSTIN RAMIREZ; CASE MANAGER FNU TOONE; CHAPLIN D. WEBER; SHAYNE WOOD, Lieutenant; FNU MAUGHAN; DOYLE PECK; FNU YAHNE; SGT. MESSINGER; SHARITY SCHILTZ,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges.
*After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 2
_________________________________
Plaintiff Vivek Lakhumna, a Utah state prisoner appearing pro se,
filed this action alleging his constitutional rights were violated over the
course of several years while he was incarcerated at multiple state and
county facilities. The district court dismissed certain of the named
defendants and ordered the remaining defendants to file Martinez reports1
and dispositive motions. After receiving those reports and motions, the
district court granted summary judgment in favor of the remaining
defendants. Lakhumna now appeals. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm.
I
Lakhumna is an inmate in the custody of the Utah Department of
Corrections (UDC). Lakhumna participated in UDC’s Inmate Placement
Program (IPP), which sends eligible UDC inmates to counties that have
contracted with the State to provide jail housing. As a result, Lakhumna
was, at the times relevant to this action, housed in facilities UDC operated,
as well as in different county jails in Utah. This included the Central Utah
Correctional Facility (CUCF), which was operated by UDC, and the Beaver
1 See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (approving
the district court’s practice of ordering prison administration officials to investigate and prepare substantive reports in response to prisoner civil rights complaints). 2 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 3
County Jail (BCJ), the Cache County Jail (CCJ), and the Uintah County
Jail (UCJ).
At each of these facilities, Lakhumna communicated with staff
members about his need for meals that adhered to the Hindu religion, as
well as access to items (e.g., prayer beads) he believed necessary for Hindu
religious observances. Lakhumna alleges that a few staff members refused
to accommodate him, while most others attempted in some way to
accommodate his requests. At some of the facilities, Lakhumna complained
that the meals he was provided, though vegetarian, did not contain
sufficient protein or calories. He also complained, on at least one occasion,
that the kitchen staff was not properly preparing his meals.
Each facility had in place a three-level comprehensive grievance
system that allowed inmates to file complaints about any aspect of their
incarceration and request a remedy. At many of the facilities, Lakhumna
filed formal grievances complaining about his diet, his lack of access to
religious items, and other matters. In most instances, however, those
grievances were denied and Lakhumna did not exhaust the administrative
remedies that were available to him.
In 2018, while he was housed at CUCF, Lakhumna was charged with
two disciplinary infractions. The first charge was based on a letter
Lakhumna sent to CUCF corrections officer Justin Ramirez shortly after he
3 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 4
arrived at CUCF. Lakhumna stated in the letter that two items of his
personal property were missing, and he threatened to take Officer Ramirez
to federal court if the items were not returned. After discussing the letter
with his sergeant, Officer Ramirez filed an incident report charging
Lakhumna with extortion in violation of UDC policy.
A disciplinary hearing was held on October 23, 2018. The hearing
officer, Lieutenant Charles Mason, found Lakhumna guilty of violating
UDC policy and fined him $70.00. Lakhumna unsuccessfully appealed
Lt. Mason’s decision.
The second charge occurred in September 2018. Robby Kemple, a
CUCF corrections officer, observed Mr. Lakhumna wearing bright orange
clogs in a general population area. Officer Kemple informed Lakhumna the
clogs were not allowed at CUCF and gave him the option of either sending
them out of the facility or receiving an incident report for possessing
contraband. Lakhumna asked for the shoes to be confiscated and to receive
a write up. Accordingly, Officer Kemple prepared an incident report
charging Lakhumna with possession of contraband.
A disciplinary hearing was held on September 25, 2018. The hearing
officer, Lieutenant Shayne Wood, found Lakhumna guilty of possessing
contraband and fined him $40.00. Lakhumna appealed Lt. Wood’s decision.
A grievance coordinator at CUCF denied the appeal.
4 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 5
II
Lakhumna initiated these proceedings in December 2018 by filing a
pro se civil rights complaint asserting claims under 42 U.S.C. §§ 1983 and
1985. Lakhumna thereafter amended his complaint five times. The fifth
amended complaint named twenty-eight individual defendants. The fifth
amended complaint in turn asserted three causes of action arising out of
Lakhumna’s incarceration at the CCJ, BCJ, UCJ, and UDC facilities:
(1) deprivation of the right to the free exercise of religion (i.e., the denial of
religious meals and items); (2) deprivation of the right to petition the
government for the redress of grievances; and (3) deprivation of the right to
due process and equal protection.
The district court screened the fifth amended complaint and
dismissed ten of the twenty-eight named defendants, concluding Lakhumna
failed to “affirmatively link . . . his claims [to] these defendants.” R. I at 405.
The district court also granted UDC’s motion to dismiss three of the named
UDC defendants on the basis that the claims asserted against them were
untimely. The district court directed the remaining defendants to file
Martinez reports and dispositive motions.
As directed, the remaining defendants filed Martinez reports and
summary judgment motions. After reviewing those reports and motions,
5 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 6
the district court issued three memorandum decisions and orders granting
summary judgment in favor of all defendants.
Lakhumna now timely appeals.
III
In this appeal, Lakhumna challenges the district court’s grant of
summary judgment in favor of the BCJ, CCJ, UCJ, and UDC defendants.
We review de novo the district court’s summary judgment rulings, viewing
the evidence in the light most favorable to Lakhumna, the non-moving
party. Davidson Oil Co. v. City of Albuquerque, 108 F.4th 1226, 1230
(10th Cir. 2024). “A court should grant summary judgment if it determines
no genuine dispute exists about any material fact and the movant is entitled
to judgment as a matter of law.” Id. at 1230–31 (citing Fed. R. Civ. P. 56(a)).
Because Lakhumna is proceeding pro se, we liberally construe his pleadings
but “will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013).
A
Lakhumna begins by challenging the district court’s conclusion that
he failed to exhaust his administrative remedies with respect to his claim
that Sergeant Mark Messinger of BCJ failed to accommodate his Hindu
dietary requirements. According to Lakhumna, he “received a response to
[his] level one grievance” against Sgt. Messinger “on June 6th, 2018,” and
6 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 7
“was promptly moved from BCJ” that same day. Aplt. Br. at 4. As a result,
he argues, the administrative remedies normally available to BCJ inmates
“were not ‘available’ to [him] once he was moved from BCJ.” Id. He further
argues that he was transferred out of BCJ in retaliation for filing the level
one grievance against Sgt. Messinger.
Under the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C.
§ 1997e, a prisoner must exhaust all available administrative remedies
before filing an action under 42 U.S.C. § 1983. See Porter v. Nussle, 534 U.S.
516, 524 (2002). “Proper exhaustion demands compliance with [a prison’s]
deadlines and other critical procedural rules . . . .” Woodford v. Ngo,
548 U.S. 81, 90 (2006). A defendant has the burden of asserting the
affirmative defense of failure to exhaust and proving that the plaintiff failed
to utilize or exhaust administrative remedies. Tuckel v. Grover, 660 F.3d
1249, 1254 (10th Cir. 2011). If a defendant shows the plaintiff failed to
exhaust, the burden shifts to the plaintiff to show the remedies were
unavailable. Id. Remedies are unavailable under the PLRA when “prison
officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of
the administrative remedy.” Id. at 1252 (brackets omitted) (quoting Little
v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)). Factual disputes about
administrative exhaustion are properly resolved by district courts at the
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summary judgment stage rather than being passed on to a jury. Estrada v.
Smart, 107 F.4th 1254, 1262 (10th Cir. 2024).
Here, it is undisputed that Lakhumna did not exhaust all of the
administrative remedies that were in place at BCJ. More specifically, it is
undisputed that Lakhumna filed only a level one grievance regarding
Sgt. Messinger and, after that was denied, did not pursue level two or level
three grievances. Thus, the burden is on Lakhumna to show the remedies
offered by BCJ were unavailable to him. Although Lakhumna attempts to
do so by arguing that his transfer from BCJ to CCJ made it impossible for
him to exhaust the remedies provided by BCJ, we reject that argument. As
the district court noted, Lakhumna “offer[ed] no evidence about the timeline
for any efforts or arrangements he could have made to complete the
grievance process after leaving BCJ.” R. II at 774. In other words,
Lakhumna failed to explain why “he could [not] have tried to arrange to
finish [BCJ’s] grievance process by mail or perhaps with his new facility’s
help.” Id. at 773. We likewise note that there is no evidence that
Sgt. Messinger or anyone else at BCJ was responsible for Lakhumna’s
transfer from BCJ to CCJ. We therefore find no basis for concluding that
prison officials prevented, thwarted, or hindered Lakhumna’s efforts to
pursue the available BCJ administrative remedies.
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B
In his second issue on appeal, Lakhumna challenges the district
court’s grant of summary judgment in favor of Sergeant Sharity Schiltz of
UCJ. Lakhumna disputes the district court’s conclusion that Sgt. Schiltz
was entitled to qualified immunity.
A defendant in a § 1983 suit who asserts the affirmative defense of
qualified immunity is presumptively immune from suit. Truman v. Orem
City, 1 F.4th 1227, 1235 (10th Cir. 2021). “To overcome this presumption,
the plaintiff must show (1) the defendant’s actions violated a constitutional
or statutory right, and (2) that right was clearly established at the time of
the defendant’s complained-of conduct.” Id. “A right is clearly established
when a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must
be as the plaintiff maintains.” Id. (internal quotation marks omitted).
“Thus, the contours of the right must be sufficiently clear so that a
reasonable official would understand that what he is doing violates the
right.” Id. (brackets and internal quotation marks omitted).
Lakhumna asserted that Sgt. Schiltz violated his First Amendment
right to free exercise of his Hindu religion by not fully granting his requests
for “religious meals, religious services and religious items.” R. I at 336.
Although he acknowledged that Sgt. Schiltz “approved the removal of meat,
9 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 10
fish and eggs from [his] diet,” he asserted that she “ignored” all “other food
preparation criteria.” Id. at 441–442. He also asserted that Sgt. Schiltz
violated his Fourteenth Amendment right to due process and equal
protection by “not treat[ing] [him] equally in regard[] to religious meals.”
R. I at 340. He asserted in support that UCJ provided Jewish and Muslim
inmates with Kosher and Halal meals, but denied him religious meals solely
because he was Hindu.
In addressing Lakhumna’s First Amendment free-exercise claim, the
district court noted he “concede[d] that [Sgt.] Schiltz approved his religious
dietary request,” and that his real complaint was that the food was not
properly prepared in accordance with Hindu scriptures. R. II at 785. The
district court in turn noted it was undisputed that Sgt. Schiltz had no
involvement in the actual planning and preparation of Lakhumna’s meals,
and instead it was UCJ’s dietitian who planned the meals and UCJ’s
culinary staff who prepared and served the meals. The district court also
noted that, in any event, Lakhumna failed to submit any “admissible
evidence of what criteria he may have given [Sgt.] Schiltz from Hindu
scriptures to guide preparation of meals for a practitioner of . . . Hinduism.”
Id. at 788. As for his requests for certain religious items, the district court
noted the record was undisputed that Sgt. Schiltz approved Lakhumna to
take the religious courses he requested and to possess certain religious
10 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 11
books so long as he complied with UCJ’s book-possession policy, and she
informed him he could purchase items from the commissary to construct an
altar in his cell. For all of these reasons, the district court concluded
Lakhumna failed to “adequately carr[y] his burden, with admissible
evidence, to show that [Sgt. Schiltz] violated his federal constitutional right
to religious access.” Id. at 789.
Notably, Lakhumna does not attempt to rebut any, and indeed ignores
most, of the district court’s conclusions. Instead, he offers only the same
conclusory arguments in his appellate brief that he made below. For
example, he argues that Sgt. Schiltz “burdened his right to free exercise”
because she “only approved a few of the required dietary criteria and
ignored all other religious tenets.” Aplt. Br. at 6. But he offers no
explanation or evidence as to what those criteria are and no evidence that
he ever provided those criteria to Sgt. Schiltz, the dietitian at UCJ, or UCJ’s
culinary staff. We therefore find no basis for concluding that the district
court erred in granting summary judgment in favor of Sgt. Schiltz.
C
Lakhumna argues in his third issue on appeal that the district court
erred in concluding he failed to exhaust his administrative remedies with
respect to his claims against the CCJ defendants. According to Lakhumna,
he “won all the relief that was available under [CCJ’s] administrative
11 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 12
procedures.” Aplt. Br. at 7. For example, he notes he “filed a level one
grievance requesting his prayer beads be returned to him” and that
“grievance was denied.” Id. at 9. He argues “[t]here was no possibility of any
further relief” and he “was required to do no more in order to exhaust his
administrative remedies.” Id.
We reject Lakhumna’s arguments. The undisputed evidence in this
case indicates that Lakhumna filed three level one grievances during his
time at CCJ, but never appealed the decisions he received in response to
any of those grievances. Although he asserts there was no possibility of any
further relief, it is undisputed that CCJ had in place a three-level grievance
process he could have utilized. As the district court correctly concluded, his
failure to do so means he failed to exhaust his administrative remedies as
required by the PLRA.2 See Ross v. Blake, 578 U.S. 632, 639 (2016) (noting
that “mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion”); Woodford, 548 U.S.
at 90.
2 Lakhumna also appears to argue, as he did with respect to his claim
against Sgt. Messinger of BCJ, that he was moved from CCJ before he could exhaust his administrative remedies and therefore CCJ’s administrative remedy process was not available to him after the move. We again reject this argument. 12 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 13
D
In his fourth and final issue on appeal, Lakhumna challenges the
district court’s grant of summary judgment in favor of the UDC defendants.
More specifically, Lakhumna argues that he exhausted his administrative
remedies with respect to his claims against the UDC defendants and that
qualified immunity is unavailable to those defendants.
Lakhumna alleged that six of the ten UDC defendants—Captain
David Bradbury, Lieutenant George Eddleman, Lieutenant Kopelani Pei,
housing unit officer Blake Quayle, IPP manager Jeffrey Toone, and chaplain
Duane Weber—violated his First Amendment right to free exercise of his
Hindu religion by denying his requests for specific dietary accommodations
and permission to possess certain religious items. The district court
concluded that all six of these defendants were entitled to summary
judgment on their affirmative defenses and that Lakhumna failed to
exhaust the administrative remedies available to him in UDC’s three-level
grievance process. Specifically, the district court concluded the undisputed
evidence established that Lakhumna “did not file any grievance to level
three, as required by [UDC] policy.” R. II at 875. Indeed, the district court
concluded that Lakhumna filed only a level one grievance as to his claim
against Lt. Eddleman, and no grievances as to his claims against the other
five defendants.
13 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 14
In his appeal, Lakhumna asserts that UDC officials “failed to respond
to the [level one] grievance” he filed regarding Lt. Eddleman “within the
time limits contained in the grievance policy.” Aplt. Br. at 12. This failure,
Lakhumna argues, “rendered his administrative remedy unavailable” and
meant that he exhausted his remedies with respect to his claim against
Lt. Eddleman. Id.
Even assuming, for purposes of argument, that Lakhumna did not
receive a response to his level one grievance against Lt. Eddleman, nothing
in UDC’s written grievance policy indicated that his administrative
remedies would be considered exhausted. To the contrary, UDC’s written
grievance policy specifically indicated that an inmate could submit the
grievance to the next level of appeal if UDC staff did not respond to the
initial grievance in a timely manner. We therefore reject Lakhumna’s
argument that he exhausted his remedies with respect to his claim against
Lt. Eddleman.
Notably, Lakhumna makes no mention of the other five defendants.
Consequently, we conclude he has waived appellate review of the district
court’s grant of summary judgment in favor of those five defendants.
See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (noting that
“[i]ssues not raised in the opening brief are deemed abandoned or waived”).
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As for the other four UDC defendants (Lt. Mason, Lt. Wood, Officer
Kemple, and Officer Ramirez), Lakhumna alleged that they violated his
Fourteenth Amendment rights to due process during his disciplinary
hearings. More specifically, Lakhumna alleged that Lt. Mason and Lt. Wood
violated his procedural due process rights by refusing to allow him to
present witnesses or evidence at his disciplinary hearings. Lakhumna’s
claims against Officers Kemple and Ramirez were less clear. Liberally
construing Lakhumna’s fifth amended complaint and his response to the
UDC defendants’ motion for summary judgment, he appeared to allege that
they both acted arbitrarily by charging him with disciplinary infractions for
conduct that was not or should not have been prohibited.
With respect to the claims against Lt. Mason and Lt. Wood, the
district court noted that Lakhumna failed to identify what witnesses or
evidence he asked to present at his disciplinary hearings, the relevance of
any such witnesses or evidence to the charges against him, or how such
evidence would have affected the outcome of his disciplinary hearings. The
district court therefore concluded Lakhumna failed to meet his burden
under the first prong of the qualified immunity analysis of showing that
these two defendants’ actions violated a federal constitutional right.
Lakhumna’s appellate brief suffers from the same problem. As a result, we
15 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 16
affirm the district court’s grant of summary judgment with respect to
Lt. Mason and Lt. Wood.
That leaves Lakhumna’s due process claims against Officers Kemple
and Ramirez. Lakhumna alleged that it was arbitrary for Officer Kemple to
classify the orange clogs as contraband because orange stocking caps were
available for purchase in the commissary. And he alleged that the threat
charge Officer Ramirez filed against him was arbitrary or improper because
he was merely discussing his constitutional right to bring a lawsuit.
The district court concluded Officer Kemple was entitled to qualified
immunity because Lakhumna pointed to no cases that were factually
similar to his claim against Officer Kemple and thus failed to carry his
burden of showing that his alleged due process rights were clearly
established at the time Officer Kemple charged him with a disciplinary
infraction. Although Lakhumna argues in his appellate brief that Officer
Kemple was not entitled to qualified immunity, he fails to seriously
challenge the substance of the district court’s analysis. We therefore affirm
the district court’s grant of summary judgment in favor of Officer Kemple.
As for the claim against Officer Ramirez, the district court reviewed
the Supreme Court and federal circuit cases Lakhumna cited and concluded
only one, Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017), was “factually
close to” Lakhumna’s case. R. II at 899. The district court concluded,
16 Appellate Case: 23-4133 Document: 56-1 Date Filed: 10/02/2024 Page: 17
however, that because Entler was not a Supreme Court or Tenth Circuit
case, it could not satisfy the weight-of-authority approach for
demonstrating the due process right at issue was clearly established at the
time of the alleged violation.
Lakhumna does not directly challenge the district court’s analysis in
his appellate brief. Instead, he attempts to reframe his claim against Officer
Ramirez as one implicating his First Amendment rights rather than his due
process rights, and he in turn cites to a new case, Gee v. Pacheco, 627 F.3d
1178 (10th Cir. 2010), that he did not cite below. We reject Lakhumna’s
attempt to reframe his claim on appeal. See generally United States v. Viera,
674 F.3d 1214, 1220 (10th Cir. 2012) (noting “our general rule against
considering issues [raised] for the first time on appeal”).
IV
The judgment of the district court is AFFIRMED.
Entered for the Court
Richard E.N. Federico Circuit Judge