Teddy Davis v. Billy Pierce , 826 F.3d 258 ( 2016 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40339 FILED
June 14, 2016
Lyle W. Cayce
TEDDY NORRIS DAVIS; ROBBIE DOW GOODMAN, Clerk
Plaintiffs - Appellants
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional
Institutions Division; CLINT MORRIS, Program Analyst,
Defendants – Appellees
_______________________________________________________________________
TEDDY NORRIS DAVIS,
Plaintiff – Appellant
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before SOUTHWICK and COSTA, Circuit Judges and OZERDEN,* District
Judge.
HALIL SULEYMAN OZERDEN, District Judge:
* District Judge of the Southern District of Mississippi, sitting by designation.
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Prisoner Plaintiffs Teddy Norris Davis and Robbie Dow Goodman
appeal the district court’s grant of summary judgment in favor of prison
officials within the Texas Department of Criminal Justice (“TDCJ”). The
district court granted summary judgment in Defendants’ favor on Plaintiffs’
First Amendment and 42 U.S.C. § 1983 claims challenging TDCJ policies on
the wearing of medicine bags, the use of pipes during Native American
religious pipe ceremonies, and grooming, based on the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. We
AFFIRM in part as to the First Amendment claim and RLUIPA claims
concerning medicine bags and pipe ceremonies, and we VACATE and
REMAND in part for further findings as to Plaintiffs’ grooming-policy
RLUIPA claim.
I. BACKGROUND
Teddy Norris Davis, Texas prisoner #807688, is housed in the TDCJ’s
McConnell Unit in Beeville, Texas. On May 21, 2012, Davis filed a pro se 42
U.S.C. § 1983 complaint alleging that the meaningful practice of his religion
was being burdened by five Defendants employed by the TDCJ. A follower of
the Native American religious path, Davis challenged three TDCJ policies.
Specifically, Davis alleged that TDCJ policies burdened the exercise of his
religious beliefs by preventing him from (1) smoking a prayer pipe during
Native American pipe ceremonies, (2) wearing a religiously significant
“medicine bag” other than within his cell and to and from religious
ceremonies, and (3) growing long hair or alternatively, a kouplock, which is “a
one inch square section of hair at the base of the skull.” Davis argued that
these three policies violated his rights under RLUIPA and the First
Amendment, and that the grooming policy further violated his right to equal
protection, because female inmates were allowed to wear their hair long.
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Robbie Dow Goodman, Texas prisoner #758386, is also housed in the
McConnell Unit in Beeville, Texas, and joined this suit, claiming that he
follows the Native American faith and has experienced the same deprivations
as Davis. Davis and Goodman (“Plaintiffs”) both purport to be non-violent,
low security risk, or G2, custody level inmates.
Plaintiffs filed an Amended Complaint on February 11, 2013, and
subsequently consented to proceed before a United States Magistrate Judge.
At a hearing before the Magistrate Judge, Plaintiffs voluntarily dismissed all
of their claims except their three RLUIPA challenges, which sought
injunctive and declaratory relief against Rick Thaler, the TDCJ Correctional
Institutions Division Director in his official capacity, and their First
Amendment claim seeking damages against Clint Morris, a TDCJ Program
Analyst. On July 1, 2013, after Thaler retired, William Stephens was
substituted as a Defendant. 1
On July 8, 2013, Defendants filed a Motion for Summary Judgment,
and on July 10, 2013, Defendants filed a Supplemental Motion for Summary
Judgment. Plaintiffs filed a Cross-Motion for Summary Judgment on July
19, 2013.
On February 27, 2014, the district court issued its Opinion and Order
on Cross-Motions for Summary Judgment (“Opinion and Order”), and Final
Judgment was entered in Defendants’ favor. The district court found that
both Plaintiffs were sincere practitioners of the Native American faith and
that the policies complained of constituted a substantial burden on their
religious exercise. The Court concluded, however, that Defendants had
demonstrated that the challenged prison regulations were the least
1 William Stephens has retired. On May 5, 2016, the new Director of the Texas
Department of Criminal Justice Correctional Institutions Division, Lorie Davis, was
substituted as Appellee in this case.
3
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restrictive means of furthering compelling governmental interests. This
appeal followed.
II. STANDARD OF REVIEW
A. Summary Judgment Standard
“This court reviews de novo a district court’s order granting a
defendant’s motion for summary judgment, applying the same standard as
did the district court.” Toney v. Owens, 779 F.3d 330, 335 (5th Cir. 2015). A
movant is entitled to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). It is axiomatic that the
“‘evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A
genuine dispute of material fact is not created by “conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quotation marks and citation
omitted).
B. The RLUIPA
RLUIPA provides, in relevant part, that:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of general
applicability, unless the government demonstrates that
imposition of the burden on that person—
(A) is in furtherance of a compelling governmental interest;
and
(B) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a). RLUIPA defines “religious exercise” broadly to
include “any exercise of religion, whether or not compelled by, or central to, a
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system of religious belief.” § 2000cc-5(7)(A). Under RLUIPA, Plaintiffs carry
an initial burden to show that the challenged law, regulation, or practice
substantially burdens the exercise of their religion. Adkins v. Kaspar, 393
F.3d 559, 567 (5th Cir. 2004). Once Plaintiffs make this showing, Defendants
bear the burden to prove that the challenged regulation is the least
restrictive means of furthering a compelling governmental interest. Id.; see
also Sossamon v. Texas, 563 U.S. 277, 281 (2011). Defendants’ burden “is not
to show that it considered the claimant’s proposed alternatives but rather to
demonstrate those alternatives are ineffective.” Ali v. Stephens, No. 14-
41165, 2016 WL 1741573, at *6 (5th Cir. May 2, 2016).
Congress enacted RLUIPA to address “frivolous or arbitrary” barriers
impeding institutionalized persons’ religious exercise, but expected courts
entertaining RLUIPA challenges to also “accord ‘due deference to the
experience and expertise of prison and jail administrators.’” Cutter v.
Wilkinson, 544 U.S. 709, 716–17 (2005) (quoting 146 Cong. Rec. 16698, 16699
(2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)). Religious
accommodations must not override other significant interests in maintaining
order and safety, and courts should give deference to prison officials “in
establishing necessary regulations and procedures to maintain good order,
security and discipline, consistent with consideration of costs and limited
resources.” Id. at 723. Costs, limited resources, and prison security are all
compelling state interests. Id. However, deference is not unlimited and
“‘policies grounded on mere speculation, exaggerated fears, or post-hoc
rationalizations will not suffice to meet the act’s requirements.’” Rich v.
Sec’y, Florida Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (quoting S.
Rep. No. 103–111, at 10, reprinted in 1993 U.S.C.C.A.N. 1892, 1900)
(discussing the Religious Freedom Restoration Act, predecessor to RLUIPA);
see also Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) (“Indeed, prison policies
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‘grounded on mere speculation’ are exactly the ones that motivated Congress
to enact RLUIPA.”).
The least-restrictive-means standard is “exceptionally demanding, and
requires the government to show that it lacks other means of achieving its
desired goal without imposing a substantial burden on the exercise of religion
by the objecting party.” Holt, 135 S. Ct. at 864 (quotation omitted and
alteration adopted). The Government must also demonstrate that the
“compelling interest test” is satisfied when applying the challenged law to the
“particular claimant whose sincere exercise of religion is being substantially
burdened.” Id. at 863 (quotation omitted). Thus RLUIPA requires a court to
scrutinize “‘the asserted harm of granting specific exemptions to particular
religious claimants’” and look “‘to the marginal interest in enforcing’ the
challenged government action in that particular context.” Id. (quoting
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)).
C. The First Amendment
The First Amendment to the United States Constitution is violated
when prisoners are not afforded “reasonable opportunity” to exercise their
religious beliefs. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). The
First Amendment applies to State prisons by virtue of the Fourteenth
Amendment. Id.
Prison officials may still place reasonable limits on the religious rights
that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78 (1987), the
Supreme Court held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Id. at 89. Courts consider four factors in
determining the reasonableness of a regulation: (1) the existence of a valid,
rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it; (2) the existence of
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alternative means of exercising the right that remain open to prison inmates;
(3) the impact an accommodation will have on guards and other inmates, and
on the allocation of prison resources generally; and (4) the absence of
alternatives. Id. at 89–91.
Turner’s “rational connection” standard for assessing First Amendment
claims provides less protection against prison regulations that impinge on
inmates’ free exercise of religion than does RLUIPA’s more demanding
compelling-interest/least-restrictive-means standard. Freeman v. Texas Dep’t
of Criminal Justice, 369 F.3d 854, 858 n.1 (5th Cir. 2004).
III. DISCUSSION
Plaintiffs challenge whether summary judgment was properly granted
in favor of the TDCJ Defendants as to their (1) First Amendment claim, (2)
medicine-bag RLUIPA claim, (3) pipe-ceremony RLUIPA claim, and (4)
grooming-policy RLUIPA claim. We find no error in the district court’s grant
of summary judgment on the first three issues, but will vacate and remand
for further findings as to the grooming-policy RLUIPA claim.
A. First Amendment Claim and Medicine-Bag RLUIPA Claim
On appeal, Davis and Goodman only briefly mention their First
Amendment claim and medicine-bag RLUIPA claim. Issues submitted to this
Court that are inadequately briefed are considered abandoned. Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Plaintiffs’ arguments as to these
two issues are entirely conclusory, and Davis and Goodman have not
demonstrated that the district court erred in granting summary judgment for
Defendants on the First Amendment claim or medicine-bag RLUIPA claim.
1. First Amendment Claim
The district court determined that Defendant Morris was entitled to
qualified immunity because Plaintiffs had not established that their First
Amendment rights to exercise their religion had been violated. Since
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qualified immunity depends upon whether a defendant violated a clearly
established constitutional right, the preliminary inquiry is whether the
plaintiff can establish a violation of any constitutional right at all. Siegert v.
Gilley, 500 U.S. 226, 232 (1991). The district court concluded that the
challenged regulations and practices were rationally connected to valid
government interest, and did not violate the First Amendment. In this
Court, Davis and Goodman merely state, in a single paragraph and without
elaboration, that “[t]he evidence is clear that the Appell[ants] have indeed
established a First Amendment Constitutional violation thereby clearly
overcoming the Qualified Immunity Analysis [sic].” Plaintiffs have not raised
any other arguments or offered further explanation as to how the district
court erred.
2. Medicine-Bag RLUIPA Claim
The district court found that the TDCJ restrictions on wearing the
medicine bag were the least restrictive means of furthering a compelling
interest in security and controlling costs. Before this Court, Davis and
Goodman do not contest this conclusion, merely stating in their brief that “it
may very well be that the defendants are right.” Plaintiffs object only to the
district court’s finding that TDCJ’s restrictions “are appropriate as a matter
of law on this record,” but Plaintiffs do not clarify how the record could be
seen as deficient. It appears that Defendants presented evidence that the
medicine-bag policy furthers an interest in security and costs, and Plaintiffs
did not present competent summary judgment evidence to rebut this
assertion.
Since Davis and Goodman have not adequately briefed or otherwise
identified any legitimate points of error as to the First Amendment claim and
medicine-bag RLUIPA claim, summary judgment will be affirmed as to these
issues.
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B. Pipe-Ceremony RLUIPA Claim
Plaintiffs challenge the TDCJ ban on inmates personally smoking a
prayer pipe during pipe ceremonies. 2 TDCJ’s official “Procedures for
Religious Programming,” as revised in 2012, state that “[o]nly the Native
American chaplain/volunteer is authorized to smoke the pipe used for the
pipe service.” Davis and Goodman claim that having a Native American
chaplain smoke the ceremonial prayer pipe for them is insufficient, yet they
also do not want to use a communal prayer pipe due to the risk of disease.
Instead, Plaintiffs propose that they each be allowed to purchase their own
personal prayer pipes from an approved vendor. 3
Plaintiffs’ suggestion that inmates be allowed to possess personal
prayer pipes has already been considered and rejected by this Court. Chance
v. Texas Dep’t of Criminal Justice, 730 F.3d 404, 412–13 (5th Cir. 2013). In
2011, a TDCJ Native American prisoner, William Chance, requested
permission to possess a personal pipe because he suffered from hepatitis C
and tuberculosis and wished to avoid smoking from the communal pipe used
in pipe ceremonies. See Chance v. TDCJ, Case No. 6:11-cv-435 (E.D. Tex.
June 16, 2011) (Compl.). The Chance litigation prompted TDCJ officials to
re-examine the policy concerning pipe ceremonies in light of these serious
health concerns. After conducting a study, TDCJ concluded that going
forward only the Native American chaplain performing the pipe ceremony
2 In the district court, Davis and Goodman also challenged the frequency of Native
American ceremonies under RLUIPA. The Magistrate Judge concluded that the TDCJ
volunteer chaplain policy was the least restrictive means of furthering Defendants’
compelling interest in prison administration. This issue has not been raised on appeal.
3 Davis and Goodman also claim that TDCJ never considered the use of the herb
“cansasa” in the pipe ceremony as a least restrictive means. Because the TDCJ policy does
not allow inmates to smoke their own personal prayer pipe for other reasons such as health,
cost, and security concerns, the substance being smoked is irrelevant to the RLUIPA
analysis in this case and consideration of tobacco alternatives is unnecessary.
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could smoke the prayer pipe during Native American pipe ceremonies. The
TDCJ Chaplaincy Manual was revised in July 2012 to reflect this change.
The district court in Chance granted summary judgment for TDCJ on
the pipe-ceremony issue. This Court affirmed and held that TDCJ had
carried its burden of demonstrating that the policy banning communal and
individual pipes and allowing only the ceremony leader to smoke the pipe at
ceremonies was the least restrictive means of furthering compelling
government interests in “prison health, administration, and security,” and,
accordingly, did not violate RLUIPA. Chance, 730 F.3d at 407–08.
In Chance, this Court considered the option of permitting every
prisoner to purchase and smoke his own pipe, and Davis and Goodman do not
present any new or different arguments from those previously considered.
See id. at 413. In this case, both TDCJ and the district court considered
allowing inmate-owned pipes to be stored in the chaplain’s office, but
logistical, health, and security concerns outweighed the need for a religious
accommodation. As to this issue, the district court’s grant of summary
judgment will be affirmed.
C. Grooming-Policy RLUIPA Claim
We will, however, vacate the grant of summary judgment on the
grooming-policy RLUIPA claim for two reasons. First, the record does not
reflect whether appropriate consideration was given to Plaintiffs’ summary
judgment evidence. Second, there is a need for further findings under the
standard for evaluating RLUIPA claims as discussed in Holt v. Hobbs, 135 S.
Ct. 853, 864 (2015), because Plaintiffs’ RLUIPA claims must be evaluated on
remand in light of the security risk presented by Plaintiffs as individuals.
1. Plaintiffs’ Summary Judgment Evidence
Plaintiffs contend that the district court did not give proper
consideration to their summary judgment evidence on the grooming-policy
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RLUIPA claim. A nonmovant’s evidence on summary judgment “is to be
believed, and all justifiable inferences are to be drawn in his favor.” Cotton,
134 S. Ct. at 1863. Plaintiffs attempted to present evidence at summary
judgment by retyping or referencing portions of a TDCJ official’s testimony
and the expert testimony of George Sullivan 4 from an earlier bench trial in
another Native American inmate’s lawsuit challenging the TDCJ grooming
policy. Within their reply brief on summary judgment, Defendants moved to
strike this evidence. However, the district court did not rule on their request.
Because the motion to strike was included in Defendants’ reply brief
and not docketed as a separate motion, it is unclear whether the district court
overlooked the motion or decided not to rule on it on grounds that it was not
properly asserted. In any event, Sullivan’s expert testimony was before the
district court when it granted summary judgment, but the district court made
no mention of it.
Sullivan’s testimony was taken from an earlier bench trial in Odneal v.
Dretke, 2:4cv454 (S.D. Tex. filed Aug. 30, 2004), and may be relevant in this
case, because Odneal involved claims similar to those presented here. In
Odneal, Shawn Odneal, a male inmate also housed in the McConnell Unit,
challenged the insufficient frequency of pipe ceremonies and other Native
American religious ceremonies. See Odneal v. Dretke, 435 F. Supp. 2d 608,
610–11 (S.D. Tex. 2006) (“Odneal I”). Odneal claimed to have learned about
the spiritual path of the Native American people from one of the Plaintiffs in
this case, Teddy Davis. See Odneal v. Pierce, C.A. No. C-04-454, 2010 WL
3359535, at *2 (S.D. Tex. Aug. 20, 2010) (“Odneal II”). Both Davis and
4George Sullivan is an experienced prison official who has worked with Native
American populations in prisons in Oregon and Colorado.
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Goodman attempted to join Odneal’s case in 2004, but their requests were
denied.
Odneal also challenged the TDCJ policy on wearing of medicine bags,
and sought permission to grow long hair or wear a kouplock. Odneal I, 435 F.
Supp. 2d at 611 (challenging essentially the same policies as those at issue in
this litigation). The district court dismissed Odneal’s claims regarding
wearing a medicine bag and growing long hair, reasoning that TDCJ policy
on medicine bags was rationally connected to security interests pursuant to
Turner, 482 U.S. at 89–91, and the long-hair claim was foreclosed by Diaz v.
Collins, 114 F.3d 69, 73 (5th Cir. 1997). The district court also granted
summary judgment against Odneal on his claim concerning the insufficient
frequency of religious ceremonies. Odneal I, 435 F. Supp. 2d at 622.
In an unpublished per curiam opinion, this Court affirmed the grant of
summary judgment as to the pipe-ceremony claims, but remanded the
medicine-bag and long-hair issues to the district court for further
development of the evidentiary record. Odneal v. Pierce, 324 F. App’x 297,
302 (5th Cir. 2009) (“Odneal appeal”). As to the medicine-bag RLUIPA claim,
this Court held that the district court had applied the wrong standard in
analyzing the medicine-bag claim by utilizing the rational-connection/
legitimate-government-interest test rather than RLUIPA’s more demanding
compelling-interest/least-restrictive-means test. As to the grooming-policy
RLUIPA claim, this Court reasoned that cases, such as Diaz, involving long
hair generally do not necessarily foreclose a prisoner’s claims involving
kouplocks, which may have unexplored distinctions in the area of security
risks. Id. at 301 (distinguishing Diaz, 114 F.3d at 72).
On remand, Odneal was appointed counsel and abandoned his
medicine-bag claim, proceeding to trial only on the long-hair/kouplock issue.
Odneal II, 2010 WL 3359535, at *2. TDCJ officials produced evidence that
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kouplocks could present security challenges for inmate identification and
provide a place for hiding contraband. Id. at *6. Odneal countered this
evidence with the testimony and expert report of George Sullivan, an
experienced prison official who has worked with Native American
populations in prisons in Oregon and Colorado. Id. Sullivan testified that
kouplocks do not present security issues and are not practical places for
hiding contraband. Id. at *7. Based on Sullivan’s testimony, the district
court denied summary judgment, finding that there were genuine issues of
material fact as to whether the policy prohibiting Odneal from wearing a
kouplock served a compelling interest, and was the least restrictive means of
achieving that interest. Id. at *8.
Odneal’s kouplock claim proceeded to a two-day bench trial held on
December 13–14, 2010. See Odneal v. Pierce, C.A. No. C-04-454, 2011 WL
2678940, at *1 (S.D. Tex. July 7, 2011) (“Odneal III”). Before the district
court could issue a ruling, TDCJ transferred Odneal to a Minnesota prison
where he would be permitted to grow his hair. Id. at *2. Thus, the kouplock
issue became moot and remained undecided.
Here, Plaintiffs purported to present summary judgment evidence to
rebut prison officials’ testimony by retyping and citing George Sullivan’s
expert testimony from Odneal’s bench trial. The district court’s opinion on
summary judgment does not reflect what consideration, if any, was given to
Plaintiffs’ summary judgment evidence. 5 The district court briefly discussed
the Odneal appeal in a footnote and concluded that “the Odneal case has
5 Davis and Goodman also contend that the district court failed to consider their
post-judgment Reply to Defendants’ Reply to the Motion for Summary Judgment. However,
in denying Plaintiffs’ Rule 59(e) Motion for Reconsideration of the Court’s Opinion and
Order, the Magistrate Judge indicated that she took into account the post-judgment Reply
and found no basis for overturning summary judgment.
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little or no bearing on the case sub judice.” Despite the district court’s finding
in Odneal II that Sullivan’s expert testimony created genuine issues of
material fact on the kouplock claim, 2010 WL 3359535, at *8, the district
court’s analysis of Plaintiffs’ kouplock claims in this case was limited to one
paragraph and did not discuss Sullivan’s testimony, which had not been
stricken. Instead, the district court stated that Defendants’ summary
judgment evidence was “uncontroverted.”
Given the posture of the case at summary judgment, Defendants’
evidence regarding the kouplock issue was not plainly uncontroverted.
Plaintiffs had typed verbatim, and referenced portions of, testimony by
witnesses from Odneal’s bench trial to support their grooming-policy claim.
Plaintiffs also informed the Magistrate Judge of their desire to use this
testimony during an evidentiary hearing held on June 21, 2012. At that
hearing, the Magistrate Judge indicated that the law might permit this
evidence to be used against TDCJ, but that its admissibility would be
determined at a future time. It appears from the record that such a
determination was never made.
As an additional reason that we cannot conclude the evidence was not
before the district court, the record indicates that Plaintiffs, as pro se
prisoner litigants, were permitted some leeway in the form of documents that
could be submitted. In another order entered on December 20, 2013, the
district court responded to Plaintiffs’ request for copies of pleadings by
stating that Plaintiffs could “hand copy all documents sent to the Clerk.”
That order specifically dealt with maintaining Plaintiffs’ own files of
documents sent to the district court, but could reasonably have been
construed by Plaintiffs as an invitation to make hand-written facsimiles
when necessary for filing with the district court. Among the grounds argued
in Defendants’ motion to strike Sullivan’s testimony was Plaintiffs’ failure to
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attach the relevant portions of the actual transcript from which the typed
copy was made. However, in light of the December 20, 2013, order
referencing the hand-copying of materials, it is not clear that the district
court would have discounted Plaintiffs’ summary judgment evidence merely
for reasons of form.
In substance, it is also unclear why Plaintiffs’ summary judgment
evidence would not be relevant to the district court’s decision. In Odneal’s
case, summary judgment was denied and the district court found genuine
issues of material fact remained on facts and evidence similar to those
presented by Plaintiffs in this case. Odneal II, 2010 WL 3359535, at *8.
While RLUIPA “suggests a fact-specific inquiry that takes into account the
special circumstances of the individual prisoner and prison,” see Chance, 730
F.3d at 410, this case and Odneal involved the same unit within the same
prison and prisoners with substantially similar characteristics raising similar
challenges to the TDCJ grooming policy. As such, evidence developed in
Odneal’s case could be relevant in the present suit, even under the
individualized inquiry standard.
If Plaintiffs’ expert testimony evidence was not credited because the
Magistrate Judge found it inadmissible or improper, the record does not
reflect this determination. Were the district court to have made a considered
decision that evidence from Odneal’s bench trial was not relevant or should
be stricken from the record, or otherwise discussed the evidence presented in
a meaningful way, the decision to grant summary judgment on this issue
might ultimately have been supported. However, the current record does not
reflect whether the Magistrate Judge considered Plaintiffs’ evidence and
drew reasonable inferences in their favor, as is required in deciding a motion
for summary judgment. Cotton, 134 S. Ct. at 1863. Remand for further
consideration of this issue is warranted.
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2. Holt v. Hobbs and Plaintiffs’ Particular Characteristics
The grooming-policy RLUIPA claim should also be remanded because
the district court did not appear to consider Plaintiffs’ specific, individual
status as low custody level inmates in relation to their theory that the
grooming restrictions are unnecessary as applied to them. Davis and
Goodman argue that the district court’s opinion does not reflect that
consideration was given to their specific security risk status, which they
assert was low, in determining whether disallowing a kouplock substantially
burdened their religious exercise by the least restrictive means. 6
The Supreme Court has explained that RLUIPA “requires the
Government to demonstrate that the compelling interest test is satisfied
through application of the challenged law to the person—the particular
claimant whose sincere exercise of religion is being substantially burdened.”
Holt, 135 S. Ct. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779) (quotation
marks omitted).
In Holt, 135 S. Ct. at 853, the Supreme Court considered a RLUIPA
challenge to the Arkansas Department of Corrections’ no-beard policy. The
policy prohibited inmates from wearing facial hair other than a “neatly
trimmed mustache.” Id. at 860. The policy made no religious exceptions, but
did allow inmates with diagnosed dermatological conditions to wear a ¼-inch
beard. Id. In accordance with his Muslim faith, Gregory Holt sought
permission to grow a ½-inch beard. Id. at 859, 861. Holt’s request was
denied, and he filed suit under RLUIPA. Id. at 861. Following an evidentiary
6 On appeal, Davis and Goodman also claim that the district court erred in failing to
consider the option to house all low security risk Native American inmates in one unit and
allow long hair or a kouplock only on that unit. It does not appear that this argument was
raised in the district court. This Court does not “consider arguments or evidence that was
not presented to the district court.” Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329
(5th Cir. 2008).
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hearing, the district court dismissed Holt’s RLUIPA complaint for failure to
state a claim, and the Eighth Circuit affirmed. Id. The Supreme Court
reversed, holding that the Department’s grooming policy violated RLUIPA as
applied to Holt. Id. at 867.
The Court reasoned that the Department’s stated justification for the
policy, preventing the flow of contraband, would not be seriously
compromised by permitting Holt to grow a ½-inch beard. Id. at 863.
Similarly, the Court found the Department’s interests in prisoner
identification and security would not be severely compromised. Id. at 865. In
reaching this conclusion, the Court noted that permitting a religious
accommodation to a grooming policy may still allow prison officials to
maintain security because RLUIPA allows an institution “to withdraw an
accommodation if the claimant abuses the exemption in a manner that
undermines the prison’s compelling interests.” Id. at 867.
Applying Holt, another panel of this Court recently affirmed a district
court’s grant of declaratory and injunctive relief enabling a Muslim TDCJ
inmate to grow a four-inch beard and wear his kufi throughout TDCJ’s
facilities. Ali, 2016 WL 1741573, at *1. 7 In doing so, this Court reviewed the
district court’s findings as to the TDCJ grooming policy and evaluated the
evidence supporting TDCJ’s concerns over preventing the transfer of
contraband, facilitating inmate identification, controlling costs, and ensuring
orderly program administration, all of which have been raised as interests in
this litigation. Id. at *6–13. Examining the specific exemption requested, a
four-inch beard, this Court found that TDCJ’s ban on the wearing of such a
7George Sullivan also testified as an expert witness in the Ali bench trial that self-
searches and visual inspections of longer beards are effective methods for revealing
contraband. Ali, 2016 WL 1741573, at *8.
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beard as to Ali was not the least restrictive means of furthering these
interests. 8
In light of Holt, TDCJ’s asserted compelling interests must be
examined in light of the particular characteristics of each Plaintiff, including
their alleged low security risk status and the particular risks of the specific
exemption requested. 135 S. Ct. at 863. The specific exemption requested
here is to allow Plaintiffs to wear long hair or a kouplock. In the district
court, TDCJ presented photographs of objects small enough in size to
hypothetically be hidden in a kouplock, and evidence that inmates at other
institutions hide contraband in various styles of short and long hair,
indicating that the grooming policy does further an interest in preventing the
transfer of contraband. But TDCJ has not demonstrated on the present
record that a total ban on the growing of kouplocks, even as to low security
risk inmates such as Plaintiffs, is the least restrictive means of furthering
that interest. Were Plaintiffs to be caught using their kouplocks to smuggle
contraband or for some other prohibited purpose, any accommodation could
be withdrawn. Id. at 867; see also Ali, 2016 WL 1741573, at *14 (“TDCJ has
not shown why it is impracticable to revoke kufi privileges for those inmates
that resist such searches.”). In addition, a fact question may be presented on
this point based on George Sullivan’s testimony that, in his experience,
inmates are unlikely to hide contraband in their hair.
Because TDCJ’s interests in preventing the wearing of long hair or
kouplocks were not evaluated in light of the specific characteristics of each
Plaintiff as purportedly low security risk Native American inmates, remand
for further findings on this issue is appropriate.
8 The Court began its analysis by noting that Ali “is a ‘trusty’ inmate, which is the
lowest security level classification, and lives in a dormitory outside of the Michael Unit’s
fence line.” Id.
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No. 14-40339
IV. CONCLUSION
The district court did not err in granting summary judgment on
Plaintiffs’ First Amendment claim, medicine-bag RLUIPA claim, and pipe-
ceremony RLUIPA claim. Because the district court did not strike Plaintiffs’
summary judgment evidence, including George Sullivan’s expert testimony,
and because genuine issues of material fact remain regarding the legitimacy
of TDCJ’s cost and security concerns created by the wearing of a kouplock by
Plaintiffs as low security risk Native American inmates, and further because
the district court did not consider Plaintiffs’ grooming-policy claim in light of
Plaintiffs’ individual circumstances, we VACATE and REMAND in part for
further proceedings as to Plaintiffs’ grooming-policy claim under RLUIPA.
We AFFIRM the judgment of the district court in all other respects.
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