Teddy Davis v. Billy Pierce

Case: 14-40339 Document: 00513547743 Page: 1 Date Filed: 06/14/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-40339 FILED

June 14, 2016

Lyle W. Cayce

TEDDY NORRIS DAVIS; ROBBIE DOW GOODMAN, Clerk

Plaintiffs - Appellants

v.

LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional

Institutions Division; CLINT MORRIS, Program Analyst,

Defendants – Appellees

_______________________________________________________________________

TEDDY NORRIS DAVIS,

Plaintiff – Appellant

v.

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional

Institutions Division,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before SOUTHWICK and COSTA, Circuit Judges and OZERDEN,* District

Judge.

HALIL SULEYMAN OZERDEN, District Judge:

* District Judge of the Southern District of Mississippi, sitting by designation.

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Prisoner Plaintiffs Teddy Norris Davis and Robbie Dow Goodman

appeal the district court’s grant of summary judgment in favor of prison

officials within the Texas Department of Criminal Justice (“TDCJ”). The

district court granted summary judgment in Defendants’ favor on Plaintiffs’

First Amendment and 42 U.S.C. § 1983 claims challenging TDCJ policies on

the wearing of medicine bags, the use of pipes during Native American

religious pipe ceremonies, and grooming, based on the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. We

AFFIRM in part as to the First Amendment claim and RLUIPA claims

concerning medicine bags and pipe ceremonies, and we VACATE and

REMAND in part for further findings as to Plaintiffs’ grooming-policy

RLUIPA claim.

I. BACKGROUND

Teddy Norris Davis, Texas prisoner #807688, is housed in the TDCJ’s

McConnell Unit in Beeville, Texas. On May 21, 2012, Davis filed a pro se 42

U.S.C. § 1983 complaint alleging that the meaningful practice of his religion

was being burdened by five Defendants employed by the TDCJ. A follower of

the Native American religious path, Davis challenged three TDCJ policies.

Specifically, Davis alleged that TDCJ policies burdened the exercise of his

religious beliefs by preventing him from (1) smoking a prayer pipe during

Native American pipe ceremonies, (2) wearing a religiously significant

“medicine bag” other than within his cell and to and from religious

ceremonies, and (3) growing long hair or alternatively, a kouplock, which is “a

one inch square section of hair at the base of the skull.” Davis argued that

these three policies violated his rights under RLUIPA and the First

Amendment, and that the grooming policy further violated his right to equal

protection, because female inmates were allowed to wear their hair long.

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Robbie Dow Goodman, Texas prisoner #758386, is also housed in the

McConnell Unit in Beeville, Texas, and joined this suit, claiming that he

follows the Native American faith and has experienced the same deprivations

as Davis. Davis and Goodman (“Plaintiffs”) both purport to be non-violent,

low security risk, or G2, custody level inmates.

Plaintiffs filed an Amended Complaint on February 11, 2013, and

subsequently consented to proceed before a United States Magistrate Judge.

At a hearing before the Magistrate Judge, Plaintiffs voluntarily dismissed all

of their claims except their three RLUIPA challenges, which sought

injunctive and declaratory relief against Rick Thaler, the TDCJ Correctional

Institutions Division Director in his official capacity, and their First

Amendment claim seeking damages against Clint Morris, a TDCJ Program

Analyst. On July 1, 2013, after Thaler retired, William Stephens was

substituted as a Defendant. 1

On July 8, 2013, Defendants filed a Motion for Summary Judgment,

and on July 10, 2013, Defendants filed a Supplemental Motion for Summary

Judgment. Plaintiffs filed a Cross-Motion for Summary Judgment on July

19, 2013.

On February 27, 2014, the district court issued its Opinion and Order

on Cross-Motions for Summary Judgment (“Opinion and Order”), and Final

Judgment was entered in Defendants’ favor. The district court found that

both Plaintiffs were sincere practitioners of the Native American faith and

that the policies complained of constituted a substantial burden on their

religious exercise. The Court concluded, however, that Defendants had

demonstrated that the challenged prison regulations were the least

1 William Stephens has retired. On May 5, 2016, the new Director of the Texas

Department of Criminal Justice Correctional Institutions Division, Lorie Davis, was

substituted as Appellee in this case.

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restrictive means of furthering compelling governmental interests. This

appeal followed.

II. STANDARD OF REVIEW

A. Summary Judgment Standard

“This court reviews de novo a district court’s order granting a

defendant’s motion for summary judgment, applying the same standard as

did the district court.” Toney v. Owens, 779 F.3d 330, 335 (5th Cir. 2015). A

movant is entitled to summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). It is axiomatic that the

“‘evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.’” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A

genuine dispute of material fact is not created by “conclusory allegations,

unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v.

Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quotation marks and citation

omitted).

B. The RLUIPA

RLUIPA provides, in relevant part, that:

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 government demonstrates that

imposition of the burden on that person—

(A) is in furtherance of a compelling governmental interest;

and

(B) is the least restrictive means of furthering that

compelling governmental interest.

42 U.S.C. § 2000cc-1(a). RLUIPA defines “religious exercise” broadly to

include “any exercise of religion, whether or not compelled by, or central to, a

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system of religious belief.” § 2000cc-5(7)(A). Under RLUIPA, Plaintiffs carry

an initial burden to show that the challenged law, regulation, or practice

substantially burdens the exercise of their religion. Adkins v. Kaspar, 393

F.3d 559, 567 (5th Cir. 2004). Once Plaintiffs make this showing, Defendants

bear the burden to prove that the challenged regulation is the least

restrictive means of furthering a compelling governmental interest. Id.; see

also Sossamon v. Texas, 563 U.S. 277, 281 (2011). Defendants’ burden “is not

to show that it considered the claimant’s proposed alternatives but rather to

demonstrate those alternatives are ineffective.” Ali v. Stephens, No. 14-

41165, 2016 WL 1741573, at *6 (5th Cir. May 2, 2016).

Congress enacted RLUIPA to address “frivolous or arbitrary” barriers

impeding institutionalized persons’ religious exercise, but expected courts

entertaining RLUIPA challenges to also “accord ‘due deference to the

experience and expertise of prison and jail administrators.’” Cutter v.

Wilkinson, 544 U.S. 709, 716–17 (2005) (quoting 146 Cong. Rec. 16698, 16699

(2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)). Religious

accommodations must not override other significant interests in maintaining

order and safety, and courts should give deference to prison officials “in

establishing necessary regulations and procedures to maintain good order,

security and discipline, consistent with consideration of costs and limited

resources.” Id. at 723. Costs, limited resources, and prison security are all

compelling state interests. Id. However, deference is not unlimited and

“‘policies grounded on mere speculation, exaggerated fears, or post-hoc

rationalizations will not suffice to meet the act’s requirements.’” Rich v.

Sec’y, Florida Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (quoting S.

Rep. No. 103–111, at 10, reprinted in 1993 U.S.C.C.A.N. 1892, 1900)

(discussing the Religious Freedom Restoration Act, predecessor to RLUIPA);

see also Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) (“Indeed, prison policies

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‘grounded on mere speculation’ are exactly the ones that motivated Congress

to enact RLUIPA.”).

The least-restrictive-means standard is “exceptionally demanding, and

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 party.” Holt, 135 S. Ct. at 864 (quotation omitted and

alteration adopted). The Government must also demonstrate that the

“compelling interest test” is satisfied when applying the challenged law to the

“particular claimant whose sincere exercise of religion is being substantially

burdened.” Id. at 863 (quotation omitted). Thus RLUIPA requires a court to

scrutinize “‘the asserted harm of granting specific exemptions to particular

religious claimants’” and look “‘to the marginal interest in enforcing’ the

challenged government action in that particular context.” Id. (quoting

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)).

C. The First Amendment

The First Amendment to the United States Constitution is violated

when prisoners are not afforded “reasonable opportunity” to exercise their

religious beliefs. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). The

First Amendment applies to State prisons by virtue of the Fourteenth

Amendment. Id.

Prison officials may still place reasonable limits on the religious rights

that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78 (1987), the

Supreme Court held that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Id. at 89. Courts consider four factors in

determining the reasonableness of a regulation: (1) the existence of a valid,

rational connection between the prison regulation and the legitimate

governmental interest put forward to justify it; (2) the existence of

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alternative means of exercising the right that remain open to prison inmates;

(3) the impact an accommodation will have on guards and other inmates, and

on the allocation of prison resources generally; and (4) the absence of

alternatives. Id. at 89–91.

Turner’s “rational connection” standard for assessing First Amendment

claims provides less protection against prison regulations that impinge on

inmates’ free exercise of religion than does RLUIPA’s more demanding

compelling-interest/least-restrictive-means standard. Freeman v. Texas Dep’t

of Criminal Justice, 369 F.3d 854, 858 n.1 (5th Cir. 2004).

III. DISCUSSION

Plaintiffs challenge whether summary judgment was properly granted

in favor of the TDCJ Defendants as to their (1) First Amendment claim, (2)

medicine-bag RLUIPA claim, (3) pipe-ceremony RLUIPA claim, and (4)

grooming-policy RLUIPA claim. We find no error in the district court’s grant

of summary judgment on the first three issues, but will vacate and remand

for further findings as to the grooming-policy RLUIPA claim.

A. First Amendment Claim and Medicine-Bag RLUIPA Claim

On appeal, Davis and Goodman only briefly mention their First

Amendment claim and medicine-bag RLUIPA claim. Issues submitted to this

Court that are inadequately briefed are considered abandoned. Cinel v.

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Plaintiffs’ arguments as to these

two issues are entirely conclusory, and Davis and Goodman have not

demonstrated that the district court erred in granting summary judgment for

Defendants on the First Amendment claim or medicine-bag RLUIPA claim.

1. First Amendment Claim

The district court determined that Defendant Morris was entitled to

qualified immunity because Plaintiffs had not established that their First

Amendment rights to exercise their religion had been violated. Since

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qualified immunity depends upon whether a defendant violated a clearly

established constitutional right, the preliminary inquiry is whether the

plaintiff can establish a violation of any constitutional right at all. Siegert v.

Gilley, 500 U.S. 226, 232 (1991). The district court concluded that the

challenged regulations and practices were rationally connected to valid

government interest, and did not violate the First Amendment. In this

Court, Davis and Goodman merely state, in a single paragraph and without

elaboration, that “[t]he evidence is clear that the Appell[ants] have indeed

established a First Amendment Constitutional violation thereby clearly

overcoming the Qualified Immunity Analysis [sic].” Plaintiffs have not raised

any other arguments or offered further explanation as to how the district

court erred.

2. Medicine-Bag RLUIPA Claim

The district court found that the TDCJ restrictions on wearing the

medicine bag were the least restrictive means of furthering a compelling

interest in security and controlling costs. Before this Court, Davis and

Goodman do not contest this conclusion, merely stating in their brief that “it

may very well be that the defendants are right.” Plaintiffs object only to the

district court’s finding that TDCJ’s restrictions “are appropriate as a matter

of law on this record,” but Plaintiffs do not clarify how the record could be

seen as deficient. It appears that Defendants presented evidence that the

medicine-bag policy furthers an interest in security and costs, and Plaintiffs

did not present competent summary judgment evidence to rebut this

assertion.

Since Davis and Goodman have not adequately briefed or otherwise

identified any legitimate points of error as to the First Amendment claim and

medicine-bag RLUIPA claim, summary judgment will be affirmed as to these

issues.

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B. Pipe-Ceremony RLUIPA Claim

Plaintiffs challenge the TDCJ ban on inmates personally smoking a

prayer pipe during pipe ceremonies. 2 TDCJ’s official “Procedures for

Religious Programming,” as revised in 2012, state that “[o]nly the Native

American chaplain/volunteer is authorized to smoke the pipe used for the

pipe service.” Davis and Goodman claim that having a Native American

chaplain smoke the ceremonial prayer pipe for them is insufficient, yet they

also do not want to use a communal prayer pipe due to the risk of disease.

Instead, Plaintiffs propose that they each be allowed to purchase their own

personal prayer pipes from an approved vendor. 3

Plaintiffs’ suggestion that inmates be allowed to possess personal

prayer pipes has already been considered and rejected by this Court. Chance

v. Texas Dep’t of Criminal Justice, 730 F.3d 404, 412–13 (5th Cir. 2013). In

2011, a TDCJ Native American prisoner, William Chance, requested

permission to possess a personal pipe because he suffered from hepatitis C

and tuberculosis and wished to avoid smoking from the communal pipe used

in pipe ceremonies. See Chance v. TDCJ, Case No. 6:11-cv-435 (E.D. Tex.

June 16, 2011) (Compl.). The Chance litigation prompted TDCJ officials to

re-examine the policy concerning pipe ceremonies in light of these serious

health concerns. After conducting a study, TDCJ concluded that going

forward only the Native American chaplain performing the pipe ceremony

2 In the district court, Davis and Goodman also challenged the frequency of Native

American ceremonies under RLUIPA. The Magistrate Judge concluded that the TDCJ

volunteer chaplain policy was the least restrictive means of furthering Defendants’

compelling interest in prison administration. This issue has not been raised on appeal.

3 Davis and Goodman also claim that TDCJ never considered the use of the herb

“cansasa” in the pipe ceremony as a least restrictive means. Because the TDCJ policy does

not allow inmates to smoke their own personal prayer pipe for other reasons such as health,

cost, and security concerns, the substance being smoked is irrelevant to the RLUIPA

analysis in this case and consideration of tobacco alternatives is unnecessary.

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could smoke the prayer pipe during Native American pipe ceremonies. The

TDCJ Chaplaincy Manual was revised in July 2012 to reflect this change.

The district court in Chance granted summary judgment for TDCJ on

the pipe-ceremony issue. This Court affirmed and held that TDCJ had

carried its burden of demonstrating that the policy banning communal and

individual pipes and allowing only the ceremony leader to smoke the pipe at

ceremonies was the least restrictive means of furthering compelling

government interests in “prison health, administration, and security,” and,

accordingly, did not violate RLUIPA. Chance, 730 F.3d at 407–08.

In Chance, this Court considered the option of permitting every

prisoner to purchase and smoke his own pipe, and Davis and Goodman do not

present any new or different arguments from those previously considered.

See id. at 413. In this case, both TDCJ and the district court considered

allowing inmate-owned pipes to be stored in the chaplain’s office, but

logistical, health, and security concerns outweighed the need for a religious

accommodation. As to this issue, the district court’s grant of summary

judgment will be affirmed.

C. Grooming-Policy RLUIPA Claim

We will, however, vacate the grant of summary judgment on the

grooming-policy RLUIPA claim for two reasons. First, the record does not

reflect whether appropriate consideration was given to Plaintiffs’ summary

judgment evidence. Second, there is a need for further findings under the

standard for evaluating RLUIPA claims as discussed in Holt v. Hobbs, 135 S.

Ct. 853, 864 (2015), because Plaintiffs’ RLUIPA claims must be evaluated on

remand in light of the security risk presented by Plaintiffs as individuals.

1. Plaintiffs’ Summary Judgment Evidence

Plaintiffs contend that the district court did not give proper

consideration to their summary judgment evidence on the grooming-policy

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RLUIPA claim. A nonmovant’s evidence on summary judgment “is to be

believed, and all justifiable inferences are to be drawn in his favor.” Cotton,

134 S. Ct. at 1863. Plaintiffs attempted to present evidence at summary

judgment by retyping or referencing portions of a TDCJ official’s testimony

and the expert testimony of George Sullivan 4 from an earlier bench trial in

another Native American inmate’s lawsuit challenging the TDCJ grooming

policy. Within their reply brief on summary judgment, Defendants moved to

strike this evidence. However, the district court did not rule on their request.

Because the motion to strike was included in Defendants’ reply brief

and not docketed as a separate motion, it is unclear whether the district court

overlooked the motion or decided not to rule on it on grounds that it was not

properly asserted. In any event, Sullivan’s expert testimony was before the

district court when it granted summary judgment, but the district court made

no mention of it.

Sullivan’s testimony was taken from an earlier bench trial in Odneal v.

Dretke, 2:4cv454 (S.D. Tex. filed Aug. 30, 2004), and may be relevant in this

case, because Odneal involved claims similar to those presented here. In

Odneal, Shawn Odneal, a male inmate also housed in the McConnell Unit,

challenged the insufficient frequency of pipe ceremonies and other Native

American religious ceremonies. See Odneal v. Dretke, 435 F. Supp. 2d 608,

610–11 (S.D. Tex. 2006) (“Odneal I”). Odneal claimed to have learned about

the spiritual path of the Native American people from one of the Plaintiffs in

this case, Teddy Davis. See Odneal v. Pierce, C.A. No. C-04-454, 2010 WL

3359535, at *2 (S.D. Tex. Aug. 20, 2010) (“Odneal II”). Both Davis and

4George Sullivan is an experienced prison official who has worked with Native

American populations in prisons in Oregon and Colorado.

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Goodman attempted to join Odneal’s case in 2004, but their requests were

denied.

Odneal also challenged the TDCJ policy on wearing of medicine bags,

and sought permission to grow long hair or wear a kouplock. Odneal I, 435 F.

Supp. 2d at 611 (challenging essentially the same policies as those at issue in

this litigation). The district court dismissed Odneal’s claims regarding

wearing a medicine bag and growing long hair, reasoning that TDCJ policy

on medicine bags was rationally connected to security interests pursuant to

Turner, 482 U.S. at 89–91, and the long-hair claim was foreclosed by Diaz v.

Collins, 114 F.3d 69, 73 (5th Cir. 1997). The district court also granted

summary judgment against Odneal on his claim concerning the insufficient

frequency of religious ceremonies. Odneal I, 435 F. Supp. 2d at 622.

In an unpublished per curiam opinion, this Court affirmed the grant of

summary judgment as to the pipe-ceremony claims, but remanded the

medicine-bag and long-hair issues to the district court for further

development of the evidentiary record. Odneal v. Pierce, 324 F. App’x 297,

302 (5th Cir. 2009) (“Odneal appeal”). As to the medicine-bag RLUIPA claim,

this Court held that the district court had applied the wrong standard in

analyzing the medicine-bag claim by utilizing the rational-connection/

legitimate-government-interest test rather than RLUIPA’s more demanding

compelling-interest/least-restrictive-means test. As to the grooming-policy

RLUIPA claim, this Court reasoned that cases, such as Diaz, involving long

hair generally do not necessarily foreclose a prisoner’s claims involving

kouplocks, which may have unexplored distinctions in the area of security

risks. Id. at 301 (distinguishing Diaz, 114 F.3d at 72).

On remand, Odneal was appointed counsel and abandoned his

medicine-bag claim, proceeding to trial only on the long-hair/kouplock issue.

Odneal II, 2010 WL 3359535, at *2. TDCJ officials produced evidence that

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kouplocks could present security challenges for inmate identification and

provide a place for hiding contraband. Id. at *6. Odneal countered this

evidence with the testimony and expert report of George Sullivan, an

experienced prison official who has worked with Native American

populations in prisons in Oregon and Colorado. Id. Sullivan testified that

kouplocks do not present security issues and are not practical places for

hiding contraband. Id. at *7. Based on Sullivan’s testimony, the district

court denied summary judgment, finding that there were genuine issues of

material fact as to whether the policy prohibiting Odneal from wearing a

kouplock served a compelling interest, and was the least restrictive means of

achieving that interest. Id. at *8.

Odneal’s kouplock claim proceeded to a two-day bench trial held on

December 13–14, 2010. See Odneal v. Pierce, C.A. No. C-04-454, 2011 WL

2678940, at *1 (S.D. Tex. July 7, 2011) (“Odneal III”). Before the district

court could issue a ruling, TDCJ transferred Odneal to a Minnesota prison

where he would be permitted to grow his hair. Id. at *2. Thus, the kouplock

issue became moot and remained undecided.

Here, Plaintiffs purported to present summary judgment evidence to

rebut prison officials’ testimony by retyping and citing George Sullivan’s

expert testimony from Odneal’s bench trial. The district court’s opinion on

summary judgment does not reflect what consideration, if any, was given to

Plaintiffs’ summary judgment evidence. 5 The district court briefly discussed

the Odneal appeal in a footnote and concluded that “the Odneal case has

5 Davis and Goodman also contend that the district court failed to consider their

post-judgment Reply to Defendants’ Reply to the Motion for Summary Judgment. However,

in denying Plaintiffs’ Rule 59(e) Motion for Reconsideration of the Court’s Opinion and

Order, the Magistrate Judge indicated that she took into account the post-judgment Reply

and found no basis for overturning summary judgment.

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little or no bearing on the case sub judice.” Despite the district court’s finding

in Odneal II that Sullivan’s expert testimony created genuine issues of

material fact on the kouplock claim, 2010 WL 3359535, at *8, the district

court’s analysis of Plaintiffs’ kouplock claims in this case was limited to one

paragraph and did not discuss Sullivan’s testimony, which had not been

stricken. Instead, the district court stated that Defendants’ summary

judgment evidence was “uncontroverted.”

Given the posture of the case at summary judgment, Defendants’

evidence regarding the kouplock issue was not plainly uncontroverted.

Plaintiffs had typed verbatim, and referenced portions of, testimony by

witnesses from Odneal’s bench trial to support their grooming-policy claim.

Plaintiffs also informed the Magistrate Judge of their desire to use this

testimony during an evidentiary hearing held on June 21, 2012. At that

hearing, the Magistrate Judge indicated that the law might permit this

evidence to be used against TDCJ, but that its admissibility would be

determined at a future time. It appears from the record that such a

determination was never made.

As an additional reason that we cannot conclude the evidence was not

before the district court, the record indicates that Plaintiffs, as pro se

prisoner litigants, were permitted some leeway in the form of documents that

could be submitted. In another order entered on December 20, 2013, the

district court responded to Plaintiffs’ request for copies of pleadings by

stating that Plaintiffs could “hand copy all documents sent to the Clerk.”

That order specifically dealt with maintaining Plaintiffs’ own files of

documents sent to the district court, but could reasonably have been

construed by Plaintiffs as an invitation to make hand-written facsimiles

when necessary for filing with the district court. Among the grounds argued

in Defendants’ motion to strike Sullivan’s testimony was Plaintiffs’ failure to

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attach the relevant portions of the actual transcript from which the typed

copy was made. However, in light of the December 20, 2013, order

referencing the hand-copying of materials, it is not clear that the district

court would have discounted Plaintiffs’ summary judgment evidence merely

for reasons of form.

In substance, it is also unclear why Plaintiffs’ summary judgment

evidence would not be relevant to the district court’s decision. In Odneal’s

case, summary judgment was denied and the district court found genuine

issues of material fact remained on facts and evidence similar to those

presented by Plaintiffs in this case. Odneal II, 2010 WL 3359535, at *8.

While RLUIPA “suggests a fact-specific inquiry that takes into account the

special circumstances of the individual prisoner and prison,” see Chance, 730

F.3d at 410, this case and Odneal involved the same unit within the same

prison and prisoners with substantially similar characteristics raising similar

challenges to the TDCJ grooming policy. As such, evidence developed in

Odneal’s case could be relevant in the present suit, even under the

individualized inquiry standard.

If Plaintiffs’ expert testimony evidence was not credited because the

Magistrate Judge found it inadmissible or improper, the record does not

reflect this determination. Were the district court to have made a considered

decision that evidence from Odneal’s bench trial was not relevant or should

be stricken from the record, or otherwise discussed the evidence presented in

a meaningful way, the decision to grant summary judgment on this issue

might ultimately have been supported. However, the current record does not

reflect whether the Magistrate Judge considered Plaintiffs’ evidence and

drew reasonable inferences in their favor, as is required in deciding a motion

for summary judgment. Cotton, 134 S. Ct. at 1863. Remand for further

consideration of this issue is warranted.

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2. Holt v. Hobbs and Plaintiffs’ Particular Characteristics

The grooming-policy RLUIPA claim should also be remanded because

the district court did not appear to consider Plaintiffs’ specific, individual

status as low custody level inmates in relation to their theory that the

grooming restrictions are unnecessary as applied to them. Davis and

Goodman argue that the district court’s opinion does not reflect that

consideration was given to their specific security risk status, which they

assert was low, in determining whether disallowing a kouplock substantially

burdened their religious exercise by the least restrictive means. 6

The Supreme Court has explained that RLUIPA “requires the

Government to demonstrate that the compelling interest test is satisfied

through application of the challenged law to the person—the particular

claimant whose sincere exercise of religion is being substantially burdened.”

Holt, 135 S. Ct. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779) (quotation

marks omitted).

In Holt, 135 S. Ct. at 853, the Supreme Court considered a RLUIPA

challenge to the Arkansas Department of Corrections’ no-beard policy. The

policy prohibited inmates from wearing facial hair other than a “neatly

trimmed mustache.” Id. at 860. The policy made no religious exceptions, but

did allow inmates with diagnosed dermatological conditions to wear a ¼-inch

beard. Id. In accordance with his Muslim faith, Gregory Holt sought

permission to grow a ½-inch beard. Id. at 859, 861. Holt’s request was

denied, and he filed suit under RLUIPA. Id. at 861. Following an evidentiary

6 On appeal, Davis and Goodman also claim that the district court erred in failing to

consider the option to house all low security risk Native American inmates in one unit and

allow long hair or a kouplock only on that unit. It does not appear that this argument was

raised in the district court. This Court does not “consider arguments or evidence that was

not presented to the district court.” Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329

(5th Cir. 2008).

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hearing, the district court dismissed Holt’s RLUIPA complaint for failure to

state a claim, and the Eighth Circuit affirmed. Id. The Supreme Court

reversed, holding that the Department’s grooming policy violated RLUIPA as

applied to Holt. Id. at 867.

The Court reasoned that the Department’s stated justification for the

policy, preventing the flow of contraband, would not be seriously

compromised by permitting Holt to grow a ½-inch beard. Id. at 863.

Similarly, the Court found the Department’s interests in prisoner

identification and security would not be severely compromised. Id. at 865. In

reaching this conclusion, the Court noted that permitting a religious

accommodation to a grooming policy may still allow prison officials to

maintain security because RLUIPA allows an institution “to withdraw an

accommodation if the claimant abuses the exemption in a manner that

undermines the prison’s compelling interests.” Id. at 867.

Applying Holt, another panel of this Court recently affirmed a district

court’s grant of declaratory and injunctive relief enabling a Muslim TDCJ

inmate to grow a four-inch beard and wear his kufi throughout TDCJ’s

facilities. Ali, 2016 WL 1741573, at *1. 7 In doing so, this Court reviewed the

district court’s findings as to the TDCJ grooming policy and evaluated the

evidence supporting TDCJ’s concerns over preventing the transfer of

contraband, facilitating inmate identification, controlling costs, and ensuring

orderly program administration, all of which have been raised as interests in

this litigation. Id. at *6–13. Examining the specific exemption requested, a

four-inch beard, this Court found that TDCJ’s ban on the wearing of such a

7George Sullivan also testified as an expert witness in the Ali bench trial that self-

searches and visual inspections of longer beards are effective methods for revealing

contraband. Ali, 2016 WL 1741573, at *8.

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No. 14-40339

beard as to Ali was not the least restrictive means of furthering these

interests. 8

In light of Holt, TDCJ’s asserted compelling interests must be

examined in light of the particular characteristics of each Plaintiff, including

their alleged low security risk status and the particular risks of the specific

exemption requested. 135 S. Ct. at 863. The specific exemption requested

here is to allow Plaintiffs to wear long hair or a kouplock. In the district

court, TDCJ presented photographs of objects small enough in size to

hypothetically be hidden in a kouplock, and evidence that inmates at other

institutions hide contraband in various styles of short and long hair,

indicating that the grooming policy does further an interest in preventing the

transfer of contraband. But TDCJ has not demonstrated on the present

record that a total ban on the growing of kouplocks, even as to low security

risk inmates such as Plaintiffs, is the least restrictive means of furthering

that interest. Were Plaintiffs to be caught using their kouplocks to smuggle

contraband or for some other prohibited purpose, any accommodation could

be withdrawn. Id. at 867; see also Ali, 2016 WL 1741573, at *14 (“TDCJ has

not shown why it is impracticable to revoke kufi privileges for those inmates

that resist such searches.”). In addition, a fact question may be presented on

this point based on George Sullivan’s testimony that, in his experience,

inmates are unlikely to hide contraband in their hair.

Because TDCJ’s interests in preventing the wearing of long hair or

kouplocks were not evaluated in light of the specific characteristics of each

Plaintiff as purportedly low security risk Native American inmates, remand

for further findings on this issue is appropriate.

8 The Court began its analysis by noting that Ali “is a ‘trusty’ inmate, which is the

lowest security level classification, and lives in a dormitory outside of the Michael Unit’s

fence line.” Id.

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No. 14-40339

IV. CONCLUSION

The district court did not err in granting summary judgment on

Plaintiffs’ First Amendment claim, medicine-bag RLUIPA claim, and pipe-

ceremony RLUIPA claim. Because the district court did not strike Plaintiffs’

summary judgment evidence, including George Sullivan’s expert testimony,

and because genuine issues of material fact remain regarding the legitimacy

of TDCJ’s cost and security concerns created by the wearing of a kouplock by

Plaintiffs as low security risk Native American inmates, and further because

the district court did not consider Plaintiffs’ grooming-policy claim in light of

Plaintiffs’ individual circumstances, we VACATE and REMAND in part for

further proceedings as to Plaintiffs’ grooming-policy claim under RLUIPA.

We AFFIRM the judgment of the district court in all other respects.

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