Bobby Brown v. Bryan Collier

Case: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 2, 2019

No. 14-20249

Lyle W. Cayce

Clerk

BOBBY R. BROWN, individually and on behalf of all others similarly

situated,

Plaintiff—Appellee,

WILLIAM E. SCOTT,

Intervenor Plaintiff—Appellee,

TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE

FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN

COLLINS; LAMONT EDWARD WILSON,

Intervenor Plaintiffs—Appellees,

v.

BRYAN COLLIER, Executive Director of the Texas Department of Criminal

Justice,

Defendant—Appellant.

**********************************************************

consolidated with 14-20444

BOBBY R. BROWN, individually and on behalf of all others similarly

situated,

Plaintiff—Appellee,

TYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE

FLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN

COLLINS; LAMONT EDWARD WILSON,

Intervenor Plaintiffs—Appellees,

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v.

BRYAN COLLIER, Executive Director of the Texas Department of Criminal

Justice,

Defendant—Appellant.

Appeals from the United States District Court

for the Southern District of Texas

Before KING, DENNIS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts

I, II, III, IV, V and VII:

Pursuant to a provision of the Prison Litigation Reform Act (PLRA), 1 the

Texas Department of Criminal Justice (TDCJ) seeks to terminate a consent

decree entered in 1977, which exempts Muslim inmates from the requirement

that all religious gatherings and activities in Texas state prisons attended by

more than four inmates must be directly supervised by either prison staff or a

prison-approved outside volunteer. The district court denied the motion in

part, concluding that a portion of the consent decree remains necessary to

correct current and ongoing violations of the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 2 the Free Exercise Clause of the First

Amendment, and the Establishment Clause of the First Amendment. We

reverse and terminate the 1977 consent decree.

1 18 U.S.C. § 3626(b).

2 42 U.S.C. § 2000cc, et seq.

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I

More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a

class action against the executive director of TDCJ that resulted in the 1977

consent decree. That decree required TDCJ to make an exception for Muslim

inmates to a policy that otherwise applied to those attending religious

activities. TDCJ’s rules and policies have required religious worship services

or study gatherings attended by more than four inmates to be “directly”

supervised by either prison staff, which would include a chaplain employed by

TDCJ, or a prison-approved outside volunteer. 3 Direct supervision means that

either a TDCJ employee or a qualified volunteer is in the room during the

religious activities at all times and is supervising only those activities, with no

responsibility for supervising other areas of the prison or other inmates until

the activities have concluded. 4 However, when a volunteer is supervising or

leading the religious gathering, a TDCJ officer “will be roving the hallways

checking on the offenders, checking on the volunteers.” 5 If an officer is not

available, the service or activity will be cancelled, even if a volunteer is

scheduled to be present. 6

The 1977 consent decree afforded Muslim inmates the right to

participate in group religious services and studies that were “indirectly”

supervised if no prison staff member or outside volunteer was available for

direct supervision. 7 Indirect supervision means that a prison staff member is

in the vicinity and observes the religious gathering intermittently, through

windows or by the use of audio or video equipment, but does not remain present

3 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).

4 ROA 1432.

5 ROA 2488-89.

6 ROA 2489.

7 See Brown, 17 F. Supp. 3d at 620.

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in the room or area where the activity is occurring. 8 The consent decree also

provided that adherents to the Religion of Islam must be allowed “equal time

for worship services and other religious activities each week as is enjoyed by

adherents to the Catholic, Jewish and Protestant faiths,” and the decree said

that TDCJ must “specifically, allow adherents to the Religion of Islam at least

two (2) full hours of time for worship services or other religious activities each

week, rather than the one (1) hour previously permitted.” 9 In the present

proceedings, the district court found that from 1977 until January 1, 2013,

Muslim, Jewish, Catholic, Protestant, and Native American inmates could

engage in an average of six hours of religious activities each week at units in

which members of each of these faith groups were housed. 10

However, members of other faiths were not permitted to gather as

frequently due to the lack of civilian volunteers. William Scott, a Jehovah’s

Witness, sued the director of TDCJ in federal district court in 2009, seeking an

injunction ordering prison officials to allow him and other members of the

Jehovah’s Witness faith to meet without volunteers, just as Muslims were

permitted to do as a result of the consent decree. The district court’s 2012

opinion and order in the Scott suit reflected that there were 217 offender faith

preferences represented in the TDCJ system, and 59 designated faith groups

at the Huntsville Unit, where Scott had been confined for a period of time. 11

TDCJ asserted that it did not have sufficient staff to provide adequate

supervision of all offender faith groups if they were allowed to meet without

8Id. at 621.

9ROA 40.

10 Brown, 17 F. Supp. 3d at 621.

11 Scott v. Pierce, No. 4:09-CV-3991, 2012 WL 12535442, at *1 (S.D. Tex. May 7, 2012)

(unpublished).

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volunteers present. 12 The district court held in Scott that the Establishment

Clause requires “denominational neutrality,” its “prohibition against

preferential treatment of religion is ‘absolute,’” and that Muslim inmates “are

preferred to Jehovah’s Witnesses with respect to the volunteer policy.” 13 The

court concluded “[i]f alternative means exist to treat Muslim and Jehovah’s

Witness prisoners without favoritism, then the Establishment Clause

demands them.” 14 The district court concluded that injunctive relief based on

the Establishment Clause violation was warranted but did not enter an

injunction at that time. It instead ordered the Executive Director of TDCJ “to

propose a method of compliance” within sixty days. 15 The district court’s

opinion in Scott observed that “if Muslims regularly engage in communal

worship without an approved religious volunteer present, evidence exists that

the government’s rule against Jehovah’s Witnesses’ meetings is not ‘closely

fitted’ to the government’s compelling interest in enforcing the [Brown] consent

decree.” 16

In the Scott litigation, Scott had also requested injunctive relief under

RLUIPA. The district denied that request, reasoning that “the accommodation

of an offender’s religious or spiritual needs does not outweigh a prison’s need

to maintain order and safety,” 17 that “due deference” is to be given to prison

administrators regarding “good order, security and discipline, consistent with

consideration of costs and limited resources,” and “that a rational connection

12 Id. at *2.

13 Id. at *3.

14 Id. at *8.

15 Id. at *5.

16 Id. at *4.

17 Id. at *6.

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exists between” requiring directly supervised religious gatherings “and the

government’s legitimate interest in prison security.” 18

TDCJ responded to the district court’s decision in Scott by promulgating

Administrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties

refer to as the “Scott Plan.” Under the Scott Plan, all religious gatherings of

more than four inmates require direct supervision, including worship and

studies by more than four Muslim inmates. 19 The Scott Plan conflicts with the

1977 consent decree that permitted Muslim inmates to congregate with only

indirect supervision. Under the Scott Plan, each religious group is permitted

to have a group worship service for one hour per week that is directly

supervised by prison staff. Additional group religious activities are permitted

if supervised by an outside, authorized volunteer. 20

In the present case, and as a result of the district court’s conclusion in

the Scott case that TDCJ had violated the Establishment clause by preferring

adherents to the Religion of Islam over the Jehovah’s Witness faith group,

TDCJ moved to terminate the 1977 Brown consent decree pursuant to the

PLRA. 21 The PLRA provides that “in any civil action with respect to prison

conditions in which prospective relief is ordered, such relief shall be terminable

upon the motion of any party or intervenor,” if the order has been in effect for

a certain period of time, unless “the court makes written findings based on the

record that prospective relief remains necessary to correct a current and

ongoing violation of the Federal right, extends no further than necessary to

18 Id. at *6.

19 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).

20 Id. at 623; see ROA 3080, 3284-85, 4105.

21 ROA 72-82.

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correct the violation of the Federal right, and that the prospective relief is

narrowly drawn and the least intrusive means to correct the violation.” 22

Pursuant to provisions of the PLRA, TDCJ’s motion operated as an

automatic stay of the 1977 Brown consent decree, 23 allowing TDCJ to

implement the Scott Plan pending further proceedings in the district court.

Accordingly, the direct supervision requirement for all religious groups in

TDCJ prisons, including members of the Religion of Islam, went into effect in

2013. 24

After the implementation of the Scott Plan, Muslim inmates may attend

a weekly, one-hour Jumu’ah service directly supervised by TDCJ chaplains or

employees, but opportunities for Muslim prisoners to participate in other

communal worship or studies diminished due to a dearth of Muslim volunteers

from outside the prison system. 25 Protestant and Catholic prisoners, by

contrast, maintained the ability to engage in group worship or study in

addition to the one-hour, weekly service directly supervised by TDCJ-

employees because of a relative abundance of outside volunteers. 26

The district court held an evidentiary hearing on TDCJ’s motion to

dissolve the 1977 decree. That decree had twenty-two specific provisions,

twenty of which the district court terminated without objection by any party.

But the district concluded that two provisions were necessary to correct current

and ongoing violations of the federal Constitution and to give effect to statutory

rights of Muslim inmates, effectively rejecting the Scott Plan as it applies to

22 18 U.S.C. § 3626(b)(2)-(3).

23 Id. § 3626(e).

24 ROA 3077.

25 ROA 1951, 1953.

26 ROA 1953.

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Muslim inmates. 27 One of the two provisions of the 1977 consent decree that

the district court refused to dissolve, found in section III(15) of the decree,

required TDCJ officials to “[a]llow adherents to the Religion of Islam at each

unit of the Texas Department of Corrections equal time for worship services

and other religious activities each week as is enjoyed by adherents to the

Catholic, Protestant and Jewish faiths.” 28 The other provision that the district

court ordered be left intact is found in section III(8) of the consent decree, which

required TDCJ officials to permit inmates professing adherence to the Religion

of Islam to congregate for worship, study, and other religious functions and

activities under the supervision of an inmate leader whenever an ordained

Islamic minister is unavailable at a regularly scheduled time for worship and

study. 29

The district court focused on three required practices of the Islamic

faith—Jumu’ah, Taleem, and Qur’anic studies—that necessitate group

gathering. 30 The district court concluded that the one hour of direct

supervision per week allotted to the roughly 6,775 Muslim inmates in Texas

state prisons by TDCJ staff under the Scott Plan is not enough time to meet

the requirements of Jumu’ah, Taleem, and Qur’anic studies, 31 and that the

number of Muslim chaplains employed by the TDCJ, and of available Muslim

volunteers, is insufficient to provide adequate group study and worship. 32 The

district court found that by contrast, Christian inmates are able to attend an

average of six hours of religious gatherings per week, due to the large number

27 See ROA 1979-80.

28 ROA 40

29 ROA 36-37.

30 ROA 1956-58.

31 ROA 1951, 1958.

32 ROA 1951, 1958.

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of Christian volunteers available to supervise such assemblages directly. 33 The

court concluded that “Jewish inmates are specifically assigned to units” that

are in closer proximity to prospective volunteers, and Native American

inmates are assigned to a specifically designated unit to facilitate access to one

another and to enhance Native American religious activities. 34 The TDCJ has

not assigned Muslim prisoners to specifically designated units. 35

The district court held that the Scott Plan and its direct supervision

requirement result in violations of three different federal rights. Specifically,

the district court held that the Scott Plan (1) unjustifiably imposes a

substantial burden on Muslim inmates’ religious exercise, thereby violating

RLUIPA; 36 (2) restricts Islamic religious exercise in violation of the Free

Exercise Clause of the First Amendment; 37 and (3) disfavors Islam and favors

other faiths, violating the Establishment Clause of the First Amendment. 38

Subsequently, the district court awarded attorneys’ fees in favor of Brown and

a group of Muslim inmates who intervened in the case (the Inmate Intervenors)

as prevailing parties. 39

The TDCJ appeals both the district court’s denial of its motion to

terminate the consent decree and the award of attorneys’ fees. A motions panel

of this court ordered that the district court’s judgment on the merits be stayed

pending appeal. 40

33 ROA 1953.

34 ROA 1964-65.

35 ROA 1965.

36 ROA 1975-77.

37 ROA 1970-75.

38 ROA 1966-70.

39 ROA 2021.

40 Brown v. Livingston, No. 14-20249, Doc. No. 32 (5th Cir. May 20, 2014); see also

Brown v. Livingston, No. 14-20249, Doc. No. 61 (5th Cir. June 5, 2014) (denying

reconsideration).

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II

We have held that “[t]he application of the relevant sections of the PLRA

requires the district court to make a finding of an ongoing constitutional

violation, which is a mixed question of law and fact,” 41 and that “[w]e review

mixed questions of law and fact de novo.” 42 with the definite and firm

conviction that a mistake has been committed.’” 43

III

“The PLRA strongly disfavors continuing relief through the federal

courts; indeed, its fundamental purpose was to extricate them from managing

state prisons.” 44 As noted above, prospective relief like the consent decree at

issue in this case must be terminated on the motion of any party unless such

relief “remains necessary to correct a current and ongoing violation of the

Federal right, extends no further than necessary to correct the violation of the

Federal right, and . . . is narrowly drawn and the least intrusive means to

correct the violation.” 45 The 1977 consent decree applies to the entire TDCJ

prison system and “terminates unless the district court makes [the requisite]

41 Castillo v. Cameron Cty., 238 F.3d 339, 347 (5th Cir.2001) (citing Inmates of Suffolk

Cty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)); see also Ruiz v. United States, 243 F.3d

941, 950 (5th Cir. 2001).

42 Castillo, 238 F.3d at 347 (citing Cargill, Inc. v. United States, 173 F.3d 323, 333 n.13

(5th Cir. 1999)).

43 Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States

v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original); id. at 573-74

(“If the district court's account of the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently. Where there are

two permissible views of the evidence, the factfinder's choice between them cannot be clearly

erroneous.”).

44 Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per

curiam) (citation and internal quotation marks omitted).

45 18 U.S.C. § 3626(b)(2)-(3).

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findings” and “also finds ongoing, system-wide violations.” 46 We have held that

“the burden of proof to support these findings is obviously on the party

opposing termination.” 47

The district court found violations of RLUIPA, the Free Exercise Clause,

and the Establishment Clause. It is important to bear in mind in our analysis

that our focus ultimately remains on the PLRA. No inmate has brought a free-

standing claim that he is entitled to injunctive relief under RLUIPA or the

Constitution.

The relief granted by the district court was not limited to continuing the

1977 Consent Decree in effect. The PLRA does not authorize the district court

to expand the consent decree. The district court erred in doing so. The

remaining inquiry under the PLRA is whether there is an ongoing violation of

a federal right.

IV

We first consider RLUIPA. It states, in relevant part:

No government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an

institution, as defined in section 1997 of this title, even if the

burden results from a rule of general applicability, unless the

government demonstrates that imposition of the burden on that

person—

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

and

(2) is the least restrictive means of furthering that

compelling governmental interest. 48

46 Guajardo, 363 F.3d at 395.

47 Id. at 396.

48 42 U.S.C. § 2000cc-1(a).

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RLUIPA prevents government practices that substantially burden the

religious exercise of an inmate unless the practice furthers a compelling

governmental interest and is the least restrictive means of doing so.

Initially, “it falls to the plaintiff to demonstrate that the government

practice complained of imposes a ‘substantial burden’ on his religious

exercise.” 49 To demonstrate a substantial burden, “the plaintiff must show

that the challenged action ‘truly pressures the adherent to significantly modify

his religious behavior and significantly violate his religious beliefs.’” 50 If the

inmate makes this showing, the burden shifts to the government “to show that

its action or policy is the least restrictive means of furthering a compelling

interest.” 51 In making this assessment, we 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.” 52

However, the Supreme Court has made clear that even when prison

regulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the asserted

harm of granting specific exemptions to particular religious claimants’ and ‘to

look to the marginal interest in enforcing’ the challenged government action in

that particular context.” 53

The district court held that (1) Muslim prisoners’ religious exercise is

“substantially burdened” by the Scott Plan’s direct supervision requirement

49 Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004) (citing 42 U.S.C. § 2000cc-2).

50 Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (quoting Adkins, 393 F.3d at

570).

51 Chance v. Tex. Dep't of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013).

52 Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).

53 Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (quoting Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 726-27 (2014)).

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because it causes them to forgo group religious practices that they sincerely

believe are required by their faith, 54 (2) the State has failed to prove that the

policy’s application to Muslim prisoners actually advances prison security or

any other “compelling governmental interest,” 55 and (3) even if direct

supervision does advance a compelling interest, it is not the least restrictive

means of doing so. 56 Brown, the Inmate Intervenors, and several amici

contend on appeal that the Scott Plan’s direct supervision requirement imposes

a substantial burden because it limits Muslim inmates to one hour of group

religious services per week, which, they assert, is insufficient time to complete

weekly Jumu’ah, Taleem, and Qur’anic studies as required by their religious

beliefs. They also assert that permitting indirect supervision of these services

does not raise security issues and that TDCJ could provide direct supervision

at little additional cost.

TDCJ contends that it is not the direct supervision policy that limits

opportunities for Muslim inmates to participate in Taleem and Qur’an Studies

but instead, it is a lack of volunteers to supplement the teaching and worship

opportunities supervised by TDCJ Muslim chaplains and TDCJ staff.

Precedent from this court supports such a conclusion. TDCJ’s policy allows

Muslim volunteers to conduct services and studies for and with inmates. But,

as the district court expressly found, “despite specific and concerted efforts over

the past years to recruit volunteers to participate in Muslim religious activities

at the prison, TDCJ has been unsuccessful in securing a significant number of

Muslim religious volunteers.” 57

54 ROA 1975-76.

55 ROA 1976-77.

56 ROA 1977.

57 ROA 1953.

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This court has considered several challenges under RLUIPA to TDCJ’s

policy that religious worship and study when more than four inmates are

involved must be directly supervised by a TDCJ employee or a TDCJ-approved

volunteer. 58 In Adkins v. Kaspar, the plaintiff was a member of the Yahweh

Evangelical Assembly (YEA). 59 Like the Muslim inmates in the present case,

he complained that the direct supervision requirement, together with a

shortage of outside YEA volunteers, deprived him of adequate opportunities

for group religious practice. 60 This court held that the lack of opportunity for

group religious practice resulted “not from some rule or regulation that directly

prohibits such gatherings” but instead “from a dearth of qualified outside

volunteers available to go to [the prison].” 61 We concluded in Adkins that the

TDCJ’s policies had not imposed a substantial burden on the plaintiff. 62

Subsequently, in Baranowski v. Hart, an inmate had protested the

recurring failure of one of the TDCJ’s prisons to allow for group religious

services on Jewish holy days. 63 This court took note of the fact that on each of

the days on which religious services were not held, “no rabbi or approved

religious volunteer was available to lead the services.” 64 As in Adkins, the

court held that the lack of volunteers, and not the direct supervision

requirement, caused the religious gatherings to be infrequent, such that “the

acts of Defendants regarding religious services have not placed a substantial

58 See, e.g., Mayfield v. Tex. Dep’t Crim. Justice, 529 F.3d 599 (5th Cir. 2008);

Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393 F.3d 559, 571 (5th

Cir. 2004).

59 393 F.3d at 562.

60 Id. at 562, 571.

61 Id. at 571.

62 Id.

63 486 F.3d at 124-25.

64 Id. at 124.

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burden on Baranowski’s free exercise of his Jewish faith, within the

contemplation of RLUIPA.” 65

These decisions did not adopt a per se rule. We said in Adkins that

“whether the government action or regulation in question imposes a

substantial burden on an adherent's religious exercise” “requires a case-by-

case, fact-specific inquiry.” 66 In Mayfield v. Texas Department of Criminal

Justice, 67 an Odinist submitted affidavits averring that group worship

meetings known as Blotar should be conducted on a monthly basis at a

minimum. 68 There was evidence that outside volunteers came only once every

18 months to conduct Blotar, and Odinists inmates were “unable to conduct

Blotar on a regular basis because the TDCJ requires that they have a security-

trained, religious volunteer present for their group meeting.” 69 But there was

also evidence in Mayfield that the volunteer policy was not imposed uniformly

because an exception was made for Muslim inmates in order to comply with

the consent decree that is at issue in the case now before us. 70 Pertinent to our

analysis in the present case, we said in Mayfield that “[b]ecause the volunteer

policy was implemented uniformly in the Adkins case, it was not the policy

imposing the burden on Adkins’ religious practice, but instead the lack of

qualified volunteers.” 71

65 Id. at 125 (citing Adkins, 393 F.3d at 571); see also Odneal v. Pierce, 324 F. App’x

297, 302 (5th Cir. 2009) (unpublished) (affirming grant of summary judgment because “the

infrequency of Native American services at the McConnell Unit is due to a dearth of outside

volunteers rather than any regulation directly prohibiting these ceremonies”).

66 393 F.3d at 571.

67 529 F.3d 599 (5th Cir. 2008).

68 Id. at 602.

69 Id.

70 Id. at 608.

71 Id. at 614.

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The present case differs materially from Mayfield because in the case

before us, there is no evidence that “calls into question the uniformity of the

policy’s application.” 72 The direct supervision requirement under the Scott

Plan has been imposed uniformly, as it was in Adkins. Accordingly, applying

our precedent as we are bound to do, it is not the Scott Plan that has imposed

a burden on Muslim inmates’ religious exercise. It is the lack of volunteers

who adhere to the faith of Islam.

V

The district court also held that the Consent Decree remains necessary

to remedy ongoing violations of the Free Exercise Clause. 73 The district court

recognized that “the Fifth Circuit Court of Appeals has upheld TDCJ’s

volunteer policy,” citing Baranowski, Adkins, and an unpublished opinion, 74

but concluded that we had done so “on a record very different from the ones in

the present case.” 75 We disagree with the district court’s conclusions in that

regard.

The district court did not discuss or cite the Supreme Court’s decision in

O’Lone v. Estate of Shabazz, 76 in which Muslim inmates brought challenges

based on the Free Exercise clause to “policies adopted by prison officials which

resulted in their inability to attend Jumu’ah, a weekly Muslim congregational

service regularly held in the main building” of the prison on Fridays. 77 The

prison officials in O’Lone refused to exempt Muslim inmates from working

72 Id.

73 Brown v. Livingston, 17 F. Supp. 3d 616, 632-33 (S.D. Tex. 2014).

74 Id. (citing Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393

F.3d 559 (5th Cir. 2004); and Odneal v. Pierce, 324 Fed. App’x 297 (5th Cir. 2009)).

75 Id.

76 482 U.S. 342 (1987).

77 Id. at 345.

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outside the main building on Friday afternoons, and therefore, they were

unable to attend Jumu’ah. The Supreme Court held that this “did not violate

respondents’ rights under the Free Exercise Clause of the First Amendment.” 78

The Supreme Court applied the standard of review set forth in Turner v.

Safley, 79 ultimately concluding that “[w]e take this opportunity to reaffirm our

refusal, even where claims are made under the First Amendment, to

‘substitute our judgment on . . . difficult and sensitive matters of institutional

administration . . . for the determinations of those charged with the formidable

task of running a prison.” 80

Under Turner, we consider:

(1) whether a “valid, rational connection exists between the prison

regulation and the legitimate governmental interest put forward

to justify it,” (2) whether there exist “alternative means of

exercising the fundamental right that remain open to prison

inmates,” (3) what “impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on

the allocation of prison resources generally,” and (4) whether there

is an “absence of ready alternatives” to the regulation in

question. 81

Applying these factors to the case presently before us, we cannot agree with

the district court that the TDCJ’s direct supervision requirement fails Turner’s

rationality review and violates the Free Exercise clause.

A

The Supreme Court explained in Turner that in analyzing whether there

is a “‘valid, rational connection’ between the prison regulation and the

78 Id.

79 482 U.S. 78 (1987).

80 O’Lone, 482 U.S. at 353.

81 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration omitted) (quoting

Turner, 482 U.S. at 89-90).

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legitimate governmental interest put forward to justify it, . . . the

governmental objective must be a legitimate and neutral one.” 82 The Court

continued, “[w]e have found it important to inquire whether prison regulations

restricting inmates' First Amendment rights operated in a neutral fashion,

without regard to the content of the expression.” 83 The Scott Plan is uniform.

It applies to all religions, without regard to the what beliefs or principles are

held or espoused. 84

The TDCJ contends that the legitimate government interest at stake in

imposing the direct supervision requirement is ensuring prison security,

especially in light of the TDCJ’s limited resources. It asserts that direct

supervision, including that undertaken by volunteers, deters wrongful

behavior, and that the direct supervision provided by volunteers differs from

that provided by inmates. Volunteers are more likely to report violations than

inmates. These common-sense justifications are sufficient to establish a

rational connection between direct supervision and prison security. 85 “[I]t

cannot seriously be maintained that ‘the logical connection between the

regulation and the asserted goal is so remote as to render the policy arbitrary

or irrational.’” 86

These justifications are also amply supported by the record,

notwithstanding the district court’s conclusion that direct supervision of

82 Turner, 482 U.S. at 89-90.

83 Id. at 90.

84 See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 608 (5th Cir. 2008) (“In

prior cases where we have affirmed summary judgment on similar § 1983 claims, we have

relied on the neutrality of the prison’s policy in doing so.”).

85 Cf. Jones v. Brown, 461 F.3d 353, 361 (3d Cir. 2006) (“[W]here the connection is

obvious, common sense may suffice[.]”).

86 O’Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (quoting Turner v. Safley, 482

U.S. 78, 89-90 (1987)).

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Muslim services is not necessary to promote safety. The district court’s focus

solely on Muslim services was in error. The question is whether the TDCJ’s

policy, which applies to all inmates, not just Muslim inmates, is rationally

connected to prison security and safety. There is unrefuted evidence that

security issues arise during directly supervised worship. It stands to reason

that opportunities for disruption or violence would increase if worship services

were only indirectly supervised. Though the district court refused to permit

TDCJ to offer evidence that fights or assaults at services other than Muslim

services had occurred, 87 the record nevertheless establishes that direct

supervision of inmate religious gatherings of more than four individuals

furthers legitimate government interests. The district court’s findings and

conclusions to the contrary are not supported by the record or common sense.

It is undisputed that when the consent decree regarding Muslim inmates

was in effect, “[a]ll the other faith groups were [directly] supervised,” which

meant a chaplain, volunteer or a correctional officer was in the room with the

inmates, “not just someone roving, walking by, checking on them frequently.” 88

When the consent decree was in effect, TDCJ required direct supervision of the

more than 132,000 non-Muslim inmates. Presently, under the Scott Plan,

TDCJ requires direct supervision of all inmates when worshiping because

otherwise, as a TDCJ employee testified, “we’d have large amounts of offenders

meeting without direct supervision, and anything can happen in a prison,”

such as “escape attempts,” “staff assaults,” and “inmate assaults.” 89 The

evidence is undisputed that offenders with histories of serious criminal conduct

attend worship services. “Some of these offenders are G4 offenders that have

87 ROA 2699.

88 ROA 4079-80.

89 ROA 4081.

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escape histories, they have assault histories, they’re confirmed gang members

even though they’re out in the offender population, they have a history of staff

assaults, inmate assaults. You’ve got all these offenders coming into one area

of the facility to congregate, and anytime you have a large group of offenders

and even sometimes a small group of offenders, that’s areas that we need to

directly supervise for public safety, for the safety of staff and the safety of the

inmate population.” 90

There was testimony that having personnel “in there to respond to that

when something’s happening during a service,” 91 rather than camera

surveillance, is necessary because a person in the room is “getting the tone of

the service or the cell block and watching the offenders, if they’re grouping up

or, you know, just how the offenders are acting that particular day,” and

“[y]ou’re not going to get that through a video surveillance system.” 92

An expert witness who was formerly a warden in Florida testified that

altercations occurred during religious services in the units he supervised, some

of which involved “a serious incident of bodily harm.” 93 This witness also

testified that if inmates are leading a service, security is needed, and having a

person in the room observing them is the “best form” of security. 94 He also

confirmed that “some offenders have custody levels that make them

dangerous”; when they are present in religious services, it is important to have

security; and that the “best way” of supervision in those cases is direct

supervision. 95 But more broadly, he testified that in light of his experience, a

90 ROA 4078.

91 ROA 4081.

92 ROA 4042.

93 ROA 2821.

94 ROA 2894.

95 ROA 2894-95.

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security presence in the form of a volunteer or a chaplain observing and

directly supervising the inmates in the service “needs to be there in a religious

service to prevent inmates from conducting any disruptive or criminal activity

in a service.” 96

A TDCJ Muslim inmate who testified at the hearing confirmed that he

has seen “fights break out” at “church services” other than Muslim services,

and that the prison in which he was incarcerated was “locked down” as a result

of “fights [that] have taken place in church services.” 97

There was also unrefuted testimony from TDCJ that “we have a Prison

Rape Elimination Act that we have to come into compliance with. There are

almost 50 standards that we’re trying to come into compliance with, and the

only way we can come in compliance with that is to make sure that we have

appropriate supervision of our offender population.” 98 Relatedly, the National

Prison Rape Elimination Commission Report 6 (June 2009) recommends direct

supervision of inmates should be used “wherever possible” “because it is the

most effective mode of supervision for preventing sexual abuse and other types

of violence and disorder.” 99 That Commission made the following finding and

recommendation:

Supervision is the core practice of any correctional agency,

and it must be carried out in ways that protect individuals from

sexual abuse. The Commission believes it is possible to meet this

standard in any facility, regardless of design, through appropriate

deployment of staff. Direct supervision, which features interaction

between staff and prisoners, should be used wherever possible

96 ROA 2903.

97 ROA 2697-98.

98 ROA 4078.

99 Nat’l Prison Rape Elimination Commission Report, 6 (2009), available at

https://www.ncjrs.gov/pdffiles1/226680.pdf.

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because it is the most effective mode of supervision for preventing

sexual abuse and other types of violence and disorder. 100

The district court’s own findings reflect that if TDCJ were to permit

adherents of each faith to gather in groups of more than four with only indirect

supervision, security risks would exist. The district court recognized “there is

evidence that the more serious incidents that occurred at or near religious

activities occurred during Catholic and Protestant services even though a

Chaplain, prison guard, or outside volunteer was present.” 101 Yet, the district

court concluded that this was not evidence of a need for direct supervision of

inmates during religious activities.

The district court’s conclusion in this regard appears to be based upon a

“Finding of Fact” that the “practice of permitting inmate-led services, as

described in the Consent Decree, was the ‘usual’ practice in prison systems.” 102

The district court cited the testimony of three witnesses in support of this

conclusion, but read in context, each witness said that in the wake of the

Consent Decree in the present case, prisons in some other jurisdictions had

adopted the provisions of the Consent Decree for Muslim inmates, not for

inmates of other faiths.

The district court’s opinion states:

McAndrew testified that prisons use methods other than direct

supervision to ensure security at religious meetings, such as roving

patrols and visual observations through windows. He also testified

that, in his experience, the practice of permitting inmate-led

services, as described in the Consent Decree, was the “usual”

practice in prison systems. 103

100 Id.

101 Brown v. Livingston, 17 F. Supp. 3d 616, 628 (S.D. Tex. 2014).

102 Id.

103 Id.

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This is incorrect. McAndrew testified that after the consent decree in

the present case was entered, an unspecified number of prisons used the

consent decree as a model for a policy regarding Muslim inmates and have

allowed indirectly supervised, inmate-led religious meetings by Muslim

inmates. 104 McAndrew did not testify that indirect supervision is a “usual”

practice with regard to any other faith group.

The district court also relied upon the testimony of a former Chaplain in

New York, Ibrahim Ezghair. Ezghair recounted that a state prison system less

than half the size of the Texas system had adopted and implemented the terms

of the consent decree at issue in the present case and had “experienced no

security or safety threats or events involving inmate-led or indirectly

supervised Muslim religious activities.” 105 The district court characterized

another Muslim Chaplain’s testimony, that of Chaplain Shabazz, as saying

that “many prison systems throughout the United States” permit indirect

supervision of inmate-led religious activities by Muslims, and that the witness

was “unaware of any safety concerns.” 106 This evidence is not only conclusory

and lacking in specificity, it is myopically focused on Muslim services. It is not

evidence that indirect supervision of religious services in prisons as a general

proposition presents no safety concerns. None of these witnesses testified that

prisons have permitted or reasonably should permit virtually all worship or

religious activities by inmates to occur with only indirect supervision.

In a letter to this court, the plaintiffs assert that “the Consent Decree

regime is the model followed by penal institutes throughout the nation.” The

plaintiffs do not provide any specificity in this regard. They cite to one page in

104 ROA 2792-93.

105 Brown, 17 F. Supp. 3d at 627.

106 Id.

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the district court’s opinion in this case, 107 which in turn relied on conclusory

testimony, just discussed above, from two witnesses regarding indirect

supervision of Muslim religious gatherings adopted by some prison systems in

the wake of the consent decree that is presently at issue. 108 None of that

testimony averred that indirect supervision of religious gatherings for inmates

has been widely accepted or even that indirect supervision of Muslin inmates,

admittedly modeled after the consent decree in the present case, has been

widely accepted.

The plaintiffs’ letter to this court also cites an amicus brief by four

individuals who denominate themselves “Former Prison Wardens.” That brief

relates those individuals’ own experiences, which amounts to unsworn

testimony that is not part of the record in this case and is not subject to cross-

examination. In support of the assertion that “monitoring through indirect

supervision is a common method of ensuring security for inmate-led worship,”

the amicus brief cites regulations in four jurisdictions. 109 The existence of such

policies in four states does not establish that the Federal Government, the vast

majority of States, or even a bare majority of the States, have such a policy.

We also know from court decisions around the country that at least

seventeen other jurisdictions do not permit inmates to gather for religious

exercise without direct supervision. 110 “‘While not necessarily controlling, the

107 Brown, 17 F. Supp. 3d at 627.

108 See Brown, 17 F. Supp. 3d at 627.

109 Cal. Code Regs., tit. 15, § 3211(a); 03-201 Me. Code R. Ch. 10, Subs. 24.3, § VI; Kan.

Admin. Regs. 44-7-113; N.Y. Comp. Codes R. & Regs. tit. 9, § 7024.2.

110 See, e.g., Hall v. Sutton, 581 F. App’x 580, 581 (7th Cir. 2014) (Illinois); Turner v.

Hamblin, 590 F. App’x 616, 619‑20(7th Cir. 2014) (Wisconsin); Bader v. Wrenn, 675 F.3d 95,

96 (1st Cir. 2012) (New Hampshire); Hathcock v. Cohen, 287 F. App’x 793, 800‑01 (11th Cir.

2008) (per curiam) (Florida); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.

Jan. 6, 2000) (Michigan); Manges v. Harman, No. 3:11‑CV‑369 PPS, 2014 WL 5488457, at

*10 (N.D. Ind. Oct. 29, 2014); Guess v. McGill, No. 9:13‑cv‑02260‑TLW, 2014 WL 5106735, at

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policies followed at other well-run institutions would be relevant to a

determination of the need for a particular type of restriction.’” 111

The amicus brief additionally asserts that an expert witness at the

hearing, Ron McAndrew, “testified that allowing indirectly supervised, inmate-

led services was a ‘usual’ practice in other prison systems.” This is misleading.

McAndrew testified that after the consent decree in the present case was

entered, an unspecified number of prisons used the consent decree as a model

for a policy regarding Muslim inmates and have allowed indirectly supervised,

inmate-led religious meetings by Muslim inmates. 112 McAndrew did not testify

that this is a “usual” practice with regard to any other faith group.

The amicus brief also quotes snippets of testimony from another expert

witness at the hearing, Alexander Taylor, asserting that he “testified that ‘the

most common practice . . . is where the chaplain in the building is able to do

that roving type of observation, sitting in as needed . . . .’” But read in its

entirety, that was not the import of Taylor’s testimony. He said a chaplain

roving during services “sit[s] in as needed, and sometimes through entire

services.” 113 But more importantly, he testified that though such a roving

*10‑11 (D. S.C. Oct. 10, 2014); Leishman v. Patterson, No. 2:11‑CV‑00309 CW, 2014 WL

2117543, at *6‑7 (D. Utah May 21, 2014); Vega v. Lantz, No. 3:04CV1215(DFM), 2013 WL

6191855, at *5, *8 (D. Conn. Nov. 26, 2013); Ericson v. Magnusson, No. 2:12‑cv‑00178‑JAW,

2013 WL 2634761, at *4 (D. Me. June 12, 2013); Howard v. Wiglesworth, No. 5:10cv163‑RHW,

2012 WL 3867011, at *5 (S.D. Miss. Sept. 5, 2012); Countryman v. Palmer, No.

3:11‑cv‑00852‑ECR‑VPC, 2012 WL 4340659, at *5 (D. Nev. Aug. 7, 2012); De’Lonta v.

Johnson, No. 7:11‑cv‑00175, 2012 WL 2921762, at *2 (W.D. Va. Jul. 17, 2012); Montague v.

Corr. Corp. of Am., No. 3:10‑cv‑0443, 2011 WL 3476543, at *3 (M.D. Tenn. Aug. 8, 2011);

Jihad v. Fabian, No. 09‑1604 (SRN/LIB), 2011 WL 1641885, at *19 (D. Minn. Feb. 17, 2011);

Strutton v. Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *47 (E.D. Mo. Mar. 31,

2010); Morrison v. Cook, No. 97‑57‑ST, 1999 WL 717218, at *4‑5 (D. Or. Apr. 27, 1999).

111 Holt v. Hobbs, 135 S.Ct. 853, 866 (2015) (quoting Procunier v. Martinez, 416 U.S.

396, 414, n.14 (1974)).

112 ROA 2792-93.

113 ROA 2891.

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practice is employed, “oftentimes” it is “not” the most common practice. 114 He

then explained that “[q]uite frequently” there is “direct supervision, having

someone physically in the room.” 115 He testified that, in lower security

institutions, “constant supervision isn’t quite as well practiced.” 116 “[D]irect

supervision, having someone physically in the room, is utilized in religious

services . . . quite frequently.” 117 “[S]pecific circumstances” when direct

supervision is used depends on the custody level of the institution, but even in

lower security units, when there are large numbers of inmates, a security

officer would be present:

[E]very institution has a profile for the type of custody levels that

they embrace. And the higher the custody level, the more difficult

the prison population is, the more likely you will have constant

supervision.

With the less, lower security level institutions, then the

constant supervision isn't quite as well practiced. In there, you

would have somebody, you know – a chaplain would be there, and

the service may take part while the chaplain is moving from room

to room. But another reason for the provision of a security officer

is simply the numbers. When there are large numbers of inmates,

we want to have appropriate supervision. 118

Taylor made clear that when he was a chaplain in a Florida prison, there

was indirect supervision in an inmate-led service only “[w]hen there are

smaller services and there is [sic] only a few inmates.” 119 At the time of the

hearing, there were 6,775 Muslim inmates 120 in 96 prisons across Texas. 121

114 ROA 2891.

115 ROA 2891.

116 ROA 2892.

117 ROA 2891.

118 ROA 2891-92.

119 ROA 2906.

120 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).

121 Id. at 623.

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Averaging the number of inmates across 96 prisons would mean that 70

Muslim inmates in each prison would potentially attend services and other

religious activities. We know from some of the findings of the district court

that in at least one prison, in Childress County, there were 53 Muslim

inmates. 122 But if only 53 inmates in each prison desired to attend group

worship or study, that is a significant number.

Taylor also testified that, based on his experience in Texas and Florida,

when “inmates are leading a service . . . having someone there in person

observing them” would be “the best form” of security. 123 He also confirmed that

in services in which “some offenders who have a custody levels that make them

dangerous” are present, the “best way” of supervising is “direct supervision.” 124

He summarized and reiterated his opinion that direct supervision “needs to be

there in a religious service to prevent inmates from conducting any disruptive

or criminal activity in a service.” 125

The district court’s “Findings of Fact” state that “[d]uring the thirty-five

years the Consent Decree was in effect and being adhered to by TDCJ, there

has been no evidence of a single reported or known incident involving a serious

security risk to the prison, its staff, inmates or the public at large involving

inmate-led Muslim religious activity.” 126 The district court then reasoned that

“[i]n other words, adherence to Sections III(8) and III(15) of the Consent

Decree,” which exempts only Muslim inmates from direct supervision, “has not

122 Id. at 624.

123 ROA 2894.

124 ROA 2894-2895.

125 ROA 2903.

126 Brown, 17 F. Supp. 3d at 621.

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presented or posed a threat to the security or safety of the institution or the

public.” 127

The implicit assumption underlying this ruling, and the plaintiffs’

arguments, is that Muslim inmates have been relatively peaceful in the past

when indirectly supervised, and therefore, all present and future Muslim

inmates, unlike inmates of other faiths, pose no threat to security, safety or

order within the TDCJ system of 111 prisons. Muslim inmates therefore must

be permitted to conduct inmate-led religious gatherings without direct

supervision. This rationale is problematic for at least two reasons: (1) it

ignores evidence that there is a need for direct supervision of Muslim inmates,

and (2) it gives disparate, preferential treatment to Muslim inmates over

inmates of other faiths.

Courts have recognized that permitting inmates to lead worship services

without appropriate supervision can create hierarchies that are detrimental to

a prison’s discipline structure. The Seventh Circuit, for example, has observed

that “allow[ing] inmates to conduct their own religious services [is] a practice

that might not only foment conspiracies but also create (though more likely

merely recognize) a leadership hierarchy among the prisoners.” 128 Relatedly,

the Supreme Court credited testimony in O’Lone v. Estate of Shabazz that

allowing “‘affinity groups’ in [a] prison to flourish” leads to “‘a leadership role

and an organizational structure that will almost invariably challenge the

institutional authority’” and that “special arrangements for one group would

create problems as ‘other inmates [see] that a certain segment is escaping’” a

prison requirement applicable to all others. 129 The “affinity group” in O’Lone

127 Id.

128 Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).

129 482 U.S. 342, 353 (1987).

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was comprised of Muslim inmates seeking exemption from work details on

Friday afternoons in order to attend Jumu’ah services. 130

In the case before us, there was evidence of hierarchies among Muslim

inmates in the TDCJ system. TDCJ Muslims inmates testified “[we would]

police ourselves” 131 when problems arose during inmate-led services that were

only indirectly supervised. Inmate worship leaders would prohibit an inmate

who behaved inappropriately from attending services for a period of time 132

and did not report incidents to prison officials because “we take care of

ourselves.” 133 Accordingly, for those who attended indirectly supervised

religious gatherings, whether a Muslim inmate would be permitted religious

exercise was left to the sole discretion of another inmate, and TDCJ officials

were kept unaware of disciplinary issues. It is detrimental to the rights of

inmates when they are disciplined by other inmates, and such a system

undermines the prison’s disciplinary and oversight functions.

The district court did not discuss this evidence. Nor did the district court

discuss unrefuted evidence that violence occurred during a Muslim worship

service even though that service was directly supervised by a TDCJ employee

who was able to intervene immediately. 134 In another incident, an intense

argument among Muslim inmates at a religious gathering resulted in a

response team from the prison being called due to the potential for violence

and harm to those present at the worship service, though no physical injury

130 Id.

131 ROA 2697.

132 ROA 2697.

133 ROA 3818.

134 Def. Ex. 46 (incident occurred on July 31, 2013); see also ROA 3077 (the Scott Plan

went into effect in January 2013).

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occurred before the response team arrived to quell the disorder. 135 There was

also evidence of other disruptions in Muslim religious gatherings that did not

result in physical violence but were disruptions, nevertheless.

The district court reasoned that volunteers are not security personnel

and “the presence of an outside volunteer [does not] further [TDCJ’s]

compelling state interest in prison security.” 136 The record as a whole does not

support this conclusion.

There was unrefuted testimony that prisons across the country utilize

volunteers to supervise religious exercise by inmates because volunteers do

have a positive impact on maintaining security, safety, and orderliness. 137 An

expert witness testified that, in his opinion, a volunteer or a chaplain “needs

to be there in a religious service to prevent inmates from conducting any

disruptive or criminal activity.” 138 This witness also testified that “volunteers

do conduct some of the similar duties like a correctional officer who watches

offenders . . . they watch offenders.” 139 Though volunteers do not have to

power to discipline or search inmates or physically restrain them, an expert

witness testified that he would be satisfied with volunteer-provided security

through direct supervision because they can inform staff if something were to

happen within the service “that shouldn’t be happening” and because when a

135 ROA 3816-17; Lemons v. Tex. Dep’t of Criminal Justice, No. 2:09-cv-0102, 2012 WL

2133700 at *6 (N.D. Tex. May 17, 2012).

136 Brown v. Livingston, 17 F. Supp. 3d 616, 627 (S.D. Tex. 2014).

137 ROA 4191 (volunteers can directly supervise to gauge whether offenders are

“having inappropriate conversations or they’re having a gang meeting or they’re passing

notes, passing contraband, looking for those warning signs”); 4195 (volunteers are trained

“about security issues and what to be mindful of and what to look for”); see also Chance v.

Tex. Dep't of Criminal Justice, 730 F.3d 404, 414-15 & nn.7-8 (5th Cir. 2013) (agreeing that

volunteer supervision serves an important government interest in prison safety and

security); McAlister v. Livingston, 348 F. Appx 923, 937 (5th Cir. 2009) (per curiam) (same).

138 ROA 2903.

139 ROA 2923.

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volunteer is present, “the offenders would be more likely to stay with the topic

and with what should be said instead of going off on tangents or discussing

things that maybe were not religious in nature.” 140 There was other expert

testimony that a volunteer or chaplain can provide observations during

religious gatherings of inmates as well as a corrections officer can provide

observations. 141

TDCJ conducts background checks of volunteers and provides training

regarding security issues, what to be mindful of and look for when in an inmate

population and in services, what to do if a fight or riot erupts. 142 TDCJ

volunteers are trained to report any security breaches to prison officials. 143

Muslim inmates attending indirectly supervised religious activities have not

always reported misbehavior or security breaches because of “the offender code

and telling on each other and as to labeling each other as a snitch.” 144

The district court’s conclusion that “[t]here is no evidence that the

presence of a volunteer during a Muslim religious activity at TDCJ increases

prison safety or security in any way” 145 failed to consider that the evidence on

this point is limited. The TDCJ inmates who testified regarding Muslim

religious exercise said that, due to the paucity of Muslim volunteers, no

volunteers were in any of the services or religious activities that they

attended. 146 The evidence was extremely sparse, if not non-existent, as to the

impact volunteers might have had if they had been available to supervise

140 ROA 3499-500.

141 ROA 4042.

142 ROA 4195.

143 ROA 4036-37.

144 ROA 3716.

145 Brown v. Livingston, 17 F. Supp. 3d 616, 636 (S.D. Tex. 2014).

146 See, e.g., ROA 3262 (“Since my 17 years of being on the Robertson Unit, we have

never had a volunteer that showed up.”); 2627; 2691-92.

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Muslim inmates’ religious exercise. As already discussed, because the Muslim

inmates “take care of their own,” we do not know what issues arose that could

have been obviated by the presence of volunteers.

There is a rational connection between the TDCJ’s indirect supervision

requirement and the governmental interest in providing security in prisons.

B

As to Turner’s second consideration—Muslim inmates’ “alternative

means of exercising” their religion beliefs 147—“[t]he 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.” 148 In Adkins we upheld the direct supervision requirement against

a Free Exercise challenge because the record reflected that “(1) Adkins had

access to religious materials; (2) he and other YEA inmates were not required

to work on the Sabbath; (3) video and audio tapes were made available on

Mondays to all YEA members; and (4) YEA members were permitted to hold

and attend live services” when a volunteer was available, approximately

monthly. 149 Here, the record demonstrates, and none of the plaintiffs contest,

that Muslim TDCJ inmates are permitted to attend a weekly Jumu’ah

service, 150 significant accommodations are made for religious festivals such as

Ramadan, 151 and Muslim inmates are permitted to keep religious objects,

147 Turner v. Safley, 482 U.S. 78, 90 (1987).

148 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration in original) (quoting

Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004)); see also O’Lone

v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (holding, where Muslim inmates “retain[ed]

the ability to participate in other Muslim religious ceremonies,” that inability to attend

weekly Jumu’ah service did not violate Free Exercise Clause).

149 Adkins, 393 F.3d at 564.

150 ROA 3284, 3353.

151 ROA 2704-07, 3626-27.

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including a Qur’an, a prayer rug, and prayer beads, in their cells for personal

prayer and study. 152 Muslims inmates may gather in groups of four or fewer

to worship and study. All Muslim inmates have access to a diet that conforms

to their faith’s restrictions. While Muslim inmates may not be permitted to

engage in as many religious gatherings with the numbers of inmates as they

wish, we conclude, as in Adkins, that they have alternative means of exercising

their religious rights.

C

The third Turner consideration addresses the impact the accommodation

sought would have on other inmates and prison staff and on the allocation of

prison resources, generally. We conclude, as we did in Adkins, that continuing

to allow Muslim inmates the freedom to congregate without direct supervision

“could ‘spawn a cottage industry of litigation and could have a negative impact

on prison staff, inmates and prison resources.’” 153 Furthermore, “if [Muslim

inmates] were accommodated and other similarly situated small religious

groups were not, [Islam] could appear to be favored over the others, a

perception that could have a negative effect on prison morale and discipline.” 154

The evidence was unrefuted that TDCJ is short-staffed in spite of

sustained efforts to hire security personnel. 155 The TDCJ offered evidence that

the situation was “critical.” At the time of the hearing, the TDCJ was “3,000

officers short,” and “spending 5 million plus in overtime a month.” 156 In some

of the TDCJ’s “units in West and South Texas,” it was “critically short,” and “a

152 ROA 2651, 2695.

153 Adkins, 393 F.3d at 565 (quoting Freeman, 369 F.3d at 862).

154 Id.

155 ROA 4072-73.

156 ROA 4072.

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very serious situation.” 157 “[W]e’re doing all we can, as [others testified], about

trying to recruit new staff,” and “[w]e’re doing all we can to try to retain the

staff that we have on our facilities.” 158 Priority is given to positions such as “a

dorm housing rover or a cell block rover, an inside picket officer, . . . central

control officer, our outside guard towers, things like that, those things that are

crucial to the safety and security of the institution.” 159 The TDCJ offered

evidence that it does not have staff to provide more than one hour of directly

supervised religious activities to all inmates seeking to engage in religious

activities beyond the one-hour weekly services that are directly supervised by

TDCJ employees or even solely to Muslim inmates.

The district court’s response to this evidence was that the TDCJ should

cease training and organizing volunteers for religious gatherings in prisons.

But the costs that would be saved were not quantified, and there was no

evidence that requiring TDCJ to cease and desist from permitting volunteers

in the prisons would free sufficient time for TDCJ employees to provide an

additional hour of direct supervision of Muslim religious activities each week,

much less the additional hours that the district court would require. Requiring

TDCJ to cease allowing volunteers would also be contrary to the district court’s

finding and unrefuted evidence that volunteers have a substantial, positive

impact on inmates and lessen the potential for violence in the prisons.

D

The fourth consideration under Turner’s standard of review is whether

there is an absence of ready alternatives to the TDCJ’s direct supervision

157 ROA 4073.

158 ROA 4073.

159 ROA 4073.

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requirement. We have examined alternatives above and do not repeat that

discussion here.

In sum, we conclude that the Scott Plan poses no violation of the Free

Exercise Clause that would render the consent decree, and its allowance of

indirect supervision of Muslim religious gatherings, “necessary to correct a

current and ongoing violation of the Federal right.” 160

VI

The district court concluded that the TDCJ’s regulations and policies

favored Catholic, Jewish, Native American and Protestant inmates over

Muslim inmates. 161 Citing the Supreme Court’s decision in Larson v. Valente,

which involved a state statute imposing registration and reporting

requirements on religious organizations that solicited more than fifty percent

of their funds from nonmembers, 162 the district court concluded that “when it

is claimed that a prison regulation violates an inmate’s Establishment Clause

rights it must be subjected to strict scrutiny analysis and is upheld only if it is

‘closely fitted’ to further a ‘compelling government interest.’” 163 The TDCJ

contends that the more deferential standard articulated in Turner v. Safley 164

applies. I first consider the appropriate standard for analyzing the inmates’

Establishment Clause claims.

A

The Supreme Court has not directly addressed the standard of review

that applies when inmates assert a violation of the Establishment Clause, and

more particularly, whether the applicable standard may depend upon the

160 18 U.S.C. § 3626(b)(3).

161 Brown v. Livingston, 17 F. Supp. 3d 616, 630-33 (S.D. Tex. 2014).

162 456 U.S. 228, 230 (1982).

163 Brown, 17 F. Supp. 3d at 632 (quoting Larson, 456 U.S. at 247).

164 482 U.S. 78 (1987).

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specifics of the claim. The Supreme Court has recognized, however, that the

“constitutional prohibition of denominational preferences is inextricably

connected with the continuing vitality of the Free Exercise Clause.” 165

As discussed in Section V above, O’Lone v. Estate of Shabazz analyzed

Free Exercise claims and “consider[ed] once again the standard of review for

prison regulations claimed to inhibit the exercise of constitutional rights.” 166

In O’Lone, prison regulations precluded Muslim inmates assigned to outside

work details from attending Jumu’ah. 167 The Third Circuit had held that the

prison’s “policies could be sustained only if: ‘the state . . . show[s] that the

challenged regulations were intended to serve, and do serve, the important

penological goal of security, and that no reasonable method exists by which

[prisoners’] religious rights can be accommodated without creating bona fide

security problems.’” 168 The Supreme Court rejected this standard of review.

“We think the Court of Appeals[’] decision in this case was wrong when it

established a separate burden on prison officials to prove ‘that no reasonable

method exists by which [prisoners’] religious rights can be accommodated

without creating bona fide security problems.’” 169

The Court explained at length in O’Lone why the “reasonableness test”

set forth in Turner v. Safley, rather than strict scrutiny, applied. 170 The O’Lone

decision then admonished, “[t]o ensure that courts afford appropriate

deference to prison officials, we have determined that prison regulations

alleged to infringe constitutional rights are judged under a ‘reasonableness’

165 Larson, 456 U.S. at 245.

166 482 U.S. 342, 344 (1987).

167 Id. at 347.

168 Id. at 347 (quoting Shabazz v. O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).

169 Id. at 350 (quoting Shabazz, 782 F.3d at 420)).

170 Id. at 348-350 (quoting Turner v. Safley, 482 U.S. 78, 86-87 (1987)).

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test less restrictive than that ordinarily applied to alleged infringements of

fundamental constitutional rights.” 171 Referring to Turner, the Court said,

“[w]e recently restated the proper standard: ‘[W]hen a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.’” 172 The Court

continued, “[t]his approach ensures the ability of corrections officials ‘to

anticipate security problems and to adopt innovative solutions to the

intractable problems of prison administration,’ and avoids unnecessary

intrusion of the judiciary into problems particularly ill suited to ‘resolution by

decree.’” 173 The regulations at issue in Turner included restrictions on the

rights of inmates to marry.

However, Turner’s “reasonableness” standard of review does not apply to

all claims that prison policies are unconstitutional. The Supreme Court held

in Johnson v. California that “strict scrutiny is the proper standard of

review” 174 for “an equal protection challenge” to a state prison’s “policy of

racially segregating prisoners in double cells in reception centers for up to 60

days each time they enter a new correctional facility.” 175 The Court observed

that “[w]e have never applied Turner to racial classifications,” and “[w]e think

this unsurprising, as we have applied Turner’s reasonable-relationship test

only to rights that are ‘inconsistent with proper incarceration.’” 176 The

171 Id. at 349 (citation omitted).

172 Id. (quoting Turner, 482 U.S. at 89).

173 Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)); see also Shaw v.

Murphy, 532 U.S. 223, 228-232 (2001) (analyzing whether inmates possess a First

Amendment right to provide legal assistance to other inmates that enhances the protections

otherwise available under Turner and explaining why they do not).

174 543 U.S. 499, 515 (2005).

175 Id. at 502.

176 Id. at 510 (citations omitted).

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Supreme Court held in Johnson that “[t]he right not be discriminated against

based on one’s race is not susceptible to the logic of Turner. It is not a right

that need necessarily be compromised for the sake of proper prison

administration.” 177

At least two Circuit Courts of Appeals have applied a standard to certain

categories of Establishment Clause claims that differs from Turner’s standard

of review. 178 In those cases, prison officials allegedly coerced inmates to

participate in a program founded on religious tenets. No one contends that the

standard applied in those cases is appropriately applied to the facts of the

present case.

The question before us is whether an inmate’s claim that prison policies

afford some faiths more favorable treatment than others implicates “a right

that need [not] necessarily be compromised for the sake of proper prison

administration,” 179 to which strict scrutiny would apply, or whether such an

Establishment Clause claim is instead grounded in “certain privileges and

rights [that] must necessarily be limited in the prison context,” 180 to which

Turner’s more deferential standard would apply. I conclude that Turner’s

standard applies.

The Supreme Court has explained that prison officials are not required

to provide “identical facilities or personnel” to “every religious sect or group

within a prison.” 181 “A special chapel or place of worship need not be provided

177 Id.

178 See, e.g., Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014) (inquiring “‘first,

has the state acted; second, does the action amount to coercion; and third, is the object of the

coercion religious or secular’”) (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)).

179 Johnson, 543 U.S. at 510.

180 Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).

181 Cruz v. Beto, 405 U.S. 319, 325 n.2 (1972).

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for every faith regardless of size; nor must a chaplain, priest, or minister be

provided without regard to the extent of the demand.” 182 Nevertheless,

“reasonable op[p]ortunities must be afforded to all prisoners to exercise the

religious freedom guaranteed by the First and Fourteenth Amendments

without fear of penalty.” 183

Prison officials, therefore, are required to facilitate opportunities for

prisoners to worship or otherwise exercise religious beliefs even though,

outside the prison context, such involvement would undoubtedly implicate

Establishment Clause concerns. When policies ostensibly designed to honor

the Free Exercise rights of inmates are challenged on the basis that they

violate the Establishment Clause because the policies favor one or more faith

groups over another, logic demands that Turner’s standard applies. In

attempting to accommodate the religious beliefs of varying faith groups in

compliance with the Free Exercise Clause, prison officials must operate within

a zone of “reasonableness.” If policies meet Turner’s reasonableness standard

in effectuating the Free Exercise rights of inmates, then those policies should

not be pruned or eliminated as a result of higher scrutiny under the

Establishment Clause, even if those policies do not treat all faith groups

precisely the same. Prison officials have been accorded some flexibility in

providing Free Exercise opportunities for inmates. Inmates’ opportunities for

religious exercise would be diminished if a more restrictive standard were

applied to Establishment Clause claims than is applied to Free Exercise

claims, when the allegation is that preference has been given to inmates of one

or more faiths. If prison policies are in fact balanced and meet the Turner

182 Id.

183 Id.

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standard, those policies are vindicating only what the First Amendment

requires, and such policies do not amount to government involvement in

religious matters to such an extent that the Establishment Clause is violated.

The district court concluded that the TDCJ violated the Establishment

Clause in three ways.

B

The district court observed that there “is an ample supply of clerics and

laymen who will volunteer to conduct meetings” for some faith groups, “but

that among Muslims it has been hard to find a consistent supply of such

volunteers.” 184 The district court concluded that, “[i]n such circumstances, a

policy that makes the availability of religious activities dependent upon the

availability of outside volunteers necessarily makes it easier for one group to

practice its religion over other groups.” 185 Relatedly, the district court

concluded that “TDCJ openly favors the Protestantism [sic] and disfavors

Islam by devoting state resources to the former disproportionately.” 186 The

district court reasoned that “TDCJ has chosen to allocate substantially more

resources to religious groups who can procure outside volunteers than for those

who are unable to recruit sufficient numbers of outside volunteers to comply

with AD 7.30.” 187 The record is clear, however, that the disparity as to

resources expended is a function of the number of volunteers, not their

religious affiliations.

There is a “valid, rational connection” between permitting volunteers to

provide additional opportunities for the exercise of religious rights and “the

184 Brown v. Livingston, 17 F. Supp. 3d 616, 631 (S.D. Tex. 2014).

185 Id.

186 Id.

187 Id.

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legitimate governmental interest” 188 of prison officials in complying with their

obligation to afford “reasonable op[p]ortunities . . . to all prisoners to exercise

the religious freedom guaranteed by the First and Fourteenth

Amendment[s].” 189 “[T]he governmental objective” in permitting volunteers

into the TDCJ prisons to provide or assist with religious services and studies

is “a legitimate and neutral one” that “operate[s] in a neutral fashion, without

regard to the content of the expression.” 190 The record is replete with evidence

that inmates who participate in religious services and studies are less likely to

have disciplinary issues while confined and have lower recidivism rates once

released. The fact that more volunteers in the TDCJ system were Protestant

or Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ

made efforts to recruit more Muslim volunteers, and Muslims who volunteered

were treated the same as other volunteers.

The second Turner factor is “whether there are alternative means of

exercising the right that remain open to prison inmates.” 191 The Muslim

inmates who are the plaintiffs in this case do not seek to eliminate the

volunteer policy as violative of the Establishment Clause. Nor do they ask that

additional training and resources be provided to Muslim volunteers. The

plaintiffs instead seek an order permitting all Muslim inmates to gather in

groups of more than four without direct supervision by prison employees or a

volunteer. That would not vindicate the right to have a state actor cease

excessive entanglement with religion. 192 What the plaintiffs seek indicates

that their complaints regarding the volunteer policy and resources devoted to

188 Turner v. Safley, 482 U.S. 78, 89 (1987).

189 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).

190 Turner, 482 U.S. at 90 (citations omitted).

191 Id.

192 See generally Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).

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implementing volunteers’ access to inmates is not grounded in the

Establishment Clause. If the volunteer policy were eliminated or fewer

resources were expended to support volunteer efforts, inmates, including

Muslim inmates, would have fewer opportunities for worship and religious

study.

The third Turner “consideration is the impact accommodation of the

asserted constitutional right will have on guards and other inmates, and on

the allocation of prison resources generally.” 193 “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 corrections officials.” 194 If the volunteer policy were eliminated as violative

of the Establishment Clause, inmates would be adversely impacted, but

resources would no longer be spent by the TDCJ to implement the volunteer

program.

The final Turner consideration is that “the absence of ready alternatives

is evidence of the reasonableness of a prison regulation.” 195 “By the same

token, the existence of obvious, easy alternatives may be evidence that the

regulation is not reasonable, but is an ‘exaggerated response’ to prison

concerns.” 196 The alternatives to allowing volunteers into the TDCJ prisons to

facilitate religious worship and study include excluding the volunteers or

paying other individuals to replace them. The first alternative would, as

discussed, reduce inmates’ religious exercise. The second would require

considerable expenditures.

193 Turner, 482 U.S. at 90.

194 Id. (citation omitted).

195 Id. (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)).

196 Id.

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When assessed under the Turner considerations, the volunteer policy

and the resources expended to implement it are reasonably related to the

TDCJ’s obligation to afford inmates reasonable opportunities to exercise

religious freedom.

The district court erred in applying strict scrutiny to the claim that the

volunteer policy violates the Establishment Clause because fewer Muslims

volunteer than Protestants or Catholics and more resources are devoted to

Protestant and Catholic volunteers than Muslim volunteers. The TDCJ’s

policies are facially neutral. The Larson v. Valente decision, 197 on which the

district court relied, 198 explains that strict scrutiny does not “apply to laws

affording a uniform benefit to all religions.” 199 Seven years after Larson was

decided, the Supreme Court reiterated, “Larson teaches that, when it is

claimed that a denominational preference exists, the initial inquiry is whether

the law facially differentiates among religions. If no such facial preference

exists, we proceed to apply the customary three-pronged Establishment Clause

inquiry derived from Lemon v. Kurtzman.” 200 The Lemon inquiry does not

employ strict scrutiny. 201 However, for the reasons considered above, we

conclude that Turner, rather than Lemon, provides the proper standard of

review.

197 456 U.S. 228 (1982).

198 Brown v. Livingston, 17 F. Supp. 3d 616, 630 (S.D. Tex. 2014).

199 Larson, 456 U.S. at 252.

200 Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson, 456 U.S. at 252); see

also In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (“As the challenged policies

are facially neutral, Larson doesn’t trigger strict scrutiny, and we proceed to Lemon.”);

Koenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999) (“Strict scrutiny in the Establishment

Clause context is to be used to evaluate only those statutes that facially discriminate between

religious denominations or between religion and non-religion.”) (citing Hernandez, 490 U.S.

at 695).

201 See, e.g., Larson, 456 U.S. at 252 (“the Lemon tests . . . do not reflect the same

concerns that warranted the application of strict scrutiny.”).

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Brown argues that we should apply the Lemon test. The Supreme Court

has observed that “just two years after Lemon was decided, we noted that the

factors identified in Lemon serve as ‘no more than helpful signposts,’” 202 and

“[m]any of our recent cases simply have not applied the Lemon test.” 203 The

Supreme Court then proceeded to apply an “analysis . . . driven both by the

nature of the monument and by our Nation's history” to a claim that a Ten

Commandments monument displayed on the grounds of the Texas capitol

violated the Establishment Clause. 204 The Supreme Court did not apply either

strict scrutiny or the Lemon factors. 205

My conclusion that the Turner v. Safley standard of review 206 applies,

rather than the Lemon v. Kurtzman criteria, 207 is informed by these

precedents. Additionally, if applied literally, the criteria set forth in Lemon

202 Van Orden v. Perry, 545 U.S. 677, 686 (2005) (citations omitted); but see McCreary

County v. ACLU of Ky., 545 U.S. 844, 859-66 (2005) (applying the Lemon factors to displays

of the Ten Commandments on the walls of state courthouses, concluding that the purpose of

the displays was not secular and therefore violated the Establishment Clause).

203 Van Orden, 545 U.S. at 686 (citations omitted).

204 Id.

205 See also Am. Legion v. Am. Humanist Ass’n, 588 U.S. ___, slip op. at *12-13 (2019)

(opinion of ALITO, J.) (plurality opinion) (“Lemon ambitiously attempted to distill from the

Court’s existing case law a test that would bring order and predictability to Establishment

Clause decisionmaking. . . . If the Lemon Court thought that its test would provide a

framework for all future Establishment Clause decisions, its expectation has not been met.”

“As Establishment Clause cases involving a great array of laws and practices came to the

Court, it became more and more apparent that the Lemon test could not resolve them.”); id.

at *24-25 (“While the Lemon Court ambitiously attempted to find a grand unified theory of

the Establishment Clause, in later cases, we have taken a more modest approach that focus

on the particular issue at hand and looks to history for guidance.”).

206 482 U.S. 78, 89-90 (1987).

207 403 U.S. 602, 612-613 (1971) (“Every analysis in this area must begin with

consideration of the cumulative criteria developed by the Court over many years. Three such

tests may be gleaned from our cases. First, the statute must have a secular legislative

purpose; second, its principal or primary effect must be one that neither advances nor inhibits

religion; finally, the statute must not foster ‘an excessive government entanglement with

religion.’”) (citations omitted).

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are in tension with the obligation the Supreme Court has said prison officials

have to afford inmates opportunities to attend religious services and pursue

religious studies. The second Lemon criterion is that the regulation’s

“principal or primary effect must be one that neither advances nor inhibits

religion.” 208 Prison policies that provide opportunities for inmates to worship

and pursue religious studies have the purpose of facilitating inmates’ exercise

of First and Fourteenth Amendment Free Exercise rights and advance religion

for those inmates who choose to participate. It is difficult to see how the

Supreme Court’s jurisprudence could be construed to require prison officials to

facilitate religious services and studies and at the same time, to deem prison

officials in violation of the Establishment Clause if they do facilitate such

religious activities.

The Lemon factors could arguably be applied with the acknowledgement

that prison officials have an obligation grounded in the First and Fourteenth

Amendments to afford inmates reasonable opportunities to exercise their

religious beliefs. Viewed through that lens, the secular purpose of a direct

supervision policy, when applied to secular as well as religious gatherings, is

to maintain safety and security within a prison. The secular purpose of

training volunteers who facilitate religious activities or who supervise inmates

conducting or participating in religious pursuits is to comply with the

constitutional obligation to provide inmates reasonable opportunities to

engage in the free exercise of their religious beliefs. Viewed in light of this

overarching obligation, the direct supervision policy and the training of

volunteers is facially neutral and neither advances nor inhibits any particular

faith. Here again, it is the paucity of Muslim volunteers as compared to

208 Id.

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Christian volunteers that results in Christian inmates having more

opportunities for religious exercise. As to the third Lemon factor, a facially

neutral policy that provides reasonable opportunities for inmates to exercise

their religious beliefs is not excessive governmental entanglement with

religion.

C

The district court additionally determined that Jewish and Native

American inmates were housed in a manner that facilitates the exercise of

their religious beliefs, while Muslim inmates were not. The district court

concluded this violated the Establishment Clause:

The fact that Jewish inmates are assigned to four particular

units within the prison system specifically to bring them closer to

Jewish religious volunteers and that Native American inmates are

assigned to housing units specifically selected to make religions

[sic] activities more available to them, while TDCJ makes no effort

to house Muslim inmates in units close to the population centers

where Muslim volunteers might be recruited, constitutes a clear

violation of the Establishment Clause. Prison officials are

deliberately favoring Jewish and Native American inmates over

Muslim inmates by facilitating their access to religious activities.

Thus, TDCJ has intentionally made it easier for Jewish inmates

over Muslim inmates to have volunteer-led religious activities.

That circumstance alone, in and of itself, constitutes a violation of

the Establishment Clause.” 209

209Brown, 17 F. Supp. 3d at 631 (citations omitted). Relatedly, the district court found

or concluded:

The TDCJ’s inmate assignment policy has not been neutrally applied. To the

contrary, unlike Muslim inmates, Jewish inmates are specifically assigned to

units in order that they are closer to prospective volunteers. The TDCJ has

four units designated for Jewish inmates and Jewish inmates are intentionally

located in places where the largest number of Jews reside so as to enhance the

opportunity for Jewish inmates to interact with Jewish citizens in religious

activities. Likewise, Native American inmates are assigned to a specifically

designated unit to facilitate access to each other and to enhance Native

American religious activities. By contrast, there are no units designated as

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The record does not support the conclusion that the TDCJ’s policies have

resulted in greater access to religious exercise for Jewish and Native American

inmates as compared to Muslim inmates. There are proportionately more

Muslim volunteers than Jewish or Native American volunteers. Nor does the

evidence support a conclusion that large numbers of Jewish or Native

American inmates are concentrated in a few prison units, even though it is

undisputed that four prison units were designated as “Jewish. Nor is there

support in the record for the inmates’ assertion that Jewish and Native

American inmates had more religious services or more access to religious

activities than Muslim inmates. I consider the evidence as to each of the

district court’s findings or conclusion in more detail.

1

The TDCJ classified nine faith groups 210 as comprising the category of

“Jewish” inmates in May 31, 2013, for purposes of providing information to the

parties and the district court in this litigation. That evidence, on which all

parties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates

housed in 95 of 117 TDCJ prison units. At that time, there were no Jewish

chaplains, 211 no certified volunteer chaplains’ assistants, 212 “one contract

Jewish Chaplain[],” 213 and 15 Jewish or Hebrew volunteers. 214 That is a ratio

of one chaplain or volunteer to approximately 58 inmates. Though the district

Muslim units in close proximity to Muslim citizen volunteers—that

consideration was not contemplated by TDCJ in assigning Muslim inmates to

housing units. Id. at 629-30.

210 See Parties Joint Ex. 15 (reflecting nine faiths identified by inmates, Nazarite,

Jewish, Hebrew, Hebrew Israelite, Orthodox Jew, Shaivite, Kabbalah, Orthodox Hebrew,

and Reformed Jewish, as collectively comprising 922 “Jewish” inmates).

211 Parties Joint Ex. 13.

212 Parties Joint Ex. 19.

213 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).

214 Parties Joint Ex. 18.

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court concluded that “Jewish inmates are specifically assigned to units in order

that they are closer to prospective volunteers,” 215 if that were the intent (and

there is no evidence that it was), then significant numbers of Jewish volunteers

did not materialize.

By comparison, the undisputed TDCJ data reflects there were 6,775

Muslim inmates (comprised of 12 different Muslim faith groups identified by

TDCJ inmates) as of May 31, 2013, 216 who were confined in 113 of the 117

TDCJ units. 217 There were five Muslim chaplains as of that date, 218 no certified

volunteer chaplain’s assistants, 219 and 222 Muslim volunteers. 220 That results

in a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.

A TDCJ employee testified that there have been four units designated

for “Jewish” inmates, 221 and one of these was also a “Kosher” unit. 222 The

record is sparse as to why four units were designated as “Jewish”, and there is

no evidence in the record as to how inmates are chosen to be assigned there.

The record reflects that the Wynne Unit was designated as a Jewish unit, but

the names of the other three units do not appear in the record. A Muslim

chaplain and a non-Roman Catholic chaplain were the two chaplains assigned

to the Wynne Unit. 223 It housed 2592 inmates who had expressed a faith

preference, of whom 28 were Jewish (approximately 1%), 135 were Muslim

(approximately 5.2%), and 48 were Native American (1.6%). 224 The Muslim

215 Brown, 17 F. Supp. 3d at 629.

216 Parties Joint Ex. 15.

217 Parties Joint Ex. 16.

218 Parties Joint Ex. 14.

219 Parties Joint Ex. 19.

220 Parties Joint Ex. 18.

221 ROA 3214.

222 ROA 3214.

223 Parties Joint Ex. 13.

224 Parties Joint Ex. 16.

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chaplain testified that he did not know whether the reason that the Wynne

Unit was designated as a “Jewish” unit was so that “volunteers might be more

available to the urban areas.” 225 He said that it was his responsibility to “make

sure” that the Jewish inmates at the Wynne Unit “have their services” and

“their holidays” and that “if they have any problem, they come to me.” 226

As to the other three “Jewish” units, it is clear that none of them housed

a large percentage of Jewish inmates. From an analysis of the Parties Joint

Exhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates

(as many as 196) were housed within four units designated for Jewish

inmates. 227 The remaining 79% or more of Jewish inmates were housed in 94

other TDCJ units.

There was testimony that an unspecified number of Native Americans

have been assigned to an unspecified number of units to make communal

worship feasible. 228 As of May 31, 2013, there were 4,473 Native American

inmates 229 housed in 108 of 117 TDCJ units. 230 Native American inmates were

widely distributed among these units. 231 They were not concentrated in a

small number of prison units. There was one Native American chaplain, 232 no

certified volunteer chaplain’s assistant, 233 and there were six Native American

225 ROA 3784.

226 ROA 3784.

227 Parties Joint Ex. 16. The record reflects that the Wynne Unit was designated for

Jewish inmates (ROA 3784), but does not identify the other three designated units. There

were 28 Jewish inmates housed in the Wynne Unit. Even assuming that the three designated

units other than the Wynne Unit were those with the largest populations of Jewish inmates,

then, at most, the number of Jewish inmates housed in “designated” units was 196 out of 922

Jewish inmates, approximately 21%.

228 ROA 3215-16.

229 Parties Joint Ex. 15.

230 Parties Joint Ex. 16.

231 Parties Joint Ex. 16.

232 Parties Joint Exs. 13 and 14.

233 Parties Joint Ex. 19.

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volunteers. 234 That results in a ratio of 1 chaplain or volunteer to 744 Native

American inmates. Native American inmates had access to far fewer chaplains

and volunteers than Muslim inmates.

The district court concluded that TDCJ had assigned “Muslim inmates[]

primarily to housing units that are long distances from population centers

where a significant numbers [sic] of Muslim civilians reside.” 235 The district

court detailed evidence of the number of Muslim inmates confined in particular

counties as compared to the Muslim populations in those counties. 236 The

district court concluded, “[w]hether it is the intent of the TDCJ to assign

Muslim inmates to areas in the state where Muslim volunteers do not reside

that, nevertheless, is the effect of unit assignments.” 237 These findings imply

that TDCJ could and should house Muslims in prison units closer to larger

populations of Muslims. But there is no evidence that there are any TDCJ

prison units that are close to larger populations of Muslims or that it is

physically feasible to house 6,775 Muslim inmates near larger populations of

Muslims.

Brown’s brief in this court implicitly acknowledges that none of Texas’s

prison units are located near Muslim residents. Brown asserts that the TDCJ

has “construct[ed] . . . prison units in areas where there are plentiful Christian

volunteers but virtually no Muslim residents anywhere close.” But there is

absolutely no evidence that the State of Texas has chosen prison locations

based on faith preferences of inmates, the proximity of civilian populations of

particular faiths, or to create distances from Muslim civilian populations.

234 Parties Joint Ex. 18.

235 Brown v. Livingston, 17 F. Supp. 3d 616, 623 (S.D. Tex. 2014).

236 Id. at 623-24.

237 Id. at 623.

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2

The evidence does not support the conclusion that the assignment of

some Jewish and Native American inmates to particular units resulted in

greater access to chaplains or volunteers than was available to Muslim

inmates. I will nevertheless assume that the TDCJ intentionally assigned

some number of Jewish and Native American inmates to specific prison units

to facilitate the exercise of their respective religious beliefs but did not do so

for any Muslim inmates.

The first consideration under Turner is whether such a policy has a valid,

rational connection to the governmental interest in providing reasonable

opportunities for all inmates to exercise their religious freedom rights. As

previously noted, the Supreme Court has recognized that prison officials are

not required to provide “identical facilities or personnel” to “every religious sect

or group within a prison.” 238 Jewish and Native American volunteers were

even more scarce than Muslim volunteers. There were no Jewish chaplains,

only one paid outside Jewish chaplain, and there was one Native American

Chaplain. Assigning some Jewish inmates and some Native American inmates

to specific prison units to facilitate the opportunity for religious exercise for

those inmates, was reasonable.

The second Turner consideration is whether there are alternative means

for Muslim inmates to exercise their Establishment Clause rights.

Eliminating any favoritism that might have been shown to Muslim inmates is

not the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim

inmates been housed differently, their opportunities for religious exercise

would have been increased.

238 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).

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The evidence is silent as to the third Turner consideration, which is the

impact on guards, other inmates, or the allocation of prison resources

generally. With regard to the fourth Turner factor, it does not appear that

ceasing to assign Jewish and Native American inmates in the way that the

TDCJ has done would either decrease the “favoritism” shown to those inmates

or increase Muslim inmates’ opportunities to worship and study. There is no

evidence that Jewish or Native American inmates enjoyed more than one hour

of worship each week, or its equivalent. The number of Muslim volunteers

exceeded the relative number of Jewish and Native American volunteers even

under the TDCJ’s existing housing policies, and there is no indication that

changing that policy would have any effect other than reducing the

opportunities for religious exercise by Jewish and Native American inmates.

The TDCJ’s housing policies do not fail Turner’s rationality review. The

policy does not violate the Establishment Clause.

D

Brown argues that the direct supervision policy applies only to religious

activities and not to secular ones within TDCJ’s prisons and therefore, that the

direct supervision policy violates the Establishment Clause. The district court

did not ground its finding of an Establishment Clause violation on such a basis.

Brown contends, without any record citations, that band, choir practice,

craft shop, and Safe Prison Program classes are indirectly supervised. As a

factual matter, the evidence reflects that secular activities in prisons that are

not directly supervised almost invariably involve inmates who have been

screened for disciplinary violations. Religious gatherings, by contrast, involve

inmates with varying security classifications. Applying the Turner

considerations, there was no Establishment Clause violation.

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The first Turner inquiry is whether there is a “‘valid, rational

connection’ between the prison regulation and the legitimate governmental

interest put forward to justify it.” 239 Two inmates testified that two craft shops

at the Robertson Unit were indirectly supervised. 240 However, another witness

testified that craft shops are directly supervised, 241 and the unrefuted

testimony was that all inmates in all craft shops were “screened very

closely.” 242 Being allowed to go to craft shop was “a kind of a privilege,” and

“craft shop privileges” could be lost due to disruptive conduct. 243 The evidence

reflects that “[t]here’s a big difference between craft shop and religious

services.” 244 The evidence was undisputed that TDJC “screen[s] all the

offenders in the craft shop . . . very closely,” but “these offenders going to all

these religious services all across the unit in different custodies” are “not

screened and they have gang tendencies and staff assault histories and

weapons possessions.” 245 There is therefore “a greater propensity for violence

in [TDCJ’s] open-call services than these other faith groups that are directly

supervised now.” 246 Muslim inmates who attend Jumu’ah are not screened

based on disciplinary criteria or offender category.

There was evidence that at one prison in the TDCJ system, the

Robertson Unit, a Christian choir was permitted to practice in a multi-purpose

room with an officer stationed outside, looking in through a window that went

239 Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576,

586 (1984)).

240 ROA 2666; 3252-3253; 3264-3267; 4060.

241 ROA 4058-4060.

242 ROA 4176.

243 ROA 4175-76.

244 ROA 4176.

245 ROA 4176.

246 ROA 4176.

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from the ceiling to waist level. 247 This occurred for a ten-year period, but choir

practice was discontinued by an assistant warden. 248 The record is silent as to

whether these inmates were screened based on their disciplinary records or

offender category.

With regard to dormitories, the evidence reflected that “dormitory

offenders are screened. They’re some of [TDCJ’s] best offenders and they’re

not coming from all over the facility.” 249 There was also testimony that

[t]he offenders in the dorm housing area are around each other

every day, day in and day out, when they’re not working . . . . The

offenders that go to programmatic activities such as religious

services, they don’t have access to each other every day. So, you’re

more concerned about gatherings that bring offenders from

different areas of the facility because of things that they could be

doing that is not appropriate for whatever the program is, whether

it be religious or education or whatever. 250

A TDCJ witness testified that other than some of the craft shops and

dormitories, there are no situations in which indirect supervision is used. 251 A

TDCJ witness testified that inmates are directly supervised when they are in

outdoor recreation areas and when in day rooms engaging in other secular

activities. 252

There is a rational connection between the direct supervision policy for

religious gatherings of more than four inmates and the legitimate

governmental interest in safety and security in prisons. The evidence of

247 ROA 3253; 3263-64.

248 ROA 3264.

249 ROA 4205; see also ROA 4139-4140.

250 ROA 3720-21.

251 ROA 4201; 4205-06.

252 ROA 4141.

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indirect supervision of some secular activities by some inmates, who were

screened, does not undermine the rationality of that connection.

The second and third Turner 253 factors have been considered above, and

that discussion will not be repeated. As to the fourth consideration, “the

absence of ready alternatives is evidence of the reasonableness of a prison

regulation.” 254 Restricting indirectly supervised religious gatherings to

inmates who are not security risks would not address legitimate concerns

associated with inmate-led services and studies, discussed above.

The district court did not err in failing to conclude that the

Establishment Clause was violated because some secular activities by inmates

who were screened based on their disciplinary records were permitted to

gather for secular activities while indirectly supervised.

VII

In sum, we hold that the consent decree does not remain necessary to

correct current and ongoing violations of RLUIPA, the Free Exercise Clause,

or the Establishment Clause. Accordingly, the TDCJ’s motion to vacate the

consent decree should have been granted.

The district court also awarded attorneys’ fees to Brown and the Inmate

Intervenors as prevailing parties pursuant to 42 U.S.C. § 1988(b). 255 However,

in light of our conclusion as to the merits of the TDCJ’s motion to vacate the

consent decree, Brown and the Inmate Intervenors are not prevailing parties.

We vacate the award of attorneys’ fees.

253 Turner v. Safley, 482 U.S. 78, 90 (1987) (“A second factor . . . is whether there are

alternative means of exercising the right that remain open to prison inmates,” and “[a] third

consideration is the impact accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison resources generally.”).

254 Id.

255 ROA 2021.

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* * *

For the foregoing reasons, the district court’s denial of the TDCJ’s motion

to terminate the consent decree and award of attorneys’ fees to Brown and the

Inmate Intervenors were in error. The district court’s judgment is

REVERSED, and the consent decree is terminated.

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KING, Circuit Judge, concurring in part and concurring in the judgment:

I join in Parts I, II, III, IV, V, and VII of Judge Owen’s opinion. I

do not join in part VI because I would conclude that the Texas Department of

Criminal Justice’s housing policy violates the Establishment Clause.

Nevertheless, the Consent Decree is broader than necessary to remedy this

violation. The inmates therefore fail to meet their burden under the Prison

Litigation Reform Act to continue the Consent Decree. Accordingly, I also

concur in the judgment. 1

1The TDCJ filed its notice of appeal in this case more than five years ago. This panel

heard oral argument almost four years ago. The panel’s delay in deciding this case is

inexcusable. I will not invite further delay by writing more.

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JAMES L. DENNIS, Circuit Judge, dissenting:

The district court concluded that portions of the district court’s 1977

consent decree were required to prevent a violation of Muslim inmates’ rights

to religious freedom under the Religious Land Use and Institutionalized

Persons Act (RLUIPA). The majority reverses, holding that the Texas

Department of Criminal Justice (TDCJ) was not responsible for the substantial

burden imposed on Muslim inmates’ religious exercise. 1 I disagree, and would

affirm the district court’s judgment. The TDCJ’s current course of action, the

“Scott Plan,” violates the rights of Muslim prisoners in Texas under the

RLUIPA. The Scott Plan imposes a substantial burden on Muslim prisoners’

religious exercise, does not further a compelling governmental interest, and,

even assuming it furthered some governmental interest, is not the least

restrictive means of doing so. The district court recognized this RLUIPA

violation and determined that certain provisions of the 1977 consent decree

needed to continue in effect to protect Muslim inmates from a continuing

violation of RLUIPA. The district court also determined the other

requirements of the Prison Litigation Reform Act (PLRA) were satisfied,

justifying continuing prospective relief. In reversing the district court as to the

RLUIPA violation, the majority seriously errs. For these reasons, I

respectfully dissent.

I

The consent decree that is the subject of this litigation is the result of a

1977 lawsuit brought by Bobby Brown, a Muslim prisoner who claimed that

1I do not agree fully with the majority’s analysis in other portions of the opinion, such

as the Free Exercise and Establishment Clause issues. I do not address these portions of the

opinion fully here because the district court should be affirmed solely on the basis of the

ongoing violation of RLUIPA.

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Texas prisons unlawfully restricted Islamic religious exercise. The parties

resolved the case with the consent decree, which mandated that Muslim

prisoners be afforded equal time for religious activities as compared to

Protestant, Catholic, and Jewish inmates, or at least no less than two hours a

week. The consent decree requires that if a prison-employed chaplain or

volunteer is available, he or she shall supervise the gathering. If neither is

available, however, it is decreed that Muslim prisoners may gather to conduct

their religious services “under appropriate supervision,” which has taken the

form of indirect supervision. From 1977 to 2012, while the consent decree was

in effect, Muslim prisoners gathered for religious services under indirect

supervision, with a prison official in the vicinity surveilling intermittently

through a window or video and audio surveillance.

In 2009, William Scott, a Jehovah’s Witness prisoner of the State

of Texas, sued the State claiming that Jehovah’s Witnesses, like Muslims,

should be allowed to meet for group religious exercise under indirect

supervision. Compl. (Dkt. No. 1), Scott v. Pierce, No. 4:09-CV-3991 (S.D. Tex.

Dec. 11, 2009). The district court in the Scott case held the disparate treatment

between Jehovah’s Witnesses and Muslims violated the Establishment Clause

and ordered the State to propose a method of compliance. Scott v. Pierce, 4:09-

CV-3991, 2012 U.S. Dist. LEXIS 190126, at *15 (S.D. Tex. May 7, 2012)

(unpublished). In its attempt at compliance, the State submitted the Scott

Plan, which required direct supervision for all religious services, including

Muslim services. Proposed Compliance Plan (Dkt. No. 69), Scott v. Pierce, No.

4:09-CV-3991 (S.D. Tex. Sept. 4, 2012). In practice, the Scott Plan—requiring

direct supervision of all religious services—contravened the consent decree—

requiring that Muslim prisoners be permitted to gather “under appropriate

supervision” where direct supervision was unavailable.

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Because the Scott Plan directly conflicts with the consent decree, the

TDCJ moved in August 2012 to terminate the consent decree pursuant to the

PLRA. 2 The district court denied TDCJ’s motion, finding that the portions of

the consent decree that afford Muslim prisoners the right to equal time for

religious exercise as afforded to prisoners of other faiths were necessary to

prevent the violation of a federal right. Although TDCJ appeals from that

denial, it failed to challenge the district court’s underlying factual findings in

its opening brief.

II

The majority holds that the district court erred in finding a

continuing violation of RLUIPA. That statute provides that the government

shall not “impose a substantial burden on the religious exercise of a person

residing in or confined to an institution,” unless the government can prove that

the substantial burden “(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1. The majority does not dispute

the undoubtedly substantial burden imposed on Muslim inmates by the Scott

Plan. Instead, the majority holds that any burden placed on Muslim inmates

was not, as a matter of law, caused by the TDCJ. In my view, this conclusion

is based on an erroneous reading of our case law in this area.

2 Under the PLRA, the filing of a motion to terminate automatically stays the

effectiveness of a consent decree issued pursuant to that statute. 18 U.S.C. § 3626(e). After

the district court denied the motion to terminate the consent decree, this court continued the

PLRA’s stay of the consent decree pending appeal, such that since 2012, the consent decree

has not been in effect and Muslim inmates have been subjected to the Scott Plan, under which

they are not afforded the opportunity to meet without direct supervision.

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A

The majority opinion’s principal conclusion with respect to plaintiffs’

RLUIPA claim is that, as a matter of law, the TDCJ did not cause the

substantial burden Muslim inmates faced. Instead, the majority reasons, the

substantial burden on Muslim inmates was caused by the lack of outside

volunteers available to supervise Muslim services. The majority’s reasoning

draws on a single line from Adkins v. Kaspar, in which a panel of this court

stated that the burden on the religious exercise of members of the Yahweh

Evangelical Assembly (YEA) in Texas prisons “results . . . from a dearth of

qualified outside volunteers . . ., not from some rule or regulation that directly

prohibits such gatherings.” 393 F.3d 559, 571 (5th Cir. 2004). However, the

majority ignores Adkins’s further admonition that analyzing whether a

substantial burden exists under RLUIPA “requires a case-by-case, fact-specific

inquiry,” because we have not “craft[ed] a bright-line rule.” Id. at 571. Here,

the majority flouts this cautionary language by converting a single sentence in

Adkins into a bright-line rule that Texas inmates cannot establish causation

against TDCJ with respect to the requirement that they be directly supervised

for religious services.

Although Adkins itself reveals the error in the majority’s analysis, this

panel is not the first to interpret Adkins. In Mayfield v. Texas Department of

Criminal Justice, 529 F.3d 599 (5th Cir. 2008), we held that the TDCJ violated

RLUIPA by applying the direct-supervision rule—the same rule at issue in this

case—to Odinist inmates. 529 F.3d at 614–15. Mayfield distinguished Adkins

because, unlike in Adkins, where “the volunteer policy was implemented

uniformly,” uneven application of the direct-supervision policy in Mayfield

“suggest[ed] that the burden [was] at least partially imposed by the TDCJ’s

disparate application.” Id. at 614. The majority acknowledges Mayfield but

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argues that Adkins nevertheless controls because “[t]he direct supervision

requirement under the Scott Plan has been imposed uniformly, as it was in

Adkins.” Supra Part IV. I disagree. Adkins is distinguishable for at least two

reasons.

First, as in Mayfield, there is evidence here that the TDCJ causes

different religious groups to be treated differently. The district court explicitly

found that “unlike Muslim inmates, Jewish inmates are specifically assigned

to units in order that they are closer to prospective volunteers,” and “[l]ikewise,

Native American inmates are assigned to a specifically designated unit to

facilitate access to each other and to enhance Native American religious

activities.” These factual findings were not challenged on appeal by TDCJ. 3

This inconsistency between treatment of Muslim inmates versus Native

American and Jewish inmates reflects that, although the direct-supervision

policy on its face may appear to apply uniformly, the extent of its effects has

been intentionally tempered with respect to some, but not other, groups. This,

like the evidence in Mayfield of inconsistent application of the policy,

“suggest[s] that the burden is at least partially imposed by the TDCJ’s

disparate application.” Mayfield, 529 F.3d at 614; see also Newby v.

Quarterman, 325 F. App’x 345, 350 (5th Cir. 2009) (distinguishing Adkins and

holding that “total lack of approved Buddhist volunteers” and the resulting

“preclu[sion of] members of the Buddhist faith . . . from meeting” reflected a

substantial burden caused by the State under RLUIPA).

Second, in finding that the TDCJ did not cause the substantial burden

suffered by YEA adherents, Adkins gave significant weight to the fact that two

3 The TDCJ argues for the first time in its reply brief that the district court made clear

errors of fact, but this court does not consider arguments first raised in a reply brief. See

United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).

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additional individuals would soon become volunteers, providing a significant

addition of volunteers for the small group of 25 to 30 YEA prisoners at issue in

that case. See 393 F.3d at 571. The district court’s findings indicate no such

alleviation will ever occur for Muslim inmates. Contrary to Adkins, there is

evidently no hope here for future additional Muslim volunteers, because (1)

“[a] large number of Muslim inmates are assigned to units that are located

predominately in remote areas of the state where few Muslim civilians reside”

to serve as volunteers, (2) the Muslim practice of “Jum’ah . . . must occur

shortly after midday on Fridays, a day when potential volunteers are at work

and unable to travel to prison units to participate” whereas “Protestant

services are commonly held on weekends,” and (3) unlike the 25 to 30 YEA

adherents in Adkins, for whom an additional two volunteers would make a

meaningful impact, “approximately 6,775 inmates have expressed a religious

preference for the Muslim group” in Texas prisons.

Accordingly, the majority’s conclusion that the TDCJ did not cause the

substantial burden imposed on Muslim inmates is incorrect, and its reliance

on Adkins to reach that conclusion is misplaced, as Adkins is distinguishable.

The district court correctly found that the Scott Plan imposed a substantial

burden on Muslim inmates’ religious exercise, and I would affirm that finding.

B

Because the majority finds that TDCJ did not cause the substantial

burden on Muslim inmates’ religious freedom, it finds no continuing RLUIPA

violation and does not reach RLUIPA’s other elements or the PLRA’s

requirements for continuing the consent decree. As discussed, I would affirm

the district court’s finding that the TDCJ created a substantial burden on

Muslim inmates through application of the Scott Plan. I will therefore analyze

RLUIPA’s additional requirements that the substantial burden is in

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furtherance of a compelling governmental interest and is the least restrictive

means of furthering that interest. See 42 U.S.C. § 2000cc-1. The Scott Plan

violates RLUIPA if the TDCJ fails to meet either prong. And if an RLUIPA

violation is found, the PLRA’s remaining requirements must be analyzed as

they apply to the consent decree—whether the decree extends no further than

necessary to correct the RLUIPA violation and is narrowly drawn and the least

intrusive means to correct that violation. See 18 U.S.C. § 3626(b)(2)-(3). The

district court found that (1) the TDCJ failed to demonstrate that the Scott Plan

serves a compelling governmental interest or is the least restrictive means for

furthering that interest; and (2) the remaining requirements of a PLRA for

continuing the consent decree were met. Because the district court was correct

on both fronts, I would affirm.

1

In order to escape an RLUIPA violation once a substantial burden has

been established, the TDCJ must show the Scott Plan “is in furtherance of a

compelling governmental interest” and “is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)–

(2). The TDCJ did not meet either requirement.

As for the first requirement, instead of articulating a specific compelling

interest, the TDCJ argues that, as a matter of law and based on security

concerns, the direct-supervision policy advances a compelling governmental

interest. Such generalized assertions fail to meet the fact-specific and

individualized inquiry required by RLUIPA. See Tagore v. United States, 735

F.3d 324 (5th Cir. 2013) 4 (substantial burden analysis in “RFRA requires the

4 The fact that Tagore is a RFRA rather than RLUIPA case renders it no less

applicable here. See Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (“Congress carried over

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government to explain how applying the [burdensome policy at issue] ‘to the

person’ whose sincere exercise of religion is being seriously impaired furthers

the compelling governmental interest”); see also McAllen Grace Brethren

Church v. Salazar, 764 F.3d 465, 475 (5th Cir. 2014) (“[T]he governmental

interest cannot be ‘couched in very broad terms’ but must be ‘focused’ on the

particular claimant whose interest is substantially burdened.”). Citing to

testimony that Muslim inmates and chaplains were not aware of serious

disciplinary incidents, as well as the fact that “[t]here are no written

disciplinary reports of incidents involving indirectly supervised or inmate-led

Muslim religious services,” the district court specifically found there was no

evidence that inmate-led religious services posed a security risk. The district

court found that indirectly-supervised Muslim religious services posed no

safety concerns. These fact findings are unchallenged on appeal and are

conclusive that, as the district court found, “the TDCJ administrator’s

contention that the presence of an outside volunteer furthers its compelling

state interest in prison security is unfounded and contradicted by the

evidence.” The TDCJ, then, fails to meet the first requirement that the Scott

Plan furthers a compelling government interest. See 42 U.S.C. § 2000cc-

1(a)(1).

TDCJ also fails to meet the second requirement. Even assuming some

broad compelling interest in safety and security, the Scott Plan is clearly not

the least restrictive means to furthering any such interest. See 42 U.S.C. §

2000cc-1(a)(2). Taking the district court’s findings at face value, as we must,

less restrictive means exist. For example, simply allowing Muslim inmates to

from RFRA [to RLUIPA] the ‘compelling governmental interest’/‘least restrictive means’

standard.”); Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007).

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continue holding inmate-led services is clearly sufficient to further the

government’s interest. As the district court pointed out, “TDCJ’s experience

during the thirty-five years of inmate-led services demonstrates that less

restrictive means are available and that they fulfill TDCJ’s security concerns

while not burdening the Muslim inmates’ exercise of their religious practices.”

The TDCJ, therefore, has failed to establish that the Scott Plan is the least

restrictive means of furthering its interest. See 42 U.S.C. § 2000cc-1(a)(2).

2

The PLRA’s requirements for continuing the consent decree are also met.

The PLRA mandates that the consent decree remain in place if it (1) “remains

necessary to correct a current and ongoing violation of the Federal right,” (2)

“extends no further than necessary to correct the violation of the Federal

right,” and (3) “is narrowly drawn and the least intrusive means to correct the

violation.” 18 U.S.C. § 3626(b)(3). As previously explained, the consent decree

remains necessary to correct the ongoing violation of Muslim prisoners’ rights

under RLUIPA, satisfying the first prong. See id. Given that the consent

decree specifically alleviates the burdens imposed on Muslim inmates by

precluding application of a direct-supervision rule to them—the very rule that

violates RLUIPA—the consent decree “extends no further than necessary” and

“is narrowly drawn and the least intrusive means.” Id.

For these reasons, I would affirm the district court’s continuation of the

consent decree to protect Muslim inmates in Texas from a continuing violation

of federal law.

III

Because, in my view, an ongoing violation of federal law justifies

the district court’s refusal to vacate the entire consent decree as the TDCJ

requested, I would not reach the Establishment Clause and Free Exercise

66

Case: 14-20249 Document: 00515020007 Page: 67 Date Filed: 07/02/2019

No. 14-20249

c/w No. 14-20444

Clause violations. However, I am compelled to note two additional issues with

the opinion. First, Judge Owen’s discussion of the Muslim inmates’

Establishment Clause rights, which failed to garner majority support and is

therefore not binding precedent, would unnecessarily create a circuit split. 5

Second, both Judge Owen’s lone discussion of the Establishment Clause, and,

on behalf of a majority, her Free Exercise analysis, overstep the bounds of

appellate review by retrying the facts of this case de novo despite that the

district court’s factual findings go unchallenged on appeal. See Anderson v.

City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (This court “must

constantly have in mind that [its] function is not to decide factual issues de

novo.” (cleaned up)); United States v. Nieto, 721 F.3d 357, 372 (5th Cir. 2013)

(finding that challenges to the district court’s fact-finding were waived for

failure to brief).

***

For these reasons, I respectfully dissent.

5 Judge Owen’s opinion applies deference under Turner v. Safley, 482 U.S. 78 (1987)

in the context of the Establishment Clause, even though no other circuit has done so in a

published case. See Americans United for Separation of Church & State v. Prison Fellowship

Ministries, Inc., 509 F.3d 406, 426 (8th Cir. 2007) (explaining that the Eighth Circuit has

“consistently analyzed Establishment claims without mentioning the Turner standard, even

when applying that standard to Free Exercise claims in the same case”); Maye v. Klee, 915

F.3d 1076, 1085 (6th Cir. 2019) (declining to decide whether to apply Turner or analyze under

strict scrutiny because the violation was clear under either standard); Kerr v. Farrey, 95 F.3d

472, 480 (7th Cir. 1996) (applying Lemon v. Kurtzman, 403 U.S. 602 (1971) and reversing

after district court applied Turner and found no Establishment Clause violation); see also

Williams v. Lara, 52 S.W.3d 171, 188 (Tex. 2001) (following “an overwhelming majority of . .

. courts” in declining to apply Turner to Establishment Clause claims); Scott v. Pierce, No.

CV H-09-3991, 2012 WL 12535442, at *3 (S.D. Tex. May 7, 2012) (declining to apply Turner

to Establishment Clause claims); Muhammad v. City of N.Y. Dep’t of Corr., 904 F. Supp. 161,

195-99 (S.D.N.Y. 1995) (applying Turner to Free Exercise claims but not to Establishment

Clause claims stemming from the jail’s refusal to provide inmates with Nation of Islam

ministers and services).

67