Freeman v. Texas Department of Criminal Justice

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT May 7, 2004

______________________________ Charles R. Fulbruge III

Clerk

No. 03-10443

______________________________

WILLIAM R. FREEMAN, Individually and on behalf of all others

similarly situated; CARLOS PATTERSON, Class Representative

Individually and on behalf of all others similarly situated;

SIDNEY MONTGOMERY, Individually and on behalf of all others

similarly situated; ELISELLO DE LA’O, Individually and on behalf

of all others similarly situated; TRAVIS SMITH, Individually and

on behalf of all others similarly situated; MICHAEL CUEVAS,

Individually and on behalf of all others similarly situated;

RAY MASON, Individually and on behalf of all others similarly

situated; DAVID F. VELA, Individually and on behalf of all others

similarly situated; OSCAR FORTZ, Individually and on behalf of

all others similarly situated; DE’SHONA WILLIAMS, Individually

and on behalf of all others similarly situated,

Plaintiffs-Appellants,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; WAYNE SCOTT, Texas

Department of Criminal Justice Executive Director; GARY L.

JOHNSON, Texas Department of Criminal Justice, Institutional

Division Director; JERRY GROOM, Texas Department of Criminal

Justice, Former Administrator of Chaplaincy Program; T.J. MEDERT,

Texas Department of Criminal Justice, Institutional Division

Former Warden, Price Daniel Unit; RICHARD LOPEZ, Texas Department

of Criminal Justice, Institutional Division Administrator of

Chaplaincy Program; DAVID SWEETIN, Texas Department of Criminal

Justice, Institutional Division Former Assistant Warden, Price

Daniel Unit; WAYNE HORTON, Texas Department of Criminal Justice,

Institutional Division Former Chaplain, Price Daniel Unit; KEITH

PRICE, Texas Department of Criminal Justice, Institutional

Division Warden, Bill Clements Unit; ROY MURPHY, Texas Department

of Criminal Justice, Institutional Division Chaplain, Bill

Clements Unit; J.D. SMITH,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas,

___________________________________________________________________

Before JONES, MAGILL,* and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This lawsuit arises from a longstanding dispute regarding

the adequacy of Church of Christ religious services afforded Texas

prisoners. A class of disaffected inmates (“the class”) filed a

civil rights suit alleging that the Texas Department of Criminal

Justice (“TDCJ”) religious accommodations policy violates the Free

Exercise Clause of the First Amendment and the Equal Protection

Clause of the Fourteenth Amendment.1 Also, William R. Freeman, a

member of the class, alleges that he was transferred to another

unit in retaliation for exercising his First Amendment right to

free speech. The district court granted the defendants’ motion for

summary judgment and dismissed the suit. We AFFIRM.

*

Judge of the United States Court of Appeals for the Eighth Circuit,

sitting by designation.

1

Surprisingly, the class chose not to bring a cause of action under

the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).

Under RLUIPA, TDCJ would have been required to show that its regulation: “(1) is

in furtherance of a compelling government interest; and (2) is the least

restrictive means of furthering that compelling government interest.” 42 U.S.C.

§ 2000cc-1(a)(2000). Hence, the RLUIPA standard poses a far greater challenge

than does Turner to prison regulations that impinge on inmates’ free exercise of

religion. See Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262 (1987)

(explicitly rejecting the application of the “least restrictive means” standard

to inmates’ First Amendment free exercise claims); but see Madison v. Riter, 355

F.3d 310, 315 n.1 (4th Cir. 2003) (recognizing that “[t]he deferential test that

courts customarily apply to prison regulations, however, does not operate to

prevent legislative bodies from adopting a more searching standard”).

I. BACKGROUND

Freeman, a former law enforcement officer, began serving

a life sentence for murder in 1987 and was eventually placed in the

Price Daniel Unit in Snyder, Texas, where he joined the local 37th

Street Church of Christ.2 TDCJ assigned Chaplain Wayne Horton, a

Church of Christ member, to the Price Daniel Unit. However,

according to Freeman, Chaplain Horton’s teachings were “too

ecumenical” and departed from established Church of Christ

doctrine.

On February 3, 1998, Freeman filed an administrative

grievance criticizing Chaplain Horton’s performance of the Church

of Christ services and TDCJ’s decision to reduce the Church of

Christ’s two-hour service by one half-hour. In his grievance,

Freeman requested, inter alia, that the elders from the 37th Street

Church of Christ oversee the inmates’ religious services, that

Church of Christ members be permitted to conduct their services

free from Chaplain Horton’s interference, and that TDCJ restore

their worship time to two hours. TDCJ rejected the grievance and

Freeman’s administrative appeal.

Freeman later circulated a statement to fellow inmates

and non-incarcerated Church of Christ leaders in which he denounced

Chaplain Horton as having “departed from the faith” and requested

that Chaplain Horton be removed from his leadership position over

2

In 1997, Freeman was transferred to the Neal Unit, but was returned

to the Price Daniel Unit in 1998, apparently at the behest of a Texas state

legislator.

Church of Christ members in the prison. In his statement, Freeman

announced that he, and other inmates, were withdrawing “spiritual

fellowship” from Chaplain Horton.3

Freeman asked for, and received, permission to read the

statement during a Church of Christ service in the prison.4

Sometime after Freeman began reading the statement, Chaplain Horton

ordered him to stop. Freeman complied and was escorted out of the

chapel, followed by approximately 50 inmates. The incident was

written up as a major disciplinary infraction for causing a

disturbance, but was later reduced to a minor disciplinary case.

Shortly afterward, Freeman was transferred to the high-security

Allred Unit.

Freeman and Carlos Patterson filed this class action suit

on behalf of themselves and others against TDCJ.5 A class was

certified, comprising TDCJ inmates who subscribe to the Church of

Christ faith. In the complaint, the class alleges that TDCJ’s

failure to provide them an adequate opportunity to practice the

Church of Christ faith violates the Free Exercise and Equal

Protection clauses of the Constitution. The class seeks, inter

alia, a permanent injunction requiring TDCJ to provide additional

3

According to the class’s complaint, “‘[w]ithdrawing fellowship’ is

making a congregational denunciation of an individual’s transgression after

having gone first one-on-one in an attempt to resolve the issue[.]” The class

draws this biblical explanation from Matthew 18:15-17.

4

The record is uncertain whether Chaplain Horton was aware of the

statement’s content when he granted Freeman permission to read the letter.

5

Patterson was designated as the class representative. TDCJ is not

challenging the propriety of the class.

religious accommodations.6 Additionally, Freeman filed a personal

42 U.S.C. § 1983 claim alleging that he was transferred in

retaliation for exercising his First Amendment right to criticize

Chaplain Horton publicly.

TDCJ provides weekly religious services for what it

considers to be the five “major faith sub-groups” in its prisons:

Roman Catholic; Christian/non-Roman Catholic; Jewish; Muslim; and

Native American.7 Under the TDCJ policy, the Church of Christ

falls within the Christian/non-Roman Catholic sub-group. TDCJ

offered evidence that it attempts to place each individual

worshiper with the designated sub-group he would choose on his own,

while recognizing that not all elements of the individual faiths

will be accommodated.

TDCJ also offers a variety of supplemental devotional

opportunities for Church of Christ members. In 41 TDCJ units,

worship services are conducted by Church of Christ volunteers, who

6

Specifically, the requested injunction would: (1) order TDCJ to

recognize the Church of Christ as a Christian religion separate and apart from

other faiths; (2) enjoin TDCJ prison officials from violating Church of Christ

members’ right to worship; (3) order prison officials to allow Church of Christ

members to have one hour of separate worship time each Sunday according to tenets

“essential to their salvation,” i.e., a service that offers communion and

a cappella singing; (4) order TDCJ prison officials to list Church of Christ on

the schedule of available religious services; (5) order TDCJ prison officials to

allow Church of Christ ministers and teachers, from outside the prison, to

conduct individual Bible studies and/or assist with religious services; and

(6) order TDCJ prison officials to allow these outside Church of Christ ministers

and teachers to perform baptism by full immersion at an inmate’s request.

7

These “major faith sub-groups” are selected on the basis of a survey

of prisoners indicating their faith preferences (140 were indicated), and an

analysis of the commonality among those faiths. The survey revealed that there

are about 1,743 Church of Christ members in the Texas prison population,

comprising roughly one percent of the total. In contrast, there are about 47,318

Baptists, 31,211 Roman Catholics, and 8,370 Muslims.

are often able to tailor the services to include communion and

a cappella singing. Immersion baptism may be arranged for and

performed by a Church of Christ minister at the inmate’s request.

Finally, TDCJ permits inmates to meet with an approved spiritual

advisor twice a month.

The district court denied the class’s request for a

permanent injunction, finding that TDCJ policy does not violate the

Supreme Court’s interpretation of inmate free exercise rights.8

The district court also held that the prison officials were

entitled to qualified immunity on Freeman’s § 1983 retaliation

claim.9 The district court granted the defendants’ motion for

summary judgment, and this appeal followed.

II. STANDARD OF REVIEW

We review the district court’s summary judgment decision

de novo. Chriceol v. Phillips, 169 F.3d 313, 315 (5th Cir. 1999).

Summary judgment is warranted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

any affidavits filed in support of the motion, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

The moving party bears the burden of showing that there is an

8

The district court rejected the equal protection claim without

elaboration. However, the district court did conclude, without directly

addressing the equal protection claim, that similarly situated faiths were

treated alike.

9

The district court further determined that Freeman’s retaliation

claim against the prison officials, in their official capacity, was barred by the

Eleventh Amendment and that Freeman could not sue TDCJ, a state agency, under §

1983. Freeman has not appealed these adverse rulings.

absence of evidence to support the nonmoving party’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party

meets this initial burden, the nonmoving party is required to set

forth specific facts showing a genuine issue for trial. FED. R.

CIV. P. 56(e). However, the nonmovant cannot satisfy this burden

with conclusory allegations, unsubstantiated assertions, or only a

scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc).

III. DISCUSSION

This appeal raises three challenges to the district

court’s summary judgment ruling: the dismissal of the class’s free

exercise claim; the dismissal of the class’s equal protection

claim; and the dismissal of Freeman’s retaliation claim. We

address each in turn.

A. Free Exercise Claim

The class alleges that TDCJ’s religious accommodation

policy unconstitutionally impinges on the free exercise of their

chosen faith. TDCJ counters that its policy is the product of

legitimate penological concerns: (1) staff supervision require-

ments; (2) unit and individual security concerns; (3) the

availability of TDCJ-approved religious volunteers to provide

assistance; (4) limited meeting time and space; and (5) the

percentage of the offender population that the requesting faith

group represents. Thus, TDCJ argues that its decision to designate

five major religious sub-groups, while providing supplemental

Church of Christ services when feasible, should be sustained.

Prison regulations that impinge on fundamental constitu-

tional rights are reviewed under the deferential standard set forth

in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987). Under

Turner, “a prison regulation that impinges on inmates’ consti-

tutional rights . . . is valid if it is reasonably related to

legitimate penological interests.” Id. at 89. Turner employs a

four-factor test to resolve this inquiry: (1) whether there is a

rational relationship between the regulation and the legitimate

government interest advanced; (2) whether the inmates have

available alternative means of exercising the right; (3) the impact

of the accommodation on prison staff, other inmates, and the allo-

cation of prison resources generally; and (4) whether there are

“ready alternatives” to the regulation. Id. at 89-91; see also

O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S. Ct. 2400,

2405 (1987). A court “must determine whether the government

objective underlying the regulation at issue is legitimate and

neutral, and that the regulations are rationally related to that

objective.” Thornburgh v. Abbott, 490 U.S. 401, 414-15, 109 S.

Ct. 1874, 1882 (1989); see also Scott v. Miss. Dept. of Corr., 961

F.2d 77, 81 (5th Cir. 1992) (a court need not “weigh evenly, or

even consider, each of these factors,” as rationality is the

controlling standard).

The undisputed summary judgment evidence shows that

TDCJ’s policy satisfies Turner and passes constitutional muster.

Foremost, TDCJ’s regulation is neutral — it “operate[s] . . .

without regard to the content of the expression.” Turner, 482 U.S.

at 90, 107 S. Ct. at 2262; Green v. Polunsky, 229 F.3d 486, 490

(5th Cir. 2000) (beard prohibition neutral because it affected “all

inmates, regardless of their religious beliefs”). There is no

evidence that TDCJ’s policy is targeted toward the Church of Christ

or favors one religious group over another.

TDCJ’s policy is rationally related to legitimate govern-

ment objectives. The policy may be struck down, on this basis,

only if its relationship to the government objective is “so remote

as to render the policy arbitrary or irrational.” Turner, 482 U.S.

at 89-90, 107 S. Ct. at 2262.

First, we agree with TDCJ that staff and space

limitations, as well as financial burdens, are valid penological

interests. See Ganther v. Inge, 75 F.3d 207, 211 (5th Cir. 1996).

“Prison administrators, like most government officials, have

limited resources to provide the services they are called upon to

administer.” Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.

1991).10

10

The class disputes TDCJ’s reliance on financial considerations,

arguing that under Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977),

inadequate resources can never be a justification for depriving an inmate of his

constitutional rights. Smith, however, primarily concerned an Eighth Amendment

challenge to prison confinement conditions. 553 F.2d at 375. The court held

that financial considerations are not a vehicle for circumventing the dictates

of the Eighth Amendment, especially those embodied in prior court orders. But,

such a conclusion in no way detracts from the legitimate place financial

resources, or the lack thereof, hold in the Turner First Amendment equation.

Additionally, the decision to offer worship services to

five broad faith sub-groups, augmented by supplemental religious

services to the other groups, including the Church of Christ, is

eminently reasonable. Although some Church of Christ prisoners may

not be able to attend a service perfectly suited to their faith,

this limitation is dictated by the demands of administering

religious services to tens of thousands of inmates representing

widely divergent faiths. TDCJ’s policy provides the flexibility

needed to accommodate the religious needs, to some degree, of the

entire prison population. Thus, it satisfies the “rational

relationship” test — the paramount inquiry under Turner.

The TDCJ policy also fulfills the remaining Turner

elements. Many of the Church of Christ inmates are given

“alternative means” of exercising their religious beliefs. Turner,

482 U.S. at 90, 107 S. Ct. at 2262. The class argues that the

policy effectively bars the exercise by many Church of Christ

inmates of their constitutional right to attend a Sunday service

that includes communion, singing without instruments, teaching, and

an opportunity for baptism by full immersion. Their evidence

suggests that these elements represent tenets of their faith. In

their view, the imposition on some of the class of participating in

a “generic ‘Protestant’ service” is not a reasonable accommodation.

Moreover, the class contends that if TDCJ is able to offer a

distinctive Church of Christ service in 41 units, then it must do

so in all of them.

This argument is without merit. The pertinent question

is not whether the inmates have been denied specific religious

accommodations, but whether, more broadly, the prison affords the

inmates opportunities to exercise their faith. See Goff v. Graves,

362 F.3d 543, 549 (8th Cir. 2004) (“The critical question for

Turner purposes is whether the prison officials’ actions deny

prisoners their free-exercise rights without leaving open

sufficient alternative avenues for religious exercise.”). The

quintessential rebuttal of the class’s position rests in O’Lone,

where the Supreme Court upheld a regulation that prohibited Muslim

prisoners from attending Friday afternoon services. 482 U.S. at

346-48, 107 S. Ct. at 2403-05. Given the availability of a number

of other Muslim practices in the prison, the Court upheld the

policy. Id.

Likewise, many of the inmates in the instant case reside

in units that schedule supplemental worship services conducted by

Church of Christ volunteers and structured like free-world Church

of Christ assemblies to frequently include communion and a cappella

singing. TDCJ permits Church of Christ members to arrange for

immersion baptism services, permits the possession of religious

literature, and allows inmates to meet with an approved spiritual

advisor. Such supplemental programs, offered in addition to the

weekly Christian/non-Roman Catholic worship services, furnish the

inmates with “alternative means” of exercising their religion. See

Id. at 351-53.

TDCJ persuasively contends that yielding to the class’s

expansive demands would spawn a cottage industry of litigation and

could have a negative impact on prison staff, inmates, and prison

resources. Turner, 482 U.S. at 90, 107 S. Ct. at 2262 (“When

accommodation of an asserted right will have a significant ‘ripple

effect’ on fellow inmates or on prison staff, courts should be

particularly deferential to the informed discretion of correctional

officials.”). Moreover, no obvious, easy alternatives would

accommodate both the class’s requests and TDCJ’s administrative

needs. Turner, 482 U.S. at 90, 107 S. Ct. at 2262. Despite the

class’s arguments to the contrary, prison officials do not “have to

set up and then shoot down every conceivable alternative method of

accommodating the claimant’s constitutional complaint.” Id. at

90-91. The class has not offered an alternate solution that would

expose TDCJ’s policy as an “exaggerated response to prison

concerns.” Id. at 90. In particular, the fact that TDCJ already

allows distinctive Church of Christ worship services in some units

does not demonstrate the feasibility, much less constitutional

imperative, of offering them in all 100+ units. Demands imposed by

security, architecture, number of religious adherents, and schedule

conflicts all potentially limit the grant of further specific

accommodations in every unit. There is no factual basis for our

disregarding TCDJ’s policy choice in these units.

In the end, TDCJ has not abused the substantial

discretion Turner and its progeny afford prison administrators.

“Subjecting the day-to-day judgments of prison officials to an

inflexible strict scrutiny analysis would seriously hamper their

ability to anticipate security problems and to adopt innovative

solutions to the intractable problems of prison administration.”

Id. at 89. TDCJ’s policy offers reasonable accommodations to

permit Church of Christ members to exercise their religion.

Therefore, we affirm the district court’s dismissal of the class’s

First Amendment free exercise claim.

B. Equal Protection Claim

Next, the class alleges that TDCJ violated the Fourteenth

Amendment’s equal protection guarantee by favoring other religions

over the Church of Christ. “To succeed on their equal protection

claim [the class] must prove purposeful discrimination resulting in

a discriminatory effect among persons similarly situated.”

Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (citing

McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987)). However,

the Fourteenth Amendment does not demand “that every religious sect

or group within a prison — however few in numbers — must have

identical facilities or personnel.” Cruz v. Beto, 405 U.S. 319,

322, 92 S. Ct. 1079, 1082 n.2 (1972). Instead, prison adminis-

trators must provide inmates with “reasonable opportunities . . .

to exercise the religious freedoms guaranteed by the First and

Fourteenth Amendments.” Id. Turner applies with corresponding

force to equal protection claims. Williams v. Morton, 343 F.3d

212, 221 (3d Cir. 2003). For the reasons discussed above, TDCJ’s

policy satisfies Turner’s neutrality requirement. The class

offered little or no evidence that similarly situated faiths are

afforded superior treatment, or that TDCJ’s policy was the product

of purposeful discrimination. Accordingly, the class’s equal

protection claim also fails.

C. Freeman’s Retaliation Claim

Freeman challenges the dismissal of his retaliatory

transfer claim on qualified immunity grounds. Federal courts

employ a two-step inquiry to determine whether the individual

defendants are entitled to qualified immunity: First, whether the

facts alleged, taken in the light most favorable to the plaintiff,

establish that the officers’ conduct violated a constitutional

right; second, if a violation of a constitutional right occurred,

whether the right was “clearly established” at that time. See

Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001). The district

court found, under the first stage of this inquiry, that Freeman’s

constitutional right to free speech was not violated. We agree.11

To sustain a § 1983 retaliation claim, Freeman must

establish: (1) the existence of a specific constitutional right;

(2) the defendant’s intent to retaliate for the exercise of that

right; (3) a retaliatory adverse act; and (4) causation. See Woods

v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The key question, in

11

The district court held, in the alternative, that even if the prison

officials had violated Freeman’s right to free speech, the officers’ actions were

objectively reasonable in light of the law as it existed at the time. Because

we conclude that the prison officials did not violate the First Amendment, we

need not reach the district court’s alternative holding. See Siegert v. Gilley,

500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991).

the instant appeal, is whether Freeman’s public criticism of

Chaplain Horton was protected by the First Amendment. “If the

inmate is unable to point to a specific constitutional right that

has been violated, the claim will fail.” Jones v. Greninger, 188

F.3d 322, 325 (5th Cir. 1999) (citing Tighe v. Wall, 100 F.3d 41,

43 (5th Cir. 1996)).

The Supreme Court has admonished that inmates do not

forfeit all constitutional rights when they pass through the

prison’s gates. Jones v. N.C. Prisoner’s Labor Union, 433 U.S.

119, 137, 97 S. Ct. 2532, 2544 (1977) (Burger, C.J., concurring));

Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877 (1979).

However, the Court is equally cognizant of the inherent demands of

institutional correction, the deference owed to prison

administrators, and the subjugation of individual liberty that

lawful incarceration necessarily entails. See Jones, 433 U.S. at

132, 97 S. Ct. at 2541 (recognizing that prison administrators may

curtail an inmate’s ability to exercise constitutional rights to

prevent “disruption of prison order,” ensure stability, or to

advance other “legitimate penological objectives of the prison

environment”). As a result, “a prison inmate retains those First

Amendment rights that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the

corrections system.” Pell, 417 U.S. at 822, 94 S. Ct. at 2804; see

also Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (“A

prison inmate is entitled to his First Amendment right to freedom

of expression so long as it is not inconsistent with his status as

a prisoner and does not adversely affect a legitimate state

interest.”) (citations omitted).

Freeman contends that the defendants violated his First

Amendment right to criticize Chaplain Horton publicly. Freeman

does retain, in a general sense, a right to criticize prison

officials. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995);

Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986) (quoting Ruiz v.

Estelle, 679 F.2d 1115, 1153 (5th Cir.), opinion amended in part

and vacated in part, 688 F.2d 266 (5th Cir. 1982)) (“[P]rison offi-

cials [are] prohibited from ‘retaliation against inmates who com-

plain of prison conditions or official misconduct.’”). But, to

succeed, Freeman must do more than point to the existence of a

generic First Amendment right. He must also establish that he

exercised that right in a manner consistent with his status as a

prisoner.

In Adams v. Gunnell, 729 F.2d 362, 367-68 (5th Cir.

1984), a prison disciplined inmates for collaborating in a prison-

wide petition. While recognizing that prisoners may exercise a

variety of First Amendment rights, the court reasoned,

nevertheless, that where internal grievance procedures are

available, a prison may proscribe the use of internally circulated

petitions if it believes they contain the potential for inciting

violence. Id. at 368 (citing Jones, 433 U.S. at 128, 97 S. Ct. at

2539). Adams thus confirmed the prison’s authority to circumscribe

the manner in which a grievance or criticism right is exercised.

The present case is no different. Prison officials may

legitimately punish inmates who verbally confront institutional

authority without running afoul of the First Amendment. See Goff

v. Dailey, 991 F.2d 1437, 1439 (8th Cir. 1993) (recognizing that a

“prison has a legitimate penological interest in punishing inmates

for mocking and challenging correctional officers by making crude

personal statements about them in a recreation room full of other

inmates”). As in Adams, internal grievance procedures remained

open to Freeman, and in fact, Freeman availed himself of this

process to express his theological disagreements with Chaplain

Horton. Freeman chose, however, to go further and publicly remon-

strate concerning Horton’s “departure from the faith,” theological

errors, and leading of the prisoners into views contrary to Church

of Christ doctrine. His conduct amounted to a public rebuke of

Chaplain Horton, a member of the prison administration’s staff, and

was intended to, and did, incite about 50 other prisoners in a

walkout from the church service. Therefore, the manner of

Freeman’s statement was inconsistent with his status as a prisoner

and is not afforded First Amendment protection.12

12

We note, however, that the situation presented here is fundamentally

different from that in Clarke v. Stalder, 121 F.3d 222 (5th Cir. 1997), vacated

en banc by, 154 F.3d 186 (5th Cir. 1998). In Clarke, the panel rejected a

Louisiana prison rule that prohibited inmates from verbally challenging “the

legality of an official’s actions.” 121 F.3d at 229. First, the panel opinion

was vacated by the grant of en banc rehearing and is not precedential. Second,

this case concerns the much narrower issue of a penalty imposed on a prisoner for

a public verbal challenge to a prison administrator that incited other prisoners’

conduct.

Because Freeman has not demonstrated a violation of his

constitutional rights, summary judgment was properly awarded to the

defendants.

IV. CONCLUSION

For these reasons, the district court’s grant of summary

judgment is AFFIRMED.