Ralph Thomas v. Frank O. Gunter Karen Shortridge, Superintendent Robert Houston, Associate Superintendent

MELLOY, Chief District Judge,

dissenting.

As to parts, I, IV, and V of the court’s opinion, I concur.

As to parts II and III of the court’s opinion, I respectfully dissent. I would affirm the district court’s judgment.

In my view, the court’s opinion allows the appellant to raise an argument he never presented to the prison officials at the Omaha Correctional Center (the “OCC”), the magistrate judge, or the district court. Specifically, I find no support in the record for the appellant’s contention that he wanted to merely conduct half-hour, daily prayers in the sweat lodge. Instead, the record, shows that the appellant consistently and repeatedly requested that he be allowed to pray in the sweat lodge for four hours a day, five days a week.

In his initial grievance filed with the OCC, the appellant requested that Native Americans be given access to the sweat lodge “during the hours of 12:30 p.m.-4:30 p.m.” J.A. at 14. In response, the OCC stated that the “site and times selected have security related limitations.” Id. On May 24, 1989, appellant reiterated his “request that the hours of 12:30 through 4:30 p.m., Monday through Friday, be added to the times in which Native Americans are allowed at the Sweat Lodge, and that no further infringements be taken_” Id. at 16. In denying his grievance for a second time, the OCC *1263 stated that “[s]weatlodge use is not scheduled for short intervals following the noon meal, because sweatlodge ceremonies take longer than one half hour to prepare and complete.” 1 Id. Thus, from the OCC’s point of view, the appellant was clearly requesting access to the sweat lodge, aftér the noon meal, for four hours a day, five days a week. Based on this reasonable construction of the appellant’s grievance, the OCC officials properly denied the appellant’s request.

Dissatisfied with the OCC’s response, the appellant filed a complaint in federal court on August 6, 1990, alleging that he “was denied daily access to the Sweat Lodge between the requested hours of 12:30 p.m. to 4:30 p.m., Monday through Friday for the purpose of making prayers, making tobacco ties and placing tobacco ties as instructed by Native American Medicine_” Id. at 36. Appellant filed a second amended complaint on June 17, 1992, and although he dropped the “12:30 to 4:30” language, his second amended complaint made no reference to half-hour, daily prayers. Instead, his second amended complaint alleged that various officials at the OCC “infringed Plaintiffs right to the free exercise of religion, guaranteed by the First Amendment of the United States Constitution, by limiting the Plaintiffs access to the Center’s sweat lodge to morning hours on weekends and holidays.” 2 Id. at 48. Like his second amended complaint, the appellant’s third amended complaint generally alleged (without any mention of a half-hour, daily prayer) that various officials at the OCC were infringing upon his First Amendment rights.

The prison grievances, requesting daily access to the sweat lodge, were attached to the defendant’s motion for summary judgment. Plaintiffs resistance to the motion gave no indication that the plaintiff was requesting anything less than the full four hours required for a daily Sweat Lodge Ceremony. Plaintiffs affidavit, filed in support of the resistance, included the following statement: “(5) An integral part of the Sweat Lodge Ceremony is the offering of prayer to our Creator, and daily prayer is a-necessary and essential tenet of my religious beliefs.”

But perhaps the most telling sign that the appellant never raised the half-hour, daily prayer issue at the district court level lies in the magistrate judge’s report and recommendation, which recommended granting the ap-pellee’s motion for summary judgment, and the appellant’s response to that report and recommendation. At pages 27 and 28 of his report and recommendation, the magistrate judge states that:

Native Americans had more scheduled hours of worship than any other religious group at OCC. Plaintiff, however, alleges his constitutional rights were violated because he did not have daily access to the sweat lodge.

Defendants state the times scheduled for sweat lodge use “have security related limitations [and the limitation on sweat lodge use] is consistent with the type of considerations [given] to other -religious groups” within OCC (Exhibit H). Defendants, however, do not articulate these security-related limitations.

The record further shows Christians had access to the Chapel from 12:30 to 1:00 p.m. Monday through Thursday and on Sunday morning for one hour. Muslims had access Saturday through Thursday from 1:00 to 1:30 p.m. and on Fridays from 1:30 to 3:00 p.m. Defendants state sweat lodge use is not scheduled for half hour intervals following the noon meal because unlike Christian and Muslim services, *1264 “sweat lodge ceremonies take longer than one half hour to prepare and complete.” (Exhibit I). There is apparently a one half hour time limitation on services after the noon meal because inmates “are expected to be at work or at other scheduled programming” on weekdays (Exhibit I). Thus in addition to possible security concerns, the time limitations on sweat lodge access seem to be primarily related to the legitimate penological interests of institutional order and discipline. Sweat lodge ceremonies are simply too lengthy to be accommodated within the weekday work and programming schedules set up by OCC officials. A court should not mandate how experienced prison officials structure and schedule daily life at the prison. Allowing Native Americans to be in the sweat lodge for periods of time greater than the half hour allowed each day for chapel use by other inmates could create animosity among the inmates resulting in safety risks. It would also disrupt the scheduled programming within the institution.

J.A. at 133-34.

In his objections to the magistrate judge’s report and recommendation, the appellant generally asserted that the magistrate judge’s ruling on the sweat lodge issue was “based on erroneous findings” and that the magistrate judge did “not give [Thomas] the benefit of all factual inferences.” Id. at 138. Noticeably absent from the appellant’s statement of objections was any mention of a half-hour, daily prayer. Since the magistrate judge clearly referenced the need to limit afternoon daily prayer sessions to a half-hour, the appellant could have easily stated in his objections that he was merely seeking a half-hour prayer session.

Since the appellant did not raise the half-hour, daily prayer issue at either the prison grievance level or the district court level (after being afforded ample opportunities to do so), I am compelled to dissent and would affirm the district court’s grant of summary judgment on the constitutional issue. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 , 734 (8th Cir.1993); see also Williams v. Willits, 853 F.2d 586, 588 (8th Cir.1988) (district court was not required to “pretend that certain facts exist in order to foresee a theory of recovery not actually raised or reasonably inferred by the pleader.”); Hanson v. Town of Flower Mound, 679 F.2d 497, 504 (5th Cir.1982) (while complaints are to be liberally construed, “an attempt to amend one’s pleadings in an appellate brief comes too late.”)

I would also affirm the district court’s grant of summary judgment on the qualified immunity issue. Like the court, I agree that the right of free exercise of religion within a penal setting is a clearly recognized right. Unlike the court, however, I am unwilling to find that the OCC officials acted unreasonably in denying the appellant access to the sweat lodge on a daily basis. I have been unable to find any eases which hold that inmates must be given daily access to a special facility such as the sweat lodge. Furthermore, given the fact that the OCC constructed a sweat lodge — when at least one circuit court has held that a prison is under no constitutional obligation to even build one 3 — and given the fact the Native Americans already enjoy more scheduled services (anywhere from 6 hours to 8.5 hours to 18 hours depending on participation levels) than the Christians (3 hours a week — 9:00 to 10:00 a.m. on Sunday and 12:30 to 1:00 p.m. Monday through Thursday), the Muslims (5 hours a week — 1:00 to 1:30 p.m. everyday of the week and additionally from 1:30 to 3:00 p.m. on Friday afternoon), and the various other denominations, I cannot conclude that the OCC officials were unreasonably ignoring the religious rights of Native Americans. See Allen v. Toombs, 827 F.2d 563, 566 (9th Cir.1987) (inmates only entitled to a single, weekly sweat lodge ceremony). The OCC officials have taken necessary steps to ensure that the Native Americans are free to pursue their religion. Accordingly, I would affirm the district court’s grant of summary judgment in favor of the OCC officials on the qualified immunity issue.

. There is apparently a half-hour time limitation on services after the noon meal because inmates “are expected to be at work or at other scheduled programming” on weekdays. J.A. at 87.

. The sweat lodge was available for three-hour, sweat ceremonies on Saturday mornings, Sunday mornings, and holidays. It was available for longer periods of time on these days if participation levels were high enough. During the summer, the sweat lodge was also available on Wednesday evenings for a two and a half-hour sweat ceremony. Native Americans were also given access to a medicine man at least four times a year (more if the inmates themselves arranged any visits). And like all other religious denominations, Native Americans had access to the nondenominational, prison chapel on a daily basis. In comparison, the Christians were limited to three hours a week of “scheduled” services and the Muslims enjoyed five hours a week of "scheduled” services.

. Walker v. Celeste, 1992 WL 34387, * 1 , 1992 U.S.App. LEXIS 2821, * 3 (6th Cir.1992) (prison under no constitutional obligation to even build a sweat lodge).