Turner v. Collier

September 30, 2022

Nathan Ochsner, Clerk

I’M UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

NOEL TURNER, § CIVIL ACTION NO

Plaintiff, § 4:19-cv-04124

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

BRYAN COLLIER, §

et al, §

Defendants. §

OPINION AND ORDER

GRANTING SUMMARY JUDGMENT IN PART AND GRANTING

TEMPORARY INJUNCTIVE RELIEF

The motions by Texas Department of Criminal Justice,

Bryan Collier, David Goldstein, and Timothy Jones for

summary judgment are granted in part and denied in part.

Dkts 94 & 110.

The motion by Noel Turner for preliminary injunctive

relief is granted. Dkt 102.

1. Background

Noel Turner is an inmate at the Texas Department of

Criminal Justice. Dkt 66 at ¶ 1. He contends that he was

born and raised Jewish, that he has earnestly practiced his

faith both before and while in prison, and that this includes

observing a kosher diet. Id at ¶¶ 24–26. He contends, “To

eat non-kosher food damages the soul/spiritual aspect of

the individual. It is a sin/transgression of Biblical

Commandments.” Dkt 13 at 14. To this end, and due to his

status as an indigent inmate, Turner seeks free shelf-

stable kosher meals, a hot pot to heat those meals, and a

storage locker for such items. See Dkt 66 at 20–21.

Turner brought this action pro se in December 2018.

Dkt 1. His filings are thus liberally construed. Erickson v

Pardus, 551 US 89, 94 (2007). Named as defendants are

Texas Department of Criminal Justice (as administrator of

the prison system of the State of Texas), Bryan Collier (as

Executive Director of the TDCJ), Rabbi David Goldstein (as

a contracted rabbi within the TDCJ Chaplaincy

Department), and Timothy Jones (as the TDCJ Deputy

Director of Chaplaincy). See Dkt 66 (second amended

complaint).

The heading of the second amended complaint

suggests that the individual Defendants are sued in their

individual and official capacities. Id at 1. But the pleading

itself suggests that they are sued in their individual

capacity alone. Id at ¶¶ 11, 13–14. Given that Turner

primarily seeks injunctive relief while also suing the TDCJ

in its “individual and official capacities,” it will be assumed

that the individual Defendants are also sued in both

capacities. Regardless, to the extent that they all assert

qualified immunity, it doesn’t “protect officials from

injunctive relief.” Williams v Ballard, 466 F3d 330, 334 n 7

(5th Cir 2006). Defendants will thus be referred to together

as TDCJ.

The TDCJ Chaplaincy Department implements

procedures to facilitate the pursuit of “individual religious

beliefs and practices, consistent with security, safety, and

orderly conditions in the unit.” Dkt 94-4 at 2. To this end,

TDCJ maintains two types of Jewish designated units.

Enhanced Jewish units provide free kosher meals to all

residents. Id at 4. Basic Jewish units make kosher products

available “for purchase at the offender’s expense.” Ibid.

TDCJ currently maintains one enhanced Jewish unit,

which is Stringfellow. It also maintains three basic Jewish

units—Jester III, Stiles, and Wynne. Ibid.

An offender may qualify for the enhanced Jewish unit

in one of three ways. First, if he’s born of a Jewish mother.

Second, if he maintains a Jewish background with

continuous study in the Jewish faith. Or third, if he

converts to Judaism in a manner consistent with Jewish

law. An offender may qualify for a basic Jewish unit if he

satisfactorily completes thirty of forty-five lessons in the

Jewish Interest Correspondence Course and maintains

knowledge of the Jewish faith and sincerely holds that

faith as determined by a Jewish rabbi employed by the

TDCJ. An offender who properly qualifies for either unit

type yet can’t be assigned to that unit because of custody

level, required treatment or educational program, or other

reason may be transferred to another unit “until the

condition preventing transfer changes.” Dkt 94-4 at 5.

Turner was first incarcerated in 1989 for a felony

offense in Angelina County, Texas. Dkt 94-6 at 53. He

asserts that he was placed in Coffield until 1991, at which

time he was transferred to Ramsey II so that he could

participate in Jewish services. TDCJ transferred him to

Stringfellow later that same year. TDCJ then transferred

Turner to Central in 1999, and it soon after transferred

him to Huntsville. Dkts 66 at ¶ 35 & 114 at 6. In 2004

during the same prison sentence, Turner received two

medical restrictions that limited him to single-level

facilities. Dkt 94-6 at 17; Dkt 66 at ¶ 34. Turner asserts

that despite this designation, he was again transferred to

Stringfellow—a multi-level facility—in 2007 so that he

could participate in its newly implemented kosher food

program. He remained there until he was attacked by

another prisoner. Dkt 66 at ¶ 38; Dkt 13 at 8. TDCJ

thereafter transferred Turner to an unspecified unit, where

he resided until his release in January 2009. Dkts 13 at 8,

66 at ¶ 40 & 94-6 at 53.

Turner’s present incarceration began in June 2013.

Dkt 94-6 at 53. He was assigned to Jester III—a single-

level facility that is, as previously noted, a basic Jewish

unit. Dkt 66 at ¶ 42. But he wasn’t approved for

Stringfellow, the enhanced Jewish unit. Dkt 94-4 at 6–7.

Indeed, his religious classification was erroneously entered

as “unspecified Christian.” Turner altered this

classification immediately upon discovery in October 2013.

Dkt 13 at 16. He was thus allowed to participate in Jewish

programming while housed at Jester III. Dkt 94-4 at 6–7.

Turner first applied for assignment to an enhanced

Jewish-designated unit in 2016. That request was denied

due to his disciplinary history. Dkt 94-2 at 6–9. But Turner

remained at Jester III until October 2018, at which time he

was temporarily transferred to Terrell due to safety

concerns. Dkts 13 at 1 & 94 at 5. Turner in 2019 again

applied to be housed at a Jewish-designated unit in hopes

of returning to Jester III. Dkts 94-2 at 3 & 94-3 at 8. Rabbi

Goldstein approved that request upon determining that

Turner qualified for basic Jewish units but not for the

enhanced Jewish unit. Dkt 94-3 at 4–10. Turner returned

to Jester III on April 26, 2019. Dkts 66 at ¶ 42 & 13 at 1.

But he was again transferred in December 2020 due to

concerns for his safety. Dkt 48 at 1.

Turner currently resides at Powledge, which isn’t a

Jewish-designated unit. But it appears that the unit

nonetheless makes kosher food available for purchase in

the commissary. Dkts 13 & 66 at ¶ 51. Turner alleges that

he’s unable to access that food due to his indigent status.

Dkt 66 at ¶ 51. Indeed, Turner has made multiple requests

for free kosher meals—including filing Step One and Step

Two grievances. See Dkts 13 at 5 & 94-3 at 44. TDCJ has

rebuffed these requests. Dkt 13 at 5–7 & 94–3 at 44. He

consequently brought this action, asserting claims under

the Religious Land Use and Institutionalized Persons Act,

the First Amendment, the Americans with Disabilities Act,

the Texas Religious Freedom Restoration Act. Dkt 1.

Claims for negligence were added in Turner’s First

Amended Complaint. Dkt 35 at 19.

Collier, Goldstein, and TDCJ moved to dismiss in July

2020. Dkt 41. Judge Vanessa D. Gilmore granted the

motion as to the TRFRA and negligence claims but denied

it as to the RLUIPA, ADA, and constitutional claims.

Dkt 52. The motion to dismiss compensatory damages

under the ADA was also granted, but with leave to amend.

Ibid.

Turner filed his second amended complaint in April

2021, adding a Fourteenth Amendment claim and Jones as

a defendant. Dkt 66. Collier, Goldstein, and TDCJ moved

for summary judgment in September 2021. Dkt 94. The

action was reassigned to this Court in December 2021. Dkt

100. Turner moved for a preliminary injunction in January

2022. Dkt 102. Jones moved for summary judgment in June

2022. Dkt 110.

2. Legal standards

a. Summary judgment

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 2020). 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).

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); see also Celotex Corp v Catrett,

477 US 317, 322–23 (1986). 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. 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).

b. Preliminary injunction

A preliminary injunction is an “extraordinary remedy.”

Byrm v Landreth, 566 F3d 442, 445 (5th Cir 2009). Its

purpose is to preserve the status quo during pendency of

the litigation. See City of Dallas v Delta Air Lines Inc, 847

F3d 279, 285 (5th Cir 2017). As stated by the Fifth Circuit,

“The purpose of a preliminary injunction is always to

prevent irreparable injury so as to preserve the court’s

ability to render a meaningful decision on the merits.”

Canal Authority of the State of Florida v Callaway, 489 F2d

567, 576 (5th Cir 1974).

A federal court may generally grant a preliminary

injunction only on a movant’s showing as to the familiar

factors of (i) a substantial likelihood of success on the

merits; (ii) a substantial threat of irreparable harm;

(iii) the balance of equities tips in the applicant’s favor; and

(iv) an injunction is in the public interest. Robinson v Hunt

County, 921 F3d 440, 451 (5th Cir 2019). Once such

findings are made, crafting a preliminary injunction is “an

exercise of discretion and judgment, often dependent as

much on the equities of a given case as the substance of the

legal issues it presents.” Trump v International Refugee

Assistance Project, 137 S Ct 2080, 2087 (2017).

A court issuing a preliminary injunction must provide

findings and conclusions that support its decision.

FRCP 52; see also Ali v Quarterman, 607 F3d 1046, 1048

(5th Cir 2010); Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2949 (Westlaw 2022). But

the preliminary injunction stage is less formal than trial,

and the Supreme Court generally recognizes that “a

preliminary injunction is customarily granted on the basis

of procedures that are less formal and evidence that is less

complete than in a trial on the merits.” University of Texas

v Camenisch, 451 US 390, 395 (1981). A federal court may

thus consider hearsay and similar evidence when deciding

whether to enter a preliminary injunction. See Sierra Club,

Lone Star Chapter v FDIC, 992 F2d 545, 551 (5th Cir 1993).

3. Analysis

The motions by Defendants for summary judgment as

to Turner’s claims under the First Amendment, Fourteenth

Amendment, and ADA will be addressed first. Dkts 94 &

110. Then follows determination of the motion by Turner

for preliminary injunction as it relates to his RLUIPA

claim. Dkt 102.

a. Free exercise of religion

“Lawful incarceration inherently involves the

limitation of many privileges and rights, but prisoners still

benefit from some constitutional protections, including the

First Amendment ‘directive that no law shall prohibit the

free exercise of religion.’” Butts v Martin, 877 F3d 571, 584

(5th Cir 2017), quoting O’Lone v Estate of Shabazz, 482 US

342, 348 (1987). That right has been incorporated against

the states via the Due Process Clause of the Fourteenth

Amendment. Cantwell v Connecticut, 310 US 296, 303

(1940). And it may be enforced against state officials

through 42 USC § 1983.

“Whether a prison regulation impermissibly

encroaches upon a prisoner’s First Amendment rights

depends upon whether it is reasonably related to legitimate

penological interests.” Butts, 877 F3d at 584 (quotation

marks and citation omitted). To that end, courts must

determine:

(i) whether a valid, rational connection

exists between the prison regulation and

the legitimate governmental interest put

forward to justify it, (ii) whether there exist

alternative means of exercising the

fundamental right that remain open to

prison inmates, (iii) what impact accommo-

dation of the asserted constitutional right

will have on guards and other inmates, and

on the allocation of prison resources

generally, and (iv) whether there is an

absence of ready alternative to the

regulation in question.

Brown v Collier, 929 F3d 218, 232 (5th Cir 2019) (quotation

marks omitted), citing Turner v Safley, 482 US 78, 89–90

(1987). “Ultimately, the government objective must be a

legitimate and neutral one.” Butts, 877 F3d at 585

(quotation marks and citation omitted).

The Fifth Circuit has long held that “the denial of a

kosher diet does not violate” the Free Exercise Clause.

Baranowski v Hart, 486 F3d 112, 122 (5th Cir 2007); see

also Kahey v Jones, 836 F2d 948, 950–51 (5th Cir 1988);

Udey v Kastner, 805 F2d 1218, 1221 (5th Cir 1986). This

necessarily means that a policy making kosher meals

available for purchase isn’t a violation either.

Summary judgment will be granted as to Turner’s

claim under the First Amendment.

b. Equal protection of the laws

To succeed on his equal protection claim, a plaintiff

“must prove purposeful discrimination resulting in a

discriminatory effect among persons similarly situated.”

Adkins v Kaspar, 393 F3d 559, 566 (5th Cir 2004)

(quotation marks and citation omitted).

Turner alleges that he’s being discriminated against

due to his disability. He argues that non-disabled

individuals in an enhanced Jewish unit receive free kosher

meals, whereas those who otherwise qualify for such a unit

but can’t be housed there due to a disability aren’t provided

free kosher meals. See Dkt 66 at ¶¶ 137–138.

The argument fails for two reasons. First, the factual

foundation is incorrect. TDCJ has determined that Turner

doesn’t qualify for an enhanced Jewish unit. Dkt 94 at 15.

He thus isn’t similarly situated to those who do qualify for

such a unit. Second, even if equal protection analysis

applied, “disability is not a suspect classification like race,

alienage, or national origin, or a quasi-suspect classifi-

cation like gender.” D.C. v Klein Independent School

District, 711 F Supp 2d 739, 748 (SD Tex 2010), citing City

of Cleburne v Cleburne Living Center, 473 US 432, 442

(1985). And TDCJ easily clears the rational basis analysis

that pertains.

Summary judgment will be granted on Turner’s claim

under the Fourteenth Amendment.

c. American with Disabilities Act

Turner claims he is denied access to free kosher meals

because of his disabilities. And he argues that such a denial

violates the ADA. Dkt 66 ¶¶ 78–80. TDCJ moves for

summary judgment based on Eleventh Amendment

immunity and failure to demonstrate denial of benefit.

Dkt 94 at 17.

i. Eleventh Amendment Immunity

TDCJ presents only a brief argument that the ADA

claim brought by Turner is barred by Eleventh

Amendment immunity. Dkt 94 at 17–18. The applicability

of such a 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).

The claim by Turner clearly fails on an essential

element of an ADA claim—that being that he was not

prevented from participating in the enhanced designated

unit because of his disability. The question of Eleventh

Amendment immunity needn’t be addressed.

ii. Denial of a benefit

To prevail on an ADA claim, a plaintiff must show that

his exclusion from a service was based upon his disability.

Davidson v Texas Department of Criminal Justice, 91 F

Appx 963, 965 (5th Cir 2012); see also Melton v Dallas Area

Rapid Transit, 391 F3d 669, 676 n 8 (5th Cir 2004).

Turner contends that TDCJ is denying his

participation in the free kosher food program due to his

disabilities—specifically, he can’t be housed in Stringfellow

because he’s limited to single-level facilities. Dkt 66 at 9–

10. To the contrary, Turner’s disability isn’t the reason he

wasn’t transferred to an enhanced Jewish unit. He instead

didn’t qualify for such a unit under TDCJ chaplaincy

policy. Dkt 94-4 at 4–5. This means that, even absent his

disability, he still wouldn’t receive the benefit he seeks.

Summary judgment will be granted as to Turner’s

claim under the ADA.

d. Religious Land Use and Institutionalized

Persons Act

TDCJ seeks summary judgment on Turner’s RLUIPA

claim. To the contrary, Turner has demonstrated a

substantial likelihood of success on the merits. This in turn

supports entry of a preliminary injunction in his favor.

Proper framing of Turner’s RLUIPA claim is essential.

TDCJ argues, “Turner cannot show that he is presently

qualified to be housed on an enhanced Jewish designated

unit.” Dkt 94 at 17. But that isn’t Turner’s request. He

doesn’t ask for a transfer or even recognition that he

qualifies for such a transfer. He instead seeks injunctive

relief ordering TDCJ simply to provide him free shelf-

stable kosher meals, a hot pot, and a locker to store such

items—accommodations that will allow him to maintain a

kosher diet without regard to where he’s housed. See Dkts

66 at 20–21 & 98 at 1.

The narrow question at hand, then, is whether

withholding the accommodation actually sought by Turner

violates his RLUIPA rights.

i. Likelihood of success on the merits

RLUIPA provides:

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution . . .

even if the burden results from a rule of

general applicability, unless the govern-

ment demonstrates that imposition of the

burden on that person—

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling governmental

interest.

42 USC § 2000cc-1(a)(1)–(2).

There are, textually, four main points of inquiry:

o Whether the practice at issue and the

attendant, requested accommodation impli-

cates a religious exercise within the meaning of

RLUIPA;

o Whether the subject governmental policy

imposes a substantial burden on the specified

religious exercise;

o If so, whether a compelling governmental

interest supports the burden imposed; and

o If so, whether that interest is being imple-

mented by the least restrictive means.

Related to the first inquiry is another, implicit one:

o Whether the complaining party is sincere in his

observance of the subject religious practice and

attendant request for accommodation.

Holt v Hobbs, 574 US 352, 360–62 (2015); Moussazadeh v

Texas Department of Criminal Justice, 703 F3d 781, 790 &

794–95 (5th Cir 2012).

RLUIPA requires a burden-shifting analysis. See

42 USC § 2000cc-1(a). A plaintiff must initially show that

the challenged government practice imposes a substantial

burden on his or her religious exercise. Ramirez v Collier,

142 SCt 1264, 1277 (2022). If shown, “the burden flips,”

with the government then required to demonstrate that the

burden imposed is the least restrictive means of furthering

a compelling governmental interest. Ibid (quotation marks

and citation omitted); see also Brown v Collier, 929 F3d

218, 229 (5th Cir 2019).

Turner argues that the denial of free kosher food places

a substantial burden on his religious exercise. Dkt 66 at

¶¶ 111, 145. TDCJ contests the sincerity of Turner’s beliefs

and argues that their existing policy is the least restrictive

means of furthering a compelling government interest.

A. Religious exercise

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).

Kosher food is well-recognized practice by members of the

Jewish faith. TDCJ doesn’t dispute this. See Dkt 94 at 13–

17. As such, the accommodation by which Turner seeks to

maintain a kosher diet must be deemed to meet the

definition of religious exercise under RLUIPA.

B. Sincerity

The Supreme Court instructs that a prisoner’s

requested accommodation “must be sincerely based on a

religious belief and not some other motivation.” Holt, 574

US at 360–61. The Fifth Circuit likewise observes that

scrutiny into religious sincerity addresses the question of

whether the adherent has “an honest belief that the

practice is important to his free exercise of religion,” which

is “almost exclusively a credibility assessment.”

Moussazadeh, 703 F3d at 790 & 792 (cleaned up).

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). It

certainly isn’t the place of federal, state, or local

governments 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).

And so quite clearly, the inquiry isn’t a decision on the

truth or validity of the inmate’s belief. The question instead

is only whether the belief is “truly held.” United States v

Seeger, 380 US 163, 185 (1965). As such, sincerity is

“generally presumed or easily established.” Moussazadeh,

703 F3d at 791.

TDCJ contends that Turner can’t demonstrate that

he’s Jewish under Jewish law. Dkt 94 at 16. For his part,

Turner responds that he was born of a Jewish mother,

which alone makes him a Jew under Jewish law. He also

argues that he qualifies as having “a Jewish background

with continuous study in the Jewish faith.” Dkts 98 at 6 &

114 at 3; see also Dkt 94-4 at 5.

The argument and the rejoinder both miss the mark.

The Fifth Circuit has noted wide agreement among the

Circuits that “clergy opinion has generally been deemed

insufficient to override a prisoner’s sincerely held religious

belief.” McAlister v Livingston, 348 F Appx 923, 935 (5th

Cir 2009). The question under RLUIPA, then, isn’t whether

the religion (or a certain sect of the religion) would consider

plaintiff an observing member. The inquiry instead is

whether the plaintiff sincerely holds the tenants of his

asserted religion. See Sossamon, 560 F3d at 332.

Turner’s sincere desire to maintain a kosher diet and

practice the orthodox Jewish faith is undeniable. He

sufficiently establishes or alleges at least the following:

o He attended synagogue and kept kosher before

coming to prison. Dkt 66 at ¶ 25.

o He has maintained membership in the Aleph

Institute—which Turner describes as “a Jewish

organization that verifies Jewish origin, birth,

background, and practice”—since 1990 and has

completed all Aleph correspondence courses

(though TDCJ has been unable to verify this

claim). Dkts 66 at ¶ 27 n 1 & 98 at 6–7; but see

94-3 at 5.

o He quickly corrected his religious classification

in 2013 upon discovering it was entered

incorrectly as “unspecified Christian.” Dkts 13

at 16 & Dkt 94-3 at 2.

o He’s been an active member within TDCJ’s

Jewish Program during his incarceration,

which TDCJ doesn’t dispute. Dkt 114 at 4; see

also Dkt 94 at 15.

o He has requested access to kosher foods

multiple times, including through Step One

and Step Two grievances. See 94-2 at 5–10, 16–

20; see also 94-3 at 44.

o He brought action in 2017 challenging the

religious headwear and grooming policies of

TDCJ. See Turner v Texas Department of

Criminal Justice, 4:17-cv-00297 (SD Tex) at

Dkt 96 (dismissed as moot after modifications

to TDCJ policy).

o And he’s steadfastly maintained this action

since late 2018.

TDCJ admits elsewhere that Turner has met the

requirements for basic Jewish housing. Dkt 94-3 at 6. It’s

thus difficult to entertain any deficiencies as to the

sincerity of Turner’s beliefs, especially when paired with

the above thirty years of expressed interest in the orthodox

Jewish faith and repeated attempts to obtain kosher foods.

Turner has made the requisite prima facie showing

that the requested religious practices are deeply important

to him as a subjective matter.

C. Substantial burden

The plaintiff bears the initial burden of proof in a

RLUIPA case to establish that the prison policy

substantially burdens his religious exercise. Holt, 574 US

at 360. But that burden is borne in a context where

RLUIPA has granted “expansive protection for religious

liberty,” affording an inmate with “greater protection” than

is available under the First Amendment. Id at 358 & 361.

A government practice imposes a substantial burden on

religious exercise where it “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 “influences the

adherent to act in a way that violates his religious beliefs”

or “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.

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 otherwise generally

allowed.” Ibid.

This typically 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). But requests for religious accommodation in other

contexts provide helpful comparison. Indeed, the Fifth

Circuit case Moussazadeh v Texas Department of Criminal

Justice presents substantially similar facts to those at

issue here. The prisoner in Moussazadeh qualified for an

enhanced Jewish unit. But he was removed from that unit

and placed in a basic Jewish unit due to a disciplinary

infraction. He was thus relegated to purchasing kosher

food from the commissary. The prisoner subsequently

brought action under RLUIPA, seeking free kosher meals.

703 F3d at 786–87. Regarding substantial burden, the

Fifth Circuit found:

Where an inmate is denied a generally

available benefit because of his religious

beliefs, a substantial burden is imposed on

him. Every prisoner in TDCJ’s custody

receives a nutritionally sufficient diet.

Every observant Jewish prisoner at

Stringfellow receives a kosher diet free of

charge. Only Moussazadeh is denied that

benefit, because he is forced to pay for his

kosher meals. This practice substantially

burdens his ability to exercise his religious

beliefs.

Moussazadeh, 703 F3d at 794.

The only difference between the prisoner in

Moussazadeh and Turner is that Turner isn’t qualified for

an enhanced Jewish unit. But TDCJ is responsible for that

distinction because it arrogates to itself a purported ability

to define which inmates sincerely hold certain religious

beliefs. When that dubious sorting is set aside—and when

the inmate’s own sincerely held religious beliefs provide

the marker, as required by RLUIPA—Turner’s situation is

precisely that of the inmate in Moussazadeh. Both

maintain a sincerely held belief that they are Jewish. Both

believe they must maintain a kosher diet. And both are

forced to purchase kosher meals through the commissary.

As such, these circumstances substantially burden

Turner’s religious exercise.

Two further observations are readily apparent. One is

that Turner can’t access kosher food in the commissary due

to his indigent status. The other is that this reality forces

him to face an unavoidable choice every day of either

breaking his religious tenants or facing malnutrition. Dkt

66 at ¶¶ 43–45. Turner himself asserts that he’s relegated

to eating bread, vegetables, and beans as available with

meals or trading his meals for kosher commissary items.

Dkt 114 at 7; see also Dkt 87. In other words, TDCJ policy

is forcing Turner to choose between a generally available,

non-trivial benefit—that is, free nutritious meals—and

following his sincerely held religious beliefs. See Dkt 66 at

¶ 43; Adkins, 393 F3d at 570.

Based on the present record, Turner has sufficiently

shown a substantial burden on his religious exercise.

D. Compelling government interest

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). The Supreme Court and the Fifth

Circuit have both returned to this articulation in recent

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

1881 (2021); McAllen Grace Brethren Church v Salazar,

764 F3d 465, 472 (5th Cir 2014). The Fifth Circuit has

likewise observed, “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 the United Methodist

Church, 173 F3d 343, 346 (5th Cir 1999) (cleaned up).

TDCJ argues that the injunction requested by Turner

would require it to not only “face the direct costs of the

purchase of kosher food and appliances” but would also

require it to “train personnel and modify security

procedures to comply with the preliminary injunction.” Dkt

75 at 6. This articulates concerns over security and costs.

These surely are compelling interests in the prison context.

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

(holding policy “related to maintaining good order and

controlling costs” involves “compelling government

interests”).

Even so, these generalized interests are inadequate to

meet TDCJ’s burden. And that is “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. The Supreme Court likewise 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, 141 S Ct

2430, 2432 (2021) (Gorsuch, J, concurring), quoting Fulton,

141 S Ct at 1881, in turn quoting Gonzales v O Centro

Espirita Beneficente União do Vegetal, 546 US 418, 431

(2006) (cleaned up).

As to security, TDCJ fails to explain why provision of

the requested accommodations would require any

substantial training or modification of security procedures.

See Moussazadeh, 703 F3d at 794. Indeed, the assertion

rings particularly hollow considering kosher meals and hot

pots are already available for purchase in the commissary.

As to cost, the parties don’t sufficiently brief the issue.

But the Fifth Circuit in Moussazadeh found that “the

increased cost of providing kosher food to all observant

prisoners is minimal,” where the increased cost is but

$88,000 per year as against a “total food budget” for TDCJ

of $183.5 million. 703 F3d at 794–95. Those numbers have

no doubt increased since that decision in 2012. But the

point remains—the expense to accommodate Turner is

miniscule in comparison to the total TDCJ food budget.

And RLUIPA expressly anticipates that “this chapter may

require a government to incur expenses in its own

operations to avoid imposing a substantial burden on

religious exercise.” 42 USC § 2000cc-3(c).

TDCJ hasn’t at present demonstrated that its policy

actually furthers a compelling government interest when

applied to Turner.

E. Least restrictive means

The Fifth Circuit holds that least restrictive means “has

its plain meaning.” Sossamon, 560 F3d at 332. It 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 Stores Inc, 573 US 682, 728 (2014).

“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.

This is “the most demanding test known to

constitutional law.” City of Borne v Flores, 521 US 507, 534

(1997). True, courts must give “due deference to the

experience and expertise of prison and jail administrators

in establishing necessary regulations and procedures to

maintain good order, security and discipline, consistent

with consideration of costs and limited resources.” Chance

v Texas Department of Criminal Justice, 730 F3d 404, 410

(5th Cir 2013), quoting Cutter v Wilkinson, 544 US 709, 723

(2005) (cleaned up); see also O’Lone v Estate of Shabazz,

482 US 342, 349 (1987). But those administrators may not

simply “assume a plausible, less restrictive alternative

would be ineffective.” United States v Playboy Entertain-

ment Group Inc, 529 US 803, 824 (2002). As aptly and

recently summarized by Justice Gorsuch, “RLUIPA

prohibits governments from infringing sincerely held

religious beliefs and practices except as a last resort.” Mast,

141 S Ct at 2433 (Gorsuch, J, concurring).

In short, the burden is on the government to

affirmatively establish that alternatives to its chosen

course—here, the denial of free kosher meals to an indigent

prisoner who sincerely believes he must observe a kosher

diet as part of his faith—are ineffective. Ali, 822 F3d at

786. And the present record doesn’t support TDCJ

contention that it has adopted the least restrictive means

of meeting its compelling governmental interests. This is

particularly so where it has already provided prisoners the

very accommodation requested by Turner. See Morris v

Davis, 6:18-cv-0322 (WD Tex) at Dkt 18; Atomanczyk v

Texas Department of Criminal Justice, 4:17-cv-00719 (SD

Tex) (Eskridge, J) at Dkt 107-6. Nothing indicates why

such an accommodation can’t be here afforded to Turner.

ii. Other considerations

By the above, Turner makes a prima facie showing of a

substantial likelihood of success on the merits of his

RLUIPA claim. None of the other pertinent factors counsel

against issuance of a preliminary injunction on the terms

he requests.

As to irreparable injury, the Fifth Circuit holds that in

the First Amendment context, “The loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Opulent

Life Church v City of Holly Springs, Mississippi, 697 F3d

279, 295 (5th Cir 2012) quoting Elrod v Burns, 427 US 347,

373 (1976). “This principle applies with equal force to the

violation of RLUIPA rights because RLUIPA enforces First

Amendment freedoms.” Ibid.

It’s not difficult to understand why this is so here.

Turner is harmed each time he must choose between

foregoing a meal and violating his sincerely held belief that

he must observe a kosher diet. He faces this harm daily,

and he will continue to face this harm until the matter is

resolved. See Dkts 13 at 17–18, 66 at ¶ 43 & 102 at 6.

This factor favors Turner.

Balance of potential harms. Because Turner easily

establishes an irreparable harm, TDCJ needs to present

“powerful evidence of harm to [their] interests” to prevail

on this requirement. Opulent Life Church v City of Holly

Springs, 697 F3d 279, 297 (5th Cir 2012); see also Ali v

Stephens, 2014 WL 495162, *3 (ED Tex).

At times, TDCJ classifies its harm as an entire

reworking of existing policies regarding Jewish designated

units. For example, see Dkt 94 at 10, 16. But such a drastic

remedy needn’t be considered at present, if for no other

reason than that Turner doesn’t request it. The concrete

harm to TDCJ appears to be providing one prisoner shelf-

stable kosher foods, a hot pot, and a storage locker. Dkt 102

at 3. The irreparable injury faced by Turner thus

outweighs any minimal, threatened harm to Defendants.

See Moussazadeh, 703 F3d at 796.

This factor favors Turner.

As to public interest. The Fifth Circuit holds that

“injunctions protecting First Amendment freedoms are

always in the public interest.” Opulent Life Church, 697

F3d at 298; see also Strong v Livingston, 2013 WL 6817095,

*3 (SD Tex 2013). This principle applies with equal force to

RLUIPA claims. Opulent Life Church, 697 F3d at 298.

This factor favors Turner. And with that, all pertinent

factors found to be in Turner’s favor. A preliminary

injunction will thus issue by separate order.

4. Appointment of counsel

“There is no right to appointment of counsel in civil

cases, but a district court may appoint counsel if doing so

would aid in the efficient and equitable disposition of the

case.” Delaughter v Woodall, 909 F3d 130, 140 (5th Cir

2018) (quotation marks and citation omitted). A district

court should consider:

o The type and complexity of the case;

o Whether the indigent is capable of adequately

presenting his case;

o Whether the indigent is in a position to

investigate adequately the case; and,

o Whether the evidence will consist in large part

of conflicting testimony so as to require skill in

the presentation of evidence and in cross

examination.

Ulmer v Chancellor, 691 F2d 209, 213 (5th Cir 1982).

“Generally, appointment of counsel should be reserved for

cases presenting ‘exceptional circumstances.’” Delaughter,

909 F3d at 141.

A motion by Turner for appointment of counsel was

previously denied. Dkts 71 & 77. But in light of the above

ruling, the Ulmer factors weigh heavily in Turner’s favor.

The claims have been substantially narrowed, but RLUIPA

remains a complex area of the law. And while Turner has

thus far admirably represented himself, he will no doubt

benefit from counsel. Additionally, this action will

necessitate careful document review and depositions,

which Turner simply can’t adequately conduct such from a

prison cell. Last, a significant amount of testimony is

likely, particularly regarding the issues of compelling

government interest and least restrictive means.

These are “exceptional circumstances” wherein

appointment of counsel would doubtlessly “aid in the

efficient and equitable disposition of the case.” Delaughter,

909 F3d at 140–41. Counsel will be appointed on behalf of

Turner.

5. Conclusion

The motions by Defendants Texas Department of

Criminal Justice, Bryan Collier, David Goldstein, and

Timothy Jones are GRANTED IN PART and DENIED IN PART.

Dkts 94 & 110.

The motions are GRANTED as to the First Amendment

free exercise claim, the Fourteenth Amendment equal

protection claim, and the Americans with Disabilities Act

claim. Those claims are DISMISSED WITH PREJUDICE.

The motions are otherwise DENIED.

The motion by Plaintiff Noel Turner for preliminary

injunction is GRANTED. Dkt 102.

A separate order of preliminary injunction will be

ENTERED compelling Defendants as follows:

The State of Texas must provide Plaintiff

Noel Turner three shelf-stable kosher

meals per day, a hot pot that is to be used

to heat those meals, and a location in which

he can store such items.

This relief is narrowly drawn, extends no further than

necessary to correct the harm, and is the least intrusive

means necessary to correct the harm. 18 USC § 3626(a)(2).

TDCJ retains discretion under RLUIPA to avoid the

preemptive force of this injunctive relief “by changing the

policy or practice that results in a substantial burden on

religious exercise, by retaining the policy or practice and

exempting the substantially burdened religious exercise,

by providing exemptions from the policy or practice for

applications that substantially burden religious exercise,

or by any other means that eliminates the substantial

burden.” 42 USC § 2000cc-3(e).

A separate order appointing counsel for Turner will

also be ENTERED.

SO ORDERED.

Signed on September 30, 2022, at Houston, Texas.

Hon. Charles Eskridg

United States District Judge

22