Atomanczyk v. Texas Department Of Criminal Justice

July 12, 2021

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

AHARON L. § CIVIL ACTION NO.

ATOMANCZYK, § 4:17-cv-00719

Plaintiff, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

TEXAS DEPARTMENT §

OF CRIMINAL JUSTICE §

and BRYAN COLLIER, §

Defendants. §

MEMORANDUM AND OPINION

GRANTING SUMMARY JUDGMENT IN PART

Plaintiff Aharon L. Atomanczyk has been incarcerated in

several Texas prisons since 1996. He complains of an inability to

practice his Jewish religious beliefs, asserting that he has been

unlawfully denied kosher food, participation in communal prayer

services, and access to rabbinic visits and chaplaincy services. He

brings claims against Defendants Texas Department of Criminal

Justice and its executive director, Bryan Collier, under the

Americans with Disabilities Act, the Rehabilitation Act, and the

Religious Land Use and Institutionalized Persons Act.

The motion for summary judgment by Atomanczyk is

granted on his RLUIPA claim as to the sincerity of his religious

beliefs. It is denied in all other respects. Dkt 109.

The motion for summary judgment by Defendants is granted

on the RLUIPA claim as to prison security being a compelling

governmental interest in relation to participation in communal

prayer services. It is denied in all other respects. Dkt 107.

1. Background

Atomanczyk was given a life sentence upon conviction of

capital murder in 1996. Dkt 109-2 at ¶ 4 (Atomanczyk

declaration). He describes himself as an “Ultra-Orthodox”

Jewish inmate. Dkt 109-2 at ¶ 3. This dispute concerns his

accommodations and access to religious services since 2015 while

incarcerated in several jails administered by the TDCJ.

The Stringfellow Unit (in Brazoria County) provides the

TDCJ’s so-called Enhanced Jewish Services Program. Id at ¶¶ 7–8.

This program provides inmates with free kosher food prepared

on the premises, weekly visits by a rabbi, and rabbi-led

congregational services. See Dkt 110-1 at 3 (TDCJ chaplaincy

manual); Dkt 110-3 (TDCJ memo on Jewish religious

programming). Stringfellow is one of four units that provide

Jewish services and is the only one that provides the Enhanced

Jewish Services Program. The other three units are Jester III (in

Fort Bend County), Stiles (in Jefferson County), and Wynne (in

Walker County), which provide the so-called Basic Jewish Services

Program. Dkt 110-1 at 3. That program provides inmates with

kosher products for purchase, monthly visits by a rabbi, and

rabbi-led congregational services. Id at 3–4. Other units don’t

provide a specific program for the practice of Jewish beliefs.

Atomanczyk was assigned to Stringfellow from 2013 to 2015.

The TDCJ transferred him in December 2015 to Jester III based

on an assessment of medical need. Dkt 107-2 at 4 (affidavit of

Wayne Brewer, then-Warden of Stringfellow Unit). The TDCJ

assigns inmates to its several units based on (among other

criteria) an assessment by the University of Texas, Medical

Branch as to which locations can accommodate an inmate’s

medical restrictions. UTMB determined that Atomanczyk had

“permanent significant overall physical capacity limitations” due

in part to cardiovascular disease, which meant that Atomanczyk

would be limited on his ability to walk, climb, and perform certain

physical work. Id at 5–7. UTMB also determined that he required

confinement in a facility able to provide twenty-four-hour

medical care. Id at 8.

Although Jester III participates in the Basic Jewish Services

Program, Atomanczyk didn’t initially seek or receive kosher food

while incarcerated there. That’s because in June 2015, six months

before his transfer, he changed his religious preference from

Jewish to Messianic Jewish. Dkt 107-1 at 8–9 (Atomanczyk

deposition). The TDCJ characterizes the latter preference as a

Christian sect. Dkt 107-3 at 3 (affidavit of Dr Michael Rutledge,

TDCJ deputy director of evidence-based operations).

Atomanczyk disagrees with this, saying it is a Jewish

denomination. Dkt 107-1 at 7–8. Regardless, the change in

religious preference rendered Atomanczyk ineligible to

participate in either the Basic or Enhanced Jewish Services

Programs under TDCJ policy. Dkt 107-3 at 3.

Atomanczyk continued that religious preference until

September 2016. He then changed his religious preference from

Messianic Jewish to Satu Mare Hassidic Jewish. Ibid; Dkt 107-1 at 3

(Atomanczyk deposition); see also Dkt 107 at 18. The TDCJ

characterizes such preference as Jewish, meaning Atomanczyk

was then eligible to participate in Jester III’s Basic Jewish Services

Program. Dkt 107-1 at 3; Dkt 107-3 at 3.

Shortly after that change in religious preference, Atomanczyk

filed an administrative grievance, seeking various religious

accommodations, including free kosher food. See Dkt 107-5

(grievance). The TDCJ denied the grievance. See id at 4 (initial

TDCJ response); Dkt 109-2 at ¶ 17; see also Dkt 107 at 18 (noting

denial of grievance in TDCJ brief).

The TDCJ then transferred Atomanczyk to the Stiles Unit in

April 2016. It did so because he received two disciplinary

violations that resulted in the demotion of his security level.

Dkt 107-2 at 8 (Brewer affidavit). Stiles is able to provide twenty-

four-hour medical care to inmates who pose security concerns,

while also providing the Basic Jewish Services Program. Id at 9;

see also Dkt 110-1 (TDCJ chaplaincy manual).

The TDCJ began to provide Atomanczyk with free kosher

food from KO Kosher Service at Stiles in May 2017. Dkt 107-6

at 2–3 (affidavit of Jonathon Logan, TDCJ kitchen captain).

Neither side addresses why this change was implemented. In any

event, the parties dispute the quality of this food. The hechsher is

a rabbinical endorsement or certification, especially of food

products that conform with traditional Jewish dietary laws. See

Dkt 109-3 at 5–6 (report of Plaintiff’s expert Rabbi Marinovsky).

Atomanczyk claims that the hechsher on the entrees he receives

isn’t adequate to satisfy his religious obligations. On that basis,

he refused to eat the entrees for the months spanning June to

October 2017 and December 2017 to some point in mid-2018.

Dkt 109-2 at ¶¶ 23–27 (Atomanczyk declaration). After losing

thirty-five pounds and experiencing “equilibrium and balance

problems,” he then began to eat the KO Kosher Service entrees

and continues to do so at present. Id at ¶¶ 27–31.

The TDCJ next transferred Atomanczyk to the Hughes unit

in June 2017 following his involvement in a fight with two other

inmates. It then transferred him back to Jester III in

December 2017 for a brief time after promoting his security level.

Atomanczyk was then involved in a more serious fight with

another inmate in February 2018. TDCJ again demoted his

security level to require housing in administrative segregation and

transferred him to the Polunsky Unit (in Polk County), where he

remains at present. Dkt 107-2 at 8–9 (Brewer affidavit).

Polunsky is capable of housing inmates in administrative

segregation. It doesn’t participate in the Jewish Services Program.

See Dkt 110-1 at 3. Even so, the TDCJ continues to provide

Atomanczyk free kosher food. Dkt 109-2 at ¶¶ 23–31

(Atomanczyk declaration). But he isn’t permitted to participate in

communal prayer services because of the administrative

segregation. And the TDCJ doesn’t pay a rabbi to visit Polunsky,

as it does for Stringfellow, Jester III, Stiles, and Wynne. See

Dkt 110-1 at 3–5 (TDCJ chaplaincy manual). Beyond this, the

parties don’t offer evidence to specify the unit’s capabilities with

respect to religion and health accommodations and security level.

Atomanczyk filed his initial complaint pro se in March 2017,

following denial of his grievance by the TDCJ. After retaining

counsel and obtaining leave, he filed an amended complaint. See

Dkts 17 and 20. He asserts that Defendants discriminated against

him on the basis of his disability when they transferred him from

Stringfellow to Jester III, in violation of Title II of the Americans

with Disabilities Act, 42 USC § 12131 et seq, and the

Rehabilitation Act, 29 USC § 794 et seq. He also alleges under

those Acts that Defendants have failed to provide reasonable

accommodations for his alleged disability. He further asserts that

Defendants have imposed a substantial burden on the practice of

his religion in violation of the Religious Land Use and

Institutionalized Persons Act, 42 USC § 2000cc et seq. See Dkt 21.

Atomanczyk seeks compensatory damages for the past

violations of the ADA and the Rehabilitation Act. He also seeks

a permanent injunction under the ADA, Rehabilitation Act, and

RLUIPA that would order Defendants to provide him with the

services he seeks. Specifically, he seeks an order that Defendants

be required to provide him “with access to the benefits of the

Enhanced Jewish Services Program—including access to a

nutritionally sufficient kosher diet, weekly communal Shabbat

prayer services at the direction of an ordained Orthodox rabbi,

daily communal prayer services, weekly rabbinic visits, and on-

site chaplaincy services.” Dkt 21 at pp 11–12.

During this litigation, Atomanczyk retained the expert

services of Dr Joseph S. Kass, a professor of neurology and

psychiatry at the Baylor College of Medicine. He diagnosed

Atomanczyk in October 2018 with small fiber neuropathy. The

associated symptoms are dizzy spells, balance problems,

parathesia (that is, burning, prickling, or numbness), and seizures.

Dkt 109-2 at ¶¶ 14–16 (Atomanczyk declaration); Dkt 109-4

(Kass expert report). Atomanczyk characterizes this condition as

a disability and asserts that it was the cause of his transfer to

Jester III. Dkt 116 at 17–20. The TDCJ doesn’t dispute that

Atomanczyk was transferred to Jester III “for 24-hour medical

care.” Dkt 107 at 15. It further assumes that Atomanczyk’s small

fiber neuropathy and related symptoms were the cause for the

reassignment. But, as will be addressed in more detail below, it

disputes that this condition is a disability within the meaning of

the pertinent law. Id at 15–17. Curiously, neither party mentions

the cardiovascular disease noted in Brewer’s affidavit that (at least

on that evidence) was the cause for his transfer.

Defendants moved for summary judgment on all claims after

the close of discovery, arguing that Atomanczyk’s complaint

should be dismissed. Dkt 107. Atomanczyk also moved for

summary judgment, arguing that he is entitled to judgment as a

matter of law on his RLUIPA claim and that he has proven that

he has a qualifying disability for purposes of the ADA and the

Rehabilitation Act claims. Dkt 109.

2. Legal standard

Rule 56(a) of the Federal Rules of Civil Procedure requires a

court to enter summary judgment when the movant establishes

that “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” A fact is

material if it “might affect the outcome of the suit under the

governing law.” Sulzer Carbomedics, Inc v Oregon Cardio-Devices, Inc,

257 F3d 449, 456 (5th Cir 2001), quoting Anderson v Liberty Lobby,

Inc, 477 US 242, 248 (1986). And a dispute is genuine if the

“evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Royal v CCC & R Tres Arboles, LLC,

736 F3d 396, 400 (5th Cir 2013), quoting Anderson, 477 US at 248.

The summary judgment stage doesn’t involve weighing the

evidence or determining the truth of the matter. The task is solely

to determine whether a genuine issue exists that would allow a

reasonable jury to return a verdict for the nonmoving party.

Smith v Harris County, 956 F3d 311, 316 (5th Cir 2010), quoting

Anderson, 477 US at 248. Disputed factual issues must be resolved

in favor of the nonmoving party. Little v Liquid Air Corp, 37 F3d

1069, 1075 (5th Cir 1994). All reasonable inferences must also be

drawn in the light most favorable to the nonmoving

party. Connors v Graves, 538 F3d 373, 376 (5th Cir 2008), citing

Ballard v Burton, 444 F3d 391, 396 (5th Cir 2006).

The moving party typically bears the entire burden to

demonstrate the absence of a genuine issue of material fact. Nola

Spice Designs LLC v Haydel Enterprises Inc, 783 F3d 527, 536 (5th

Cir 2015) (quotation omitted); see also Celotex Corp v Catrett,

477 US 317, 322–23 (1986) (citations omitted). But when a

motion for summary judgment by a defendant presents a

question on which the plaintiff bears the burden of proof at trial,

the burden shifts to the plaintiff to proffer summary judgment

proof establishing an issue of material fact warranting trial.

Nola Spice, 783 F3d at 536 (quotation omitted). To meet this

burden of proof, the evidence must be both “competent and

admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460 (5th Cir

2012) (citation omitted).

When parties file opposing motions for summary judgment

on the same issue, the court reviews each motion independently,

each time viewing the evidence and inferences in the light most

favorable to the nonmoving party. Amerisure Insurance Co v

Navigators Insurance Co, 611 F3d 299, 304 (5th Cir 2010) (quotation

omitted). Each movant must establish that no genuine dispute of

material fact exists, such that judgment as a matter of law is in

order. Ibid; see also Tidewater Inc v United States, 565 F3d 299, 302

(5th Cir 2009).

3. Analysis

Defendants move for summary judgment on a total of

nineteen issues and sub-issues of a wide-ranging and variegated

nature. See Dkt 107 at 2. Atomanczyk doesn’t purport to raise

nearly as many discrete issues, but still, he seeks summary

judgment as to his entire RLUIPA claim and important aspects

of his ADA and Rehabilitation Act claims. See Dkt 109.

Between them, the parties have submitted a total of 182

pages of briefing, exclusive of attachments. Lacking overall was a

realistic assessment of the record and attendant standard of

review. Precedent on these topics dictates that these are fact-

intensive inquiries, making them infrequently appropriate to

resolution as a matter of law. Does Atomanczyk sincerely hold

his religious beliefs? Quite obviously, yes. Is prison security a

compelling governmental interest in relation to participation in

communal prayer services? Of course. But beyond that, it was

clear from the outset that genuine disputes of material fact exist

on all other issues.

Atomanczyk’s claims under the Americans with Disabilities

Act and the Rehabilitation Act are considered together, followed

by his claims under the Religious Land Use and Institutionalized

Persons Act.

a. Claims under the Americans with Disabilities

Act and the Rehabilitation Act

Title II of the ADA provides, “Subject to the provisions of

this subchapter, no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity.” 42 USC § 12132. Public entities are defined to include

agencies or departments of state governments. 42 USC

§ 12131(1)(B). The ADA creates a private right of action against

those entities for monetary and equitable relief. See 42 USC

§ 12133.

The language of Title II tracks the language of § 504 of the

Rehabilitation Act. See Hainze v Richards, 207 F3d 795, 799

(5th Cir 2010). In that regard, § 504 provides:

No otherwise qualified individual with a

disability in the United States, as defined

in section 705(20) of this title, shall, solely by

reason of her or his disability, be excluded from

the participation in, be denied the benefits of,

or be subjected to discrimination under any

program or activity receiving Federal financial

assistance or under any program or activity

conducted by any Executive agency or by the

United States Postal Service.

29 USC § 794(a).

Further, the ADA specifically provides, “The remedies,

procedures, and rights set forth in section 794a of Title 29 shall

be the remedies, procedures, and rights this subchapter provides

to any person alleging discrimination on the basis of disability in

violation of section 12132 of this title.” 42 USC § 12133. As such,

the elements necessary to state a case of discrimination under the

Rehabilitation Act are “operationally identical” to those under the

ADA. Melton v Dallas Area Rapid Transit, 391 F3d 669, 676 n 8

(5th Cir 2004).

To establish a prima facie case of discrimination under Title II

of the ADA and § 504 of the Rehabilitation Act, a plaintiff must

demonstrate that:

o First, he’s a qualified individual within the meaning

of the ADA;

o Second, he’s being excluded from participation in (or

being denied benefits of) services, programs, or

activities for which the public entity is responsible,

or is otherwise being discriminated against by the

public entity; and

o Third, the exclusion, denial of benefits, or

discrimination is by reason of his disability.

Melton, 391 F3d at 671–72 (as to ADA); see also Greer v Richardson

Independent School District, 472 F Appx 287, 291 n 1 (5th Cir 2012)

(as to Rehabilitation Act).

In addition, the Prison Litigation Reform Act of 1995

requires a prisoner seeking compensatory damages under the

ADA and the Rehabilitation Act to show that he sustained a

physical injury. 42 USC § 1997e(e); see Mayfield v Texas Department

of Criminal Justice, 529 F3d 599 (5th Cir 2008). A physical injury

“need not be significant,” but it must be more than de minimis.

Siglar v Hightower, 112 F3d 191, 193 (5th Cir 1997).

i. Sovereign immunity

Atomanczyk seeks compensatory damages. Defendants

assert state sovereign immunity by argument that can be

described as cursory at best. See Dkt 107 at 9, 11, 26; compare

Meyers v Texas, 410 F3d 236, 251 (5th Cir 2005) (noting failure to

explain “how or why” sovereign immunity applied). To the

contrary, the applicability of such defense presents a complicated

legal question that requires analysis of which aspects of the

alleged conduct by the State violated Title II; to what extent such

misconduct also violated the Fourteenth Amendment; and

whether (insofar as such conduct violated Title II but didn’t

violate the Fourteenth Amendment) the purported abrogation of

sovereign immunity by Congress in such contexts is nevertheless

valid. Smith v Hood, 900 F3d 180, 184 (5th Cir 2018), quoting

United States v Georgia, 546 US 151, 159 (2006).

As discussed below, Atomanczyk has raised sufficient

question whether Defendants have violated Title II. And he

doesn’t appear to allege that Defendants have violated the

Fourteenth Amendment. While assertion of sovereign immunity

isn’t entirely foreclosed, it is denied here. Defendants may

reassert it with pretrial briefing, so long as appropriate attention

is given to the analysis required by United States v Georgia.

ii. Discrimination theory

Defendants seek summary judgment on three issues—

whether Atomanczyk is a qualified individual due to disability,

whether the challenged actions are by reason of any disability, and

whether he has suffered a physical injury. Dkts 107 at 26–30.

Atomanczyk defends against these and, in turn, moves for

summary judgment that his diagnosis of small fiber neuropathy

is a qualifying disability. Dkt 109 at 29–30.

A. Qualified individual

A person is a qualified individual under the ADA if he has a

disability within the meaning of that statute. See 42 USC § 12132.

The same terms apply with respect to claims made under the

Rehabilitation Act. For example, see Epley v Gonzalez, --- F Appx

---, 2021 WL 2351155, *3 (5th Cir, per curiam). A number of

definitions must be understood in this regard.

A disability is defined as “a physical or mental impairment that

substantially limits one or more major life activities.” 42 USC

§ 12102(1)(A). A physical impairment includes “[a]ny physiological

disorder or condition . . . affecting one or more body systems.”

28 CFR § 35.108(b)(1)(i). Major life activities include (as pertinent

here) standing, walking, and climbing. See 42 USC

§ 12102(2)(A)–(B). And substantially limits generally means:

(i) unable to perform a major life activity that

the average person in the general population

can perform; or (ii) significantly restricted as to

the condition, manner, or duration under which

an individual can perform a particular major life

activity as compared to the condition, manner,

or duration under which the average persons in

the general population can perform the same

major life activity.

Foreman v Babcock & Wilcox Co, 117 F3d 800, 805 (5th Cir 1997),

citing 29 CFR § 1630.2(j)(1).

Consensus exists among the parties that Atomanczyk has a

physical impairment. But the parties sharply disagree whether this

substantially limits any major life activity.

As noted above, Dr Joseph Kass is a professor of neurology

and psychiatry at the Baylor College of Medicine, who serves here

as an expert to Atomanczyk. He diagnosed Atomanczyk in

October 2018 with small fiber neuropathy. The associated

symptoms include dizzy spells, balance problems, numbness, and

seizures. Dkt 109-2 at ¶¶ 14–16 (Atomanczyk declaration);

Dkt 109-4 (Kass expert report). Atomanczyk claims that this

substantially limits his ability to walk, stand, and climb. Dkt 109-2

at ¶¶ 14–16 (Atomanczyk declaration). And so it also means, he

argues, that he has a disability as a matter of law. Dkt 109 at 29;

Dkt 116 at 17–20.

Defendants don’t dispute that Atomanczyk was transferred

to Jester III “for 24-hour medical care.” Dkt 107 at 15. They also

don’t dispute that Atomanczyk has small fiber neuropathy or that

he experiences “occasional episodes of unconsciousness.”

Dkt 114 at 26. But they disagree that it substantially limits any

major life function. They argue that Dr Kass didn’t form an

opinion on whether the diagnosis affects Atomanczyk’s ability to

walk, stand, or move. And they assert that Dr Kass also can’t

confirm that any past seizures were caused by that condition.

Id at 26–27. And so, they say, Atomanczyk fails as a matter of

law to prove the extent of his physical condition and the extent

of the condition’s limitations. Dkt 114 at 25–27.

Summary judgment isn’t warranted on the issue of whether

Atomanczyk is a qualified individual under the ADA. Whether a

plaintiff has a disability under the ADA is ordinarily a question

of fact. Foreman, 117 F3d at 805–06; Kemp v Holder, 610 F3d 231,

234–35 (5th Cir 2010) (same as to Rehabilitation Act). And both

parties fall far short of establishing the absence of genuine

questions of material fact when viewing this evidence in the light

most favorable to each party in turn. Most troublesome, left

entirely unexplained is why neither party addresses the

cardiovascular disease that limited Atomanczyk’s ability to walk,

climb, and perform certain physical work to such degree that the

TDCJ first moved him from Stringfellow to Jester III in

December of 2015. See 107-2 at 5–8 (Brewer affidavit). Even

beyond this, the diagnosis by Dr Kass can’t by itself be said to

conclusively establish that the diagnosis of small fiber neuropathy

substantially limits a major life activity. But neither can it be said

on this record that no reasonable jury could find that

Atomanczyk has a qualifying disability—especially given the

unexplained circumstances of his cardiovascular disease.

B. Intentional discrimination

A plaintiff must show that the denial was intentional to

establish discrimination by reason of disability. Guerra v San Benito

Consolidated Independent School District, 374 F Supp 3d 616, 624

(SD Tex 2019), citing Delano-Pyle v Victoria County, 302 F3d 567,

574 (5th Cir 2002). Defendants move for summary judgment on

the issue of intentionality.

The Fifth Circuit hasn’t determined the appropriate standard

by which to determine intentionality as to claims under the ADA

and the Rehabilitation Act. Smith, 956 F3d at 318; see also Perez v

Doctors Hospital at Renaissance, Ltd, 624 F Appx 180, 184 (5th Cir

2015, per curiam). But several circuits have held it to be one of

deliberate indifference. Taylor v Hartley, 488 F Supp 3d 517, 543

(SD Tex 2020), citing McCollum v Livingston, 2017 WL 2215627,

*2 n 3 (SD Tex) (collecting cases from Second, Third, Ninth,

Tenth, and Eleventh Circuits). That standard will be applied here.

It requires the plaintiff to show knowledge that the policy or

conduct is substantially likely to violate a federally protected right,

along with failure to act despite that knowledge. Durrell v Lower

Merion School District, 729 F3d 248, 265 (3d Cir 2013), citing

Duvall v County of Kitsap, 260 F3d 1124, 1139 (9th Cir 2001).

“Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in

the usual ways, including inference from circumstantial

evidence.” Havens v Colorado Department of Corrections, 897 F3d

1250, 1266 (10th Cir 2018), quoting McCullum v Orlando Regional

Healthcare System, Inc, 768 F3d 1135, 1147 (11th Cir 2014); see also

Taylor, 488 F Supp 3d at 544.

Atomanczyk argues that he has sufficiently established

deliberate indifference. The TDCJ, he says, transferred him to

Jester III because UTMB recommended housing him at a facility

with capacity to provide round-the-clock medical care. This

means that he was transferred because he’s disabled—otherwise,

he would have remained at Stringfellow and been able to

participate in the Enhanced Jewish Services Program. He doesn’t

argue that the transfer alone was unlawful, contending instead

that Defendants violated the ADA and the Rehabilitation Act by

denying his grievance. They would have independently known

that he couldn’t receive the benefits of the Enhanced Jewish

Services Program at Jester III because of his condition. And in

any event, his grievance expressly alleged that he can’t reside at

Stringfellow because of his disability. See Dkt 107-5 at 3

(grievance). As such, Defendants knew Atomanczyk couldn’t

participate in the Enhanced Jewish Services Program because of

his disability and still denied him accommodation. See Dkt 116

at 22–25.

Defendants argue that the cause of denial was Atomanczyk’s

own conduct, which resulted in his transfer from Jester III to

Stiles, then to Hughes, back to Jester III, back to Stiles, and then

to Polunsky. Defendants acknowledge that all of these units

provide less comprehensive Jewish services than Stringfellow,

with Hughes and Polunsky ordinarily not providing any. But

those transfers, Defendants say, have nothing to do with any

alleged disability and were made instead for safety and security

reasons due to disciplinary violations. See Dkts 107-3 (Rutledge

affidavit), 107-2 at 8–9 (Brewer affidavit). This means, they say,

that Atomanczyk wasn’t denied participation in the Enhanced

Jewish Services Program by reason of his alleged disability, but

rather, only because of the transfers made necessary by his own

misbehavior. Dkt 107 at 19–23.

Defendants also argue that their denial of Atomanczyk’s

grievance doesn’t constitute deliberate indifference because his

alleged disability wasn’t the sole reason for the denial. Dkt 107

at 17–18. They point to the grievance itself, which didn’t ask

Defendants to transfer Atomanczyk back to Stringfellow, but

instead asked them to provide the Enhanced Jewish Services

Program at Jester III. Dkt 107-5 at 3–4 (grievance). And so,

Defendants say, Atomanczyk “has also been denied [Enhanced

Jewish Services] because he has not requested to return to

Stringfellow Unit—despite being assigned to units that did not

have the Enhanced Jewish Services Program.” Dkt 107 at 18.

Summary judgment in favor of Defendants on the issue of

intentionality isn’t appropriate on this record. As to violations

alleged to have occurred before Atomanczyk received

disciplinary sanction, this conclusion is clear. His grievance

explicitly asserted that he wasn’t permitted to participate in the

Enhanced Jewish Services Program because his disabilities

required that he be housed at Jester III. See Dkt 107-5 at 3–4

(grievance). This means that Defendants certainly knew of those

claims when denying his grievance. Defendants aren’t precluded

from expanding later on argument that circumstances somehow

meant that they weren’t obligated to accommodate him

altogether. But their evidence and legal argument aren’t sufficient

to resolve the issue at this point as a matter of law.

Even as to violations alleged to have occurred after

Atomanczyk received disciplinary sanction, disputes of material

fact exist. Evidence certainly exists in favor of Defendants that

they transferred Atomanczyk from Jester III and the other

locations for reasons of discipline, not disability. But the facts are

muddled on this issue, with neither party clearly explaining them.

For example, the parties don’t address whether the medical

restrictions identified by UTMB in December 2015 still apply to

Atomanczyk and/or factor into decisions on where to house him.

Also unaddressed is the capacity of the Hughes and Polunsky

units (which don’t participate in the Jewish Services Program at

all) to accommodate pertinent medical restrictions, to the extent

such accommodations are still needed. And in this respect, it’s

also impossible to tell the extent to which TDCJ transferred

Atomanczyk on the basis of security concerns versus health

concerns. It may be that the overriding or predominant cause of

the transfers was always the disciplinary infractions. But it could

also be that TDCJ transferred Atomanczyk to Stiles and Jester III

(which participate only in the Basic Jewish Services Program) and

to Hughes and Polunsky (which don’t participate in the Jewish

Services Program at all) in meaningful part because of health

restrictions. If the latter is true, it could then be that

Atomanczyk’s access to Jewish services was limited because of

his disability.

The underlying facts and legal argument on this point are far

from clear. And so it is the burden on Defendants that defeats

them, for they haven’t adequately shown the absence of genuine

disputes of material fact supporting entitlement to judgment as a

matter of law.

C. Physical injury

The parties dispute whether Atomanczyk sustained a

physical injury from the pertinent violations. Atomanczyk states

in his declaration that he refused to eat the food that he believes

to be insufficiently kosher, and that this caused him to experience

extreme weight fluctuations. He also avers that the diet

aggravated his small fiber neuropathy and other physical

conditions. See Dkt 109-2 at ¶¶ 25–31 (Atomanczyk declaration);

see also Dkt 116 at 25–26.

Defendants previously moved for judgment on the pleadings

as to this absence-of-injury issue. See Dkt 65. Judge Sim Lake

addressed that motion when this case was assigned to him. He

observed, “The Fifth Circuit has left open the possibility that a

denial of adequate nutrition that places an inmate’s health at risk,

such as weight loss or ‘other adverse physical effects,’ could meet

the threshold showing of harm that is actionable.” Dkt 70 at 11,

quoting Berry v Brady, 192 F3d 504, 508 (5th Cir 1999). As such,

he denied the motion, finding that judgment for Defendants on

the complaint wasn’t warranted.

Defendants now seek summary judgment, arguing that

they’ve proven Atomanczyk didn’t suffer physical injury. Without

much elaboration, they assert, “In this motion, TDCJ now proves

that it provides him with nutritionally adequate kosher food. His

request for damages . . . must be dismissed.” Dkt 107 at 14. They

provide evidence substantiating the food provided. See id at 22,

citing Dkts 107-6 (Logan affidavit), 107-8 (affidavit of defense

expert Dr Brittany Crim). Atomanczyk argues to the contrary that

he lost between thirty and forty pounds during the time that he

refused to eat the provided food of allegedly insufficient kosher

certification. See Dkts 109-2 at ¶¶ 30–31 (Atomanczyk

declaration), 109-4 at 6–7 (Kass expert report). This, he says,

establishes that he suffered more than a de minimis injury, as does

his evidence that he “suffered weakness, light-headedness, an

inability to concentrate, memory loss, worsening problems with

his equilibrium,” as well as “additional injuries related to his

neurological restriction.” Dkt 116 at 26.

Summary judgment isn’t appropriate on this issue of

physical injury. At a minimum, evidence from Defendants to

substantiate the quantity and quality of the food they provide

Atomanczyk is only relevant if he wasn’t entitled to reject the

food on religious grounds—a point that isn’t yet resolved.

Beyond this, Atomanczyk has certainly produced at least some

evidence that he suffered more than just weight loss from the

allegedly inadequate meals. And even as to weight loss alone,

evidence of a weight swing of over thirty pounds is certainly

pertinent under Fifth Circuit precedent. See Berry, 192 F3d at 508.

iii. Failure-to-accommodate theory

Beyond prohibition of discrimination on the basis of

disability, the ADA and the Rehabilitation Act “impose upon

public entities an affirmative obligation to make reasonable

accommodations for disabled individuals.” Smith, 956 F3d at 317,

quoting Bennett-Nelson v Louisiana Board of Regents, 431 F3d 448,

454 (5th Cir 2005). To establish a prima facie case on such claim, a

plaintiff must show that he is a qualified individual with a

disability, the disability and its consequential limitations were

known by the covered entity, and the entity failed to make

reasonable accommodations. Smith, 956 F3d at 317, quoting Ball v

LeBlanc, 792 F3d 584, 596 n 9 (5th Cir 2015).

Atomanczyk appears to assert a failure-to-accommodate

claim. Dkt 21 at ¶¶ 32–36. Neither of the motions for summary

judgment address this theory beyond the points argued as to

discrimination. As such, it will also proceed.

b. Claims under the Religious Land Use and

Institutionalized Persons Act

Atomanczyk claims that several of the policies implemented

by Defendants unlawfully limit his observance of Jewish religious

practices in violation of the Religious Land Use and

Institutionalized Persons Act of 2000. Dkt 21 at ¶¶ 28–31. He

requests injunctive relief ordering them to adopt policies

conforming with his requests.

The pertinent statutory text provides:

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institu-

tion . . . 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 govern-

mental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 USC § 2000cc-1(a)(1)–(2).

The Fifth Circuit instructs that RLUIPA requires a burden-

shifting analysis. The plaintiff must initially show that the

challenged government practice imposes a substantial burden on

his or her religious exercise. If shown, “the burden shifts to the

government ‘to show that its action or policy is the least

restrictive means of furthering a compelling interest.’” Brown v

Collier, 929 F3d 218, 229 (5th Cir 2019), quoting Chance v Texas

Department of Criminal Justice, 730 F3d 404, 410 (5th Cir 2013); see

also Holt v Hobbs, 574 US 352, 364, 368–69 (2015).

RLUIPA defines religious exercise to mean “any exercise of

religion, whether or not compelled by, or central to, a system of

religious belief.” 42 USC § 2000cc-5(7)(A). Implied within this is

a requirement that the religious belief be sincerely held. See

Moussazadeh v Texas Department of Criminal Justice, 703 F3d 781, 790

(5th Cir 2012), citing United States v Seeger, 380 US 163, 185 (1965).

A substantial burden is imposed on religious exercise where the

government practice “truly pressures the adherent to significantly

modify his religious behavior and significantly violate his religious

beliefs.” Adkins v Kaspar, 393 F3d 559, 569–70 (5th Cir 2004). A

violation is significant in this regard “when it either (1) influences

the adherent to act in a way that violates his religious beliefs, or

(2) forces the adherent to choose between, on the one hand,

enjoying some generally available, non-trivial benefit, and, on the

other hand, following his religious beliefs.” Id at 570, citing

Sherbert v Verner, 374 US 398 (1963), and Thomas v Review Board of

the Indiana Employment Security Division, 450 US 707 (1981). By

contrast, a government practice imposes no substantial burden

“if it merely prevents the adherent from either enjoying some

benefit that is not otherwise generally available or acting in a way

that is not generally allowed.” Adkins, 393 F3d at 570, citing

Lyng v Northwest Indian Cemetery Protective Association, 485 US 439

(1988). This is a fact-intensive inquiry that requires a case-by-case

analysis. Turner v Texas Department of Criminal Justice, 836 F Appx

227, 230 (5th Cir 2021, per curiam), citing Adkins, 393 F3d at 571.

As to defining a compelling governmental interest in the religious-

exercise context, the Supreme Court stresses, “The essence of all

that has been said and written on the subject is that only those

interests of the highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of religion.”

Wisconsin v Yoder, 406 US 205, 215 (1972). Both the Supreme

Court and the Fifth Circuit have returned to this articulation in

recent years. See Fulton v City of Philadelphia, 141 S Ct 1868, 1881

(2021), quoting Church of the Lukumi Babalu Aye v City of Hialeah,

508 US 520, 546 (1993), in turn quoting Yoder, 406 US at 215;

McAllen Grace Brethren Church v Salazar, 764 F3d 465, 472 (5th Cir

2014) (quoting Yoder). The Fifth Circuit likewise observes, “In

this highly sensitive constitutional area, only the gravest abuses,

endangering paramount interests, give occasion for permissible

limitation.” Combs v Central Texas Annual Conference of United

Methodist Church, 173 F3d 343, 346 (5th Cir 1999) (quotation

omitted). This consists of a “‘focused inquiry’ that requires the

government to demonstrate that its policy ‘actually furthers’ a

compelling interest when applied to ‘the particular claimant

whose sincere exercise of religion is being substantially

burdened.”’ Tucker v Collier, 906 F3d 295, 302–03 (5th Cir 2018),

quoting Holt, 574 US at 363–64. Indeed, the Supreme Court

instructs that courts “cannot rely on broadly formulated

governmental interests,” but rather must scrutinize “the asserted

harm of granting specific exemptions to particular religious

claimants.” Mast v Fillmore County, --- S Ct ---, 2021 WL 2742817

(Gorsuch, J, concurring in decision to grant, vacate, and remand),

quoting Fulton, 141 S Ct at 1881, in turn quoting Gonzales v

O Centro Espirita Beneficiente Uniao do Vegetal, 546 US 418, 431

(2006).

Reference to the least restrictive means requires the government

to show “that it lacks other means of achieving its desired goal

without imposing a substantial burden on the exercise of religion

by the objecting parties.” Burwell v Hobby Lobby, 573 US 682, 728

(2014). Such showing is “the most demanding test known to

constitutional law.” City of Boerne v Flores, 521 US 507, 534 (1997)

(citation omitted). Under RLUIPA, this means that the chosen

policy must be the “least restrictive of [the prisoner’s] right to

exercise his religious beliefs ‘among available, effective,

alternatives.”’ Moussazadeh, 703 F3d at 795, quoting Ashcroft v

American Civil Liberties Union, 542 US 656, 666 (2004). A court

shouldn’t “assume a plausible, less restrictive alternative would

be ineffective.” United States v Playboy Entertainment Group, Inc,

529 US 803, 824 (2000). It is instead part of the burden on the

government to affirmatively establish that alternatives are

ineffective. Ali v Stephens, 822 F3d 776, 786 (5th Cir 2016). “Put

another way, so long as the government can achieve its interests

in a manner that does not burden religion, it must do so.” Fulton,

141 S Ct at 1881.

Atomanczyk moves for summary judgment on the issue of

whether he sincerely holds his religious beliefs. He and

Defendants both move for summary judgment on the merits as

to each of the alleged religious violations.

i. Sincerity

Atomanczyk seeks summary judgment that he sincerely

holds his religious beliefs. Dkt 109 at 17–19. Defendants oppose

summary judgment in this respect. Dkt 114 at 7–8.

Inquiry into religious sincerity is constrained. The Fifth

Circuit requires district courts to exercise “judicial shyness” when

addressing this question. Betenbaugh v Needville Independent School

District, 611 F3d 248, 262 (5th Cir 2010). This means that sincerity

is “generally presumed or easily established.” Moussazadeh,

703 F3d at 791. It certainly isn’t the place of federal, state, or local

government to dictate how religion should be practiced or to

define who is and isn’t devout. As observed by the Supreme

Court, “Men may believe what they cannot prove. They may not

be put to the proof of their religious doctrines or beliefs.” United

States v Ballard, 322 US 78, 86 (1944).

Scrutiny of the religious sincerity of a plaintiff is “almost

exclusively a credibility assessment.” Moussazadeh, 703 F3d at 792,

quoting Kay v Bemis, 500 F3d 1214, 1219 (10th Cir 2007). When

contested, the issue depends strongly upon the specific facts of

the case. The narrow question is whether the plaintiff personally

believes that the desired religious practices are deeply important.

See Sossamon v Lone Star State of Texas, 560 F3d 316, 332–33

(5th Cir 2009).

Defendants resist summary judgment on this issue by

pointing to an instance where Atomanczyk temporarily changed

his religious preference from Orthodox Jewish to Messianic

Jewish, with the latter being (at least according to the TDCJ) a

sect of Christianity. Dkt 114 at 7–8. This fluctuation, they say,

shows Atomanczyk isn’t a sincere member of the Jewish faith.

Defendants also point to Atomanczyk’s failure to request a

transfer back to Stringfellow. By this they mean that if he

seriously wanted to participate in the Enhanced Jewish Services

Program, he would have sought to have his medical restrictions

reassessed. Those two perceived inconsistencies “are not merely

inevitable lapses in faith that all religious people suffer,”

Defendants argue, but instead “are evidence that he is

perpetuating a fraud.” Id at 8.

Decision by the Fifth Circuit in Moussazadeh largely

forecloses such argument. See 703 F3d at 790–91. The

government there contested the sincerity of the plaintiff’s Jewish

practice because he’d purchased non-kosher food from the

dining hall and had failed to request a transfer from Stiles to

Stringfellow. 703 F3d at 791. To the contrary, that prisoner was

born and raised Jewish, had requested kosher meals, and regularly

practiced Judaism while incarcerated. The Fifth Circuit found

plaintiff to have established sincerity as a matter of law, stating,

“A finding of sincerity does not require perfect adherence to

beliefs expressed by the inmate, and even the most sincere

practitioner may stray from time to time.” Ibid. And it was of

note that the government hadn’t challenged sincerity until the

lawsuit. Id at 791–92.

This case presents similar circumstances and so deserves a

similar result. Ample evidence exists that Atomanczyk has long

been a member of the Jewish faith. His parents are Jewish,

meaning that he practiced the religion (including a kosher diet) as

he grew up. Dkt 109-2 at ¶¶ 2–3 (Atomanczyk declaration). He’s

also practiced Judaism in meaningful ways since his incarceration.

Id at ¶¶ 5–8. Atomanczyk also argues that the supposed evidence

of his insincerity is insignificant. For one thing, the TDCJ

considered him to be Jewish prior to this lawsuit, including

explicit recognition of that religious faith preference and allowing

him to participate in the Enhanced and Basic Jewish Services

Programs. See Dkt 107-3 at 3 (Rutledge affidavit). He

acknowledges temporarily changing his religious preference but

establishes that this was in response to a falling out with his rabbi

for “not being sufficiently zealous himself.” Id at 9; see also Dkt

109-2 at ¶¶ 12–13. And the supposed failure to request transfer

to Stringfellow is plainly insufficient to raise a contested issue.

Moussazadeh, 703 F3d at 791–92.

It is told that David sent Uriah the Hittite to die in battle at

the front of a great war so that David might marry Bathsheba,

Uriah’s wife. The consequences were devastating, but David

sincerely repented and was ultimately forgiven. See 2 Samuel,

chapters 11 & 12; see also Psalm 32. Likewise is Saul of Tarsus, a

chief persecutor of the early Christians. He put many to their

death before his conversion on the road to Damascus, after

which he lived out his life in travels and writings as the Apostle

Paul. See Acts, chapter 9. Examples such as these abound, once

leading the Seventh Circuit to observe that “a sincere religious

believer doesn’t forfeit his religious rights merely because he is

not scrupulous in his observance; for where would religion be

without its backsliders, penitents, and prodigal sons?” Grayson v

Schuler, 666 F3d 450, 454 (7th Cir 2012); see also Moussazadeh, 703

F3d at 791–92 (quoting Grayson).

Religious belief in this country isn’t to be taken lightly, even

that of a prisoner convicted of the gravest crime. And no genuine

dispute of material fact actually exists here as to the sincerity of

Atomanczyk’s religious beliefs. Summary judgment will be

granted in his favor on this issue.

ii. Substantive violations

Atomanczyk asserts several substantive RLUIPA violations

pertaining to denials of stringently certified kosher food,

participation in communal prayer services, access to rabbinic

visits, and access to undefined chaplaincy services. Atomanczyk

and Defendants seek summary judgment on all violations, thus

requiring an analysis as to each of substantial burden, compelling

governmental interest, and least restrictive means.

Summary judgment will be denied in full on each violation

due to failure by both motions to meet the Rule 56 standard. The

only question that can be resolved now as a matter of law is

whether prison safety and security is a compelling governmental

interest. It is. But beyond that, this case presents many

complicated factual and legal issues, which the record and

arguments don’t clearly resolve. Where this is so, the better

course is to proceed to a full trial. See Northbrook Indemnity

Insurance Co v Water District Management Co, 892 F Supp 170, 172

(SD Tex 1995), quoting Anderson, 477 US at 255; see also Charles

Alan Wright and Arthur R. Miller, Federal Practice and Procedure

§ 2728 (West 4th ed April 2021 update).

A. Kosher food

Atomanczyk seeks summary judgment on his contention

that he’s denied kosher food of sufficient preparation.

Defendants move for summary judgment on assertion that they

do provide him kosher food and haven’t imposed a substantial

burden on Atomanczyk’s religious practice by failing to provide

the precise food that he seeks. Dkt 107 at 27.

As to substantial burden. Since June 2017, the TDCJ has

provided Atomanczyk free entrees from KO Kosher Service.

Atomanczyk rejected these for a time but now eats them out of

concern for his physical health. See Dkt 109-2 at ¶¶ 30–31. He

rejected them on contention that his orthodox sect of Judaism

requires heightened stringency in certifying food as kosher. Rabbi

Marinovsky (as Atomanczyk’s expert) points to the international

Association of Kashrus Organizations, which describes its

membership as “based on observance of the highest level of

kashrus possible.” Dkt 109-3 at 4 (expert report). And,

Marinovsky notes, KO Kosher Service isn’t included in the

AKO’s list of approved hechshers. Dkt 109-12 at 3–6 (deposition).

Defendants move for summary judgment on this issue, while

disagreeing with the characterization by Atomanczyk that they’re

denying him kosher food. They submit the affidavit of Jonathon

Logan, the TDCJ kitchen captain to establish that the entrees

provided to Atomanczyk from KO Kosher Service are kosher-

certified and nutritionally sufficient. Dkt 107-6 at 2–4. He

specifies the food provided to Atomanczyk as follows:

Mr. Atomanczyk receives a “Johnny sack” for

breakfast that generally consists of milk, cereal,

fruit, 4 oz. peanut butter, two packets of jelly,

sliced bread, coffee, and a fruit bar; and

provides 1500 to 1700 calories of energy.

His lunch “Johnny sack” generally consists of a

shelf stable entree, vegetable cup, drink mix

packet, sliced bread, 4 oz. of peanut butter, a

box of cereal, and a sandwich; and provides

1840–1940 calories of energy.

For dinner, “Johnny sack” generally consists of

a shelf stable entree, vegetable cup, drink mix

packet, sliced bread, 4 oz. of peanut butter,

cereal, and a sandwich; and provides 1840–1960

calories of energy. . . . His shelf stable entrees,

etc. may be heated in his hot pot.

Id at 3 (internal citation omitted). A Johnny sack is a package of

food provided to those in administrative segregation. Ibid.

Defendants highlight the fact that they provide other food that

Atomanczyk accepts, believing it to be sufficiently kosher. That’s

all they’re required to do, they say. Dkt 114 at 12.

The KO Kosher Service entrees that Atomanczyk refuses as

insufficiently kosher are the so-called shelf-stable entrees in the list

above. These consist of various ready-to-eat meals, like sweet and

sour vegetable protein slice, chili, and stew. See id at 9, 11, 13.

Atomanczyk also says that the amount of peanut butter he can

eat is limited due to digestive issues. And so, before he began

eating the KO entrees, he only ate “some of this food, such as

the fruit & grain bars and bowls of cereal, which both have

Orthodox hechshers on the individual packaging.” Dkt 109-2

at ¶ 29. That food by itself is, according to Atomanczyk, plainly

insufficient from a dietary perspective. He thus argues that

Defendants’ overall policy with regard to providing him food

imposes a substantial burden on his religious practice.

It’s beyond contest that fidelity to a kosher diet is deeply

important to the practice of many adherents to the Jewish faith.

See generally Ran-Dav’s County Kosher, Inc v New Jersey, 608 A2d

1353, 1355–56 (NJ 1992). And unlike the provision of religious

items, for instance, the provision of kosher food by its nature

concerns “an essential benefit given to every inmate, regardless

of religious belief.” Moussazadeh, 703 F3d at 793–94. This means

that the outright denial of kosher food to Jewish inmates imposes

a substantial burden on their religious practice. See ibid; see also

Baronowski v Hart, 486 F3d 112, 125 (5th Cir 2007).

But this case doesn’t involve an outright denial of kosher

food. It instead concerns a request for specialized religious food.

And as an initial matter, the parties fail to sufficiently develop the

record to definitively establish whether—and the extent to

which—the provision of food “truly pressures” Atomanczyk “to

significantly modify his religious behavior and significantly

violate his religious belief.” Adkins, 393 F3d at 569–70. To what

extent does Atomanczyk’s particular sect of Judaism actually

require what he demands? To what extent has that alleged

requirement actually been violated? How difficult would it be for

the TDCJ simply to meet that requirement? What options are

available to Atomanczyk to work around what he alleges has been

denied to him? The parties have starkly different factual takes on

these questions. Such material disputes of fact preclude summary

judgment for either party as to whether Defendants’ policy for

providing kosher food to Atomanczyk substantially burdens his

religious practice.

As a related matter, the parties don’t sufficiently address the

underlying question of law here or apply it to the undisputed

(supposedly, from each of them) material facts. Neither party

makes a sustained argument to affirmatively establish whether

RLUIPA requires the government to accommodate the nuanced

dietary requirements of a particular religious sect, including

Atomanczyk’s particular sect of Judaism. Even light research

discloses that federal courts are divided on the issue of requests

by prisoners for specialized religious food.

It appears that most have concluded that a failure by state

governments to provide such food to accommodate the tenets of

a specific religious sect could impose a substantial burden. For

example, see Jones v Carter, 915 F3d 1147, 1151–52 (7th Cir 2019)

(affirming judgment in favor of claim following bench trial);

Carter v Fleming, 879 F3d 132, 140 (4th Cir 2018) (reversing

summary judgment against claim and remanding); Shakur v

Schriro, 514 F3d 878, 888–89 (9th Cir 2008) (same); Williams v

Annucci, 895 F3d 180, 185, 188 (2d Cir 2018) (vacating summary

judgment against claim and remanding); Abdulhaseeb v Calbone,

600 F3d 1301, 1312–19 (10th Cir 2010) (same); Muhammad v

Wheeler, 171 F Supp 3d 847, 849–50, 854–55 (ED Ark 2016)

(denying summary judgment); Abdul-Aziz v Lanigan, 2020 WL

3287229, *11–15 (D NJ) (same). But some have refused to

require governments to provide a particularly nuanced version of

religious food. For example, see Patel v United States Bureau of

Prisons, 515 F3d 807, 810–14 (8th Cir 2008) (affirming summary

judgment against claim); Hudson v Caruso, 748 F Supp 2d 721,

729–30 (WD Mich 2010) (granting summary judgment); Boyd v

Lehman, 2006 WL 1442201, *1–2, 10 (WD Wash) (same). Indeed,

the Sixth Circuit has issued opinions going both ways, in a

manner placing in bright relief the fact-intensive nature of this

inquiry. Compare Pleasant-Bey v Tennessee Department of Correction,

2019 WL 11880267, *3 (6th Cir) (finding fact dispute on

substantial burden on denial of nuanced halal food, where

standard halal menu violated ordinary halal rules), with Robinson v

Jackson, 615 F Appx 310, 313–14 (6th Cir 2015) (finding no

substantial burden on denial of nuanced halal food, where

standard halal menu was compliant with ordinary halal rules).

The Fifth Circuit hasn’t addressed the issue yet. But see

Morris v Lumpkin, 850 F Appx 318 (5th Cir 2021) (declining to

reach claim where not originally raised in complaint). And only

two district courts within it have, in cases involving specialized

requests for kosher food under particular Jewish practice. See

Muhammad v Wiles, 2020 WL 1234946 (WD Tex); Palacio v Party,

2020 WL 5233031 (SD Tex). But those decisions were decided

on application for temporary restraining order, making them less

helpful here. For example, Palacio concluded that the likelihood

of success on the merits couldn’t be determined without any

discovery having occurred, due to the fact-intensive nature of the

issue. See 2020 WL 5233031 at *1. And while Muhammad found

little likelihood of success on the merits, it did so mainly on

consideration of standards pertinent to a claim asserted there

under the First Amendment, which is absent here and proceeds

under a different standard. See 2020 WL 1234946 at *4–5, citing

Freeman v Texas Department of Criminal Justice, 369 F3d 854, 857 n 1

(5th Cir 2004) (as to standards under the First Amendment).

Neither district court had occasion to consider summary-

judgment evidence or conduct the full burden-shifting analysis

that RLUIPA requires.

The parties are directed to address standards in this regard

much more closely in pretrial briefing.

As to compelling governmental interest. The foregoing blurs

somewhat into the unclear positions of the parties as to

compelling governmental interest. As alternatives to the present

arrangement, Atomanczyk suggests Defendants purchase kosher

entrees with other hechshers or install a kosher kitchen at Polunsky.

Dkt 109 at 24–25. Defendants don’t state it outright, but their

assertion of compelling interest for denying those requests

appears to be one of cost. That is, they say it would be too

burdensome to force the TDCJ to pay for either of Atomanczyk’s

suggested alternatives. See Dkt 114 at 11–13.

Pertinent here is Fifth Circuit pronouncement that a general

“interest in security and costs” isn’t a compelling governmental

interest. Ali, 822 F3d at 785 (citation omitted). Rather, “the

government must show that ‘the compelling interest test is

satisfied though application of the challenged law to the person—

the particular claimant whose sincere exercise of religion is being

substantially burdened.” Ibid, quoting Holt, 574 US at 363.

Summary judgment will be denied for Atomanczyk on this

issue. He fails to establish the precise cost of either of his

suggested alternatives. See Dkts 109 at 23–25, 114 at 11–13. He

addresses this topic briefly, pointing to the deposition of Douglas

Sparkman, who is the TDCJ assistant director of Laundry, Food,

and Supply and a defense expert. Dkt 109 at 24–25, citing

Dkt 109-14 at 6 (Sparkman deposition). But this is cursory, being

entirely without context or comparison. Absent details, it is

impossible to tell whether the governmental interest is

compelling as applied to the specific circumstances of

Atomanczyk’s diet.

As to least restrictive means. Neither party addresses whether

Defendants’ policy of providing Atomanczyk with entrees

prepared by KO Kosher Service is the least restrictive means to

effect the asserted compelling governmental interest. But as aptly

and recently stated by Justice Neil Gorsuch, “RLUIPA prohibits

governments from infringing sincerely held religious beliefs and

practices except as a last resort.” Mast, --- S Ct ---, 2021 WL

2742817 at *3 (Gorsuch, J, concurring).

Summary judgment will be denied on this issue.

B. Communal prayer services

Defendants at present don’t permit Atomanczyk to

participate in communal prayer services on assertion that he must

remain in administrative segregation. Atomanczyk moves for

summary judgment, contending that this improperly denies him

participation in those services. Defendants move for summary

judgment, asserting that it has a compelling governmental interest

in prison safety and security and that their policy is the least

restrictive means by which to serve that interest. Dkt 107 at 29.

As to substantial burden. Defendants deny that their policy

imposes a substantial burden on Atomanczyk’s religious practice.

The failure to provide access to religious services, they say, is

different than the failure to provide religious food that conforms

with religious requirements. Food is a biological need and must

therefore be provided in all instances. But nothing in RLUIPA

requires the government to affirmatively provide or subsidize

nonessential religious practice. See Dkt 114 at 19–21, quoting

Abdulhaseeb v Calbone, 600 F3d 1301, 1320 (10th Cir 2010).

Atomanczyk disagrees, arguing that “Jewish law places great

emphasis on communal prayer.” Dkt 109 at 27. To deny him this,

he says, imposes a substantial burden on his religious practice.

It’s again beyond contest that dedication to daily and weekly

congregation for prayer and other religious activities is deeply

important to the practice of many adherents to the Jewish faith.

See Baronowski, 486 F3d at 124. But the Fifth Circuit holds that

the failure to provide unfettered opportunities to congregate

doesn’t necessarily impose a substantial burden. See id at 124–25,

citing Adkins, 393 F3d at 569–70. Even so, it also strongly

suggests that a policy affirmatively prohibiting such congregation

would do so. Adkins, 393 F3d at 571.

It does appear that Defendants affirmatively prohibit

Atomanczyk from participating in the pertinent services by

keeping him in administrative segregation. But it isn’t clear

whether this situation is more akin to an affirmative prohibition

on access to an opportunity or to a passive failure to provide an

opportunity. See Adkins, 393 F3d at 569–71; Baronowski, 486 F3d

at 124. For instance, formal programs for the practice of Jewish

beliefs are provided only at Stringfellow, Jester III, Stringfellow,

Stiles, and Wynne—not Polunsky, where Atomanczyk is

currently housed. See Dkt 110-1 at 3 (TDCJ chaplaincy manual).

But TDCJ guidance generally allows for the scheduling of

religious activities at other units such as Polunsky—subject to

unit rules and regulations. See Dkt 110-3 at 5–7 (TDCJ memo on

religious programming). And the rules pertaining to the Polunsky

unit simply aren’t explained, much less the circumstances of any

requests by Atomanczyk (or denials by Defendants) to participate

in such services. Likewise, the details of Atomanczyk’s

confinement aren’t apparent from the present record, leaving it

uncertain what administrative segregation entails, what type of

contact is allowed, how often, and for what purposes.

In other words, it’s impossible to determine whether

Defendants have imposed a substantial burden because it’s not

fully clear what’s even been imposed. Summary judgment must

be denied for Atomanczyk on the present record.

As to compelling governmental interest. Defendants assert that the

compelling governmental interest justifying their actions is the

safety and security of other inmates and jail staff. That is, they say

that Atomanczyk can’t be allowed to participate in communal

prayer services for fear that he may hurt someone. See Dkt 107

at 29. Atomanczyk doesn’t respond, thus waiving opposition to

entry of summary judgment on this issue. Rule 7.4, Local Rules

of the United States District Court for the Southern District of

Texas.

The Supreme Court instructs district courts considering

RLUIPA claims in the prison context to be mindful of “an

institution’s need to maintain order and safety” when considering

a prisoner’s request for religious accommodation. Hayman v

Villarreal, 2019 WL 4727757, *3 (SD Tex), quoting Cutter v

Wilkinson, 544 US 709, 722 (2005). Writing for a unanimous

Supreme Court, Justice Ruth Bader Ginsburg explained at length

the special interests present in the context of a RLUIPA claim:

We have no cause to believe that RLUIPA

would not be applied in an appropriately

balanced way, with particular sensitivity to

security concerns. While the Act adopts a

“compelling governmental interest” standard,

context matters in the application of that

standard. Lawmakers supporting RLUIPA were

mindful of the urgency of discipline, order,

safety, and security in penal institutions. They

anticipated that courts would apply the Act’s

standard 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.

544 US at 722–23 (citations omitted).

In other words, “Prison security is, of course, a compelling

state interest.” Dunn v Smith, 141 S Ct 725, 725 (Kagan, J,

concurring in the denial of an application to vacate injunction).

Summary judgment will be entered to that effect.

As to least restrictive means. Atomanczyk argues that an

alternative is readily available—namely, Defendants should install

a closed-circuit video in his cell so that he can participate

remotely in prayer services with other inmates. See Dkt 109 at

27–28. Defendants argue that they aren’t capable of installing

such a video system. See Dkt 114 at 20–21. To the contrary,

Atomanczyk makes much of the fact that Defendants offer other

video programs to inmates. See Dkt 109 at 22–23. But that’s

insignificant, Defendants say, because those programs involve

either prerecorded videos or live conversations with persons who

are present at the Polunsky unit. Prerecorded videos, they argue,

aren’t consistent with Atomanczyk’s request that he participate in

prayer services in real-time. And as to closed-circuit

conversations, Defendants claim that they don’t have the capacity

to stream live communal prayer services occurring at other units,

like Stringfellow or Jester III. Denying him communal prayer

services while he remains in administrative segregation,

Defendants say, is the least restrictive means because it’s the only

one available. Dkt 114 at 20–21.

As noted above, RLUIPA requires that the chosen policy be

the “least restrictive of [the prisoner’s] right to exercise his

religious beliefs ‘among available, effective, alternatives.”’

Moussazadeh, 703 F3d at 795, quoting Ashcroft, 542 US at 666. The

Supreme Court cautions that the analysis not “assume a plausible,

less restrictive alternative would be ineffective.” Playboy

Entertainment Group, 529 US at 824 (2000); see also Ali, 822 F3d

at 786. Notably, briefing by the parties closed prior to the

COVID-19 pandemic. It’s now beyond any real question that

adequate video-conferencing services are readily available in

certain prison contexts. For example, both rearraignments and

sentencings in the Southern District of Texas largely proceeded

exclusively by video connection to prisoners at holding facilities,

with adequate provision made for both security concerns and

protection of prisoner rights.

Summary judgment will be denied. The parties must at trial

focus presentation on the ability within the prison system—in

mind of safety and security obligations—to allow for the

accommodation requested by Atomanczyk.

C. Rabbi visits

Atomanczyk seeks summary judgment on his contention

that Defendants should be required to pay for a rabbi to visit

Polunsky, as they do for Stringfellow, Jester III, Stiles, and

Wynne. Defendants move for summary judgment on assertion

that they haven’t imposed a substantial burden on Atomanczyk’s

religious practice because they aren’t obligated to pay rabbis to

visit Polunsky. Dkt 107 at 30.

As to substantial burden. It can be assumed that rabbinic visits

are deeply significant to Atomanczyk’s religious practice such

that its outright denial would impose a substantial burden.

Indeed, neither party addresses whether the failure to provide

rabbi visits “truly pressures” Atomanczyk to “significantly

modify his religious behavior and significantly violate his religious

beliefs,” such that substantial burden can be found. Adkins,

393 F3d at 569–70. They instead simply appear to assume this

point.

Defendants respond on a collateral point, noting that they

don’t affirmatively deny such visits. They argue that RLUIPA

only requires them to refrain from imposing substantial

burdens—with no additional requirement imposed to bear the

cost of affirmatively making such accommodations. They’d

gladly allow rabbis to visit Polunsky, they say, but none have

volunteered. See Dkt 114 at 19.

It is generally correct that a government entity doesn’t

impose a substantial burden where it merely fails to provide a

religious item or service. Moussazadeh, 703 F3d at 793–94; see also

Abdulhaseeb, 600 F3d at 1321. And the Fifth Circuit has explicitly

applied this rule in the context of providing access to minister-

led religious services. See Baronowski, 486 F3d at 124–25; Adkins,

393 F3d at 571; Mayfield, 529 F3d at 613–14. Such decisions

establish that it will ordinarily be proper for the TDCJ to

implement a nondiscriminatory policy allowing volunteer

ministers to administer religious services. Brown, 929 F3d at 230.

This is so because it is “the lack of qualified volunteers” that

imposes the substantial burden on religious practice—not the

pertinent government policy. Id at 231.

This all assumes that the volunteer-minister policy is

administered uniformly. There’s at least some evidence

suggesting that Defendants apply their policy of providing access

to religious ministers in disparate ways. That is, it’s undisputed

that the TDCJ pays for rabbis to visit some prisons but not

others. See Dkt 110-1 at 3–4 (TDCJ chaplaincy manual).

Atomanczyk also points to Defendants’ motion, noting that they

say it would cost (only, in Atomanczyk’s view) $3,600 a year to pay

a rabbi to visit Polunsky. Dkt 116 at 13–14. But that figure lacks

context in relation to the cost of visits to other units.

As such, this claim bears similarities to that considered by the

Fifth Circuit in Mayfield v Texas Department of Criminal Justice.

Odinist inmates there sought to conduct minister-led religious

services each month. Not many ministers met the TDCJ’s

security-training requirements, so qualified ministers were only

able to visit the prison roughly every eighteen months. This by

itself didn’t pose a problem. 529 F3d at 614. But evidence

suggested that the TDCJ made exceptions to the volunteer-

minister requirements for Muslim prisoners. As such, the Fifth

Circuit reversed the district court’s grant of summary judgment

on the issue of substantial burden, reasoning that the plaintiff had

“presented evidence which calls into question the uniformity of

the policy’s application at the Hughes Unit, suggesting that the

burden is at least partially imposed by the TDCJ’s disparate

application.” Id at 613–14; see also Brown, 929 F3d at 231.

Summary judgment will be denied. It may well be the case

that Atomanczyk’s failure to receive rabbi visits is properly

attributed to the lack of qualified volunteers. But the parties must

develop the record with regard to the TDCJ’s policy for

providing ministers for Stringfellow, Jester III, Stiles, and Wynne,

while declining to do so for Polunsky and other prisons.

As to compelling governmental interest. Atomanczyk argues that

Defendants fail to support their policy with any compelling

governmental interest. By that, he means that the supposed

governmental interest is underinclusive because the TDCJ pays for

rabbis to visit Jewish prisoners at some—but not all—prisons.

Dkt 109 at 26–27.

Such argument is in line with Fifth Circuit authority, which

instructs that the governmental interest in denying an

accommodation is “dampened” when the same accommodation

is offered to others. Moussazadeh, 703 F3d at 794–95. “A law’s

underinclusiveness—its failure to cover significant tracts of

conduct implicating the law’s animating and putatively

compelling interest—can raise with it the inference that the

government’s claimed interest isn’t actually so compelling after

all.” Ali, 822 F3d at 785, quoting Yellowbear v Lampert, 741 F3d

48, 60 (10th Cir 2014) (opinion by Gorsuch, J). Where a policy is

underinclusive, “the prison must provide ‘an adequate

explanation for its differential treatment.”’ Ware v Louisiana

Department of Corrections, 866 F3d 263, 269 (5th Cir 2017), quoting

Ali, 822 F3d at 787. Among other ways, a prison may rebut

allegation of underinclusiveness “by showing that it hasn’t acted

in a logically inconsistent way—by (say) identifying a qualitative

or quantitative difference between the particular religious

exemption requested and other . . . exceptions already tolerated.”

Ali, 822 F3d at 787, quoting Yellowbear, 741 F3d at 61.

Defendants don’t respond on this issue, choosing instead to

rely on their argument as to why their policy doesn’t impose a

substantial burden. Dkt 114 at 18–19. As such, concerns as to

underinclusiveness remain. Even so, summary judgment will be

denied to Atomanczyk. The prison policy at issue touches

interests of (at least) safety, security, and cost. A fully developed

record—especially as to the issue of substantial burden—will

better inform whether the apparently underinclusive policy is

consistent with a compelling governmental interest. Ali, 822 F3d

at 787, quoting Yellowbear, 741 F3d at 61.

As to least restrictive means. Neither side addresses whether the

TDCJ’s policy of allowing volunteer rabbis to visit Polunsky,

while declining to pay rabbis to do so, is the least restrictive

means available to effect the State’s compelling governmental

interest (once that interest is properly defined and understood).

Quite obviously, the need for a developed record equally applies

to this consideration. This issue will proceed.

D. Chaplaincy services

Atomanczyk appears to also allege that Defendants are

denying him regular chaplaincy services in violation of RLUIPA.

For example, see Dkt 21 at ¶¶ 1, 29; see also Dkt 109 at 7. It isn’t

clear how this varies (if at all) from his claims as to participation

in communal prayer services and access to rabbinic visits. And it

isn’t otherwise addressed in the motions.

This claim will proceed to the extent asserted.

4. Conclusion

The motion for summary judgment by Defendants Texas

Department of Criminal Justice and Bryan Collier is GRANTED

IN PART and DENIED IN PART. Dkt 107. No genuine dispute of

material fact exists as to prison security being a compelling

governmental interest in the context of Atomanczyk’s claim

regarding participation in communal prayer services under

RLUIPA. The motion is GRANTED to that extent only. It is

DENIED in all other respects.

The motion for summary judgment by Plaintiff Aharon L.

Atomanczyk is GRANTED IN PART and DENIED IN PART.

Dkt 109. No genuine dispute of material fact exists on his

RLUIPA claim as to the sincerity with which he holds his

religious beliefs. The motion is GRANTED to that extent only. It

is DENIED in all other respects.

SO ORDERED.

Signed on July 12, 2021, at Houston, Texas.

Hon. Charles Eskridge

United States District Judge

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