Anson McFaul v. Daniel Valenzuela , 684 F.3d 564 ( 2012 )

Case: 11-10218 Document: 00511889245 Page: 1 Date Filed: 06/18/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 18, 2012
No. 11-10218
Lyle W. Cayce
Clerk
ANSON MCFAUL,
Plaintiff-Appellant,
versus
DANIEL VALENZUELA, Chaplain-Preston Smith Unit,
in His Individual and Official Capacity;
BILL PIERCE, Director of Chaplaincy Department,
in His Individual and Official Capacity;
GARY GRIGGS, Assistant Warden-Preston Smith Unit,
in His Individual and Official Capacity;
RICHARD D. VOGELGESANG, Warden-Preston Smith Unit,
in His Individual and Official Capacity;
BRAD LIVINGSTON, Director of the Texas Department of Criminal Justice,
in His Individual and Official Capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
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Anson McFaul, a Texas prisoner, filed this pro se civil rights complaint
against Daniel Valenzuela, the chaplain of the Preston Smith Unit (“Smith
Unit”); Bill Pierce, the Director of the Chaplain Department; Richard D. Vogelge-
sang, the Smith Unit warden; Gary L. Griggs, the Smith Unit assistant warden;
and Brad Livingston, the Director of the Texas Department of Criminal Justice
(“TDCJ”). McFaul alleges that on May 22, 2009, he was denied religious devo-
tional items that Valenzuela had given him permission to order. McFaul alleged
violations of his rights to free exercise of religion under the First Amendment,
constitutional rights under the Equal Protection Clause of the Fourteenth
Amendment, and statutory rights under the Religious Land Use and Institution-
alized Persons Act (“RLUIPA”) and the Texas Religious Freedom Restoration Act
(“TRFRA”). The district court granted summary judgment in favor of the defen-
dants. McFaul appeals pro se, and we affirm.
I.
Because we are evaluating a summary judgment, we present the facts in
the light most favorable to McFaul. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010). McFaul claims that he showed Valenzuela a picture of prayer beads and
a medallion and told him the price when he originally requested permission to
make the purchase, but Valenzuela refused to give him the items once they were
delivered. McFaul also claims that he obtained permission to order a mirrored
pentagram costing $61.95, but when it was delivered on July 2, 2009, Valenzuela
refused to release it to him because it was too costly. Valenzuela told McFaul in
front of witnesses that he would “never get anything” if he continued to file
grievances; McFaul had filed grievances against Valenzuela regarding his free
exercise of religion.
McFaul asserts that other prisoners engaged in mainstream religions were
permitted to purchase devotional items, but he was not allowed to do so, in viola-
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tion of his religious rights. He maintains that all defendants were aware of the
complained-of constitutional violations, because he had written letters and filed
grievances. McFaul contends that denying devotional items as “too expensive”
or “inappropriate” did not constitute the least restrictive means to protect a gov-
ernmental interest, particularly because inmates working in prison craft shops
created jewelry costing more than the devotional items in question.
II.
McFaul requested a declaratory judgment that the defendants had vio-
lated his rights, an injunction permitting him to purchase his devotional items,
compensatory damages of $99.85 for the denied religious items, and punitive
damages of $150. He also sought appointment of counsel. The district court
denied counsel but granted McFaul leave to proceed in forma pauperis.
A.
The district court directed a magistrate judge (“MJ”) to hold a hearing pur-
suant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). At the hearing,
McFaul asserted that he was a Celtic Druid. He stated that he had learned ritu-
als and magic through word of mouth from other Celtic Druids and that his
religion involved periodic “ritual salutations to the sun” at specific times of day.
He also stated that he needed a medallion and prayer beads to practice his faith,
but Valenzuela told him that the requested items were inappropriate and that
he needed to get a Wiccan star or a pentagram.
McFaul described the first medallion he ordered as a triskele, which repre-
sents the “three forces of nature,” which could mean water, air, and earth or “any
groups of three you might think of” that occur in nature. He explained that the
prayer beads would “help [him] concentrate when [he is] praying on each bead”
and that the triskele medallion is “integral to [his] religion” because it symbo-
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lizes “all the threes in nature.” According to McFaul, the triskele medallion can
be worn at all times for protection, but it is necessary to wear it only while prac-
ticing his religion.
After his first order was rejected, McFaul ordered a pentagram medallion
to be more compliant with Valenzuela’s instructions. He explained that the pen-
tagram he ordered could be used in the same way as the triskele, because it con-
tained a black onyx gemstone that would “allow [him] to connect with Mother
Earth a little better” and because he used a pentagram during religious rites. He
was unaware of a prison policy forbidding possession of a medallion exceeding
$25 until he received the response to his grievance about the pentagram. He
stated that another prisoner was allowed to have a “14k gold inverted penta-
gram,” which cost more than McFaul’s desired medallion. He also noted that the
craft shop at another prison unit made rosaries costing more than his medallion;
he believed that prisoners were permitted to make and possess such devotional
items.
McFaul currently has a Wiccan medallion. He no longer practices that
faith, however, and he does not use the Wiccan medallion in the practice of his
current religion. He searched the prison catalog to find an appropriate medal-
lion but has been unable to do so, because “the black onyx gemstone . . . really
connects me to the Earth, and . . . also connects to the moon and the moon is
important in [Celtic Druid] ritual.” McFaul explains that he is “in grave danger”
by practicing his magic without the “bare minimum” protection of the medallion.
He admits that he was performing the basic rites, but he is unable to “do the full
invoking ritual of the pentagram,” because he lacks protection.
McFaul claims that on one occasion when he asked about his medallion,
Valenzuela told him that he “was gonna burn in Hell and all pagans were going
to burn in Hell.” When McFaul told Valenzuela that he was going to file a griev-
ance based on the denial of his medallion, Valenzuela told him that he would
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“never get anything” if he kept filing grievances. McFaul had filed grievances
against Valenzuela in 2005 for denying him a medicine pouch.
B.
Following the Spears hearing, the defendants were served and filed an
answer generally asserting that McFaul was not entitled to relief. McFaul again
requested appointment of counsel, asserting that his incarcerated status would
prevent him from conducting the intensive research needed to prevail on his
claims and that an attorney would be better able to present evidence and cross-
examine witnesses. The court denied the motion, concluding that McFaul had
failed to show extraordinary circumstances.
McFaul also moved for leave to engage in discovery, requesting that the
court hold a conference pursuant to Rule 26(f) of the Federal Rules of Civil Pro-
cedure and that the court compel the defendants to comply with his requests for
documents. The defendants asserted that much of McFaul’s requested documen-
tation was irrelevant and that they had provided copies of relevant requested
information. McFaul responded that all requested documents were relevant to
his case, that all defendants were responsible for creating a policy or custom of
encouraging the violation of prisoners’ right to exercise their religion, and that
the majority of the documents sent to him were items already within his
possession.
McFaul sought to compel Griggs to respond to his interrogatories. The
defendants asserted that the responses had been provided, and they repeated
that all relevant documents had been produced. McFaul maintained that the
answers to queries that the defendants found irrelevant could assist him by
revealing additional witnesses or establishing the defendants’ intent to deprive
prisoners of their rights to exercise their religion. The defendants moved for
protection from discovery, asserting an intent to raise a defense of qualified
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immunity. The court ultimately denied the motions to compel. It granted the
protective order in part but ordered the defendants to provide responses to a lim-
ited number of McFaul’s interrogatories.
The defendants moved for summary judgment, asserting that McFaul’s
allegations were insufficient to warrant relief and that there was no genuine
issue of material fact. McFaul responded, arguing that the items approved by
TDCJ and the Smith Unit for Neo-Pagan religions were not appropriate for Cel-
tic Druidism, that his requested items were necessary to the practice of his relig-
ion, and that the defendants had placed a substantial burden on the free exercise
of his religion.
C.
The MJ issued a report recommending that summary judgment be granted
and that McFaul be denied relief on his civil rights claims. According to the
report, McFaul did not show that the failure of prison officials to give him the
bone skull necklace, the triskele pendant, and the mirrored black pendant placed
a substantial burden on his exercise of religion under RLUIPA or TRFRA,
because McFaul had not explained his need for the items and instead had pre-
sented evidence that adherents to Celtic Druidism could not reveal the secrets
of the religion. The report also found that McFaul had failed to state a First
Amendment claim, because the prison rules were neutral and reasonably related
to penological interests, that he could obtain other medallions in support of his
faith, and that he had failed to present evidence of alternatives. Finally, the MJ
found that McFaul had failed to establish a denial of equal protection, because
he did not show purposeful discrimination among similarly situated offenders.
McFaul submitted objections to the report, asserting that he had presented
evidence at his Spears hearing and through documentation from his religious
teacher explaining why the items were necessary to his faith, that the defen-
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dants’ reasons for denying the items were not legitimate, and that another
inmate had obtained a medallion costing over $50. He also argued that the
defendants should not have been granted a protective order from discovery,
because they could have obtained more information about the prisoner who
obtained a medallion costing over $50. Finally, McFaul objected to the MJ’s jur-
isdiction on account of the defendants’ never having consented to it.
The district court conducted an independent review of the record, over-
ruled McFaul’s objections, adopted the report, and granted summary judgment.
On appeal, McFaul challenges the summary judgment and various procedural
aspects of the case, including the denial of discovery and counsel and the juris-
diction of the MJ.
III.
A.
This court reviews a summary judgment de novo, using the same standard
as that employed by the district court. Carnaby v. City of Hous., 636 F.3d 183,
187 (5th Cir. 2011). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In reviewing
summary judgment, this court construes “all facts and inferences in the light
most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010) (internal citation and quotation marks omitted). Summary judgment
may not be thwarted by conclusional allegations, unsupported assertions, or
presentation of only a scintilla of evidence. Hathaway v. Bazany, 507 F.3d 312,
319 (5th Cir. 2007).
B.
McFaul contends that he presented sufficient evidence showing a genuine
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dispute of material facts related to his First Amendment claims. During the
Spears hearing, he alleged that he needs his devotional items to practice his
faith, and similar allegations were made by his spiritual advisor in affidavits.
Because of the “oral tradition” of Celtic Druidism, McFaul argues that the court
should give more weight to “[o]ral evidence than to doctrinal justification.”
Accordingly, his inability to possess the medallions stifles his ability to practice
Celtic Druidism.
“[I]nmates retain their First Amendment right to exercise religion; how-
ever, this right is subject to reasonable restrictions and limitations necessitated
by penological goals.” Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (footnotes
omitted). A restriction “impinging on an inmate’s constitutional rights must be
upheld ‘if it is reasonably related to legitimate penological interests.’”1 To evalu-
ate the reasonableness of a prison restriction, this court considers (1) whether
the regulation or action has a logical connection to the legitimate governmental
interests invoked to justify it; (2) whether the inmate has an available alterna-
tive means of exercising the rights; (3) the impact of accommodation on other
inmates, guards, and prison resources; and (4) the presence or absence of ready
alternatives that fully accommodate the prisoner’s “rights at de minimis cost to
valid penological interests.”2 “A court must determine whether the government
objective underlying the regulation at issue is legitimate and neutral, and that
the regulations are rationally related to that objective.” Freeman v. TDCJ, 369
F.3d 854, 860 (5th Cir. 2004) (internal quotation marks and citation omitted).
Due regard also must be given to the decisions of prison officials, because
1
Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132 S. Ct. 1510, 1515
(2012) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Mitchell v. Quarterman, 2012 U.S.
App. LEXIS 9788, at *6 (5th Cir. May 15, 2012) (per curiam) (unpublished).
2
Safley, 482 U.S. at 89-91; see Mitchell, 2012 U.S. App. LEXIS 9788, at *6; Baranowski
v. Hart, 486 F.3d 112, 120-22 (5th Cir. 2007).
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“‘prison administrators . . . , and not the courts, [are] to make the difficult judg-
ments concerning institutional operations.’”3
1.
The district court concluded that the TDCJ policy limiting religious medal-
lions to $25 is reasonably related to penological interests, including safety,
security, and discipline. It accepted the affidavit of Robert Eason, a TDCJ
Regional Director, who stated that McFaul could grind his pentagram into
shards to hurt others, that uniform sizes of medallions make it easier for guards
to identify contraband, and that McFaul could trade unique items such as the
skull necklace and the triskele medallion for contraband. The court decided that
these interests are rationally related to the $25 limitation and that McFaul had
presented no evidence to show that the policy was not applied neutrally. It also
found that McFaul was provided an opportunity to exercise his faith, because the
prison offered two medallions approved for Neo-Pagan faiths, that accommodat-
ing McFaul and other prisoners would cause guards to spend more time trying
to ascertain whether inmates possessed contraband, and that the strength of the
first three Safley factors outweighed any alternative accommodations that could
be presented by McFaul.
There is no dispute that the items sought by McFaul did not conform to the
prison requirements. Although a pentagram is approved for neo-Pagan relig-
ions, the black background of McFaul’s mirrored pentagram distinguished it
from the approved medallion, and it cost more than the $25 limit. The issue is
whether the prohibitions on nonconforming medallions and medallions costing
more than the prescribed amount violate the Free Exercise Clause.
The penological interests offered by the defendantsSSsafety and discipline
3
Safley, 482 U.S. at 89 (omission and alteration in original) (citing Jones v. N.C. Pris-
oners’ Union, 433 U.S. 119, 128 (1977)).
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SShave been found to be legitimate in other Free Exercise cases.4 McFaul
argues, however, that the $25 limitation that prevented him from obtaining his
black onyx pentagram was not neutral, because the prison had a procedure in
place that permitted it to approve more expensive religious items. He contends
that such exceptions may be used to “covertly suppress particular religious
beliefs that are not mainstream.”
Although the existence of exceptions may give rise to concern under
another set of facts, McFaul has presented no evidence demonstrating such dis-
crimination. The only example he offers of the prison’s granting such an excep-
tion was for a Satanist. Because he does not appear to be asserting that Satan-
ism is a “mainstream” religion, his single example indicates that the price limi-
tations are not used to repress the practice of nontraditional religions.
McFaul also argues that the prison’s claims of uniformity and security con-
cerns are irrational. He maintains that any considerations about uniformity are
frivolous in light of the variety of approved religious items available. Although
McFaul is correct that prison officials have approved a number of different
medallions for different religions, he has not shown that the desire for uniform-
ity is not a valid penological concern. As Eason stated in his affidavit, prison
guards can more easily become familiar with a limited number of approved
medallions, and requiring them to determine whether any non-conforming
medallion is worn for religious purposes or constituted contraband would be
impracticable.5
4
See, e.g., Green v. Polunsky, 229 F.3d 486, 490 (5th Cir. 2000) (stating that prison
grooming policies requiring short hair and no beards allow for rapid identification, prevent
concealment of contraband and weapons, and limit signals of gang affiliations); Mitchell, 2012
U.S. App. LEXIS 9788, at *7 (stating that safety is a legitimate reason to overcome religious
objection to being seen naked by a guard of the opposite sex).
5
See Green, 229 F.3d at 491 (concluding that allowing exceptions of short beards for
religious purposes would be impractical based on the number of inmates who would likely
(continued...)
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With respect to the prison’s concerns that glass-like substances in the pen-
tagram could be broken into shards and used as weapons, McFaul notes that
equally dangerous nonreligious items are available for prisoners to purchase in
the commissary. In particular, he notes that they may buy light bulbs, which
may also be broken and made into weapons. He attempts to analogize his case
to Mayfield v. TDCJ, 529 F.3d 599, 610-11 (5th Cir. 2008), in which this court
considered a prison policy prohibiting the possession of rune stones by Odinists.
In Mayfield, the plaintiff argued that the prohibition against rune stones was
irrational, because they were similar to Scrabble tiles or other game pieces that
prisoners could possess. See id. at 611. We ruled for the state for First Amend-
ment purposes, however, concluding that “issues of prison security are peculiarly
within the province and professional expertise of corrections officials” and defer-
ring to the expert judgment of such officials in concluding that the security con-
cerns constituted a legitimate penological interest. Id. (internal quotation marks
and citation omitted).
Furthermore, the prison does not wantonly hand out light bulbs but
requires each prisoner to turn in his expired bulb before he may obtain a new
one. Because it is fairly easy to tell which prison cells do not have a light bulb,
the opportunities to grind it into a weapon are limited.
McFaul also contends that prisoners on other units are allowed to possess
medallions with semiprecious stones, but he has provided no evidence of that.
During the Spears hearing, McFaul noted that prisoners could work in a craft
shop that made rosaries from semiprecious stones and other valuable items. He
presented his belief that prisoners could possess such religious items, apparently
because a prisoner was required to have $100 to start up a craft shop.
5
(...continued)
request such an exception from the grooming rules and the need for administrators to deter-
mine the legitimacy of stated beliefs).
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In his appellate brief, McFaul relies on a newspaper article presented in
the district court to support his assertion that “on the Stevenson Unit, piddlers
are allowed to possess and make rosary beads (a Religious Devotional Item)
made out of semi-precious natural stones.” The front page of the article, which
is the only part submitted to the court, reflects that prisoners do make rosaries
out of semiprecious materials, but there is no indication that they may possess
the materials outside the craft shop or that they are allowed to purchase com-
pleted rosaries. McFaul’s unsupported assertion that other prisoners are
allowed generally to possess such items is insufficient to establish that officials
do not have a legitimate penological interest in preventing the general posses-
sion of such valuable materials.
2.
To determine whether there is an alternative way for the prisoner to exer-
cise his right to practice his religion, courts consider “whether the regulation
entirely stifles the prisoner’s religious expression.” Scott v. Miss. Dep’t of Corr.,
961 F.2d 77, 81 (5th Cir. 1992). McFaul testified at his Spears hearing that he
was able to do daily rituals at morning, noon, sunset, and midnight despite the
deprivation of his medallions and his necklace. He contended, however, that he
was unable to engage in ritualistic magic ceremonies because he lacked a medal-
lion to protect him. Where an inmate is unable to engage in a particular religi-
ous practice, courts consider “whether under these regulations [prisoners] retain
the ability to participate in other . . . religious ceremonies.” O’Lone v. Estate of
Shabazz, 482 U.S. 342, 352 (1987). The Supreme Court concluded that rules
requiring prisoners to stay at work all day and prohibiting Muslim prisoners
from attending Jumu’ah could be upheld, even though there was no alternative
to attending Jumu’ah, because Muslim prisoners had other avenues to practice
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their religion.6
The only Celtic Druid rituals specifically testified to by McFaul were the
ritual salutations occurring four times daily, which he was still able to perform.
Although he also asserted he needed the medallions to protect him during magic
rituals, he did not explain what these rituals entailed or whether and why they
were necessary, other than his assertion that “the full invoking ritual of the pen-
tagram” was “required by [his] faith.” Although McFaul provided a sworn state-
ment and a letter from Byron Holmes, his “spiritual teacher,” Holmes provided
no explanation of the rituals’ importance to Celtic Druidism or why the medalli-
ons were necessary; instead, he asserted that practitioners “are sworn to silence
in certain mysteries of [the] religion.”
Thus, McFaul has provided nothing for this court to credit. Given his
admission that he was able to engage in some of the observances necessary to his
religion, his inability to participate in other “required” rituals does not show an
absence of alternatives. See id. at 351-52.
3.
The third Safley factor is the impact of accommodation on other inmates,
guards, and prison resources. Safley, 482 U.S. at 91. As noted above, permitting
prisoners to possess medallions that do not conform to the approved standard
would cause prison guards extra effort in determining whether items are per-
mitted religious medallions or contraband items. In addition, there is a danger
that prisoners could fight over or steal medallions that are perceived as more
valuable than the standard items offered. Such increases in costs weigh in favor
6
Estate of Shabazz, 482 U.S. at 351-52; see also Green, 229 F.3d at 491 (“Neither does
the TDCJ grooming policy deprive Muslim inmates of ‘all means of expression’ of their religi-
ous beliefs. It merely removes or reduces one of many avenues by which they may manifest
their faith.”) (internal footnote and citation omitted).
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of the prison’s policies. See Green, 229 F.3d at 491.
4.
The final Safley factor is the presence or absence of ready alternatives that
fully accommodate the prisoner’s “rights at de minimis cost to valid penological
interests.” Safley, 482 U.S. at 91. The court noted that McFaul had not posited
any alternatives. It also concluded that “even if he had, the weight of the other
three factors shows that the regulation is valid.” McFaul maintains that the
court erred by not considering the reasonable alternative of limiting the religious
items available to prisoners in a neutral manner.
McFaul failed to offer any evidence, however, that the prison’s application
of the policy was not applied neutrally. As noted above, he alleges only one
instance of the prison’s granting an exception to the policy, and it was for a
Satanist. Under the circumstances, McFaul has not established the existence
of a genuine issue of material fact regarding whether defendants violated his
First Amendment free-exercise rights.
IV.
McFaul appeals the dismissal of his claim that the defendants violated his
statutory rights under RLUIPA, 42 U.S.C. § 2000cc, and TRFRA, TEX. CIV. PRAC.
& REM. CODE § 110. Those statutes prevent governments from imposing a sub-
stantial burden on religious exercises by inmates without a compelling govern-
mental interest. Because McFaul fails to offer evidence beyond a mere assertion
that the prison’s policies substantially burden the exercise of his religion, we
affirm the dismissal of his statutory claims.
“RLUIPA imposes a higher burden than does the First Amendment in that
the statute requires prison regulators to put forth a stronger justification for reg-
ulations that impinge on the religious practices of prison inmates.” Mayfield,
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529 F.3d 599, 612 (5th Cir. 2008). Under RLUIPA, “[n]o government shall
impose a substantial burden on the religious exercise of [an inmate] . . . unless
the government demonstrates that imposition of the burden on that personSS
(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42
U.S.C. § 2000cc-1(a). “[T]he plaintiff bears the initial burden of proving that the
challenged government action substantially burdens the plaintiff’s religious
exercise.” DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011) (internal quotation
marks and citation omitted).
To establish a “substantial burden,” the prisoner must show that “it truly
pressures the adherent to significantly modify his religious behavior and signifi-
cantly violate his religious beliefs.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th
Cir. 2004). Such a burden is shown if the prisoner is influenced to act in viola-
tion of his religious beliefs or is forced to choose between enjoying a generally
available benefit and following his religious beliefs. Id. “If the plaintiff meets
this burden of proof, the burden shifts to the government to demonstrate that its
action was supported by a compelling interest and that the regulation is the
least restrictive means of carrying out that interest.” DeMoss, 636 F.3d at 150(internal quotation marks and citation omitted). Claims under TRFRA may be
resolved by consideration of case law applying RLUIPA and its predecessor, the
Religious Freedom Restoration Act of 1993. A.A. ex rel. Betenbaugh v. Needville
Indep. Sch. Dist., 611 F.3d 248, 258-59 (5th Cir. 2010). McFaul is not entitled
to monetary damages under RLUIPA.7 Accordingly, we analyze only his claims
for declaratory and injunctive relief under RLUIPA.
The district court concluded that McFaul failed to satisfy his initial burden
because he did not show how the TDCJ policies acted as a substantial burden on
7
See Mitchell, 2012 U.S. App. LEXIS 9788, at *9 (citing Sossamon v. Lone Star State
of Tex., 560 F.3d 316, 321-22 (5th Cir. 2009), aff’d, 131 S. Ct. 1651, 1663 (2011)).
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his ability to practice his religion. The court based its conclusion on the affidavit
from McFaul’s “spiritual advisor” indicating that practitioners of Celtic Druidism
may not talk about the practices of the religion. A review of the record indicates
that McFaul did provide some explanation of the rituals during his Spears hear-
ing. Nevertheless, his silence regarding the doctrines of the religion prevents
him from showing that the burdens on his religious exercise are substantial.
During the Spears hearing, McFaul asserted that he needed the prayer
beads to help him concentrate during his prayers. He also claimed that if he
wore the triskele pendant while he was practicing magic, he would “put all [his]
energy” or “charge the medallion” and it would protect him during his rituals.
He acknowledged, however, that the pentagram amulet would perform the same
function, that the black onyx in it would help him “connect with Mother Earth
a little better,” and that the pentagram could be used in rituals, although “the
Triskele would [have] better fit [his] practice.” He maintained that a pentagram
without the black onyx would be less effective, because the shape was only “a
symbol in a gateway into whatever element like the Earth through the moon”
that the practitioner is attempting to enter. Although McFaul admitted that he
was able to practice his daily observances, he was unable to conduct “the full
invoking ritual of the pentagram,” because he lacked an amulet to protect him-
self while performing the necessary spells. Thus, he has provided evidence that
the lack of an onyx on his pentagram somewhat interferes with the exercise of
his religion, but he has not met his burden to show that the interference is
substantial.
In Smith v. Allen, 502 F.3d 1255, 1277-79 (11th Cir. 2007), abrogated on
other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011), the court confronted
the issue of whether the substantiality of a burden can be demonstrated by the
mere assertion of an inmate. Smith considered a claim by an Odinist that his
inability to obtain a quartz crystal constituted a substantial burden on the prac-
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No. 11-10218
tice of his religion. Smith asserted that the crystal was necessary to his religion
because it permitted him to communicate with the netherworld, and he pre-
sented general sources that reflected that quartz crystals are used in many pre-
historic religions, although they did not list Odinism. Id. at 1278. He main-
tained that he had established a RLUIPA violation because he asked for the
crystal, and he said that he needed it to follow his sincerely held religious beliefs.
Id. The court rejected that assertion, stating that “[s]uch an expansive reading
. . . would require [courts] to find a substantial burden whenever any request in
connection with a sincere religious belief was denied by a state prison.” Id. at
1278. The court concluded that “Smith’s own assertion and his scant sources”
were insufficient to establish that he had suffered more than an inconvenience
rather than a substantial burden. Id. at 1278-79.
In Sossamon, 560 F.3d at 333, however, this court concluded that a pris-
on’s prohibition of an inmate’s access to a chapel to pray before a cross and altar
could constitute a substantial burden on religious exercise, even though a cleric
swore that such activities were not a necessary practice of Christianity. We
noted that Smith did not contradict this conclusion, observing that Smith had
received numerous devotional items related to his religion and was still able to
practice Odinism. Id. at 332-33 n.64. We reasoned that “[t]he denial of the
quartz crystal . . . is markedly different from a wholesale denial of what Sossa-
mon claims is core to the practice of his Christianity, at least for summary judg-
ment purposes.” Id.Thus, Sossamon established a factual dispute regarding whether the pris-
on’s actions interfered with a practice he considered core to his Christian beliefs.
McFaul, in contrast, has at best provided mixed evidence regarding the central-
ity of the onyx and prayer beads. Furthermore, by stating that he will not dis-
cuss the doctrines of his religion, he has provided evidence that proceeding
beyond summary judgment would be especially fruitless.
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Without some religious framework, claims such as McFaul’s would open
the door to finding that any inmate’s assertion constitutes a sincerely held religi-
ous belief and that any limitation on that belief constitutes a substantial burden
on the practice of his religion. See Smith, 502 F.3d at 1278. Accordingly, we
affirm the dismissal of the RLUIPA and TRFRA claims.
V.
McFaul contends that defendants violated his equal protection rights. He
claims that inmates in other prison units were allowed to have expensive religi-
ous medallions that were not sold in the commissary. And he points to the
Satanist who was able to obtain a gold inverted pentagram that cost more than
the $25 prison limit. Because those facts, even if true, would not prove discrim-
inatory intent, we affirm the dismissal of the equal protection claim.
To establish a Fourteenth Amendment equal-protection claim, McFaul
“must allege and prove that he received treatment different from that received
by similarly situated individuals and that the unequal treatment stemmed from
a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001).
The Equal Protection Clause does not require “that every religious sect or group
within a prisonSShowever few in numbersSSmust have identical facilities or per-
sonnel”; it requires only that prison officials afford inmates “reasonable oppor-
tunities . . . to exercise the religious freedom guaranteed by the First and Four-
teenth Amendment[s].” Baranowski, 486 F.3d at 123 (internal quotation marks
and citation omitted).
Even if we assume the truth of McFaul’s allegations that a Satanist pris-
oner was granted an exception to the medallion policy, he has not shown the
existence of “a genuine dispute as to any material fact.” FED. R. CIV. P. 56(a). He
relies on the fact that the Satanist obtained a medallion costing $61.95, the same
price as his black onyx pentagram. He asserts that this differential treatment
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No. 11-10218
resulted from discriminatory intent, as indicated by Valenzuela’s statement that
McFaul was going to burn in hell.
The full quotation reflected, however, that Valenzuela believed that “all
pagans were going to burn in Hell.” McFaul’s only evidence of discriminatory
treatment involves the provision of a medallion exceeding the price limit to a
Satanist, presumably also considered by Valenzuela as a “pagan.”8 McFall pro-
vides no evidence that the price-limit rule does not exist or that individuals
belonging to standardized religions or Christian denominations were able to
obtain religious relics exceeding the price limit.
McFaul’s own assertions undercut his argument that he was denied his
religious medallions and treated differently from the Satanist based on Valen-
zuela’s animosity to non-Christian or non-mainstream religions. McFaul thus
has not established a question of material fact regarding the discriminatory
intent required under the Equal Protection Clause. See Taylor, 257 F.3d at 473.
McFaul also appears to be arguing that the denial of his medallions consti-
tuted retaliation for his filing of grievances. Although the district court did not
address such an argument, liberal constructions of McFaul’s complaint and
statements at the Spears hearing reflect that he tried to raise such an allegation.
His claim is unavailing.
To state a retaliation claim, “a prisoner must allege (1) a specific constitu-
tional right, (2) the defendant’s intent to retaliate against the prisoner for his or
her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones
v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). McFaul relies on the fact that
Valenzuela told him that he was going to burn in Hell and that if McFaul con-
tinued to file grievances, “he would never get anything.” Valenzuela purportedly
8
See WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 844 (1984) (defining pagans
and individuals who are non-Christian or do not belong to a Christian, Jewish, or Muslim
denomination).
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made the “hell” statement on June 24, 2009, when he first told McFaul that he
was not going to receive his black onyx pentagram medallion and the “grievance”
statement when he advised McFaul of the warden’s denial of the request on
July 2. McFaul asserts that the “hell” statement shows that Valenzuela had
already intended to deny the request for the medallion. But given that the price
of the medallion provided a valid basis for Valenzuela to withhold it from
McFaul, McFaul has not established the requisite intent.9
Additionally, prison policies show that the warden rules on whether to
allow a prisoner to obtain a nonconforming medallion. McFaul provides no evi-
dence that any of the wardens was aware of Valenzuela’s statement, so he has
not shown the necessary causation. See Jones, 188 F.3d at 324-25. As for the
“grievance” statement, McFaul does not allege that he has been deprived of any
requested religious items after the statement was made. Therefore, he has not
presented an adverse action taken against him for a retaliatory purpose. Id.McFaul also appears to contend that he was denied due process because
the defendants failed to follow prison policy for denying requests for religious
items. To the extent that he presented such a claim in the district court, he has
not shown a genuine dispute of material fact. An assertion that prison officials
failed to follow prison rules or policies does not set forth a constitutional claim.
See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989). To the extent that
McFaul is alleging a freestanding due-process claim because the prison failed to
follow its own procedures for reviewing requests for religious items, “[p]rocess
is not an end in itself.” District Attorney’s Office for Third Judicial Dist. v.
Osborne, 129 S. Ct. 2308, 2319 (2009). “Its constitutional purpose is to protect
a substantive interest to which the individual has a legitimate claim of entitle-
9
See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (finding no evidence of
retaliatory intent or causation if a violation of a reasonable prison regulation supported the
adverse action).
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ment.” United States v. Crouch, 84 F.3d 1497, 1516 (5th Cir. 1996) (internal
quotation marks omitted). Because McFaul has not shown that the defendants
violated a constitutionally protected interest, he has not established a due-pro-
cess violation. See Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 557 (5th
Cir. 1988).
VI.
McFaul argues that the MJ lacked jurisdiction to rule on his motions
because the defendants never consented to her jurisdiction. He maintains that
he was prejudiced by the MJ’s rulings but that his consent to her authority
deprived him of the ability to object to the rulings and that the defendants
retained the right to object by failing to give consent. McFaul’s assertioins are
meritless.
Parties may consent in writing to having a MJ conduct proceedings and
enter final judgment in a civil matter.10 Even if the parties do not consent, how-
ever, the district court may designate a MJ “to hear and determine any pretrial
matter pending before the court” even where a motion for summary judgment
is excepted from such rulings. § 636(b)(1)(A). An aggrieved party may appeal
such a ruling to the district court if the MJ’s ruling was legally or factually incor-
rect. Id. Moreover, under § 636(b)(1)(B), the court may authorize the MJ “to
conduct hearings . . . and to submit to a judge of the court proposed findings of
fact and recommendations for the disposition” of motions excepted under § 636-
(b)(1)(A). After such a recommendation, the parties may submit written objec-
tions within fourteen days after receiving a copy of the recommendation and may
have their objections reviewed de novo by the district court. § 636(b)(1)(C); FED.
10
28 U.S.C. § 636(c)(1); Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647
F.3d 156, 171-72 (5th Cir. 2011); Archie v. Christian, 808 F.2d 1132, 1135 n.3 (5th Cir. 1987)
(en banc).
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R. CIV. P. 72(b).
That procedure was followed here. Thus, the MJ properly ruled on
McFaul’s motions and entered a recommendation on the motion for summary
judgment despite the defendants’ failure to consent to her consideration of the
motions.
VII.
McFaul maintains that the district court prejudiced him by granting
defendants’ request for a discovery protective order. He contends that any
absence of a factual dispute was the result of the limitations on his ability to
conduct discovery. He argues that as a result of the protective order, he was
unable to obtain evidence that TDCJ was applying prison policies in a non-
neutral manner. He also asserts that Pierce provided nonresponsive answers to
his interrogatories and that the defendant was “supposed to seek the answer to
the question if he [does not] know the answer,” such as by “call[ing] other Unit
Wardens and ask[ing] them what was the most expensive medallion that has
been approved for an Offender to have within the last five years, the last two
years, and within the last year.”
A district court may exercise its “sound discretion” with respect to dis-
covery matters. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (internal quota-
tion marks and citation omitted). A party opposing summary judgment “must
show how the additional discovery will defeat the summary judgment motion.”
Id. Although motions to conduct discovery are generally favored and should be
liberally granted, Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir.
2001), the movant “may not simply rely on vague assertions that additional dis-
covery will produce needed, but unspecified facts,” but instead must show why
he needs additional discovery and how that discovery will create a genuine issue
of material fact, id. (internal quotation marks and citation omitted).
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No. 11-10218
In granting the defendants’ request in part, the court did order responses
to some discovery requests relating to the value of religious medallions that had
been approved. McFaul does not offer any description of the evidence that would
have been revealed if the court had permitted him additional discovery, so he
cannot meet his burden to show how the discovery would have created a genuine
issue of material fact. Id.McFaul further contends that the defendants did not give “proper
responses” to the interrogatories that the court ordered answered. The only
inadequate response he discusses is one given by Pierce. Because he has not
briefed any challenge to the other answers, any such claims are deemed aban-
doned. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
With respect to Pierce’s interrogatories, McFaul asked him “[p]lease state
the most expensive medallion that has been approved for an offender to have
within the last five years, the last two years[,] and within the last year.” Pierce
replied,
To my knowledge, the most expensive religious medallion available
for sale in the unit commissaries at any time during the last five
years has been the Wiccan medallion priced at $25.75. I have been
director of Chaplaincy since 2002. In this position, I am not
involved in the unit requests for medallions. Additionally, according
to policy, medallions over the amount of $25.00 require the warden’s
approval.
McFaul complains that this is unresponsive and evasive and that Pierce had an
obligation to obtain the requested information from TDCJ unit wardens. Courts
may not consider the responses to interrogatories that are not within the per-
sonal knowledge of the individual answering them.11 Pierce provided McFaul
11
See BMG Music v. Martinez, 74 F.3d 87, 90 n.18 (5th Cir. 1996); see also FED. R. CIV.
P. 56(c)(4) (stating that affidavits or declarations supporting a motion for summary judgment
(continued...)
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No. 11-10218
with the information within his personal knowledge about the pricing of religi-
ous medallions. Any information he had obtained from unit wardens would not
have been within his personal knowledge and thus would not constitute a proper
interrogatory response. Therefore, McFaul has failed to show that the desired
answer would have created a genuine dispute of material fact. See Beattie, 254
F.3d at 606.
VIII.
McFaul asserts that the district court erred in denying his motions for
appointment of counsel. He maintains that because his adherence to a religion
relying solely on an oral tradition for First Amendment protections is an issue
of first impression, extraordinary circumstances exist warranting the assistance
of an attorney. There is no general right to counsel in civil rights actions. Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). An attorney should be appointed only
if exceptional circumstances exist. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982). The factual issues surrounding McFaul’s claims are relatively sim-
ple. Although he asserts that his case is “extraordinary” because his religion is
based on an oral tradition, his claims are not unique or unusual. See, e.g.,
Adkins, 393 F.3d at 567. Because McFaul has not shown exceptional circum-
stances, the court did not abuse its discretion in denying counsel. See Jackson
v. Dall. Police Dep’t, 811 F.2d 260, 260-61 (5th Cir. 1986).
The summary judgment is AFFIRMED.
11
(...continued)
must be based on personal knowledge).
24