# Atomanczyk v. Texas Department Of Criminal Justice

> District Court, S.D. Texas · July 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10674439

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** July 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674439

## How later opinions describe it (automated extraction)

- noting failure to explain “how or why” sovereign immunity applied
- affirming judgment in favor of claim following bench trial

## Opinion text

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

34

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674439. Public record. Not legal advice.