ALD-262                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 20-2077
                                       ___________

                                   LEROY SHELLEY,
                                              Appellant

                                             v.

    WARDEN DANA METZGER; RANDALL DOTSON, RHU Manager/disciplinary
          appeals Officer; CORPORAL FIGEROA, Correctional Officer
                   ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                         (D.C. Civil Action No.1- 20-cv-00028)
                     District Judge: Honorable Richard G. Andrews
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 23, 2020
              Before: MCKEE, SHWARTZ and PHIPPS, Circuit Judges

                            (Opinion filed: October 15, 2020)
                                       _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

         LeRoy Shelley appeals the District Court’s order denying his request for

injunctive relief and dismissing his complaint for failure to state a claim. For the reasons

below, we will summarily affirm the District Court’s order.

         Shelley, a Delaware prisoner, filed a civil rights complaint and a motion for

injunctive relief. He alleged in his complaint that while he was in the SHU (Security

Housing Unit), a religious calendar and his television were taken from him due to a

privilege policy known as the “quality of life” rules. He filed a grievance requesting an

explanation but received no response. He also received a disciplinary sanction of a loss

of privileges for five days for possessing the television.

         After screening the complaint before service, the District Court dismissed the

complaint as frivolous and for failure to state a claim but gave Shelley leave to amend his

First Amendment religion claim and his RLUIPA (Religious Land Use and

Institutionalized Persons Act) claim. The District Court determined that amendment

would be futile with respect to Shelley’s other claims. The District Court also denied his

request for injunctive relief, determining that Shelley could not show a likelihood of

success on the merit of his claims because the complaint failed to state a claim and there

was no evidence to support the motion. Shelley filed a notice of appeal. He also filed an

amended complaint and motion for injunctive relief which are pending before the District

Court.

         Before addressing the merits of Shelley’s appeal, we address its scope. As noted

above, the District Court dismissed Shelley’s complaint but gave him leave to amend two

                                               2
claims. Where a District Court has dismissed a proceeding without prejudice, the

dismissal is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot

cure the defect or the litigant declares an intention to stand on his pleading, whereupon

the District Court’s order becomes final. Borelli v. City of Reading, 

, 951-

52 (3d Cir. 1976) (per curiam); see also Weber v. McGrogan, 

, 240 (3d Cir.

2019). Here, Shelley is not standing on his original complaint as he has filed an amended

complaint. Thus, the scope of the appeal does not include the portion of the order

dismissing Shelley’s complaint.

       We do, however, have jurisdiction over the portion of the order denying Shelley’s

request for a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). We review the

denial of a motion for a preliminary injunction for an abuse of discretion but review the

District Court’s underlying legal conclusions de novo. Brown v. City of Pittsburgh, 

, 268 (3d Cir. 2009). To obtain injunctive relief, a party must show a likelihood

of success on the merits, irreparable harm if the injunction is not granted, that relief will

not cause greater harm to the nonmoving party, and that relief is in the public interest.

Miller v. Mitchell, 

, 147 (3d Cir. 2010). The third and fourth factors merge

when the Government is the opposing party. Nken v. Holder, 

, 435 (2009).

       In his motion for injunctive relief, Shelley alleged that his religious items and

personal property had been confiscated pursuant to an unwritten policy. He contended

that he had been denied religious services in the SHU. He requested the return of

televisions, radios, and religious articles to inmates in the SHU and for inmates to be

allowed to either attend religious services or have their televisions returned so they can

                                              3
view institutional programming.1 In his complaint, he also asked that the prison be

prohibited from confiscating property that is not contraband and punishing inmates

without giving them notice of the rules. He also asked that one of the defendants be

referred to authorities for criminal prosecution.

       Shelley has not shown a likelihood of success on the merits of his First

Amendment claims. In the prison context, a central First Amendment inquiry is “whether

the inmate has alternative means of practicing his or her religion generally, not whether

the inmate has alternative means of engaging in any particular practice.” Fraise v.

Terhune, 

, 518 (3d Cir. 2002) (quoting Dehart v. Horn, 

, 52 (3d

Cir. 2000) (quotations omitted)). And as we have previously observed, “[i]t is obviously

impossible to determine whether a regulation leaves an inmate with alternative ways of

practicing the inmate’s religion without identifying the religion’s practices.”

While Shelley’s filings make clear that his religious calendar was confiscated and that he

could not attend religious services, they do not define the scope of his religious practices

in a way that plausibly alleges that he lacks any alternative means of practicing his

religion.

       Compared to the First Amendment, RLUIPA tends to provide a greater level of

protection for a prisoner’s religious liberty. Under RLUIPA, “[n]o government shall

impose a substantial burden on the religious exercise of a person residing in or confined


1
 Because Shelley, as a layperson, cannot represent the interests of others, we will
consider the request for injunctive relief as filed only on his behalf. See Osei-Afriyie v.
Med. Coll. of Pa., 

, 882-83 (3d Cir. 1991) (non-attorney may not represent
other parties).
                                              4
to an institution . . . even if the burden results from a rule of general applicability unless

the government demonstrates” that the burden is “in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that . . . interest.”

42 U.S.C. § 2000cc-1(a). To evaluate a whether a burden on an inmate’s religious

exercise is substantial, this Circuit has adopted a disjunctive test:

       For the purposes of RLUIPA, a substantial burden exists where: 1) a
       follower is forced to choose between following the precepts of his religion
       and forfeiting benefits otherwise generally available to other inmates versus
       abandoning one of the precepts of his religion in order to receive a benefit;
       OR 2) the government puts substantial pressure on an adherent to
       substantially modify his behavior and to violate his beliefs.

Washington v. Klem, 

, 280 (3d Cir. 2007).

       From his initial filings, Shelley has not shown a likelihood of success on the

merits of his RLUIPA claims because he does not plausibly allege a substantial burden on

his religious exercise. Under the first alternative, Shelley does not assert that he faces a

forced choice between a generally available benefit and the exercise of his religion. And

Shelley’s allegations are insufficient to satisfy the second alternative because they do not

demonstrate that he was pressured to substantially modify his behavior and violate his

beliefs. Shelley seems to recognize as much, and he provides additional allegations in his

amended complaint and subsequent motion, which are not presently on appeal.

       As for his request for injunctive relief related to the confiscation of property,

Shelley also cannot show a likelihood of success. See Hudson v. Palmer, 

,

533 (1984) (post-deprivation remedies provide sufficient due process for deprivations of

property). Shelley is not entitled to relief regarding the disciplinary charges, as the loss


                                               5
of five days of privileges as a disciplinary sanction does not trigger due process

protections. Sandin v. Conner, 

, 483-84 (1995). Finally, with respect to

Shelley’s request that a defendant be referred for criminal charges, an individual has no

federal right to require the government to initiate criminal proceedings. See Linda R.S. v.

Richard D., 

, 619 (1973); see also United States v. Berrigan, 

,

173-74 (3d Cir. 1973) (Government is permitted some selectivity in its enforcement of

criminal laws).

       The District Court did not abuse its discretion in denying Shelley’s motion for

injunctive relief. Summary action is appropriate if there is no substantial question

presented in the appeal. See 3d Cir. LAR 27.4. For the reasons set forth above, we will

summarily affirm the portion of the District Court’s April 28, 2020 order denying

Shelley’s motion for injunctive relief. See 3d Cir. I.O.P. 10.6.




                                             6