Bobby Brown v. Bryan Collier

Case: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2019
No. 14-20249
Lyle W. Cayce
Clerk
BOBBY R. BROWN, individually and on behalf of all others similarly
situated,
Plaintiff—Appellee,
WILLIAM E. SCOTT,
Intervenor Plaintiff—Appellee,
TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE
FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN
COLLINS; LAMONT EDWARD WILSON,
Intervenor Plaintiffs—Appellees,
v.
BRYAN COLLIER, Executive Director of the Texas Department of Criminal
Justice,
Defendant—Appellant.
**********************************************************
consolidated with 14-20444
BOBBY R. BROWN, individually and on behalf of all others similarly
situated,
Plaintiff—Appellee,
TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE
FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN
COLLINS; LAMONT EDWARD WILSON,
Intervenor Plaintiffs—Appellees,
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v.
BRYAN COLLIER, Executive Director of the Texas Department of Criminal
Justice,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Texas
Before KING, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts
I, II, III, IV, V and VII:
Pursuant to a provision of the Prison Litigation Reform Act (PLRA), 1 the
Texas Department of Criminal Justice (TDCJ) seeks to terminate a consent
decree entered in 1977, which exempts Muslim inmates from the requirement
that all religious gatherings and activities in Texas state prisons attended by
more than four inmates must be directly supervised by either prison staff or a
prison-approved outside volunteer. The district court denied the motion in
part, concluding that a portion of the consent decree remains necessary to
correct current and ongoing violations of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 2 the Free Exercise Clause of the First
Amendment, and the Establishment Clause of the First Amendment. We
reverse and terminate the 1977 consent decree.
1 18 U.S.C. § 3626(b).
2 42 U.S.C. § 2000cc, et seq.
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I
More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a
class action against the executive director of TDCJ that resulted in the 1977
consent decree. That decree required TDCJ to make an exception for Muslim
inmates to a policy that otherwise applied to those attending religious
activities. TDCJ’s rules and policies have required religious worship services
or study gatherings attended by more than four inmates to be “directly”
supervised by either prison staff, which would include a chaplain employed by
TDCJ, or a prison-approved outside volunteer. 3 Direct supervision means that
either a TDCJ employee or a qualified volunteer is in the room during the
religious activities at all times and is supervising only those activities, with no
responsibility for supervising other areas of the prison or other inmates until
the activities have concluded. 4 However, when a volunteer is supervising or
leading the religious gathering, a TDCJ officer “will be roving the hallways
checking on the offenders, checking on the volunteers.” 5 If an officer is not
available, the service or activity will be cancelled, even if a volunteer is
scheduled to be present. 6
The 1977 consent decree afforded Muslim inmates the right to
participate in group religious services and studies that were “indirectly”
supervised if no prison staff member or outside volunteer was available for
direct supervision. 7 Indirect supervision means that a prison staff member is
in the vicinity and observes the religious gathering intermittently, through
windows or by the use of audio or video equipment, but does not remain present
3 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).
4 ROA 1432.
5 ROA 2488-89.
6 ROA 2489.
7 See Brown, 17 F. Supp. 3d at 620.
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in the room or area where the activity is occurring. 8 The consent decree also
provided that adherents to the Religion of Islam must be allowed “equal time
for worship services and other religious activities each week as is enjoyed by
adherents to the Catholic, Jewish and Protestant faiths,” and the decree said
that TDCJ must “specifically, allow adherents to the Religion of Islam at least
two (2) full hours of time for worship services or other religious activities each
week, rather than the one (1) hour previously permitted.” 9 In the present
proceedings, the district court found that from 1977 until January 1, 2013,
Muslim, Jewish, Catholic, Protestant, and Native American inmates could
engage in an average of six hours of religious activities each week at units in
which members of each of these faith groups were housed. 10
However, members of other faiths were not permitted to gather as
frequently due to the lack of civilian volunteers. William Scott, a Jehovah’s
Witness, sued the director of TDCJ in federal district court in 2009, seeking an
injunction ordering prison officials to allow him and other members of the
Jehovah’s Witness faith to meet without volunteers, just as Muslims were
permitted to do as a result of the consent decree. The district court’s 2012
opinion and order in the Scott suit reflected that there were 217 offender faith
preferences represented in the TDCJ system, and 59 designated faith groups
at the Huntsville Unit, where Scott had been confined for a period of time. 11
TDCJ asserted that it did not have sufficient staff to provide adequate
supervision of all offender faith groups if they were allowed to meet without
8Id. at 621.
9ROA 40.
10 Brown, 17 F. Supp. 3d at 621.
11 Scott v. Pierce, No. 4:09-CV-3991, 2012 WL 12535442, at *1 (S.D. Tex. May 7, 2012)
(unpublished).
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volunteers present. 12 The district court held in Scott that the Establishment
Clause requires “denominational neutrality,” its “prohibition against
preferential treatment of religion is ‘absolute,’” and that Muslim inmates “are
preferred to Jehovah’s Witnesses with respect to the volunteer policy.” 13 The
court concluded “[i]f alternative means exist to treat Muslim and Jehovah’s
Witness prisoners without favoritism, then the Establishment Clause
demands them.” 14 The district court concluded that injunctive relief based on
the Establishment Clause violation was warranted but did not enter an
injunction at that time. It instead ordered the Executive Director of TDCJ “to
propose a method of compliance” within sixty days. 15 The district court’s
opinion in Scott observed that “if Muslims regularly engage in communal
worship without an approved religious volunteer present, evidence exists that
the government’s rule against Jehovah’s Witnesses’ meetings is not ‘closely
fitted’ to the government’s compelling interest in enforcing the [Brown] consent
decree.” 16
In the Scott litigation, Scott had also requested injunctive relief under
RLUIPA. The district denied that request, reasoning that “the accommodation
of an offender’s religious or spiritual needs does not outweigh a prison’s need
to maintain order and safety,” 17 that “due deference” is to be given to prison
administrators regarding “good order, security and discipline, consistent with
consideration of costs and limited resources,” and “that a rational connection
12 Id. at *2.
13 Id. at *3.
14 Id. at *8.
15 Id. at *5.
16 Id. at *4.
17 Id. at *6.
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exists between” requiring directly supervised religious gatherings “and the
government’s legitimate interest in prison security.” 18
TDCJ responded to the district court’s decision in Scott by promulgating
Administrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties
refer to as the “Scott Plan.” Under the Scott Plan, all religious gatherings of
more than four inmates require direct supervision, including worship and
studies by more than four Muslim inmates. 19 The Scott Plan conflicts with the
1977 consent decree that permitted Muslim inmates to congregate with only
indirect supervision. Under the Scott Plan, each religious group is permitted
to have a group worship service for one hour per week that is directly
supervised by prison staff. Additional group religious activities are permitted
if supervised by an outside, authorized volunteer. 20
In the present case, and as a result of the district court’s conclusion in
the Scott case that TDCJ had violated the Establishment clause by preferring
adherents to the Religion of Islam over the Jehovah’s Witness faith group,
TDCJ moved to terminate the 1977 Brown consent decree pursuant to the
PLRA. 21 The PLRA provides that “in any civil action with respect to prison
conditions in which prospective relief is ordered, such relief shall be terminable
upon the motion of any party or intervenor,” if the order has been in effect for
a certain period of time, unless “the court makes written findings based on the
record that prospective relief remains necessary to correct a current and
ongoing violation of the Federal right, extends no further than necessary to
18 Id. at *6.
19 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).
20 Id. at 623; see ROA 3080, 3284-85, 4105.
21 ROA 72-82.
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correct the violation of the Federal right, and that the prospective relief is
narrowly drawn and the least intrusive means to correct the violation.” 22
Pursuant to provisions of the PLRA, TDCJ’s motion operated as an
automatic stay of the 1977 Brown consent decree, 23 allowing TDCJ to
implement the Scott Plan pending further proceedings in the district court.
Accordingly, the direct supervision requirement for all religious groups in
TDCJ prisons, including members of the Religion of Islam, went into effect in
2013. 24
After the implementation of the Scott Plan, Muslim inmates may attend
a weekly, one-hour Jumu’ah service directly supervised by TDCJ chaplains or
employees, but opportunities for Muslim prisoners to participate in other
communal worship or studies diminished due to a dearth of Muslim volunteers
from outside the prison system. 25 Protestant and Catholic prisoners, by
contrast, maintained the ability to engage in group worship or study in
addition to the one-hour, weekly service directly supervised by TDCJ-
employees because of a relative abundance of outside volunteers. 26
The district court held an evidentiary hearing on TDCJ’s motion to
dissolve the 1977 decree. That decree had twenty-two specific provisions,
twenty of which the district court terminated without objection by any party.
But the district concluded that two provisions were necessary to correct current
and ongoing violations of the federal Constitution and to give effect to statutory
rights of Muslim inmates, effectively rejecting the Scott Plan as it applies to
22 18 U.S.C. § 3626(b)(2)-(3).
23 Id. § 3626(e).
24 ROA 3077.
25 ROA 1951, 1953.
26 ROA 1953.
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Muslim inmates. 27 One of the two provisions of the 1977 consent decree that
the district court refused to dissolve, found in section III(15) of the decree,
required TDCJ officials to “[a]llow adherents to the Religion of Islam at each
unit of the Texas Department of Corrections equal time for worship services
and other religious activities each week as is enjoyed by adherents to the
Catholic, Protestant and Jewish faiths.” 28 The other provision that the district
court ordered be left intact is found in section III(8) of the consent decree, which
required TDCJ officials to permit inmates professing adherence to the Religion
of Islam to congregate for worship, study, and other religious functions and
activities under the supervision of an inmate leader whenever an ordained
Islamic minister is unavailable at a regularly scheduled time for worship and
study. 29
The district court focused on three required practices of the Islamic
faith—Jumu’ah, Taleem, and Qur’anic studies—that necessitate group
gathering. 30 The district court concluded that the one hour of direct
supervision per week allotted to the roughly 6,775 Muslim inmates in Texas
state prisons by TDCJ staff under the Scott Plan is not enough time to meet
the requirements of Jumu’ah, Taleem, and Qur’anic studies, 31 and that the
number of Muslim chaplains employed by the TDCJ, and of available Muslim
volunteers, is insufficient to provide adequate group study and worship. 32 The
district court found that by contrast, Christian inmates are able to attend an
average of six hours of religious gatherings per week, due to the large number
27 See ROA 1979-80.
28 ROA 40
29 ROA 36-37.
30 ROA 1956-58.
31 ROA 1951, 1958.
32 ROA 1951, 1958.
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of Christian volunteers available to supervise such assemblages directly. 33 The
court concluded that “Jewish inmates are specifically assigned to units” that
are in closer proximity to prospective volunteers, and Native American
inmates are assigned to a specifically designated unit to facilitate access to one
another and to enhance Native American religious activities. 34 The TDCJ has
not assigned Muslim prisoners to specifically designated units. 35
The district court held that the Scott Plan and its direct supervision
requirement result in violations of three different federal rights. Specifically,
the district court held that the Scott Plan (1) unjustifiably imposes a
substantial burden on Muslim inmates’ religious exercise, thereby violating
RLUIPA; 36 (2) restricts Islamic religious exercise in violation of the Free
Exercise Clause of the First Amendment; 37 and (3) disfavors Islam and favors
other faiths, violating the Establishment Clause of the First Amendment. 38
Subsequently, the district court awarded attorneys’ fees in favor of Brown and
a group of Muslim inmates who intervened in the case (the Inmate Intervenors)
as prevailing parties. 39
The TDCJ appeals both the district court’s denial of its motion to
terminate the consent decree and the award of attorneys’ fees. A motions panel
of this court ordered that the district court’s judgment on the merits be stayed
pending appeal. 40
33 ROA 1953.
34 ROA 1964-65.
35 ROA 1965.
36 ROA 1975-77.
37 ROA 1970-75.
38 ROA 1966-70.
39 ROA 2021.
40 Brown v. Livingston, No. 14-20249, Doc. No. 32 (5th Cir. May 20, 2014); see also
Brown v. Livingston, No. 14-20249, Doc. No. 61 (5th Cir. June 5, 2014) (denying
reconsideration).
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II
We have held that “[t]he application of the relevant sections of the PLRA
requires the district court to make a finding of an ongoing constitutional
violation, which is a mixed question of law and fact,” 41 and that “[w]e review
mixed questions of law and fact de novo.” 42 with the definite and firm
conviction that a mistake has been committed.’” 43
III
“The PLRA strongly disfavors continuing relief through the federal
courts; indeed, its fundamental purpose was to extricate them from managing
state prisons.” 44 As noted above, prospective relief like the consent decree at
issue in this case must be terminated on the motion of any party unless such
relief “remains necessary to correct a current and ongoing violation of the
Federal right, extends no further than necessary to correct the violation of the
Federal right, and . . . is narrowly drawn and the least intrusive means to
correct the violation.” 45 The 1977 consent decree applies to the entire TDCJ
prison system and “terminates unless the district court makes [the requisite]
41 Castillo v. Cameron Cty., 238 F.3d 339, 347 (5th Cir.2001) (citing Inmates of Suffolk
Cty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)); see also Ruiz v. United States, 243 F.3d
941, 950 (5th Cir. 2001).
42 Castillo, 238 F.3d at 347 (citing Cargill, Inc. v. United States, 173 F.3d 323, 333 n.13
(5th Cir. 1999)).
43 Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original); id. at 573-74
(“If the district court's account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently. Where there are
two permissible views of the evidence, the factfinder's choice between them cannot be clearly
erroneous.”).
44 Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per
curiam) (citation and internal quotation marks omitted).
45 18 U.S.C. § 3626(b)(2)-(3).
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findings” and “also finds ongoing, system-wide violations.” 46 We have held that
“the burden of proof to support these findings is obviously on the party
opposing termination.” 47
The district court found violations of RLUIPA, the Free Exercise Clause,
and the Establishment Clause. It is important to bear in mind in our analysis
that our focus ultimately remains on the PLRA. No inmate has brought a free-
standing claim that he is entitled to injunctive relief under RLUIPA or the
Constitution.
The relief granted by the district court was not limited to continuing the
1977 Consent Decree in effect. The PLRA does not authorize the district court
to expand the consent decree. The district court erred in doing so. The
remaining inquiry under the PLRA is whether there is an ongoing violation of
a federal right.
IV
We first consider RLUIPA. It states, in relevant part:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution, as defined in section 1997 of this title, even if the
burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person—
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that
compelling governmental interest. 48
46 Guajardo, 363 F.3d at 395.
47 Id. at 396.
48 42 U.S.C. § 2000cc-1(a).
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RLUIPA prevents government practices that substantially burden the
religious exercise of an inmate unless the practice furthers a compelling
governmental interest and is the least restrictive means of doing so.
Initially, “it falls to the plaintiff to demonstrate that the government
practice complained of imposes a ‘substantial burden’ on his religious
exercise.” 49 To demonstrate a substantial burden, “the plaintiff must show
that the challenged action ‘truly pressures the adherent to significantly modify
his religious behavior and significantly violate his religious beliefs.’” 50 If the
inmate makes this showing, the burden shifts to the government “to show that
its action or policy is the least restrictive means of furthering a compelling
interest.” 51 In making this assessment, we must give “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.” 52
However, the Supreme Court has made clear that even when prison
regulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the asserted
harm of granting specific exemptions to particular religious claimants’ and ‘to
look to the marginal interest in enforcing’ the challenged government action in
that particular context.” 53
The district court held that (1) Muslim prisoners’ religious exercise is
“substantially burdened” by the Scott Plan’s direct supervision requirement
49 Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004) (citing 42 U.S.C. § 2000cc-2).
50 Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (quoting Adkins, 393 F.3d at
570).
51 Chance v. Tex. Dep't of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013).
52 Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).
53 Holt v. Hobbs, 135 S. Ct. 853, 863 (2015) (quoting Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682, 726-27 (2014)).
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because it causes them to forgo group religious practices that they sincerely
believe are required by their faith, 54 (2) the State has failed to prove that the
policy’s application to Muslim prisoners actually advances prison security or
any other “compelling governmental interest,” 55 and (3) even if direct
supervision does advance a compelling interest, it is not the least restrictive
means of doing so. 56 Brown, the Inmate Intervenors, and several amici
contend on appeal that the Scott Plan’s direct supervision requirement imposes
a substantial burden because it limits Muslim inmates to one hour of group
religious services per week, which, they assert, is insufficient time to complete
weekly Jumu’ah, Taleem, and Qur’anic studies as required by their religious
beliefs. They also assert that permitting indirect supervision of these services
does not raise security issues and that TDCJ could provide direct supervision
at little additional cost.
TDCJ contends that it is not the direct supervision policy that limits
opportunities for Muslim inmates to participate in Taleem and Qur’an Studies
but instead, it is a lack of volunteers to supplement the teaching and worship
opportunities supervised by TDCJ Muslim chaplains and TDCJ staff.
Precedent from this court supports such a conclusion. TDCJ’s policy allows
Muslim volunteers to conduct services and studies for and with inmates. But,
as the district court expressly found, “despite specific and concerted efforts over
the past years to recruit volunteers to participate in Muslim religious activities
at the prison, TDCJ has been unsuccessful in securing a significant number of
Muslim religious volunteers.” 57
54 ROA 1975-76.
55 ROA 1976-77.
56 ROA 1977.
57 ROA 1953.
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This court has considered several challenges under RLUIPA to TDCJ’s
policy that religious worship and study when more than four inmates are
involved must be directly supervised by a TDCJ employee or a TDCJ-approved
volunteer. 58 In Adkins v. Kaspar, the plaintiff was a member of the Yahweh
Evangelical Assembly (YEA). 59 Like the Muslim inmates in the present case,
he complained that the direct supervision requirement, together with a
shortage of outside YEA volunteers, deprived him of adequate opportunities
for group religious practice. 60 This court held that the lack of opportunity for
group religious practice resulted “not from some rule or regulation that directly
prohibits such gatherings” but instead “from a dearth of qualified outside
volunteers available to go to [the prison].” 61 We concluded in Adkins that the
TDCJ’s policies had not imposed a substantial burden on the plaintiff. 62
Subsequently, in Baranowski v. Hart, an inmate had protested the
recurring failure of one of the TDCJ’s prisons to allow for group religious
services on Jewish holy days. 63 This court took note of the fact that on each of
the days on which religious services were not held, “no rabbi or approved
religious volunteer was available to lead the services.” 64 As in Adkins, the
court held that the lack of volunteers, and not the direct supervision
requirement, caused the religious gatherings to be infrequent, such that “the
acts of Defendants regarding religious services have not placed a substantial
58 See, e.g., Mayfield v. Tex. Dep’t Crim. Justice, 529 F.3d 599 (5th Cir. 2008);
Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393 F.3d 559, 571 (5th
Cir. 2004).
59 393 F.3d at 562.
60 Id. at 562, 571.
61 Id. at 571.
62 Id.
63 486 F.3d at 124-25.
64 Id. at 124.
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burden on Baranowski’s free exercise of his Jewish faith, within the
contemplation of RLUIPA.” 65
These decisions did not adopt a per se rule. We said in Adkins that
“whether the government action or regulation in question imposes a
substantial burden on an adherent's religious exercise” “requires a case-by-
case, fact-specific inquiry.” 66 In Mayfield v. Texas Department of Criminal
Justice, 67 an Odinist submitted affidavits averring that group worship
meetings known as Blotar should be conducted on a monthly basis at a
minimum. 68 There was evidence that outside volunteers came only once every
18 months to conduct Blotar, and Odinists inmates were “unable to conduct
Blotar on a regular basis because the TDCJ requires that they have a security-
trained, religious volunteer present for their group meeting.” 69 But there was
also evidence in Mayfield that the volunteer policy was not imposed uniformly
because an exception was made for Muslim inmates in order to comply with
the consent decree that is at issue in the case now before us. 70 Pertinent to our
analysis in the present case, we said in Mayfield that “[b]ecause the volunteer
policy was implemented uniformly in the Adkins case, it was not the policy
imposing the burden on Adkins’ religious practice, but instead the lack of
qualified volunteers.” 71
65 Id. at 125 (citing Adkins, 393 F.3d at 571); see also Odneal v. Pierce, 324 F. App’x
297, 302 (5th Cir. 2009) (unpublished) (affirming grant of summary judgment because “the
infrequency of Native American services at the McConnell Unit is due to a dearth of outside
volunteers rather than any regulation directly prohibiting these ceremonies”).
66 393 F.3d at 571.
67 529 F.3d 599 (5th Cir. 2008).
68 Id. at 602.
69 Id.
70 Id. at 608.
71 Id. at 614.
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The present case differs materially from Mayfield because in the case
before us, there is no evidence that “calls into question the uniformity of the
policy’s application.” 72 The direct supervision requirement under the Scott
Plan has been imposed uniformly, as it was in Adkins. Accordingly, applying
our precedent as we are bound to do, it is not the Scott Plan that has imposed
a burden on Muslim inmates’ religious exercise. It is the lack of volunteers
who adhere to the faith of Islam.
V
The district court also held that the Consent Decree remains necessary
to remedy ongoing violations of the Free Exercise Clause. 73 The district court
recognized that “the Fifth Circuit Court of Appeals has upheld TDCJ’s
volunteer policy,” citing Baranowski, Adkins, and an unpublished opinion, 74
but concluded that we had done so “on a record very different from the ones in
the present case.” 75 We disagree with the district court’s conclusions in that
regard.
The district court did not discuss or cite the Supreme Court’s decision in
O’Lone v. Estate of Shabazz, 76 in which Muslim inmates brought challenges
based on the Free Exercise clause to “policies adopted by prison officials which
resulted in their inability to attend Jumu’ah, a weekly Muslim congregational
service regularly held in the main building” of the prison on Fridays. 77 The
prison officials in O’Lone refused to exempt Muslim inmates from working
72 Id.
73 Brown v. Livingston, 17 F. Supp. 3d 616, 632-33 (S.D. Tex. 2014).
74 Id. (citing Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393
F.3d 559 (5th Cir. 2004); and Odneal v. Pierce, 324 Fed. App’x 297 (5th Cir. 2009)).
75 Id.
76 482 U.S. 342 (1987).
77 Id. at 345.
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outside the main building on Friday afternoons, and therefore, they were
unable to attend Jumu’ah. The Supreme Court held that this “did not violate
respondents’ rights under the Free Exercise Clause of the First Amendment.” 78
The Supreme Court applied the standard of review set forth in Turner v.
Safley, 79 ultimately concluding that “[w]e take this opportunity to reaffirm our
refusal, even where claims are made under the First Amendment, to
‘substitute our judgment on . . . difficult and sensitive matters of institutional
administration . . . for the determinations of those charged with the formidable
task of running a prison.” 80
Under Turner, we consider:
(1) whether a “valid, rational connection exists between the prison
regulation and the legitimate governmental interest put forward
to justify it,” (2) whether there exist “alternative means of
exercising the fundamental right that remain open to prison
inmates,” (3) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally,” and (4) whether there
is an “absence of ready alternatives” to the regulation in
question. 81
Applying these factors to the case presently before us, we cannot agree with
the district court that the TDCJ’s direct supervision requirement fails Turner’s
rationality review and violates the Free Exercise clause.
A
The Supreme Court explained in Turner that in analyzing whether there
is a “‘valid, rational connection’ between the prison regulation and the
78 Id.
79 482 U.S. 78 (1987).
80 O’Lone, 482 U.S. at 353.
81 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration omitted) (quoting
Turner, 482 U.S. at 89-90).
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legitimate governmental interest put forward to justify it, . . . the
governmental objective must be a legitimate and neutral one.” 82 The Court
continued, “[w]e have found it important to inquire whether prison regulations
restricting inmates' First Amendment rights operated in a neutral fashion,
without regard to the content of the expression.” 83 The Scott Plan is uniform.
It applies to all religions, without regard to the what beliefs or principles are
held or espoused. 84
The TDCJ contends that the legitimate government interest at stake in
imposing the direct supervision requirement is ensuring prison security,
especially in light of the TDCJ’s limited resources. It asserts that direct
supervision, including that undertaken by volunteers, deters wrongful
behavior, and that the direct supervision provided by volunteers differs from
that provided by inmates. Volunteers are more likely to report violations than
inmates. These common-sense justifications are sufficient to establish a
rational connection between direct supervision and prison security. 85 “[I]t
cannot seriously be maintained that ‘the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary
or irrational.’” 86
These justifications are also amply supported by the record,
notwithstanding the district court’s conclusion that direct supervision of
82 Turner, 482 U.S. at 89-90.
83 Id. at 90.
84 See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 608 (5th Cir. 2008) (“In
prior cases where we have affirmed summary judgment on similar § 1983 claims, we have
relied on the neutrality of the prison’s policy in doing so.”).
85 Cf. Jones v. Brown, 461 F.3d 353, 361 (3d Cir. 2006) (“[W]here the connection is
obvious, common sense may suffice[.]”).
86 O’Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (quoting Turner v. Safley, 482
U.S. 78, 89-90 (1987)).
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Muslim services is not necessary to promote safety. The district court’s focus
solely on Muslim services was in error. The question is whether the TDCJ’s
policy, which applies to all inmates, not just Muslim inmates, is rationally
connected to prison security and safety. There is unrefuted evidence that
security issues arise during directly supervised worship. It stands to reason
that opportunities for disruption or violence would increase if worship services
were only indirectly supervised. Though the district court refused to permit
TDCJ to offer evidence that fights or assaults at services other than Muslim
services had occurred, 87 the record nevertheless establishes that direct
supervision of inmate religious gatherings of more than four individuals
furthers legitimate government interests. The district court’s findings and
conclusions to the contrary are not supported by the record or common sense.
It is undisputed that when the consent decree regarding Muslim inmates
was in effect, “[a]ll the other faith groups were [directly] supervised,” which
meant a chaplain, volunteer or a correctional officer was in the room with the
inmates, “not just someone roving, walking by, checking on them frequently.” 88
When the consent decree was in effect, TDCJ required direct supervision of the
more than 132,000 non-Muslim inmates. Presently, under the Scott Plan,
TDCJ requires direct supervision of all inmates when worshiping because
otherwise, as a TDCJ employee testified, “we’d have large amounts of offenders
meeting without direct supervision, and anything can happen in a prison,”
such as “escape attempts,” “staff assaults,” and “inmate assaults.” 89 The
evidence is undisputed that offenders with histories of serious criminal conduct
attend worship services. “Some of these offenders are G4 offenders that have
87 ROA 2699.
88 ROA 4079-80.
89 ROA 4081.
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escape histories, they have assault histories, they’re confirmed gang members
even though they’re out in the offender population, they have a history of staff
assaults, inmate assaults. You’ve got all these offenders coming into one area
of the facility to congregate, and anytime you have a large group of offenders
and even sometimes a small group of offenders, that’s areas that we need to
directly supervise for public safety, for the safety of staff and the safety of the
inmate population.” 90
There was testimony that having personnel “in there to respond to that
when something’s happening during a service,” 91 rather than camera
surveillance, is necessary because a person in the room is “getting the tone of
the service or the cell block and watching the offenders, if they’re grouping up
or, you know, just how the offenders are acting that particular day,” and
“[y]ou’re not going to get that through a video surveillance system.” 92
An expert witness who was formerly a warden in Florida testified that
altercations occurred during religious services in the units he supervised, some
of which involved “a serious incident of bodily harm.” 93 This witness also
testified that if inmates are leading a service, security is needed, and having a
person in the room observing them is the “best form” of security. 94 He also
confirmed that “some offenders have custody levels that make them
dangerous”; when they are present in religious services, it is important to have
security; and that the “best way” of supervision in those cases is direct
supervision. 95 But more broadly, he testified that in light of his experience, a
90 ROA 4078.
91 ROA 4081.
92 ROA 4042.
93 ROA 2821.
94 ROA 2894.
95 ROA 2894-95.
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security presence in the form of a volunteer or a chaplain observing and
directly supervising the inmates in the service “needs to be there in a religious
service to prevent inmates from conducting any disruptive or criminal activity
in a service.” 96
A TDCJ Muslim inmate who testified at the hearing confirmed that he
has seen “fights break out” at “church services” other than Muslim services,
and that the prison in which he was incarcerated was “locked down” as a result
of “fights [that] have taken place in church services.” 97
There was also unrefuted testimony from TDCJ that “we have a Prison
Rape Elimination Act that we have to come into compliance with. There are
almost 50 standards that we’re trying to come into compliance with, and the
only way we can come in compliance with that is to make sure that we have
appropriate supervision of our offender population.” 98 Relatedly, the National
Prison Rape Elimination Commission Report 6 (June 2009) recommends direct
supervision of inmates should be used “wherever possible” “because it is the
most effective mode of supervision for preventing sexual abuse and other types
of violence and disorder.” 99 That Commission made the following finding and
recommendation:
Supervision is the core practice of any correctional agency,
and it must be carried out in ways that protect individuals from
sexual abuse. The Commission believes it is possible to meet this
standard in any facility, regardless of design, through appropriate
deployment of staff. Direct supervision, which features interaction
between staff and prisoners, should be used wherever possible
96 ROA 2903.
97 ROA 2697-98.
98 ROA 4078.
99 Nat’l Prison Rape Elimination Commission Report, 6 (2009), available at
https://www.ncjrs.gov/pdffiles1/226680.pdf.
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because it is the most effective mode of supervision for preventing
sexual abuse and other types of violence and disorder. 100
The district court’s own findings reflect that if TDCJ were to permit
adherents of each faith to gather in groups of more than four with only indirect
supervision, security risks would exist. The district court recognized “there is
evidence that the more serious incidents that occurred at or near religious
activities occurred during Catholic and Protestant services even though a
Chaplain, prison guard, or outside volunteer was present.” 101 Yet, the district
court concluded that this was not evidence of a need for direct supervision of
inmates during religious activities.
The district court’s conclusion in this regard appears to be based upon a
“Finding of Fact” that the “practice of permitting inmate-led services, as
described in the Consent Decree, was the ‘usual’ practice in prison systems.” 102
The district court cited the testimony of three witnesses in support of this
conclusion, but read in context, each witness said that in the wake of the
Consent Decree in the present case, prisons in some other jurisdictions had
adopted the provisions of the Consent Decree for Muslim inmates, not for
inmates of other faiths.
The district court’s opinion states:
McAndrew testified that prisons use methods other than direct
supervision to ensure security at religious meetings, such as roving
patrols and visual observations through windows. He also testified
that, in his experience, the practice of permitting inmate-led
services, as described in the Consent Decree, was the “usual”
practice in prison systems. 103
100 Id.
101 Brown v. Livingston, 17 F. Supp. 3d 616, 628 (S.D. Tex. 2014).
102 Id.
103 Id.
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This is incorrect. McAndrew testified that after the consent decree in
the present case was entered, an unspecified number of prisons used the
consent decree as a model for a policy regarding Muslim inmates and have
allowed indirectly supervised, inmate-led religious meetings by Muslim
inmates. 104 McAndrew did not testify that indirect supervision is a “usual”
practice with regard to any other faith group.
The district court also relied upon the testimony of a former Chaplain in
New York, Ibrahim Ezghair. Ezghair recounted that a state prison system less
than half the size of the Texas system had adopted and implemented the terms
of the consent decree at issue in the present case and had “experienced no
security or safety threats or events involving inmate-led or indirectly
supervised Muslim religious activities.” 105 The district court characterized
another Muslim Chaplain’s testimony, that of Chaplain Shabazz, as saying
that “many prison systems throughout the United States” permit indirect
supervision of inmate-led religious activities by Muslims, and that the witness
was “unaware of any safety concerns.” 106 This evidence is not only conclusory
and lacking in specificity, it is myopically focused on Muslim services. It is not
evidence that indirect supervision of religious services in prisons as a general
proposition presents no safety concerns. None of these witnesses testified that
prisons have permitted or reasonably should permit virtually all worship or
religious activities by inmates to occur with only indirect supervision.
In a letter to this court, the plaintiffs assert that “the Consent Decree
regime is the model followed by penal institutes throughout the nation.” The
plaintiffs do not provide any specificity in this regard. They cite to one page in
104 ROA 2792-93.
105 Brown, 17 F. Supp. 3d at 627.
106 Id.
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the district court’s opinion in this case, 107 which in turn relied on conclusory
testimony, just discussed above, from two witnesses regarding indirect
supervision of Muslim religious gatherings adopted by some prison systems in
the wake of the consent decree that is presently at issue. 108 None of that
testimony averred that indirect supervision of religious gatherings for inmates
has been widely accepted or even that indirect supervision of Muslin inmates,
admittedly modeled after the consent decree in the present case, has been
widely accepted.
The plaintiffs’ letter to this court also cites an amicus brief by four
individuals who denominate themselves “Former Prison Wardens.” That brief
relates those individuals’ own experiences, which amounts to unsworn
testimony that is not part of the record in this case and is not subject to cross-
examination. In support of the assertion that “monitoring through indirect
supervision is a common method of ensuring security for inmate-led worship,”
the amicus brief cites regulations in four jurisdictions. 109 The existence of such
policies in four states does not establish that the Federal Government, the vast
majority of States, or even a bare majority of the States, have such a policy.
We also know from court decisions around the country that at least
seventeen other jurisdictions do not permit inmates to gather for religious
exercise without direct supervision. 110 “‘While not necessarily controlling, the
107 Brown, 17 F. Supp. 3d at 627.
108 See Brown, 17 F. Supp. 3d at 627.
109 Cal. Code Regs., tit. 15, § 3211(a); 03-201 Me. Code R. Ch. 10, Subs. 24.3, § VI; Kan.
Admin. Regs. 44-7-113; N.Y. Comp. Codes R. & Regs. tit. 9, § 7024.2.
110 See, e.g., Hall v. Sutton, 581 F. App’x 580, 581 (7th Cir. 2014) (Illinois); Turner v.
Hamblin, 590 F. App’x 616, 619‑20(7th Cir. 2014) (Wisconsin); Bader v. Wrenn, 675 F.3d 95,
96 (1st Cir. 2012) (New Hampshire); Hathcock v. Cohen, 287 F. App’x 793, 800‑01 (11th Cir.
2008) (per curiam) (Florida); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.
Jan. 6, 2000) (Michigan); Manges v. Harman, No. 3:11‑CV‑369 PPS, 2014 WL 5488457, at
*10 (N.D. Ind. Oct. 29, 2014); Guess v. McGill, No. 9:13‑cv‑02260‑TLW, 2014 WL 5106735, at
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policies followed at other well-run institutions would be relevant to a
determination of the need for a particular type of restriction.’” 111
The amicus brief additionally asserts that an expert witness at the
hearing, Ron McAndrew, “testified that allowing indirectly supervised, inmate-
led services was a ‘usual’ practice in other prison systems.” This is misleading.
McAndrew testified that after the consent decree in the present case was
entered, an unspecified number of prisons used the consent decree as a model
for a policy regarding Muslim inmates and have allowed indirectly supervised,
inmate-led religious meetings by Muslim inmates. 112 McAndrew did not testify
that this is a “usual” practice with regard to any other faith group.
The amicus brief also quotes snippets of testimony from another expert
witness at the hearing, Alexander Taylor, asserting that he “testified that ‘the
most common practice . . . is where the chaplain in the building is able to do
that roving type of observation, sitting in as needed . . . .’” But read in its
entirety, that was not the import of Taylor’s testimony. He said a chaplain
roving during services “sit[s] in as needed, and sometimes through entire
services.” 113 But more importantly, he testified that though such a roving
*10‑11 (D. S.C. Oct. 10, 2014); Leishman v. Patterson, No. 2:11‑CV‑00309 CW, 2014 WL
2117543, at *6‑7 (D. Utah May 21, 2014); Vega v. Lantz, No. 3:04CV1215(DFM), 2013 WL
6191855, at *5, *8 (D. Conn. Nov. 26, 2013); Ericson v. Magnusson, No. 2:12‑cv‑00178‑JAW,
2013 WL 2634761, at *4 (D. Me. June 12, 2013); Howard v. Wiglesworth, No. 5:10cv163‑RHW,
2012 WL 3867011, at *5 (S.D. Miss. Sept. 5, 2012); Countryman v. Palmer, No.
3:11‑cv‑00852‑ECR‑VPC, 2012 WL 4340659, at *5 (D. Nev. Aug. 7, 2012); De’Lonta v.
Johnson, No. 7:11‑cv‑00175, 2012 WL 2921762, at *2 (W.D. Va. Jul. 17, 2012); Montague v.
Corr. Corp. of Am., No. 3:10‑cv‑0443, 2011 WL 3476543, at *3 (M.D. Tenn. Aug. 8, 2011);
Jihad v. Fabian, No. 09‑1604 (SRN/LIB), 2011 WL 1641885, at *19 (D. Minn. Feb. 17, 2011);
Strutton v. Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *47 (E.D. Mo. Mar. 31,
2010); Morrison v. Cook, No. 97‑57‑ST, 1999 WL 717218, at *4‑5 (D. Or. Apr. 27, 1999).
111 Holt v. Hobbs, 135 S. Ct. 853, 866 (2015) (quoting Procunier v. Martinez, 416 U.S.
396, 414, n.14 (1974)).
112 ROA 2792-93.
113 ROA 2891.
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practice is employed, “oftentimes” it is “not” the most common practice. 114 He
then explained that “[q]uite frequently” there is “direct supervision, having
someone physically in the room.” 115 He testified that, in lower security
institutions, “constant supervision isn’t quite as well practiced.” 116 “[D]irect
supervision, having someone physically in the room, is utilized in religious
services . . . quite frequently.” 117 “[S]pecific circumstances” when direct
supervision is used depends on the custody level of the institution, but even in
lower security units, when there are large numbers of inmates, a security
officer would be present:
[E]very institution has a profile for the type of custody levels that
they embrace. And the higher the custody level, the more difficult
the prison population is, the more likely you will have constant
supervision.
With the less, lower security level institutions, then the
constant supervision isn't quite as well practiced. In there, you
would have somebody, you know – a chaplain would be there, and
the service may take part while the chaplain is moving from room
to room. But another reason for the provision of a security officer
is simply the numbers. When there are large numbers of inmates,
we want to have appropriate supervision. 118
Taylor made clear that when he was a chaplain in a Florida prison, there
was indirect supervision in an inmate-led service only “[w]hen there are
smaller services and there is [sic] only a few inmates.” 119 At the time of the
hearing, there were 6,775 Muslim inmates 120 in 96 prisons across Texas. 121
114 ROA 2891.
115 ROA 2891.
116 ROA 2892.
117 ROA 2891.
118 ROA 2891-92.
119 ROA 2906.
120 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).
121 Id. at 623.
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Averaging the number of inmates across 96 prisons would mean that 70
Muslim inmates in each prison would potentially attend services and other
religious activities. We know from some of the findings of the district court
that in at least one prison, in Childress County, there were 53 Muslim
inmates. 122 But if only 53 inmates in each prison desired to attend group
worship or study, that is a significant number.
Taylor also testified that, based on his experience in Texas and Florida,
when “inmates are leading a service . . . having someone there in person
observing them” would be “the best form” of security. 123 He also confirmed that
in services in which “some offenders who have a custody levels that make them
dangerous” are present, the “best way” of supervising is “direct supervision.” 124
He summarized and reiterated his opinion that direct supervision “needs to be
there in a religious service to prevent inmates from conducting any disruptive
or criminal activity in a service.” 125
The district court’s “Findings of Fact” state that “[d]uring the thirty-five
years the Consent Decree was in effect and being adhered to by TDCJ, there
has been no evidence of a single reported or known incident involving a serious
security risk to the prison, its staff, inmates or the public at large involving
inmate-led Muslim religious activity.” 126 The district court then reasoned that
“[i]n other words, adherence to Sections III(8) and III(15) of the Consent
Decree,” which exempts only Muslim inmates from direct supervision, “has not
122 Id. at 624.
123 ROA 2894.
124 ROA 2894-2895.
125 ROA 2903.
126 Brown, 17 F. Supp. 3d at 621.
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presented or posed a threat to the security or safety of the institution or the
public.” 127
The implicit assumption underlying this ruling, and the plaintiffs’
arguments, is that Muslim inmates have been relatively peaceful in the past
when indirectly supervised, and therefore, all present and future Muslim
inmates, unlike inmates of other faiths, pose no threat to security, safety or
order within the TDCJ system of 111 prisons. Muslim inmates therefore must
be permitted to conduct inmate-led religious gatherings without direct
supervision. This rationale is problematic for at least two reasons: (1) it
ignores evidence that there is a need for direct supervision of Muslim inmates,
and (2) it gives disparate, preferential treatment to Muslim inmates over
inmates of other faiths.
Courts have recognized that permitting inmates to lead worship services
without appropriate supervision can create hierarchies that are detrimental to
a prison’s discipline structure. The Seventh Circuit, for example, has observed
that “allow[ing] inmates to conduct their own religious services [is] a practice
that might not only foment conspiracies but also create (though more likely
merely recognize) a leadership hierarchy among the prisoners.” 128 Relatedly,
the Supreme Court credited testimony in O’Lone v. Estate of Shabazz that
allowing “‘affinity groups’ in [a] prison to flourish” leads to “‘a leadership role
and an organizational structure that will almost invariably challenge the
institutional authority’” and that “special arrangements for one group would
create problems as ‘other inmates [see] that a certain segment is escaping’” a
prison requirement applicable to all others. 129 The “affinity group” in O’Lone
127 Id.
128 Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).
129 482 U.S. 342, 353 (1987).
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was comprised of Muslim inmates seeking exemption from work details on
Friday afternoons in order to attend Jumu’ah services. 130
In the case before us, there was evidence of hierarchies among Muslim
inmates in the TDCJ system. TDCJ Muslims inmates testified “[we would]
police ourselves” 131 when problems arose during inmate-led services that were
only indirectly supervised. Inmate worship leaders would prohibit an inmate
who behaved inappropriately from attending services for a period of time 132
and did not report incidents to prison officials because “we take care of
ourselves.” 133 Accordingly, for those who attended indirectly supervised
religious gatherings, whether a Muslim inmate would be permitted religious
exercise was left to the sole discretion of another inmate, and TDCJ officials
were kept unaware of disciplinary issues. It is detrimental to the rights of
inmates when they are disciplined by other inmates, and such a system
undermines the prison’s disciplinary and oversight functions.
The district court did not discuss this evidence. Nor did the district court
discuss unrefuted evidence that violence occurred during a Muslim worship
service even though that service was directly supervised by a TDCJ employee
who was able to intervene immediately. 134 In another incident, an intense
argument among Muslim inmates at a religious gathering resulted in a
response team from the prison being called due to the potential for violence
and harm to those present at the worship service, though no physical injury
130 Id.
131 ROA 2697.
132 ROA 2697.
133 ROA 3818.
134 Def. Ex. 46 (incident occurred on July 31, 2013); see also ROA 3077 (the Scott Plan
went into effect in January 2013).
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occurred before the response team arrived to quell the disorder. 135 There was
also evidence of other disruptions in Muslim religious gatherings that did not
result in physical violence but were disruptions, nevertheless.
The district court reasoned that volunteers are not security personnel
and “the presence of an outside volunteer [does not] further [TDCJ’s]
compelling state interest in prison security.” 136 The record as a whole does not
support this conclusion.
There was unrefuted testimony that prisons across the country utilize
volunteers to supervise religious exercise by inmates because volunteers do
have a positive impact on maintaining security, safety, and orderliness. 137 An
expert witness testified that, in his opinion, a volunteer or a chaplain “needs
to be there in a religious service to prevent inmates from conducting any
disruptive or criminal activity.” 138 This witness also testified that “volunteers
do conduct some of the similar duties like a correctional officer who watches
offenders . . . they watch offenders.” 139 Though volunteers do not have to
power to discipline or search inmates or physically restrain them, an expert
witness testified that he would be satisfied with volunteer-provided security
through direct supervision because they can inform staff if something were to
happen within the service “that shouldn’t be happening” and because when a
135 ROA 3816-17; Lemons v. Tex. Dep’t of Criminal Justice, No. 2:09-cv-0102, 2012 WL
2133700 at *6 (N.D. Tex. May 17, 2012).
136 Brown v. Livingston, 17 F. Supp. 3d 616, 627 (S.D. Tex. 2014).
137 ROA 4191 (volunteers can directly supervise to gauge whether offenders are
“having inappropriate conversations or they’re having a gang meeting or they’re passing
notes, passing contraband, looking for those warning signs”); 4195 (volunteers are trained
“about security issues and what to be mindful of and what to look for”); see also Chance v.
Tex. Dep't of Criminal Justice, 730 F.3d 404, 414-15 & nn.7-8 (5th Cir. 2013) (agreeing that
volunteer supervision serves an important government interest in prison safety and
security); McAlister v. Livingston, 348 F. Appx 923, 937 (5th Cir. 2009) (per curiam) (same).
138 ROA 2903.
139 ROA 2923.
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volunteer is present, “the offenders would be more likely to stay with the topic
and with what should be said instead of going off on tangents or discussing
things that maybe were not religious in nature.” 140 There was other expert
testimony that a volunteer or chaplain can provide observations during
religious gatherings of inmates as well as a corrections officer can provide
observations. 141
TDCJ conducts background checks of volunteers and provides training
regarding security issues, what to be mindful of and look for when in an inmate
population and in services, what to do if a fight or riot erupts. 142 TDCJ
volunteers are trained to report any security breaches to prison officials. 143
Muslim inmates attending indirectly supervised religious activities have not
always reported misbehavior or security breaches because of “the offender code
and telling on each other and as to labeling each other as a snitch.” 144
The district court’s conclusion that “[t]here is no evidence that the
presence of a volunteer during a Muslim religious activity at TDCJ increases
prison safety or security in any way” 145 failed to consider that the evidence on
this point is limited. The TDCJ inmates who testified regarding Muslim
religious exercise said that, due to the paucity of Muslim volunteers, no
volunteers were in any of the services or religious activities that they
attended. 146 The evidence was extremely sparse, if not non-existent, as to the
impact volunteers might have had if they had been available to supervise
140 ROA 3499-500.
141 ROA 4042.
142 ROA 4195.
143 ROA 4036-37.
144 ROA 3716.
145 Brown v. Livingston, 17 F. Supp. 3d 616, 636 (S.D. Tex. 2014).
146 See, e.g., ROA 3262 (“Since my 17 years of being on the Robertson Unit, we have
never had a volunteer that showed up.”); 2627; 2691-92.
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Muslim inmates’ religious exercise. As already discussed, because the Muslim
inmates “take care of their own,” we do not know what issues arose that could
have been obviated by the presence of volunteers.
There is a rational connection between the TDCJ’s indirect supervision
requirement and the governmental interest in providing security in prisons.
B
As to Turner’s second consideration—Muslim inmates’ “alternative
means of exercising” their religion beliefs 147—“[t]he pertinent question is not
whether the inmates have been denied specific religious accommodations, but
whether, more broadly, the prison affords the inmates opportunities to exercise
their faith.” 148 In Adkins we upheld the direct supervision requirement against
a Free Exercise challenge because the record reflected that “(1) Adkins had
access to religious materials; (2) he and other YEA inmates were not required
to work on the Sabbath; (3) video and audio tapes were made available on
Mondays to all YEA members; and (4) YEA members were permitted to hold
and attend live services” when a volunteer was available, approximately
monthly. 149 Here, the record demonstrates, and none of the plaintiffs contest,
that Muslim TDCJ inmates are permitted to attend a weekly Jumu’ah
service, 150 significant accommodations are made for religious festivals such as
Ramadan, 151 and Muslim inmates are permitted to keep religious objects,
147 Turner v. Safley, 482 U.S. 78, 90 (1987).
148 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration in original) (quoting
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004)); see also O’Lone
v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (holding, where Muslim inmates “retain[ed]
the ability to participate in other Muslim religious ceremonies,” that inability to attend
weekly Jumu’ah service did not violate Free Exercise Clause).
149 Adkins, 393 F.3d at 564.
150 ROA 3284, 3353.
151 ROA 2704-07, 3626-27.
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including a Qur’an, a prayer rug, and prayer beads, in their cells for personal
prayer and study. 152 Muslims inmates may gather in groups of four or fewer
to worship and study. All Muslim inmates have access to a diet that conforms
to their faith’s restrictions. While Muslim inmates may not be permitted to
engage in as many religious gatherings with the numbers of inmates as they
wish, we conclude, as in Adkins, that they have alternative means of exercising
their religious rights.
C
The third Turner consideration addresses the impact the accommodation
sought would have on other inmates and prison staff and on the allocation of
prison resources, generally. We conclude, as we did in Adkins, that continuing
to allow Muslim inmates the freedom to congregate without direct supervision
“could ‘spawn a cottage industry of litigation and could have a negative impact
on prison staff, inmates and prison resources.’” 153 Furthermore, “if [Muslim
inmates] were accommodated and other similarly situated small religious
groups were not, [Islam] could appear to be favored over the others, a
perception that could have a negative effect on prison morale and discipline.” 154
The evidence was unrefuted that TDCJ is short-staffed in spite of
sustained efforts to hire security personnel. 155 The TDCJ offered evidence that
the situation was “critical.” At the time of the hearing, the TDCJ was “3,000
officers short,” and “spending 5 million plus in overtime a month.” 156 In some
of the TDCJ’s “units in West and South Texas,” it was “critically short,” and “a
152 ROA 2651, 2695.
153 Adkins, 393 F.3d at 565 (quoting Freeman, 369 F.3d at 862).
154 Id.
155 ROA 4072-73.
156 ROA 4072.
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very serious situation.” 157 “[W]e’re doing all we can, as [others testified], about
trying to recruit new staff,” and “[w]e’re doing all we can to try to retain the
staff that we have on our facilities.” 158 Priority is given to positions such as “a
dorm housing rover or a cell block rover, an inside picket officer, . . . central
control officer, our outside guard towers, things like that, those things that are
crucial to the safety and security of the institution.” 159 The TDCJ offered
evidence that it does not have staff to provide more than one hour of directly
supervised religious activities to all inmates seeking to engage in religious
activities beyond the one-hour weekly services that are directly supervised by
TDCJ employees or even solely to Muslim inmates.
The district court’s response to this evidence was that the TDCJ should
cease training and organizing volunteers for religious gatherings in prisons.
But the costs that would be saved were not quantified, and there was no
evidence that requiring TDCJ to cease and desist from permitting volunteers
in the prisons would free sufficient time for TDCJ employees to provide an
additional hour of direct supervision of Muslim religious activities each week,
much less the additional hours that the district court would require. Requiring
TDCJ to cease allowing volunteers would also be contrary to the district court’s
finding and unrefuted evidence that volunteers have a substantial, positive
impact on inmates and lessen the potential for violence in the prisons.
D
The fourth consideration under Turner’s standard of review is whether
there is an absence of ready alternatives to the TDCJ’s direct supervision
157 ROA 4073.
158 ROA 4073.
159 ROA 4073.
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requirement. We have examined alternatives above and do not repeat that
discussion here.
In sum, we conclude that the Scott Plan poses no violation of the Free
Exercise Clause that would render the consent decree, and its allowance of
indirect supervision of Muslim religious gatherings, “necessary to correct a
current and ongoing violation of the Federal right.” 160
VI
The district court concluded that the TDCJ’s regulations and policies
favored Catholic, Jewish, Native American and Protestant inmates over
Muslim inmates. 161 Citing the Supreme Court’s decision in Larson v. Valente,
which involved a state statute imposing registration and reporting
requirements on religious organizations that solicited more than fifty percent
of their funds from nonmembers, 162 the district court concluded that “when it
is claimed that a prison regulation violates an inmate’s Establishment Clause
rights it must be subjected to strict scrutiny analysis and is upheld only if it is
‘closely fitted’ to further a ‘compelling government interest.’” 163 The TDCJ
contends that the more deferential standard articulated in Turner v. Safley 164
applies. I first consider the appropriate standard for analyzing the inmates’
Establishment Clause claims.
A
The Supreme Court has not directly addressed the standard of review
that applies when inmates assert a violation of the Establishment Clause, and
more particularly, whether the applicable standard may depend upon the
160 18 U.S.C. § 3626(b)(3).
161 Brown v. Livingston, 17 F. Supp. 3d 616, 630-33 (S.D. Tex. 2014).
162 456 U.S. 228, 230 (1982).
163 Brown, 17 F. Supp. 3d at 632 (quoting Larson, 456 U.S. at 247).
164 482 U.S. 78 (1987).
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specifics of the claim. The Supreme Court has recognized, however, that the
“constitutional prohibition of denominational preferences is inextricably
connected with the continuing vitality of the Free Exercise Clause.” 165
As discussed in Section V above, O’Lone v. Estate of Shabazz analyzed
Free Exercise claims and “consider[ed] once again the standard of review for
prison regulations claimed to inhibit the exercise of constitutional rights.” 166
In O’Lone, prison regulations precluded Muslim inmates assigned to outside
work details from attending Jumu’ah. 167 The Third Circuit had held that the
prison’s “policies could be sustained only if: ‘the state . . . show[s] that the
challenged regulations were intended to serve, and do serve, the important
penological goal of security, and that no reasonable method exists by which
[prisoners’] religious rights can be accommodated without creating bona fide
security problems.’” 168 The Supreme Court rejected this standard of review.
“We think the Court of Appeals[’] decision in this case was wrong when it
established a separate burden on prison officials to prove ‘that no reasonable
method exists by which [prisoners’] religious rights can be accommodated
without creating bona fide security problems.’” 169
The Court explained at length in O’Lone why the “reasonableness test”
set forth in Turner v. Safley, rather than strict scrutiny, applied. 170 The O’Lone
decision then admonished, “[t]o ensure that courts afford appropriate
deference to prison officials, we have determined that prison regulations
alleged to infringe constitutional rights are judged under a ‘reasonableness’
165 Larson, 456 U.S. at 245.
166 482 U.S. 342, 344 (1987).
167 Id. at 347.
168 Id. at 347 (quoting Shabazz v. O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).
169 Id. at 350 (quoting Shabazz, 782 F.3d at 420)).
170 Id. at 348-350 (quoting Turner v. Safley, 482 U.S. 78, 86-87 (1987)).
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test less restrictive than that ordinarily applied to alleged infringements of
fundamental constitutional rights.” 171 Referring to Turner, the Court said,
“[w]e recently restated the proper standard: ‘[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.’” 172 The Court
continued, “[t]his approach ensures the ability of corrections officials ‘to
anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration,’ and avoids unnecessary
intrusion of the judiciary into problems particularly ill suited to ‘resolution by
decree.’” 173 The regulations at issue in Turner included restrictions on the
rights of inmates to marry.
However, Turner’s “reasonableness” standard of review does not apply to
all claims that prison policies are unconstitutional. The Supreme Court held
in Johnson v. California that “strict scrutiny is the proper standard of
review” 174 for “an equal protection challenge” to a state prison’s “policy of
racially segregating prisoners in double cells in reception centers for up to 60
days each time they enter a new correctional facility.” 175 The Court observed
that “[w]e have never applied Turner to racial classifications,” and “[w]e think
this unsurprising, as we have applied Turner’s reasonable-relationship test
only to rights that are ‘inconsistent with proper incarceration.’” 176 The
171 Id. at 349 (citation omitted).
172 Id. (quoting Turner, 482 U.S. at 89).
173 Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)); see also Shaw v.
Murphy, 532 U.S. 223, 228-232 (2001) (analyzing whether inmates possess a First
Amendment right to provide legal assistance to other inmates that enhances the protections
otherwise available under Turner and explaining why they do not).
174 543 U.S. 499, 515 (2005).
175 Id. at 502.
176 Id. at 510 (citations omitted).
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Supreme Court held in Johnson that “[t]he right not be discriminated against
based on one’s race is not susceptible to the logic of Turner. It is not a right
that need necessarily be compromised for the sake of proper prison
administration.” 177
At least two Circuit Courts of Appeals have applied a standard to certain
categories of Establishment Clause claims that differs from Turner’s standard
of review. 178 In those cases, prison officials allegedly coerced inmates to
participate in a program founded on religious tenets. No one contends that the
standard applied in those cases is appropriately applied to the facts of the
present case.
The question before us is whether an inmate’s claim that prison policies
afford some faiths more favorable treatment than others implicates “a right
that need [not] necessarily be compromised for the sake of proper prison
administration,” 179 to which strict scrutiny would apply, or whether such an
Establishment Clause claim is instead grounded in “certain privileges and
rights [that] must necessarily be limited in the prison context,” 180 to which
Turner’s more deferential standard would apply. I conclude that Turner’s
standard applies.
The Supreme Court has explained that prison officials are not required
to provide “identical facilities or personnel” to “every religious sect or group
within a prison.” 181 “A special chapel or place of worship need not be provided
177 Id.
178 See, e.g., Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014) (inquiring “‘first,
has the state acted; second, does the action amount to coercion; and third, is the object of the
coercion religious or secular’”) (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)).
179 Johnson, 543 U.S. at 510.
180 Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).
181 Cruz v. Beto, 405 U.S. 319, 325 n.2 (1972).
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for every faith regardless of size; nor must a chaplain, priest, or minister be
provided without regard to the extent of the demand.” 182 Nevertheless,
“reasonable op[p]ortunities must be afforded to all prisoners to exercise the
religious freedom guaranteed by the First and Fourteenth Amendments
without fear of penalty.” 183
Prison officials, therefore, are required to facilitate opportunities for
prisoners to worship or otherwise exercise religious beliefs even though,
outside the prison context, such involvement would undoubtedly implicate
Establishment Clause concerns. When policies ostensibly designed to honor
the Free Exercise rights of inmates are challenged on the basis that they
violate the Establishment Clause because the policies favor one or more faith
groups over another, logic demands that Turner’s standard applies. In
attempting to accommodate the religious beliefs of varying faith groups in
compliance with the Free Exercise Clause, prison officials must operate within
a zone of “reasonableness.” If policies meet Turner’s reasonableness standard
in effectuating the Free Exercise rights of inmates, then those policies should
not be pruned or eliminated as a result of higher scrutiny under the
Establishment Clause, even if those policies do not treat all faith groups
precisely the same. Prison officials have been accorded some flexibility in
providing Free Exercise opportunities for inmates. Inmates’ opportunities for
religious exercise would be diminished if a more restrictive standard were
applied to Establishment Clause claims than is applied to Free Exercise
claims, when the allegation is that preference has been given to inmates of one
or more faiths. If prison policies are in fact balanced and meet the Turner
182 Id.
183 Id.
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standard, those policies are vindicating only what the First Amendment
requires, and such policies do not amount to government involvement in
religious matters to such an extent that the Establishment Clause is violated.
The district court concluded that the TDCJ violated the Establishment
Clause in three ways.
B
The district court observed that there “is an ample supply of clerics and
laymen who will volunteer to conduct meetings” for some faith groups, “but
that among Muslims it has been hard to find a consistent supply of such
volunteers.” 184 The district court concluded that, “[i]n such circumstances, a
policy that makes the availability of religious activities dependent upon the
availability of outside volunteers necessarily makes it easier for one group to
practice its religion over other groups.” 185 Relatedly, the district court
concluded that “TDCJ openly favors the Protestantism [sic] and disfavors
Islam by devoting state resources to the former disproportionately.” 186 The
district court reasoned that “TDCJ has chosen to allocate substantially more
resources to religious groups who can procure outside volunteers than for those
who are unable to recruit sufficient numbers of outside volunteers to comply
with AD 7.30.” 187 The record is clear, however, that the disparity as to
resources expended is a function of the number of volunteers, not their
religious affiliations.
There is a “valid, rational connection” between permitting volunteers to
provide additional opportunities for the exercise of religious rights and “the
184 Brown v. Livingston, 17 F. Supp. 3d 616, 631 (S.D. Tex. 2014).
185 Id.
186 Id.
187 Id.
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legitimate governmental interest” 188 of prison officials in complying with their
obligation to afford “reasonable op[p]ortunities . . . to all prisoners to exercise
the religious freedom guaranteed by the First and Fourteenth
Amendment[s].” 189 “[T]he governmental objective” in permitting volunteers
into the TDCJ prisons to provide or assist with religious services and studies
is “a legitimate and neutral one” that “operate[s] in a neutral fashion, without
regard to the content of the expression.” 190 The record is replete with evidence
that inmates who participate in religious services and studies are less likely to
have disciplinary issues while confined and have lower recidivism rates once
released. The fact that more volunteers in the TDCJ system were Protestant
or Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ
made efforts to recruit more Muslim volunteers, and Muslims who volunteered
were treated the same as other volunteers.
The second Turner factor is “whether there are alternative means of
exercising the right that remain open to prison inmates.” 191 The Muslim
inmates who are the plaintiffs in this case do not seek to eliminate the
volunteer policy as violative of the Establishment Clause. Nor do they ask that
additional training and resources be provided to Muslim volunteers. The
plaintiffs instead seek an order permitting all Muslim inmates to gather in
groups of more than four without direct supervision by prison employees or a
volunteer. That would not vindicate the right to have a state actor cease
excessive entanglement with religion. 192 What the plaintiffs seek indicates
that their complaints regarding the volunteer policy and resources devoted to
188 Turner v. Safley, 482 U.S. 78, 89 (1987).
189 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).
190 Turner, 482 U.S. at 90 (citations omitted).
191 Id.
192 See generally Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).
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implementing volunteers’ access to inmates is not grounded in the
Establishment Clause. If the volunteer policy were eliminated or fewer
resources were expended to support volunteer efforts, inmates, including
Muslim inmates, would have fewer opportunities for worship and religious
study.
The third Turner “consideration is the impact accommodation of the
asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally.” 193 “When accommodation of an
asserted right will have a significant ‘ripple effect’ on fellow inmates or on
prison staff, courts should be particularly deferential to the informed discretion
of corrections officials.” 194 If the volunteer policy were eliminated as violative
of the Establishment Clause, inmates would be adversely impacted, but
resources would no longer be spent by the TDCJ to implement the volunteer
program.
The final Turner consideration is that “the absence of ready alternatives
is evidence of the reasonableness of a prison regulation.” 195 “By the same
token, the existence of obvious, easy alternatives may be evidence that the
regulation is not reasonable, but is an ‘exaggerated response’ to prison
concerns.” 196 The alternatives to allowing volunteers into the TDCJ prisons to
facilitate religious worship and study include excluding the volunteers or
paying other individuals to replace them. The first alternative would, as
discussed, reduce inmates’ religious exercise. The second would require
considerable expenditures.
193 Turner, 482 U.S. at 90.
194 Id. (citation omitted).
195 Id. (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)).
196 Id.
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When assessed under the Turner considerations, the volunteer policy
and the resources expended to implement it are reasonably related to the
TDCJ’s obligation to afford inmates reasonable opportunities to exercise
religious freedom.
The district court erred in applying strict scrutiny to the claim that the
volunteer policy violates the Establishment Clause because fewer Muslims
volunteer than Protestants or Catholics and more resources are devoted to
Protestant and Catholic volunteers than Muslim volunteers. The TDCJ’s
policies are facially neutral. The Larson v. Valente decision, 197 on which the
district court relied, 198 explains that strict scrutiny does not “apply to laws
affording a uniform benefit to all religions.” 199 Seven years after Larson was
decided, the Supreme Court reiterated, “Larson teaches that, when it is
claimed that a denominational preference exists, the initial inquiry is whether
the law facially differentiates among religions. If no such facial preference
exists, we proceed to apply the customary three-pronged Establishment Clause
inquiry derived from Lemon v. Kurtzman.” 200 The Lemon inquiry does not
employ strict scrutiny. 201 However, for the reasons considered above, we
conclude that Turner, rather than Lemon, provides the proper standard of
review.
197 456 U.S. 228 (1982).
198 Brown v. Livingston, 17 F. Supp. 3d 616, 630 (S.D. Tex. 2014).
199 Larson, 456 U.S. at 252.
200 Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson, 456 U.S. at 252); see
also In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (“As the challenged policies
are facially neutral, Larson doesn’t trigger strict scrutiny, and we proceed to Lemon.”);
Koenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999) (“Strict scrutiny in the Establishment
Clause context is to be used to evaluate only those statutes that facially discriminate between
religious denominations or between religion and non-religion.”) (citing Hernandez, 490 U.S.
at 695).
201 See, e.g., Larson, 456 U.S. at 252 (“the Lemon tests . . . do not reflect the same
concerns that warranted the application of strict scrutiny.”).
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Brown argues that we should apply the Lemon test. The Supreme Court
has observed that “just two years after Lemon was decided, we noted that the
factors identified in Lemon serve as ‘no more than helpful signposts,’” 202 and
“[m]any of our recent cases simply have not applied the Lemon test.” 203 The
Supreme Court then proceeded to apply an “analysis . . . driven both by the
nature of the monument and by our Nation's history” to a claim that a Ten
Commandments monument displayed on the grounds of the Texas capitol
violated the Establishment Clause. 204 The Supreme Court did not apply either
strict scrutiny or the Lemon factors. 205
My conclusion that the Turner v. Safley standard of review 206 applies,
rather than the Lemon v. Kurtzman criteria, 207 is informed by these
precedents. Additionally, if applied literally, the criteria set forth in Lemon
202 Van Orden v. Perry, 545 U.S. 677, 686 (2005) (citations omitted); but see McCreary
County v. ACLU of Ky., 545 U.S. 844, 859-66 (2005) (applying the Lemon factors to displays
of the Ten Commandments on the walls of state courthouses, concluding that the purpose of
the displays was not secular and therefore violated the Establishment Clause).
203 Van Orden, 545 U.S. at 686 (citations omitted).
204 Id.
205 See also Am. Legion v. Am. Humanist Ass’n, 588 U.S. ___, slip op. at *12-13 (2019)
(opinion of ALITO, J.) (plurality opinion) (“Lemon ambitiously attempted to distill from the
Court’s existing case law a test that would bring order and predictability to Establishment
Clause decisionmaking. . . . If the Lemon Court thought that its test would provide a
framework for all future Establishment Clause decisions, its expectation has not been met.”
“As Establishment Clause cases involving a great array of laws and practices came to the
Court, it became more and more apparent that the Lemon test could not resolve them.”); id.
at *24-25 (“While the Lemon Court ambitiously attempted to find a grand unified theory of
the Establishment Clause, in later cases, we have taken a more modest approach that focus
on the particular issue at hand and looks to history for guidance.”).
206 482 U.S. 78, 89-90 (1987).
207 403 U.S. 602, 612-613 (1971) (“Every analysis in this area must begin with
consideration of the cumulative criteria developed by the Court over many years. Three such
tests may be gleaned from our cases. First, the statute must have a secular legislative
purpose; second, its principal or primary effect must be one that neither advances nor inhibits
religion; finally, the statute must not foster ‘an excessive government entanglement with
religion.’”) (citations omitted).
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are in tension with the obligation the Supreme Court has said prison officials
have to afford inmates opportunities to attend religious services and pursue
religious studies. The second Lemon criterion is that the regulation’s
“principal or primary effect must be one that neither advances nor inhibits
religion.” 208 Prison policies that provide opportunities for inmates to worship
and pursue religious studies have the purpose of facilitating inmates’ exercise
of First and Fourteenth Amendment Free Exercise rights and advance religion
for those inmates who choose to participate. It is difficult to see how the
Supreme Court’s jurisprudence could be construed to require prison officials to
facilitate religious services and studies and at the same time, to deem prison
officials in violation of the Establishment Clause if they do facilitate such
religious activities.
The Lemon factors could arguably be applied with the acknowledgement
that prison officials have an obligation grounded in the First and Fourteenth
Amendments to afford inmates reasonable opportunities to exercise their
religious beliefs. Viewed through that lens, the secular purpose of a direct
supervision policy, when applied to secular as well as religious gatherings, is
to maintain safety and security within a prison. The secular purpose of
training volunteers who facilitate religious activities or who supervise inmates
conducting or participating in religious pursuits is to comply with the
constitutional obligation to provide inmates reasonable opportunities to
engage in the free exercise of their religious beliefs. Viewed in light of this
overarching obligation, the direct supervision policy and the training of
volunteers is facially neutral and neither advances nor inhibits any particular
faith. Here again, it is the paucity of Muslim volunteers as compared to
208 Id.
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Christian volunteers that results in Christian inmates having more
opportunities for religious exercise. As to the third Lemon factor, a facially
neutral policy that provides reasonable opportunities for inmates to exercise
their religious beliefs is not excessive governmental entanglement with
religion.
C
The district court additionally determined that Jewish and Native
American inmates were housed in a manner that facilitates the exercise of
their religious beliefs, while Muslim inmates were not. The district court
concluded this violated the Establishment Clause:
The fact that Jewish inmates are assigned to four particular
units within the prison system specifically to bring them closer to
Jewish religious volunteers and that Native American inmates are
assigned to housing units specifically selected to make religions
[sic] activities more available to them, while TDCJ makes no effort
to house Muslim inmates in units close to the population centers
where Muslim volunteers might be recruited, constitutes a clear
violation of the Establishment Clause. Prison officials are
deliberately favoring Jewish and Native American inmates over
Muslim inmates by facilitating their access to religious activities.
Thus, TDCJ has intentionally made it easier for Jewish inmates
over Muslim inmates to have volunteer-led religious activities.
That circumstance alone, in and of itself, constitutes a violation of
the Establishment Clause.” 209
209Brown, 17 F. Supp. 3d at 631 (citations omitted). Relatedly, the district court found
or concluded:
The TDCJ’s inmate assignment policy has not been neutrally applied. To the
contrary, unlike Muslim inmates, Jewish inmates are specifically assigned to
units in order that they are closer to prospective volunteers. The TDCJ has
four units designated for Jewish inmates and Jewish inmates are intentionally
located in places where the largest number of Jews reside so as to enhance the
opportunity for Jewish inmates to interact with Jewish citizens in religious
activities. Likewise, Native American inmates are assigned to a specifically
designated unit to facilitate access to each other and to enhance Native
American religious activities. By contrast, there are no units designated as
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The record does not support the conclusion that the TDCJ’s policies have
resulted in greater access to religious exercise for Jewish and Native American
inmates as compared to Muslim inmates. There are proportionately more
Muslim volunteers than Jewish or Native American volunteers. Nor does the
evidence support a conclusion that large numbers of Jewish or Native
American inmates are concentrated in a few prison units, even though it is
undisputed that four prison units were designated as “Jewish. Nor is there
support in the record for the inmates’ assertion that Jewish and Native
American inmates had more religious services or more access to religious
activities than Muslim inmates. I consider the evidence as to each of the
district court’s findings or conclusion in more detail.
1
The TDCJ classified nine faith groups 210 as comprising the category of
“Jewish” inmates in May 31, 2013, for purposes of providing information to the
parties and the district court in this litigation. That evidence, on which all
parties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates
housed in 95 of 117 TDCJ prison units. At that time, there were no Jewish
chaplains, 211 no certified volunteer chaplains’ assistants, 212 “one contract
Jewish Chaplain[],” 213 and 15 Jewish or Hebrew volunteers. 214 That is a ratio
of one chaplain or volunteer to approximately 58 inmates. Though the district
Muslim units in close proximity to Muslim citizen volunteers—that
consideration was not contemplated by TDCJ in assigning Muslim inmates to
housing units. Id. at 629-30.
210 See Parties Joint Ex. 15 (reflecting nine faiths identified by inmates, Nazarite,
Jewish, Hebrew, Hebrew Israelite, Orthodox Jew, Shaivite, Kabbalah, Orthodox Hebrew,
and Reformed Jewish, as collectively comprising 922 “Jewish” inmates).
211 Parties Joint Ex. 13.
212 Parties Joint Ex. 19.
213 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).
214 Parties Joint Ex. 18.
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court concluded that “Jewish inmates are specifically assigned to units in order
that they are closer to prospective volunteers,” 215 if that were the intent (and
there is no evidence that it was), then significant numbers of Jewish volunteers
did not materialize.
By comparison, the undisputed TDCJ data reflects there were 6,775
Muslim inmates (comprised of 12 different Muslim faith groups identified by
TDCJ inmates) as of May 31, 2013, 216 who were confined in 113 of the 117
TDCJ units. 217 There were five Muslim chaplains as of that date, 218 no certified
volunteer chaplain’s assistants, 219 and 222 Muslim volunteers. 220 That results
in a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.
A TDCJ employee testified that there have been four units designated
for “Jewish” inmates, 221 and one of these was also a “Kosher” unit. 222 The
record is sparse as to why four units were designated as “Jewish”, and there is
no evidence in the record as to how inmates are chosen to be assigned there.
The record reflects that the Wynne Unit was designated as a Jewish unit, but
the names of the other three units do not appear in the record. A Muslim
chaplain and a non-Roman Catholic chaplain were the two chaplains assigned
to the Wynne Unit. 223 It housed 2592 inmates who had expressed a faith
preference, of whom 28 were Jewish (approximately 1%), 135 were Muslim
(approximately 5.2%), and 48 were Native American (1.6%). 224 The Muslim
215 Brown, 17 F. Supp. 3d at 629.
216 Parties Joint Ex. 15.
217 Parties Joint Ex. 16.
218 Parties Joint Ex. 14.
219 Parties Joint Ex. 19.
220 Parties Joint Ex. 18.
221 ROA 3214.
222 ROA 3214.
223 Parties Joint Ex. 13.
224 Parties Joint Ex. 16.
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chaplain testified that he did not know whether the reason that the Wynne
Unit was designated as a “Jewish” unit was so that “volunteers might be more
available to the urban areas.” 225 He said that it was his responsibility to “make
sure” that the Jewish inmates at the Wynne Unit “have their services” and
“their holidays” and that “if they have any problem, they come to me.” 226
As to the other three “Jewish” units, it is clear that none of them housed
a large percentage of Jewish inmates. From an analysis of the Parties Joint
Exhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates
(as many as 196) were housed within four units designated for Jewish
inmates. 227 The remaining 79% or more of Jewish inmates were housed in 94
other TDCJ units.
There was testimony that an unspecified number of Native Americans
have been assigned to an unspecified number of units to make communal
worship feasible. 228 As of May 31, 2013, there were 4,473 Native American
inmates 229 housed in 108 of 117 TDCJ units. 230 Native American inmates were
widely distributed among these units. 231 They were not concentrated in a
small number of prison units. There was one Native American chaplain, 232 no
certified volunteer chaplain’s assistant, 233 and there were six Native American
225 ROA 3784.
226 ROA 3784.
227 Parties Joint Ex. 16. The record reflects that the Wynne Unit was designated for
Jewish inmates (ROA 3784), but does not identify the other three designated units. There
were 28 Jewish inmates housed in the Wynne Unit. Even assuming that the three designated
units other than the Wynne Unit were those with the largest populations of Jewish inmates,
then, at most, the number of Jewish inmates housed in “designated” units was 196 out of 922
Jewish inmates, approximately 21%.
228 ROA 3215-16.
229 Parties Joint Ex. 15.
230 Parties Joint Ex. 16.
231 Parties Joint Ex. 16.
232 Parties Joint Exs. 13 and 14.
233 Parties Joint Ex. 19.
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volunteers. 234 That results in a ratio of 1 chaplain or volunteer to 744 Native
American inmates. Native American inmates had access to far fewer chaplains
and volunteers than Muslim inmates.
The district court concluded that TDCJ had assigned “Muslim inmates[]
primarily to housing units that are long distances from population centers
where a significant numbers [sic] of Muslim civilians reside.” 235 The district
court detailed evidence of the number of Muslim inmates confined in particular
counties as compared to the Muslim populations in those counties. 236 The
district court concluded, “[w]hether it is the intent of the TDCJ to assign
Muslim inmates to areas in the state where Muslim volunteers do not reside
that, nevertheless, is the effect of unit assignments.” 237 These findings imply
that TDCJ could and should house Muslims in prison units closer to larger
populations of Muslims. But there is no evidence that there are any TDCJ
prison units that are close to larger populations of Muslims or that it is
physically feasible to house 6,775 Muslim inmates near larger populations of
Muslims.
Brown’s brief in this court implicitly acknowledges that none of Texas’s
prison units are located near Muslim residents. Brown asserts that the TDCJ
has “construct[ed] . . . prison units in areas where there are plentiful Christian
volunteers but virtually no Muslim residents anywhere close.” But there is
absolutely no evidence that the State of Texas has chosen prison locations
based on faith preferences of inmates, the proximity of civilian populations of
particular faiths, or to create distances from Muslim civilian populations.
234 Parties Joint Ex. 18.
235 Brown v. Livingston, 17 F. Supp. 3d 616, 623 (S.D. Tex. 2014).
236 Id. at 623-24.
237 Id. at 623.
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2
The evidence does not support the conclusion that the assignment of
some Jewish and Native American inmates to particular units resulted in
greater access to chaplains or volunteers than was available to Muslim
inmates. I will nevertheless assume that the TDCJ intentionally assigned
some number of Jewish and Native American inmates to specific prison units
to facilitate the exercise of their respective religious beliefs but did not do so
for any Muslim inmates.
The first consideration under Turner is whether such a policy has a valid,
rational connection to the governmental interest in providing reasonable
opportunities for all inmates to exercise their religious freedom rights. As
previously noted, the Supreme Court has recognized that prison officials are
not required to provide “identical facilities or personnel” to “every religious sect
or group within a prison.” 238 Jewish and Native American volunteers were
even more scarce than Muslim volunteers. There were no Jewish chaplains,
only one paid outside Jewish chaplain, and there was one Native American
Chaplain. Assigning some Jewish inmates and some Native American inmates
to specific prison units to facilitate the opportunity for religious exercise for
those inmates, was reasonable.
The second Turner consideration is whether there are alternative means
for Muslim inmates to exercise their Establishment Clause rights.
Eliminating any favoritism that might have been shown to Muslim inmates is
not the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim
inmates been housed differently, their opportunities for religious exercise
would have been increased.
238 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).
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The evidence is silent as to the third Turner consideration, which is the
impact on guards, other inmates, or the allocation of prison resources
generally. With regard to the fourth Turner factor, it does not appear that
ceasing to assign Jewish and Native American inmates in the way that the
TDCJ has done would either decrease the “favoritism” shown to those inmates
or increase Muslim inmates’ opportunities to worship and study. There is no
evidence that Jewish or Native American inmates enjoyed more than one hour
of worship each week, or its equivalent. The number of Muslim volunteers
exceeded the relative number of Jewish and Native American volunteers even
under the TDCJ’s existing housing policies, and there is no indication that
changing that policy would have any effect other than reducing the
opportunities for religious exercise by Jewish and Native American inmates.
The TDCJ’s housing policies do not fail Turner’s rationality review. The
policy does not violate the Establishment Clause.
D
Brown argues that the direct supervision policy applies only to religious
activities and not to secular ones within TDCJ’s prisons and therefore, that the
direct supervision policy violates the Establishment Clause. The district court
did not ground its finding of an Establishment Clause violation on such a basis.
Brown contends, without any record citations, that band, choir practice,
craft shop, and Safe Prison Program classes are indirectly supervised. As a
factual matter, the evidence reflects that secular activities in prisons that are
not directly supervised almost invariably involve inmates who have been
screened for disciplinary violations. Religious gatherings, by contrast, involve
inmates with varying security classifications. Applying the Turner
considerations, there was no Establishment Clause violation.
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The first Turner inquiry is whether there is a “‘valid, rational
connection’ between the prison regulation and the legitimate governmental
interest put forward to justify it.” 239 Two inmates testified that two craft shops
at the Robertson Unit were indirectly supervised. 240 However, another witness
testified that craft shops are directly supervised, 241 and the unrefuted
testimony was that all inmates in all craft shops were “screened very
closely.” 242 Being allowed to go to craft shop was “a kind of a privilege,” and
“craft shop privileges” could be lost due to disruptive conduct. 243 The evidence
reflects that “[t]here’s a big difference between craft shop and religious
services.” 244 The evidence was undisputed that TDJC “screen[s] all the
offenders in the craft shop . . . very closely,” but “these offenders going to all
these religious services all across the unit in different custodies” are “not
screened and they have gang tendencies and staff assault histories and
weapons possessions.” 245 There is therefore “a greater propensity for violence
in [TDCJ’s] open-call services than these other faith groups that are directly
supervised now.” 246 Muslim inmates who attend Jumu’ah are not screened
based on disciplinary criteria or offender category.
There was evidence that at one prison in the TDCJ system, the
Robertson Unit, a Christian choir was permitted to practice in a multi-purpose
room with an officer stationed outside, looking in through a window that went
239 Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576,
586 (1984)).
240 ROA 2666; 3252-3253; 3264-3267; 4060.
241 ROA 4058-4060.
242 ROA 4176.
243 ROA 4175-76.
244 ROA 4176.
245 ROA 4176.
246 ROA 4176.
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from the ceiling to waist level. 247 This occurred for a ten-year period, but choir
practice was discontinued by an assistant warden. 248 The record is silent as to
whether these inmates were screened based on their disciplinary records or
offender category.
With regard to dormitories, the evidence reflected that “dormitory
offenders are screened. They’re some of [TDCJ’s] best offenders and they’re
not coming from all over the facility.” 249 There was also testimony that
[t]he offenders in the dorm housing area are around each other
every day, day in and day out, when they’re not working . . . . The
offenders that go to programmatic activities such as religious
services, they don’t have access to each other every day. So, you’re
more concerned about gatherings that bring offenders from
different areas of the facility because of things that they could be
doing that is not appropriate for whatever the program is, whether
it be religious or education or whatever. 250
A TDCJ witness testified that other than some of the craft shops and
dormitories, there are no situations in which indirect supervision is used. 251 A
TDCJ witness testified that inmates are directly supervised when they are in
outdoor recreation areas and when in day rooms engaging in other secular
activities. 252
There is a rational connection between the direct supervision policy for
religious gatherings of more than four inmates and the legitimate
governmental interest in safety and security in prisons. The evidence of
247 ROA 3253; 3263-64.
248 ROA 3264.
249 ROA 4205; see also ROA 4139-4140.
250 ROA 3720-21.
251 ROA 4201; 4205-06.
252 ROA 4141.
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indirect supervision of some secular activities by some inmates, who were
screened, does not undermine the rationality of that connection.
The second and third Turner 253 factors have been considered above, and
that discussion will not be repeated. As to the fourth consideration, “the
absence of ready alternatives is evidence of the reasonableness of a prison
regulation.” 254 Restricting indirectly supervised religious gatherings to
inmates who are not security risks would not address legitimate concerns
associated with inmate-led services and studies, discussed above.
The district court did not err in failing to conclude that the
Establishment Clause was violated because some secular activities by inmates
who were screened based on their disciplinary records were permitted to
gather for secular activities while indirectly supervised.
VII
In sum, we hold that the consent decree does not remain necessary to
correct current and ongoing violations of RLUIPA, the Free Exercise Clause,
or the Establishment Clause. Accordingly, the TDCJ’s motion to vacate the
consent decree should have been granted.
The district court also awarded attorneys’ fees to Brown and the Inmate
Intervenors as prevailing parties pursuant to 42 U.S.C. § 1988(b). 255 However,
in light of our conclusion as to the merits of the TDCJ’s motion to vacate the
consent decree, Brown and the Inmate Intervenors are not prevailing parties.
We vacate the award of attorneys’ fees.
253 Turner v. Safley, 482 U.S. 78, 90 (1987) (“A second factor . . . is whether there are
alternative means of exercising the right that remain open to prison inmates,” and “[a] third
consideration is the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally.”).
254 Id.
255 ROA 2021.
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* * *
For the foregoing reasons, the district court’s denial of the TDCJ’s motion
to terminate the consent decree and award of attorneys’ fees to Brown and the
Inmate Intervenors were in error. The district court’s judgment is
REVERSED, and the consent decree is terminated.
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KING, Circuit Judge, concurring in part and concurring in the judgment:
I join in Parts I, II, III, IV, V, and VII of Judge Owen’s opinion. I
do not join in part VI because I would conclude that the Texas Department of
Criminal Justice’s housing policy violates the Establishment Clause.
Nevertheless, the Consent Decree is broader than necessary to remedy this
violation. The inmates therefore fail to meet their burden under the Prison
Litigation Reform Act to continue the Consent Decree. Accordingly, I also
concur in the judgment. 1
1The TDCJ filed its notice of appeal in this case more than five years ago. This panel
heard oral argument almost four years ago. The panel’s delay in deciding this case is
inexcusable. I will not invite further delay by writing more.
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JAMES L. DENNIS, Circuit Judge, dissenting:
The district court concluded that portions of the district court’s 1977
consent decree were required to prevent a violation of Muslim inmates’ rights
to religious freedom under the Religious Land Use and Institutionalized
Persons Act (RLUIPA). The majority reverses, holding that the Texas
Department of Criminal Justice (TDCJ) was not responsible for the substantial
burden imposed on Muslim inmates’ religious exercise. 1 I disagree, and would
affirm the district court’s judgment. The TDCJ’s current course of action, the
“Scott Plan,” violates the rights of Muslim prisoners in Texas under the
RLUIPA. The Scott Plan imposes a substantial burden on Muslim prisoners’
religious exercise, does not further a compelling governmental interest, and,
even assuming it furthered some governmental interest, is not the least
restrictive means of doing so. The district court recognized this RLUIPA
violation and determined that certain provisions of the 1977 consent decree
needed to continue in effect to protect Muslim inmates from a continuing
violation of RLUIPA. The district court also determined the other
requirements of the Prison Litigation Reform Act (PLRA) were satisfied,
justifying continuing prospective relief. In reversing the district court as to the
RLUIPA violation, the majority seriously errs. For these reasons, I
respectfully dissent.
I
The consent decree that is the subject of this litigation is the result of a
1977 lawsuit brought by Bobby Brown, a Muslim prisoner who claimed that
1I do not agree fully with the majority’s analysis in other portions of the opinion, such
as the Free Exercise and Establishment Clause issues. I do not address these portions of the
opinion fully here because the district court should be affirmed solely on the basis of the
ongoing violation of RLUIPA.
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Texas prisons unlawfully restricted Islamic religious exercise. The parties
resolved the case with the consent decree, which mandated that Muslim
prisoners be afforded equal time for religious activities as compared to
Protestant, Catholic, and Jewish inmates, or at least no less than two hours a
week. The consent decree requires that if a prison-employed chaplain or
volunteer is available, he or she shall supervise the gathering. If neither is
available, however, it is decreed that Muslim prisoners may gather to conduct
their religious services “under appropriate supervision,” which has taken the
form of indirect supervision. From 1977 to 2012, while the consent decree was
in effect, Muslim prisoners gathered for religious services under indirect
supervision, with a prison official in the vicinity surveilling intermittently
through a window or video and audio surveillance.
In 2009, William Scott, a Jehovah’s Witness prisoner of the State
of Texas, sued the State claiming that Jehovah’s Witnesses, like Muslims,
should be allowed to meet for group religious exercise under indirect
supervision. Compl. (Dkt. No. 1), Scott v. Pierce, No. 4:09-CV-3991 (S.D. Tex.
Dec. 11, 2009). The district court in the Scott case held the disparate treatment
between Jehovah’s Witnesses and Muslims violated the Establishment Clause
and ordered the State to propose a method of compliance. Scott v. Pierce, 4:09-
CV-3991, 2012 U.S. Dist. LEXIS 190126, at *15 (S.D. Tex. May 7, 2012)
(unpublished). In its attempt at compliance, the State submitted the Scott
Plan, which required direct supervision for all religious services, including
Muslim services. Proposed Compliance Plan (Dkt. No. 69), Scott v. Pierce, No.
4:09-CV-3991 (S.D. Tex. Sept. 4, 2012). In practice, the Scott Plan—requiring
direct supervision of all religious services—contravened the consent decree—
requiring that Muslim prisoners be permitted to gather “under appropriate
supervision” where direct supervision was unavailable.
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Because the Scott Plan directly conflicts with the consent decree, the
TDCJ moved in August 2012 to terminate the consent decree pursuant to the
PLRA. 2 The district court denied TDCJ’s motion, finding that the portions of
the consent decree that afford Muslim prisoners the right to equal time for
religious exercise as afforded to prisoners of other faiths were necessary to
prevent the violation of a federal right. Although TDCJ appeals from that
denial, it failed to challenge the district court’s underlying factual findings in
its opening brief.
II
The majority holds that the district court erred in finding a
continuing violation of RLUIPA. That statute provides that the government
shall not “impose a substantial burden on the religious exercise of a person
residing in or confined to an institution,” unless the government can prove that
the substantial burden “(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1. The majority does not dispute
the undoubtedly substantial burden imposed on Muslim inmates by the Scott
Plan. Instead, the majority holds that any burden placed on Muslim inmates
was not, as a matter of law, caused by the TDCJ. In my view, this conclusion
is based on an erroneous reading of our case law in this area.
2 Under the PLRA, the filing of a motion to terminate automatically stays the
effectiveness of a consent decree issued pursuant to that statute. 18 U.S.C. § 3626(e). After
the district court denied the motion to terminate the consent decree, this court continued the
PLRA’s stay of the consent decree pending appeal, such that since 2012, the consent decree
has not been in effect and Muslim inmates have been subjected to the Scott Plan, under which
they are not afforded the opportunity to meet without direct supervision.
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A
The majority opinion’s principal conclusion with respect to plaintiffs’
RLUIPA claim is that, as a matter of law, the TDCJ did not cause the
substantial burden Muslim inmates faced. Instead, the majority reasons, the
substantial burden on Muslim inmates was caused by the lack of outside
volunteers available to supervise Muslim services. The majority’s reasoning
draws on a single line from Adkins v. Kaspar, in which a panel of this court
stated that the burden on the religious exercise of members of the Yahweh
Evangelical Assembly (YEA) in Texas prisons “results . . . from a dearth of
qualified outside volunteers . . ., not from some rule or regulation that directly
prohibits such gatherings.” 393 F.3d 559, 571 (5th Cir. 2004). However, the
majority ignores Adkins’s further admonition that analyzing whether a
substantial burden exists under RLUIPA “requires a case-by-case, fact-specific
inquiry,” because we have not “craft[ed] a bright-line rule.” Id. at 571. Here,
the majority flouts this cautionary language by converting a single sentence in
Adkins into a bright-line rule that Texas inmates cannot establish causation
against TDCJ with respect to the requirement that they be directly supervised
for religious services.
Although Adkins itself reveals the error in the majority’s analysis, this
panel is not the first to interpret Adkins. In Mayfield v. Texas Department of
Criminal Justice, 529 F.3d 599 (5th Cir. 2008), we held that the TDCJ violated
RLUIPA by applying the direct-supervision rule—the same rule at issue in this
case—to Odinist inmates. 529 F.3d at 614–15. Mayfield distinguished Adkins
because, unlike in Adkins, where “the volunteer policy was implemented
uniformly,” uneven application of the direct-supervision policy in Mayfield
“suggest[ed] that the burden [was] at least partially imposed by the TDCJ’s
disparate application.” Id. at 614. The majority acknowledges Mayfield but
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argues that Adkins nevertheless controls because “[t]he direct supervision
requirement under the Scott Plan has been imposed uniformly, as it was in
Adkins.” Supra Part IV. I disagree. Adkins is distinguishable for at least two
reasons.
First, as in Mayfield, there is evidence here that the TDCJ causes
different religious groups to be treated differently. The district court explicitly
found that “unlike Muslim inmates, Jewish inmates are specifically assigned
to units in order that they are closer to prospective volunteers,” and “[l]ikewise,
Native American inmates are assigned to a specifically designated unit to
facilitate access to each other and to enhance Native American religious
activities.” These factual findings were not challenged on appeal by TDCJ. 3
This inconsistency between treatment of Muslim inmates versus Native
American and Jewish inmates reflects that, although the direct-supervision
policy on its face may appear to apply uniformly, the extent of its effects has
been intentionally tempered with respect to some, but not other, groups. This,
like the evidence in Mayfield of inconsistent application of the policy,
“suggest[s] that the burden is at least partially imposed by the TDCJ’s
disparate application.” Mayfield, 529 F.3d at 614; see also Newby v.
Quarterman, 325 F. App’x 345, 350 (5th Cir. 2009) (distinguishing Adkins and
holding that “total lack of approved Buddhist volunteers” and the resulting
“preclu[sion of] members of the Buddhist faith . . . from meeting” reflected a
substantial burden caused by the State under RLUIPA).
Second, in finding that the TDCJ did not cause the substantial burden
suffered by YEA adherents, Adkins gave significant weight to the fact that two
3 The TDCJ argues for the first time in its reply brief that the district court made clear
errors of fact, but this court does not consider arguments first raised in a reply brief. See
United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
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additional individuals would soon become volunteers, providing a significant
addition of volunteers for the small group of 25 to 30 YEA prisoners at issue in
that case. See 393 F.3d at 571. The district court’s findings indicate no such
alleviation will ever occur for Muslim inmates. Contrary to Adkins, there is
evidently no hope here for future additional Muslim volunteers, because (1)
“[a] large number of Muslim inmates are assigned to units that are located
predominately in remote areas of the state where few Muslim civilians reside”
to serve as volunteers, (2) the Muslim practice of “Jum’ah . . . must occur
shortly after midday on Fridays, a day when potential volunteers are at work
and unable to travel to prison units to participate” whereas “Protestant
services are commonly held on weekends,” and (3) unlike the 25 to 30 YEA
adherents in Adkins, for whom an additional two volunteers would make a
meaningful impact, “approximately 6,775 inmates have expressed a religious
preference for the Muslim group” in Texas prisons.
Accordingly, the majority’s conclusion that the TDCJ did not cause the
substantial burden imposed on Muslim inmates is incorrect, and its reliance
on Adkins to reach that conclusion is misplaced, as Adkins is distinguishable.
The district court correctly found that the Scott Plan imposed a substantial
burden on Muslim inmates’ religious exercise, and I would affirm that finding.
B
Because the majority finds that TDCJ did not cause the substantial
burden on Muslim inmates’ religious freedom, it finds no continuing RLUIPA
violation and does not reach RLUIPA’s other elements or the PLRA’s
requirements for continuing the consent decree. As discussed, I would affirm
the district court’s finding that the TDCJ created a substantial burden on
Muslim inmates through application of the Scott Plan. I will therefore analyze
RLUIPA’s additional requirements that the substantial burden is in
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furtherance of a compelling governmental interest and is the least restrictive
means of furthering that interest. See 42 U.S.C. § 2000cc-1. The Scott Plan
violates RLUIPA if the TDCJ fails to meet either prong. And if an RLUIPA
violation is found, the PLRA’s remaining requirements must be analyzed as
they apply to the consent decree—whether the decree extends no further than
necessary to correct the RLUIPA violation and is narrowly drawn and the least
intrusive means to correct that violation. See 18 U.S.C. § 3626(b)(2)-(3). The
district court found that (1) the TDCJ failed to demonstrate that the Scott Plan
serves a compelling governmental interest or is the least restrictive means for
furthering that interest; and (2) the remaining requirements of a PLRA for
continuing the consent decree were met. Because the district court was correct
on both fronts, I would affirm.
1
In order to escape an RLUIPA violation once a substantial burden has
been established, the TDCJ must show the Scott Plan “is in furtherance of a
compelling governmental interest” and “is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)–
(2). The TDCJ did not meet either requirement.
As for the first requirement, instead of articulating a specific compelling
interest, the TDCJ argues that, as a matter of law and based on security
concerns, the direct-supervision policy advances a compelling governmental
interest. Such generalized assertions fail to meet the fact-specific and
individualized inquiry required by RLUIPA. See Tagore v. United States, 735
F.3d 324 (5th Cir. 2013) 4 (substantial burden analysis in “RFRA requires the
4 The fact that Tagore is a RFRA rather than RLUIPA case renders it no less
applicable here. See Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (“Congress carried over
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government to explain how applying the [burdensome policy at issue] ‘to the
person’ whose sincere exercise of religion is being seriously impaired furthers
the compelling governmental interest”); see also McAllen Grace Brethren
Church v. Salazar, 764 F.3d 465, 475 (5th Cir. 2014) (“[T]he governmental
interest cannot be ‘couched in very broad terms’ but must be ‘focused’ on the
particular claimant whose interest is substantially burdened.”). Citing to
testimony that Muslim inmates and chaplains were not aware of serious
disciplinary incidents, as well as the fact that “[t]here are no written
disciplinary reports of incidents involving indirectly supervised or inmate-led
Muslim religious services,” the district court specifically found there was no
evidence that inmate-led religious services posed a security risk. The district
court found that indirectly-supervised Muslim religious services posed no
safety concerns. These fact findings are unchallenged on appeal and are
conclusive that, as the district court found, “the TDCJ administrator’s
contention that the presence of an outside volunteer furthers its compelling
state interest in prison security is unfounded and contradicted by the
evidence.” The TDCJ, then, fails to meet the first requirement that the Scott
Plan furthers a compelling government interest. See 42 U.S.C. § 2000cc-
1(a)(1).
TDCJ also fails to meet the second requirement. Even assuming some
broad compelling interest in safety and security, the Scott Plan is clearly not
the least restrictive means to furthering any such interest. See 42 U.S.C. §
2000cc-1(a)(2). Taking the district court’s findings at face value, as we must,
less restrictive means exist. For example, simply allowing Muslim inmates to
from RFRA [to RLUIPA] the ‘compelling governmental interest’/‘least restrictive means’
standard.”); Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007).
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continue holding inmate-led services is clearly sufficient to further the
government’s interest. As the district court pointed out, “TDCJ’s experience
during the thirty-five years of inmate-led services demonstrates that less
restrictive means are available and that they fulfill TDCJ’s security concerns
while not burdening the Muslim inmates’ exercise of their religious practices.”
The TDCJ, therefore, has failed to establish that the Scott Plan is the least
restrictive means of furthering its interest. See 42 U.S.C. § 2000cc-1(a)(2).
2
The PLRA’s requirements for continuing the consent decree are also met.
The PLRA mandates that the consent decree remain in place if it (1) “remains
necessary to correct a current and ongoing violation of the Federal right,” (2)
“extends no further than necessary to correct the violation of the Federal
right,” and (3) “is narrowly drawn and the least intrusive means to correct the
violation.” 18 U.S.C. § 3626(b)(3). As previously explained, the consent decree
remains necessary to correct the ongoing violation of Muslim prisoners’ rights
under RLUIPA, satisfying the first prong. See id. Given that the consent
decree specifically alleviates the burdens imposed on Muslim inmates by
precluding application of a direct-supervision rule to them—the very rule that
violates RLUIPA—the consent decree “extends no further than necessary” and
“is narrowly drawn and the least intrusive means.” Id.
For these reasons, I would affirm the district court’s continuation of the
consent decree to protect Muslim inmates in Texas from a continuing violation
of federal law.
III
Because, in my view, an ongoing violation of federal law justifies
the district court’s refusal to vacate the entire consent decree as the TDCJ
requested, I would not reach the Establishment Clause and Free Exercise
66
Case: 14-20249 Document: 00515020007 Page: 67 Date Filed: 07/02/2019
No. 14-20249
c/w No. 14-20444
Clause violations. However, I am compelled to note two additional issues with
the opinion. First, Judge Owen’s discussion of the Muslim inmates’
Establishment Clause rights, which failed to garner majority support and is
therefore not binding precedent, would unnecessarily create a circuit split. 5
Second, both Judge Owen’s lone discussion of the Establishment Clause, and,
on behalf of a majority, her Free Exercise analysis, overstep the bounds of
appellate review by retrying the facts of this case de novo despite that the
district court’s factual findings go unchallenged on appeal. See Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (This court “must
constantly have in mind that [its] function is not to decide factual issues de
novo.” (cleaned up)); United States v. Nieto, 721 F.3d 357, 372 (5th Cir. 2013)
(finding that challenges to the district court’s fact-finding were waived for
failure to brief).
***
For these reasons, I respectfully dissent.
5 Judge Owen’s opinion applies deference under Turner v. Safley, 482 U.S. 78 (1987)
in the context of the Establishment Clause, even though no other circuit has done so in a
published case. See Americans United for Separation of Church & State v. Prison Fellowship
Ministries, Inc., 509 F.3d 406, 426 (8th Cir. 2007) (explaining that the Eighth Circuit has
“consistently analyzed Establishment claims without mentioning the Turner standard, even
when applying that standard to Free Exercise claims in the same case”); Maye v. Klee, 915
F.3d 1076, 1085 (6th Cir. 2019) (declining to decide whether to apply Turner or analyze under
strict scrutiny because the violation was clear under either standard); Kerr v. Farrey, 95 F.3d
472, 480 (7th Cir. 1996) (applying Lemon v. Kurtzman, 403 U.S. 602 (1971) and reversing
after district court applied Turner and found no Establishment Clause violation); see also
Williams v. Lara, 52 S.W.3d 171, 188 (Tex. 2001) (following “an overwhelming majority of . .
. courts” in declining to apply Turner to Establishment Clause claims); Scott v. Pierce, No.
CV H-09-3991, 2012 WL 12535442, at *3 (S.D. Tex. May 7, 2012) (declining to apply Turner
to Establishment Clause claims); Muhammad v. City of N.Y. Dep’t of Corr., 904 F. Supp. 161,
195-99 (S.D.N.Y. 1995) (applying Turner to Free Exercise claims but not to Establishment
Clause claims stemming from the jail’s refusal to provide inmates with Nation of Islam
ministers and services).
67