Chance v. Texas Department of Criminal Justice

Case: 12-41015 Document: 00512355295 Page: 1 Date Filed: 08/27/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2013
No. 12-41015 Lyle W. Cayce
Clerk
WILLIAM E. CHANCE, JR.,
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in
his official capacity as Executive Director of the Texas Department of
Criminal Justice; CYNTHIA LOWERY, in her individual capacity; BILL
PIERCE, in his individual capacity; EDGAR BAKER, in his individual
capacity; WARDEN JOHN RUPERT; WARDEN TODD FOXWORTH,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CV-435
Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Plaintiff-Appellant William Chance, Jr. (“Chance”) is a prisoner currently
incarcerated by the Texas Department of Criminal Justice (“TDCJ”). Chance
filed suit under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) alleging that TDCJ has failed to accommodate several tenets of his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-41015 Document: 00512355295 Page: 2 Date Filed: 08/27/2013
No. 12-41015
Native American religion, including: (1) personal participation in a pipe-smoking
ceremony, (2) participation in a minimum number of various ceremonies, (3)
indoor smoke-wafting, and (4) personal possession of a lock of a deceased
relative’s hair. We agree with the district court that the summary judgment
record demonstrated that the prison policies associated with Chance’s first three
complaints are the least restrictive means of furthering TDCJ’s compelling
interests. However, we disagree with the district court that summary judgment
was appropriate on Chance’s claim that prohibiting the possession of a lock of a
relative’s hair was not the least restrictive means of furthering TDCJ’s
compelling interests. We therefore AFFIRM the district court’s judgment in part,
and VACATE and REMAND it in part.
I.
Chance is a prisoner currently incarcerated in the TDCJ’s Michael Unit
in Tennessee Colony, Texas. The Michael Unit is among several TDCJ
incarceration units specifically designated to house adherents of Native
American faith groups. Chance traces his lineage to the Cheyenne people, a
recognized tribe of indigenous Native Americans. Chance is also a practicing
follower of a traditional Native American faith.1 According to Chance, an
integral part of his faith and worship is the requirement that he regularly
participate in a number of traditional rituals and ceremonies, including the
“Sacred Pipe ceremony,” the “Smudging ritual,” the “Teaching ceremony,” holy
day ceremonies (“Wiping Away the Tears ceremonies”), and the “Keeping of
Souls” practice.
1
According to amici Pan-American Indian Association et al., the Native American faith
we are concerned with in the instant case is an inclusive “Pan-Indian” belief system which
broadly incorporates the practices and rituals common to the different Native American tribal
groups of the American Great Plains.
2
Case: 12-41015 Document: 00512355295 Page: 3 Date Filed: 08/27/2013
No. 12-41015
Arguing that TDCJ has failed to adequately accommodate these practices,
Chance filed this lawsuit in June 2011, asserting multiple violations of
RLUIPA.2 TDCJ moved for summary judgment, arguing that there was no
genuine issue of material fact and that it was entitled to judgment as a matter
of law. As is discussed in greater detail below, the magistrate judge agreed and
issued a report recommending that TDCJ’s motion be granted and all of
Chance’s claims be dismissed. The district court adopted the magistrate judge’s
report and recommendation, and Chance now appeals.
A. The Sacred Pipe Ceremony
Chance alleges that a cornerstone of his Native American faith is
participation in the Sacred Pipe ceremony. For adherents of the Native
American faith, it is only by personally smoking a mixture of herbs and tobacco
from a special pipe that they can offer their prayers to the Spirits. During the
ceremony, the Sacred Pipe is passed around the group, with each participant
smoking the pipe and offering his personal prayers as he exhales the smoke.
For most of Chance’s incarceration, he and other prisoners were allowed
to smoke a communal Sacred Pipe. From 2008 to 2010, Chance was even
permitted to smoke a separate Sacred Pipe due to his chronic infections with
Hepatitis C and tuberculosis. It is unclear what happened to Chance’s separate
pipe, but it is undisputed that he no longer had access to it sometime in 2010.
Thereafter, Chance and several other prisoners filed administrative grievances
with TDCJ complaining about the risk of communicable disease transmission
from a communal pipe. In his grievance, Chance specifically cited his own
chronic infections as preventing him from using the communal pipe and entitling
him to a separate pipe.
2
Chance also asserted violations of the Free Exercise Clause and the Equal Protection
Clause. Because Chance has only appealed the district court’s decision dismissing his RLUIPA
claims, we do not reach those issues in this appeal.
3
Case: 12-41015 Document: 00512355295 Page: 4 Date Filed: 08/27/2013
No. 12-41015
In an effort to resolve the prisoners’ concerns about disease, the grievances
were referred to Dr. Robert Williams, Deputy Director of TDCJ’s Health Service
Division. Dr. Williams subsequently issued a detailed opinion on the health
implications of using a communal pipe in the Sacred Pipe ceremony. Dr.
Williams ultimately concluded: “There is no way to share an object designed to
be placed in one’s mouth outside of a clinical setting with enough certainty that
diseases cannot be transmitted for Health Services to advocate instituting this
practice.” Based on Dr. Williams’s recommendation, TDCJ determined that it
would no longer permit a communal Sacred Pipe ceremony. Although a form of
the Sacred Pipe ceremony would still be held, only the chaplain conducting the
service would be allowed to smoke the pipe and pray on behalf of those present.
Chance subsequently filed this suit, alleging that TDCJ’s new Sacred Pipe
policy was an insufficient accommodation of his religious exercise under
RLUIPA, because his personal participation in the pipe ceremony is essential.
In response to TDCJ’s motion for summary judgment, the district court found
that although the policy substantially burdened Chance’s religious beliefs, it is
nonetheless the least restrictive means of furthering TDCJ’s compelling
interests in prison health, administration, and security. Accordingly, TDCJ’s
Sacred Pipe policy did not violate RLUIPA.
B. Frequency of Native American Ceremonies
The second major grievance asserted by Chance is the insufficient
frequency of Native American ceremonies in the Michael Unit. According to
Chance, Native American believers must regularly participate in Sacred Pipe
ceremonies, as well as “Teaching ceremonies” and “Wiping Away the Tears
ceremonies.” A Teaching ceremony is a Sunday school-style ceremony where
Native Americans receive teaching and participate in discussions concerning
their beliefs. A Wiping Away the Tears ceremony is a special Sacred Pipe
ceremony conducted in observance of a Native American holy day.
4
Case: 12-41015 Document: 00512355295 Page: 5 Date Filed: 08/27/2013
No. 12-41015
Around the same time that TDCJ modified its Sacred Pipe policy, it began
having difficulty finding volunteers or chaplains to oversee any of the traditional
Native American services in the Michael Unit. As a result, TDCJ could not offer
all of the services requested by Native Americans. Chance claims that his beliefs
require twice-monthly Sacred Pipe ceremonies, weekly Teaching ceremonies, and
four annual Wiping Away the Tears ceremonies on certain holy days. Instead,
TDCJ provides Sacred Pipe ceremonies once a month, Teaching ceremonies once
a month, and Wiping Away the Tears ceremonies on four different Native
American holy days. In addition, TDCJ offers Native American “Talking Circle”3
activities twice each month and religious DVD presentations once a month.
Chance, however, insists that these are inadequate substitutes for the formal
Sacred Pipe and Teaching ceremonies and the holy day recognition his faith
requires.
Chance’s complaint alleged that TDCJ’s failure to provide more Sacred
Pipe, Teaching, and holy day ceremonies unreasonably burdened his religious
exercise under RLUIPA. However, the district court reasoned that given the
number of prisoners and faith groups represented in Texas prisons, TDCJ could
not be expected to provide weekly services that catered to everyone. Accordingly,
TDCJ’s failure to provide more Native American ceremonies did not violate
RLUIPA.
C. The Smudging Ritual
Like the Sacred Pipe ceremony, the Smudging ritual is an elemental
component of the Native American faith. Smudging is ordinarily done in
conjunction with other Native American rituals such as the Sacred Pipe and
Teaching ceremonies. It involves burning a small amount of herbs and then
fanning the resulting smoke over the individual, any sacred object to be used,
3
During a Talking Circle, Native American participants are each given the opportunity
to voice what the “Great Spirit” has placed on their heart, similar to a Christian Bible study.
5
Case: 12-41015 Document: 00512355295 Page: 6 Date Filed: 08/27/2013
No. 12-41015
and the ceremonial site. For Chance and other adherents of the Native American
faith, Smudging is necessary to purify ceremonial objects and participants in
order to make contact with the Spirits.
From 1998 to 2009, Chance and other Native American believers were
allowed to “Smudge” indoors just before their regular Sacred Pipe and Teaching
ceremonies. Specifically, the ceremonies and the Smudging were conducted in
the Michael Unit’s gymnasium, which is where all such group gatherings are
held. However, sometime in 2009, a new fire alarm system was installed in the
gymnasium and TDCJ no longer permitted indoor Smudging. According to
Chance, the only place where Smudging is now permitted—and therefore the
only place where the Sacred Pipe and Teaching ceremonies can be properly
conducted—is outside. This is insufficient, Chance maintained, because without
an indoor Smudging option, inclement weather now forces the cancellation of an
essential Native American ritual. Chance’s complaint alleged that the refusal to
accommodate indoor Smudging rituals unreasonably burdened his religious
exercise under RLUIPA.
In response to TDCJ’s summary judgment motion, the district court found
that although the policy substantially burdened Chance’s religious beliefs, it is
nonetheless the least restrictive means of furthering TDCJ’s compelling
interests in prison administration and safety. Accordingly, the prison’s indoor
Smudging ban did not violate RLUIPA.
D. The Keeping of Souls Ritual
The Keeping of Souls Ritual is the process by which Native American
believers honor their duty to mourn the death of relatives. The ritual
traditionally requires Native American believers to keep a small lock of their
deceased relative’s hair for at least a year. Without possessing the lock of hair,
survivors cannot properly mourn the death of a loved one or reconnect with them
in the afterlife.
6
Case: 12-41015 Document: 00512355295 Page: 7 Date Filed: 08/27/2013
No. 12-41015
According to Chance, TDCJ has previously allowed a Native American
prisoner to keep a lock of a relative’s hair to observe the Keeping of Souls Ritual.
However, when Chance requested that he be allowed to keep locks of his dead
parents’ hair, TDCJ denied his request. Because any item not received from an
approved vendor could be used to smuggle in drugs, all items from family
members are considered contraband.
Chance’s complaint asserted that TDCJ’s refusal to accommodate his
request for a lock of hair unreasonably burdened his religious exercise under
RLUIPA. However, the district court found that the prison’s policy did not
substantially burden Chance’s religious beliefs, and even if it did, that the policy
against contraband is the least restrictive means of furthering the state’s
compelling interests. Therefore, the contraband policy did not violate RLUIPA.
II.
We review the district court’s summary judgment de novo, applying the
same standards as the district court. Burge v. Parish of St. Tammany, 187 F.3d
452, 464 (5th Cir. 1999). Summary judgment is only appropriate if “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). When reviewing
a grant of summary judgment, we construe all facts and inferences in the light
most favorable to the non-moving party, here Chance.
III.
RLUIPA provides that “no government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution, . .
. even if that burden results from a rule of general applicability,” unless the
burden “is in furtherance of a compelling government interest” and “is the least
restrictive means of furthering that compelling government interest.” 42 U.S.C.
§ 2000cc-1(a). The plaintiff initially bears the burden of showing that “the
challenged government action substantially burdens the plaintiff’s religious
7
Case: 12-41015 Document: 00512355295 Page: 8 Date Filed: 08/27/2013
No. 12-41015
exercise.” Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013). Once the
plaintiff makes that showing, the burden shifts to the government to show that
its action or policy is the least restrictive means of furthering a compelling
interest. Id. at 241–42. Although RLUIPA’s standard places a heavy burden on
the state, “‘context matters’ in the application of that standard.” Cutter v.
Wilkinson, 544 U.S. 709, 723 (2005) (citation omitted). We therefore review
RLUIPA claims with “due deference to the experience and expertise of prison
and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of
costs and limited resources.” Id.As a threshold matter, a common thread throughout Chance’s briefed
RLUIPA claims is his argument that summary judgment on the issue of least
restrictive means is inappropriate as a matter of law if TDCJ followed a more
liberal policy in the past or if other prisons allow a practice that TDCJ forbids.
Because Chance has offered evidence that TDCJ previously accommodated—and
other institutions still accommodate—the ceremonies and rituals in question,
Chance insists that summary judgment was inappropriate.
Nothing in the caselaw or the RLUIPA statute supports Chance’s
brightline rule. Instead, the wording of the RLUIPA statute suggests a fact-
specific inquiry that takes into account the special circumstances of the
individual prisoner and prison: A prison can substantially burden a prisoner’s
religious exercise if “the burden on that person . . . is in furtherance of a
compelling government interest[ ] and is the least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a) (emphasis
added). Decisions of this court have accordingly conducted case-specific inquiries
8
Case: 12-41015 Document: 00512355295 Page: 9 Date Filed: 08/27/2013
No. 12-41015
into whether a prison’s policy is the least restrictive means of furthering the
state’s interests.4
At least one other circuit has rejected the per se rule offered by Chance,
choosing instead to follow a case-specific approach when analyzing least
restrictive means issues on summary judgment. As the Eighth Circuit explained
in Fowler v. Crawford, a categorical rule defining the relevance of another
prison’s policy ignores the differences between institutions and all the other
factors that might be more relevant in a given case. 534 F.3d 931, 941 (8th Cir.
2008). Specifically, the Fowler court considered a Native American prisoner’s
RLUIPA demand for access to a sweat lodge. In asserting his claim, the plaintiff
prisoner relied heavily on the fact that another prison nearby permitted bi-
annual sweat lodge ceremonies. Id. Rebuffing the prisoner’s assertion that “they
did it at [another prison], they can do it at [my prison],” the court affirmed the
dismissal of the claim on summary judgment. Id. The court explained, “Although
prison policies from other jurisdictions provide some evidence as to the feasibility
of implementing a less restrictive means of achieving prison safety and security,
it does not outweigh the deference owed to the expert judgment of prison officials
4
See, e.g., Garner, 713 F.3d at 245–46 (conducting detailed inquiry into whether ban
on beards was least restrictive means); Moussazadeh v. TDCJ, 703 F.3d 781, 795–96 (5th Cir.
2012) (concluding that RLUIPA’s least restrictive means analysis is conducted independently
on record of each case); see also Cutter, 544 U.S. at 720 (“Properly applying RLUIPA, courts
must take adequate account of the burdens a requested accommodation may impose on
nonbeneficiaries.”). The fact that Chance proposes this rule in the context of summary
judgment does not change our conclusion. Summary judgment is appropriate if “there is no
genuine dispute as to any material fact.” FED. R. CIV. P. 56(a). Because the relevant facts are
not in dispute or must be construed in one party’s favor, “we are left with a pure question of
law to decide.” See New Orleans Depot Servs., Inc. v. DOWCP, 718 F.3d 384, 387 (5th Cir.
2013) (en banc). Therefore, construing all facts in favor of Chance, the question of least
restrictive means is appropriate for summary judgment. See, e.g., Baranowski v. Hart, 486
F.3d 112, 125 (5th Cir. 2007).
9
Case: 12-41015 Document: 00512355295 Page: 10 Date Filed: 08/27/2013
No. 12-41015
who are infinitely more familiar with their own institutions than outside
observers.” Id. at 942.5
In light of these principles and cases, we conclude that the mere existence
of a prison policy that differs from a past policy or another institution’s policy
does not necessarily entitle a plaintiff to survive summary judgment on his
RLUIPA claim. Not only does our RLUIPA analysis require a careful
consideration of each case’s specific facts, but there is also no reason to avoid
summary judgment when the material facts are not in dispute. See FED. R. CIV.
P. 56(a).
A.
Chance first argues that the district court erred by dismissing his Sacred
Pipe ceremony RLUIPA claim. Specifically, Chance claims that TDCJ’s complete
ban on communal pipe-smoking is not the least restrictive means of furthering
the state’s interests. Because TDCJ has conceded the existence of a substantial
burden, we proceed to the least-restrictive-means inquiry.
As an initial matter, TDCJ’s duty to protect the health and safety of its
prisoner population is indisputably an interest of the highest order. See Cutter,
544 U.S. at 717. TDCJ contends that its ban on communal pipe-smoking is
necessary to prevent the spread of infectious diseases, especially in the closed,
crowded population of a prison. To support its policy, TDCJ has offered expert
testimony establishing that a “host of communicable diseases [could] be easily
shared via a[n object] like a communal pipe such as flu, strep throat, norovirus,
and mononucleosis just to name a few.” Given that 125 to 150 prisoners
routinely seek to participate in the Sacred Pipe ceremony, and that the rate of
5
See also Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009) (affirming summary
judgment dismissing prisoner’s Free Exercise claim where “the only evidence he produced was
that the [forbidden items] were allowed at other prisons”); see also Spratt v. R.I. Dep’t of Corr.,
482 F.3d 33, 42 (1st Cir. 2007) (“[E]vidence of policies at one prison is not conclusive proof that
the same policies would work at another institution.”).
10
Case: 12-41015 Document: 00512355295 Page: 11 Date Filed: 08/27/2013
No. 12-41015
infection for many diseases is often much higher in prison, TDCJ’s concerns
about communal pipe-sharing are not unreasonable.6
Disregarding the fact that a communal Sacred Pipe ceremony will promote
the spread of disease, Chance nonetheless insists that TDCJ’s past
accommodation of the Sacred Pipe ceremony precludes the prison from changing
its position now. Also relevant, Chance contends, is the fact that other prisons
in the United States permit a form of Sacred Pipe ceremony. However, Chance’s
dependence upon these anecdotal examples completely ignores TDCJ’s sensible
reason for banning communal pipe ceremonies. That TDCJ or other prisons have
tolerated unsafe practices in the past is not a reason to permanently bind it to
a dangerous policy. Though TDCJ may have a different policy than some prisons,
it has provided evidentiary support for its decision that Chance has not even
attempted to rebut. “Evidence of the rules in other prisons is not, by itself,
sufficient to call into question the prison’s explanation.” Mays, 575 F.3d at 647.
Chance alternatively contends that TDCJ could have achieved
substantially the same result with a less restrictive policy. For example, Chance
suggests that the pipe could be cleaned with sanitizing wipes between each
smoker, or that he could be allowed to use a separate pipe. However, Chance’s
proffered alternatives are not backed by any summary judgment evidence and
largely ignore the concerns and evidence provided by TDCJ. Importantly, the
record indicates that TDCJ considered and rejected a variety of alternatives to
an outright ban on personal pipe-smoking. As TDCJ’s Deputy Director of Health
6
Chance asserts that to ban the practice of communal pipe-smoking, TDCJ must prove
that its previous practice of allowing communal pipe ceremonies actually resulted in outbreaks
of infectious diseases. However, no rule of evidence requires the use of anecdotal proof when
competent testimony, scientific knowledge, and commonsense adequately support a conclusion.
See, e.g., Fowler, 534 F.3d at 939 (“Prison officials need not endure [dangerous behaviors]
before implementing policies designed to prevent such activities in an uneasy atmosphere. Nor
do prison officials charged with managing such a volatile environment need present evidence
of actual problems to justify security concerns.”).
11
Case: 12-41015 Document: 00512355295 Page: 12 Date Filed: 08/27/2013
No. 12-41015
Services, Dr. Williams, explained, “[s]terilization would be expensive and would
not accommodate sharing the pipe in a meeting at the same time. If the
sterilization process was not strictly adhered to, the process would not eliminate
the risk of transmitting disease.” Chance has also suggested that because of his
serious illnesses, only he would need a separate pipe. However, this alternative
does nothing to address the health risks still faced by the rest of the communal
pipe ceremony participants. As Dr. Williams concluded in an opinion prepared
before Chance ever filed his prison grievance or lawsuit:
There is no way to share an object designed to be placed in one’s
mouth outside of a clinical setting with enough certainty that
diseases cannot be transmitted for Health Services to advocate
instituting this practice. If it is determined that [TDCJ’s] obligation
to allow observance of this practice outweighs [TDCJ’s] obligation
to prevent spread of infection in our institutionalized setting,
[TDCJ] will have to take as effective measures as are feasible, but
it should be understood that the repercussions of this practice may
extend beyond the participants since they would subsequently
expose others with whom they have close contact to any disease they
contracted from participating in the practice.
Recognizing that another solution might be to allow every participant to
smoke his own pipe, TDCJ has provided detailed evidence demonstrating why
that also would not be feasible. According to the Michael Unit’s Regional
Director, Robert Eason, the amount of time it would take to distribute,
inventory, and track every Native American believer’s pipe would substantially
burden the prison’s limited resources and labor during every Sacred Pipe
ceremony. Additional logistical problems are created by the necessity of
cataloguing and storing several hundred pipes. As Director Eason explained,
even if we assume the availability of disposable pipes, they are not a feasible
alternative, either. Because tobacco is not permitted in Texas prisons, it is
valuable contraband, and TDCJ would have to devote extensive manpower to
12
Case: 12-41015 Document: 00512355295 Page: 13 Date Filed: 08/27/2013
No. 12-41015
ensure that none of the 150 ceremony participants stole or hid any. Director
Eason additionally demonstrated that the extra security required for monthly
Sacred Pipe ceremonies with individual pipes would cost between $81,723 and
$104,592 a year.
According an appropriate amount of deference to TDCJ’s own expertise in
prison administration, we conclude that it has established that its communal
smoking policy is the least restrictive means of advancing its compelling
interests. TDCJ has provided extensive, uncontroverted evidence demonstrating
its consideration and reasoned rejection of a range of alternative policies. While
it is true that Chance’s religious exercise is burdened and that a chaplain
smoking on his behalf is seemingly inadequate, “[w]e do not read RLUIPA to
elevate accommodation of religious observances over an institution’s need to
maintain order and safety.” Cutter, 544 U.S. at 722.
B.
Chance next argues that the district court erred by dismissing his
complaint about the infrequency of Sacred Pipe, Teaching, and Wiping Away the
Tears ceremonies in the Michael Unit. Although TDCJ currently provides a
monthly Sacred Pipe ceremony, a monthly Teaching ceremony, and four annual
Wiping Away the Tears holy day ceremonies, Chance contends that his beliefs
require two monthly Sacred Pipe ceremonies, two monthly Teaching ceremonies,
and Wiping Away the Tears ceremonies on holidays more specific to his faith.
The district court rejected Chance’s assertion, concluding that the prison’s
provision of less frequent or different ceremonies did not constitute a violation
of RLUIPA.
Assuming that Chance has demonstrated a substantial burden on his
faith, TDCJ has offered substantial evidence demonstrating that its schedule of
Native American services is the least restrictive means of furthering its
compelling interests in prison administration, resource allocation, and cost
13
Case: 12-41015 Document: 00512355295 Page: 14 Date Filed: 08/27/2013
No. 12-41015
control. Billy Pierce (“Pierce”), TDCJ’s Manager of Chaplaincy Operations,
explained that the primary reason more frequent services cannot be held is the
dearth of available people willing and able to oversee religious ceremonies.
Pursuant to longstanding TDCJ policy, prisoners may only organize religious
gatherings under the proper supervision of a contract chaplain or qualified
outside volunteer. Since TDCJ is often unable to find chaplains to conduct
weekly services for each of the 230 identified faiths in TDCJ’s system, it relies
heavily on outside religious volunteers to conduct services. However, Pierce
indicated that he has faced great difficulty trying to solicit volunteers to conduct
Native American services. Despite efforts to hire Native American chaplains and
continuous requests to more than 60 Native American resource groups in the
region from 2009–2012, Pierce was unable to obtain anything but religious
recordings and fleeting commitments to help.
In addition to limited volunteer availability, Pierce noted: “Providing
weekly or even monthly religious services to all these [230] different faith groups
would be virtually impossible for numerous reasons, including, but not limited
to, the large number of faiths, the number of offenders, security concerns,
staffing and space limitations, and the large geographical expanse that TDCJ
covers.” Even with these concerns, TDCJ still manages to provide monthly
Sacred Pipe ceremonies, monthly Teaching ceremonies, four annual Wiping
Away the Tears ceremonies, and two monthly Native American “talking circles.”
Our caselaw also forecloses Chance’s claim on this record. In Adkins v.
Kaspar, we considered whether imprisoned members of the Yahweh Evangelical
Assembly had stated a RLUIPA claim when a shortage of volunteers prevented
the members from congregating weekly. 393 F.3d 559, 570 (5th Cir. 2004).
Rejecting the prisoner’s assertion that TDCJ’s volunteer requirement unduly
burdened his faith, we reasoned that the requirement was reasonable, especially
in light of the accommodations TDCJ made when volunteers were available. Id.14
Case: 12-41015 Document: 00512355295 Page: 15 Date Filed: 08/27/2013
No. 12-41015
at 571. Other decisions of this court confirm that TDCJ’s volunteer policy is a
permissible attempt to accommodate diverse religious exercises with limited
resources.7
The instant case is indistinguishable from Adkins and our other cases
upholding TDCJ’s religious volunteer policy.8 Because the volunteer requirement
is reasonable and necessary, and Native Americans have alternative
opportunities to gather and worship, we conclude that it is the least restrictive
means of furthering TDCJ’s compelling interest in prison administration.
However, this conclusion does not end our inquiry into TDCJ’s provision
of Native American ceremonies. With regard to Chance’s complaint about the
provision of Wiping Away the Tears ceremonies, he complains not about their
infrequency, but about their provision on the wrong holy days. In other words,
the Native American holy days recognized by TDCJ do not correspond to the holy
days revered by Chance.9 If TDCJ provides ceremonies on certain Christian,
7
See Mayfield v. TDCJ, 529 F.3d 599, 614 (5th Cir. 2008), (finding that TDCJ’s
volunteer requirement was permissible when prisoners were still provided with regular
opportunities to congregate and worship); Odneal v. Pierce, 324 F. App’x 297, at *4 (5th Cir.
2009) (unpublished) (rejecting Native American prisoner’s RLUIPA complaint about the
infrequency of services where the “record detail[ed] the defendants’ failed efforts to secure
additional volunteers and chaplains for the Native American services”); Baranowski, 486 F.3d
at 125.
While we have held that Adkins did not lay down “a per se rule that the TDCJ’s
volunteer requirement could never impose a substantial burden on a prisoner’s exercise of
religion,” Mayfield, 529 F.3d at 614, our cases finding a burdensome application of that
requirement are easily distinguished. See, e.g., id. (finding factual dispute about whether the
TDCJ volunteer requirement is a substantial burden on Odinist prisoners when evidence
indicated that the only approved volunteer visited less than once a year); McAlister v.
Livingston, 348 F. App’x 923, 937 (5th Cir. 2009) (finding factual dispute about whether the
TDCJ volunteer requirement is a substantial burden on Wiccan prisoners when evidence
indicated it was not enforced neutrally).
8
Though our cases often analyze the volunteer requirement under the “substantial
burden” prong of RLUIPA, we find that the volunteer restriction is also proper as the least
restrictive means of furthering TDCJ’s compelling interests.
9
Although the Michael Unit used to recognize the four Native American holy days now
designated by Chance, it discontinued that practice in 2008. In order to comply with a court
15
Case: 12-41015 Document: 00512355295 Page: 16 Date Filed: 08/27/2013
No. 12-41015
Islamic, and other Native American groups’ holy days, Chance contends, it must
also recognize and provide ceremonies on his holy days. As we have already
recognized with respect to increasing the frequency of Sacred Pipe ceremonies
and Teaching ceremonies, TDCJ’s provision of holy day ceremonies is limited by
the lack of space, personnel, and available volunteers. However, this is especially
true in light of TDCJ’s obligations to provide regular services for other faith
groups and to observe four different Native American holy days. As this court
has recognized before, the standard prison practice of providing for the generic
tenets of major faith groups is not only reasonable, but necessary in light of the
prison’s limited resources. As we stated in Freeman v. TDCJ, 369 F.3d 854, 861
(5th Cir. 2004),
[A prison’s] decision to offer worship services to five broad faith
sub-groups, augmented by supplemental religious services to the
other groups, . . . is eminently reasonable. Although some
[individual] prisoners may not be able to attend a service perfectly
suited to their faith, this limitation is dictated by the demands of
administering religious services to tens of thousands of inmates
representing widely divergent faiths.[10]
In another case, we recognized that the “generic structure of TDCJ [religious
group] services maximizes inmates’ religious liberty while addressing compelling
government interests including security problems, staffing limitations, and space
constraints.” Jones v. Shabazz, 352 F. App’x 910, 915 (5th Cir. 2009)
(unpublished).11
order in another case, the Michael Unit now observes the four Native American holidays
revered in Native American Shamanism—another Native American religious sect.
10
Although this decision was in the context of a First Amendment Free Exercise claim
to which we apply less exacting scrutiny of prison regulations, these considerations remain
relevant in the RLUIPA context.
11
See also Smith v. Kyler, 295 F. App’x 479, 484 (3d Cir. 2008) (unpublished) (finding
that hiring a Chaplain to perform religious services only for the “largest major faith groups”
but permitting smaller groups to worship together with volunteer chaplains was the least
16
Case: 12-41015 Document: 00512355295 Page: 17 Date Filed: 08/27/2013
No. 12-41015
Just as it is a reasonable decision to provide generic Protestant services,
Jewish services, or Native American pipe ceremonies, it is reasonable to limit
the provision of special holiday services to generic Protestant, Jewish, and
Native American holy days. Otherwise, as TDCJ points out, the prison would be
required to accommodate the diverse holidays of the hundreds of recognized
Native American tribes, as well as the various sects of other faith groups.
Although prisons cannot blindly assert that an exception for one person would
require exceptions for everyone, we have recognized the validity of such concerns
where experience or evidence warrants that conclusion. See, e.g., Baranowski,
486 F.3d at 118; Garner, 713 F.3d at 243.12 When “inmate requests for religious
accommodations become excessive, impose unjustified burdens on other
institutionalized persons, or jeopardize the effective functioning of an institution,
the facility [is] free to resist the imposition.” Cutter, 544 U.S. at 726.
It is TDCJ that is most familiar with its own staffing and space limitations
and the administrative burden of providing services across multiple faiths.
Given the problems inherent in providing holiday services catered to every
prisoner’s individual beliefs, we conclude that TDCJ has demonstrated that
providing generic Native American faith holiday services is the least restrictive
means of furthering TDCJ’s compelling interests.
C.
Chance next argues that the district court erred by dismissing his RLUIPA
claim challenging TDCJ’s policy of restricting the Smudging ritual to outdoor
ceremonies. Specifically, Chance contends that Smudging should be done twice
each month, in conjunction with the monthly Sacred Pipe and Teaching
restrictive means of furthering the prison’s interests); Boxer X v. Donald, 169 F. App’x 555
(11th Cir. 2006) (unpublished) (recognizing same concerns); Bruton v. McGinnis, 110 F.3d 63(6th Cir. 1997) (unpublished) (same).
12
See also Thunderhorse v. Pierce, 364 F. App’x 141, 144 (5th Cir. 2010) (unpublished).
17
Case: 12-41015 Document: 00512355295 Page: 18 Date Filed: 08/27/2013
No. 12-41015
ceremonies. However, because Teaching ceremonies are held indoors and Sacred
Pipe ceremonies can be forced indoors by rain, Native American believers
sometimes must conduct important ceremonies without Smudging properly
beforehand. Chance argues that this outright ban on indoor Smudging, which
TDCJ concedes is a substantial burden, is not the least restrictive means of
furthering TDCJ’s interests.
As an institution tasked with managing the details of thousands of
inmates’ lives using a limited budget, TDCJ undisputably has a compelling
interest in both prison safety and controlling costs. See Garner, 713 F.3d at 244.
TDCJ contends that the only way it can fully protect its interests is by
restricting the Smudging ritual exclusively to outdoor ceremonies. According to
TDCJ, all large group activities in the Michael Unit are conducted in the unit’s
gymnasium, which has a smoke-activated fire alarm. Moreover, the Smudging
ritual involves fanning the smoke of a burning bowl of herbs over each of up to
150 participants. As a result, TDCJ insists that it cannot permit Smudging
without deactivating the fire alarm or risking false fire alarms, neither of which
are permissible alternatives. To accommodate the Smudging ritual when it is
forced indoors, TDCJ routinely permits “wet Smudging,” whereby the ritual is
conducted by handling wet herbs rather than burning dry herbs.
In response, Chance argues that the complete ban on indoor Smudging is
not truly the least restrictive solution. First, Chance contends that TDCJ’s
concerns about the fire alarm are overblown, as the fire alarm has never been
set off by Smudging. Second, Chance reiterates his argument that if the prison
used to permit an activity, then prohibiting that activity cannot be the least
restrictive solution. Because the prison allowed Smudging in the gymnasium in
the past, he argues, it must continue to allow it. Third, Chance reasons that
there are feasible, less-restrictive alternatives to an outright ban, including
setting up a tent or shed outside.
18
Case: 12-41015 Document: 00512355295 Page: 19 Date Filed: 08/27/2013
No. 12-41015
However, Chance’s arguments find no support in the law or in the record.
The fire alarm has not been triggered by the Smudging ritual in the past because
the Smudging ritual was banned from the gym as soon as the alarm was
activated. Although TDCJ permitted indoor Smudging rituals in the Michael
Unit gymnasium for several years, it has adequately explained why a new fire
alarm required it to change its policy. Chance’s additional assertion that the
prison must wait until smoke sets off the fire alarm before safely concluding that
smoke sets off fire alarms ignores common sense. See Cubero v. Burton, 96 F.3d
1450 at *2 (7th Cir. 1996) (unpublished) (applying RLUIPA precursor statute
and upholding prison’s ban on indoor Smudging); Hodgson v. Fabian, 378 F.
App’x 592, 593–94 (8th Cir. 2010) (unpublished) (applying RLUIPA and
upholding prison’s ban on indoor Smudging). Finally, we are aware of no case in
which a court has compelled a prison to spend the time and resources to
construct a special outdoor structure merely because a religious group has
demanded it.
Our deference to prison administrators and their interests in safety and
cost control counsels in favor of dismissing Chance’s Smudging complaint.
Because TDCJ still permits Smudging outdoors and has offered uncontroverted
evidence demonstrating the reasonableness of its determination to ban indoor
Smudging, we conclude that its Smudging policy is the least restrictive means
of achieving its compelling interests.
D.
Finally, Chance argues that the district court erred by dismissing his
RLUIPA claim challenging TDCJ’s denial of his request to possess locks of his
deceased parents’ hair in accordance with the Keeping of Souls practice. As
Chance emphasizes, in the Native American faith, physical possession of a dead
relative’s hair is necessary to connect with them after death. On this issue, the
district court found that the denial of Chance’s request did not constitute a
19
Case: 12-41015 Document: 00512355295 Page: 20 Date Filed: 08/27/2013
No. 12-41015
substantial burden and held, alternatively, that even if Chance were
substantially burdened, TDCJ’s denial was pursuant to a policy that is the least
restrictive means of furthering TDCJ’s interests in prison security and
administration.
Although the district court found that denying Chance’s request to possess
a lock of hair did not substantially burden his religious exercise, TDCJ has not
briefed the issue on appeal. Conversely, Chance has consistently asserted that
the possession of a lock of hair is something which is an important part of his
faith. “[T]he place of a particular belief in a religion” is an assertion which we
are peculiarly “ill-suited” to test, especially on summary judgment, and
especially where the belief system is admittedly unfamiliar. See Adkins, 393
F.3d at 570.13 In light of Chance’s professed beliefs, the absolute denial of access
to religiously-significant locks of hair is certainly a policy which “influences
[Chance] to act in a way that violates his religious beliefs.” See id. This satisfies
the substantial burden requirement as we have described it.
Proceeding to the question of whether denying Chance the lock of hair is
the least restrictive means of furthering TDCJ’s compelling interests, we
recognize that TDCJ certainly has a compelling interest in promoting prison
order and preventing contraband from entering the prison. According to TDCJ,
the prohibition of all personal items from non-approved vendors is the only way
the prison can prevent contraband from entering the prison. Citing TDCJ’s
major contraband problems, Director Eason testified that “[a]ny time we open
the door for individuals to send items in, it breaches the security of our
institution, and that is our number one mission[, ] security and public safety. I
mean, that is what we do.” Unlike items from the prison’s authorized vendors,
items received from other persons might contain illegal weapons or substances.
13
See also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332–33 (5th Cir. 2009).
20
Case: 12-41015 Document: 00512355295 Page: 21 Date Filed: 08/27/2013
No. 12-41015
Specifically, TDCJ argues that even locks of hair could be dipped in a drug like
PCP and later smoked. Moreover, TDCJ offered testimony concerning the
problems posed by allowing only certain inmates to receive contraband items
from relatives. As Director Eason explained, when one inmate is allowed the
privilege of receiving something other inmates are not allowed—even hair—it
could breed animosity and make that inmate a target.
In response, Chance presented evidence that TDCJ once permitted the
possession of locks of hair, and that other institutions currently permit the
possession of locks of hair. As Chance also points out, a small lock of hair is no
more capable of being soaked in drugs than the letters in a prisoner’s mail.
Although TDCJ insists that mail is different because it is not sacred and can be
handled and tested, these concerns are speculative and without record support.
Moreover, this explanation ignores Chance’s assertion that he would permit the
hair to be tested or inspected, and even pay for the testing if required. Casting
further doubt on TDCJ’s asserted policy is evidence that TDCJ permits Native
American prisoners to possess such objects as a bone or a tooth, which are
apparently not available for purchase from traditional vendors.
Also relevant to our consideration is the fact that we have never gone as
far as upholding an absolute, no-exceptions prison restriction on requests for
outside objects.14 Rather than deferring to the prison’s general policy regarding
a matter, we have consistently tested the prison’s asserted interests with regard
to the risks and costs of the specific accommodation being sought. See
Moussazadeh, 703 F.3d at 795–96. Maintaining this approach is consistent with
our observation that the availability of a less restrictive means is “a subject that
demands a fact-intensive inquiry.” See id. Other courts have similarly rejected
14
See, e.g., McFaul v. Valenzuela, 684 F.3d 564, 572–73 (5th Cir. 2012); Mayfield, 529
F.3d at 602; McAlister, 348 F. App’x at 936.
21
Case: 12-41015 Document: 00512355295 Page: 22 Date Filed: 08/27/2013
No. 12-41015
generic appeals to prison security and prisoner uniformity, taking an object-
specific approach to requests for religious items.15
For example, in Mayfield v. TDCJ, we considered an Odinist prisoner’s
request for religious runestones—small tiles made from antler, wood, or stone,
and containing religious inscriptions. 529 F.3d at 602. Despite evidence
presented by TDCJ that runestones could be used to gamble, pass secret
messages, and identify gang members, we found that a ban on runestones might
not be the least restrictive of effective alternative policies. Id. at 616. Although
Odinist prisoners were already allowed to access runestones when an outside
volunteer was present, we reasoned that a less restrictive alternative might be
to allow the unit chaplain to store the runestones for use during other appointed
times. Id. at 616–17. Because an absolute ban on locks of hair appears to be no
more necessary than a partial ban on runestones, Mayfield militates strongly in
favor of denying summary judgment to TDCJ on this issue.16
While we must give due deference to TDCJ’s expertise in prison
administration and security, Cutter, 544 U.S. at 723, this deference does have
limits. If TDCJ can absolutely prohibit something as benign as a lock of hair by
appealing to its general approved-vendors-only policy, then TDCJ could
conceivably prohibit anything. On this record, there is a dispute about the
15
See, e.g., Craddick v. Duckworth, 113 F.3d 83, 85 (7th Cir. 1997) (finding that prison
had “not shown that medicine bags pose a genuine threat to prison security.” (citation
omitted)); Singson v. Norris, 553 F.3d 660, 662–63 (8th Cir. 2009) (finding that unrestricted
access to tarot cards would create multiple security problems); see also Hammons v. Saffle, 348
F.3d 1250, 1255 (10th Cir. 2003); Morrison v. Garraghty, 239 F.3d 648, 660 (4th Cir. 2001);
Spies v. Voinovich, 173 F.3d 398, 405 (6th Cir. 1999). A notable exception to this trend is a
Free Exercise case from the Ninth Circuit, Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th Cir.
1991). However, not only is the Friend case an outlier, but it also did not apply the tougher
least restrictive means standard.
16
See also McAlister, 348 F. App’x at 936 (“If the district court finds on remand that
[plaintiff] has met his burden . . . then the district court should also determine (1) whether
TDCJ has a compelling interest in prohibiting possession of each item . . . .”) (emphasis added).
22
Case: 12-41015 Document: 00512355295 Page: 23 Date Filed: 08/27/2013
No. 12-41015
dangers posed by hair and the necessity of a no-exceptions policy, as well as the
potential viability of simply inspecting or testing the hair. It also appears that
there are a number of less restrictive alternatives to an outright ban, including
restricting the lock of hair to the cell, washing it, inspecting it, or restricting its
size. We therefore conclude that there is a genuine issue of material fact with
regard to whether TDCJ’s refusal to allow Chance to possess locks of relatives’
hair is the least restrictive means of furthering TDCJ’s compelling interests.
IV.
In sum, we hold that Chance has created a genuine issue of material fact
only with regard to whether he may possess a lock of hair in prison. We therefore
VACATE the district court’s dismissal of that claim and REMAND it for further
proceedings. The remainder of the district court’s judgment is AFFIRMED.
23