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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Raymond Leahy v. John Conant and James Duncan (8/16/2019) sp-7399

Raymond Leahy v. John Conant and James Duncan (8/16/2019) sp-7399

          Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



RAYMOND  LEAHY,                                                  )  

                                                                 )     Supreme  Court  No.  S-16866  

                              Appellant,                         )  

                                                                                                      

                                                                 )     Superior Court No. 3AN-14-11007CI  

          v.	                                                    )  

                                                                 )                         

                                                                       O P I N I O N  

                                                

JOHN CONANT and JAMES DUNCAN, )  

                                                                 )                                          

                                                                       No. 7399 - August  16, 2019  

                              Appellees.	                        )
  

                                                                 )
  



                                                                                                        

                    Appeal from the Superior Court of the State of Alaska, Third  

                                                                                             

                    Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                                  

                    Appearances:  Raymond Leahy, pro se, Wasilla, Appellant.  

                                                                                                           

                    Mary B. Pinkel, Assistant Attorney General, Anchorage, and  

                                                                                                

                    Jahna Lindemuth, Attorney General, Juneau, for Appellees.  



                                                                                                          

                    Before:         Bolger,  Chief  Justice,  Stowers,  Maassen,  and  

                                                                                  

                    Carney, Justices. [Winfree, Justice, not participating.]  



                                       

                    CARNEY, Justice.  



I.        INTRODUCTION  



                                                                                                                         

                    An inmate representing himself sued the prison superintendent and chaplain  



                                                                                                                         

for violating his religious rights by providing an inadequate halal diet, banning scented  



                                                                                                                                

prayer oils, and not allowing him to have additional religious texts in his cell beyond the  



                                                                                                                                

prison's limit. He claimed these actions violated the Equal Protection Clause of both the  



                                                                                                                                

Alaska Constitution and the federal Constitution, and the federal Religious Land Use and  



                                                                                                                                

Institutionalized Persons Act (RLUIPA).  The inmate also sought reimbursement for  


----------------------- Page 2-----------------------

 scented   oils   that   the   prison   had   destroyed.     The   superior   court   granted   the   prison  



 officials' motion for summary judgment and dismissed all of the inmate's claims.                                                                                                                                                                    



                                             We reverse summary judgment on the inmate's RLUIPA claim regarding                                                                                                                                              



 the halal diet because the inmate did not receive adequate guidance on how to file                                                                                                                                                                                              



 affidavits   in   opposition   to   the   summary   judgment   motion.     We   reverse   summary  



judgment on the RLUIPA claimregarding scented oils because the prison officials failed                                                                                                                                                                                     



 to satisfy their burden of proving that banning such oils was the least restrictive means                                                                                                                                                                              



 to address their substantial interest in maintaining prison security and health. We affirm                                                                                                                                                                              



 the dismissal of the inmate's claims regarding the religious book limit because the issue                                                                                                                                                                                   

 is not yet ripe.                                 And we vacate the award of attorney's fees and costs.                                                                                                                              1  



 II.                   FACTS AND PROCEEDINGS  

                                                                        



                                             Raymond Leahy is a Muslim inmate at Goose Creek Correctional Center  

                                                                                                                                                                                                                            



 (Goose Creek) in Wasilla.  He observes Islam's dietary restrictions (called "halal") and  

                                                                                                                                                                                                                                                                                 



 incorporates scented prayer oils in his daily prayers.  To further his religious studies he  

                                                                                                                                                                                                                                                                                     



 requested additional religious texts above the number generally allowed per inmate.  

                                                                                                                                                                                                                                                                                        



                                             Leahy first requested a diet that included halal or kosher meat in April  

                                                                                                                                                                                                                                                                           

 2013.2                     Leahy had been receiving a vegetarian diet, but asserted that it caused him  

                                                                                                                                                                                                                                                                               



 gastrointestinal distress. Goose Creek served vegan or vegetarian meals to both Muslim  

                                                                                                                                                                                                                                                                    



 and Jewish inmates due to the expense and challenges of providing a halal or kosher  

                                                                                                                                                                                                                                                                      

 diet.3  

                      



                       1                     Because we reverse summary judgment on other grounds, we need not                                                                                                                                                                    



 reach the inmate's constitutional claims.                                                                    



                       2                     Leahy proposed that Goose Creek provide kosher meats as an acceptable  

                                                                                                                                                                                                                                                

 alternative to halal meats.  

                                                                                       



                       3                     According to Goose Creek's superintendent, the kosher diet with meat cost  

                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                           -2-                                                                                                                               7399
  


----------------------- Page 3-----------------------

                                                   Leahy claims to have used scented oils in his daily prayers until April 2014.                                                                                                                                                                                                            



He asserts that unscented prayer oil does not serve his religious needs because the scent                                                                                                                                                                                                                             



is an important component of his prayers.                                                                                                                                But in April 2014 Goose Creek banned                                                                                                



scented prayer oils following documented health concerns.                                                                                                                                                                             Leahy objected to the ban  



and requested that his oils be stored until his objections were resolved, but Goose Creek                                                                                                                                                                                                                          



disposed of them in December.                                                                                            The disposed oils cost Leahy a total of $65.70.                                                                                                                                        



                                                   In April and May of 2014, respectively, Leahy filed grievances after his                                                                                                                                                                                                   



requests for a halal meat diet and an exception to Goose Creek's ban on scented prayer                                                                                                                                                                                                                           



oils were denied. After the grievances were denied, he submitted administrative appeals                                                                                                                                                                                                                       



which were also denied.                                                                        



                         A.                        The First Complaint                     



                                                   After he was unable to convince Goose Creek to grant him access to halal                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                                                          4  

meat or scented oils, Leahy filed a complaint in superior court in December 2014                                                                                                                                                                                                                                              for  



                                                                                                                                                                                                                                                                                                                

declaratory judgment, injunctive relief, and damages against John Conant, the Goose  



                                                                                                                                                                                                                                                                                                     

Creek superintendent, and James Duncan, the Department of Corrections' statewide  



                                                                                                                                                                                                                                                                                                                    

Chaplaincy Coordinator (the officials). Leahy argued that they violated his rights under  



                                                                                                                                                                                                                                                                                                               

RLUIPA by placing a substantial burden on his religious exercise by denying his request  

                                                                                                                                                                                                     5  and that the officials' actions also  

                                                                                                                                                                                                                                                                                                                          

for a halal meat diet and banning scented prayer oil, 



                         3                         (...continued)  



                                                                                                                                                                                                                                                                                                    

$8,551.95 per inmate per year, compared to $1,478.25 for the standard diet.  



                          4                        Leahy signed and mailed his first complaint to the court on August 26,                                                                                                                                                                                                    



2014, before the halal meals began including meat.  But his complaint was not logged                                                                                                                                     

as filed by the court until December 1, 2014.  

                                                                                                                                                                             



                          5                        See 42 U.S.C.  2000cc-1(a) (2012).  

                                                                                                                                                                  



                                                                                                                                                                -3-                                                                                                                                                     7399
  


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                                                                                                  6  

violated article I, sections 1 and 4 of the Alaska Constitution.                                     



                                                                                                                                     

                      Goose Creek began serving halal/kosher meat meals at about the same time  



                                                                                                                                   

that Leahy filed his complaint.  But Leahy objected to the quality and nutritional value  



                                                                                                                                    

of the meals.  Leahy claimed that around the same time, Goose Creek introduced pork  



                                                                                                                            

for the first time into its kitchen.  Islamic law considers pork to be "haram" or unlawful;  



                                                                                                                                       

Leahy was concerned that his meals were being contaminated by their preparation in the  



                        

same kitchen.  



                                           

           B.         The Second Complaint  



                                                                                                                              

                     A month after filing his first complaint Leahy filed a second one, asserting  



                                                                                                                                  

that his religious rights were being violated by Goose Creek's limit on religious books  



                                                                                                                                        

and its ban and disposal of scented prayer oils he had already received approval to  



                                                                                                                                        

purchase. He argued that, despite Goose Creek's limit of 11 publications per inmate, he  



                                                                                                                                             

should be allowed to possess ten religious books and ten religious magazines in his cell.  



                                                                                                                                       

                     In September 2015 Conant granted Leahy an exception to the scented oil  



                                                                                                                                       

ban, allowing him to store scented prayer oils in the chaplain's closet and check them out  



                                                                                                                                        

for prayers in his cell.  But in July 2016, after reports of allergic reactions to the oils by  



                                                                                                                                  

inmates and staff, Conant reinstated the total ban against scented oils.   Goose Creek  



                                                                                                                                         

continues to allow the use of unscented prayer oils; the oils are stored and used only in  



                   

the chapel.  



                                        

           C.         Summary Judgment  



                                                                                                                                  

                     The officials moved for summary judgment, arguing that neither the Goose  



                                                                                                                                 

Creek halal diet nor the prayer oil policy violated RLUIPA, that the diet did not violate  



                                                                                                                                   

Leahy's equal protection rights, and that the book limitation policy did not violate either  



                                                                         

RLUIPA or Leahy's equal protection rights.  



           6         See  Alaska  Const.  art.  I,     1  (inherent  rights),  4  (freedom  of  religion).  



                                                                   -4-                                                                 7399  


----------------------- Page 5-----------------------

                                                                                                                               

                    Leahy filed an opposition to summary judgment the same month.   He  



                                                                                                                       

asserted that he had never previously been informed of Goose Creek's policy allowing  



                                                                                                                      

inmates only five books, five magazines, and one religious text in their cells or that he  



                                                                                                                      

needed to fill out a Religious Accommodation Request Form if he wanted an exception  



                                                                                                                         

from the policy. Leahy also asserted that he would not fill out the required form because  



                                                                                                                             

he wanted a "fluid" book list that was not determined by the officials' judgment of what  



                                                                                                                          

was religiously appropriate. In response to the officials' argument that they were entitled  



                                                                                                                               

to summary judgment with regard to the ban on scented prayer oils, Leahy proposed less  



                                                                                                                                 

restrictive alternatives.   He suggested permitting only "milder" scents less likely to  



                                                                                                                                 

irritate others, allowing only one ounce to be stored in an inmate's cell, or having all  



                                                                                                                                      

scented  oils  stored  in  the  chaplain's  office  and  checked  out  for  use  in  the  chapel.  



                                                                                                                             

Regarding the halal diet, Leahy disagreed with the facts as the officials presented them  



                                                                                                                                  

and argued that the halal diet rarely had meat, that fruit was unnecessarily exposed to  



                                                                                                                           

potential contamination, and that the actual menu differed from that on which Goose  



                                                                                                                                

Creek  based  its  nutritional  claims.                    Leahy  did  not  submit  any  affidavits  with  his  



                   

opposition.  



                                                                                                                              

                    The officials replied to Leahy's opposition. Leahy filed a response to their  



                                                                                                                                

reply.  The officials moved to strike the response because it was not permitted by the  



                                                                                                                               

rules  of civil procedure; the court granted the motion.                                 The court also  granted  the  



                                                                                                                           

officials' motion for summary judgment and dismissed the case with prejudice.  



                                                                                                                                      

                    Leahy then filed a motion to reconsider the grant of summary judgment.  



                                                                                                                         

In his motion he included new facts concerning another religious group's use of scented  



                                                                                                                             

prayer oils at Goose Creek.  The officials moved for entry of final judgment.  The court  



                                                                                                                                      

denied Leahy's motion to reconsider and entered final judgment in favor of the officials.  



                                                                                                                         

The court's order stated that "the claims have either been agreed to be moot or [Leahy]  



                                                                                                                                 

did  not  raise  genuine  disputes  of  material  facts  and  [the  officials  were]  entitled  to  



                                                                -5-                                                         7399
  


----------------------- Page 6-----------------------

judgment as a matter of law."                                  The court also noted that Leahy's attempt to present new                                                      



 evidence in his motion to reconsider was not appropriate. Following the superior court's                                                                              



 final   judgment   Goose   Creek   paid   Leahy   $65.70   for   the   prayer   oils   which   it   had  



 destroyed.   



                            Leahy appeals.   



 III.          STANDARD OF REVIEW                     



                            "We review for abuse of discretion 'decisions about guidance to a pro se                          



                       7 

                    "                                                                                                                                                             

 litigant.'                  Abuse  of  discretion  is  found  "  'when  a  party  has  been  deprived  of  a  



                                                                                                                                                                             

 substantial right or seriously prejudiced by the [trial] court's ruling.'  We consider 'the  



                                                                                                                                                                              

particular facts and circumstances of each individual case to determine whether the  



                                                                                                                                                                                   8  

                                                                                                                                                                                       

                                                                                                                                                                                  

 denial was so unreasonable or so prejudicial as to amount to an abuse of discretion.' " 



                                                                                                                                                                                  

We hold self-represented litigants to a "less stringent" standard than lawyers; so long as  



                                                                                                                                                                               

the essence of the self-represented litigant's argument can be easily discerned from the  



                                                                                                                                                                       

briefing, and the opposing party would not be prejudiced by its consideration, it should  



                               9  

       

be considered. 

                            "We review a grant of summary judgment de novo"10  and "view the facts  

                                                                                                                                                                            

 in the light most favorable to the non-moving party."11                                                                    "Questions of ripeness are  

                                                                                                                                                                              



              7              Greenway   v.   Heathcott,   294   P.3d   1056,   1062   (Alaska   2013)   (quoting  



Shooshanian v. Dire                         , 237 P.3d 618, 622 (Alaska 2010)).                         



              8             Id. (first quoting Azimi v. Johns , 254 P.3d 1054, 1059 (Alaska 2011); then  

                                                                                                                                                                             

 quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 183 (Alaska 2009)).  

                                                                                                                                                    



              9             Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009).  

                                                                                                                                  



               10           Stavenjord v. Schmidt, 344 P.3d 826, 830 (Alaska 2015).  

                                                                                                                                      



               11            Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (quoting  

                                                                                                                                                                    

McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002)).  

                                                                                                                                  



                                                                                        -6-                                                                                7399
  


----------------------- Page 7-----------------------

reviewed de novo."            12  



IV.	      DISCUSSION  



                    Leahy argues that the superior  court abused  its discretion  by  granting  

                                                                                                                       



summary judgment to the officials without first providing him necessary guidance about  

                                                                                                                            



how to present facts in support of his claims.  He argues that it also abused its discretion  

                                                                                                                     



by not adequately considering the facts that he did present.   We agree he received  

                                                                                                                      



insufficient guidance on how to file affidavits in support of his opposition to summary  

                                                                                                                      



judgment and we therefore reverse summary judgment on his RLUIPA claim regarding  

                                                                                                                     



an inadequate halal diet.  We also reverse summary judgment on his RLUIPA claim  

                                                                                                                           



regarding the ban on scented prayer oils because the officials did not demonstrate that  

                                                                            



a complete ban on such oils was the least restrictive means of achieving Goose Creek's  

                                                                                                                        



security and safety interests.  We affirm the dismissal of Leahy's claims regarding the  

                                                                                                                               



limit on religious books because it is not ripe.  

                                                               



          A.	       Leahy Received Insufficient Guidance From The Superior Court On  

                                                                                                                               

                    Filing Affidavits.  

                                



                     Self-represented litigants are given "considerable leeway" when following  

                                                                                                                     

procedural requirements.13                 " '[T]he trial judge should inform a pro se litigant of the  

                                                                                                                               



proper procedure for the action he or she is obviously attempting to accomplish.'  But  

                                                                



judges must be careful to maintain their impartiality; they therefore may not act as  

                                                                                                                                

advocates  for  pro  se  litigants  on  substantive  legal  issues."14                              What  the  litigant  is  

                                                                                                                                



attempting to accomplish must be obvious. Judges have a heightened duty to advise self- 

                                                                                                                             



          12        RBG  Bush  Planes,  LLC  v.  Kirk,  340  P.3d   1056,   1060  (Alaska  2015).  



          13         Greenway  v.  Heathcott,  294  P.3d   1056,   1071  (Alaska  2013).  



          14        Rae  v.  State,  Dep't  of   Corr.,  407  P.3d  474,  479   (Alaska  2017)   (quoting  



Breck  v.   Ulmer,  745  P.2d  66,  75  (Alaska   1987)  (internal  citation  omitted)).  



                                                                -7-	                                                       7399
  


----------------------- Page 8-----------------------

represented litigants of the importance of submitting affidavits or other evidence to                                                        



                                                                                             15  

preclude summary judgment, due to its consequences.                                                                                    

                                                                                                   In determining how much  



                                                                                                                                        

guidance the court should provide, we have noted the even greater disadvantage faced  



                                                                                           16  

                                                                      

by self-represented litigants who are also incarcerated. 



                       The superior court should have advised Leahy that he needed to submit  

                                                                                                                                     

affidavits when he opposed the officials' summary judgment motion.17  Although Leahy  

                                                                                                                                      



filed an opposition to summary judgment, it did not satisfy Alaska Civil Rule 56(c)'s  

                                                                                                                                    



requirement             for     supporting            materials          -      including           depositions,           answers          to  

                                                                                                                                           

interrogatories, or affidavits - to show a "genuine issue as to any material fact."18   His  

                                                                                                                                           



need for procedural guidance was made more apparent when he filed a response to the  

                                                                                                                                           



officials' reply and further when he attempted to introduce new evidence in a motion for  

                                                                                                                                            



reconsideration.  

                              



                      Leahy's response put the superior court on notice of his "obvious attempt"  

                                                                                                                                  

                                                   19   He detailed his attempts to obtain affidavits and other  

to obtain supporting materials.                                                                                                         

                                    



documentary  evidence  from Goose  Creek's  food  service  manager  and  its  nutrition  

                                                                                                                                 



            15        See   Breck,   745   P.2d   at   75   (finding   judge   should   have   informed   self- 



represented  litigant   "of   the   necessity   of   submitting   affidavits   to   preclude   summary  

judgment").  



            16        See Bauman v. State, Div. of Family &Youth Servs., 768 P.2d 1097, 1098- 

                                                                                                                                       

99 (Alaska 1989).  

                    



            17        See Breck, 745 P.2d at 75 (finding error, although harmless, where judge  

                                                                                                                                       

 should have informed self-represented litigant).  

                                                                  



            18        Alaska R. Civ. P. 56(c).  

                                                     



            19        See Shooshanian v. Dire, 237 P.3d 618, 624 (Alaska 2010) ("When a pro  

                                                                                                                                           

 se litigant is 'obviously attempting to accomplish' an action, the trial court should inform  

                                                                                                                                     

the litigant of the proper procedure for that action." (quoting Breck, 745 P.2d at 75)).  

                                                                                                                                      



                                                                      -8-                                                              7399
  


----------------------- Page 9-----------------------

 consultant to refute facts asserted in the officials' summary judgment motion.                                                                                                                                                                                                      Leahy  



 specifically noted that his discovery request was denied by Goose Creek's attorney                                                                                                                                                                                             



 because   "the   request   wasn't  proper   because   [he]   asked   [for]   it   in   the   form   of   an  



 affidavit." Leahy was therefore unable to obtain affidavits to support his claim that there                                                                                                                                                                                                 



 were issues of material fact.                                                     



                                               Although Leahy filed his response months before the court entered final                                                                                                                                                                       



judgment, there is no indication in the record that the court made any attempt to inform                                                                                                                                                                                              



 Leahy how to properly file an affidavit or a motion to compel discovery during that time.                                                                                                                                                                                                                       



 The affidavits that Leahy did file in support of his opposition to the officials' motion to                                                                                                                                                                                                           



 strike his response to their reply - also filed before the court entered final judgment -                                                                                                                                                                                                           



 were his own statements and were used in nontraditional manners, suggesting confusion                                                                                                                                                                                     

                                                                                               20   It was an abuse of discretion not to provide some guidance  

 as to an affidavit's purpose.                                                                                                                                                                                                                                                 



 to Leahy before granting the officials' summary judgment motion.  

                                                                                                                                                                                                             



                        B.                     The Failure To Provide Guidance Was Not Harmless.  

                                                                                                                                                                                                                 



                                                Summary judgment against aself-represented litigant must be reversed and  

                                                                                                                                                                                                                                                                                                  

 remanded if the superior court's failure to provide guidance was harmful error.21  Failing  

                                                                                                                                                                                                                                                                                     



 to advise Leahy how to properly file affidavits was not harmless if the affidavits could  

                                                                                                                                                                                                                                                                                          

 have shown a "genuine issue as to any material fact."22                                                                                                                                                         Leahy had tried to obtain  

                                                                                                                                                                                                                                                                                      



 affidavits  and  documents  providing  information  on  the  portions  of  food  served,  

                                                                                                                                                                                                                                                                                  



 acceptable  substitutes,  greater  detail  on  the  special  diet  menus;  the  procedure  for  

                                                                                                                                                                                                                                                                                                 



                        20                     Leahy used affidavits to argue that the officials' discovery was "fraught                                                                                                                                                        



 with inaccuracies,"toexplain                                                                         what he"deduce[d]"about                                                                     GooseCreek's                                        meals, to inform   

 the court when filings were mailed to him, to inform the court he served his complaint,                                                                                                                                                                                 

 and to amend defective service.                                                                                  



                        21                     See Breck, 745 P.2d at 75.  

                                                                                                                                



                        22                     Alaska R. Civ. P. 56(c) (requirements for summary judgment motion).  

                                                                                                                                                                                                                                                                       



                                                                                                                                                   -9-                                                                                                                                       7399
  


----------------------- Page 10-----------------------

 handling, storing, and preparing halal foods; and the nutrients contained in the foods in                                                                                                                              



 the amount served.                                Had Leahy been informed on how to file affidavits, he might have                                                                                             



 established an issue of material fact as to the nutritional adequacy of the halal meals.                                                                                                              



                                  Under RLUIPA "[n]o government shall impose a substantial burden on the                                                                                                             



 religious exercise of a person residing in or confined to an institution" unless the burden                                                                                                               



                                                                                                                                                                                                                        23  

 is   the   least   restrictive   means   of   furthering   a   compelling   government   interest.                                                                                                                            



 Introducing facts about the nutritional inadequacy of Goose Creek's halal meals may  

                                                                                                                                                                                                                 

 have created an issue of material fact sufficient to meet Alaska's lenient standard24  to  

                                                                                                                                                                                                                       



 overcome summary judgment and required the court to determine whether the diet  

                                                                                                                                                                                                                  



 substantiallyburdened Leahy's religious practice. Leahy claimedthatthevegetarian diet  

                                                                                                                                                                                                                    



 Goose Creek provided caused him the type of "adverse health effects from a prison diet  

                                                                                                                                                                                                                   

                                                                                                                                           25  Those health effects presented  

 [that] can be relevant to the substantial burden inquiry."                                                                                                                                          

                                                                                                                     

 "a factual issue for the [superior] court to resolve."26                                                                                     The superior court's failure to  

                                                                                                                                                                                                                       



 inform Leahy how to file an affidavit prevented him from doing what he was clearly  

                                                                                                                                                                                                           



                                                                                                                                                                                                                        27  

 trying to accomplish - to present the court with a genuine issue of material fact.                                                                                                                                            

                                                                                                                                                                                                             



 Because  this  failure  was  not  harmless,  we  reverse  summary  judgment  on  Leahy's  

                                                                                                                                                                                                       



                  23              42 U.S.C.  2000cc-1(a) (2012).                                  



                  24              See Christensen v. Alaska Sales & Serv., Inc.                                                                      , 335 P.3d 514, 520 (Alaska       



                                                                                                                                                                                                   

 2014)  ("We  reiterate  that  ours  is  a  'lenient  standard  for  withstanding  summary  

judgment.' " (quoting                                    Shaffer v. Bellows                             , 260 P.3d 1064, 1069 (Alaska 2011))).                                         



                  25              Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008).  

                                                                                                                                                          



                  26              Id.  



                  27              Alaska R. Civ. P. 56(c).  

                                                                                



                                                                                                         -10-                                                                                                   7399
  


----------------------- Page 11-----------------------

RLUIPA claim relating to the halal diet.                                    28  



                                                                                                                                                            

             C.	         The Officials Failed To Carry Their Burden To Show That The Ban  

                                                                                                                                                            

                         On Scented Oils Was The Least Restrictive Means Of Achieving The  

                                                              

                         Compelling State Interest.  



                                                                                                                               

                         A successful motion for summary judgment requires the moving party to  



                                                                                                                                                            

demonstrate through admissible evidence "that there is no genuine  issue as to  any  



                                                                                                                                                                29  

                                                                                                                                                                      

material fact and that the moving party is entitled to judgment as a matter of law." 



                                                                                                                                             

"Once the moving party has made that showing, the burden shifts to the non-moving  



                                                                                                                                               

party 'to set forth specific facts showing that he could produce evidence reasonably  



                                                                                                                                                                 

tending to dispute or contradict the movant's evidence and thus demonstrate that a  



                                                          30  

                                                                                                                                                              

material issue of fact exists.' "                               "Even where affidavits have not been submitted, the  



                                                                                                                                                  

trial court still has a duty to consider the evidence referred to by the party opposing  



                                        31  

                                                                                                                                                                

summary judgment."                           Civil Rule 56 requires only " 'a showing that a genuine issue of  



                                                                                                                                                      

material fact exists to be litigated, and not a showing that a party will ultimately prevail'  



                32  

                                                                                                                                                              

at trial."            "Alaska's summary judgment standard does not allow trial courts, on the  



                                                                                                                                                 

limited evidence presented at the summary judgment stage, to make trial-like credibility  



                                                                                                                                            

determinations, conduct trial-like evidence weighing, or decide whether a non-moving  



             28          Because nothing in the record suggests that procedural guidance from the                                                             



court would have led to additional evidence on either the scented oils or religious books                                                                

claims, it was harmless error as to those claims.                            



             29	         Alaska R. Civ. P. 56(c); see Christensen, 335 P.3d at 517.  

                                                                                                                               



             30          Christensen, 335 P.3d at 517 (quoting State, Dep't of Highways v. Green,  

                                                                                                                                                       

586 P.2d 595, 606 n.32 (Alaska 1978)).  

                                                              



             31          Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).  

                                                                                                        



             32          Christensen, 335 P.3d at 519 (quoting Lockwood v. Geico Gen. Ins. Co.,  

                                                                                                                                                            

323 P.3d 691, 696 (Alaska 2014)).  

                                                     



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party has proved its case."              33  



                                                                                                                                   

                     RLUIPA prohibits the government from imposing a substantial burden on  



                                                                                                                                 

an  inmate's  religious  exercise,  even  by  a  generally  applicable  rule,  unless  the  



                                                                                                                                     

government demonstrates that the burden is the least restrictive means of furthering a  

                                                    34    The  Ninth  Circuit  has  "noted  that  a  burden  is  

                                                                                                                                   

compelling  government  interest. 



 substantial under RLUIPA when the state 'denies [an important benefit] because of  

                                                                                                                                   



conduct mandated by religious belief,thereby putting substantial pressureon an adherent  

                                                                                                                          

to modify his behavior and to violate his beliefs.' "35   As the party moving for summary  

                                                                                                                        



judgment, the officials were required to present a prima facie case that no genuine issues  

                                                                                                                              



of material fact existed.  That showing required them to demonstrate that the scented oil  

                                                                                                                                   



ban did not impose a substantial burden on Leahy's religious exercise, or that if it did,  

                                                                                                                                 



then the ban furthered a compelling government interest and was the least restrictive  

                                                                                                                       



means to further that interest.  Until they did so, Leahy had no burden to counter with  

                                                                                                                                

contradictory evidence.36  

                       



                     The superior court found that the ban on scented oils was a substantial  

                                                                                                                      

burden on Leahy's religious exercise in violation of RLUIPA.37                                       The court also found  

                                                                                                                              



           33        Id.  at  520  (internal  citation  omitted).  



           34        42  U.S.C.    2000cc-1(a)  (2012).  



           35        Shakur  v.  Schriro,  514  F.3d  878,  888  (9th  Cir.  2008)  (alteration  in  original)  



(quoting   Warsoldier  v.   Woodford,  418  F.3d  989,  995  (9th  Cir.  2005)).  



           36        See  Stavenjord  v.  Schmidt,  344  P.3d  826,  831  (Alaska 2015)  (placing  initial  



burden  on  moving  party).  



           37        See  id.  at  832 ("The prima  facie  elements  of  a  RLUIPA  claim are the  

                                                                                                                                  

 'wish[] to engage in (1) a religious exercise (2) motivated by a sincerely held belief,  

                                                                                                                             

which  exercise (3) is subject to  a substantial burden  imposed by the  government.' "  

                                                                                                                                     

                                                                                                                 (continued...)  



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----------------------- Page 13-----------------------

that Goose Creek had a compelling interest in health, safety, and security that justified                                                                    



the burden. But the court did not consider whether, and Goose Creek did not present any                                                                               



evidence that, the ban was the least restrictive means to achieve its safety and security   



                  38  

interests.             



                           The court's finding that the ban placed a substantial burden on Leahy's  

                                                                                                                                                            



religious rights required the officials to show that banning all scented oils was the least  

                                                                                                                                                                    

restrictive means of furthering the recognized government interests.39  The United States  

                                                                                                                                                                 



Supreme Court has held that " '[t]he least-restrictive-means standard is exceptionally  

                                                                                                                                                  



demanding,' and it requires the government to 'sho[w] that it lacks other means of  

                                                                                                                                                                        



achieving its desired goal without imposing a substantial burden on the exercise of  

                                                                                                                                                                        

religion  by  the  objecting  part[y].'  "40                                      If  a  less  restrictive  means  is  available,  the  

                                                                                                                                                

                                               41   Summary judgment was only proper if there were no genuine  

government must use it.                                                                                                                                      

                                            



issues of material fact and the officials demonstrated that Goose Creek had used the least  

                                                                                                                                                                    



restrictive means to address its compelling state interest.  

                                                                                                 



             37            (...continued)  



                                                                                                                                                                      

(alteration in original) (quoting Abdulhaseeb v. Calbone , 600 F.3d 1301, 1312 (10th Cir.  

2010))).  



             38            The court did consider whether it was the least restrictive means to address  

                                                                                                                                                                               

health concerns, and found that Leahy's proposal to use different kinds of scented oil  

                                                                                                                                                       

"could resolve the concerns of allergic reactions."  

                                                                                                     



             39            See Holt v. Hobbs, 135 S. Ct. 853, 863 (2015) ("RLUIPA requires us to  

                                                                                                                                                                         

'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious  

                                                                                                                                                           

claimants' and 'to look to the marginal interest in enforcing' the challenged government  

                                                                                                                                                     

action  in  that  particular  context."  (alteration  in  original)  (internal  quotation  marks  

                                                                                                                                                                

omitted) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726-27 (2014))).  

                                                                                                                                                           



             40           Id. at 864 (alterations in original) (quoting Hobby Lobby, 573 U.S. at 728).  

                                                                                                                                                                   



             41           Id.  



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----------------------- Page 14-----------------------

                            But Goose Creek's banning of all scented prayer oils failed to meet the                                                                              



                                                                                                                                                      42  

"exceptionally demanding" standard established by the Supreme Court.                                                                                                       

                                                                                                                                                           Goose Creek  



                                                                                                                                                                              

based its decision to ban all scented oils and to allow only unscented ones on staff  



                                                                                                                                                                  

determinations that the scented oils "caused inmates and staff to have allergic reactions"  



                                                                                                                                                                          

and "could mask smells from marijuana or other prohibited substances."  While Goose  



                                                                                                                                                                        

Creek  had  tried  some  alternative  approaches  without  success,  the  officials  neither  



                                                                                                                                                                           

addressed Leahy's proposed alternatives nor fully explained why an exception for Leahy  



                                                                                                                                                                                

would compromise these interests.  It was the superior court that specifically noted that  



                                                                                                                                                                                      

one of Leahy's proposed alternatives, allowing only milder scented oils, "potentially . . .  



                                                                                                          

could resolve the concerns of allergic reactions."  



                                                                                                                                                                          

                            This potential resolution presented an issue of material fact.  And Goose  



                                                                                                                                                                                 

Creek had previously been willing to accommodate Leahy by storing scented oils in the  



                                                                                                                                                                     

chaplain's office, but instituted the total ban without fully explaining why its previous  

                                                                                                  43        Absent  any  explanation  or  even  

                                                                                                                                                                            

                                                                                 

accommodation  was  no  longer  an  option. 



acknowledgment of Leahy's proposed alternatives to completely banning scented oils,  

                                                                                                                                                                               



Goose Creek did not meet its burden of proving for purposes of summary judgment that  

                                                                                                                                                                                



it used the least restrictive means available.  It was error to grant summary judgment to  

                                                                                                                                                                                   

the officials on Leahy's RLUIPA claim regarding the scented oils.44                                                                                       We therefore  

                                                                                                                                                                    



              42            See id.        at 863-64, 866 (finding specific ban on half-inch beard "hard to take                                                               



seriously" when prison officials allowed - subject to search - quarter-inch beards,                                                                                     

longer head hair, shoes, and clothing, but asserted half-inch beards threatened prison's                                                                              

security interest).   



              43            Goose Creek had previously said the security risk of scented oils masking  

                                                                                                                                                                      

the smell of marijuana would only be an issue if the oils were allowed in inmates' cells,  

                                                                                                                                                                             

and thus it had allowed oils to be stored in the chaplain's closet.  

                                                                                                                                         



              44            We affirm the superior court's finding that Leahy's claims for restitution  



                                                                                                                                                           (continued...)  



                                                                                       -14-                                                                                  7399
  


----------------------- Page 15-----------------------

reverse the superior court's grant of summary judgment that was in favor of the officials                                                                                      



on this issue.     



               D.             Leahy's Challenge To The Book Limit Is Not Ripe.                                                             



                              Leahy claims Goose Creek unlawfully denied him religious texts.                                                                                   But his   



claim is not ripe. As the officials noted in an affidavit, accommodations are available to                                                                                                   



inmates who seek religious exemptions from Goose Creek's limit on books in cells.                                                                                                                  



                                                                                                                                                                    45  

Goose   Creek   has   provided   Leahy   with   a   route,   and   a   specific   form,                                                                                         

                                                                                                                                                                          to  request  



                                                                                                                                                                                                   

accommodation of his religious needs.  Leahy has not sought such an accommodation.  



                                                                                                                                                                                      

"The ripeness doctrine requires a plaintiff to claim that either a legal injury has been  



                                                                                                                     46  

                                                                                                                                                                                   

suffered or that one will be suffered in the future."                                                                       Unless and until Goose Creek  



                                                                                                                                                                                      

denies Leahy's request for accommodation, he does not have a legal claim and the issue  



                                                                                                                                                                          

is  not  ripe  for  decision.                                We  therefore  dismiss  Leahy's  RLUIPA  claim  regarding  



                      

religious books.  



                                                                                                                                                         

               E.             The Award Of Attorney's Fees And Costs Must Be Vacated.  



                                                                                                                                                                                            

                              Alaska Civil Rule 79 provides that "the prevailing  party  is entitled to  



                                                                                                                                        47  

                                                                                                                                                                                      

recover costs . . . that were necessarily incurred in the action."                                                                           "[T]he prevailing party  



                                                                                                                                                                                      

is the one who successfully prosecuted or defended the action and prevailed on the main  



               44             (...continued)  



                                                                                                                                                                                                   

for his destroyed scented oils is moot because Goose Creek reimbursed him for the oils.  



               45             See Religious Accommodation Request                                                  ,S   TATEOF            ALASKA DEP'TOF                          CORR.,  



                                                                                                                                                                                                   

Form 816.01a (2014), available at http://www.correct.state.ak.us/pnp/pdf/816.01a.pdf.  



               46             Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska  

                                                                                                                                                           

2001).  



               47             Alaska R. Civ. P. 79(a).  

                                                                      



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----------------------- Page 16-----------------------

              48  

issue."            Because we reverse the grant of summary judgment on Leahy's halal diet and                                                                                  



scented prayer oil claims, no party has yet prevailed on those issues.                                                                           Consequently we   



vacate the award of attorney's fees and costs against Leahy.                                                    



V.            CONCLUSION  



                            We REVERSE the superior court's order granting summary judgment on  

                                                                                                                                                                                  



Leahy's halal diet and scented prayer oil claims. We AFFIRM the superior court's order  

                                                                                                                                                                            



dismissing the religious books claim.  We VACATE the award of attorney's fees and  

                                                                                                                                              



costs.  



              48            Matanuska Elec. Ass'n v. Rewire the Bd., 36 P.3d 685, 690 (Alaska 2001)  

                                                                                                                                                                           

(citation omitted).  

                    



                                                                                       -16-                                                                                        7399  

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