FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       August 14, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOSEPH ANTHONY MCKINLEY,

             Plaintiff-Appellant,

v.                                                        No. 11-6263
                                                   (D.C. No. 5:11-CV-00051-D)
MITZI MADDOX;                                             (W.D. Okla.)
DARLENE ROBINSON,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.



      Joseph Anthony McKinley, an inmate in the custody of the Oklahoma

Department of Corrections (ODOC), appeals pro se the district court’s dismissal of

his 42 U.S.C. § 1983 civil rights action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
proceedings consistent with this order and judgment. We grant McKinley’s

application to proceed in forma pauperis (IFP) on appeal.

                                      Background

      McKinley filed a pro se civil rights complaint against Mitzi Maddox and

Darlene Robinson. He alleged that Maddox and Robinson are employees at the Enid

Community Corrections Center (ECCC), where McKinley was incarcerated

beginning on October 13, 2010. Robinson is a Case Manager, and Maddox is the

Case Manager Supervisor. McKinley alleged in his complaint that Maddox and

Robinson denied him his right to practice his religion and participate in offsite

religious activities from October 18 to November 22, 2010.

      McKinley claimed that on October 18, Maddox and Robinson informed him

that he was restricted from leaving ECCC, and therefore not permitted to participate

in any outside activities, because he was on Executive Review. Defendants told

McKinley that they needed to prepare a packet and submit it for approval before he

could go offsite. That same day, however, Maddox approved McKinley’s request to

go offsite to play piano at a banquet. On October 22, Maddox also allowed

McKinley to go shopping offsite. He alleged that each week thereafter he was again

permitted to participate in offsite shopping activities.

      On October 25, 2010, Maddox sent a memo to Reginald Hines, Deputy

Director of Community Corrections. Maddox’s memo referenced “Exception for

Executive Review,” and indicated that McKinley was serving a four-year sentence


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for drug trafficking. R. at 21. Maddox stated, “ECCC is requesting that

Mr. McKinley be allowed to attend church services, go on shopping trips, and be

placed on a [work] crew.” Id.

       McKinley alleged that he signed up at ECCC Central Control to go to an

offsite church service on October 31, 2010. He was permitted to leave ECCC, and he

proceeded to the church. But before the service began, an ECCC officer located him

at the church and brought him back to ECCC. McKinley alleged that, when he

returned, a lieutenant recited to him Maddox’s position regarding his restrictions and

referred him to a memo that Maddox had submitted to Central Control on October 20,

2010.  

       On November 15, 2010, McKinley submitted written Requests to Staff to

Maddox and Robinson, asking for copies of the documentation related to his

Executive Review. Maddox responded that the forms she had previously sent to

Hines had been re-transmitted to Hines’ office on November 16. She stated that she

would stay on top of the issue and try to get Hines’ approval that week.

       The next day, November 17, McKinley was selected to be on a work crew. He

again signed out of ECCC and was permitted to go offsite. On November 18,

McKinley spoke to Maddox about his Executive Review, disputing that he was

subject to such restrictions. He noted that, while he had not been allowed to go

offsite for religious activities, he had been permitted to go offsite for other activities.

That same day, McKinley submitted another Request to Staff to Maddox, challenging


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his placement on Executive Review. Maddox responded, “Mr. Hines has the

authority to review for extra privileges granted at community. Executive Reviews

are considered higher risk. I have no [written policies] to provide you.” Id. at 15.

      On November 22, 2010, Hines approved McKinley’s participation in offsite

activities, per Maddox’s October 25 memo. Robinson responded to McKinley’s

November 15 Request to Staff on November 29, indicating that she had given him a

copy of a written policy and talked to him extensively about Executive Review. She

noted, as well, that he had been approved for offsite activities.

      McKinley’s complaint referenced 42 U.S.C. § 1983 and explicitly alleged

violations of the First Amendment of the United States Constitution, the

religious-liberty and equal-protection provisions of the Oklahoma Constitution, the

Oklahoma Religious Freedom Act, and ODOC policies. Maddox and Robinson

moved to dismiss McKinley’s complaint, contending he had failed to exhaust his

administrative remedies. In a report and recommendation (R&R), a magistrate judge

concluded that defendants’ motion should be denied because McKinley had

exhausted his administrative remedies. But the magistrate judge recommended an

alternative basis for dismissal, concluding that McKinley’s complaint should be

dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) because he failed to allege a pervasive

violation of his right to freely exercise his religion, or facts demonstrating that

Maddox and Robinson personally participated in the alleged violation of his




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constitutional rights.1 The magistrate judge also recommended that the court decline

to exercise supplemental jurisdiction over McKinley’s state-law claims.

      McKinley filed objections to the magistrate judge’s R&R, asserting additional

factual allegations. He stated that he is a devout Baptist, elaborating that “it is a

necessary requirement [for him] to be under the guidance, training, counseling and

tutelage of a pastor/teacher. . . . Bible study and worship services are significant to

the growth of Plaintiff’s faith.” R. at 99-100. McKinley questioned the validity of

the Executive Review restrictions because Maddox allowed him to go offsite for

various non-religious activities before Hines finally approved him going offsite for

any purpose. He also alleged that Maddox was the employee at ECCC responsible

for coordinating religious services, but there were no religious services or activities

offered onsite at ECCC during the time that he was restricted from going to offsite

church services. McKinley claimed that he had talked to Robinson and Maddox

about the lack of religious services at ECCC. McKinley asserted that defendants

denied him his right to exercise his religious beliefs by precluding him from

attending offsite services for over one month, while failing to provide onsite church

services or allowing faith-based volunteers onsite during that time period.

      McKinley also claimed that the only offenders at ECCC who were restricted

from attending offsite church services were those who had been convicted of drug


1
      The provisions of 28 U.S.C. § 1915 govern IFP proceedings in federal courts.
As he does in this appeal, McKinley proceeded IFP in the district court.


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trafficking. He referenced ECCC’s Steps Program under which offenders are not

permitted to attend worship services outside of ECCC until they have reached Step

2.2 McKinley asserted that, under the Executive Review restrictions, he remained

precluded from attending offsite church services even after reaching Step 2.

       The district court reviewed the magistrate judge’s R&R de novo. In addition

to the allegations in his complaint, the court also considered McKinley’s

supplemental factual allegations in his objections to the R&R. Citing Gallagher v.

Shelton, 

 (10th Cir. 2009), the court held “that a one-month delay in

obtaining approval of Plaintiff’s request to attend religious services does not amount

to a First Amendment violation.” R. at 108. The court determined that McKinley

had not shown a substantial burden on his religious beliefs based on the temporary

delay in attending offsite church services while his administrative request was being

processed. Furthermore, although McKinley characterized the defendants’ actions as

restricting a constitutional right, the court noted that the “right” to attend religious

services outside of the ECCC was based on the facility’s Steps Program under which

offenders earned such privileges, and that “[a]ny contention that these rules [under

that program] are invalid as not reasonably related to legitimate penological interests

is untenable.” R. at 109 (quotations omitted). The district court adopted the




2
      McKinley had previously attached a copy of the policy describing the Steps
Program to his opposition to the defendants’ motion to dismiss.


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magistrate judge’s R&R and dismissed McKinley’s complaint for failure to state a

claim upon which relief can be granted.

                                 Standard of Review
      “We review de novo the district court’s decision to dismiss an IFP complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis,

, 1217 (10th Cir. 2007). “We apply the same standard of review for

dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil

Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Id. Thus, “we

look to the specific allegations in the complaint to determine whether they plausibly

support a legal claim for relief,” and “factual allegations in a complaint must be

enough to raise a right to relief above the speculative level.” Id. at 1218 (quotations

and brackets omitted). “In determining whether a dismissal is proper, we must accept

the allegations of the complaint as true and construe those allegations, and any

reasonable inferences that might be drawn from them, in the light most favorable to

the plaintiff.” Id. at 1217 (quotation omitted). In addition, “we must construe a pro

se appellant’s complaint liberally.” Id. at 1218 (quotation omitted).

                                      Discussion

      On appeal, McKinley contends that the district court erred in dismissing his

action because his complaint states claims for relief under the First and Fourteenth

Amendments and the Equal Protection Clause, as well as the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1. Because the district


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court addressed only whether McKinley’s complaint stated a First-Amendment

free-exercise claim, we address that claim first.

      “Under the First and Fourteenth Amendments, inmates are entitled to the

reasonable opportunity to pursue their sincerely-held religious beliefs. What

constitutes a ‘reasonable opportunity’ is determined in reference to legitimate

penological objectives.” Gallagher, 587 F.3d at 1069 (citation omitted). In order to

state a constitutional violation based on a free-exercise claim, a prisoner must allege

that defendants “substantially burdened his sincerely-held religious beliefs.” Id.

(quotation and brackets omitted). And he “must assert conscious or intentional

interference with his free exercise rights to state a valid claim under § 1983.” Id. at

1070 (quotation omitted). If the prisoner satisfies this initial step, defendants “may

identify the legitimate penological interests that justified the impinging conduct,” and

“[t]he burden then returns to the prisoner to show that these articulated concerns were

irrational.” Kay, 500 F.3d at 1218 & n.2 (quotations and brackets omitted). The

court then balances factors set forth by the Supreme Court “to determine the

reasonableness of the regulation.” Id. at 1219 (listing the relevant factors).3

      Relying on Gallagher, the district court dismissed McKinley’s claim at the

initial step, holding that he failed to allege facts demonstrating a substantial burden

on the exercise of his sincerely-held religious beliefs. In Gallagher, the prisoner
3
       A prisoner asserting a § 1983 claim must also allege facts showing personal
participation by the defendants in the constitutional violation. See Gallagher,
587 F.3d at 1069.


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alleged that two of his requests for special food on religious holidays were not

approved by the defendants until after those holidays had passed, and on one

occasion he was served food that was not prepared according to kosher requirements.

587 F.3d at 1070. We held that the “defendants’ actions were, at most, isolated acts

of negligence, not pervasive violations of [the prisoner’s] right to free exercise of

religion.” Id. We therefore affirmed the district court’s dismissal of the prisoner’s

claims because he failed to allege a substantial burden on the exercise of his religious

beliefs. Id. at 1070-71. Citing Gallagher, the district court reasoned that McKinley

had not alleged a substantial burden on the exercise of his religious beliefs based on

the temporary delay in being permitted to attend offsite church services while his

administrative request was being processed. We conclude that the district court

construed too narrowly the facts alleged by McKinley. Properly construed,

Gallagher is distinguishable.

      First, McKinley alleged more than “acts of negligence.” Id. at 1070. If his

only allegation were that defendants negligently delayed the approval of his request

for religious accommodation, his claim would indeed be subject to dismissal under

Gallagher. But McKinley alleged that Maddox intentionally prevented him from

attending offsite religious services under the guise of Executive Review restrictions

when she had the authority to override those restrictions based on her granting

McKinley permission to go offsite from ECCC for non-religious purposes.

Moreover, McKinley alleges that Maddox was the employee at ECCC responsible for


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coordinating religious services, yet she failed to provide alternative, onsite religious

services during the time that she precluded him from attending offsite services.

      Second, McKinley did not allege only “isolated acts.” Id. In Gallagher, only

“a few” of the prisoner’s requests for special food on religious holidays were not

timely approved, and he alleged only a single violation of his kosher diet. Id. We

recently addressed a “de minimus burden” on religious exercise in Abdulhaseeb v.

Calbone, 

, 1321 (10th Cir. 2010) (quotation omitted). In that case, we

initially defined “substantial burden”; as relevant here, a substantial burden exists

“when a government . . . prevents participation in conduct motivated by a sincerely

held religious belief.” Id. at 1315.4 We then emphasized “that [not] every

infringement on a religious exercise will constitute a substantial burden.” Id. at

1316. In Abdulhaseeb, a prisoner claimed that on one occasion he was forced to

accept foods on his meal tray that were impermissible under his Islamic diet. Id. at

1321. We affirmed summary judgment for the defendants on the prisoner’s claim,

stating, “We are not willing to conclude . . . that every single presentation of a meal

an inmate considers impermissible constitutes a substantial burden on an inmate’s

religious exercise.” Id.
4
       We set forth this definition of “substantial burden” in Abdulhaseeb as that term
is used in RLUIPA. See 600 F.3d at 1315; 42 U.S.C. § 2000cc-1(a). But we noted
that Congress intended “substantial burden” under RLUIPA to be interpreted
consistent with “the Supreme Court’s articulation of the concept of substantial
burden on religious exercise.” 600 F.3d at 1315 (quotation and brackets omitted).
Therefore, our discussion of substantial burden in Abdulhaseeb applies as well to a
First-Amendment free-exercise claim.


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      Here, unlike in Gallagher or Abdulhaseeb, McKinley alleges more than an

isolated or de minimus burden on his exercise of his sincerely-held religious beliefs:

he claims he was intentionally denied the right to attend all church services, either

offsite or onsite at ECCC, for a month. Defendants do not point us to any case law

holding that such a burden on religious exercise is insubstantial. Thus, we hold that

the district court erred in dismissing McKinley’s First-Amendment free-exercise

claim, and we remand to the district court for further proceedings. We express no

view on whether McKinley can meet the other requirements for a claim for relief,

including allegations of facts showing each defendant’s personal participation in the

constitutional violation. See Gallagher, 587 F.3d at 1069.

      McKinley also contends that his complaint states claims for relief under

RLUIPA and the Equal Protection Clause. The district court did not address the

sufficiency of his complaint with respect to these claims. Defendants emphasize that

McKinley did not cite either RLUIPA or the federal Equal Protection Clause in his

complaint. In light of our remand, we leave it to the district court to determine in the

first instance if the factual allegations in McKinley’s pro se complaint “plausibly

support a legal claim for relief” under RLUIPA or the Equal Protection Clause, Kay,

500 F.3d at 1218 (quotation omitted), and whether McKinley should be granted an

opportunity to amend his complaint to avoid dismissal, see id at 1217 (holding

dismissal of a pro se complaint under § 1915(e)(2)(B)(ii) is proper only if “it would

be futile to give [the plaintiff] an opportunity to amend”).


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      The judgment of the district court is REVERSED AND REMANDED for

further proceedings consistent with this order and judgment. McKinley’s application

to proceed IFP on appeal is GRANTED.



                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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