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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.  

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                     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  




                                                                       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.  



                    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  




                       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  



                                                                                                                                           -2-                                                                                                                               7399

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                                                   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                                                                                                                                                                                             


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

----------------------- Page 4-----------------------


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  




                    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  


                            Leahy appeals.   

 III.          STANDARD OF REVIEW                     

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



 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  




 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  



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  


                    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

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


preclude summary judgment, due to its consequences.                                                                                    

                                                                                                   In determining how much  


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



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  




                      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  


            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                                                                                                               


 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  



 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

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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  



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  



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  



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'  



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)).  


                                                                              -11-	                                                                       7399

----------------------- Page 12-----------------------

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.' "  



                                                                -12-                                                          7399

----------------------- 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   



                           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.  


             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.  

                                                                                  -13-                                                                            7399

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

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


"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  


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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.                                                                                                                  


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  



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  



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  

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



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


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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  



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


(citation omitted).  


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