Mayfield v. Texas Department of Criminal Justice

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 30, 2008

No. 06-50490 Charles R. Fulbruge III

Clerk

DARREN L MAYFIELD

Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; GARY L JOHNSON,

EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION, sued in individual and official

capacity; BILL PIERCE, Director of Chaplaincy, sued in individual and

official capacity

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Darren L. Mayfield (“Mayfield”), Texas prisoner #571949, appeals the

district court’s grant of summary judgment in favor of the defendants on his

claims alleging First Amendment violations under 42 U.S.C. § 1983 as well as

violations of the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. §§ 2000cc-2000cc-5. For the following reasons we affirm

in part, vacate in part, and reverse in part the district court’s judgment and

remand.

I

No. 06-50490

Mayfield, a prisoner incarcerated in the Texas Department of Criminal

Justice (“TDCJ”) Hughes Unit, practices the Odinist/Asatru faith. He describes

Odinism as the ancestral folk religion of Northern Europe and a polytheistic,

nature-based faith that worships a variety of gods and goddesses. The practice

of Odinism involves group worship meetings known as Blotar. A Blotar

ceremony requires the use of certain religious paraphernalia including

runestones, a blessing bowl, a non-alcoholic beverage, a drinking horn, an altar

cloth, a symbolic Thor’s hammer made of material such as cardboard, and a

leafed evergreen branch. Runestones are small tiles made from pieces of antler,

wood, or stone that have been carved with characters of the ancient runic

alphabet inscribed on them. Aside from having runestones for the Blotar

ceremony, Odinism also involves the individual study of runestones. The

individual study of runestones is an essential component of the Odinist faith

because the stones serve as meditation tools to reveal wisdom and truth to the

practitioner. Hughes Unit inmates designating their faith preference as

Odinism are relatively few. Just 41 out of the 2,869 inmates confined in the

Hughes Unit designated their faith preference as Odinist/Asatru. Only 21 of the

designated Odinists regularly participate in the Odinist religious ceremonies.

According to the affidavits of various Odinist leaders outside the prison,

Blotar should be conducted, at a minimum, on a monthly basis. Odinists in the

Hughes Unit are unable to conduct their Blotar on a regular basis because the

TDCJ requires that they have a security-trained, religious volunteer present for

their group meetings.1 The only approved outside volunteer lives in Arkansas

and could not come to the Hughes Unit as frequently as Mayfield and the other

1

TDCJ policy states that some form of security is required for religious group meetings, either

in the form of a trained volunteer from outside the prison, a prison chaplain, or other TDCJ security

personnel.

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No. 06-50490

Odinists desired.2 Mayfield asked prison authorities for permission to hold

Odinist group meetings with prison security present rather than an outside

volunteer. The TDCJ denied this request on a number of occasions, noting that

security and space considerations prevented the Odinists from meeting without

an outside volunteer. Also, despite repeated requests to personally possess

runestones, the TDCJ did not allow the Odinists access to runestones except for

when the trained volunteer brought them into the prison.3 The TDCJ

determined that runestones presented distinct security issues because they could

be used for gambling, as gang identifiers, or for secret communication between

inmates.

After exhausting his administrative remedies, Mayfield brought this suit

against the TDCJ and against Gary Johnson (“Johnson”) and Bill Pierce

(“Pierce”) in their individual and official capacities.4 His suit claims that the

defendants placed impermissible burdens on the Odinist adherents at the

Hughes Unit by allowing them to meet only when an approved outside volunteer

could visit the prison, by prohibiting the Odinist adherents from personally

possessing runestones, and by prohibiting access to literature on the runes.

Mayfield brought suit under § 1983, alleging a violation of his First Amendment

right to free exercise of religion. Mayfield also claimed that the TDCJ’s practices

violated RLUIPA, which protects the religious practices of institutionalized

persons.

2

The summary judgment record does not clearly reflect how often the Odinist volunteer could

come to the prison. See Part II.D.1, infra.

3

TDCJ has, since the filing of Mayfield’s suit, stated its intention to institute a pilot program

that would allow prisoners to purchase their own set of approved runestones. Under the pilot program

the runestones are to be kept in the custody of the unit chaplain and checked out to inmates for use

during approved time slots. However, according to the evidence submitted, the pilot program has not

yet been implemented.

4

When necessary, we distinguish between the TDCJ and the individual defendants in this case.

See Part II.A, infra. However, because Mayfield brings the same claims against all of the defendants,

for simplicity’s sake the opinion often refers to the defendants collectively as “TDCJ.”

3

No. 06-50490

The district court granted summary judgment in favor of the defendants

on all of Mayfield’s claims. The court provided a number of grounds for its

summary judgment dismissal. First, the district court concluded that the

defendants were entitled to judgment as a matter of law because Mayfield had

not sufficiently shown a violation of either RLUIPA or the First Amendment.

However, the district court also proceeded to consider the impact of sovereign

and qualified immunity on Mayfield’s claims. The district court held that both

sovereign and qualified immunity prevented Mayfield from pursuing his claims.

Finally, the district court determined that Mayfield had failed to state claim for

relief))because he was a prisoner proceeding pro se and in forma pauperis the

district court imposed a strike against him under the three-strikes provision

found in 28 U.S.C. § 1915(g).5 Mayfield filed a timely notice of appeal and

counsel was eventually appointed on appeal.

II

We review the district court’s grant of summary judgment de novo,

applying the same standard as did the district court. See Baranowski v. Hart,

486 F.3d 112, 119 (5th Cir. 2007). Summary judgment is appropriate “if the

pleadings, depositions, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

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

The moving party bears the burden to “demonstrate the absence of a genuine

issue of material fact.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (per curiam) (internal quotation marks and citation omitted).

5

28 U.S.C. § 1915(g) states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action

or proceeding under this section if the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

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No. 06-50490

In making our determination, we must resolve disputed facts in favor of the

nonmoving party, in this case Mayfield. See id.

In reviewing the district court’s grant of summary judgment, we address

each of its grounds for granting the summary judgment dismissal. First, we

consider the district court’s conclusions as to sovereign and qualified immunity.

Concluding that complete dismissal of Mayfield’s claims was improper on

immunity grounds alone, we then proceed to analyze whether issues of fact

remain.

A

In reaching its conclusion as to the application of sovereign immunity, the

district court held that all of Mayfield’s claims against the TDCJ and the

employees of the TDCJ charged in their official capacities were barred by the

Eleventh Amendment. As to Mayfield’s claims for damages against Johnson and

Pierce in their individual capacities, the district court held that the two

defendants were entitled to qualified immunity.

The district court dismissed all claims against the TDCJ on sovereign

immunity grounds. The TDCJ is an agency of the state, and as such is normally

shielded from “suits by individuals absent [its] consent.” Frew ex rel. Frew v.

Hawkins, 540 U.S. 431, 437 (2004). Mayfield does not challenge the district

court’s dismissal of his claims against the TDCJ, and therefore has waived any

contention that these claims should survive the district court’s judgment.6 See

Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (holding that prisoner waived

First Amendment claim because he failed to brief arguments on appeal).

6

We note that some circuit courts have addressed the question of whether RLUIPA constitutes

a waiver of sovereign immunity, thus making states amenable to suit. See note 8, infra. However, the

district court does not appear to have considered the argument and it was not briefed before us.

Therefore, we do not address it. See In re Dearborn Marine Service, Inc., 499 F.2d 263, 270 n. 12 (5th

Cir. 1974) (refusing to consider an argument that presented an issue of law novel in the circuit because

it was not briefed by the parties).

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No. 06-50490

Still, sovereign immunity is subject to an established exception when it

comes to the ability of state officers to invoke its protections. “Under Ex Parte

Young, a federal court, consistent with the Eleventh Amendment, may enjoin

state officials to conform their future conduct to the requirements of federal law.”

McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); see also

Frew, 540 U.S. at 437 (noting that Eleventh Amendment permits suits for

prospective injunctive relief against state officials acting in violation of federal

law). Construing Mayfield’s pro se complaint liberally, we find that it seeks

declaratory relief as well as a permanent injunction against Johnson and Pierce

in their official capacities. See Nerren v. Livingston Police Dep’t, 86 F.3d 469,

473 (5th Cir. 1996) (recognizing that we construe pro se complaints liberally);

Aguilar v. Tx. Dep’t Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998)

(explaining that the application of Ex Parte Young requires the complaint to

include claims against individual persons in their official capacities as agents of

the state, and the “relief sought must be declaratory or injunctive in nature and

prospective in effect”). Mayfield’s amended complaint and attached

memorandum state that he seeks for the court to “declare the acts and omissions

described herein violated the Plaintiff’s . . . rights under the Constitution and

laws of the United States,” and also that he “seeks a permanent injunction. . . as

to his claims.” Both § 1983 and RLUIPA allow for declaratory and injunctive

relief.7 As such, the district court erred in concluding that “Plaintiff’s claims are

all covered with immunity from the Eleventh Amendment.” Mayfield’s claims

for declaratory and injunctive relief against Johnson and Pierce in their official

capacity are not barred by sovereign immunity.

7

See 42 U.S.C. § 1983 (stating that a defendant may be liable “in an action at law, suit in

equity, or other proper proceeding for redress”). RLUIPA also provides for such relief against state

government officials. See 42 U.S.C. § 2000cc-2 (noting that RLUIPA provides for “appropriate relief

against a government”); 42 U.S.C. § 2000cc-5 (defining “government” to include an “official” of “a

State . . . or other governmental entity created under the authority of a State”).

6

No. 06-50490

To the extent that Mayfield seeks damages against Johnson and Pierce,

we need not address the district court’s conclusions that sovereign and qualified

immunity prevent Mayfield’s recovery.8 Instead, we affirm the grant of

summary judgment to the extent that Mayfield seeks damages because his

damage claims are barred by the Prison Litigation Reform Act of 1995 (“PLRA”),

42 U.S.C. § 1997e(e). See Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993)

(noting that in affirming a district court’s grant of summary judgment, we are

not bound by the reasons articulated by the district court). The PLRA provides

that “[n]o Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury suffered

while in custody without a prior showing of physical injury.” 42 U.S.C. §

1997e(e). We have held that the application of this provision turns on the relief

sought by a prisoner, and that it prevents prisoners from seeking compensatory

damages for violations of federal law where no physical injury is alleged. See

Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005) (per curiam). Despite the

limitations imposed by § 1997e(e), we have recognized that a prisoner can,

absent a showing of physical injury, pursue punitive or nominal damages based

upon a violation of his constitutional rights. See Hutchins v. McDaniels, 512

F.3d 193, 197-98 (5th Cir. 2007) (per curiam). However, Mayfield has not

8

Mayfield seeks compensatory damages from the TDCJ, as well as Johnson and Pierce in both

their official and individual capacities. The rule is commonly stated that, “[f]ederal courts may not

award retrospective relief, for instance, money damages or its equivalent, if the State invokes its

immunity.” Frew, 540 U.S. at 437. This rule normally applies to states, as well as state officers acting

in their official capacity, and would prevent Mayfield from seeking such damages under § 1983. See

Quern v. Jordan, 440 U.S. 332, 345 (1979) (recognizing that § 1983 does not indicate “an intent [by

Congress] to sweep away the immunity of the States”). However, circuit courts are currently split on

whether RLUIPA provides for a waiver of state sovereign immunity. See Madison v. Virginia, 474 F.3d

118, 131 (4th Cir. 2006) (finding that RLUIPA does not constitute a waiver of immunity allowing for

damages actions); Benning v. Georgia, 391 F.3d 1299, 1305-06 (11th Cir. 2004) (finding that § 3 of

RLUIPA constitutes a waiver of state sovereign immunity); see also Smith v. Allen, 502 F.3d 1255,

1269-76, and 1276 n. 12 (11th Cir. 2007) (holding that a prisoner can, under RLUIPA, pursue nominal

damages against a state officer in her official capacity). Whether RLUIPA contemplates damages

actions against officers in their individual capacity has also created disagreements amongst courts. See

Madison, 474 F.3d at 130 n. 3 (listing cases). We need not reach these issues to decide this appeal.

7

No. 06-50490

alleged any physical injury and his complaint seeks only compensatory damages.

As such, Mayfield’s claims for damages are barred by § 1997e(e). See Geiger 404

F.3d at 375 (applying §1997e(e) to bar prisoner’s claim for damages brought

under § 1983 alleging a First Amendment violation); RLUIPA, 42 U.S.C. §

2000cc-2(e) (“Nothing in this chapter shall be construed to amend or repeal the

Prison Litigation Reform Act of 1995 (including provisions of law amended by

that Act).”); Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (noting that RLUIPA

claims are subject to the exhaustion requirement of § 1997e(a)); see also Smith

v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) (recognizing that damage claims

under RLUIPA are limited by § 1997e(e)).

Neither sovereign nor qualified immunity prevent Mayfield from pursuing

declaratory and injunctive relief against the state officials in this case. The

district court’s grant of summary judgment cannot rest on immunity grounds

alone. Therefore, we proceed to consider the district court’s conclusion that

summary judgment was proper because no issues of fact existed as to Mayfield’s

claims under § 1983 and RLUIPA.

B

Mayfield submitted a number of affidavits from Odinist leaders along with

his motions and responses filed in the district court. The affidavits explain the

basic tenets of Odinism, expressing the affiants’ understandings of the

importance of certain ritual items and practices to the Odinist faith. Some of the

affiants draw conclusions as to the likely security threat posed by the Odinists’s

group meetings or possession of runestones. The defendants moved to strike the

affidavits in their entirety, arguing that none of the affiants have sufficient

knowledge, skill, experience, training, or education to qualify as experts in

prison security under FED. R. EVID. 702. The district court did not rule on the

motion at that time. However, in its order dismissing Mayfield’s claims on

summary judgment, the district court made an ambiguous ruling as to the

8

No. 06-50490

admissibility of these affidavits. After quoting heavily from the affidavits of

TDCJ personnel, the district court turned to the affidavits from Odinist leaders

submitted by Mayfield. The district court agreed with the defendants’

arguments from its prior motion and found that the affiants were unqualified to

testify as experts in the area of prison security. As to this particular ruling,

which we review for an abuse of discretion, we do not disagree. See Boyd v. State

Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (noting the broad discretion

afforded to district courts in ruling on the admissibility of expert testimony in

the summary judgment context). Mayfield submitted no evidence that would

establish any of his affiants as experts in the field of prison security measures.

However, some question remains as to the district court’s ruling

concerning the remaining portions of the affidavits: those that do not draw

conclusions as to security but instead explain certain Odinist practices. In its

fiat, the district court noted that all outstanding motions not previously ruled

upon were denied. On appeal, the defendants repeat the argument raised below

that Mayfield’s affiants are not qualified to testify as to the wisdom of prison

security policy. The district court agreed with this argument and so do we.

However, because the district court’s reasons for excluding testimony of

Mayfield’s affiants apply only to the affiants’ opinions regarding prison security,

and because the court through its fiat denied the defendants’ motion to strike the

affidavits in their entirety, we treat those portions of the affidavits not related

to prison security as part of the summary judgment record. See Akin v. Q-L

Investments, Inc., 959 F.2d 521, 531 (5th Cir. 1992) (“On a motion for summary

judgment the district court should disregard only those portions of an affidavit

that are inadequate and consider the rest.”); 10B CHARLES ALAN WRIGHT,

ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE

§ 2738, 375-76 (3d Ed. 1998) (collecting cases in support of this proposition).

C

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No. 06-50490

First, we consider Mayfield’s § 1983 claim that the TDCJ violated his First

Amendment right to free exercise. We review prison regulations that encroach

on fundamental constitutional rights under the standard set forth by the

Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), to determine whether the

regulation is “reasonably related to legitimate penological interests.” Id. at 89;

see O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-53 (1987) (applying Turner’s

standard to free exercise claim brought by prisoner under § 1983). In evaluating

the reasonableness of a prison regulation, Turner instructs us to consider four

factors: (1) whether there is a “valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it”;

(2) “whether there are alternative means of exercising the right that remain

open to prison inmates”; (3) “the impact accommodation . . . will have on guards

and other inmates, and on the allocation of prison resources generally”; (4)

whether there are “ready alternatives that could fully accommodate[] the

prisoner’s rights at de minimis cost to valid penological interests.” Turner 482

U.S. at 89-91 (internal citations and quotation marks omitted). Turner’s

standard also includes a neutrality requirement))“the government objective

must be a legitimate and neutral one . . . [and] [w]e have found it important to

inquire whether prison regulations restricting inmates’ First Amendment rights

operated in a neutral fashion.” Id. at 90; see Freeman v. Texas Dep’t of Criminal

Justice, 369 F.3d 854, 860-61 (5th Cir. 2004) (“Foremost, TDCJ’s regulation is

neutral. . . . There is no evidence that TDCJ’s policy is targeted toward the

Church of Christ, or favors one religious group over another.” (internal quotation

marks and citations omitted)). While Turner’s standard encompasses four

factors, we have noted that rationality is the controlling factor, and a court need

not weigh each factor equally. See Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 81

(5th Cir. 1992).

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No. 06-50490

Mayfield claims that his free exercise rights were improperly limited in

two ways: (1) the TDCJ’s not allowing the Odinist group to assemble for religious

services in the absence of an outside volunteer (the “volunteer policy”); and (2)

the TDCJ’s preventing the Odinists from personally possessing runestones and

accessing rune literature (the “runestones policy”).9 The district court concluded

that no material issues of fact remained as to either claim. We consider each

claim under Turner’s standard, analyzing whether the record, when interpreted

in a light most favorable to Mayfield, reveals a genuine issue of material fact

that precludes summary judgment.

1

We have analyzed the TDCJ’s volunteer policy under Turner’s standard

in the past and upheld the policy on each occasion. See Baranowski, 486 F.3d

at 121-22; Adkins v. Kaspar, 393 F.3d 559, 565 (5th Cir. 2004). Applying

Turner’s four factors to the TDCJ’s outside-volunteer policy in this case, we first

note that the policy itself is reasonably related to a legitimate penological

interest. The TDCJ’s asserted justifications for the volunteer requirement

involve prison security concerns, as well as staff and space limitations. These

are valid penological interests. We have recognized in previous cases that the

TDCJ’s volunteer requirement is rationally related to these legitimate concerns.

See Baranowski, 486 F.3d at 121 (affirming a district court’s grant of summary

judgment, in part, because “[t]he record demonstrates that the prison policies at

issue here are logically connected to legitimate penological concerns of security,

9

Mayfield also complains that the TDCJ does not allow the Odinists to store at the prison the

religious paraphernalia associated with the Blotar, whereas TDCJ allows other faiths to store religious

items in the chapel. The TDCJ determined that the Odinist volunteer must bring and take away the

Blotar items with each visit. We do not see this claim as distinct from Mayfield’s claim to hold religious

meetings without a volunteer present. The absence of the Blotar items in the chapel does not impose

a distinct burden on Mayfield’s religious practice unless the Odinists can meet without a volunteer.

Until the TDCJ’s denial of group meetings is deemed unlawful, a decision that we do not make here,

the TDCJ’s decision not to store the Blotar items in the prison chapel need not be evaluated separately.

11

No. 06-50490

staff and space limitations”). However, in this case, the summary judgment

record reveals a factual dispute as to the neutrality of the policy’s application.

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. See

Adkins 393 F.3d at 571 (noting that, “[t]he requirement of an outside

volunteer . . . is a uniform requirement. . . .”); Freeman, 369 F.3d at 860

(“Foremost, TDCJ’s regulation is neutral . . . .”); Green v. Polunsky, 229 F.3d 486,

490 (5th Cir. 2000) (finding that a prison policy requiring short hair and clean-

shaven faces does not violate inmates’ right to free exercise, in part because the

“the policy is neutral, affecting all inmates, regardless of their religious beliefs”);

Mumin v. Phelps, 857 F.2d 1055, 1057 (5th Cir. 1988) (noting that, “there is not

a shred of evidence that the appellants are being denied any rights because they

are Muslims”). The TDCJ submitted evidence that its volunteer requirement is

imposed uniformly, with an exception for Muslims based on an earlier court

order. Mayfield submitted affidavit testimony from two prisoners, one a Muslim

and one a practitioner of Native American religion. Both averred that their

religious groups are allowed to hold regular meetings without an outside

volunteer. The Native American affiant stated that such meetings were held on

a near-weekly basis. Mayfield contends that the TDCJ is intentionally targeting

the Odinists through the disparate application of its volunteer policy. While the

TDCJ states in its appellate brief that “Native Americans are also required to

have a volunteer present,” no record evidence supports this statement. In an

attempt to resolve this dispute, the district court reached a factual conclusion

unsupported by the summary judgment record. The district court concluded that

Mayfield’s evidence of the policy’s disparate application could be overlooked

because, “Muslim, Christian, and Native American groups are not similarly

situated [to Odinists] in that they have a far greater number of adherents both

inside and outside the prison.” While the summary judgment record supports

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No. 06-50490

the conclusion that Odinists are a small percentage of the Hughes Unit’s

population, the record does not identify the number of inmates that have

designated their faith group as Islam, Christian, or Native American. We cannot

overlook material issues of fact concerning the neutrality of the volunteer

policy’s application based on assumptions about the relative size of the Odinists

compared to other faith groups within the Hughes Unit (e.g., the potentially

small number of Native American religious adherents).

That issues of fact remain as to the neutrality of the application of TDCJ’s

volunteer policy differentiates this case from those we have previously

considered. Requiring neutrality ensures that the prison’s application of its

policy is actually based on the justifications it purports, and not something more

nefarious. Were we to ignore Turner’s neutrality requirement, we would allow

prison regulators to justify a policy based on a legitimate interest applicable to

the overall prison population, while applying the policy in an arbitrary or

discriminatory manner in violation of a particular subgroup’s First Amendment

rights. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 534 (1993) (“Facial neutrality is not determinative. . . . The [Free Exercise]

Clause forbids subtle departures from neutrality and covert suppression of

particular religious beliefs.” (internal quotation marks and citations omitted)).

In reaching this conclusion we do not suggest that “every religious sect or group

within a prison - however few in number - must have identical facilities or

personnel.” Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). But under Turner,

neutrality must be ensured, or its absence sufficiently explained in light of a

legitimate penologoical interest, for summary judgment to be appropriate. See

Thornburgh v. Abbot, 490 U.S. 401, 415-16 (1989) (holding that Turner’s

neutrality requirement allows a prison policy to draw distinctions so long as

those distinctions flow from the government’s legitimate penological interest);

see also Hammer v. Ashcroft, 512 F.3d 961, 968-69 (7th Cir. 2008) (holding that

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issue of material fact as to neutrality in application of prison regulation required

reversal of district court’s grant of summary judgment); Dingle v. Zorn, 189 F.

App’x 8, 10 (2d. Cir. 2006) (unpublished) (reversing summary judgment because

issue of facts existed as to neutrality in prison’s application of religious volunteer

policy).

Turner’s second element requires consideration of the alternative means

of worship available in spite of the prison regulation. “The pertinent question

is not whether the inmates have been denied specific religious accommodations,

but whether, more broadly, the prison affords the inmates opportunities to

exercise their faith.” Freeman, 369 F.3d at 861. In other words, we ask

“whether the regulation entirely stifles the prisoner’s religious expression.”

Scott, 961 F.2d at 81. The TDCJ notes that Mayfield may gather for group

worship when an outside volunteer is present, and may worship individually in

his cell with items approved for personal possession. The TDCJ’s policy also

allows Mayfield the opportunity to meet individually with an approved spiritual

advisor twice monthly. The TDCJ submitted evidence that Mayfield has access

to Odinist religious materials in the unit’s spiritual library. Klaus Adams, the

Hughes Unit chaplain, averred that he banned a single book related to Odinism,

but that many Odinist prisoners use the spiritual library. Mayfield responds

that personal worship in his cell is made impossible because the TDCJ does not

provide any of the necessary items for Odinist religious practice, and that

Odinism is, by its nature, a religion of communal worship. Mayfield also

submits evidence showing that the Hughes Unit refused to approve a number of

books on Odinism, specifically books related to runes. While the record presents

minor unresolved issues of fact regarding alternative means available to

Mayfield, these issues of fact are not material and the record sufficiently

establishes that Mayfield has access to alternative means of worship.

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As to Taylor’s third prong, we recognize the heavy burden on guards, other

inmates, and prison resources that could result from requiring the TDCJ to

accommodate the Odinists’ request. Allowing the Odinists to meet without a

volunteer would require the TDCJ to pull an officer from other necessary

security duty in order to monitor the religious service. The Odinists are a small

group, a mere 1.4% of the Hughes Unit’s inmate population. If all 140 religious

groups in the TDCJ requested the ability to meet without an outside volunteer,

prison security could be seriously compromised by the need to remove personnel

from their usual security posts.

Finally, other than the request to allow the Odinists to meet without an

outside volunteer, Mayfield presents no other alternative means of

accommodation. The above paragraph indicates the strain that this particular

accommodation could impose on prison security. This potential strain represents

more than a de minimis cost to TDCJ’s valid penological interest in maintaining

security. However, the record leaves us to question why the Native American

religious group can meet without imposing more than a de minimis cost to

TDCJ’s interests, but the Odinists cannot.

We note again that the religious accommodation policy is facially neutral.

We also recognize the burden that the TDCJ may face if it is required to

accommodate every request from religious groups of equivalent size to the

Hughes Unit’s Odinist population. And while Turner provides a deferential

standard, see O’Lone, 482 U.S. at 350 (noting the respect and deference that the

Constitution provides for the judgment of prison administrators), it does not

mandate summary judgment in favor of prison regulators in all cases. See

Thornburgh, 490 U.S. at 414 (stating that Turner’s “reasonableness standard is

not toothless.”). Because of the importance of neutrality to our First Amendment

analysis, and because the record reveals disputed issues of fact concerning the

neutrality of TDCJ’s application of its volunteer policy, summary judgment was

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No. 06-50490

inappropriate on Mayfield’s First Amendment claim concerning the volunteer

policy.

2

Mayfield also contends that the TDCJ violates his free-exercise rights by

preventing his personal possession of runestones, and barring access to

literature about runes. Again, we consider the TDCJ’s action under Taylor’s

four-pronged analysis. First, we consider whether the regulation is rationally

related to a legitimate penological interest, also considering the neutrality of the

regulation. As noted above, the TDCJ determined that personal possession of

the small tiles would not be allowed for a number of reasons. The TDCJ does not

allow personal possession of any type of playing card, dice, or tarot cards, as

these items can be used for gambling, trafficking and trading. Gambling creates

a debtor-type relationship among inmates that could then lead to violence when

prisoners are unable to repay debts. Thus, items with a specific connection to

gambling pose a unique security risk. Because of similarities between the

runestones and these gambling-related items, the TDCJ refused to allow the

Odinists to personally possess the stones. Further, the TDCJ determined that

the runestones, because of their ancient script and small size, provide an

opportunity for inmates to secretly pass information. The TDCJ also found that

the runestones could be used to identify gang members, circumventing TDCJ’s

attempts to monitor and control gang activity.

Mayfield argues that the TDCJ’s reasons for prohibiting runestones are

not rational because the TDCJ is incorrect in its identification of the potential

dangers associated with runestones))Mayfield claims that runestones are more

like scrabble tiles or checkers which the TDCJ allows inmates to possess in

certain circumstances. However, issues of prison security are “peculiarly within

the province and professional expertise of corrections officials, and, in the

absence of substantial evidence. . . that the officials have exaggerated their

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No. 06-50490

response to these considerations, courts should ordinarily defer to their expert

judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827 (1974).

Recognizing the deference owed to the judgment of prison officials, we find that

the TDCJ’s fears regarding security represent legitimate penological interests

and that the TDCJ’s preventing personal possession of runestones is rationally

related to that interest.

Mayfield also claims that Odinist inmates are treated differently because

other faiths have access to religious scripts and other religious paraphernalia.

In contrast to the volunteer policy, Mayfield submits no evidence to call into

question the neutrality of the TDCJ’s decision as to runestones. There is no

neutrality problem because Mayfield presents no evidence that other religious

groups in the Hughes Unit have access to religious paraphernalia presenting

similar security risks. Mayfield submitted evidence that Islamic inmates can

personally possess a prayer rug, a Kufi cap, and prayer beads. However,

Mayfield has not shown that these items present the distinct problems posed by

personal possession of runestones.

As to the second element of Turner’s rationality analysis, undisputed

portions of the summary judgment record show that Mayfield has sufficient

alternative means of worship available. See Scott, 961 F.2d at 81 (asking

whether the regulation “entirely stifles” the inmate’s religious exercise). Any

disputed issues of fact regarding Mayfield’s access to alternative means of

worship do not rise to the level of materiality, as they do not provide a trier of

fact with a basis for finding that the TDCJ’s stance on possession of runestones

is not rationally related to the TDCJ’s legitimate penological interest in

maintaining security. See Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th

Cir. 2002) (noting that an issue of fact is material only “if its resolution could

affect the outcome of the action”).

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No. 06-50490

Considering prongs three and four of Turner’s standard, we recognize that

accommodating Mayfield’s request for runestones would impose a burden on the

TDCJ’s security personnel. Based on the security problems identified by the

TDCJ, the Hughes Unit’s security personnel would face new risks from potential

gambling and gang-related dangers. Also, allowing the Odinists to possess items

similar to those disallowed to other inmates “could have a negative effect on

prison morale and discipline.” Adkins, 393 F.3d at 565. Again, there is no

evidence of ready alternatives that would fully accommodate Mayfield’s request

at a de minimis cost to the TDCJ’s interest in preserving security. Based on the

foregoing analysis, we agree with the district court’s conclusion that the TDCJ

is entitled to summary judgment on Mayfield’s § 1983 claim concerning personal

possession of runestones.

The district court, treating all of Mayfield’s claims together under the

First Amendment, stated that “the summary judgment evidence clearly shows

that the restrictions experienced by Plaintiff are based upon staffing, as well as

safety, security, and operational concerns, all of which are valid penological

interests.” However, none of the penological interests provided by the TDCJ

necessarily support limiting access to rune literature in the prison library. The

TDCJ’s summary judgment evidence focuses on the dangers associated with

allowing inmates to possess runestones. Specifically, TDCJ relies on the dangers

created by the stones’ small size, ancient script, and similarity to gambling

paraphernalia. These dangers associated with possession of runestones are not

necessarily present when an inmate simply seeks to study books on runes in the

prison library. As noted above, the record does not clearly present what Odinist

literature is available in the prison library, or whether literature on runes is

available at all. In his affidavit, Klaus Adams testified that Odinist literature

is available and that he removes books from the library which he deems to be

“inappropriate,” including “pornography and material which defames other

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No. 06-50490

faiths.” Mayfield averred that rune literature is banned and submitted evidence

showing a number of rune-related books denied by the library. Based on the

summary judgment record, we cannot determine the extent to which the TDCJ

allows or disallows the Odinists to access rune-related literature. Moreover,

the record does not include reference to a penological interest that would justify

limiting access to rune literature in the prison library. The district court’s

general First Amendment conclusion does not address this lack of evidence. See

Turner, 482 U.S. at 89 (stating that defendants must “put forward” a legitimate

penological interest). Because the record does not provide the necessary support

for the district court’s conclusion as to rune literature, which it reached as a

matter of law, the district court improperly resolved this issue on summary

judgment. On remand, the district court should examine the extent to which any

actual limitation on rune literature constitutes a violation Mayfield’s free-

exercise rights.

D

Mayfield relies on the same factual predicate underlying his § 1983 claims

to bring RLUIPA claims. RLUIPA imposes a higher burden than does the First

Amendment in that the statute requires prison regulators to put forth a stronger

justification for regulations that impinge on the religious practices of prison

inmates. Under RLUIPA:

No government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution . . . even

if the burden results from a rule of general applicability, unless the

government demonstrates that imposition of the burden on that

person))

(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(a). Under RLUIPA we first ask whether the challenged

government action “substantially burdens” the plaintiff’s “religious exercise.”

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No. 06-50490

This normally requires two separate assessments, first whether the burdened

activity is “religious exercise,” and second whether that burden is “substantial.”

See Adkins, 393 F.3d at 567. The defendants have not raised any challenge as

to whether the actions Mayfield claims are burdened qualify as “religious

exercise” under RLUIPA. Therefore, we begin our analysis with the substantial

burden question. The prisoner bears the burden to establish the existence of a

substantial burden. 42 U.S.C. § 2000cc-2(b). RLUIPA does not define what

constitutes a “substantial burden.” In Adkins, we defined the term as follows:

[A] government action or regulation creates a “substantial burden”

on a religious exercise if it truly pressures the adherent to

significantly modify his religious behavior and significantly violate

his religious beliefs . . . . [T]he effect of a government action or

regulation is significant when it either (1) influences the adherent

to act in a way that violates his religious beliefs, or (2) forces the

adherent to choose between, on the one hand, enjoying some

generally available, non-trivial benefit, and, on the other hand,

following his religious beliefs.

Adkins, 393 F.3d at 570. We noted that the definition, “requires a case-by-case,

fact-specific inquiry to determine whether the government action or regulation

in question imposes a substantial burden.” Id. at 571. If the prisoner presents

prima facie evidence of a substantial burden, the government is required to

demonstrate that its action was supported by a compelling interest and that the

regulation is the least restrictive means of carrying out that interest. See 42

U.S.C. § 2000cc-2(b). Again, we consider both (1) the prison’s limitation on

Odinist group assembly and (2) the prison’s limitation on Mayfield’s possession

of runestones and access to rune literature.

1

As to Mayfield’s claim concerning TDCJ’s outside volunteer requirement,

the district court concluded that Mayfield failed to show a substantial burden

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No. 06-50490

upon the exercise of his faith and therefore failed to state a claim under

RLUIPA. The district court also found the prison’s application of its policy based

upon a compelling governmental interest in maintaining a safe, secure, and

efficient prison.

The district court relied heavily on our Adkins decision to dismiss

Mayfield’s claim under RLUIPA. Adkins dealt with members of the Yahweh

Evangelical Assembly (“YEA”) who brought claims under RLUIPA based on their

inability to congregate on regular Sabbath and YEA holy days. Adkins, 393 F.3d

at 571. Adkins complained of the same policy at issue here, the TDCJ’s policy

requiring an outside volunteer’s presence for group religious meetings. Id. In

Adkins, an outside volunteer was able to come to the prison once a month to

conduct services. Id. at 562. Aside from group meetings, Adkins had access to

religious materials, such as books, as well as video and audiotapes related to

YEA religious practices. In ruling on Adkins’ RLUIPA claim, we noted that the

TDCJ’s policy requiring an outside volunteer’s presence “is a uniform

requirement for all religious assemblies at Coffield [i.e., Adkins’ prison],” and

that the defendants could not be blamed for the “dearth of qualified outside

volunteers available to go to Coffield.” Id. at 571. We concluded that summary

judgment was proper as to Adkins’ RLUIPA claim because he had not

established that the volunteer policy imposed a substantial burden on his

exercise of religion.10

Because Adkins counsels a fact-specific, case-by-case review, we do not

believe that Adkins laid down a per se rule that the TDCJ’s volunteer

requirement could never impose a substantial burden on a prisoner’s exercise of

religion. Looking to the summary judgment record in this case, we conclude that

10

A panel of this court recently reached a similar holding in Baranowski, 486 F.3d at 125

(holding that the TDCJ’s volunteer requirement did not impose a substantial burden on Jewish inmates

who wanted to meet on more Sabbath and Jewish holy days than their volunteer could attend).

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No. 06-50490

material issues of fact remain. Thus, the district court erred in concluding that,

as a matter of law, the Hughes Unit’s implementation of the policy did not result

in a substantial burden on Mayfield’s religious exercise.

The summary judgment record reflects a number of disputed facts

pertinent to a substantial burden inquiry. First, the record is unclear as to how

often the Odinists’ outside volunteer could come to the prison. Mayfield and

other Odinist prisoners averred that she came, at most, twice a year, but had

only come twice in the last three years. Klaus Adams, the Hughes Unit

Chaplain, averred that the volunteer came once every three or four months. The

district court adopted Adams’ contention of every three or four months, but

provided no justification for its adoption of the TDCJ’s evidence over Mayfield’s.

This fact is central to an analysis of the burden placed on Mayfield and the other

Odinists who seek to gather for group worship. In Adkins, the volunteer was

available for monthly meetings with anticipation that new volunteers would

soon make more frequent meetings possible. See id. at 571 (noting that the

court’s concerns were alleviated by the likely presence of new volunteers). At

the summary judgment stage we must resolve disputed facts in favor of

Mayfield. Resolving the factual dispute in Mayfield’s favor, the volunteer is

available once every 18 months. Unlike the situation in Adkins, there is no

evidence in this case that new volunteers will likely soon be available to reduce

the burden on Mayfield’s ability to worship in a group.

Secondly, as noted above with regard to Mayfield’s § 1983 claim, a factual

dispute exists as to the circumstances under which the Hughes Unit and the

TDCJ allow prisoners to conduct religious services without an outside volunteer.

In Adkins, we noted the uniformity of the policy’s implementation at Coffield as

one reason why the policy did not impose a substantial burden. See id. Because

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

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No. 06-50490

of qualified volunteers. Id. While we recognize that Mayfield’s ability to gather

for group worship appears to suffer from a similar lack of volunteers, Mayfield

has presented evidence which calls into question the uniformity of the policy’s

application at the Hughes Unit, suggesting that the burden is at least partially

imposed by the TDCJ’s disparate application.

Finally, we note again the disputed evidence concerning the alternatives

available to the Odinists to practice their faith. In Adkins, we recognized that

the YEA had access to religious literature, as well as video and audio tapes

related to YEA religious practices. Id. at 564. Affidavits from Mayfield and

other Odinist prisoners suggest that the Hughes Unit’s Odinists do not have

similar access to alternative means of worship. An inability to exercise other

means of Odinist worship increases the relative burden imposed by the TDCJ’s

policy preventing group meetings in the absence of an outside volunteer.

We hold that these factual disputes, when resolved in Mayfield’s favor,

provide a reasonable basis for a finder of fact to conclude that the application of

TDCJ’s volunteer policy imposes a substantial burden on Mayfield’s right to

exercise his religion. Even assuming the district court correctly concluded that

the TDCJ’s policy is supported by a compelling interest in prison security and

space considerations, the district court’s grant of summary judgment cannot

stand. The district court reached no conclusion as to RLUIPA’s necessary third

step: whether the TDCJ has shown the application of its policy to be narrowly

tailored as a matter of law.11 The unresolved factual issues regarding the

11

In Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam), we affirmed a district court’s

dismissal of a prisoner’s claim under RLUIPA despite the fact that the district court did not reach a

conclusion as to whether the prison’s regulation was narrowly tailored to achieve a compelling

governmental interest. However, in Longoria we recognized that the TDCJ’s religious grooming policy

had already been evaluated under RLUIPA’s predecessor statute, the Religious Freedom Restoration

Act (“RFRA”). Id. at 901 (citing Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997)). In Diaz, we held that the

grooming policy was supported by a compelling interest and that it was narrowly tailored to achieve

that interest. Diaz, 114 F.3d at 72-73. Because RLUIPA and RFRA both contain the same test

requiring narrow tailoring and a compelling interest, we concluded in Longoria that the district court

was not required to reexamine the TDCJ’s religious grooming policy to reach a conclusion that Longoria

23

No. 06-50490

TDCJ’s neutral application of the policy call into question whether the TDCJ’s

application of its policy to the Odinists is narrowly tailored to the TDCJ’s

asserted interests. Accordingly, the district court improperly granted summary

judgment as to Mayfield’s RLUIPA claim concerning limitations on the Odinists’

ability to congregate for religious meetings.

2

Mayfield also contends that the TDCJ violated RLUIPA through its policy

concerning runestones))specifically by preventing personal possession of

runestones and banning rune-related literature from the prison library. The

district court concluded that Mayfield failed to show a substantial burden on his

religious exercise, and also found the TDCJ’s runestone policy supported by a

compelling governmental interest in maintaining a safe, secure, and efficient

prison. Again, the district court reached no conclusion as to whether the

runestone policy is the least restrictive means of achieving the TDCJ’s asserted

interest.

Taking the facts in the light most favorable to Mayfield, we find that the

summary judgment record could support a finding that his religious exercise is

substantially burdened by the TDCJ’s policy preventing possession of

runestones. Undisputed evidence shows that TDCJ only allows Mayfield access

to runestones when the outside volunteer comes to the prison. Mayfield has

submitted evidence that runestones are part of Odinist religious practice, and

no questions have been raised as to the “honesty and accuracy of his contention

that the religious practice at issue is important to the free exercise of his

religion.” Adkins, 393 F.3d at 570. Because Mayfield’s religion advocates

regular, personal study of the runestones in addition to their being used in group

failed to state a claim. Longoria, 507 F.3d at 904. We are not presented with the same situation in this

case))no prior opinion of this court has fully evaluated the TDCJ’s volunteer requirement to reach a

holding that the policy is both supported by a compelling interest and is narrowly tailored.

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No. 06-50490

ceremonies, the TDCJ’s policy could be seen as substantially burdening

Mayfield’s exercise of religion because the policy “influences [Mayfield] to act in

a way that violates his religious beliefs.” Id.

The TDCJ argues that Mayfield simply seeks to act in a way that is not

otherwise generally allowed in the prison, and therefore, the policy denying

access to runestones cannot be said to cause a substantial burden. See id.

(stating that “a government action or regulation does not rise to the level of a

substantial burden on religious exercise if it merely prevents the adherent from

either enjoying some benefit that is not otherwise generally available or acting

in a way that is not otherwise generally allowed.”). According to the TDCJ no

inmates are allowed to personally possess items posing security risks equal to

those posed by runestones. Because he seeks access to items that could be used

to gamble, pass secret messages, and identify gang members, the TDCJ argues

that Mayfield seeks to act in a way not otherwise generally allowed.12 However,

the TDCJ’s argument compresses the steps to our RLUIPA analysis. One can

only accept the TDCJ’s argument if one first accepts the TDCJ’s argument that

runestones are in fact like dice, tarot cards, etc. The TDCJ cannot use what is

effectively a compelling interest argument to answer the preceding question of

whether Mayfield’s religious exercise is substantially burdened. Adkins

recognizes that an inmate cannot meet RLUIPA’s substantial burden

requirement by requesting treatment “not otherwise generally allowed.” But

runestones were not generally disallowed prior to Mayfield’s request. Adkins

does not allow prison regulators to undermine a policy’s substantial burden by

comparing a “religious exercise,” not previously disallowed, to another

disallowed behavior. RLUIPA’s standard provides space for these arguments by

12

We note again, as with the § 1983 claim, that these arguments do not address Mayfield’s

evidence of the TDCJ’s limiting access to rune-related literature, as distinct from actual possession of

runestones.

25

No. 06-50490

allowing the government to show that its policy is narrowly tailored to serve a

compelling governmental interest.

For the foregoing reasons, the district court erred in concluding that

Mayfield failed, as a matter of law, to establish that the TDCJ’s runestones

policy imposed a substantial burden on his religious exercise. We find that

Mayfield has submitted evidence that could allow a reasonable trier of fact to

conclude that the TDCJ’s runestones policy substantially burdens his religious

exercise. And while the district court found the runestones policy supported by

a compelling interest, it did not determine whether the policy was narrowly

tailored to serve that interest. Even if we agreed with the district court’s

compelling interest finding, we could not affirm the district court’s grant of

summary judgment, as questions remain regarding whether the policy is

narrowly tailored.

Since the district court’s decision in this case, the TDCJ submitted

evidence which expresses its intent to begin a pilot program allowing limited

access to runestones. According to TDCJ, the pilot program would allow

prisoners to purchase their own set of approved runestones. Under the pilot

program the runestones are to be kept in the custody of the unit chaplain and

checked out to inmates for use during approved time slots. But according to the

evidence submitted, the pilot program has not yet been implemented. Upon

remand, the district court should request new evidence concerning the pilot

program. The pilot program, if implemented, would alter the TDCJ’s runestones

policy such that it imposes a lessened burden on Mayfield’s religious exercise.

Further, the pilot program, as described, would seemingly represent a less

restrictive means for carrying out the TDCJ’s penological interests in limiting

access to runestones. However, according to the evidence before us, the

program has not yet been implemented and therefore does not impact our

analysis of whether issues of fact currently exist as to Mayfield’s RLUIPA claim.

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No. 06-50490

III

We AFFIRM the district court’s summary judgment dismissal to the extent

that Mayfield seeks compensatory damages, as those claims are barred by 42

U.S.C. § 1997e(e).

We AFFIRM the district court’s dismissal of non-damage claims against

the TDCJ.

Because no material issues of fact remain, we AFFIRM the district court’s

grant of summary judgment as to Mayfield’s § 1983 claims against Johnson and

Pierce concerning the possession of runestones.

We VACATE the district court’s grant of summary judgment as to the

following claims: Mayfield’s § 1983 claims for declaratory and injunctive relief

against Johnson and Pierce, in their official capacities, based on TDCJ’s

application of the outside-volunteer requirement for religious group meetings

and based on the TDCJ’s denial of rune-related literature; Mayfield’s RLUIPA

claims concerning the volunteer policy and the overall runestones policy to the

extent they seek declaratory and injunctive relief against Johnson and Pierce,

in their official capacities.

Finally, when we reverse a district court’s decision to dismiss under the

PLRA for failure to state a claim, it nullifies the strike imposed against a

prisoner under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387 (5th Cir. 1996). Because summary judgment was inappropriate as to some

of Mayfield’s claims, the district court erred in concluding that Mayfield failed

to state a claim under 28 U.S.C. § 1915(e). See Praylor v. Tex. Dep’t of Criminal

Justice, 430 F.3d 1208, 1209 (5th Cir. 2005) (stating that we review dismissals

for failure to state a claim under the PLRA under the same standard as

dismissals under FED. R. CIV. P. 12(b)(6)). Therefore, we also REVERSE the

district court’s decision to impose a strike against Mayfield for failure to state

a claim upon which relief could be granted.

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No. 06-50490

We REMAND for further proceedings consistent with this opinion.

28