NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAKUEEYAPEE D. WHITFORD, No. 24-3177 D.C. No. Plaintiff - Appellant, 6:22-cv-00070-BMM-JTJ v. MEMORANDUM* JIM SALMONSEN; C. JOHNSON; BRIAN GOOTKIN,
Defendants - Appellees.
MAKUEEYAPEE D. WHITFORD, No. 24-3340 Plaintiff - Appellee, D.C. No. 6:22-cv-00070-BMM-JTJ v.
JIM SALMONSEN; BRIAN GOOTKIN,
Defendants - Appellants,
and
C. JOHNSON,
Defendant.
Appeal from the United States District Court for the District of Montana
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Brian M. Morris, Chief District Judge, Presiding
Argued and Submitted June 11, 2025 Portland, Oregon
Before: SCHROEDER, TALLMAN, and OWENS, Circuit Judges
Plaintiff Makueeyapee D. Whitford, a former inmate at Montana State Prison
(MSP),1 sues various officials at the Montana Department of Corrections (MDOC)
for violating his rights under the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). See 42 U.S.C. § 2000cc-1(a) et seq. Whitford is a member of the
Blackfeet Nation and practices the religion of his tribe. Whitford alleges that MSP’s
policy requiring inmates to have six months of infraction-free conduct (“Clear
Conduct Policy”) to participate in various activities illegally burdens his Native
American religious practices in violation of RLUIPA.
The district court granted summary judgment for Defendants, finding that the
Clear Conduct Policy did not substantially burden Whitford’s Native American
religious practices, or where it did, that the burden was justified by a compelling
governmental interest in maintaining prison security as applied to Whitford. As the
1 While this appeal was pending, Whitford was transferred to the custody of the New Jersey Department of Corrections pursuant to the terms of the states’ Interstate Corrections Compact (ICC) due to Whitford’s continuing behavior issues. See Dkt. 48. Whitford’s claims for injunctive relief under RLUIPA are not moot because under the terms of the ICC, Whitford remains subject to the jurisdiction of Montana, may be returned to Montana at any time, and must be returned before his release. See Johnson v. Moore, 948 F.2d 517, 519–20, 522 (9th Cir. 1991) (per curium); Mont. Code Ann. § 46-19-401(IV)(c), (g) (2023).
2 24-3177 parties are familiar with the facts, we do not recount them here. “We review a district
court’s rulings on summary judgment motions de novo.” Donell v. Kowell, 533 F.3d
762, 769 (9th Cir. 2008). We have jurisdiction, and we affirm. See 28 U.S.C.
§ 1291.
1. The Clear Conduct Policy does not substantially burden Whitford’s ability
to be elected pipe carrier. Under RLUIPA, Whitford bears the burden of making a
prima facie showing that the Clear Conduct Policy constitutes a substantial burden
on the exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994
(9th Cir. 2005). Whitford claims that the Clear Conduct Policy violates RLUIPA by
making him ineligible to be elected as a community pipe carrier. However, he points
to no evidence that the Clear Conduct Policy applies to his eligibility to be elected
pipe carrier by his fellow native religious practitioners. Whitford’s unsupported
assertion that he believes an unwritten rule makes him ineligible to be elected pipe
carrier is not enough to make out a prima facie case of substantial burden. See id. at
995 (“a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great
restriction or onus upon such exercise” (quoting San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)).
2. The application of the Clear Conduct Policy to Whitford’s ability to be
chosen as a sweat lodge set-up crew member is justified by a compelling
governmental interest in prison security served by the least restrictive means. The
3 24-3177 Clear Conduct Policy completely bars Whitford from being eligible to be chosen as
a sweat lodge set-up crew member for a six-month period, so Whitford makes a
prima facie showing of substantial burden. See Greene v. Solano Cnty. Jail, 513
F.3d 982, 988 (9th Cir. 2008) (“We have little difficulty in concluding that an
outright ban on a particular religious exercise is a substantial burden on that religious
exercise.”).
Once Whitford makes a prima facie showing that the Clear Conduct Policy
constitutes a substantial burden on his exercise of religion, the burden shifts to
Defendants to establish that the Policy furthers a compelling governmental interest
and is the least restrictive means of achieving that interest. See Johnson v. Baker,
23 F.4th 1209, 1214 (9th Cir. 2022). “[P]rison security is a compelling state interest”
in the RLUIPA analysis. Id. at 1217 (quoting Cutter v. Wilkinson, 544 U.S. 709,
725 n.13 (2005)). We do not “grant ‘unquestioning deference’ to the government’s
claim of a general security interest” justifying the challenged policy. Id. (quoting
Holt v. Hobbs, 574 U.S. 352, 364 (2015)). Rather, “RLUIPA . . . contemplates a
more focused inquiry and requires the Government to demonstrate that the
compelling interest test is satisfied through application of the challenged law to the
person—the particular claimant whose sincere exercise of religion is being
substantially burdened.” Holt, 574 U.S. at 362–63 (internal quotation marks and
citation omitted). Defendants make that showing here.
4 24-3177 Defendants satisfied their burden by submitting affidavits to the district court
explaining that out-of-cell activities, like sweat lodge set-up, are often used by
inmates to “pass contraband and unauthorized communications.” They also
submitted affidavits explaining staff members’ security concerns specifically related
to Whitford’s participation in out-of-cell events. Whitford is serving a 60-year
sentence for deliberate homicide and previously stabbed another inmate. Whitford
had also “made threats to stab or otherwise assault staff members” which staff
understandably found “concerning.” Staff members also knew that “Whitford was
convicted and sentenced for assaulting MSP staff with bodily fluids,” and “had
amassed disciplinary infractions for more than sixteen staff assaults, . . . more than
fifteen instances of threatening staff, two instances of conspiring or attempting to
assault staff, and two instances of possession of a weapon.” In all, Whitford had
amassed 188 disciplinary violations in his record at the time of summary judgment
proceedings. Defendants had ample reasons to believe that prison safety was a
particular concern in permitting Whitford’s attendance at out-of-cell events like
serving on the sweat lodge set-up crew.
The Clear Conduct Policy also satisfies the least restrictive means analysis in
this situation. Defendants did not show that they “actually considered and rejected
the efficacy of less restrictive measures before adopting the challenged practice.”
Shakur v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAKUEEYAPEE D. WHITFORD, No. 24-3177 D.C. No. Plaintiff - Appellant, 6:22-cv-00070-BMM-JTJ v. MEMORANDUM* JIM SALMONSEN; C. JOHNSON; BRIAN GOOTKIN,
Defendants - Appellees.
MAKUEEYAPEE D. WHITFORD, No. 24-3340 Plaintiff - Appellee, D.C. No. 6:22-cv-00070-BMM-JTJ v.
JIM SALMONSEN; BRIAN GOOTKIN,
Defendants - Appellants,
and
C. JOHNSON,
Defendant.
Appeal from the United States District Court for the District of Montana
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Brian M. Morris, Chief District Judge, Presiding
Argued and Submitted June 11, 2025 Portland, Oregon
Before: SCHROEDER, TALLMAN, and OWENS, Circuit Judges
Plaintiff Makueeyapee D. Whitford, a former inmate at Montana State Prison
(MSP),1 sues various officials at the Montana Department of Corrections (MDOC)
for violating his rights under the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). See 42 U.S.C. § 2000cc-1(a) et seq. Whitford is a member of the
Blackfeet Nation and practices the religion of his tribe. Whitford alleges that MSP’s
policy requiring inmates to have six months of infraction-free conduct (“Clear
Conduct Policy”) to participate in various activities illegally burdens his Native
American religious practices in violation of RLUIPA.
The district court granted summary judgment for Defendants, finding that the
Clear Conduct Policy did not substantially burden Whitford’s Native American
religious practices, or where it did, that the burden was justified by a compelling
governmental interest in maintaining prison security as applied to Whitford. As the
1 While this appeal was pending, Whitford was transferred to the custody of the New Jersey Department of Corrections pursuant to the terms of the states’ Interstate Corrections Compact (ICC) due to Whitford’s continuing behavior issues. See Dkt. 48. Whitford’s claims for injunctive relief under RLUIPA are not moot because under the terms of the ICC, Whitford remains subject to the jurisdiction of Montana, may be returned to Montana at any time, and must be returned before his release. See Johnson v. Moore, 948 F.2d 517, 519–20, 522 (9th Cir. 1991) (per curium); Mont. Code Ann. § 46-19-401(IV)(c), (g) (2023).
2 24-3177 parties are familiar with the facts, we do not recount them here. “We review a district
court’s rulings on summary judgment motions de novo.” Donell v. Kowell, 533 F.3d
762, 769 (9th Cir. 2008). We have jurisdiction, and we affirm. See 28 U.S.C.
§ 1291.
1. The Clear Conduct Policy does not substantially burden Whitford’s ability
to be elected pipe carrier. Under RLUIPA, Whitford bears the burden of making a
prima facie showing that the Clear Conduct Policy constitutes a substantial burden
on the exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994
(9th Cir. 2005). Whitford claims that the Clear Conduct Policy violates RLUIPA by
making him ineligible to be elected as a community pipe carrier. However, he points
to no evidence that the Clear Conduct Policy applies to his eligibility to be elected
pipe carrier by his fellow native religious practitioners. Whitford’s unsupported
assertion that he believes an unwritten rule makes him ineligible to be elected pipe
carrier is not enough to make out a prima facie case of substantial burden. See id. at
995 (“a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great
restriction or onus upon such exercise” (quoting San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)).
2. The application of the Clear Conduct Policy to Whitford’s ability to be
chosen as a sweat lodge set-up crew member is justified by a compelling
governmental interest in prison security served by the least restrictive means. The
3 24-3177 Clear Conduct Policy completely bars Whitford from being eligible to be chosen as
a sweat lodge set-up crew member for a six-month period, so Whitford makes a
prima facie showing of substantial burden. See Greene v. Solano Cnty. Jail, 513
F.3d 982, 988 (9th Cir. 2008) (“We have little difficulty in concluding that an
outright ban on a particular religious exercise is a substantial burden on that religious
exercise.”).
Once Whitford makes a prima facie showing that the Clear Conduct Policy
constitutes a substantial burden on his exercise of religion, the burden shifts to
Defendants to establish that the Policy furthers a compelling governmental interest
and is the least restrictive means of achieving that interest. See Johnson v. Baker,
23 F.4th 1209, 1214 (9th Cir. 2022). “[P]rison security is a compelling state interest”
in the RLUIPA analysis. Id. at 1217 (quoting Cutter v. Wilkinson, 544 U.S. 709,
725 n.13 (2005)). We do not “grant ‘unquestioning deference’ to the government’s
claim of a general security interest” justifying the challenged policy. Id. (quoting
Holt v. Hobbs, 574 U.S. 352, 364 (2015)). Rather, “RLUIPA . . . contemplates a
more focused inquiry and requires the Government to demonstrate that the
compelling interest test is satisfied through application of the challenged law to the
person—the particular claimant whose sincere exercise of religion is being
substantially burdened.” Holt, 574 U.S. at 362–63 (internal quotation marks and
citation omitted). Defendants make that showing here.
4 24-3177 Defendants satisfied their burden by submitting affidavits to the district court
explaining that out-of-cell activities, like sweat lodge set-up, are often used by
inmates to “pass contraband and unauthorized communications.” They also
submitted affidavits explaining staff members’ security concerns specifically related
to Whitford’s participation in out-of-cell events. Whitford is serving a 60-year
sentence for deliberate homicide and previously stabbed another inmate. Whitford
had also “made threats to stab or otherwise assault staff members” which staff
understandably found “concerning.” Staff members also knew that “Whitford was
convicted and sentenced for assaulting MSP staff with bodily fluids,” and “had
amassed disciplinary infractions for more than sixteen staff assaults, . . . more than
fifteen instances of threatening staff, two instances of conspiring or attempting to
assault staff, and two instances of possession of a weapon.” In all, Whitford had
amassed 188 disciplinary violations in his record at the time of summary judgment
proceedings. Defendants had ample reasons to believe that prison safety was a
particular concern in permitting Whitford’s attendance at out-of-cell events like
serving on the sweat lodge set-up crew.
The Clear Conduct Policy also satisfies the least restrictive means analysis in
this situation. Defendants did not show that they “actually considered and rejected
the efficacy of less restrictive measures before adopting the challenged practice.”
Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008)) (quoting Warsoldier, 418 F.3d
5 24-3177 at 996). However, they submitted affidavits explaining that MSP adopted the Clear
Conduct Policy “after inmates were assaulted, contraband was trafficked, sexual
assaults occurred, and gang members planned and conducted fights and assaults.
This behavior disrupted communal activities by insincere inmates. The heightened
restrictions were put in place to prevent a recurrence of these instances.” As the
district court found, this explanation “passes muster.” Thus, while the Clear
Conduct Policy did substantially burden Whitford’s ability to be selected as a
member of the sweat lodge set-up crew, it was justified by a compelling
governmental interest in prison security as applied to him and was the least
restrictive means of serving that interest, so it did not violate Whitford’s rights under
RLUIPA.
3. The Clear Conduct Policy did not substantially burden Whitford’s ability
to attend a powwow. Whitford does not make a prima facie showing of substantial
burden because, even liberally construing his pro se district court filings, Whitford’s
powwow claim is clearly related to his inability to attend a high-side powwow. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, there is currently no high-
side powwow scheduled, and it is unclear if and when one will occur. Whitford may
request a powwow on the high-side but has not done so since 2018. Thus, any
argument that Whitford and his fellow Native American religious practitioners will
be unable to attend a high-side powwow at some point in the future is completely
6 24-3177 speculative, so the Clear Conduct Policy did not violate Whitford’s right to attend a
powwow in violation of RLUIPA.
4. A compelling government interest in prison safety and security also
justified the Clear Conduct Policy’s application to drum group practice and is the
least restrictive means of serving that interest. Whitford makes a prima facie case
of substantial burden because the Clear Conduct Policy completely prohibits him
from participating in the drum group practice. See Greene, 513 F.3d at 988.
However, the burden is justified by a compelling governmental interest in prison
security as applied to Whitford. See Johnson, 23 F.4th at 1217; Holt, 574 U.S. at
363. Defendants provided affiant testimony regarding general security issues with
engaging in out-of-cell activities and legitimate specific concerns regarding inmate
and staff safety posed by Whitford based on his long history of violence. While the
affiants’ testimony did not specifically discuss their concerns regarding Whitford’s
attendance at drum group practice, it discusses their concerns with Whitford’s
attendance at out-of-cell religious activities center events and other special events,
and drum group practice falls into this category. Thus, Defendants met their burden
of establishing a compelling government interest in prison security as applied to
Whitford’s participation in drum group practice.
Defendants also show that this was the least restrictive means of achieving
this compelling governmental interest. Though Defendants did not show that they
7 24-3177 “actually considered and rejected the efficacy of less restrictive measures before
adopting the challenged practice,” they submitted affidavits explaining why the
Policy was adopted to address problems with inmate and staff assault, sexual assault,
contraband trafficking, and gang fights and assaults. Shakur, 514 F.3d at 890
(quoting Warsoldier, 418 F.3d at 996). This is sufficient to satisfy the least
restrictive means analysis. See Jones v. Slade, 23 F.4th 1124, 1141 (9th Cir. 2022)
(“[C]ourts should act with due deference to the experience and expertise of prison
and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs
and limited resources.” (internal quotation marks and citation omitted)). Summary
judgment was proper here.
AFFIRMED.
8 24-3177