August 9, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Chaplain Hosea Cannon

FILED
United States Court of Appeals
Tenth Circuit
August 9, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
CRAIG RALSTON,
Plaintiff - Appellant,
v.
CHAPLAIN HOSEA CANNON,
Defendant - Appellee.
-------------------------------------------
LAWYERS’ CIVIL RIGHTS
COALITION,
Amicus Curiae.
No. 19-1146
(D.C. No. 1:14-CV-00247-SKC)
(D. Colo.)
ORDER AND JUDGMENT*
Before HOLMES, BACHARACH, and EID, Circuit Judges.
Mr. Craig Ralston has filed a 42 U.S.C. § 1983 action against Hosea
Cannon, chaplain for the Denver, Colorado, sheriff’s department. Mr. Ralston
alleges that Mr. Cannon violated his rights under the First Amendment to the
United States Constitution by denying his request for a kosher diet when he was
* This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
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held in the Denver Detention Center. The district court granted summary
judgment to Mr. Cannon. It found that he was entitled to qualified immunity.
The court based its decision on the first prong of the qualified-immunity analysis,
concluding that Mr. Ralston failed to show a violation of a constitutional right.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. However, we
do so on an alternative ground—that is, the second prong of the qualified-
immunity analysis. When Mr. Cannon denied the kosher diet request, it was not
clearly established that his conduct violated the Free Exercise Clause of the First
Amendment. More specifically, the law was not clearly established that, even if
Mr. Cannon did not act with a discriminatory purpose, his denial of a kosher diet
could effect a violation of Mr. Ralston’s free-exercise rights.
I
Mr. Ralston is a Messianic Jew. In December 2013, he was arrested and
booked into the Denver Detention Center. On an intake questionnaire, Mr.
Ralston left blank a question about his religious affiliation. He also indicated that
he did not require a special religious diet. Three days later, however, Mr. Ralston
filed a grievance, stating that his faith required him to keep a kosher diet. The
Denver Detention Center’s chaplain, Mr. Cannon, was responsible for
coordinating special diet requests from inmates. On January 2, 2014, he denied
Mr. Ralston’s request for a kosher diet. In a written explanation, he noted that
Mr. Ralston had not indicated a religious affiliation on his intake questionnaire.
2
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And he also stated that a rabbi had “examined our menu” and determined that
“our meals are fully acceptable in the Messianic Jewish Faith.” R., Vol. I, at 47
(Denver Sheriff Department Inmate Grievance Form, dated Jan. 2, 2014).
On January 28, Mr. Ralston filed both another request for a kosher diet and
also a § 1983 action pro se against Mr. Cannon.1 In his complaint, Mr. Ralston
alleged “religious discrimination and/or persecution based on the denial of
religious freedom, by denying a recognized religious diet” in violation of the First
and Fourteenth Amendments to the United States Constitution. Id. at 15 (Prisoner
Compl., filed Jan. 28, 2014). On February 4, 2014, Mr. Cannon approved Mr.
Ralston’s kosher diet request. Mr. Cannon thereafter filed a motion to dismiss the
§ 1983 action, asserting qualified immunity.
The district court dismissed the Fourteenth Amendment claim but not the
First Amendment claim. Mr. Cannon later filed a motion for summary judgment
on the First Amendment claim, again asserting qualified immunity. The district
court denied it. The court found that it was “reasonable to infer” that Mr. Cannon
“substantially burdened [Mr. Ralston’s] sincerely-held religious beliefs” when he
denied the kosher diet request. Id. at 196 (District Ct. Order Regarding Def.’s
Mot. for Summ. J., filed Sept. 8, 2016). The court further found that “a genuine
1 Mr. Ralston’s original complaint also named as defendants the
Denver sheriff and a division chief within the sheriff’s department. In late
February 2014, the district court dismissed the claims against the sheriff and the
division chief.
3
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issue exists as to whether [Mr. Cannon] consciously or intentionally interfered
with [Mr. Ralston’s] free exercise rights by denying the kosher diet request.” Id.
Mr. Cannon appealed the qualified-immunity ruling.2 He argued that the
court erred in finding that a reasonable juror could conclude that he acted
consciously or intentionally to violate Mr. Ralston’s First Amendment rights. We
dismissed the appeal for lack of jurisdiction after concluding that “[e]ach aspect
of [Mr.] Cannon’s appeal . . . amounts to a challenge to the district court’s
determinations of evidentiary sufficiency.” Ralston v. Cannon (“Ralston I”), 884
F.3d 1060, 1062 (10th Cir. 2018).
Our decision in Ralston I included a lengthy footnote—footnote 3—in
which we discussed Mr. Ralston’s reliance on our decision in Gallagher v.
Shelton, 587 F.3d 1063 (10th Cir. 2009), “as setting the relevant parameters of a
§ 1983 free exercise claim.” Id. at 1063 n.3. With reference to Gallagher, we
stated that “there is reason to doubt whether ‘conscious’ interference with an
individual’s right to free exercise amounts to a viable § 1983 First Amendment
claim for damages.” Id. We acknowledged that Gallagher appeared to endorse
the view that a § 1983 plaintiff only needed to show “conscious or intentional
interference with the right to free exercise.” Id. However, we recognized that, in
Ashcroft v. Iqbal, the Supreme Court held that, if a plaintiff raises a claim of
2 The Tenth Circuit appointed counsel to represent Mr. Ralston in that
appeal, and he has been represented since that time by counsel.
4
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“invidious discrimination” in violation of the First Amendment, he must “plead
and prove that the defendant acted with discriminatory purpose.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). We ultimately concluded that it was
“unnecessary . . . to attempt to reconcile Gallagher and Iqbal,” due to our lack of
jurisdiction over Mr. Cannon’s appeal. Id. Instead, we “le[ft] it to the district
court’s discretion . . . whether to take up this question on remand and revisit the
propriety of summary judgment.” Id.
On remand, the district court allowed Mr. Cannon to file a motion to
reconsider the order denying him summary judgment. Mr. Cannon based his
motion on our “invitation to revisit the appropriate standard applicable to [Mr.
Ralston’s] 42 U.S.C. § 1983 free exercise claim,” citing to our footnote in Ralston
I. R., Vol. I, at 222 (Def.’s Mot. to Reconsider the Ct.’s Order Den. Summ. J.,
filed Aug. 10, 2018). Mr. Cannon argued that the “standard described in Iqbal”
applied to Mr. Ralston’s claim and that, to survive summary judgment, Mr.
Ralston “must establish that Chaplain Cannon’s denial of [Mr. Ralston’s] kosher
diet request was motivated by his intent to discriminate against Mr. Ralston based
on his religious beliefs.” Id. at 225. Thus, Mr. Cannon insisted that Mr. Ralston
had to show purposeful discrimination, and not merely conscious interference
with his free-exercise rights, to sustain his § 1983 claim.
The district court agreed. It granted summary judgment to Mr. Cannon
after finding that Mr. Ralston “failed to raise a triable issue of disputed fact over
5
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whether [Mr.] Cannon’s conduct rises to the level of a constitutional violation.”
Id. at 283 (Order Re: Mot. to Reconsider & Mot. for Summ. J., filed Mar. 12,
2019). Relying on Iqbal, the court concluded that, to sustain a § 1983
free-exercise claim, a plaintiff must “plead and prove that the defendant acted
with a discriminatory purpose.” Id. at 280. The court then concluded that there
was “no evidence” that Mr. Cannon acted with purposeful discrimination, i.e.,
that he denied Mr. Ralston’s kosher diet request “because of [Mr.] Ralston’s
religion.” Id. at 283. Therefore, the court found that Mr. Cannon was entitled to
qualified immunity because Mr. Ralston had not alleged a constitutional violation
and granted summary judgment to Mr. Cannon.
Mr. Ralston then brought this timely appeal.
II
Mr. Ralston raises three arguments on appeal. First, he contends that the
district court did not have jurisdiction to entertain Mr. Cannon’s motion to
reconsider because it was untimely. Second, he argues that the district court erred
in finding that Mr. Cannon was entitled to qualified immunity. Finally, he
contends that the district court erred by not allowing him to amend his complaint.
We address the three arguments in turn and conclude that they are all without
merit.
A
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Mr. Ralston first argues that the district court did not have jurisdiction to
entertain Mr. Cannon’s motion to reconsider because it was untimely filed. He
points to Federal Rule of Civil Procedure 59(e), which provides that a motion to
alter or amend a judgment “must be filed no later than 28 days after the entry of
the judgment.” FED. R. CIV. P. 59(e). Mr. Ralston notes that, although we
dismissed Mr. Cannon’s interlocutory appeal in Ralston I on March 13, 2018, Mr.
Cannon did not seek to file a motion to reconsider until June 19, 2018. And he
eventually filed the motion on August 10, 2018. Therefore, according to Mr.
Ralston, Mr. Cannon clearly failed to comply with Rule 59(e)’s 28-day time limit.
This argument is not persuasive because Rule 59(e) is inapposite as to the
motion to reconsider filed by Mr. Cannon. Rule 59(e) applies to motions made
after a final judgment. However, no final judgment had been issued in the district
court case when Mr. Cannon filed his motion to reconsider; the district court only
had denied Mr. Cannon summary judgment on Mr. Ralston’s First Amendment
claim.
“A final judgment ‘is one that “ends the litigation on the merits,” leaving
nothing to decide.’” United States v. Romero, 511 F.3d 1281, 1283 (10th Cir.
2008) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988)). The
district court’s denial of Mr. Cannon’s motion for summary judgment was
interlocutory and did not have this litigation-ending effect. More specifically, a
“[d]enial of summary judgment ‘is strictly a pretrial order that decides only one
7
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thing—that the case should go to trial.’” Roberts v. Roadway Express, Inc., 149
F.3d 1098, 1103 (10th Cir. 1998) (quoting Glaros v. H.H. Robertson Co., 797
F.2d 1564, 1573 (Fed. Cir. 1986)).
Thus, Mr. Cannon’s motion to reconsider simply invoked “the district
court’s general discretionary authority to review and revise interlocutory rulings
prior to entry of final judgment.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217,
1223 n.2 (10th Cir. 2008) (quoting Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1
(10th Cir. 1991)). It was undoubtedly within the district court’s “discretion to
revise [its] interlocutory orders prior to entry of final judgment.” Anderson v.
Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988); see also Price v. Philpot, 420
F.3d 1158, 1167 n.9 (10th Cir. 2005) (noting that “every order short of a final
decree is subject to reopening at the discretion of the district judge” (quoting
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983))).
In fact, in Ralston I, we expressly contemplated that the district court might
“revisit the propriety of summary judgment.” Ralston I, 884 F.3d at 1063 n.3.
To be sure, as with final judgments, the district court’s denial of Mr.
Cannon’s motion for summary judgment provided the basis for an appeal;
however, that is not because that denial order ended the litigation but, rather,
because it denied Mr. Cannon the protections of the qualified-immunity defense.
See, e.g., Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (“Federal ‘appellate
courts typically do not have jurisdiction to review denials of summary judgment
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motions,’ but ‘[t]he denial of qualified immunity to a public official . . . is
immediately appealable . . . to the extent it involves abstract issues of law.”
(alteration and omissions in original) (citations omitted) (first quoting Serna v.
Colo. Dep’t of Corr., 455 F.3d 1146, 1150 (10th Cir. 2006), then quoting Fancher
v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013))); accord Buck v. City of
Albuquerque, 549 F.3d 1269, 1276 (10th Cir. 2008).3
In sum, “because a final judgment had not yet been entered . . . the district
court’s consideration of the motion for reconsideration . . . did not violate Rule
59.” Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991). We therefore
conclude that the district court could permissibly entertain Mr. Cannon’s motion
to reconsider.
B
The main issue presented in this appeal is whether Mr. Cannon is entitled to
qualified immunity and, thus, summary judgment. We “review summary
judgment decisions de novo, applying the same legal standard as the district
court.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019) (quoting Cory v.
Allstate Ins., 583 F.3d 1240, 1243 (10th Cir. 2009)). Summary judgment is
warranted if, viewing the evidence in the light most favorable to the nonmoving
3 Of course, we ultimately concluded in Ralston I that we could not
properly exercise jurisdiction over the merits of Mr. Cannon’s appeal because it
did not present abstract issues of law for decision. See 884 F.3d at 1062.
9
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party, “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
However, in some respects, “[o]ur review of summary judgment orders in
the qualified immunity context differs from that applicable to review of other
summary judgment decisions.” Thomson v. Salt Lake County, 584 F.3d 1304,
1312 (10th Cir. 2009). Specifically, when a defendant asserts a
qualified-immunity defense, the plaintiff bears the burden of demonstrating “(1)
the officers’ alleged conduct violated a constitutional right, and (2) it was clearly
established at the time of the violation, such that ‘every reasonable official would
have understood,’ that such conduct constituted a violation of that right.” Perea
v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016) (quoting Mullenix v. Luna, 577
U.S. 7, 11 (2015) (per curiam)).
“In our review, ‘we need only find that the plaintiffs failed either
requirement’ to establish qualified immunity.” Est. of Reat v. Rodriguez, 824
F.3d 960, 964 (10th Cir. 2016) (quoting Swanson v. Town of Mountain View, 577
F.3d 1196, 1199 (10th Cir. 2009)); see also A.M. v. Holmes, 830 F.3d 1123,
1134–35 (10th Cir. 2016) (“In other words, if the plaintiff fails to establish either
prong of the two-pronged qualified-immunity standard, the defendant prevails on
the defense.”). Moreover, we are “permitted to exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.”
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Pearson v. Callahan, 555 U.S. 223, 236 (2009); see also Est. of Reat, 824 F.3d at
964 (“Because there are cases where we can more readily decide the law was not
clearly established before reaching the more difficult question of whether there
has been a constitutional violation, we may exercise discretion in deciding which
prong to address first.”).
Under the second prong of the qualified-immunity inquiry, a constitutional
right is clearly established if “‘[t]he contours of [a] right [are] sufficiently clear’
that every ‘reasonable official would [have understood] that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alterations in
original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Qualified
immunity “protects all officials except those who are ‘plainly incompetent or
those who knowingly violate the law.’” Apodaca v. Raemisch, 864 F.3d 1071,
1076 (10th Cir. 2017) (quoting White v. Pauly, --- U.S. ----, 137 S. Ct. 548, 551
(2017) (per curiam)). Therefore, for the law to be clearly established, “existing
precedent must have placed the . . . constitutional question beyond debate.”
al-Kidd, 563 U.S. at 741. We “do not require a case directly on point.” Id. But
the “dispositive question is ‘whether the violative nature of particular conduct is
clearly established.’” Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at
742).
In undertaking this analysis, we “look to the relevant precedents at the time
of the challenged actions and the obviousness of the violation in light of them.”
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Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219,
1233 (10th Cir. 2008). Ordinarily, the relevant precedent for
clearly-established-law purposes consists of one or more “on-point Supreme
Court or published Tenth Circuit decision[s]; alternatively, ‘the clearly
established weight of authority from other courts must have found the law to be as
the plaintiff maintains.’” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)
(quoting Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010)); accord A.M.,
830 F.3d at 1135. The time period of the challenged action here—which provides
the touchstone for assessing the substance of clearly established law—is from
January 2, 2014 (when Mr. Cannon first denied Mr. Ralston’s kosher diet request)
to February 4, 2014 (when he granted it).
We hold that, during this time period, the law was not clearly established
that Mr. Cannon could be held liable for violating Mr. Ralston’s free-exercise
rights by acting without a discriminatory purpose. More specifically, the law was
not clearly established that Mr. Cannon could be found liable for a free-exercise
violation for denying Mr. Ralston a kosher diet—absent a showing that Mr.
Cannon took this action for the purpose of discriminating on account of Mr.
Ralston’s religion (i.e., because of his religion). The relevant precedent did not
put this “constitutional question” regarding the requisite scienter, under the
circumstances here, “beyond debate.” al-Kidd, 563 U.S. at 741. And thus we
cannot say that “every reasonable official” in Mr. Cannon’s position would have
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known that his decision to deny Mr. Ralston’s request for a kosher diet—if free of
discriminatory purpose—would violate the Free Exercise Clause. Est. of Reat,
824 F.3d at 964 (quoting Reichle v. Howards, 556 U.S. 658, 664 (2012)).4
Ralston I effectively provides the foundation for this conclusion. There, we
stated “there is reason to doubt whether ‘conscious’ interference with an
individual’s right to free exercise amounts to a viable § 1983 First Amendment
claim.” Ralston I, 884 F.3d at 1063 n.3 (emphasis added). We noted that, in
2009, the Supreme Court held in Iqbal that, “[w]here the claim is invidious
discrimination” in violation of the First Amendment, the Court’s “decisions make
clear that the plaintiff must plead and prove that the defendant acted with
discriminatory purpose.” Id. (quoting Iqbal, 556 U.S. at 676). And the Iqbal
Court clarified that people may be said to act with a discriminatory purpose when
4 Mr. Ralston did not make an argument concerning the
clearly-established-law prong of the qualified-immunity standard in his opening
brief. As such, we could conclude that Mr. Ralston has waived any such
argument regarding this requisite prong of the two-pronged, qualified-immunity
standard. See, e.g., United States v. Black, 369 F.3d 1171, 1176 (10th Cir. 2004)
(“Failure to raise an issue in the opening appellate brief waives that issue.”); see
also Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely
have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.”). Given that Mr. Ralston bears the
burden of proof as to both prongs of the qualified-immunity standard, see, e.g.,
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009), such a determination
of waiver would strike a fatal, threshold blow to Mr. Ralston’s efforts to show
that the district court erred in its qualified-immunity determination. Nevertheless,
we overlook this lack of preservation and proceed to the merits. See, e.g.,
Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision
regarding what issues are appropriate to entertain on appeal in instances of lack of
preservation is discretionary.”).
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they act because of the negative consequences that will be inflicted on an
identifiable group—not merely in spite of those consequences. See Iqbal, 556
U.S. at 676–77. Thus, after Iqbal, Ralston I concluded that it was doubtful in our
circuit whether having anything short of a discriminatory purpose would be
sufficient to expose a defendant to § 1983 liability for a First Amendment
free-exercise violation.5
In other words, when we decided Ralston I in 2018, there was serious
question whether Gallagher’s scienter standard was in fact viable or whether it
actually was invalid in light of Iqbal—such that purposeful discrimination was the
requisite, minimum scienter for a free-exercise claim. Accordingly, in 2018, a
reasonable official in Mr. Cannon’s position would not have understood that
denying a prisoner a kosher diet without a discriminatory purpose would subject
him to § 1983 liability for a First Amendment free-exercise violation.
It follows ineluctably that in 2014—i.e., at the earlier date of the events at
issue here—a reasonable official in Mr. Cannon’s position also would not have
understood that denying a kosher diet to a prisoner without discriminatory
5 It bears noting that, though we specifically highlighted the
“conscious” portion of Gallagher’s conscious-or-intentional-interference
standard, the shadow of “doubt” that Ralston I indicated Iqbal cast related to
whether a showing of discriminatory purpose was required to establish a First
Amendment free-exercise claim. See Ralston I, 884 F.3d at 1063 n.3. Logically,
this shadow of doubt also would be cast on whether a defendant’s intentional
interference with free-exercise rights—not involving discriminatory
purpose—would be sufficient to establish such a claim.
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purpose would subject him to liability under § 1983 for a First Amendment
free-exercise violation.6 Stated otherwise, in 2014, the answer to the
“constitutional question” of whether or not a plaintiff must act with purposeful
discrimination to be liable for a free-exercise violation would not have been
“beyond debate.” al-Kidd, 563 U.S. at 741. And, critically, Mr. Ralston does not
argue—much less identify evidence showing—Mr. Cannon acted with a
discriminatory purpose. Therefore, Mr. Ralston cannot carry his burden of
establishing that Mr. Cannon’s conduct violated clearly established law.
Mr. Ralston proposes one way to harmonize these seemingly different
standards. He suggests that the Gallagher standard applies to traditional
free-exercise claims arising under the First Amendment—like his own—while the
purposeful-discrimination standard applies only to claims of religious
discrimination arising under the Equal Protection Clause of the Fourteenth
6 To be sure, in the two years immediately preceding 2014, panels of
our court in unpublished decisions had relied on Gallagher for the controlling
scienter standard. See, e.g., McKinley v. Maddox, 493 F. App’x 928, 933 (10th
Cir. 2012) (unpublished) (noting that a prisoner “must assert conscious or
intentional interference with his free exercise rights to state a valid claim under
§ 1983” (quoting Gallagher, 587 F.3d at 1070)); see also Watkins v. Rogers, 525
F. App’x 756, 758–59 (10th Cir. 2013) (unpublished) (without articulating a
requirement of purposeful discrimination or inquiring into its presence, appearing
to rest its rejection of the prisoner’s free-exercise claim on Gallagher’s holding
that “isolated, negligent violations are insufficient to support a constitutional
violation”). However, we have held that “[a]n unpublished opinion . . . provides
little support for the notion that the law is clearly established.” Mecham v.
Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007).
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Amendment. See, e.g., Aplt.’s Opening Br. at 21 (“Gallagher, which was decided
six months after Iqbal, does not add an intentional invidious discrimination
element to a free-exercise claim—a constitutional provision that need not include
a claim of discrimination. There is no tension between Gallagher, which deals
with claims of a substantial burden on sincerely-held religious beliefs, and Iqbal,
which deals with discrimination based on religion.”).7
However, we have never endorsed this constitutional distinction. And,
more fundamentally, even if this distinction were a viable one at this time, it
would not avail Mr. Ralston. That is because the inescapable truth is that, during
the period of Mr. Cannon’s allegedly unconstitutional conduct—that is, January 2,
2014, to February 4, 2014—the law was not clearly established that Mr. Cannon’s
conduct could effect a violation of Mr. Ralston’s free-exercise rights.8 Stated
7 The Lawyers’ Civil Rights Coalition submitted an amicus brief that
also contends that Iqbal is inapposite with respect to free-exercise claims like Mr.
Ralston’s. See Amicus Br. at 9 (“Read correctly, Iqbal has nothing to do with a
prisoner being allowed or not allowed to practice his religion.”).
8 It is similarly unavailing that, after the time period at issue here, at
least two panels of this court have applied Iqbal and its purposeful-discrimination
standard in concluding that prisoners have failed to show actionable First
Amendment free-exercise claims. See Carr v. Zwally, 760 F. App’x 550, 554–55
(10th Cir. 2019) (unpublished) (citing Iqbal and holding that a prisoner could not
sustain a § 1983 free-exercise claim against a sheriff’s deputy who threw away
his Bibles because he “fail[ed] to plausibly allege that [the deputy] acted with
discriminatory purpose”); Williams v. Wilkinson, 645 F. App’x 692, 707 (10th
Cir. 2016) (unpublished) (citing Iqbal and concluding that a § 1983 free-exercise
claim against the Director of the Oklahoma Department of Corrections “fail[ed] to
state a claim as a matter of law” because—even assuming that the Director was
(continued...)
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otherwise, the answer to the “constitutional question” of whether Mr. Cannon
could be subject to First Amendment liability for acting without purposeful
discrimination in denying Mr. Ralston a kosher diet was hardly “beyond debate.”
al-Kidd, 563 U.S. at 741; accord Est. of Reat, 824 F.3d at 965.
Accordingly, Mr. Ralston fails to carry his burden as to the second prong of
the qualified-immunity standard—i.e., the clearly-established-law prong. And
this failure dooms his challenge to the district court’s qualified-immunity ruling.
C
Finally, Mr. Ralston argues that the district court erred in not granting him
leave to amend his complaint. He insists that the court should have allowed him
leave to amend his complaint after it revisited its summary judgment order and
held that he “must plead and prove purposeful invidious discrimination as an
element of a claim of substantial burden on sincerely-held religious beliefs.”
Aplt.’s Opening Br. at 25. This argument is without merit. Mr. Ralston failed to
properly move for leave to amend. And the district court did not abuse its
discretion in not acting sua sponte to grant Mr. Ralston leave to amend.
8(...continued)
responsible for a kosher-diet policy at issue in the suit—the plaintiff still failed to
alleged that the Director’s “formulation of the policy was motivated by a
discriminatory intent”). Even putting aside the fact that these decisions are
unpublished and, thus, non-precedential, see supra note 6, they come too late to
influence the clearly-established-law calculus.
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Mr. Ralston’s counsel twice did mention the possibility of amending the
complaint, but in only a fleeting fashion. First, at a hearing on the motion to
reconsider, Mr. Ralston’s counsel said that, if the court ruled “any time that
somebody is asserting their rights under the free exercise clause, that they also
[must] then prove discrimination, then this was not the law at the time that the
initial pro se complaint was filed, and we would have a request under Rule 15 to
go ahead and amend based on now a declaration of this new Rule.” R., Vol. II, at
23 (Hr’g Tr., dated Feb. 20, 2019).
Second, in a written response to Mr. Cannon’s motion to reconsider, Mr.
Ralston’s counsel argued that “the state of mind at issue in this case is one
required to establish violation of the Free Exercise Clause by denial of kosher
diet—not the state of mind required to establish intentional discrimination.” Id.,
Vol. I, at 239 (Craig Ralston’s Resp. to Def.’s Mot. to Reconsider the Ct.’s Order
Den. Summ. J., filed Oct. 4, 2018). And then, in a footnote, Mr. Ralston’s
counsel continued: “If there is any question about the nature of this claim, Mr.
Ralston, who now for the first time in proceedings before this Court is
represented by counsel, requests that the Court grant him leave to amend his
complaint.” Id. at 239 n.4 (emphasis added).
At no point, however, did Mr. Ralston properly seek leave to amend the
complaint. In particular, he never filed a written motion to that effect. Under our
precedent, it was not sufficient simply to suggest to the court that he should be
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allowed to amend his complaint if the court ruled a particular way. Instead, a
proper motion for leave to amend was necessary.9 See Garman v. Campbell Cnty.
Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010) (“[Appellant] did not file a
written motion for leave to amend; instead, in her opposition to the motion to
dismiss, she merely suggested she should be allowed to amend if the court
concluded her pleadings were infirm. This is insufficient.”); see also Glenn v.
First Nat’l Bank in Grand Junction, 868 F.2d 368, 370 (10th Cir. 1989)
(concluding that the suggestion by appellants—made in their response to a motion
to dismiss—that the district court possibly allow them to amend their complaint
“d[id] not rise to the status of a motion” because it “states no grounds let alone
‘particular’ grounds for the request”).
Therefore, the district court did not abuse its discretion in not granting Mr.
Ralston leave to amend his complaint.
9 We note that Mr. Ralston also failed to properly move for leave to
amend under the District of Colorado’s local rules. See, e.g., D.C. COLO. LCivR
7.1(d) (“A motion shall not be included in a response or reply to the original
motion. A motion shall be filed as a separate document.” (emphasis added)); id.
15.1(b) (“A party who files an opposed motion for leave to amend or supplement
a pleading shall attach as an exhibit a copy of the proposed amended or
supplemental pleading which strikes through . . . the text to be deleted and
underlines . . . the text to be added.”).
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III
For the foregoing reasons, we affirm the district court’s order granting
summary judgment to Mr. Cannon.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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