Edward Jones, Jr. v. S. Slade ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD LEE JONES, JR., No. 20-15642
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-02034-
MTL-JZB
S. SLADE, South Unit Property
Officer COII #1777 at Arizona
Department of Corrections; D. OPINION
MILLER, Employee of Office of
Publication Review at Arizona
Department of Corrections Central
Office; DAVID SHINN, Director,
Defendants-Appellees,
and
CHARLES L. RYAN; CARSON
MCWILLIAMS; J. GUZMAN; LORI
STICKLEY,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted August 31, 2021
San Francisco, California
2 JONES V. SLADE
Filed January 24, 2022
Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit
Judges, and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Prisoner Civil Rights
The panel reversed the district court’s summary judgment
for prison officials in an action alleging that the confiscation
of plaintiff’s mail violated his rights under the Free Speech
and Free Exercise Clauses of the First Amendment and the
Religious Land Use and Institutionalized Persons Act.
Plaintiff, Edward Lee Jones, Jr., is incarcerated at the
Arizona State Prison Complex. In late 2017 and early 2018,
Jones ordered by mail six hip-hop, R&B CDs and two Nation
of Islam texts. All of the items were confiscated as
contraband pursuant to an Arizona Department of Corrections
(ADC) Department Order 914 (“DO 914”), which regulates
the content of incoming mail.
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JONES V. SLADE 3
The panel held that genuine issues of material fact existed
both as to whether the ADC applied its order inconsistently
as to the CDs, in violation of Jones’s free-speech rights, and
whether the exclusion of Jones’s Nation of Islam texts
substantially burdened his religious exercise in violation of
the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) and the Free Exercise Clause. Addressing first
the claims pertaining to the confiscation of the CDs, the panel
held that, viewing the evidence in the light most favorable to
Jones, there was a material question of fact here—whether
ADC selectively enforces DO 914 against disfavored
expression, rap and R&B musical genres. Jones had
proffered sufficient evidence of inconsistent application of
DO 914 to preclude summary judgment. Because a genuine
issue of fact existed as to whether there was a valid, rational
connection between DO 914, as applied to Jones, and ADC’s
legitimate interests in security, rehabilitation, and reducing
sexual harassment, the panel determined that it need not
address the remaining factors set forth in Turner v. Safley,
482 U.S. 78 (1987). The panel reversed the grant of summary
judgment with respect to the CDs ADC withheld from Jones
and remanded for further proceedings, expressing no views
on the merits of Jones’s claims.
Addressing the claims relating to the confiscation of two
religious texts, the panel determined that the district court
characterized Jones’s religious exercise too broadly as
observing Ramadan rather than reading Nation of Islam texts
during Ramadan. Having defined the scope of Jones’s
religious exercise—reading his Nation of Islam texts during
Ramadan—the panel next held that there was a genuine issue
of fact as to whether denying Jones essential religious texts
during Ramadan was a substantial burden on his religious
exercise. Accordingly, summary judgment was inappropriate
4 JONES V. SLADE
on Jones’s RLUIPA claim. The panel left it to the district
court on remand to assess whether ADC could demonstrate
that applying the challenged regulation to Jones served a
compelling interest and met the exceptionally demanding
least-restrictive-means standard.
The panel further held that for the same reasons that the
district court’s analysis was flawed under RLUIPA, it did not
hold up under the Free Exercise Clause. Thus, it was
impermissible for the district court to focus on whether
reading Elijah Muhammad’s texts was required to observe
Ramadan, rather than whether Jones sincerely believes
reading these texts during Ramadan was consistent with his
faith. Because the district court did not reach the Turner
analysis, the panel left it to the district court on remand to
determine whether DO 914 was rationally related to a
legitimate penological interest.
COUNSEL
J. Matthew Rice (argued) and Ryan L. Giles, Williams &
Connolly LLP, Washington, D.C.; Easha Anand, Roderick &
Solange MacArthur Justice Center, San Francisco, California;
for Plaintiff-Appellant.
Patrick J. Boyle, Assistant Attorney General, Mark Brnovich,
Attorney General; Office of the Attorney General, Phoenix,
Arizona; for Defendants-Appellees.
Nicholas R. Reaves, Eric C. Rassbach, and Daniel L. Chen,
Becket Fund for Religious Liberty, Washington, D.C., for
Amicus Curiae Becket Fund for Religious Liberty.
JONES V. SLADE 5
Corene Kendrick, American Civil Liberties Union
Foundation, San Francisco, California; Emerson Sykes and
Vera Eidelman, American Civil Liberties Union Foundation,
New York, New York; Daniel Mach and Heather L. Weaver,
American Civil Liberties Union Foundation, Washington,
D.C.; Victoria Lopez, American Civil Liberties Union
Foundation of Arizona, Phoenix, Arizona; for Amici Curiae
American Civil Liberties Union and American Civil Liberties
Union of Arizona.
OPINION
BYBEE, Circuit Judge:
Appellant Edward Lee Jones, Jr. is incarcerated at the
Arizona State Prison Complex—Eymen. In late 2017 and
early 2018, Jones ordered by mail six hip-hop, R&B CDs and
two Nation of Islam texts. All of the items were confiscated
as contraband pursuant to an Arizona Department of
Corrections (ADC) order, which dictates what publications
are allowed in ADC facilities. The issue before us is whether
these confiscations violated Jones’s rights under the Free
Speech and Free Exercise Clauses of the First Amendment,
as made applicable to Arizona by the Due Process Clause of
the Fourteenth Amendment, or the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-
1 et seq. The district court granted summary judgment in
favor of the Arizona Defendants on Jones’s claims under
42 U.S.C. § 1983 and RLUIPA.
We conclude that genuine issues of material fact exist
both as to whether the Arizona Department of Corrections
applied its order inconsistently as to the CDs, in violation of
6 JONES V. SLADE
Jones’s free-speech rights, and whether the exclusion of
Jones’s Nation of Islam texts substantially burdened his
religious exercise in violation of RLUIPA and the Free
Exercise Clause. Because these questions preclude summary
judgment, we reverse and remand to the district court for
further proceedings.
I. BACKGROUND
A. ADC’s Inmate Mail Policy
The Arizona Department of Corrections regulates the
content of incoming mail pursuant to Department Order 914
(DO 914), Inmate Mail, effective April 7, 2017. DO 914’s
stated purpose is “maintaining the safety, security and orderly
operations of the institutions.” Under the policy, staff at each
ADC facility will “open, inspect and read incoming mail to
prevent criminal activity and prevent inmates from receiving
contraband or any other material that may be detrimental to
the safe and orderly operation of the institution.” DO 914.02
§ 1.5. Publications—which include CDs, books, and
magazines—are subject to additional procedures. First, they
must come directly from a publisher, distributor, or retailer.
DO 914.03 § 1.3; DO 914.06 § 1.4. Second, ADC staff
inspect the content of each CD or publication that enters ADC
facilities “[i]n order to assist with rehabilitation and treatment
objectives, reduce sexual harassment and prevent a hostile
environment for inmates, staff and volunteers.” DO 914.07
§ 1.1. DO 914.07, titled “Unauthorized Content,” sets forth
twenty broad categories, including nudity, sexual activity,
street gangs, martial arts, the functioning of security devices,
drug use, weapons, computers, tattooing, ciphers or codes,
acts of violence, and canine search procedures. It also has a
catch-all provision for any publication deemed “detrimental
JONES V. SLADE 7
to the safe, secure, and orderly operation of the institution.”
DO 914.07 § 1.2. As relevant here, DO 914.07 prohibits
inmates from receiving publications containing the following:
§ 1.2.2.3: Publications depicting in either
visual, audio, or written form: “[s]exual
intercourse, vaginal or anal, fellatio,
cunnilingus, bestiality, or sodomy.”
§ 1.2.4: “Depictions or descriptions of street
gangs and/or Security Threat Groups (STG),
and related gang/STG paraphernalia,
including, but not limited to, codes, signs,
symbols, photographs, drawings, training
material, and catalogs.”
§ 1.2.7: “Depictions or descriptions, or
promotion of drug paraphernalia or
instructions for the brewing of alcoholic
beverages or the manufacture or cultivation of
drugs, narcotics or poisons.”
§ 1.2.8: “Content that is oriented toward
and/or promotes racism and/or religious
oppression and the superiority of one
race/religion/political group over another,
and/or the degradation of one
race/religion/political group by another.”
§ 1.2.16: “Pictures, depictions or illustrations
that promote acts of violence including, but
not limited to, murder, rape, sexual assault,
assault, amputation, decapitation,
dismemberment, mutilation, maiming,
8 JONES V. SLADE
disfigurement, crime scene/autopsy
photographs, or cruelty to animals.”
§ 1.2.17: “Content in publications,
photographs, drawings, or in any type of
image or text, that may, could reasonably be
anticipated to, could reasonably result in, is or
appears to be intended to cause or encourage
sexual excitement or arousal or hostile
behaviors, or that depicts sexually suggestive
settings, poses or attire, and/or depicts sexual
representations of inmates, correctional
personnel, law enforcement, military,
medical/mental health staff, programming
staff, teachers or clergy.”
§ 1.2.20: “Any publication or part of a
publication that, although not specifically set
forth herein, may otherwise be detrimental to
the safe, secure, and orderly operation of the
institution.”
In order to promote consistent application of its policy,
ADC maintains a statewide database of exclusion decisions.
Publication review staff regularly cross-check to see if a
publication under review has either been excluded or allowed
by another ADC facility. Publications that have been
previously excluded or allowed in one facility will similarly
be excluded or allowed in other ADC facilities. Inmates and
publishers have thirty days to appeal the publication review
staff’s decision to the Office of Publication Review (OPR),
which handles appeals from all ADC complexes. DO 914.08
§ 1.2. OPR’s decisions, which are denominated “second-
JONES V. SLADE 9
level review” are final and exhaust an inmate’s administrative
remedies. DO 914.08 § 1.2.2.5.
B. Facts
The following facts are largely undisputed. Jones has
been in ADC’s custody since 2008. He is a member of the
Nation of Islam and a follower of the teachings of Elijah
Muhammad, who Jones considers to be the last prophet of
Allah. Jones believes that Elijah Muhammad’s writings are
essential religious texts that provide him with religious
instruction, including teachings on how to pray. Jones
considers Elijah Muhammad’s writings central to his belief
system and that reading Muhammad’s texts is one way he
may practice and express his religion. For adherents of the
Nation of Islam, Ramadan is a holy month of fasting, self-
reflection, and service to humanity. Nation of Islam members
in ADC facilities have access to the Qur’an and the ability to
pray in their cells. Jones is also a fan of rap and R&B music.
In late 2017 and early 2018, Jones ordered six CDs and
two books that ADC classified as contraband and confiscated.
The CD’s excluded as violating DO 914.07 were:
(1) “untitled unmastered” (2016) by Kendrick
Lamar, a Grammy- and Pulitzer Prize-winning
artist, for violating the violence and sexual
excitement provisions, §§ 1.2.16, 17.
(2) “Tha Blue Carpet Treatment” (2006) by
Grammy-nominated artist Snoop Dogg for
violating the gangs, drugs, and violence
provisions, §§ 1.2.4, 7, 16.
10 JONES V. SLADE
(3) “Street Gospel” (1997), by Suga Free for
violating the sexual intercourse, gangs, drugs,
violence, and sexual excitement provisions,
§§ 1.2.2.3, 1.2.4, 7, 16, 17.
(4) “Trials & Tribulations” (2013), by Ace
Hood for violating the sexual intercourse,
violence, sexual excitement, and catch-all
provisions, §§ 1.1, 1.2.2.3, 1.2.16, 17, 20.
(5) “The D-Boy Diary Book 1” (2016) by E-
40 for violating the gangs, drugs, violence,
and catch-all provisions, §§ 1.2.4, 7, 16, 20.
(6) “Trilogy” (2012), a triple-platinum album
by Grammy-winning artist The Weeknd, for
violating the drugs and sexual excitement
provisions, §§ 1.2.7, 17.
Jones requested second-level review of the CD exclusions.
All exclusions were upheld by OPR.
Jones had also ordered two books by Elijah Muhammad:
Message to the Blackman in America (1965) and The Fall of
America (1973). Both were excluded under DO 914.07
§ 1.2.8 for promoting racism or the superiority of one group.
ADC staff excluded the books without review because each
text had been previously excluded by an ADC facility. Jones
sought second-level review of the text exclusions, but OPR
informed Jones that the exclusions of Messages to the
Blackman and The Fall of America had been upheld
previously and that those second-level decisions would
remain final.
JONES V. SLADE 11
C. Procedural History
In June 2018, Jones lodged a pro se civil rights complaint
in district court under 42 U.S.C. § 1983, alleging on-its-face
and as-applied violations of the Free Speech and Free
Exercise Clauses of the First Amendment and Due Process
Clause of the Fourteenth Amendment as well as a violation of
RLUIPA. Jones sought injunctive and monetary relief,
including punitive damages, against seven defendants:
Charles Ryan, the Director of the ADC; Doe #1, Deputy
Director of ADC; Carson McWilliams, ADC’s Division
Director of Support Services; S. Slade, an ADC property
officer; D. Miller, an ADC employee at OPR; J. Guzman, an
ADC employee at OPR; and Lori Stickley, Deputy Warden.
The district court screened the complaint as required by
28 U.S.C. § 1915(a) and dismissed Defendants Doe #1,
McWilliams, and Stickley, as well as several of Jones’s
claims. The court allowed Jones’s suit to proceed against
ADC Director Ryan in his official capacity and against
Defendants Slade, Miller, and Guzman in their individual
capacities.1 The court later dismissed defendant Guzman, and
it substituted newly appointed ADC Director David Shinn for
former Director Ryan.
1
Officer Slade informed Jones of the confiscation, but played no role
in reviewing the publications. Officer Miller personally reviewed
“untitled unmastered” by Kendrick Lamar and “Tha Blue Carpet
Treatment” by Snoop Dog as part of OPR’s second level review, and she
confirmed the publication staff’s decision to exclude the CDs. Miller also
responded to Jones’s request for second level review of Message to the
Blackman in America and The Fall of America. She informed Jones that
OPR had already reviewed the decisions to exclude the texts so no further
review would take place. Officer Guzman, who was dismissed because
Jones failed to serve him, made the decision to uphold the exclusion of the
remaining four CDs.
12 JONES V. SLADE
The district court granted summary judgment in favor of
the Defendants on all claims. Evaluating Jones’s facial
challenge to DO 914 under Turner v. Safley, 482 U.S. 78(1987), the court rejected Jones’s free speech challenge,
holding that ADC’s interests—rehabilitation, reducing sexual
harassment, and preventing a hostile environment—were
legitimate and that there was a rational connection between
those interests and restricting inmates’ access to explicit
materials. The court found that inmates’ access to the radio
and non-explicit publications provided an adequate
alternative. The court credited ADC’s assertion that allowing
prohibited material would be detrimental to the prison
environment. And, the court found that Plaintiff’s suggestion
that existing disciplinary procedures are adequate to address
ADC’s concerns is not an obvious alternative to the policy.
Because the court found that all four of the Turner factors
weighed in ADC’s favor, it concluded that DO 914.07 was
not unconstitutional on its face and granted summary
judgment for Defendant Shinn, who was sued in his official
capacity. With respect to Jones’s as-applied claim, the court
granted summary judgment for Defendants Slade and Miller,
finding that Jones failed to demonstrate a dispute as to
whether either defendant personally violated his First
Amendment rights because Slade was not involved in the
decisions to exclude his CDs and there was no evidence that
Miller’s decisions on two of the CDs were incorrect.
The district court also granted summary judgment with
respect to Jones’s RLUIPA and free-exercise claims because
the court held that the exclusion of the two religious texts did
not substantially burden Jones’s religious practice. The court
concluded that Jones had “not articulated why he was able to
successfully observe Ramadan for the 10 years prior to 2018,
or what has occurred to render him now unable to
JONES V. SLADE 13
successfully observe Ramadan without the books he
requested.”
II. STANDARD AND SCOPE OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review a district court’s grant of summary judgment de novo,
and may affirm on any basis supported by the record.”
Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.
2009). “Our review is governed by the same standard used
by the trial court under Federal Rule of Civil Procedure 56.”
Id. “We determine, viewing the evidence in the light most
favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Wallis v.
Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002).
Jones has narrowed the scope of our review of the district
court’s order. In the district court, Jones sought an injunction
ordering ADC not to destroy his property. The court denied
his request, and Jones has not challenged that determination
on appeal. Jones has not appealed the district court’s
judgment that DO 914 is constitutional on its face. Jones also
does not challenge the grant of summary judgment as to
Defendant Slade in her individual capacity with respect to his
free-speech claim. We are thus left with Jones’s request for
declaratory and injunctive relief against ADC Director Shinn,
who was sued in his official capacity, and his damages claim
against Miller, who was sued in her individual capacity. Both
of those claims relate to Jones’s free speech claim with
respect to the CDs. Jones also appeals the district court’s
judgment with respect to his RLUIPA and the Free Exercise
Clause claims; both of those claims relate to the books he
requested.
14 JONES V. SLADE
III. DISCUSSION
Jones has two principal complaints—that ADC prohibited
his receipt of six music CDs and two books by Elijah
Muhammad. His complaint concerning the CDs invokes the
Free Speech Clause, while his complaint concerning the
books invokes RLUIPA and the Free Exercise Clause. As we
have different considerations under these provisions, we will
consider the CDs and his free-speech claims first and then
address the books and his RLUIPA and free-exercise claims.
A. CDs—Free Speech
Jones argues that the exclusion of his six CDs pursuant to
DO 914.07 violates his First Amendment free-speech rights
and that the district court erred in granting summary
judgment. Jones contends that there is a triable issue as to
whether ADC applies the regulation neutrally.
It is well established that “[p]rison walls do not form a
barrier separating prison inmates from the protections of the
Constitution.” Turner, 482 U.S. at 84. Inmates retain their
constitutional rights, and “[w]hen a prison regulation or
practice offends a fundamental constitutional guarantee,
federal courts will discharge their duty to protect
constitutional rights.” Id. (quoting Procunier v. Martinez,
416 U.S. 396, 405–06 (1974)).
Prisoners have a First Amendment right to receive
information while incarcerated. Clement v. Cal. Dep’t of
Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). At the same
time, that principal must be balanced against the recognition
that “courts are ill equipped to deal with the increasingly
urgent problems of prison administration and reform.”
JONES V. SLADE 15
Turner, 482 U.S. at 84 (quoting Procunier, 416 U.S. at 405).
We “apply a deferential standard of review to challenges
regarding prison regulations” derived from Turner. Mauro v.
Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc); see
also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)
(“[R]egulations affecting the sending of a ‘publication’ . . . to
a prisoner must be analyzed under the Turner reasonableness
standard.”). Under Turner, a “regulation is valid if it is
reasonably related to legitimate penological interests.”
482 U.S. at 89.
Turner requires us to consider four factors in determining
whether DO 914 is reasonably related to legitimate
penological interests. 482 U.S. at 89–91; Mauro, 188 F.3d
at 1058–59. First, there must be a “‘valid, rational
connection’ between the prison regulation and the legitimate
government interest put forth to justify it.” Turner, 482 U.S.
at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586
(1984)). Second, we consider whether there are alternative
means of exercising the right left open to inmates. Id. at 90.
Third, we weigh “the impact [that] accommodation of the
asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally.”
Id. Finally, we look for ready alternatives to the policy which
would indicate that the policy may be an “‘exaggerated
response’ to prison concerns.” Id.
The first Turner factor is the most important. To evaluate
whether a valid, rational connection exists, we must
determine “whether the governmental objective underlying
the policy is (1) legitimate, (2) neutral, and (3) whether the
policy is ‘rationally related to that objective.’” Mauro,
188 F.3d at 1059 (quoting Abbott, 490 U.S. at 414).
16 JONES V. SLADE
The district court properly concluded that ADC offered
legitimate governmental objectives to justify DO 914. The
asserted goal of ADC’s mail policy is “maintaining the safety,
security and orderly operations of the institution[],” and the
goal of the provisions banning certain publications is
“assist[ing] with rehabilitation and treatment objectives,
reduc[ing] sexual harassment, and prevent[ing] a hostile
environment for inmates, staff and volunteers.” There is no
question that securing the safe and orderly operation of our
prisons and fostering rehabilitation of the inmates are
legitimate goals. See Pell v. Procunier, 417 U.S. 817, 823
(1974) (“[C]entral to all other corrections goals is the
institutional consideration of internal security . . . .”); Turner,
482 U.S. at 91 (prison security); Abbott, 490 U.S. at 415(prison security); Mauro, 188 F.3d at 1059 (prison security,
rehabilitation, and reducing sexual harassment of guards).
In the district court, ADC provided affidavits from
administrators in Offender Operations and OPR to support the
connection between the DO 914 and their objectives. The
administrators explained that “[p]ublications with depictions
or descriptions, or promotion of drug paraphernalia . . . are
detrimental to the security of the prison because [they]
promote[] prohibited behavior,” “[p]ublications that contain
depictions that promote acts of violence . . . are detrimental
to institutional security and the goals of rehabilitation,” and
“[p]ublications that contain depictions or descriptions of
street gangs and/or Security Threat Groups (STG) . . . are
detrimental to the security of the prison because they promote
prohibited behavior.”
To show a rational relationship between the regulation
and the legitimate interest, prison officials “need not prove
that the banned material actually caused problems in the past,
JONES V. SLADE 17
or that the materials are ‘likely’ to cause problems in the
future” unless the inmate “presents evidence to refute a
common-sense connection between the regulation and the
government objective.” Ashker v. Cal. Dep’t of Corr.,
350 F.3d 917, 922–23 (9th Cir. 2003) (quoting Mauro,
188 F.3d at 1060). Nor must we agree with the prison
officials’ judgment on whether the policy in fact advances
their proffered penological interests. Mauro, 188 F.3d
at 1060. Because the Defendants could reasonably believe
that excluding publications that contain sexual content, drugs,
and violence would decrease prohibited behaviors among
inmates, the governmental objective underlying DO 914 is
legitimate and rationally related to ADC’s interests in prison
security, rehabilitation, and reducing sexual harassment. See
id. Further, Jones did not challenge the connection between
the regulation and the objective.
But that does not end the inquiry under the first Turner
factor. We must still determine whether the challenged
regulation is neutral. Turner’s neutrality requirement
requires some explanation. At issue in Turner was Missouri’s
restriction on inmate-to-inmate correspondence. Although
Missouri permitted an inmate to correspond with “immediate
family members” who were inmates at other institutions, it
severely restricted correspondence between unrelated
inmates; in fact, the district court found that the restriction
was effectively a prohibition on such correspondence.
Turner, 482 U.S. at 81–82. Missouri explained that the
restriction deterred gang activity and prevented inmates from
communicating escape plans and planning assaults. Id. at 91.
The Supreme Court held that the appropriate test was
“whether prison regulations restricting inmates’ First
Amendment rights operated in a neutral fashion, without
regard to the content of the expression.” Id. at 90. Although
18 JONES V. SLADE
Missouri’s regulation was broader than would have been
absolutely necessary, the Court held that the regulation was
“not an exaggerated response” because it would have been
“impossible to read every piece of inmate-to-inmate
correspondence” and there was “an appreciable risk of
missing dangerous messages.” Id. at 93.
In Abbott, the Court elaborated on Turner’s neutrality
requirement:
[T]he regulation or practice in question must
further an important or substantial
governmental interest unrelated to the
suppression of expression. Where . . . prison
administrators draw distinctions between
publications solely on the basis of their
potential implications for prison security, the
regulations are “neutral” in the technical sense
in which we meant and used that term in
Turner.
490 U.S. at 415–16 (internal quotations and citations
omitted). The Fifth Circuit has explained the importance of
the neutrality inquiry:
Requiring neutrality ensures that the prison’s
application of its policy is actually based on
the justifications it purports, and not
something more nefarious. Were we to ignore
Turner’s neutrality requirement, we would
allow prison regulators to justify a policy
based on a legitimate interest applicable to the
overall prison population, while applying the
policy in an arbitrary or discriminatory
JONES V. SLADE 19
manner in violation of a particular subgroup’s
First Amendment rights.
Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599, 609 (5th
Cir. 2008).
Turner neutrality is not the “content neutrality” we
demand in other areas of First Amendment jurisprudence.
See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(“Government regulation of expressive activity is content
neutral so long as it is justified without reference to the
content of the regulated speech.” (internal quotations and
emphasis omitted)). Prison regulations of speech need not be
content neutral like time, place, and manner restrictions, see
Pell, 417 U.S. at 826–27; in fact, they may be content
intensive. See Turner, 482 U.S. at 88 (distinguishing content-
based prison regulations from true time, place, and manner
restrictions); Hanrahan v. Mohr, 905 F.3d 947, 955 (6th Cir.
2018) (“Appellants are incorrect that the ‘neutrality’
requirement of Turner’s first prong requires a prison
regulation to be completely content neutral.”). Prison
officials may restrict inmates’ access to materials dealing
with sex, violence, drugs, and gangs—censorship that we
would not permit in other contexts. Turner has made clear
that regulations that could not withstand constitutional
scrutiny outside of the prison context may be acceptable
inside an institution. See Beard v. Banks, 548 U.S. 521, 528
(2006) (plurality opinion) (“[T]he Constitution sometimes
permits greater restriction of such rights in a prison than it
would allow elsewhere.”); Abu-Jamal v. Price, 154 F.3d 128,
133–34 (3d Cir. 1998) (“We analyze content neutrality in the
prison context differently than we do for non-inmates.”).
20 JONES V. SLADE
As in Turner, the Arizona procedure at issue here is not
content neutral in the traditional sense. DO 914 is content-
focused. But on appeal, Jones does not challenge the
regulation on its face. He does not argue that ADC may not
suppress music that has sexually explicit lyrics or lyrics that
promote violence or drugs. Rather, his claim is that Arizona
has been inconsistent in its application of its regulation in a
way that is not content neutral within the category of
suppressible media. He argues that certain genres of
music—particularly rap music—are censored, while other
music, TV shows, or movies are permitted, even though they
also have explicit sexual, drug, or violent content.
Effectively, the question Jones raises is not whether ADC can
suppress certain kinds of content, but whether ADC has
applied the regulation in a neutral fashion. See Turner,
482 U.S. at 89–90. The Supreme Court has explained that in
considering the reasonableness of a prison regulation “it [is]
important to inquire whether prison regulations restricting
inmates’ First Amendment rights operated in a neutral
fashion.” Id. at 90.
When there is evidence that an otherwise legitimate
policy is being applied in a discriminatory manner, we inquire
whether the unequal application of the policy defeats the
rational relationship between the policy and the government’s
asserted justification. See id. Evidence of inconsistent
application of a regulation may be proof that the policy is not
neutral and may preclude summary judgment on an as-
applied challenge. See Mayfield, 529 F.3d at 609 (“[U]nder
Turner, neutrality must be ensured, or its absence sufficiently
explained in light of a legitimate penological interest, for
summary judgment to be appropriate.”); Abu-Jamal, 154 F.3d
at 134 (explaining that because “the Department’s
enforcement of the [challenged rule], was motivated, at least
JONES V. SLADE 21
in part, by the content of [plaintiff’s] articles . . . the actions
were not content neutral”).
Jones has proffered sufficient evidence of inconsistent
application of DO 914 to preclude summary judgment. Jones
submitted three affidavits, his own and those of two other
ADC prisoners, Hawkins and Page, alleging that ADC’s
exclusions between 2015–2018 targeted black artists and that
ADC has not applied DO 914 consistently. ADC argues that
we should not credit Jones’s affidavits because they are
unsupported by factual data and “[n]either Jones nor the other
two inmates could possibly claim to have personal knowledge
of how the OPR applies DO 914.07 on a statewide basis.”
But Jones is not required to provide a comprehensive study of
ADC’s statewide implementation of DO 914. That Jones and
the other two inmates are just three of “over 39,000 inmates
in the Arizona prison system” does not undermine their
personal experience with the policy. All three men have been
incarcerated in ADC’s facilities for periods spanning from
1998 to the present and have testified to their experience with
the implementation of DO 914 and the type of media that is
available in ADC facilities. Jones, Hawkins, and Page each
spoke to specific instances in which content that violates DO
914 was allowed.
Further, Jones submitted evidence that inmates at ADC
have access to a range of other media, including books and
television shows, that contain content clearly violating DO
914.07. We would expect some inconsistencies in any policy
that delegates exclusions to multiple decision makers. Even
the clearest of policies would not be immune from human
error. But the inconsistencies identified by Jones go beyond
the occasional explicit song being allowed or book being
excluded. Jones has supplied some evidence that ADC
22 JONES V. SLADE
affirmatively provides inmates access to books, music, and
television programs that plainly violate DO 914. For
example, Jones submitted evidence that inmates have access
to shows like L.A. Gang Wars; Moonshiners; Drugs, Inc.;
Nazi Underworld; Aryan Brotherhood; and Dexter. We
cannot determine merely by reading the titles whether these
materials violate ADC’s prohibitions on publications
containing “depictions or descriptions” of “street gangs” or
“drug paraphernalia” but we may draw a reasonable inference
that they do. See DO 914.07 § 1.2.4, 1.2.7. Jones also
provided excerpts from ADC’s library catalog and inmate
testimony showing that ADC provides inmates access to
books like James Patterson’s Kiss the Girls, a psychological
thriller about the serial killing of young women, and an entire
selection of romance novels, which “may . . . cause or
encourage sexual excitement.” Id. § 1.2.17. Providing
inmates access to the type of content ADC claims is
“detrimental to institutional security and the goals of
rehabilitation,” calls into question the rational relationship
between DO 914 and ADC’s legitimate penological interests
and the reasonableness of the policy. Cf. Pell, 417 U.S.
at 828 (“So long as this restriction operates in a neutral
fashion, without regard to the content of the expression, it . . .
does not abridge any First Amendment freedoms retained by
prison inmates.”).
We repeat: Variations in the enforcement of a policy will
not always rise to the level of inconsistent application.
Turner does not require ADC to apply DO 914 without error
to the hundreds of magazines and publications that ADC’s
prison complexes receive each week. ADC candidly
admitted before the district court that “despite its best
efforts[, ADC] does not keep out all unauthorized material.”
And we agree with ADC’s assertion that “[t]he test is not
JONES V. SLADE 23
whether all possible content that could be excluded is actually
excluded.” Indeed, the Supreme Court acknowledged in
Abbott that “seeming ‘inconsistencies’” produced by the
exercise of discretion in applying prison regulations “are not
necessarily signs of arbitrariness or irrationality.” Abbott,
490 U.S. at 417 n.15. But despite holding that the regulations
in Abbott were facially valid, the Court remanded for
consideration of the respondents’ claim that “variability in
enforcement of the regulations stems from the censors’
subjective views.” Id. at 417 n.15, 419. The Court explained
that whether exclusions are in fact based on the prison’s
asserted security interest “go[es] to the adequacy of the
regulations as applied.” Id. at 417 n.15.
The district court acknowledged Jones’s argument that “a
majority of [ADC’s] exclusions targeted black artists” and
that “OPR is not and has never been consistent in publications
decisions.” Nevertheless, with respect to Jones’s as-applied
claim against Officer Miller, the district court concluded that
Jones did “not allege that the CDs [Officer] Miller reviewed
did not violate DO 914.07, nor [did] he present any evidence
that Miller incorrectly applied DO 914.07.” The district court
did not address Jones’s request for declaratory and injunctive
relief against Warden Shinn, which would necessarily require
a broader inquiry than Officer Miller’s decision.
We think the district court misconceived its responsibility
with respect to the as-applied challenge. At this stage of the
litigation, Jones does not contest that the CDs he ordered
might violate DO 914. Rather, he claims that they were
excluded, while other objectionable material was routinely
made accessible to inmates. His is a comparative claim. It
may well be that Officer Miller correctly applied DO 914;
Jones’s claim is that DO 914 was consistently applied to rap
24 JONES V. SLADE
music but inconsistently applied to other music genres and
media. And that calls into question the neutrality of DO 914
as it is applied and, thus, the legitimacy of ADC’s policy.
Viewing the evidence in the light most favorable to Jones,
there is a material question of fact here—whether ADC
selectively enforces DO 914 against disfavored expression,
rap and R&B musical genres. The district court should not
have granted summary judgment on this record. See
Mayfield, 529 F.3d at 608–09 (holding that affidavits from
two other inmates that a prison’s policy was not imposed
against certain groups was sufficient to raise a material issue
of fact as to neutrality).
The first Turner factor is a sine qua non. See Shaw v.
Murphy, 532 U.S. 223, 229–30 (2001) (“If the connection
between the regulation and the asserted goal is ‘arbitrary or
irrational,’ then the regulation fails, irrespective of whether
the other factors tilt in its favor.” (citation omitted));
Morrison v. Hall, 261 F.3d 896, 907 (9th Cir. 2001); Prison
Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001)
(citing Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990)).
Because a genuine issue of fact remains as to whether there
is a valid, rational connection between DO 914, as applied to
Jones, and ADC’s legitimate interests in security,
rehabilitation, and reducing sexual harassment, we need not
address the remaining Turner factors. We reverse the grant
of summary judgment with respect to the CD’s ADC
withheld from Jones and remand for further proceedings. We
express no views on the merits of Jones’s claims.2
2
We note that Jones cannot sustain his damages claim against Officer
Miller unless he can demonstrate that she personally applied DO 914
inconsistently. He may, however, be able to maintain his claim for
equitable relief against Warden Shinn if he can demonstrate systemic
JONES V. SLADE 25
B. Religious Texts
Jones’s remaining claims relate to the confiscation of two
religious texts, Message to the Blackman in America and The
Fall of America, both by Elijah Muhammad. The district
court held that Jones “failed to demonstrate that the exclusion
of his two requested books has substantially burdened his
religious practice,” defeating both his RLUIPA and Free
Exercise Clause claims. On appeal, Jones argues that the
district court misidentified the religious exercise at issue,
imposed a categorical forfeiture rule unsupported by
RLUIPA, and did not view the facts in the light most
favorable to Jones, as is required on summary judgment. We
agree.
1. RLUIPA
RLUIPA provides that “[n]o government shall impose a
substantial burden on the religious exercise of a person
residing in or confined to an institution,” unless the
government can demonstrate that the burden “is in
furtherance of a compelling governmental interest” and “the
least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). Those
statutory standards, drawn from Sherbert v. Verner, 374 U.S.
398, 403, 406 (1963), and Wisconsin v. Yoder, 406 U.S. 205,
214–15, 221, 236 (1972), are more generous to the religiously
observant than the Free Exercise Clause. See Emp. Div. v.
Smith, 494 U.S. 872, 883–84 (1990) (limiting Sherbert to “the
unemployment compensation field”); see also Religious
Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb(b)(1)
(adopting a similar standard to RLUIPA and citing Sherbert
inconsistency by the many officers who enforce DO 914.
26 JONES V. SLADE
and Yoder). RLUIPA covers state-run institutions including
prisons, where “the government exerts a degree of control
unparalleled in civilian society and severely disabling to
private religious exercise.” Cutter v. Wilkinson, 544 U.S.
709, 720–21 (2005) (citing 146 Cong. Rec. 16698, 16699
(2000) (joint statement of Sen. Hatch and Sen. Kennedy on
RLUIPA)).3 RLUIPA reflects a congressional effort to
accord heightened protection to religious exercise. Id. at 714.
As such, RLUIPA is to be “construed broadly in favor of
protecting an inmate’s right to exercise his religious beliefs.”
Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)
(citing 42 U.S.C. § 2000cc-3(g)).4
Under RLUIPA, the plaintiff bears the initial burden of
demonstrating that an institution’s policy constitutes a
substantial burden on his exercise of religion. 42 U.S.C.
§ 2000cc-2(b). A policy may impose a substantial burden on
religious exercise in a number of ways. A regulation may
impact religious exercise directly, by forbidding conduct that
an inmate believes he is religiously compelled to do, see
O’Lone v. Est. of Shabazz, 482 U.S. 342, 344–45, 347 (1987)
3
RLUIPA applies to the States and their subdivisions and is an
exercise of congressional authority under the Spending and Commerce
Clauses. See 42 U.S.C. § 2000cc-1(b); Holt v. Hobbs, 574 U.S. 352, 357
(2015). ADC does not contest that it is subject to RLUIPA.
4
Monetary damages are not available against prison officials in their
individual capacities under RLUIPA. Sossamon v. Texas, 563 U.S. 277,
285 (2011) (holding RLUIPA’s authorization of “appropriate relief” did
not “clearly and unambiguously waive sovereign immunity to private suits
for damages”). A RLUIPA plaintiff may only sue defendants in their
official capacities for prospective injunctive relief. Woody v. Yordy,
753 F.3d 899, 904 (9th Cir. 2014) (“[RLUIPA] does not authorize suits
against a person in anything other than an official or governmental
capacity . . . .”).
JONES V. SLADE 27
(assigning Muslim prisoners to a work schedule that
prevented them from attending Friday prayer services
commanded by Qur’an), or by compelling an inmate to do
that which he believes he is religiously forbidden from doing,
see Holt, 574 U.S. at 355, 359 (requiring Muslim prisoner to
violate religious beliefs that forbade trimming his beard);
Warsoldier, 418 F.3d at 992, 995–96 (requiring Native
American prisoner to violate religious beliefs that forbade
cutting his hair). More subtly, a regulation may impact
religious exercise indirectly, by encouraging an inmate to do
that which he is religiously prohibited or discouraged from
doing, see Greenhill v. Clarke, 944 F.3d 243, 250–51 (4th
Cir. 2019) (withholding participation in religious services “as
an incentive to improve inmate conduct”), or by discouraging
an inmate from doing that which he is religiously compelled
or encouraged to do, see Jones v. Carter, 915 F.3d 1147,
1150–51 (7th Cir. 2019) (discouraging inmates from choosing
halal meals by charging for halal meat); Shilling v. Crawford,
536 F. Supp. 2d 1227, 1233 (D. Nev. 2008) (offering Jewish
prisoner the choice between staying at a medium security
facility without kosher meals or transferring to a maximum
security facility with kosher meals), aff’d 377 F. App’x 702
(9th Cir. 2010). See also Sherbert, 374 U.S. at 404 (holding
that a state may not force a person “to choose between
following the precepts of her religion and forfeiting benefits
. . . . Governmental imposition of such a choice puts the same
kind of burden upon the free exercise of religion as would a
fine imposed against [a person] for her . . . worship”). The
difference between these categories may not always be clear,
but the framework may help us understand what is at stake.
Once an inmate makes a prima facie showing, the burden
shifts to the government to prove that the burden is the least
restrictive means of furthering a compelling governmental
28 JONES V. SLADE
interest. 42 U.S.C. §§ 2000cc-1(a), -2(b); see Fuqua v. Ryan,
890 F.3d 838, 848 (9th Cir. 2018). Although RLUIPA adopts
a compelling interest standard, context matters in the
application of the standard, and courts should act with “due
deference to the experience and expertise of prison and jail
administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline,
consistent with consideration of costs and limited resources.”
Cutter, 544 U.S. at 723 (quoting 146 Cong. Rec. at 16699).
a. Substantial burden on religious exercise
In assessing a RLUIPA claim, we must first identify the
religious exercise at issue. Greene v. Solano Cnty. Jail,
513 F.3d 982, 987 (9th Cir. 2008). Jones argues that his
religious exercise is “the reading of essential Nation of Islam
texts during Ramadan,” while ADC argues that the exercise
is “observing Ramadan,” which ADC claims Jones may do
without reading Elijah Muhammad’s books.
RLUIPA defines “religious exercise” to include “any
exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).
That means that RLUIPA protects not only practices deemed
orthodox by some recognized religious organization, but also
idiosyncratic practices—practices “not compelled by, or
central, to a [given] system of religious belief.” Id. It also
means that RLUIPA not only protects an inmate’s past
religious practices, but also changes in his religious practice
within a tradition or conversion from one tradition to another.
We have read RLUIPA’s reference to “any exercise of
religion” literally (and thus broadly in favor of inmates) to
include not only “the belief and profession” of faith, but also
individual “physical acts [such as] assembling with others for
JONES V. SLADE 29
a worship service [or] participating in sacramental use of
bread and wine.” Greene, 513 F.3d at 987 (alteration in
original) (quoting Cutter, 544 U.S. at 720); see also Holt,
574 U.S. at 361–62 (religious exercise was “the growing of
a 1/2-inch beard”); Greene, 513 F.3d at 988 (relevant exercise
was group worship not Christianity); San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)
(relevant exercise was a Christian school’s attempted
“conversion of real property for the purpose of religious
exercise” (quoting 42 U.S.C. § 2000cc-5(7)(B)); accord
Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007)
(relevant exercise was keeping kosher and observing the
Jewish Sabbath); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33,
38 (1st Cir. 2007) (relevant exercise was inmate’s ability to
preach to other inmates); Lovelace v. Lee, 472 F.3d 174,
187–88 (4th Cir. 2006) (religious exercise was observing
Ramadan and attending group prayer services).
The district court characterized Jones’s religious exercise
broadly as observing Ramadan rather than reading Nation of
Islam texts during Ramadan. Its treatment of Jones’s claim
was not entirely consistent. The district court first
characterized Jones’s RLUIPA claim during the statutory
screening of the initial complaint per 28 U.S.C.
§ 1915A(b)(1)–(2) as follows:
Plaintiff claims Defendant Miller’s decision
denied Plaintiff his due process right to his
property and his rights under RLUIPA
because he was denied his “right to read his
Nation of Islam text during Ramadan as he
normally does every year” and he was not
able to “freely practice [his] religious beliefs”
or “obtain religious instructions through his
30 JONES V. SLADE
religious literature during the holy month of
Ramadan.”
This was in line with Jones’s own declaration which stated
that “[t]he religious practice in question here, is not per se
Ramadan itself, but for Mr. Jones, to be able to purchase,
possess and read his choice of religious text, authored by the
(Prophet) and Honorable Elijah Muhammad . . . during
Ramadan and in General.” In its summary judgment
decision, however, the district court first repeated that the
religious exercise at issue was Jones’s “right to read his
Nation of Islam text during Ramadan, as he normally does
every year.” (Emphasis altered). But when the court reached
the substantial burden analysis, it only assessed whether
Jones was able to “successfully observe Ramadan without the
books he requested.” (Emphasis in original). Effectively, the
district court asked whether Jones could observe Ramadan
without reading Muhammad’s texts because it thought Jones
had done so before.
It was error for the district court to re-characterize Jones’s
religious obligations at a higher level of generality. In
Greene, we addressed the level of specificity we must
consider when addressing RLUIPA claims. 513 F.3d
at 987–88. Greene was an inmate housed in the maximum
security unit of the county jail, awaiting trial on charges of
making terrorist threats and false imprisonment. Id. at 985.
Greene asked to attend religious services and attempted to
conduct group Bible studies and other communal meetings.
Id. Instead, the county offered him a Bible, religious texts,
and a visit from the chaplain. Id. The county urged us to
consider Greene’s “religious exercise” as “the general
practice of one’s religion rather than any particular practice”
so that the county could “impose outright bans on particular
JONES V. SLADE 31
aspects of an inmate’s religious exercise, so long as, in the
aggregate, those bans do not amount to a substantial burden.”
Id. at 987. We rejected the county’s reading of RLUIPA and
held that “the ‘religious exercise’ at issue in Greene’s lawsuit
is group worship, not Christianity.” Id. at 988. So defined,
we easily concluded that the county’s ban on group worship
was a substantial burden on Greene’s religious exercise, and
the burden shifted to the county to show that it had a
compelling interest and had imposed the least restrictive
means of securing that interest. Id. at 988–90.
Having defined the scope of Jones’s religious
exercise—reading his Nation of Islam texts during
Ramadan—we next consider whether excluding Jones’s texts
as contraband constitutes a substantial burden on his religious
exercise. A substantial burden exists when the state places
“substantial pressure on an adherent to modify his behavior
and to violate his beliefs.” Warsoldier, 418 F.3d at 995(quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S.
707, 718 (1981)). The burden must impose “a significantly
great restriction or onus upon such exercise.” Id. (quoting
San Jose Christian Coll., 360 F.3d at 1034). The district
court found that withholding Muhammad’s texts imposed no
substantial burden on Jones’s religious exercise because
Jones did not “articulate[] why he was able to successfully
observe Ramadan for the 10 years prior to 2018, or what has
occurred to render him now unable to successfully observe
Ramadan without the books he requested.”5 Because
5
We are puzzled by the basis for the district court’s inference that
Jones had not previously read Muhammad’s texts in connection with
Ramadan. Jones’s complaint stated: “Plaintiff [was] denied [the] right to
read his Nation of Islam texts during Ramadan, as he normally does every
year.” At this stage, we are required to view the record evidence in the
32 JONES V. SLADE
RLUIPA does not require Jones to show his religious exercise
was either required by his faith or consistent with his past
observance, we disagree.
First, Jones’s right to read religious texts during Ramadan
is protected by RLUIPA whether he has read those texts
every year during Ramadan or only recently came to the
conclusion that he should do so. We do not “prescribe what
shall be orthodox in . . . religion, or other matters of opinion.”
W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943).
Jones does not forfeit his claim because he may have
previously failed to adhere to the practice of reading the texts
during Ramadan. See Malik v. Brown, 16 F.3d 330, 333 (9th
Cir. 1994) (holding that plaintiff had a valid free exercise
claim based on his desire to use his Islamic name in prison,
even though he did not use that name at the time of his
conversion), supplemented, 65 F.3d 148 (9th Cir. 1995). The
Supreme Court has explained that the timing of the adoption
of a religious belief is “immaterial” to the determination of
whether a person’s religious exercise has been burdened.
Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136,
144 (1987) (refusing to “single out the religious convert for
different, less favorable treatment than that given an
individual whose adherence to his or her faith [is less
recent]”); see also Callahan v. Woods, 658 F.2d 679, 687 (9th
light most favorable to Jones. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). That statement suggests to us that Jones had read Muhammad
during Ramadan, although it does not state how he had access to
Muhammad’s books. The record shows that Jones was transferred to a
new housing unit less than two months before he ordered the Elijah
Muhammad texts. One inference in Jones’s favor is that he had access to
the texts until the time of his transfer. Nevertheless, the district court
assumed that Jones “was able to successfully observe Ramadan for the
10 years prior to 2018 . . . without the books he requested.”
JONES V. SLADE 33
Cir. 1981) (“So long as one’s faith is religiously based at the
time it is asserted, it should not matter . . . whether that faith
derived from revelation, study, upbringing, gradual evolution,
or some source that appears entirely incomprehensible.”).
There is no legal basis to fault Jones for not adding the study
of Elijah Muhammad’s texts during Ramadan to his religious
practice sooner; he did not waive his rights by not studying
these texts in the past.
Second, the district court’s inquiry into whether the
religious texts are required for Jones to observe Ramadan
misunderstood the RLUIPA analysis. RLUIPA explicitly
applies to “any exercise of religion, whether or not compelled
by . . . a system of religious belief.” 42 U.S.C. § 2000cc-
5(7)(A) (emphasis added); see Holt, 574 U.S. at 362
(“RLUIPA . . . applies to an exercise of religion regardless of
whether it is compelled.” (internal quotations and citation
omitted)). We have held that “RLUIPA ‘bars inquiry into
whether a particular belief or practice is central to a
prisoner’s religion.’” Greene, 513 F.3d at 986 (internal
quotations omitted) (quoting Cutter, 544 U.S. at 725 n.13).
It is enough that reading Elijah Muhammad’s texts during
Ramdan is a sincere component of Jones’s religious practice,
without reference to whether Jones, or other members of the
Nation of Islam, consider the practice mandatory. See Holt,
574 U.S. at 362–63 (“RLUIPA . . . is ‘not limited to beliefs
which are shared by all of the members of a religious sect.’”
(quoting Thomas, 450 U.S. at 715–16)). Even so, Jones
offered evidence that the teachings of Elijah Muhammad, and
particularly his writings in Message to the Blackman in
America, inform the Nation of Islam’s celebration of
Ramadan and offered testimony that the writings of Elijah
Muhammad are central to his belief system. In Sutton v.
Rasheed, the Third Circuit held that the deprivation of Elijah
34 JONES V. SLADE
Muhammad’s texts was sufficient to make out a Free
Exercise claim and that the reading of these texts is “a
necessary element” of the exercise of the Nation of Islam
faith. 323 F.3d 236, 256 (3d Cir. 2003). Surely, if these texts
are essential to the religion, a reasonable jury could find the
denial of these texts during Ramadan, a holy time of spiritual
reflection, constitutes a substantial burden.
By excluding Messages to the Blackman in America and
The Fall of America, the operation of DO 914 at least burdens
Jones’s general exercise of his Islamic beliefs. We have had
“little difficulty . . . concluding that an outright ban on a
particular religious exercise is a substantial burden on that
religious exercise.” Greene, 513 F.3d at 988. Because there
is a genuine issue of fact as to whether denying Jones
essential religious texts during Ramadan is a substantial
burden on his religious exercise, summary judgment was
inappropriate on Jones’s RLUIPA claim.
b. Least restrictive means of furthering a compelling
interest
Finding no substantial burden, the district court did not
assess whether ADC’s policy is the least restrictive means to
further a compelling interest. ADC argues its regulations are
narrowly tailored to the compelling government interest in
institutional security. To carry its burden under RLUIPA,
ADC must show “it has actually considered and rejected the
efficacy of less restrictive measures before adopting the
challenged practice.” Warsoldier, 418 F.3d at 999; see also
Holt, 574 U.S. at 362–63 (RLUIPA requires courts to
“scrutiniz[e] the asserted harm of granting specific
exemptions to particular religious claimants” (alteration in
original)). This is a fact-intensive inquiry on which the
JONES V. SLADE 35
record is not developed. We leave it to the district court on
remand to assess whether ADC can demonstrate that applying
the challenged regulation to Jones serves a compelling
interest and meets the “exceptionally demanding” least-
restrictive-means standard. Holt, 574 U.S. at 364 (quoting
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728
(2014)).
2. Free Exercise Clause
The Free Exercise Clause of the First Amendment, made
applicable to the States through the Fourteenth Amendment,
provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof . . . .” U.S. Const. amend. I. The right to free
exercise is to be “jealously guarded.” Ward v. Walsh, 1 F.3d
873, 876 (9th Cir. 1993). But free exercise is necessarily
limited by the fact of incarceration and “may be curtailed in
order to achieve legitimate correctional goals or to maintain
prison security.” Id. (citing O’Lone, 482 U.S. at 348). To
merit protection under the Free Exercise Clause, Jones’s
belief must be “sincerely held” and religious in nature.
Malik, 16 F.3d at 333. Once a claimant demonstrates that the
challenged regulation impinges on his sincerely held religious
exercise, the burden shifts to the government to show that the
regulation is “reasonably related to legitimate penological
interests.” Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir.
2015) (quoting Turner, 482 U.S. at 89). As we did with
respect to Jones’s Free Speech claim, we use the Turner
factors to evaluate whether a prison regulation implicating an
inmate’s free exercise right is valid. Shakur v. Schriro,
514 F.3d 878, 884 (9th Cir. 2008); Ward, 1 F.3d at 876–77.
We note that the Free Exercise Clause analysis differs from
RLUIPA’s analysis in at least two ways: (1) RLUIPA has an
36 JONES V. SLADE
expanded definition of religious exercise, and (2) RLUIPA
requires the government use the least restrictive means to
advance a compelling interest, while the Free Exercise Clause
only requires that the regulation be reasonably related to
legitimate penological interests. Greene, 513 F.3d at 986.
The district court concluded that Warden Shinn was
entitled to summary judgment under the Free Exercise Clause
because Jones “failed to demonstrate that Defendants’ [sic]
have substantially burdened the practice of his religion by
excluding his two requested books.” For the same reasons
that the district court’s analysis was flawed under RLUIPA,
it does not hold up under the Free Exercise Clause. The Free
Exercise Clause does not require plaintiffs to prove the
centrality or consistency of their religious practice: “It is not
within the judicial ken to question the centrality of particular
beliefs or practices to a faith.” Hernandez v. Comm’r,
490 U.S. 680, 699 (1989); see also Smith, 494 U.S. at 887(“Repeatedly and in many different contexts, we have warned
that courts must not presume to determine the place of a
particular belief in a religion . . . .”); Callahan, 658 F.2d
at 685 (“In applying the free exercise clause of the First
Amendment, courts may not inquire into the truth, validity, or
reasonableness of a claimant’s religious beliefs.”). In Shakur,
we assessed whether a plaintiff bringing a free-exercise claim
is required to show that the defendant “burdened conduct
mandated by his faith.” 514 F.3d at 884 (internal quotations
omitted). Taking into account the Supreme Court’s prior
disapproval of a centrality test, we held that “the sincerity test
set forth in Malik and Callahan determines whether the Free
Exercise Clause applies.” Id. at 884–85. Here, just as in
Shakur, it was impermissible for the district court to focus on
whether reading Elijah Muhammad’s texts is required to
observe Ramadan, rather than whether Jones sincerely
JONES V. SLADE 37
believes reading these texts during Ramadan is consistent
with his faith. Id. at 885.
We have also explained that “religious claims that have
developed over time are protected to the same extent as those
that occur in a moment.” Malik, 16 F.3d at 333 (citing
Hobbie, 480 U.S. at 144 n.9). That Jones may have observed
Ramadan without access to Elijah Muhammad’s texts in the
past does not affect his free-exercise claim. See id. (“The
ten-year gap between when Malik legally changed his name
and when he began to use it exclusively does not attenuate
Malik’s free exercise claim.”).
The district court found that Jones’s religious beliefs are
sincerely held, and neither party contests this finding on
appeal. Because there is a material question as to whether
ADC’s exclusion of Jones’s religious texts pursuant to DO
914 infringes on his right to engage in his sincerely held
religious belief, summary judgment was inappropriate.
Because the district court did not reach the Turner analysis,
we leave it to the district court on remand to determine
whether DO 914 is rationally related to a legitimate
penological interest.
IV. CONCLUSION
The district court’s judgment granting the Defendants’
motion for summary judgment is reversed and this case is
remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.