Petition for Writ of Certiorari — Hjalmar Rodriguez, Jr., Petitioner v. Edward H. Burnside, et al.

Supreme Court briefDec 22, 2022

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No.

In the Supreme Court of the United States

HJALMAR RODRIGUEZ, JR., PETITIONER,

EDWARD H. BURNSIDE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ATTEEYAH HOLLIE

GERRY WEBER

ALISON GANEM

SOUTHERN CENTER

FOR HUMAN RIGHTS

60 Walton St. N.W.

Atlanta, GA 30303

DANIEL R. ORTIZ

UNIVERSITY OF

VIRGINIA SCHOOL OF

LAW SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

JEREMY C. MARWELL

Counsel of Record

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

QUESTION PRESENTED

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

Court held that “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological

interests.” Under Turner, “the existence of obvious,

easy alternatives” to a challenged prison policy “may

be evidence that the regulation is not reasonable.” Id.

at 90. In particular, if a plaintiff “can point to an

alternative that fully accommodates the prisoner’s

rights at de minimis cost to valid penological

interest[s],” the challenged regulation may fail to

satisfy the reasonable relationship standard. Id. at 91.

The question presented is:

Whether, under Turner, a court may only consider

proposed alternatives to a challenged policy that

would apply on a prison-wide scale, or whether a court

may also consider a more narrow alternative that

would need only apply to the individual plaintiff.

(I)

PARTIES TO THE PROCEEDING

Petitioner, plaintiff in the district court, is Hjalmar

Rodriguez, Jr.

Respondents, defendants in the district court, are

Edward H. Burnside; Homer Bryson; Bruce Chapman;

Eric Sellers; Rodney McCloud; June Bishop; William

Powell; Gary Caldwell; Rufus Logan; Frederick

Sutton; Pauline Martin; Sharon Lewis; Mary Gore;

Lynda Adair; David Butts; Duane Williams; Karen

Forts; Darrel Reid; Gregory C. Dozier; Michael

Cannon; and Theresa Thornton.

RELATED PROCEEDINGS

United States Court of Appeals for the Eleventh

Circuit:

Rodriguez v. Burnside, No. 20-11218, 38 F.4th 1324

(11th Cir. June 30, 2022).

United States District Court for the Middle District of

Georgia:

Rodriguez v. Bryson, No. 5:17-cv-00010 (M.D. Ga.

Feb. 25, 2020).

III

TABLE OF CONTENTS

Page

Question Presented...................................................... I

Parties to the Proceeding ...........................................II

Related Proceedings ...................................................II

Appendix Contents ................................................... IV

Table of Authorities .................................................... V

Opinion Below ............................................................. 1

Jurisdiction ................................................................. 1

Statutory and Constitutional

Provisions Involved ............................................... 1

Introduction ................................................................ 2

Statement .................................................................... 4

Reasons for Granting the Petition ........................... 13

I. The Eleventh Circuit’s Decision Is Contrary to

Turner and Its Progeny ..................................... 13

II. Every Other Circuit to Consider the Question

Correctly Applies Turner and Considers

Individualized Alternatives to Challenged

Prison Policies. .................................................. 20

III. The Panel’s Qualified Immunity Analysis

Rests on the Same Misreading of Turner. ........ 25

IV. The Question Presented Is Important and

Recurring. .......................................................... 29

Conclusion ................................................................. 32

APPENDIX CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Eleventh Circuit,

Hjalmar Rodriguez, Jr. v. Edward H.

Burnside, No. 20-11218 (June 30, 2022) .................. 1a

APPENDIX B: Order Denying Rehearing,

Hjalmar Rodriguez v. Burnside, No. 2011218 (11th Cir. Aug. 24, 2022) ............................ 20a

APPENDIX C: Order Adopting Report &

Recommendation As Modified, Rodriguez v.

Bryson, 5:17-cv-10 (Sept. 6, 2019) .......................... 23a

APPENDIX D: Report and

Recommendation, Rodriguez v. Bryson, 5:17cv-10 (July 10, 2019) ............................................... 27a

APPENDIX E: Statutory provisions ................... 103a

TABLE OF AUTHORITIES

Cases:

Page(s)

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................ 26, 28

Ayotte v. Planned Parenthood of N. New

Eng., 546 U.S. 320 (2006)..................................... 19

Beard v. Banks,

548 U.S. 521 (2006) ...................................... 5, 6, 18

Bell v. Wolfish,

441 U.S. 520 (1979) ................................................ 5

Camreta v. Greene

563 U.S. 692 (2011) .............................................. 26

Cruz v. Beto,

405 U.S. 319 (1972) ................................................ 5

Dehart v. Horn,

227 F.3d 47 (3d Cir. 2000) .................................... 24

Dehart v. Horn,

390 F.3d 262 (3d Cir. 2004) ............................ 23, 24

Delaware v. Van Arsdall,

475 U.S. 673 (1986) .............................................. 28

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ............................................ 26

Flagner v. Wilkinson,

241 F.3d 475 (6th Cir. 2001) .......................... 22, 23

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) ............................................ 6

Gonzales v. Carhart,

550 U.S. 124 (2007) .............................................. 19

Cases—Continued:

Page(s)

Heyer v. U.S. Bureau of Prisons,

849 F.3d 202 (4th Cir. 2017) .......................... 21, 22

Heyer v. U.S. Bureau of Prisons,

984 F.3d 347 (4th Cir. 2021) ................................ 22

Hudson v. Palmer,

468 U.S. 517 (1984) ................................................ 5

Jehovah v. Clarke,

798 F.3d 169 (4th Cir. 2015) ................................ 22

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) .......................................... 30

Lyons v. Xenia,

417 F.3d 565 (6th Cir. 2005) ................................ 27

Maryland v. Buie,

494 U.S. 325 (1990) .............................................. 28

Overton v. Bazzetta

539 U.S. 126 (2003) .............................................. 18

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 27

Pollack v. Marshall,

845 F.2d 656 (6th Cir. 1988) ................................ 23

Shaw v. Murphy,

532 U.S. 223 (2001) ................................................ 6

Sossamon v. Texas,

563 U.S. 277 (2011) ................................................ 6

Thornburgh v. Abbott,

490 U.S. 401 (1989) ...................................... passim

Turner v. Safley,

482 U.S. 78 (1987) ........................................ passim

VII

Cases—Continued:

Page(s)

Ward v. Hatcher,

172 F.3d 61 (9th Cir. 1999) ............................ 21, 24

Ward v. Walsh,

1 F.3d 873 (9th Cir. 1993) .............................. 20, 21

Washington v. Harper,

494 U.S. 210 (1990) .............................................. 29

Statutes and Constitutional Provisions:

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983....................................................... 2, 9

Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), Pub. L. No. 106274, 114 Stat. 803 (2000) ....................................... 6

U.S. Const. amend. I .................................................... 1

Other Authorities:

E. Ann Carson, Bureau of Just. Stats.,

Prisoners in 2020—Statistical Tables

(2021) .................................................................... 29

Justin Driver & Emma Kaufman, The

Incoherence of Prison Law, 135 Harv. L.

Rev. 515 (2021) ..................................................... 29

Off. of the Inspector Gen., Audit of the

Federal Bureau of Prisons’ Management

and Oversight of Its Chaplaincy Services

Program (2021) ..................................................... 30

VIII

Other Authorities—Continued:

Page(s)

Stephanie H. Barclay & Mark L. Rienzi,

Constitutional Anomalies or As-Applied

Challenges? A Defense of Religious

Exemptions, 59 B.C. L. Rev. 1595 (2018)............. 19

Steven B. Dow, Navigating Through the

Problem of Mootness in Corrections

Litigation, 43 Cap. U. L. Rev. 651 (2015) ............ 30

U.S. Comm’n on Civil Rights, Enforcing

Religious Freedom in Prison (2008) ............... 16, 30

PETITION FOR A WRIT OF CERTIORARI

Hjalmar Rodriguez, Jr. respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit (App., infra, 1a-19a) is

reported at 38 F.4th 1324. The opinion of the United

States District Court for the Middle District of Georgia

(App., infra, 23a-26a) is unreported, but available at

2019 WL 13193451. The magistrate judge’s report and

recommendation (App., infra, 27a-102a) is unreported,

but available at 2019 WL 13193452.

JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit issued its opinion on June 30, 2022. On August

24, 2022, that court denied a timely petition for panel

rehearing or rehearing en banc. App., infra, 20a-22a.

On November 2, 2022, Justice Thomas extended the

deadline for filing a certiorari petition to and including

December 22, 2022. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution

provides: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.” U.S. Const. amend. I.

(1)

42 U.S.C. § 1983 is set out in the appendix to the

petition. App., infra, 103a.

INTRODUCTION

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

Court established a framework for considering claims

that a prison policy or regulation infringes the constitutional rights of incarcerated persons. In balancing

the need to protect fundamental constitutional rights

with respect for legitimate concerns of prison administration, this Court recognized that “the existence of

obvious, easy alternatives” to a challenged policy “may

be evidence that the regulation is not reasonable, but

is an exaggerated response to prison concerns.” Id. at

90. Even where prison officials can articulate a “valid,

rational connection” between a challenged regulation

and their asserted interests, the regulation may be invalid where an individual “can point to an alternative

that fully accommodates the prisoner’s rights at de

minimis cost to valid penological interest[s].” Id. at 89,

91. For over 30 years, this framework has provided

the functional, organizing principle for litigation in the

lower courts involving incarcerated persons’ constitutional rights.

This case presents critical questions about the

proper interpretation of Turner, and in particular

Turner’s continued vitality in setting a constitutional

floor against prison policies that constrain the free exercise of religion and other constitutional rights.

Petitioner is a devout Muslim man in the custody of

the Georgia state prison system. His lawsuit challenges a Georgia prison policy that substantially

burdens the exercise of his religious faith by restricting his ability to observe modesty obligations and

certain cleansing rituals that are a prerequisite to offering valid daily prayers. In particular, Georgia has

effectively prohibited Petitioner from undertaking the

daily ghusl cleansing ritual by choosing to house him

in a cell without a shower, and then refusing to

transport him to shower facilities more than three

times per week. Georgia has also required Petitioner

to be naked from the waist up when walking to the

shower, which violated Petitioner’s religious obligation

to guard his modesty. In a grievance and subsequent

litigation, Petitioner proposed that prison officials

house him in one of the available shower-equipped

cells—which would have allowed him to undertake his

daily religious cleansing ritual, and to avoid modesty

concerns associated with shower transport, without interfering with overall prison policies.

Respondents rejected Petitioner’s narrow proposed

accommodation, and the Eleventh Circuit upheld that

approach. To do so, the Eleventh Circuit adopted a

novel re-imagination of Turner that risks rendering it

a dead letter in challenges to prison polices. In particular, the Eleventh Circuit held that Turner does not

require a prison or court to even consider a plaintiff’s

proposed accommodation, if it would apply only to the

individual in question. Rather, in the Eleventh Circuit’s outlier view, a Turner plaintiff must propose an

alternative policy that would apply prison-wide—

while also somehow attempting to show that the

changed policy would have only de minimis effects on

prison administration. Remarkably, the Eleventh Circuit excused Respondents from articulating any

reason for rejecting the Petitioner’s proposed accommodation. And the panel concluded that Respondents

were entitled to qualified immunity, based largely on

its flawed reading of Turner.

The decision below gets an extraordinarily important question squarely wrong. The Eleventh

Circuit has misread this Court’s cases and departed

from how other circuits have consistently interpreted

Turner. By excluding individualized accommodations

from the Turner inquiry altogether, the Eleventh Circuit has stacked the deck against successful Turner

claims. The decision forces plaintiffs to focus on the

very kinds of accommodations (prison-wide changes to

policy) that are more likely to burden prison administration and therefore more likely to fail the Turner

test.

If accepted nationwide, the Eleventh Circuit’s ruling would jeopardize the constitutional rights of more

than a million imprisoned people. Although Congress

enacted statutory protections for religious freedoms in

the Religious Land Use and Institutionalized Persons

Act, the limitations of that statutory remedy, and the

facts of this case, underscore that Turner remains a

critical bulwark for constitutional rights in the prison

context. This Court should grant certiorari and confirm what to date has been a uniform and consistent

understanding: that Turner allows consideration of individualized, as-applied accommodations no less than

prison-wide policy changes. Plenary review is urgently warranted.

STATEMENT

1. Legal Background

“[R]easonable opportunities must be afforded to all

prisoners to exercise the religious freedom guaranteed

by the First and Fourteenth Amendment without fear

of penalty.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972)

(per curiam). That rule follows from the bedrock principle that an individual does not forfeit First

Amendment protection upon criminal conviction or incarceration. See, e.g., Bell v. Wolfish, 441 U.S. 520,

545 (1979); Thornburgh v. Abbott, 490 U.S. 401, 407

(1989). “The continuing guarantee of these substantial rights to prison[ers] is testimony to a belief that

the way a society treats those who have transgressed

against it is evidence of the essential character of that

society.” Hudson v. Palmer, 468 U.S. 517, 523-524

(1984). However, “the Constitution sometimes permits greater restriction of such rights in a prison than

it would allow elsewhere,” in light of the legitimate penological interests that may be present. Beard v.

Banks, 548 U.S. 521, 528 (2006).

In Turner v. Safley, this Court established the governing framework for balancing the competing

concerns implicated by constitutional challenges to

prison policies. A prison policy or practice that restricts constitutional rights must be “reasonably

related to legitimate penological interests” and not an

“exaggerated response” to those interests. 482 U.S. 78,

87, 89 (1987). Four factors guide the Turner inquiry:

(1) whether there is a “valid, rational connection between the prison regulation and the legitimate

governmental interest put forward to justify it”; (2)

whether “alternative means” of exercising the right

“remain open” to people in prison; (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 are any “obvious, easy alternatives” to the challenged policy, which would suggest that the policy is

an “exaggerated response to prison concerns.” Id. at

89-91. Together, these factors provide a standard of

review that is appropriately deferential to the interests of prison administrators, but “not toothless.”

Thornburgh, 490 U.S. at 414 (internal citation omitted). A challenged policy may “fail[]” under the first

factor if the “connection between the regulation and

the asserted goal is ‘arbitrary or irrational.’ ” Shaw v.

Murphy, 532 U.S. 223, 229-230 (2001) (quoting

Turner, 482 U.S. at 89-90). And the second, third, and

fourth factors underscore that an incarcerated person

retains the ability to cast doubt on the interests asserted even where prison officials can articulate a nonarbitrary justification. See Shaw, 532 U.S. at 229-230.

Congress has supplemented Turner’s constitutional

protections in certain areas by directing courts to apply a heightened level of scrutiny to prison policies

that burden the religious exercise of institutionalized

persons. See Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), Pub. L. No. 106-274, 114

Stat. 803 (2000), codified at 42 U.S.C. §§ 2000cc et seq.

This statutory protection provides for certain remedies, including injunctive relief. See Sossamon v.

Texas, 563 U.S. 277, 280 (2011) (holding that sovereign

immunity bars claims for damages under RLUIPA).

But the existence of this statutory remedy does not undermine Turner’s continued importance as a

constitutional floor for prison policies and practices

that burden free exercise rights in prison. See Beard,

548 U.S. at 528 (applying Turner); Fulton v. City of

Philadelphia, 141 S. Ct. 1868, 1894 (2021) (Alito, J.,

concurring in judgment) (noting that RLUIPA is “limited in scope” and “no substitute for a proper

interpretation of the Free Exercise Clause”).

Courts applying Turner follow this Court’s direction

to “take cognizance of the valid constitutional claims

of prison inmates” while also affording deference, in

appropriate circumstances, to the experience of prison

officials. Turner, 482 U.S. at 84-85. This ensures that

“[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution.”

Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S.

at 84).

2. Factual Background

Petitioner Hjalmar Rodriguez is a devout Sunni

Muslim who has identified as such for decades. See

App., infra, 30a; D. Ct. Doc. 175-3 at 7, 22-24. As required by his faith, Petitioner prays five times per day.

App., infra, 37a. His faith teaches that whether his

prayers are accepted turns on whether he satisfies

other requirements; in particular, his prayers are

“void” if he fails to perform a cleansing ritual, ghusl,

daily. Id. at 36a-38a. One performs ghusl by first completing a shorter cleaning ritual, wudu, and then

washing each side of the body three times from “head

to toe.” Id. at 37a. The ghusl washing requires a “large

amount of water” and is therefore typically performed

in a shower or bathtub. Ibid.

For nearly as long as he has been a practicing Muslim—practically his entire adult life—Petitioner has

been held in the custody of the Georgia state prison

system. See D. Ct. Doc. 175-3 at 7, 22-24. Petitioner

brought this suit to challenge certain policies and

practices used in the Special Management Unit

(“SMU”) at the Georgia Diagnostic and Classification

Prison that prevented him from satisfying his religious

obligations. See App., infra, 3a-4a.1

While other cells in the SMU had in-unit showers,

Petitioner was assigned to a cell equipped with a small

sink but no shower. App., infra, 3a-4a. The sink could

not accommodate the amount of water necessary to

perform the mandatory ghusl ritual; Petitioner could

only use the sink to complete the shorter wudu washing ritual. Id. at 71a. However, “[t]he wudu ritual

may not be substituted for the ghusl ritual,” and Petitioner was only able to perform ghusl when

transported to shower facilities by prison officials.

Ibid. Under the SMU’s policies, shower transport was

limited to three days per week. Id. at 2a-3a. Without

daily access to a shower—or other suitable washing facility—Petitioner was unable to perform ghusl,

rendering his prayers “void.” Id. at 36a-38a, 71a.

On days when Petitioner was transported to the

shower facility, he encountered another burden on his

religious obligations.

During shower transports,

prison officials required incarcerated persons to be naked from the waist up, wearing only shower shoes and

underwear. App., infra, 3a. Each time Petitioner was

made to walk to the shower with his upper body exposed, he was unable to abide by his religious duty to

“guard his modesty.” Id. at 4a, 34a, 68a-69a.

1 During the pendency of this litigation, Petitioner was trans-

ferred to another facility. App., infra, 30a. He remains in the

custody of the Georgia state prison system.

3. Procedural Background

In 2016, Petitioner filed a grievance with the prison,

raising his concerns about the shower frequency and

transport policies. See D. Ct. Doc. 181-18 at 2-3. As

an alternative to the restrictive shower policy, he requested that prison officials move him to one of the

SMU’s available shower-equipped cells. This alternative approach would have avoided both the frequency

and modesty concerns associated with the prison’s

shower transport policy. Petitioner’s request was denied without explanation. Ibid. He then filed a pro se

complaint against prison officials, alleging multiple

claims under 42 U.S.C. § 1983 and seeking declaratory, injunctive, and monetary relief. App., infra, 4a.

As relevant here, Petitioner alleged that Respondents

infringed his First and Fourteenth Amendment rights

by limiting his shower access and forcing him to violate

his religious modesty obligations during the shower

transport process. See id. at 3a-4a.2

In seeking summary judgment, Respondents asserted that the three-showers-per-week policy was in

place because ensuring safety and security during

transports was “time- and labor-intensive” for corrections officials. See App., infra, 8a. They conceded that

people assigned to other wings within the SMU “had

showers in their cells,” and they did not dispute that

Petitioner also initially alleged violations of RLUIPA. See

App., infra, 4a. The district court held that these claims were

mooted when Petitioner was transferred from the SMU to another facility in 2018. Id. at 5a. The transfer did not, however,

affect the justiciability of Petitioner’s claims for damages under

§ 1983 based upon the alleged violations of his First Amendment

rights. Id. at 46a.

housing Petitioner in such a cell would avoid the burdens on his religious exercise. D. Ct. Doc. 175-1 at 5.

Respondents did not, however, address Petitioner’s request for reassignment to one of those cells or offer any

explanation for why they would reject that accommodation. Ibid; see also App., infra, 11a & n.1, 12a.

A magistrate judge found that Respondents’ “refusal to allow [Petitioner] to shower daily substantially

burdened his religious exercise.” App., infra, 71a. The

magistrate judge further observed that Petitioner was

“religiously obligated to perform the five daily Islamic

prayers,” but those prayers would be “ ‘void’ unless he

has performed the ghusl ritual” daily. Ibid. “Without

daily access to facilities that would allow him to perform ghusl, [Petitioner]’s ability to perform his five

daily prayers in the manner mandated by his religion

was substantially burdened.” Id. at 72a.

The magistrate judge concluded, however, that the

shower restriction was reasonably related to legitimate security concerns under Turner. The magistrate

judge reasoned that one alternative approach—leaving Petitioner in his existing cell but transporting him

daily to the showers—would require a significant

“time and resource expenditure.” Id. at 72a-73a. Although the magistrate judge acknowledged that there

were shower-equipped cells at the SMU, id. at 72a

n.11, he did not address Petitioner’s argument that

moving him to one of those cells was a readily available

alternative to the prison’s shower-transport policy. Id.

at 72a-73a.

As to Petitioner’s modesty concerns, the magistrate

judge acknowledged the existence of an established

prison policy allowing incarcerated persons to wear a

t-shirt, boxers, and shoes during transport, and found

that the prison’s practice of departing from that policy

for shower transport “imposed a substantial burden on

[Petitioner]’s religious exercise.” App., infra, 35a, 68a69a. The magistrate judge ultimately upheld that

practice, however, under Turner.

The district court adopted the magistrate judge’s report and recommendation, in pertinent part, over

Petitioner’s timely objections. App., infra, 23a-26a.

After appointing counsel for the first time in this litigation, the Eleventh Circuit affirmed the district

court’s judgment. App., infra, 2a. Petitioner argued

that under Turner, prison officials had failed to

demonstrate that their restrictive shower-transport

policy and their practice of housing Petitioner in a

showerless cell served any legitimate penological purpose. Appellant’s C.A. Br. at 26, 32-33. The Eleventh

Circuit acknowledged that under Turner, the existence

of an “obvious, easy alternative[]” to a challenged

prison regulation may suggest that the existing policy

is an “exaggerated response” to the stated penological

interests. App., infra, 7a. The panel also noted Petitioner’s proposed alternative of “mov[ing] him to

another cell block where the cells contained personal

showers.”3 Id. at 11a. Although the panel conceded

that prison officials “could have” moved him, it rejected this alternative as a purportedly improper

3 The panel squarely rejected Respondents’ suggestion that Pe-

titioner had not preserved this proposed alternative. In the

panel’s view, Petitioner “sufficiently proposed the daily-shower

alternative below, so the officials should have addressed the merits of his argument.” App., infra, 11a & n.1.

request for “an individual exemption.” Id. at 11a. In

the panel’s view, Turner requires a plaintiff to identify

an alternative policy that “could replace the current

one on a prison-wide scale” and prohibits a court from

even considering an alternative approach that would

only apply on an individual basis. Id. at 11a-12a. Under this interpretation of Turner, the “fact that the

prison could have moved [Petitioner] to a cell where he

would not need shower transports,” alleviating multiple burdens on his religious exercise without imposing

additional obligations on prison resources, did not

“suggest that the shower policy itself was irrational”

under Turner. Id. at 11a-12a (citing Turner, 482 U.S.

at 93). Having decided that Petitioner’s individualized

alternative was ineligible for consideration under

Turner, the panel concluded that Respondents need

not even “explain their refusal” to move Petitioner to a

cell with a shower. Id. at 12a.

Relying on this interpretation of Turner, the panel

also rejected Petitioner’s challenge to the prison’s

transport policy, which burdened his religious modesty

obligation by forcing him to walk to the shower naked

from the waist up. App., infra, 13a-15a. Prison officials justified this policy on the ground that allowing

incarcerated persons to wear “full dress” to the showers would increase the risk of hidden contraband. Id.

at 13a. After reiterating its interpretation of Turner—

under which a “personal exemption rather than a policy change” could not call into doubt the

reasonableness of a prison policy—the panel acknowledged that prison officials could have followed an

existing prison policy that would allow Petitioner to

wear a t-shirt. Id. at 14a. But the panel ultimately

concluded, without further explanation, that it was not

“illogical or unreasonable” for prison officials to restrict clothing on the way to the shower, even if they

“offer[ed] inmates the comparative dignity and comfort

of wearing a shirt” during other activities. Ibid.

Finally, the Eleventh Circuit held that even if the

prison’s shower policies were unconstitutional, Respondents were entitled to qualified immunity. App.,

infra, 15a-16a. The panel rejected Petitioner’s argument that the violation was clearly established under

Turner, again relying on its view that Turner does not

require justifying or modifying prison policies that

burden constitutional rights “to accommodate a prisoner’s individual request.” Id. at 16a (citing Turner,

482 U.S. at 90-91).

Petitioner timely sought rehearing en banc, challenging the panel’s novel interpretation of Turner as

requiring a plaintiff to identify a “prison-wide” alternative policy. Petitioner argued that the panel’s

decision was inconsistent with Turner and cases from

this Court applying the Turner framework. Those decisions contemplate that a plaintiff can prevail on an

as-applied challenge under Turner that requests an individualized alternative or accommodation to the

challenged prison policy. C.A. Reh’g Pet. at 1. The

Eleventh Circuit denied rehearing. App., infra, 22a.

REASONS FOR GRANTING THE PETITION

I. The Eleventh Circuit’s Decision Is Contrary to Turner and Its Progeny

Under Turner’s four-part framework, a plaintiff

may attempt to rebut even a “valid, rational connection” between a challenged policy and a legitimate

penological interest, by pointing to “the existence of obvious, easy alternatives” that do not impinge

constitutional rights. 482 U.S. at 89-90. In fact,

Turner explicitly contemplates that individualized alternatives to challenged policies can properly be part

of the constitutional analysis. In particular, this

Court explained that “if an inmate claimant can point

to an alternative that fully accommodates the prisoner’s rights”—“prisoner” in the singular, and using

the definite article—“at de minimis cost to valid penological interest[s], then the regulation may be

unconstitutional.” Id. at 91.

That Turner not only contemplates but favors asapplied, individualized alternatives is apparent not

only from the text of this Court’s decision, but also

from the structure of the Turner balancing inquiry. In

particular, Turner directs courts to consider whether

“accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison

staff,” with the presence of significant spillover effects weighing

against

the

validity

the

accommodation. 482 U.S. at 90. Accommodating a

plaintiff’s constitutional rights by adopting an individualized alternative will generally have a less

significant effect on the rest of the prison population

and on prison staff, as compared to changing a policy

on a prison-wide basis. Put differently, Turner structurally favors individualized alternatives through its

stated emphasis on avoiding changes in policy that

have ripple effects on prison administration.

Similarly, Turner directs courts to consider

whether there is “an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid

penological interest[s],” and recognizes that the existence of such an alternative is “evidence that the

regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Id. at 90. This aspect of

Turner again structurally favors individualized alternatives, which will generally impose less cost on

administrators than prison-wide policy changes. The

Eleventh Circuit’s novel rule that only “prison-wide”

alternative policies can even be considered is contrary

to the text and structure of Turner itself. And the

Eleventh Circuit’s rule structurally disadvantages

plaintiffs seeking to vindicate their constitutional

rights because it forces them to propose large-scale

changes to the prison—precisely the sort of alternative

that Turner disfavors.

Even if Turner itself were not so abundantly clear

on this point, this Court’s subsequent cases confirm

that courts may appropriately consider individualized

alternatives to a challenged prison policy. In Thornburgh v. Abbott, 490 U.S. 401 (1989), this Court upheld

the facial validity of a federal regulation allowing incarcerated persons to receive external publications

through the mail without prior approval, but authorizing wardens to reject mailings that they “determined

detrimental to the security, good order, or discipline of

the institution.” Id. at 404. Even while upholding the

regulation against a facial challenge, this Court was

“comforted by the individualized nature of the determinations required by the regulation” and by the fact

that “the regulation[] expressly reject[s] certain

shortcuts that would lead to needless exclusions,” such

as establishing lists of prohibited publications. Id. at

416-417.

This Court then “remand[ed] for an

examination of the validity of the regulations as applied to” certain individual publications that prison

officials had rejected. Id. at 419 (emphasis added).

This Court has never limited plaintiffs to proposing

alternatives under Turner that would apply prisonwide. To the contrary, in addition to finding “comfort[]” in individualized treatment, this Court has

repeatedly emphasized the need to preserve flexibility

in prison regulatory schemes and allow for “innovative

solutions to the intractable problems of prison administration.” Turner, 482 U.S. at 84-85, 89; accord U.S.

Comm’n on Civil Rights, Enforcing Religious Freedom

in Prison 31 (2008) (testimony of prison official

“not[ing] the lack of any one-size-fits-all policy to inmates’ requests for religious accommodation. The

specific circumstances of an inmate’s religious request

will often determine a prison’s response.”). The Eleventh Circuit’s attempt to limit Turner to prison-wide

alternatives deprives plaintiffs of the opportunity to

propose tailored solutions that would minimize ripple

effects and costs to prison administration, and that

would accordingly have a reasonable chance of success

under Turner.4

4 The Eleventh Circuit cited page 93 of this Court’s Turner opin-

ion to justify excluding individualized alternatives from the

Turner analysis. App., infra, 12a. But neither that page of

Turner nor any other supports disqualifying individualized alternatives. Remanding the case, this Court made unmistakably

clear that it was the lower court’s responsibility to determine, under Turner, whether “the correspondence regulation had been

applied by prison officials in an arbitrary and capricious manner.” Turner, 482 U.S. at 100 (emphasis added).

Moreover, the Eleventh Circuit’s holding appears

to rest on the erroneous belief that Turner forbids asapplied challenges. Specifically, the panel contrasted

the First Amendment inquiry under Turner with the

statutory inquiry under RLUIPA, reasoning that only

the latter contemplates as-applied challenges. App.,

infra, 11a (“Under [RLUIPA’s] standard (which is

stricter on prisons than Turner), we assess whether a

prison policy as applied to an individual prisoner is the

‘least restrictive means’ of furthering a ‘compelling

governmental

interest.’ ”

(citations

omitted)).

“Turner,” the panel here asserted, “makes no comparable, individualized demand,” but “only requires

[that] a prison’s policy * * * be rationally related to a

legitimate government interest.” Id. at 12a. From

that mistaken premise, the Eleventh Circuit concluded that plaintiffs “must do more than propose a

personal accommodation”; instead, they “must present

an obvious alternative policy that could replace the

current one on a prison-wide scale.” Ibid.

The panel’s reasoning cannot be squared with this

Court’s decisions that either expressly contemplated

as-applied challenges under Turner or remanded with

instructions for the lower court to determine under

Turner whether the challenged policy was unconstitutional as applied to an individual plaintiff. In Turner

itself, this Court upheld the facial constitutionality of

a prison mail policy but remanded for consideration of

how the regulation in question “had been applied.” 482 U.S. at 100. And in Thornburgh, this

Court upheld the facial constitutionality of a challenged mail policy but remanded “for an examination

of the validity of the regulations as applied to” certain

specific publications. 490 U.S. at 419. Finally, in

Overton v. Bazzetta, this Court upheld under Turner

the facial validity of a prison’s policy restricting visitation rights to ten individuals. But this Court

acknowledged that if the policy “were applied in an arbitrary manner to a particular inmate, the case would

present different considerations.” 539 U.S. 126, 137

(2003); accord Beard v. Banks, 548 U.S. 521, 535

(2006) (“[A]s in Overton, we agree that ‘ * * * we might

reach a different conclusion in a challenge to a particular application of the regulation.’ ” (quoting 539 U.S.

at 134; emphasis added)).5

Turner and its progeny have repeatedly and consistently instructed lower courts to determine whether

a prison’s application of a particular policy to an individual plaintiff bears a rational relationship to

legitimate penological interests. Here, the Eleventh

Circuit acted contrary to Turner and its progeny by refusing to consider that a prison policy had been

unconstitutionally applied to a certain plaintiff, and by

5 The Eleventh Circuit cited pages 129-130 and 136 of Overton

as support for disqualifying individualized alternatives from the

Turner inquiry. App., infra, 12a. But in those portions of the

Overton opinion, this Court recited the facts and later concluded

that the plaintiffs had not identified any obvious alternative with

de minimis cost to valid penological interests, so the issue of

whether individualized alternatives per se are properly considered under Turner was not presented. 539 U.S. at 136. The fact

that Overton was a class action, moreover, distinguishes it from

the present case insofar as any proposed alternative would not be

“individualized” in the same fashion. This Court explained that

in the context of a class action, “the individual cases respondents

cite[d we]re not sufficient to strike down the regulations as to all

noncontact visits.” Id. at 134 (emphasis added).

categorically excluding Petitioner’s proposed “individual exemption” from consideration under Turner. See

Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense

of Religious Exemptions, 59 B.C. L. Rev. 1595, 1597

(2018) (“[R]eligious exemption requests are just a version of what is generally thought of as one of the most

common, modest, and preferred modes of constitutional

adjudication:

the

as-applied

challenge.”). Artificially limiting the Turner analysis

to only alternatives that apply “prison-wide” cannot be

reconciled with this Court’s express approval of as-applied challenges, under which the plaintiff does not

object to the policy’s facial constitutionality but only to

its enforcement against them on the particular facts of

their case.

Indeed, the Eleventh Circuit’s approach not only

departs from Turner, but it is impossible to reconcile

with this Court’s more general preference for as-applied constitutional challenges. See, e.g., Gonzales v.

Carhart, 550 U.S. 124, 167-168 (2007) (“In an as-applied challenge the nature of the [harm to the plaintiff]

can be better quantified and balanced than in a facial

attack.”); Ayotte v. Planned Parenthood of N. New

Eng., 546 U.S. 320, 329 (2006) (“[T]he normal rule is

that partial, rather than facial, invalidation is the required course * * * .”). Turner did not disturb this

established norm of constitutional adjudication, let

alone invert it by requiring plaintiffs to bring wideranging facial challenges to prison policies or to demand the imposition of changes on a “prison-wide”

scale.

The Eleventh Circuit’s all-or-nothing, everyone-orno-one approach perversely forces every plaintiff to

seek maximal judicial interference in prison administration rather than targeted accommodation of their

individual rights. In adopting that approach, the

panel not only departed from a basic norm of constitutional adjudication, but it rendered illusory Turner’s

promise of protection for constitutional rights by forcing plaintiffs to rely on the kind of broad-ranging

alternatives that are more likely to burden prison administration and thus fail the Turner inquiry.

II. Every Other Circuit to Consider the Question Correctly Applies Turner and

Considers Individualized Alternatives to

Challenged Prison Policies.

All the other circuits faced with this issue have correctly

considered

as-applied,

individualized

alternatives to prison policies under Turner. In particular, the Third, Fourth, Sixth, and Ninth Circuits

all correctly apply Turner in this respect. Those courts

routinely consider whether a plaintiff’s proposed individualized accommodation shows that a challenged

prison policy’s application is an “exaggerated response” to relevant penological interests.

The Ninth Circuit’s approach is illustrative. In

Ward v. Walsh, an Orthodox Jewish man brought a

free exercise challenge to a prison’s refusal to provide

him with kosher meals under a policy that “limit[ed]

the accommodation of religious dietary laws to the provision of pork-free diets.” 1 F.3d 873, 879 (9th Cir.

1993), cert. denied, 510 U.S. 1192 (1994). The district

court entered judgment for defendants following a

bench trial, but the Ninth Circuit vacated and

remanded. Writing for a unanimous panel, Judge

O’Scannlain held that the district court had failed adequately to examine potential alternatives to the meal

policy, including the possibility of “provid[ing] a special meal for one prisoner.” Id. at 878 (emphasis

added). Following proceedings on remand, the Ninth

Circuit reversed the district court’s grant of summary

judgment for the defendants and remanded with instructions “to fashion an appropriate order requiring

[the plaintiff] to be provided a diet sufficient to sustain

him in good health without violating the laws of kashruth.” Ward v. Hatcher, 172 F.3d 61, 63 (9th Cir.)

(unpublished table), cert. denied, 527 U.S. 1009

(1999). In so holding, the Ninth Circuit emphasized

that the “record evidence shows that other reasonable

alternatives do exist” because the prison could accommodate the plaintiff’s individualized meal request by

assembling kosher meals from the prison’s existing

food and utensils. Ibid. Further, the court emphasized that the plaintiff could receive individualized

treatment without burdening legitimate penological

interests, noting that “[the plaintiff] could go through

the meal line at the end and receive his meals on disposable plates and eat with disposable utensils.” Ibid.

Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th

Cir. 2017), endorses and applies the same principle. In

that case, a deaf man argued that the prison’s policy of

providing him with an obsolete “TTY” keyboard device,

rather than a videophone to communicate via American Sign Language, violated his First Amendment

expression rights. Id. at 207-208. The defendants “insist[ed] that any accommodation should be

implemented on what would be a very expensive,

system-wide basis,” in which case “it would cost nearly

$2 million to install videophones at all * * * institutions.” Id. at 216. The Fourth Circuit disagreed,

explaining that “nothing in the record”—let alone any

principle of law announced in Turner or its progeny—

“indicate[d] why a system-wide solution would be required, and [the plaintiff]’s evidence show[ed] that a

videophone could be installed in [his specific prison] at

de minimis expense to the government.” Id. at

217. The Fourth Circuit therefore vacated the district

court’s grant of summary judgment to the defendants

and remanded the case for trial, whereupon the defendants agreed to accommodate the deaf man’s

request by providing him access to a videophone. Heyer v. U.S. Bureau of Prisons, 984 F.3d 347,

355 (4th Cir. 2021); see also Jehovah v. Clarke, 798

F.3d 169, 178-179 (4th Cir. 2015) (“[R]evers[ing] the

district court’s summary dismissal of [a Christian

man’s] First Amendment wine communion claim” because “[a] reasonable jury could find” that the man’s

individualized “accommodation to drink wine” was an

“alternative * * * so ‘obvious’ and ‘easy’ as to suggest

that the ban [wa]s ‘an exaggerated response’ ” (citation

omitted)), cert. denied, 578 U.S. 962 (2016).

The Sixth Circuit takes a similar approach. In

Flagner v. Wilkinson, 241 F.3d 475 (6th Cir.), cert. denied, 534 U.S. 1071 (2001), a Hasidic Jewish man

challenged a prison’s grooming policy, which violated

his religious beliefs by requiring him to cut his sidelocks and beard. 241 F.3d at 477-479. The district

court denied the defendants qualified immunity on the

plaintiff’s claims for damages and injunctive relief. Id.

at 479. The Sixth Circuit reversed in part, but agreed

that the plaintiff could “go[] forward with his as-applied challenge to the Ohio prison grooming regulation

insofar as he seeks declaratory and injunctive relief.” Id. at 483 (emphasis added). In response to the

dissent’s contention that “as-applied” challenges are

impermissible under Turner, see id. at 488 (Nelson, J.,

dissenting), the majority correctly explained that “controlling Supreme Court precedent”—i.e., Thornburgh

v. Abbott—clearly demonstrates that such challenges

are permissible. Id. at 483 n.5 (reading Turner and

Thornburgh for the proposition that “plaintiffs may

pursue as-applied challenges to facially valid prison

regulations.”). In the Sixth Circuit’s view, having the

individual plaintiff “search his own beard” was a viable alternative under Turner, and “accommodation of

[the plaintiff in that way] did not cause the institution

any financial hardship.” Id. at 486-487. The court

therefore remanded the case for further consideration

of that alternative. Id. at 487; see also Pollack v. Marshall, 845 F.2d 656, 658-660 (6th Cir.) (considering

under Turner a plaintiff ’s proposed individualized alternative to a prison’s grooming policy—i.e., wearing a

ponytail), cert. denied, 488 U.S. 897 (1988).

The Third Circuit has likewise considered individualized alternatives as part of its Turner inquiry. In

one case, the Third Circuit considered a Buddhist

man’s proposed individualized alternative to a prison

dietary policy. There, the plaintiff challenged the

prison’s refusal to “provide him with a diet free of

meat, dairy products and pungent vegetables” in accordance with his religious beliefs. Dehart v. Horn,

390 F.3d 262, 265 (3d Cir. 2004). On an initial appeal,

the Third Circuit reversed the district court’s grant of

summary judgment to the defendants. In so doing, the

Third Circuit criticized the district court for not requiring the defendants to explain adequately why they

could not accommodate the man via his proposed individualized alternative. See Dehart v. Horn, 227 F.3d

47, 59 (3d Cir. 2000) (en banc) (“[T]here is an existing

administrative process in the institution for serving

individually prepared meals and [the plaintiff] has

made a prima facie showing that this process can accommodate his religious needs with the addition of a

cup of soy milk * * * . In such circumstances, Turner

requires a more thorough analysis of the reasonableness of the restriction imposed on [the plaintiff]’s

religious expression.”). When the case returned after

remand, the Third Circuit considered the burden that

accommodating the plaintiff’s individualized diet request would impose on the prison, without any

suggestion that the plaintiff was limited to presenting

a prison-wide alternative. 390 F.3d at 271-272.

In short, every other circuit to consider the question correctly applies Turner and considers

individualized alternatives to challenged prison policies. The Eleventh Circuit is an outlier, and its holding

in this case conflicts with those of other circuits, departs from Turner itself, and renders illusory Turner’s

protections for constitutional rights.

Petitioner’s proposed alternative (that he be moved

to an available cell equipped with a shower) is, like the

plaintiff’s proposal in Hatcher, a request for “individualized” accommodation using existing prison

resources. App, infra, 12a. By excluding that kind of

alternative at the threshold, the Eleventh Circuit’s approach guts Turner. Petitioner argued below that

Respondents failed even “to ‘explain their refusal’ to

move him [to a cell with a shower].” Id. at 12a. But

the Eleventh Circuit exempted Respondents from even

having to articulate why they could not accommodate

his religious practices in that way. Instead, the Eleventh Circuit read Turner’s statement that “a prison

need not ‘shoot down every conceivable alternative

method of accommodating the claimant’s constitutional complaint’ ” as excusing Respondents from

having to articulate a reason for rejecting the alternative that Petitioner did propose. Ibid. (citing Turner,

482 U.S. at 90-91). If the Turner framework is to have

any prospective significance in protecting constitutional rights, surely prison officials should at bare

minimum be expected to articulate an explanation for

a policy that infringes upon those rights, including

why they cannot or will not employ readily available,

existing alternatives.

III. The Panel’s Qualified Immunity Analysis

Rests on the Same Misreading of Turner.

In addition to concluding that the challenged

prison policy was constitutional under Turner, the

panel held that Respondents were entitled to qualified

immunity. In three terse paragraphs, the panel concluded that Petitioner had not shown a clearly

established right to exercise his religious beliefs in the

requested manner. App., infra, 15a-16a. In the

panel’s view, Turner did not draw a clear line between

lawful and unlawful policies in this area, and it did not

require courts to “fine tune a prison’s policy to accommodate a prisoner’s individual request.” Id. at 16a.

On that basis, the panel concluded that prison officials

“would be entitled to qualified immunity” even if the

challenged shower policy was unconstitutional. Ibid.

For at least two reasons, the panel’s holding on

qualified immunity does not constitute an independent

basis to support the judgment below and presents no

obstacle to this Court granting review and correcting

the Eleventh Circuit’s misreading of Turner.

First, where “a court of appeals does address both

prongs of qualified-immunity analysis”—i.e., where a

court addresses both (1) whether an official violated a

statutory or constitutional right; and (2) whether that

right was “clearly established”—this Court has “discretion to correct * * * errors at each step.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011). That is so even

where correcting a particular error is “not necessary to

reverse an erroneous judgment,” because “doing so ensures that courts do not insulate constitutional

decisions at the frontiers of the law from [this Court’s]

review or inadvertently undermine the values qualified immunity seeks to promote.” Ibid. The former

concern is implicated, as here, “when the constitutional-law question is wrongly decided.” Ibid. This

Court has exercised that discretion to reach—and reverse—both prongs of a lower court’s qualified

immunity analysis, even where reaching the second

part of the analysis would have been unnecessary to

affirming or setting aside the judgment below. Id. at

735-744; District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018); cf. Camreta v. Greene, 563 U.S. 692, 703709 (2011) (court can review a constitutional holding

even where challenged by an official who prevailed on

qualified immunity grounds). Given the Eleventh Circuit’s serious misreading of Turner, the Court should

exercise this discretion here and correct the panel’s errors.

Second, because the panel’s qualified immunity

analysis is inextricably intertwined with its misreading of Turner, the qualified immunity ruling does not

independently support the panel’s judgment. Immediately before concluding that Petitioner had not shown

a violation of a clearly established right, the panel reiterated its erroneous belief that Turner does not “ask

courts to fine tune a prison’s policy to accommodate a

prisoner’s individual request.” App., infra, 16a (emphasis added). As a result, if this Court were to grant

certiorari and confirm that courts should consider individualized alternative policies under Turner, this

Court would—at a minimum—need to vacate and remand, so that the Eleventh Circuit could reconsider

(among other things) its qualified immunity analysis

under a proper understanding of Turner.6

6 It is unsurprising that the panel’s misreading of Turner af-

fected its qualified immunity analysis. As this Court has long

acknowledged, the merits and qualified immunity inquiries frequently overlap and it “often may be difficult to decide whether a

right is clearly established without deciding precisely what the

existing constitutional right happens to be.” Pearson v. Callahan,

555 U.S. 223, 236 (2009) (quoting Lyons v. Xenia, 417 F.3d 565,

581 (6th Cir. 2005) (Sutton, J., concurring)). It is this very complication that led this Court to allow a “depart[ure] from the

general rule of constitutional avoidance” to promote “the development of constitutional precedent * * * especially * * * with

respect to questions that do not frequently arise in cases in which

a qualified immunity defense is unavailable.” Pearson, 555 U.S.

at 241, 236.

This is familiar ground for this Court, which has

not hesitated to grant certiorari to decide one question

while ultimately vacating and remanding for a lower

court to reconsider other related or interdependent

questions. See, e.g., Maryland v. Buie, 494 U.S. 325

(1990) (vacating state-court application of the Fourth

Amendment and remanding for lower court to apply

appropriate standard to determine excludability of evidence); Delaware v. Van Arsdall, 475 U.S. 673 (1986)

(vacating state-court Confrontation Clause holding

and remanding to determine whether the error was

harmless).

There is ample reason to conclude that a remand

under a correct reading of Turner would result in a favorable outcome for Petitioner. As explained above,

the only fair reading of Turner and its progeny is that

the existence of individualized alternatives can show

that a challenged prison policy is not reasonably related to legitimate penological interests. See supra § I.

Every circuit to have previously considered that question agrees, constituting “a robust consensus of cases

of persuasive authority.” al-Kidd, 563 U.S. at 742 (citation omitted). And here, as in other cases where

prison policies have been found invalid under Turner

due to their effect on constitutional rights, Petitioner

has proposed an individualized alternative that is

readily available within the prison’s existing resources. Indeed, prison officials here failed to offer any

justification for refusing to move Petitioner to a

shower-equipped cell as a religious accommodation.

IV. The Question Presented Is Important and

Recurring.

The question presented is critically important for

the more than 1.2 million people currently incarcerated in federal and state prisons nationwide. E. Ann

Carson, Bureau of Just. Stats., Prisoners in 2020—

Statistical Tables 7 (2021). Although this case involves claims of religious free exercise, the Turner

framework—and the Eleventh Circuit’s novel reimagination of the same—applies to nearly all

constitutional rights in the prison context. See Washington v. Harper, 494 U.S. 210, 224 (1990) (“[T]he

standard of review we adopted in Turner applies to all

circumstances in which the needs of prison administration implicate constitutional rights.”); Justin

Driver & Emma Kaufman, The Incoherence of Prison

Law, 135 Harv. L. Rev. 515, 538 (2021) (“courts have

applied [Turner] to a wide variety of constitutional

claims; courts have cited the case over 12,000 times;

and prison scholars have ‘described [it], fairly, as “the

most important and widely used legal standard for

evaluating prisoners’ rights claims.” ’ ” (alteration in

original; footnotes and citations omitted). In any

event, even focusing just on Turner’s application to

free exercise claims, the vast majority of incarcerated

people are religious. See Off. of the Inspector Gen.,

Audit of the Federal Bureau of Prisons’ Management

and Oversight of Its Chaplaincy Services Program 1

(2021). The First Amendment’s protection for the free

exercise of religion “does perhaps its most important

work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily

life through ‘the performance of (or abstention from)

physical acts.’ ” Kennedy v. Bremerton Sch. Dist., 142

S. Ct. 2407, 2421 (2022) (citation omitted).

Turner remains a critical bulwark for the protection of constitutional rights in the prison context.

Although RLUIPA provides additional protection for

religious exercise in prisons, that statute is not coextensive with the First Amendment and provides only

limited remedies. See supra pp. 6-7; U.S. Comm’n on

Civil Rights, Enforcing Religious Freedom, supra, at 67. Furthermore, as this case demonstrates, it is not

uncommon for prison officials to violate an individual’s

free exercise rights and then avoid accountability by

changing the plaintiff’s circumstances during litigation, effectively mooting claims for injunctive relief

under RLUIPA. The net effect is a serious risk of under-protection of constitutional rights in the prison

context. See Steven B. Dow, Navigating Through the

Problem of Mootness in Corrections Litigation, 43 Cap.

U. L. Rev. 651, 671-676 (2015).

This Court in Turner struck an appropriate balance

between prison administrators’ legitimate penological

interests and prisoners’ constitutional rights. See 482

U.S. at 85 (“Our task * * * is to formulate a standard

of review for prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint

regarding prisoner complaints and [to] the need to protect constitutional rights.’ ” (alteration in original;

citation omitted)). In striking that balance, Turner

structurally disfavors the kinds of broader, prisonwide changes that are most likely to impose significant

burdens on prison administrators and resources. Perversely, the Eleventh Circuit’s re-imagination of

Turner would prohibit plaintiffs from proposing, and

bar courts from even considering, the kinds of tailored,

individualized alternatives that often will protect constitutional rights without materially burdening prison

administration. And where a plaintiff does prevail on

the merits of a claim, the Eleventh Circuit’s rule would

compel courts to grant broad relief, even where a narrower remedy would have accommodated an

individual plaintiff’s rights. Put differently, the Eleventh Circuit’s approach skews Turner’s balance,

improperly and uniformly disadvantages plaintiffs,

and, as a result, chills the exercise of constitutional

rights.

This case is an appropriate vehicle for the Court to

address the question presented. The Eleventh Circuit

clearly and expressly rejected Petitioner’s proposed alternative on the ground that it was “individualized,”

holding that under Turner, a plaintiff “must present

an obvious alternative policy that could replace the

current one on a prison-wide scale.” App., infra, 11a12a, 14a. The Eleventh Circuit’s misreading of Turner

is squarely presented, and this Court’s intervention is

urgently warranted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ATTEEYAH HOLLIE

GERRY WEBER

ALISON GANEM

SOUTHERN CENTER

FOR HUMAN RIGHTS

60 Walton St. N.W.

Atlanta, GA 30303

DANIEL R. ORTIZ

UNIVERSITY OF

VIRGINIA SCHOOL OF

LAW SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

DECEMBER 2022

JEREMY C. MARWELL

Counsel of Record

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

APPENDIX

APPENDIX A

Date Filed: 6/30/2022

[PUBLISH]

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11218

________________________

HJALMAR RODRIGUEZ, JR.,

Plaintiff - Appellant,

versus

EDWARD H. BURNSIDE, et al.,

Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:17-cv-00010-MTT-CHW

________________________

Opinion of the Court

Before JILL PRYOR, GRANT, and MARCUS, Circuit

Judges.

GRANT, Circuit Judge:

To test whether a state prison regulation violates

an inmate’s constitutional rights, courts ask whether

the regulation is reasonably related to a legitimate

penological interest. That inquiry is intended to

ensure that prison officials respect constitutional

(1a)

boundaries without frustrating their efforts to fulfill

the difficult responsibility of prison administration.

Here we consider two Georgia prison policies that

control how officers transport inmates to showers,

and we ask whether those policies interfere with an

inmate’s First Amendment right to free exercise of

religion. Although the inmate suggests ways the

prison could make an exception to accommodate his

religious requests, he does not show that the policies

were unconstitutional in the first place. And even if

they were, qualified immunity would protect the

officials because the types of shower rights the inmate

seeks are not clearly established. We affirm the

district court.

Hjalmar Rodriguez was imprisoned at Hays State

Prison after he was convicted of voluntary

manslaughter. While he lived there, Rodriguez killed

another inmate by stabbing him with a knife during

a fight. Understandably concerned that he was a

safety risk, prison officials moved him into the Special

Management Unit at the Georgia Diagnostic and

Classification Prison. That unit handles “offenders

who commit or lead others to commit violent,

disruptive, predatory, or riotous actions, or who

otherwise pose a serious threat to the security of the

institution.” The unit’s rigorous policies reflect the

greater risk those inmates pose to prison safety and

security.

For most of his time in that unit, Rodriguez was

housed in wings with single-occupancy cells. These

cells were not equipped with showers, but prison

policy was to escort each inmate to a separate shower

three times per week. To ensure safety and security

during the shower transports, prison officers in the

unit followed a set of strict procedures. To start, each

transport required the dedicated attention of between

two and five officers. Clothing was also kept to a

minimum—inmates could wear only boxers and

shower shoes when walking to the shower, and could

not bring along any other clothes. Before leaving their

cells, inmates handed any necessary items through a

cell-door port so that an officer could “thoroughly

check” for contraband. Only the bare necessities were

allowed—soap and a towel. Once the items were

searched, the officers handcuffed the inmate through

the door port, opened the door, and finally secured the

inmate in leg shackles.

Only then could an inmate be taken to the shower.

With yet another step-by-step process, the inmate

was unshackled, locked in the shower, and

unhandcuffed. After the shower, the process then

went in reverse—the inmate was again searched and

secured before being taken back to his cell by a group

of officers.

Though tedious, these steps were meant to ensure

“that the escorting officers were safe and that the

prison remained secure.” As the deputy warden

explained, the “shower security protocol” helped stop

the flow of contraband and weapons that could be

hidden in clothing and taken to the shower.

Rodriguez, however, disagreed with those policies

and believed that the restrictions infringed his

constitutional rights. As a Muslim, Rodriguez

practiced ghusl, a ritual bathing that involves

washing the whole body multiple times and that must

be completed every 24 hours. He complained that

ghusl was impossible to perform using the sink and

towel in his cell because it “requires a large amount

of water” and would have produced a slipping hazard.

Rodriguez conceded that the sink and towel were

helpful, enabling him to perform a simpler and more

frequent religious washing called wudu. But because

prison officials were not providing him with daily

showers, they were—at least as he saw it—violating

his First Amendment right to freely exercise his

religion.

Rodriguez’s religious beliefs also dictated that he

dress modestly “by wearing garments that cover from

mid-stomach or the naval to the bottom of the knees”

around anyone but immediate family. Of course, the

shower transport policy did not allow for that much

clothing—he could wear only boxers and shower

shoes. The policy thus contravened his religious

modesty obligations by requiring him to expose both

his lower stomach and a portion of his leg above his

knee.

To challenge these policies and raise a host of other

complaints, Rodriguez sued several prison officials

under the Religious Land Use and Institutionalized

Persons Act (RLUIPA), 42 U.S.C. § 2000cc–1, and 42

U.S.C. § 1983, seeking declaratory, injunctive, and

monetary relief. In his complaint, Rodriguez claimed

that the shower policies intruded on his First and

Fourteenth Amendment rights.

The district court granted summary judgment to

the prison officials on his shower policy claims.

Adopting the magistrate judge’s report, the court held

that prison officials had not violated Rodriguez’s First

and Fourteenth Amendment rights when they

enforced the prison’s shower policies. The policies

were “reasonably related to the legitimate penological

interests in securing the prison.” It also held that he

was not entitled to relief under RLUIPA because his

injunctive claims were mooted when he was

transferred out of the Special Management Unit.

Rodriguez appeals, contending that the shower

policies fail First Amendment scrutiny. The prison

officials disagree, and argue that they are entitled to

qualified immunity in any event. Rodriguez also

argues that the magistrate judge was incorrect to

reject motions related to discovery requests and

appointment of counsel.

II.

We review de novo the district court’s grant of

summary judgment to the prison officials on

Rodriguez’s free exercise claim. See Jurich v.

Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir.

2014). We view all facts and reasonable inferences in

the light most favorable to the nonmoving party, and

summary judgment is proper when the moving party

is entitled to judgment as a matter of law. Id.

“Prison walls do not form a barrier separating

prison inmates from the protections of the

Constitution.” Turner v. Safley, 482 U.S. 78, 84

(1987). But those protections can be limited, because

they sometimes conflict with an inmate’s “status as a

prisoner or with the legitimate penological objectives

of the corrections system.” Pesci v. Budz, 935 F.3d

1159, 1165 (11th Cir. 2019) (quotation omitted); see

also Pell v. Procunier, 417 U.S. 817, 822 (1974).

Deciding what limits are permissible is tricky—

running a prison “is an inordinately difficult

undertaking that requires expertise, planning, and

the commitment of resources, all of which are

peculiarly within the province of the legislative and

executive branches of government.” Turner, 482 U.S.

at 84–85. Respect for the separation of powers thus

requires us to exercise “judicial restraint regarding

prisoner complaints.” Id. at 85 (quotation omitted).

And when critiquing a state penal system, principles

of federalism “bolster that deference.” Pesci, 935 F.3d

at 1165.

To allow prison officials “to remain the primary

arbiters of the problems that arise in prison

management,” we evaluate a prisoner’s constitutional

claim under a “unitary, deferential standard.” Shaw

v. Murphy, 532 U.S. 223, 229–30 (2001). Under that

standard, a prison regulation burdening an inmate’s

exercise of constitutional rights must be “reasonably

related to legitimate penological interests.” Turner,

482 U.S. at 89.

To succeed on a constitutional claim, an inmate

must show that “the logical connection between the

regulation and the asserted goal is so remote as to

render the policy arbitrary or irrational.” Id. at 89–

90. We do not inquire whether the prison could make

an individualized exception for the complaining

inmate—we assess “only the relationship between the

asserted penological interests and the prison

regulation.” Shaw, 532 U.S. at 230.

The Supreme Court in Turner outlined four factors

that frame our analysis. To decide whether the

prison’s policies impermissibly burden Rodriguez’s

First Amendment right to free exercise, we ask

(1) whether there is a “valid, rational connection

between the prison regulation and the legitimate

governmental interest put forward to justify it”;

(2) whether “alternative means” of exercising the

right “remain open to prison inmates,” such that

they may “freely observe a number of their

religious obligations”;

(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 any “obvious, easy alternatives” to

the current regulation exist, which would suggest

that the policy is an “exaggerated response to

prison concerns.”

See Turner, 482 U.S. at 89–91 (quotations omitted);

O’Lone v. Est. of Shabazz, 482 U.S. 342, 352 (1987).

To be quite clear, we do not balance these factors to

see if some outweigh the others. Beard v. Banks, 548

U.S. 521, 532–33 (2006) (plurality opinion). The last

three factors are valuable because they provide more

angles from which to view the fundamental inquiry:

whether the prison regulation is reasonably related to

legitimate penological interests. Turner, 482 U.S. at

89. If that rational connection is missing, “the

regulation fails, irrespective of whether the other

factors tilt in its favor.” Shaw, 532 U.S. at 229–30;

Pesci, 935 F.3d at 1167. And if the connection exists,

the policy will stand. See Beard, 548 U.S. at 533.

We start with the three-showers-per-week

limitation. Rodriguez does not dispute that the prison

officials’ asserted interests in this rule are legitimate.

He accepts that transporting an inmate to the shower

“involved ‘safety and security risks’ and was ‘timeand labor- intensive’ for correctional officers.” No

doubt that is true—promoting prison security is

“perhaps the most legitimate of penological goals.”

Overton v. Bazzetta, 539 U.S. 126, 133 (2003); Prison

Legal News v. Sec’y, Florida Dep’t of Corr., 890 F.3d

954, 967 (11th Cir. 2018). The Supreme Court has

long recognized that prisons make do with “limited

resources for preserving institutional order” and thus

deserve deference in how they allocate those

resources. Turner, 482 U.S. at 90.

Turning to the first Turner factor, a rational

connection exists between limiting the frequency of

showers and furthering safety and security. The

policy requires multiple officers during the shower

transport to help if an inmate resists returning to his

cell, refuses to be handcuffed, or threatens the

transporting officers. And the safety risk to officers is

real—the unit houses the most “violent, disruptive,

predatory” inmates in the Georgia prison system. In

fact, some inmates are classified as so dangerous that

they may be transported only if three officers are

present and two of them are armed. Rodriguez

himself demonstrates why such extreme care is called

for—he was moved to the Special Management Unit

after killing another inmate. The prison’s precautions

are reasonably calculated responses to the risks

involved in transporting this category of inmates.

Nor does it matter that the prison officials have not

presented “evidence of an actual security breach.”

Prison Legal News, 890 F.3d at 968. To justify a

security policy, prison officials need not establish a

causal link between the practice and a reduction in

violent incidents. Id. Instead, prison officials may

“anticipate security problems” and “adopt innovative

solutions.” Id. (quotation omitted). A policy like this

one—directly mitigating risk to prison safety and

security—is reasonable.

The remaining three factors confirm this

connection. O’Lone guides how we review the second

factor. There, the prison’s work policy prevented

Muslim inmates from attending their Friday prayer

service. O’Lone, 482 U.S. at 345–47. Even so, the

Supreme Court held that the prisoners retained

alternative means of religious exercise because the

prison allowed them “to participate in other religious

observances of their faith”—other prayer meetings,

access to a state-provided imam, special meals, and

modified mealtimes during the month of Ramadan.

Id. at 352.

Rodriguez argues that refusing to provide him a

daily shower left him with no alternative means of

exercising his religion. But he misconstrues our

inquiry. The question is not whether the prison

accommodated every aspect of his religious practice,

but whether he was allowed other means of practicing

his religious beliefs. See id., 482 U.S. at 352. And

when we consider the prisoner’s free exercise of

religion, the right “must be viewed sensibly and

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expansively.” See Thornburgh v. Abbott, 490 U.S. 401,

417 (1989). As long as a prisoner like Rodriguez

retains “the ability to participate in other Muslim

religious ceremonies,” the second factor tips against

him. See O’Lone, 482 U.S. at 352.

Rodriguez could exercise his religion in many other

ways. He could perform wudu, the other religious

washing ritual, using the sink in his cell. And the

prison allowed Muslim inmates to participate in

“Friday Jumah service” by having the Muslim

chaplain “go cell by cell to individual inmates for their

Friday prayer.” The prison also adjusted the meal

schedule during Ramadan for those who wanted to

observe the religious fast; they were “provided a

morning meal around dawn (before sunrise) and an

evening meal after sunset.” These steps show that

Rodriguez had many alternative means of practicing

his religious faith despite the shower policy.

The third factor, resource allocation, also suggests

that the prison’s policy was reasonable. Providing

daily showers would have been a severe drain on the

prison’s limited resources, forcing prison officers to

more than double the time they spent making shower

transports.

Requesting

such

“significant

reallocation” of resources, the Supreme Court has

explained, interferes with the smooth functioning of a

prison. Overton, 539 U.S. at 135. These consequences

confirm that the three-showers-per-week policy

rationally advances the prison’s security interests.

Our last consideration when deciding whether a

prison rule is reasonably related to a legitimate

interest is whether any “obvious, easy alternatives” to

that regulation exist. Turner, 482 U.S. at 90. This is a

11a

“high standard,” designed to flush out whether the

current policy is an “exaggerated response” to the

prison’s concerns. Overton, 539 U.S. at 136; Turner,

482 U.S. at 90 (quotation omitted). To meet it, a

proposed alternative must be a simple and

unmistakably effective choice.

Rodriguez argues that an alternative to the threeshowers-per-week policy would have been to move

him to another cell block where the cells contained

personal showers.1 But the fact that the prison could

have moved him to a cell where he would not need

shower transports does not suggest that the shower

policy itself was irrational. In fact, Rodriguez is not

proposing an alternative policy at all—he is asking for

an individual exemption. We commonly confront such

requests when reviewing RLUIPA claims. Under that

standard (which is stricter on prisons than Turner),

we assess whether a prison policy as applied to an

individual prisoner is the “least restrictive means” of

furthering a “compelling governmental interest.” Holt

v. Hobbs, 574 U.S. 352, 362–63 (2015) (quoting 42

U.S.C. § 2000cc–1(a)); Dorman v. Aronofsky, —

F.4th—, No. 20-10770, 2022 WL 2092855, at *3–4

(11th Cir. June 10, 2022). The prison may also need

to justify its denial of “specific exemptions to

particular religious claimants” under RLUIPA’s

1 The prison officials argue that Rodriguez waived this issue

by not properly objecting to the magistrate judge’s

recommendation. But in doing so, they fail to construe

Rodriguez’s pro se district court filings liberally. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007). Rodriguez sufficiently proposed

the daily-shower alternative below, so the officials should have

addressed the merits of his argument.

12a

“focused” inquiry. Id. (quotation omitted). That

framework is not relevant here, however, because

Rodriguez appealed the dismissal of his § 1983 claims,

not his RLUIPA claims.

And Turner makes no comparable, individualized

demands. It only requires a prison’s policy to be

rationally related to a legitimate government

interest. To bring his First Amendment challenge to

the policies under Turner, Rodriguez must do more

than propose a personal accommodation. He must

present an obvious alternative policy that could

replace the current one on a prison-wide scale. See

Turner, 482 U.S. at 93. For example, in Prison Legal

News a publisher challenging a prison’s magazine ban

suggested that the prison could restrict inmates’

access to prohibited services rather than banning its

magazine for advertising those services. 890 F.3d at

974. And in Overton v. Bazzetta, a prison policy

excluded most minor visitors other than immediate

family; the suggested alternative was to allow “nieces

and nephews or children for whom parental rights

have been terminated” to visit. 539 U.S. at 129–30,

136. Rodriguez, on the other hand, falls short of

proposing any alternative policy.

Instead, he insists that the prison officials had to

“explain their refusal” to move him. But the Supreme

Court has held otherwise: a prison need not “shoot

down every conceivable alternative method of

accommodating

the

claimant’s

constitutional

complaint.” Turner, 482 U.S. at 90–91. The prison

regulation need only be reasonable. The threeshowers-per-week policy thus survives scrutiny.

13a

We apply the same Turner factors to consider

whether it was reasonable to limit prisoners to

wearing only boxers and shoes to the shower. The

prison limited what prisoners wore to the shower

because “contraband could be hidden in clothing and

weapons could be taken to the shower.” The same

interests—safety and security—also justify this

shower policy. And the validity of these interests, as

we said earlier, is “beyond question.” Thornburgh,

490 U.S. at 415.

Turning to the first factor, the policy rationally

advances safety and security. Limiting the places

where a prisoner could hide a weapon reduces the risk

that an officer will be harmed, as well as the risk that

the weapon will be conveyed to other prisoners.

Rodriguez argues that the officials said that

transporting prisoners in “full dress” rather than in

boxers and shower shoes would threaten prison

safety; allowing him to add a t-shirt to his shower

garb would make no difference in his view given their

justification. But we do not nitpick whether a policy

could be adjusted to accommodate a prisoner’s

interest—this is not a “least restrictive alternative”

test. Turner, 482 U.S. at 90 (quotation omitted). Quite

simply, more clothing presents a greater safety

threat. Because limiting what prisoners wear and

carry to the shower makes it harder to move weapons

or contraband, the policy is rationally related to

advancing prison safety.

The remaining three factors implicate much of the

same reasoning behind the other policy, so we do not

rehash every detail. The second factor translates

14a

unchanged: Rodriguez was allowed alternative means

of exercising his religious beliefs. As for the third

factor, requiring the prison to allow prisoners to wear

t-shirts during shower transports would introduce the

specific risk to prison safety and security that the

policy sought to prevent. Other methods of mitigating

the risk would require officers to dedicate more time

and energy to carefully searching the extra clothing.

Those added burdens confirm that the security policy

rationally advances the prison’s interest in safety. See

Beard, 548 U.S. at 532–33.

Under the fourth factor, Rodriguez again suggests

that the prison should have moved him to another

cell. And again this suggestion is for a personal

exemption rather than a policy change. Rodriguez

does, however, present another solution that qualifies

as an alternative policy.

He relies on the unit’s “Standard Operating

Procedures,” which say that prisoners must never be

removed from their cells in anything more than a tshirt, boxers, and shower shoes. He argues that this

policy is good enough for shower transports too. It

may be true that in other instances the prison allowed

prisoners to be transported while still wearing tshirts. But the fact that the prison offers inmates the

comparative dignity and comfort of wearing a shirt

during other activities does not render it illogical or

unreasonable to allow less clothing on the way to the

shower. See Thornburgh, 490 U.S. at 419. Because

Rodriguez’s proposal would introduce the exact risk of

harm the prison is working to prevent, it is not an

obvious, easy alternative to the existing policy.

15a

The prison officials therefore did not violate

Rodriguez’s First Amendment right to freely exercise

his religion. Even if these particular policies

substantially

burdened

Rodriguez’s

religious

exercise, they were rationally related to the prison’s

legitimate interests in maintaining safe and secure

conditions while providing prisoners with the

opportunity to shower.

III.

The prison officials also argue that, regardless of

our answer to the First Amendment question, they

are entitled to qualified immunity. They say that it

was not clearly established that the shower policies

infringed the First Amendment.

Under the doctrine of qualified immunity, public

officials may not be held liable for damages under

§ 1983 unless it is shown that they violated “a

constitutional right that was clearly established at

the time of the challenged action.” Echols v. Lawton,

913 F.3d 1313, 1319 (11th Cir. 2019) (quotation

omitted). Qualified immunity covers officials when

they are acting within the scope of their discretionary

authority; Rodriguez does not dispute that was the

case here. See id. Qualified immunity therefore

applies unless he produces evidence showing (1) that

the officials violated a statutory or constitutional

right, and (2) “that the right was clearly established

at the time of the challenged conduct.” Wade v. United

States, 13 F.4th 1217, 1225 (11th Cir. 2021)

(quotations omitted).

Rodriguez concedes that no materially similar case

clearly establishes that these kinds of policies violate

16a

prisoners’ First Amendment rights. Nevertheless, he

argues, Turner was so decisive that it formed a

“broader, clearly established principle that should

control the novel facts of the situation.” Id. at 1226

(quotation omitted). But that is true only if the case

drew a “bright line” between “lawful and unlawful”

policies. Post v. City of Fort Lauderdale, 7 F.3d 1552,

1557 (11th Cir. 1993), modified on other grounds, 14

F.3d 583 (11th Cir. 1994). Turner drew no such line.

Nor did it ask courts to fine tune a prison’s policy to

accommodate a prisoner’s individual request. See

Turner, 482 U.S. at 90–91. Rodriguez thus has not

shown that a reasonable official would have had “fair

and clear warning” that his particular conduct was

“unlawful and unconstitutional.” Al-Amin v. Smith,

511 F.3d 1317, 1335–36 (11th Cir. 2008). Even if the

prison’s policies were improper, the prison officials

would be entitled to qualified immunity.

IV.

Turning to the district court’s denials of a discovery

motion and appointment-of-counsel motions, we

review them for abuse of discretion. Smith v. Sch. Bd.

of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007).

Under this standard, a district court “has a range of

choice” when managing the discovery process and “its

decision will not be disturbed as long as it stays

within that range and is not influenced by any

mistake of law.” Knight through Kerr v. Miami-Dade

Cnty., 856 F.3d 795, 811 (11th Cir. 2017) (quotation

omitted).

Rodriguez asked the magistrate judge to order

prison officials to help him depose other prisoners as

he developed his claim that contaminated vegan

17a

meals violated the Eighth Amendment. Rejection of

that motion did not preclude Rodriguez from

collecting evidence; he acquired affidavits from four

other inmates to support his Eighth Amendment

claim. And as the magistrate judge explained,

Rodriguez failed to show a good-faith attempt to

resolve the discovery dispute with the prison officials.

See Fed. R. Civ. P. 37(a)(1). Part of the problem, the

magistrate judge concluded, was that seeking

depositions was a “particularly burdensome” method

of gathering information and disproportionate to the

needs of the case. We see no abuse of discretion.

Nor was the district court obliged to appoint

counsel to help with discovery. Appointment of

counsel in civil cases is a privilege “justified only by

exceptional circumstances,” not a constitutional right.

Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985).

A district court has “broad discretion” when ruling on

such a motion. Bass v. Perrin, 170 F.3d 1312, 1320

(11th Cir. 1999). Here, the magistrate judge

determined that Rodriguez set forth the essential

facts underlying his claims and that the applicable

legal doctrines were readily apparent. See id.

Although we appointed counsel to represent

Rodriguez on appeal, it was not an abuse of its

discretion for the district court to conclude that no

exceptional circumstances justified the appointment

of counsel below. See Norelus v. Denny’s, Inc., 628

F.3d 1270, 1280 (11th Cir. 2010).

Prisons are tasked with providing safety and

security for the inmate population as well as for

prison staff—but cannot do so by disregarding

18a

prisoners’ constitutional rights. Here, Rodriguez had

a First Amendment right to free exercise even while

he was incarcerated in the Special Management Unit.

Though that right was sometimes curtailed because

of the prison’s legitimate penological requirements,

the prison’s policies hit the right mark under Turner.

Rodriguez’s constitutional challenge fails.

AFFIRMED.

19a

JILL PRYOR, Circuit Judge, Concurring in part,

concurring in the judgment:

I join Parts III and IV of the majority opinion and

concur in its judgment affirming the district court.

Because I agree with Part III of the majority opinion

that the First Amendment right the defendants stand

accused of violating was not clearly established, I

would not decide whether Mr. Rodriguez’s First

Amendment right to free exercise of his religion was

violated. See Pearson v. Callahan, 555 U.S. 223, 236

(2009).

20a

APPENDIX B

Date filed: 08/24/2022

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11218-AA

________________________

HJALMAR RODRIGUEZ,

Plaintiff - Appellant,

versus

JOHN/JANE DOES

Kitchen Management and Staff, GDCP, et al.,

Defendants,

Commissioner,

GDOC,

Warden,

GDCP,

ERIC SELLERS,

f.k.a. CELLARS,

Warden, Telfair State Prison ,

JUNE BISHOP,

Deputy Warden, GDCP,

WILLIAM POWELL,

Deputy Warden of Security, GDCP,

GARY CALDWELL,

Deputy Warden of Care and Treatment, GDCP,

21a

RUFUS LOGAN,

Unit Manager, GDCP,

FREDRICK SUTTON,

Kitchen Director, GDCP,

MARTIN,

Kitchen Director, GDCP,

DR. SHARON LEWIS,

DR. EDWARD H. BURNSIDE, Medical Director,

GDOC,

MARY GORE,

Nurse,GDCP

LINDA ADAIR,

Nurse, GDCP,

Dr DAVID BUTTS,

Medical Director, GDCP,

CAPTAIN WILLIAMS,

GDOC,

KAREN FORTS,

Counselors, GDCP,

DARREL REID,

Counselors, GDCP,

COMMISSIONER,

Georgia Department of Corrections,

MICHAEL CANNON,

Warden and or Superintendent of GDCP,

THERESA THORNTON,

22a

Deputy Warden of Care and Treatment, GDCP,

Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

ON PETITION(S) FOR REHEARING

PETITION(S) FOR REHEARING EN BANC

AND

BEFORE: JILL PRYOR, GRANT, and MARCUS,

Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petition for Rehearing En Banc

is also treated as a Petition for Rehearing before the

panel and is DENIED. (FRAP 35, IOP2)

ORD-42

23a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

HJALMAR RODRIGUEZ, Jr., )

)

Plaintiff,

)

Commissioner HOMER

)

BRYSON, et al.,

)

Defendants.

)

CIVIL ACTION

NO. 5:17-cv-10

(MTT)

ORDER

The Magistrate Judge recommends granting in

part and denying in part the Defendants’ partial

motion for summary judgment. Doc. 182.

Specifically, the Magistrate Judge recommends

denying the motion as to the Plaintiff’s claims against

Defendant Burnside for (i) deliberate indifference to

medical needs for inadequate treatment of the

Plaintiff’s shoulder, in violation of the Eighth

Amendment; and (ii) retaliation, alleging that

Burnside withheld treatment for the shoulder in

retaliation for the Plaintiff’s earlier lawsuits, in

violation of the First Amendment. Id. at 58. The

Defendant has not objected to that portion of the

Recommendation, so pursuant to 28 U.S.C.

§ 636(b)(1), the Court reviews that portion of the

Recommendation for clear error. After review, the

24a

Court accepts and adopts the findings, conclusions,

and recommendations of the Magistrate Judge

regarding denial of the Defendants’ motion on the two

claims relating to the Plaintiff’s shoulder.

The Magistrate Judge also recommends granting

summary judgment on all other claims and limiting

the Plaintiff’s recovery on the retaliation claim to

nominal damages. Id. at 58−59. The Plaintiff has

objected, so pursuant to 28 U.S.C. § 636(b)(1), the

Court reviews de novo the portions of the

Recommendation to which the Plaintiff objects.

After review, the Court finds that the Defendants

have not provided an adequate basis for limiting the

Plaintiff’s retaliation claim to nominal damages.

Although a plaintiff generally may not recover

compensatory damages based only on the abstract

value of a constitutional right, see Memphis

Community School District v. Stachura, 477 U.S. 299

(1986), the Plaintiff claims that the alleged

retaliatory conduct resulted in injury to his shoulder,

which does provide a basis of recovery.1 Further, the

1 When violations of

First Amendment rights cause actual

injuries, compensatory damages may be available. For example,

when a local ordinance restricted door-to-door solicitations in

violation of the First Amendment, a political canvassing

organization was entitled to recover lost revenues. City of

Watseka v. Illinois Pub. Action Council, 796 F.2d 1547, 1558 (7th

Cir. 1986), aff'd, 479 U.S. 1048 (1987). Also, the Sixth Circuit

recently held that a prisoner alleging retaliatory transfer to a

higher-security prison could obtain compensatory damages for

actual injuries from the alleged violation of his First Amendment

rights. King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015).

Although it is true that First Amendment injuries are “rarely

accompanied by physical injury,” Al-Amin v. Smith, 637 F.3d

25a

PLRA does not bar compensatory damages for the

retaliation claim, because the Magistrate Judge found

that the Plaintiff’s torn rotator cuff—or, in the

Defendants’ euphemistic phrasing, “sore shoulder”—

is a more than de minimis injury for purposes of the

Prison Litigation Reform Act’s (“PLRA’s”) limitations

on recovery. Docs. 182 at 14; 175−2; see 42 U.S.C.

§ 1997e(e). The Court finds the Plaintiff’s other

objections to be without merit. After review,

therefore, the Court accepts and adopts the findings,

conclusions, and recommendations of the Magistrate

Judge regarding granting summary judgment on the

other claims, although the retaliation claim against

Burnside is not limited to nominal damages.

Finally, the Magistrate Judge noted that the

Defendants did not move for summary judgment on

one of the two equal-protection claims: the claim that

Jewish prisoners were provided with meals that

comply with their kosher religious obligations, while

Muslim inmates were not provided with meals that

comply with their halal religious obligations. Doc. 182

at 2. The Defendants’ objection to the report and

recommendation requests that the Court grant

summary judgment on the equal protection claim or,

in the alternative, that the Court allow the

Defendants an opportunity to file a separate motion

for summary judgment on the equal protection claim.

1192, 1197 (11th Cir. 2011), damages are still available when the

harm does result in a physical injury. See also Eleventh Circuit

Civil Pattern Jury Instructions, § 5.1 (providing damages

instructions for retaliation claims in cases in which a prisoner

suffers physical injury).

26a

See generally Doc. 183.2 The Defendants may file that

motion.

In conclusion, the Recommendation (Doc. 182) is

ADOPTED as modified, and the Defendants’

motion for partial summary judgment (Doc. 175) is

GRANTED in part and DENIED in part. The only

remaining claims in this lawsuit are the deliberate

indifference and retaliation claims against Burnside

regarding the Plaintiff’s shoulder injury and the equal

protection claim regarding halal food. The claims

against Burnside are not, at this stage, limited by the

PLRA.

Finally, the Defendants shall file a supplemental

motion for summary judgment on the remaining

equal protection claim within fourteen days. The

Plaintiff shall file a response within fourteen days

of service of that supplemental motion. The

Defendants may file a reply brief within ten days of

service of the Plaintiff’s response.

SO ORDERED, this 6th day of September, 2019.

S/ Marc T. Treadwell

MARC T. TREADWELL, JUDGE

UNITED STATES DISTRICT

COURT

2 As noted above, the Defendant does not object to the

Magistrate Judge’s recommendation to deny the motion for

summary judgment on the claims against Dr. Burnside relating

to the Plaintiff’s shoulder injury.

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APPENDIX D

Date filed: 07/10/2019

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

HJALMAR RODRIGUEZ, JR., :

Plaintiff,

Commissioner HOMER

BRYSON, et al.,

Defendants.

Case No. 5:17-cv00010-MTT-CHW

Proceedings

Under 42 U.S.C.

§ 1983

Before the U.S.

Magistrate Judge

REPORT AND RECOMMENDATION

Before the Court is a motion for summary judgment

filed by Defendants1 against Plaintiff Hjalmar

Rodriguez, a state inmate who is proceeding pro se.

(Doc. 175). For the reasons stated in this Report and

1 The remaining defendants in this action are as follows:

Nurse Adair, Deputy Warden Bishop, Commissioner Bryson, Dr.

Burnside, Health Services Administrator Butts, Deputy Warden

of Care and Treatment Caldwell, Superintendent Cannon,

Warden Chatman, Commissioner Dozier, Counselor Forts,

Nurse Gore, Officer Hunter, Medical Director Lewis, Unit

Manager Logan, Director of Food Service Martin,

Superintendent McCloud, Deputy Warden Powell, Counselor

Reid, Warden Sellers, Interim Director of Food Service Sutton,

Deputy Warden of Care and Treatment Thornton, and Captain

Williams.

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Recommendation, it is RECOMMENDED that

Defendants’ motion be GRANTED in part and

DENIED in part.

SUMMARY OF CLAIMS

On screening pursuant to 28 U.S.C. §§ 1915A(a)

and 1915(e), the Court permitted the following eleven

claims2 to proceed for further factual development

(Docs. 14, 84):

Four claims under the First Amendment’s Free

Exercise Clause: (1) failure to provide a diet that

complies with Plaintiff’s religious obligations as a

Sunni Muslim, (2) deprivation of sufficient calories

during Ramadan, (3) violation of religious modesty

obligations while being escorted to the prison shower

room and yard, and (4) violation of religious

cleanliness requirements by restricting shower use;

Two conditions of confinement claims under the

Eighth

Amendment’s

Cruel

and

Unusual

Punishments Clause: (5) contaminated food; and (6)

nutritionally inadequate food;

Two deliberate indifference to medical needs claims

under the Eighth Amendment’s Cruel and Unusual

Punishments Clause: inadequate treatment for (7) a

damaged tooth and (8) injured shoulder;

A retaliation claim under the First Amendment

against Defendant Dr. Burnside: (9) providing

constitutionally inadequate medical treatment for the

damaged tooth and shoulder injury in retaliation for

2 The Court has previously denied Defendants’ motion to

sever the claims. (Docs. 105, 117).

29a

the lawsuit Plaintiff had previously filed against

Defendant Burnside; and

Two equal protection claims under the Fourteenth

Amendment’s Equal Protection Clause: (10) nonMuslim inmates received sufficiently nutritious

meals, whereas Muslims observing Ramadan

received nutritionally inadequate meals, and (11)

Jewish prisoners were provided with proper kosher

meals while Muslim inmates were not provided with

religiously proper meals.

Defendants have moved for summary judgment as

to claims (1) through (10) only, and did not address

the equal protection claim regarding officials’ alleged

favorable treatment of Jewish prisoners over Muslim

prisoners at the GDCP in respect to religious diets.3

Accordingly, no recommendation is issued as to that

claim.

For the reasons set forth below, it is recommended

that Defendants’ motion for summary judgment be

DENIED as to Plaintiff’s Eighth Amendment claim

against

Defendant

Burnside

for

deliberate

indifference to Plaintiff’s shoulder injury and

Plaintiff’s retaliation claim against Defendant

Burnside. It is recommended that Defendants’ motion

3 Defendants address Plaintiff’s equal protection claim in a

footnote that refers only to “an equal protection claim based on

the contention that non-Muslim inmates receive three meals a

day during Ramadan.”. (Doc. 175-2, p. 15 n.4). The Court also

allowed Plaintiff to proceed with a claim based on Plaintiff’s

allegation that “Jewish prisoners are provided with proper

kosher meals while Muslim prisoners are not provided with

religiously proper meals.” (Doc. 84, p. 10).

30a

be GRANTED and summary judgment entered as to

all other claims.

II.

FACTUAL BACKGROUND

A. Religious Freedom Claims

1. Failure to Provide Diet that Complies with

Plaintiff’s Religious Obligations

Plaintiff is a Salafi Sunni Muslim, who was, at

all times relevant to his claims, incarcerated in the

Special Management Unit (“SMU”) of the Georgia

Diagnostic and Classifications Prison (“GDCP”). (Doc.

39-1, ¶ 21).4 Plaintiff has since been transferred to

Valdosta State Prison. (Doc. 152). In accordance with

his religious obligations, Plaintiff must not consume

meat that is not “Islamically clean (i.e. Halal—or

Kosher).” (Doc. 39-1, ¶ 23). To qualify as Halal, the

meat must be slaughtered and prepared in a way that

accords with the particular tenets of Plaintiff’s

Islamic faith. (Id.; Doc. 175-3, p. 28). “Fish or marine

animals” are “automatically Halal,” however. (Doc.

39-1, ¶ 24).

4 The fact that the operative complaint in this action,

Plaintiff’s first amended complaint (Doc. 39), is unverified does

not prevent the filing from serving as evidence, given that the

statements made therein are supported by Plaintiff’s deposition

testimony, affidavits, and verified filings submitted throughout

this litigation. See Sears v. Roberts, 922 F.3d 1199, 1206 (11th

Cir. 2019). For example, Plaintiff’s second amended complaint

(Doc. 85), which was filed without leave, was identical to the first

amended complaint and verified. See (Doc. 181-3, ¶ 8 (verifying

the statements made in the second amended complaint)); see also

(Doc. 1, p. 7).

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In addition to the manner in which the food is

prepared, Plaintiff’s adherence to the Hadith books

requires him “[t]o take meals not on the same

[utensils] that the unbelievers and the people of the

book [i.e., followers of Christianity or Judaism] eat off

of.” (Id., ¶¶ 25–27; Doc. 175-3, pp. 24–29). In other

words, Plaintiff’s religious beliefs prohibit him from

eating food that has been served on or prepared with

utensils, such as cutlery and serving trays, that have

been used to serve or prepare food that does not

conform with his religious beliefs. See (Doc. 175-3, p.

26).

The GDCP allows for inmates to choose between

two different vegan meal plans: the regular vegan

meal plan and the restricted vegan meal plan. (Doc.

1-4). At all times relevant to this action, Plaintiff has

participated in the restricted vegan meal plan. (Doc.

175-3, p. 30). The restricted vegan meal plan requires

all food served under the plan to be vegan—that is,

“free of animal products, by-products, or blood”—and

“prepared with separate utensils and equipment that

may not be used to prepare non-Restricted Vegan

meals.” (Doc. 1-4, p. 1). In addition, utensils and trays

utilized as part of the restricted vegan meal plan

“cannot be used for any other purpose and should be

stored separately and designated as use for

Alternative Entrée Meal Plans only.” (Id., p. 2).

Facility dishwashers cannot be used to clean the

utensils and trays used under the restricted plan. (Id.,

p. 3). Furthermore, all restricted vegan food must be

served on disposable plates and inmates provided

with disposable sporks, “unless special arrangements

have been made for reusable items (color-coded,

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special identification).” (Id., p. 3). Generally,

restricted vegan foods “should not come in contact

with other foods” and must be stored separately from

non- restricted vegan foods. (Id.).

Plaintiff alleges that the trays used to serve his

restricted vegan meals violated these requirements,

in that the trays were also used to serve nonrestricted vegan meals. (Doc. 39-1, ¶¶ 28–29). For this

alleged violation, Plaintiff has sued Defendants

Bishop, Bryson, Caldwell, Cannon, Chatman, Dozier,

Logan, Martin, McCloud, Powell, Sellers, Sutton, and

Thornton. (Id., ¶¶ 34, 111).

According to prison policy, the serving trays used

to serve restricted vegan food were required to be a

different color than the trays used to serve nonrestricted vegan food. (Id., ¶ 29). Plaintiff’s

allegations are unclear as to the exact color of the

different trays served to inmates in the SMU;

however, in his deposition, Plaintiff stated that

restricted vegan meals were “to be served on either

. . . a turquoise or a light brown tray or Styrofoam

trays,” whereas the regular vegan diet “was supposed

to be served on either the light brown tray or . . . a

bright yellow tray like the manila envelope color.”

(Doc. 175-3, pp. 26–27). Plaintiff claims, “during the

time I was there [at the SMU], they only fed the

restrictive vegan and vegan on the manila-colored

trays.” (Id., p. 27).

According to Plaintiff, he “[p]ut a small nick on the

side” of the trays provided to him to learn whether

other inmates who were not on the restricted vegan

plan received their food on the same trays as those on

the restricted plan. (Doc. 175-3, pp. 32–33). Plaintiff

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claims he determined that he was being served food

on non-conforming trays after discovering that other

inmates in his dormitory had received their nonrestricted vegan food on the nicked trays. (Id.).

Plaintiff has provided affidavits from inmates who

testified to that effect. See (Aff. of Chris Salmon, Doc.

11-3, p. 2; Affs. of Daniel Barfield, Doc. 11-6, pp. 2, 5).

Inmate Daniel Barfield, for example, stated, under

oath, that “food service put[] regular tray food onto

the vegan and restricted vegan trays.” (Doc. 11-6, p.

2). Plaintiff also claims that the restricted vegan trays

had “damage markings from being run through the

institution dishwasher,” and were not stacked

upright, causing contaminated water to stagnate on

the trays. (Doc. 39-1, ¶ 29).

Plaintiff also alleges that, during the 2016

Ramadan fast, he was served chicken and chili,

neither of which were Halal. (Id., ¶ 35). Plaintiff

names Defendants Sutton and Martin as responsible

for this alleged violation. (Id., ¶¶ 35, 111).

2. Insufficient

Caloric

Ramadan Fast

Intake

During

Plaintiff’s Islamic faith requires that he participate

in the annual month-long Ramadan fast, during

which he must abstain from consuming food and

drink between sunrise and sunset. (Doc. 39-1, ¶¶ 32,

35). In 2016, Ramadan lasted from June 7 to July 8.

(Id., ¶ 36). According to Plaintiff, prison policy

dictates that all male inmates receive 2800 calories

per day. (Id., ¶¶ 36–37). Plaintiff claims that he was

provided less than that amount during the 30 days of

Ramadan in 2016. (Id.). Specifically, because Muslims

must forgo their midday meal during the fast,

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Plaintiff claims that he was provided with only twothirds of his daily calorie requirement, or around

1,867 calories, during the fast. (Mot. for TRO, Doc.

140-1, p. 7). Plaintiff alleges that Defendants Bishop,

Bryson, Cannon, Chatman, Dozier, Logan, Martin,

McCloud, Powell, Sellers, and Sutton are liable for

this deprivation and that they either abrogated or

condoned the abrogation of the 2800-daily-calories

provision during Ramadan “[f]or no other reason

[than] because offenders are Muslims.” (Doc. 39-1,

¶ 37).

3. Modesty Violated During Escort to Shower

Area and Prison Yard

Plaintiff claims that his religious obligations under

the Sunni methodology of Islam require him to guard

his modesty by remaining covered “from [the] midstomach or the nav[e]l to the bottom of the knees,” or

the “awrah,”5 while in the presence of any individual

other than his spouse and children. (Docs. 39-1, ¶ 48;

175-3, pp. 64–65). Plaintiff alleges that prison policy

and practice at the SMU prevented him from

5 Since case law from courts in the Eleventh Circuit involving

similar facts describes the navel-to-knee region of the body as

the “awrah,” for the sake of convenience and consistency, this

Court shall do the same. See, e.g., Sims v. Jones, No. 4:16CV49WS/CAS, 2018 WL 1535483, at *1 (N.D. Fla. Mar. 29, 2018)

(describing “awrah” as the “area between navel and knees”);

Muhammad v. Crosby, No. 4:05CV193-WS, 2008 WL 2229746,

at *8 (N.D. Fla. May 29, 2008) (“Aurah, which is that part of the

male body from the navel to just over the knees . . . .”); see also

Lewis v. Ollison, 571 F. Supp. 2d 1162, 1166 (C.D. Cal. 2008)

(“Islam directs Muslim men to exercise modesty by covering from

others’ gaze their ‘awrah’ (the portion of the body from the navel

to the knee).”).

35a

exercising this religious mandate by forcing him to

wear only his boxers and shower shoes while being

escorted by officers from his cell to the shower area

and the prison yard, thus revealing his awrah to the

individuals escorting him and others in the prison.

(Docs. 39-1, ¶ 49; 175-3, pp. 65–66).

The policy at issue is GDC Standard Operating

Procedure IIB09-0004.VI.J.1.b., which provides:

b. Prior to being brought out of his cell for any

reason:

1) The offender must strip down to tee shirt,

boxers, and shower shoes.

2) The offender must hand each item out to the

officer.

3) The officer must thoroughly check each item

for contraband. Hand held metal detectors

should be utilized for checking the clothing.

4) The offender must be restrained with

handcuffs behind his back and with leg irons. At

least two (2) Correctional Officers must be

present and maintain maximum control and

supervision.

(Doc. 11-8, pp. 7–8).

According to Plaintiff, Defendants Chatman,

Sellers, Cannon, Powell, and Bishop have instructed

correctional officers, including Defendant Hunter,6 to

6 Defendant Hunter has not been served in this action, and

both the Court’s and the parties’ efforts to locate Defendant

Hunter have been exhausted, to no avail. As Defendant Hunter

has not been served, it is RECOMMENDED that the claims

against him be DISMISSED without prejudice pursuant to

36a

disregard the policy concerning how male inmates in

the SMU are to be dressed while being escorted from

their cells. (Doc. 39-1, ¶ 50). Defendants’ instructions

and actions, Plaintiff claims, in effect, serve to

abrogate the policy by not allowing him to leave his

cell in a t-shirt. (Id., ¶¶ 50–51; Doc. 181-2, p. 4).

Plaintiff further alleges that Defendants Dozier and

Bryson “condon[ed] and up[held]” those instructions.

(Doc. 39-1, ¶ 114). Moreover, Plaintiff claims that

Defendant Hunter ridiculed him while Plaintiff was

being escorted from his cell in the manner alleged by

telling Plaintiff that his “religious obligations don’t

mean anything, this is the United States.” (Id., ¶ 50).

Plaintiff argues that prison officials could use other

methods of “achiev[ing] their security purposes” while

being escorted, such as using metal detectors, body

scanning machines, or pat downs to search his person.

(Id., ¶ 51). He claims that the electronic methods of

searching him are “readily available” and serve as the

“least restrictive means to achieve their security

purposes.” (Id.).

4. Restricted Shower Use

Plaintiff, as a Sunni Muslim, must perform the

daily ghusl ritual, which involves bathing “each body

part” three times. (Doc. 39-1, ¶¶ 52–53). As an SMU

inmate, however, Plaintiff is only allowed to shower

Rule 4(m) of the Federal Rules of Civil Procedure. See (Doc. 150,

p. 2). In any case, as Defendant Hunter, a state employee at the

time of the events alleged, would be entitled to qualified

immunity from the single claim against him, he would, if he had

been served, also be entitled to summary judgment. See Section

V.B.4., infra.

37a

three times a week, on Monday, Wednesday, and

Friday, respectively. (Id., ¶ 55). For Plaintiff to

“properly perform[]” the compulsory five daily

prayers, his “body and clothing must be and remain

properly cleaned.” (Id., ¶ 54). Plaintiff claims that

only ghusl satisfies this requirement. (Id., ¶ 53).

Another Islamic ritual, wudu, which Plaintiff

describes as a “short version” of ghusl, does not satisfy

the cleanliness requirement, however. (Doc. 175-3,

pp. 58–59, 63). Wudu involves the washing of the

hands, face, nostrils, mouth, forearms, and feet three

times, and the head once. (Id., p. 58). Wudu can be

performed with either water, dust, or sand, and is

required “if one uses the restroom[,] passes wind[,]

comes into contact with pus or blood,” or “comes into

sexual contact with their spouse.” (Id., pp. 58–60; Doc.

39-1, ¶ 43). To perform ghusl, wudu is performed first,

then the right and left sides of the body are washed,

head to toe, three times. (Doc. 175-3, p. 59). Ghusl,

unlike wudu, requires a “large amount of water.” (Id.,

p. 63).

Plaintiff alleges that, although he is able to perform

wudu using the sink in his cell, he is unable to

perform the daily ghusl ritual due to the shower

restrictions on inmates in the SMU. (Doc. 175-3, p.

63). Plaintiff claims that Defendants Bishop, Powell,

Sellers, and Cannon refused to allow him to shower at

least once a day, “[d]espite [there] being showers

readily available in the dorms” in which he is housed.

(Doc. 39-1, ¶ 56). He also states that prisoners in the

general population unit and other facilities have

unrestricted access to the showers from 5:30 a.m. to

11:30 p.m. on weekdays, and to 1:00 a.m. on

38a

weekends. (Id., ¶ 57). The denial of the opportunity to

perform ghusl every day leaves his prayers “hindered

and ultimately not [accepted], i.e. void.” (Id. ¶ 53).

B. Equal Protection Claim

As discussed in Section II.A.2., above, Plaintiff

contends that he was not provided with calories

sufficient to supplement the caloric loss he and other

Muslims in the GDCP sustained during the Ramadan

fast. Plaintiff adapted these facts to the equal

protection context by alleging that, unlike Muslim

inmates observing Ramadan, non-Muslim inmates

received sufficient calories during the duration of the

fast. (Id., ¶¶ 33, 37). Plaintiff claims that Defendants

Bishop, Bryson, Caldwell, Chatman, Dozier, Logan,

Martin, Powell, Sellers, Sutton, and Thornton

deprived Muslim Ramadan observers of sufficient

calories with “prejudicial intent against Muslims,” in

violation of the Fourteenth Amendment’s Equal

Protection Clause. (Id., ¶ 33).

C. Eighth Amendment Claims

1. Conditions of Confinement Claims

i. Contaminated Food

Over half of the food served pursuant to Plaintiff’s

restricted vegan diet consists of beans. (Doc. 39-1,

¶ 41). These beans, Plaintiff claims, are “grown by

inmates at Rogers State Prison and collected in [50]

pound bag[]s,” where they are then “shipped ac[]ross

the State of Georgia.” (Id., ¶ 38). “Along with the

beans and vegetables,” however, “there are rocks,

sticks, dirt and other foreign objects.” (Id.).

39a

Plaintiff alleges that, on January 12, 2016, he bit

“down on a rock in the food,” breaking off a quarter of

one of his molars, “[r]esulting in a hole in the tooth”

and “a great amount of pain.” (Id., ¶ 40). The rock was

“[a]bout the size of a pea.” (Doc. 175-3, p. 67).

According to Plaintiff, both he and other inmates

have filed a “continuous bombardment of grievances

and complaints” regarding “the fact that food is still

being served with all said dangerous objects.” (Doc.

39-1, ¶ 39). Plaintiff also claims that he had

previously chipped a tooth in a similar incident

between six months and a year before the 2016

incident. (Doc. 175-3, p. 71). That incident, however,

is not part of the instant lawsuit. Plaintiff names

Defendants Caldwell, Cannon, Chatman, Martin,

Sutton, and Thornton as the parties responsible for

contaminating or permitting the contamination of the

food served at the GDCP.

ii. Provided with Nutritionally Inadequate

Meals

The factual basis of Plaintiff’s Eighth Amendment

claim against Defendants Bryson, Caldwell, Cannon,

Chatman, Dozier, Logan, Martin, McCloud, Sellers,

Sutton, and Thornton regarding the caloric and

nutritional deficiency of his meals generally mirrors

the facts of his Free Exercise claim. See Section

II.A.2., supra. In addition, Plaintiff alleges that the

food he was served was inedible and his restricted

vegan meals were not served with protein

supplements. (Doc. 39-1, ¶¶ 42–45). According to

Plaintiff, he was served gravy, which was “nothing

more than grea[s]e with salt in it,” and uncooked

bread and cabbage. (Id., ¶ 42). Plaintiff also alleges

40a

that he was often served cold evening meals,

particularly during Ramadan, and “[a] lot of times it

wasn’t cooked.” (Doc. 175-3, p. 40). Plaintiff claims

that the issues with his food caused him digestive

problems, specifically excessive flatulence, and that

the food served was nutritionally inadequate. (Doc.

39-1, ¶ 43).

2. Deliberate Indifference to Medical Needs

Claims

i. Damaged Tooth

As discussed in Section II.C.1.i., above, on January

12, 2016, Plaintiff allegedly broke his molar when he

bit into a small rock that was obscured in his food. The

damage to his tooth allegedly caused “explosive

amounts of pain throughout [P]laintiff’s mouth and

face.” (Id., ¶ 59). Following the incident, Plaintiff filed

a medical request form for dental treatment. (Id.,

¶ 62). Seven days later, on January 19, Plaintiff was

seen by Dr. Burnside, who referred Plaintiff to a

dentist and recommended Plaintiff take aspirin for

his pain. (Id., ¶¶ 68–70). Plaintiff contends, however,

that the aspirin “didn’t work” and was not readily

available, and that, when Dr. Burnside offered him

ibuprofen instead, Plaintiff informed him that

ibuprofen made him ill. (Id., ¶ 70–71). In response,

Dr. Burnside allegedly told Plaintiff to “take it or

leave it.” (Id., ¶ 71).

Plaintiff filed another medical request form on

February 2 and was seen by dentist Dr. Barron, a

since-terminated defendant in this action, on

February 9. (Id., ¶ 72; 175-4, p. 19). At the

appointment, Dr. Barron x-rayed and examined

41a

Plaintiff’s mouth. (Doc. 175-3, p. 94). After Dr. Barron

informed Plaintiff that the tooth needed to be

extracted, Plaintiff asked Dr. Barron to try to save the

tooth. (Id.). In an attempt to prevent the removal of

the tooth, Dr. Barron placed a temporary filling in

Plaintiff’s damaged tooth and told Plaintiff that if the

pain had not returned in two months, he would place

a permanent filling in the tooth. (Doc. 39-1, ¶ 76). Dr.

Barron informed Plaintiff, however, that if the pain

did return the tooth would have to be extracted. (Id.;

Doc. 175-3, p. 94; Barron Aff., Doc. 181-8, p. 10).

Plaintiff contends that filing another medical request

would have been futile, because the medical staff at

the prison were “already den[y]ing him” medical care

regarding the shoulder injury that is also a part of the

instant litigation. (Doc. 39-1, ¶ 77). Nevertheless, on

March 30, 2016, Plaintiff submitted a medical request

to inform Dr. Barron that his pain had not returned

and “it was almost time to put the [permanent] filling

in.” (Id., ¶ 79).

By April 18, 2016, however, Plaintiff’s tooth pain

had returned. (Id., ¶ 80). Consequently, Plaintiff

submitted at least two medical requests for dental

treatment between April 18 and April 27, 2016. (Id.,

¶¶ 80–83). On May 3, while at an appointment

concerning unrelated shoulder pain, Plaintiff was told

that he was on the waiting list for a dental

appointment. (Id., ¶ 84). Plaintiff filed two emergency

grievances for dental treatment, on May 4 and 18,

respectively, and he was seen by Dr. Barron on May

26. (Id., ¶¶ 85–86). By this time, Plaintiff was “unable

to eat properly without inflicting more pain on

himself.” (Id., ¶ 86). On May 26, 2016, a little over a

42a

month after the recurrence of Plaintiff’s tooth pain,

Plaintiff’s molar was removed, thus resolving the

issue. (Id., ¶ 86; Doc. 175-3, p. 96).

Plaintiff claims that his tooth “could have [been]

saved” and he would not have undergone needless

pain if his treatment had not been not delayed. (Doc.

39-1, ¶ 87). He names Defendants Adair, Bryson,

Burnside, Butts, Chatman, Dozier, Forts, Gore,

Lewis, Reid, and Sellers as the parties liable for his

deliberate indifference to medical needs claim.

ii. Injured Shoulder

Plaintiff’s second deliberate indifference claim

relates to an incident that occurred on January 9,

2016, when Plaintiff injured his left shoulder while

performing the reverse-dips exercise on the edge of

his bed. (Id., ¶ 89; Doc. 175-3, pp. 75–76). Plaintiff

described the pain he experienced when injuring his

shoulder as “like a sharp knife being stuck in the back

part of his arm.” (Doc. 39-1, ¶ 90). Plaintiff submitted

a medical request on January 12, 2016, and was seen

by Dr. Burnside on January 19. (Id., ¶ 90). Dr.

Burnside allegedly examined Plaintiff while Plaintiff

was still handcuffed behind his back, thus preventing

a proper examination of Plaintiff’s shoulder. (Id.,

¶ 91). At the same appointment, Dr. Burnside

prescribed ibuprofen, which causes Plaintiff to suffer

side effects, including a “sick stomach.” (Id.). Dr.

Burnside also told Plaintiff “to stay off of his arm.”

(Id.).

After seeing Dr. Burnside, Plaintiff continued to

suffer “unbearable” pain, resulting in Plaintiff

submitting another medical request on February 2,

43a

2016. (Id., ¶ 93). On February 16, Plaintiff was again

assessed by Dr. Burnside, who, again, did not conduct

a proper physical examination due to Plaintiff being

handcuffed behind his back, but did refer Plaintiff for

an x-ray, which was conducted on February 18, 2016.

(Id., ¶¶ 95, 97). Plaintiff takes issue with Dr.

Burnside’s conclusion that an x-ray was required,

arguing that an x-ray would reveal only broken bones,

not muscle, ligament, or tendon damage. (Id., ¶ 96).

Plaintiff contends that an MRI scan was required

instead. (Doc. 175-3, pp. 84–85). In fact, Plaintiff

claims that Dr. Burnside informed him that his “only

con[c]ern was to see if anything was broken.” (Doc. 391, ¶ 96). Plaintiff contends that he was never told

about the results of the x-ray. (Id., ¶ 97).

Plaintiff submitted further medical requests on

February 22 and March 2, which went unanswered.

(Id., ¶ 99; Medical Requests, Doc. 116-6, pp. 6–7). He

also informed other prison officials about his

condition, but was told that there was “‘nothing they

could do for me and I’d have to wait.’ Irregardless of

the fact they seen the plaintiff in physical pain.” (Doc.

39-1, ¶ 100). Plaintiff made similar complaints during

a 90-day classification review hearing on April 18,

2016. (Id., ¶ 106).

At this stage, Plaintiff’s pain was “obvious,” given

that “Plaintiff’s arm could not be put behind his back”

to be handcuffed “without a great amount of pain

being inflicted,” and he had lost the ability “to

properly use his arm.” (Id., ¶¶ 106, 108). Plaintiff

claimed that medical staff, including Dr. Burnside,

had “refused emphatically to provide any medical

treatment that would [alleviate] or assist Plaintiff in

44a

fixing his injured shoulder.” (Id., ¶ 108). It was only

when Plaintiff’s family submitted “certified letters to

Dr. Burnside’s supervisors” on April 28, 2016, that

Plaintiff received appropriate medical treatment. (Id.,

¶ 109).

On May 3, 2016, Plaintiff was “pulled to the main

prison” to be assessed by Dr. Fowlkes. (Id.). According

to Plaintiff, Dr. Fowlkes, in contrast to Dr. Burnside,

performed a physical examination while Plaintiff was

not handcuffed. (Id.). Dr. Fowlkes, after performing

the examination, “found that Plaintiff had suffered a

significant injury,” namely, a small tear in his rotator

cuff. (Id.; Doc. 175-3, p. 87). Dr. Fowlkes prescribed a

“steroid regimen” of methylprednisolone; meloxicam,

a pain medication; and omeprazole, a medication for

to protect Plaintiff’s stomach. (Doc. 39-1, ¶ 109;

Burnside Interrog. Resp., Doc. 165-15, p. 7). Plaintiff

was also referred for four rounds of physical therapy.

(Doc. 39-1, ¶ 109). Dr. Fowlkes did not refer Plaintiff

for an MRI as Plaintiff requested, however, though

Plaintiff does not take issue with that decision. (Doc.

175-3, p. 87). By July or August 2016, Plaintiff’s

shoulder injury had resolved. (Id., p. 90).

Plaintiff names Defendants Bishop, Burnside,

Chatman, Powell, and Williams as the parties

responsible for the alleged violation.

D. Retaliation Claim

Plaintiff alleges Defendant Dr. Burnside provided

the aforementioned inadequate medical care in

45a

retaliation for filing a lawsuit7 against him before

Plaintiff sought treatment for his tooth and shoulder

injury. (Doc. 39-1, ¶ 108). According to Plaintiff, on

January 19, 2016, at an assessment for his injuries,

after Plaintiff voiced his concerns to Dr. Burnside

regarding the prescription of ibuprofen, which, as

discussed, allegedly caused Plaintiff to suffer side

effects, Dr. Burnside told him, “take it or leave it, that

if you th[i]nk you’d put paperwork on me and think

there’s . . . .” (Id., ¶¶ 68, 71 (ellipses in original)). Dr.

Burnside, before finishing his sentence, then

dismissed Plaintiff from the room. (Id., ¶ 71). Later,

on March 29, 2016, while Defendant Burnside was

conducting his rounds, Plaintiff asked him about

obtaining further treatment for his shoulder injury.

(Docs. 116-1, p. 2; 169-2, p. 95). Defendant Burnside

allegedly responded, “if I wanted medical attention

that I’d better get the court to do it.” (Id.). Plaintiff

argues that, based on these statements, Defendant

Burnside’s inadequate treatment for his injuries was

a retaliatory response to the earlier-filed lawsuit.

III.

AVAILABLE RELIEF

A. Official-capacity Suit for Damages

Defendants, as state employees, are entitled to

immunity under the Eleventh Amendment from the

claims brought against them in their official

capacities. In suing Defendants in their official

capacities, Plaintiff is effectively suing the sovereign,

here, the State of Georgia. See Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989) (“[A] suit against

7 See Rodriguez v. Chatman, No. 5:15-cv-00002-MTT-CHW

(M.D. Ga. Jan. 5, 2015).

46a

a state official in his or her official capacity is not a

suit against the official but rather is a suit against the

official’s office. As such, it is no different from a suit

against the State itself.” (citations omitted)). But see

Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)

(“[O]fficial-capacity actions for prospective relief are

not treated as actions against the State.” (emphasis

added) (citing Ex parte Young, 209 U.S. 123 (1908))).

“[A]bsent waiver by the State or valid congressional

override, the Eleventh Amendment bars a damages

action against a State in federal court.” Graham, 473

U.S. at 169. As the State of Georgia has not waived

immunity, and Section 1983 was not meant to

abrogate a State’s Eleventh Amendment sovereign

immunity, see id. at 169 n.17 (citing Quern v. Jordan,

440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651

(1974)), Plaintiff is barred from suing Defendants in

their official capacities for damages in this action.

B. Religious Freedom Claims

As relief for the alleged violations of his rights

under RLUIPA and the Free Exercise Clause of the

First Amendment, Plaintiff has requested nominal

damages, injunctive and declaratory relief, attorney’s

fees, and court and discovery costs. (Doc. 39-1, pp. 31–

36). Plaintiff has also included a broad prayer for any

“such other relief as it may appear that the Plaintiff

is entitled to.” (Id., p. 36). In light of the governing

case law, Plaintiff cannot recover for his RLUIPA

claims for either legal or equitable relief; therefore,

his claims under RLUIPA are no longer alive. All that

remains of Plaintiff’s religious freedom claims is his

individual-capacity suit for nominal damages to

recover for the alleged First Amendment violations.

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1. Individual-capacity Suit for Damages

i. Prison Litigation Reform Act

First of all, since Plaintiff has not alleged a more

than de-minimis physical injury as part of his

religious freedom claims, any potential claims for

compensatory or punitive damages are barred by the

Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(e). The PLRA bars a civil action “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). In the Eleventh

Circuit, a prisoner cannot recover either

compensatory or punitive damages for constitutional

violations unless he can show a physical injury that is

more than de minimis. See Brooks v. Warden, 800

F.3d 1295, 1307 (11th Cir. 2015). If the prisoner fails

to make the requisite showing of a physical injury,

nominal damages remain available to recognize the

constitutional violation. See id. at 1307–08.

Here, only Plaintiff’s allegations regarding his

inadequate nutrition during the 2016 Ramadan fast

present a potential physical injury; however, the

injuries Plaintiff allegedly sustained were, at most, de

minimis. Plaintiff’s religious beliefs require him to

forgo consumption of any food or drink during

daylight hours during the annual Ramadan fast. In

that case, while observing Ramadan, Plaintiff must

obtain all of his daily calories and nutrition between

sundown and sunrise. Plaintiff claims that he was not

provided with adequate nutrition during this period,

and the food that he was served was cold and “[a] lot

of times it wasn’t cooked.” (Doc. 175-3, p. 40). As a

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result, Plaintiff allegedly experienced “digestive

problems,” specifically “br[e]aking wind” (Docs. 39-1,

¶ 42; 181-2, p. 3), and lost between 10 and 20 pounds8

(Doc. 175-3, pp. 41–45). Plaintiff’s allegations of minor

digestive problems and a temporary 20-pound weight

loss (his weight increased by 30 pounds within a few

months (Doc. 175-3, p. 45)) suggest that Plaintiff

suffered no more than de minimis injuries, if any

injury at all. See Wooden v. Barringer, No. 1:16-CV378-WTH-GRJ, 2018 WL 6048259, at *8 (N.D. Fla.

Apr. 25, 2018) (finding a five-pound weight loss to be

de minimis, and collecting cases that held similarly);

Zerby v. McNeil, No. 3:09CV284/LC/MD, 2010 WL

5019232 (N.D. Fla. Nov. 2, 2010) (finding an 18-pound

weight loss to be de minimis); cf. Talib v. Gilley, 138

F.3d 211, 214 n.3 (5th Cir. 1998) (finding it “doubtful”

that a loss of around 15 pounds over a five-month

period “denied anything close to a minimal measure

of life’s necessities”).

Accordingly, without the requisite showing of a

greater than de minimis physical injury, the PLRA

bars Plaintiff’s individual-capacity claims for

compensatory and punitive damages as to his

8 Plaintiff’s testimony that he lost around 20 pounds during

Ramadan appears to relate to the 2018 fast, not the 2016 fast, as

relevant to the instant case. See (Doc. 39-1, ¶¶ 35–36 (discussing

the claims in the context of the 2016 Ramadan fast, which lasted

from June 7 to July 8, 2016)); see also (Doc. 1, ¶ 35). In light of

Plaintiff’s general assertion that his caloric intake during the

2016 fast was reduced to levels violative of the Constitution, this

testimony is liberally construed to apply with equal force to the

events alleged in Plaintiff’s complaint and amended complaint.

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religious freedom claims, leaving available only his

prayer for nominal damages.

ii. RLUIPA

Next, binding Supreme Court and Eleventh Circuit

case law bars Plaintiff from obtaining monetary

damages under RLUIPA against officials sued in

either their individual or official capacities. See

Sossamon v. Texas, 563 U.S. 277, 288 (2011) (finding

that RLUIPA does not allow a plaintiff to recover

monetary damages against a State); Smith v. Allen,

502 F.3d 1255, 1275 (11th Cir. 2007) (holding that

RLUIPA does not allow a plaintiff to recover

monetary damages against individual defendants),

abrogated on other grounds by Sossamon, 563 U.S.

277. RLUIPA, therefore, constitutes a separate and

distinct bar to Plaintiff’s action for monetary

damages, including nominal damages, against

Defendants in their individual and official capacities.

2. Equitable Relief

Both Plaintiff’s official- and individual-capacity

suits for injunctive and declaratory relief, under both

RLUIPA and the First Amendment, are moot, based

on his transfer to a different correctional facility.

The general rule in the Eleventh Circuit is that an

inmate’s transfer or release from prison moots his

claims for injunctive and declaratory relief. See

Smith, 502 F.3d at 1267 (citing McKinnon v.

Talladega Cty., 745 F.2d 1360, 1363 (11th Cir. 1984);

Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir.

1986)); Spears v. Thigpen, 846 F.2d 1327, 1328 (11th

Cir. 1988); Francis v. Silva, No. 11-24070-CIV, 2012

WL 3871863, at *5 (S.D. Fla. Sept. 6, 2012) (official

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capacity) (citing Powell v. Barrett, 246 F. App’x 615,

619 (11th Cir. 2007)). Where the dispute is “capable

of repetition, yet evading review,” however, there is a

continuing controversy to be resolved by the Court,

and the plaintiff’s claims for equitable relief are not

mooted by the transfer. See Sierra Club v. Martin, 110

F.3d 1551, 1554 (11th Cir. 1997). The “capable of

repetition, yet evading review,” exception applies

when (1) there is “a reasonable expectation or a

demonstrated probability that the same controversy

will recur involving the same complaining party, and

(2) the challenged action is in its duration too short to

be fully litigated prior to its cessation or expiration.”

Id. (citing Murphy v. Hunt, 455 U.S. 478, 482–83

(1982)).

Plaintiff was transferred from the SMU of the

GDCP to Valdosta State Prison on June 30, 2018,

where he currently resides. (Doc. 152). Therefore,

Plaintiff’s claims for injunctive and declaratory relief

are moot unless those claims satisfy the “capable of

repetition, yet evading review,” exception. Plaintiff’s

claims, however, do not qualify for the exception.

First, Plaintiff’s claim that he was served restricted

vegan food that had been prepared with and served

on utensils used to prepare and serve non-restricted

vegan food is, despite Plaintiff’s contrary assertion,

moot. Plaintiff argues that, because he is still on the

restricted vegan diet at Valdosta State Prison, his

religious freedom claims relating to that diet still

present active controversies sufficient to defeat

mootness. (Resp. to Mot. for Summ. J., Doc. 181-2, p.

9). Plaintiff does not claim, however, that his

restricted vegan food is still being served to him on

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trays and prepared with utensils that do not conform

to his religious mandates. On the contrary, Plaintiff

explicitly testified that these practices occurred only

during his time in the SMU. (Doc. 175-3, p. 29 (“Q.

When did this happen? A. All throughout my SMU

time through, 2011 to 2018.”)). Furthermore, the

record does not contain any evidence or allegations

that relate to potential constitutional or RLUIPA

violations concerning the use of non-conforming

utensils at Valdosta State Prison. Nor is there any

suggestion that any of the defendants named in this

action are responsible for any violation of Plaintiff’s

rights that may have occurred at Valdosta State

Prison. As it does not appear that Plaintiff’s religious

freedom claims for equitable relief regarding the

manner in which his restricted vegan food was

prepared and served remain active controversies,

those claims are mooted by his transfer from the

SMU.

Plaintiff’s other claims for injunctive and

declaratory relief are also moot following his transfer

from the SMU. Plaintiff has not alleged similar

deprivations of appropriate nutrition during

Ramadan since his move to Valdosta State Prison.9

9 The 2018 Ramadan fast fell during the months of May and

June. See (Doc. 175-3, pp. 34–35). Since Plaintiff was transferred

to Valdosta State Prison in late June, after the fast had ended,

no facts relating to the observance of Ramadan at Valdosta State

could have possibly been revealed through discovery. The fact

remains, however, that, regardless of the reason why, no

allegations of a continuing harm related to his caloric intake

during Ramadan are in evidence. The claims for injunctive and

declaratory relief related to Plaintiff’s Ramadan observance are,

therefore, moot.

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Nor does Plaintiff claim that he is unable to perform

the ghusl or wudu cleaning ritual at Valdosta State.

In fact, Plaintiff is now housed in general population,

which, he admits, in contrast to his incarceration in

the SMU, allows him to shower “at will.” (Doc. 175-3,

p. 22). Similarly, Plaintiff has not claimed that

officials at Valdosta State Prison force him to reveal

his awrah in front of others.

In light of Plaintiff’s transfer from the SMU and

failure to show that the alleged RLUIPA and First

Amendment violations have continued at his new

place of incarceration, Plaintiff’s claims for injunctive

and declaratory relief relating to all of his religious

freedom allegations are mooted by his transfer from

the SMU. See Smith, 502 F.3d at 1267. This leaves

Plaintiff with no remedy for his claims under

RLUIPA. Therefore, the only remaining relief

Plaintiff can potentially obtain for his religious

freedom claims is for nominal damages under the

First Amendment.

C. Other Claims

As for Plaintiff’s Eighth Amendment, retaliation,

and equal protection claims, only Plaintiff’s Eighth

Amendment claims regarding his shoulder injury and

broken tooth present an injury significant enough to

overcome the PLRA’s greater-than-de-minimis

requirement.

First, the summary judgment record presents

evidence, sufficient to establish a genuine issue of

material fact, that Plaintiff’s shoulder injury meets

the PLRA’s physical injury standard. There is

evidence to indicate that when Plaintiff was finally

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seen by Dr. Fowlkes, four months after his injury, he

was diagnosed with an inflamed rotator cuff. (Doc.

169-2, p. 44). Rather than “fleeting pain” or “mere

discomfort,” which are considered de minimis, at best,

see Martelus v. Hattaway, No. 3:17-CV-242-LC/MJF,

2019 WL 1245865, at *16 (N.D. Fla. Feb. 14, 2019),

Plaintiff’s torn rotator cuff allegedly caused Plaintiff

significant pain and a loss of mobility in his shoulder

for more than four months before he received the

treatment prescribed by Dr. Fowlkes. (Doc. 169-2, pp.

44–45). Dr. Fowlkes prescribed Plaintiff with a

variety of treatment for the injury, including physical

therapy, steroids, and pain medication. (Doc. 39-1,

¶ 109). Following this treatment, Plaintiff’s shoulder

injury was resolved within two or three months. (Doc.

175-3, p. 90). On these facts, a reasonable jury could

determine that Plaintiff’s torn rotator cuff was a

greater than de minimis physical injury under the

PLRA.

Plaintiff’s dental injury also meets the PLRA’s

physical injury requirement. As a consequence of

biting a pea-sized rock left in his food, Plaintiff’s

molar allegedly broke, resulting in the eventual

removal of the damaged tooth. Plaintiff alleges that

he suffered “a great amount of pain” as a result. (Doc.

39-1, ¶ 40). Defendants contend that Plaintiff suffered

no more than discomfort as a result of the alleged

injury, thus falling short of the PLRA standard. (Doc.

175-2, p. 12 (citing Wooden v. Barringer, No. 1:16-CV378-WTH-GRJ, 2018 WL 6048259, at *7 (N.D. Fla.

Apr. 25, 2018) (“Discomfort does not equate to

physical injury.”))). However, the fact that the

damage to his molar was significant enough to result

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in the removal of the tooth by a dentist is indicative

of the type of injury considered by courts in this

Circuit to be greater than de minimis. See, e.g.,

Samuel v. Johnson, No. 3:12CV218/RV, 2013 WL

6859083, at *7–10 (N.D. Fla. Dec. 30, 2013) (finding

under the standards of both the Eighth Amendment

and the PLRA that “[t]he evidence of the injuries

sustained by Plaintiff, the destruction of his tooth in

particular, is enough to consider Plaintiff’s injuries to

be more than de minimis in nature”).

Given that Plaintiff’s shoulder and dental injuries

are considered physical injuries under the PLRA,

Plaintiff may seek compensatory and punitive

damages in recovery. However, because Defendants

are entitled to qualified immunity from Plaintiff’s

claim regarding the dental injury, see Section

V.D.2.ii., infra, Plaintiff cannot recover such damages

in this action.

In addition, Plaintiff’s transfer from the SMU

moots his prayers for injunctive and declaratory relief

as to the claims discussed in this subsection,

including the Eighth Amendment claims related to

the damaged tooth. See Smith, 502 F.3d at 1267.

Moreover, Plaintiff’s allegations as to these claims do

not suggest any continuing harm.

IV.

SUMMARY JUDGMENT STANDARD

A party is entitled to summary judgment “if the

movant shows that there is no genuine dispute as to

any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“An issue of fact is ‘material’ if it is a legal element of

the claim under the applicable substantive law which

55a

might affect the outcome of the case.” Allen v. Tyson

Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A factual dispute is “genuine” if the evidence

is such that a reasonable jury could return a verdict

for the nonmoving party; however, “the mere

existence of a scintilla of evidence in support of the

position will be insufficient.” Johnson v. Bd. of

Regents of Univ. of Georgia, 263 F.3d 1234, 1243 (11th

Cir. 2001) (quoting City of Delray Beach v.

Agricultural Ins. Co., 85 F.3d 1527, 1530 (11th Cir.

1996)).

The party moving for summary judgment bears the

burden of informing the Court of the basis for its

motion, and of citing “the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any,” that support

summary judgment. Celotex Corp. v. Catrett, 477 U.S.

317, 322–24 (1986). In resolving motions for summary

judgment, the Court must view the evidence in the

light most favorable to the nonmoving party, Tolan v.

Cotton, 572 U.S. 650, 657 (2014), which requires the

Court to believe the evidence provided by the

nonmovant and draw all justifiable inferences in the

nonmovant’s favor, Anderson, 477 U.S. at 255.

“Inferences based on speculation,” however, “will not

suffice to overcome a motion for summary judgment.”

Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016)

(citation and internal quotation omitted).

QUALIFIED IMMUNITY

At this stage of proceedings, Plaintiff has

adequately established that Defendant Burnside

acted deliberately indifferent to Plaintiff’s shoulder

56a

injury, in violation of the Eighth Amendment, and

retaliated against Plaintiff for filing a civil rights

action against him. All other defendants, however,

are entitled to qualified immunity from Plaintiff’s

respective claims against them.

A. Qualified Immunity Standard

Qualified immunity protects government officials

sued in their individual capacities “from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

doctrine of qualified immunity “balances two

important interests—the need to hold public officials

accountable when they exercise power irresponsibly

and the need to shield officials from harassment,

distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009). A government official enjoys the

protection of qualified immunity even if his error is

based on “a mistake of law, a mistake of fact, or a

mistake based on mixed questions of law and fact.” Id.

(internal quotation marks omitted) (quoting Groh v.

Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,

dissenting)). In essence, “qualified immunity operates

‘to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful.’” Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier v.

Katz, 533 U.S. 194, 206 (2001)).

A threshold matter in deciding whether an official

is entitled to qualified immunity is whether the

defendant has established that “the allegedly

unconstitutional conduct occurred while he was

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acting within the scope of his discretionary

authority.” Harbert Int’l, Inc. v. James, 157 F.3d 1271,

1281 (11th Cir. 1998) (citation omitted). In the

qualified immunity context, an official acts within his

discretionary authority when his challenged actions

occurred during the performance of legitimate jobrelated functions, “through means that were within

his power to utilize.” Holloman v. Harland, 370 F.3d

1252, 1266 (11th Cir. 2004). Once the defendant has

made this showing, “the burden shifts to the plaintiff

to show that qualified immunity is not appropriate.”

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

Here, it is clear that Defendants’ challenged conduct

was performed within their respective discretionary

authorities as officials or employees of the Georgia

Department

Corrections

(“GDC”).

Since

Defendants have shown that their alleged actions

were discretionary acts performed as part of their jobs

in the GDC, the burden shifts to Plaintiff to show that

Defendants are not entitled to summary judgment on

qualified immunity grounds.

To show that an official is not entitled to qualified

immunity, the plaintiff must present evidence

demonstrating (1) “that the official’s alleged conduct

violated a constitutionally protected right,” and (2)

“that the right was clearly established at the time of

the misconduct.” Melton, 841 F.3d at 1221 (citing

Pearson, 555 U.S. at 232). Both elements must be

satisfied to overcome a defense of qualified immunity,

see id. (citing Grider v. City of Auburn, 618 F.3d 1240,

1254 (11th Cir. 2010)), and the Court’s determination

of the two elements may be conducted in any order,

Pearson, 555 U.S. at 236. Where a defendant has not

58a

violated a constitutional right, however, it is not

necessary to address the clearly-established prong,

and vice versa. See id.; Melton, 841 F.3d at 1225

(citing Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir.

2000) (“[W]hether a defendant has violated a

constitutional right at all is a ‘necessary concomitant’

to the question of qualified immunity: if a defendant

has not violated the law at all, he certainly has not

violated clearly established law.”)).

B. Religious Freedom Claims

1. Free Exercise Standard

The First Amendment’s Free Exercise Clause

provides, “Congress shall make no law . . . prohibiting

the free exercise [of religion].” U.S. Const. amend. I.

This constitutional mandate “requires government

respect for, and noninterference with, the religious

beliefs and practices of our Nation’s people,” Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005), including

prisoners, see Bell v. Wolfish, 441 U.S. 520, 545 (1979)

(“[C]onvicted prisoners do not forfeit all constitutional

protections by reason of their conviction and

confinement in prison.”); see also O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (“Inmates clearly

retain protections afforded by the First Amendment,

including its directive that no law shall prohibit the

free exercise of religion.” (citations omitted)). In

contrast to non-incarcerated persons, who enjoy broad

rights under the Free Exercise Clause, prisoners’ freeexercise rights are often circumscribed. See Hakim v.

Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000) (“Unlike

the strict standards of scrutiny applicable to the

constitutional rights of persons in free society, the

Supreme Court has adopted a deferential standard

59a

for determining whether a prison regulation violates

an inmate’s constitutional rights.”). These limitations

“arise both from the fact of incarceration and from

valid penological objectives—including deterrence of

crime, rehabilitation of prisoners, and institutional

security.” O’Lone, 482 U.S. at 348.

To establish that a prison official violated his rights

under the Free Exercise Clause, a prisoner must show

that the official imposed a “substantial burden” on his

ability to practice his religion. See Hoever v. Belleis,

703 F. App’x 908, 912 (11th Cir. 2017) (citing Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 565 (1993)). “[T]he Supreme Court has made

clear that the substantial burden hurdle is high and

that determining its existence is fact intensive.”

Church of Scientology of Georgia, Inc. v. City of Sandy

Springs, Ga., 843 F. Supp. 2d 1328, 1353–54 (N.D. Ga.

2012). In the Eleventh Circuit, an official’s actions

substantially burden an inmate’s free exercise of

religion when “the conduct complained of ‘completely

prevents the individual from engaging in religiously

mandated activity, or . . . requires participation in an

activity prohibited by religion’ and, at a minimum,

must have ‘something more than an incidental effect

on religious exercise.’” Id. (quoting Midrash Sephardi,

Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th

Cir. 2004)).

The prison official can defend against allegations that

his actions substantially burdened the inmate’s

religious practice by demonstrating that the conduct

was “reasonably related to legitimate penological

interests.” O’Lone, 482 U.S. at 348. In other words,

the challenged limitations on the prisoner’s free

60a

exercise of religion violate the First Amendment only

if they are unreasonable in light of the deference owed

to the valid interests of the state prison

administration. See Hakim, 223 F.3d at 1247.

In the context of a challenge to the constitutionality

of a prison regulation, courts in the Eleventh Circuit

determine the reasonableness of the regulation by

applying the four Turner factors:10

(1) whether there is a valid, rational connection

between the regulation and a legitimate

governmental interest put forward to justify it; (2)

whether there are alternative means of exercising

the asserted constitutional right that remain open

to the inmates; (3) whether and the extent to which

accommodation of the asserted right will have an

impact on prison staff, inmates, and the allocation

of prison resources generally; and (4) whether the

regulation represents an exaggerated response to

prison concerns.

Johnson v. Brown, 581 F. App’x 777, 780 (11th Cir.

2014) (quoting Hakim, 223 F.3d at 1247–48); see

Turner v. Safley, 482 U.S. 78, 89–91 (1987).

10 The Turner factors generally do not serve as a “‘least

restrictive alternative’ test: prison officials do not have to set up

and then shoot down every conceivable alternative method of

accommodating the claimant’s constitutional complaint. But if

an inmate claimant can point to an alternative that fully

accommodates the prisoner’s rights at de minimis cost to valid

penological interests, a court may consider that as evidence that

the regulation does not satisfy the reasonable relationship

standard.” Turner v. Safley, 482 U.S. 78, 90–91 (1987) (citation

omitted).

61a

2. Failure to Provide Diet that Complied with

Plaintiff’s Religious Obligations

Plaintiff has not shown that his free exercise rights

were violated when Defendants allegedly provided

him with the wrong color serving trays on an

unspecified number of occasions and served Plaintiff

non-Halal meat during the 2016 Ramadan fast.

i. Mixing of Serving Trays Between

Restricted Vegan Plan and Other Meal

Plans

To recover for the serving-tray claim, Plaintiff has

brought suit against 13 of the 22 named defendants

in this action: Defendants Bishop, Bryson, Caldwell,

Cannon, Chatman, Dozier, Logan, Martin, McCloud,

Powell, Sellers, Sutton, and Thornton. Plaintiff’s

scatter-shot approach to identifying the parties

responsible for the alleged First Amendment violation

is misguided, however, as Plaintiff has failed to

identify any conduct by any defendant that relates to

the allegation, let alone rises to the level of a

constitutional violation.

Furthermore, to the extent that Plaintiff has

sought to hold defendants liable in their supervisory

roles, it is well-established in the Eleventh Circuit

that “[s]upervisory officials cannot be held liable

under § 1983 for unconstitutional acts by their

subordinates based on respondeat-superior or

vicarious-liability principles.” Piazza v. Jefferson Cty.,

923 F.3d 947, 957 (11th Cir. 2019) (citing Hartley v.

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). Since

Plaintiff has neither shown that any supervisory

official named in this action personally participated

62a

in the alleged constitutional violation, nor established

a “causal connection” between the supervisor’s

conduct and the violation, Plaintiff cannot hold any

supervisory official liable for the alleged violation of

his religious free exercise rights. See id.

Plaintiff’s claim also fails on the merits. The fact

that Plaintiff may have been provided with serving

trays of a different color to what he was expecting,

presents, at most, a mere inconvenience on his right

to free exercise, not a substantial burden. See

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d

1214, 1227 (11th Cir. 2004) (“[A] ‘substantial burden’

must place more than an inconvenience on religious

exercise; a ‘substantial burden’ is akin to significant

pressure which directly coerces the religious adherent

to conform his or her behavior accordingly.”). The

prison administration had a policy in place that

accommodated

Plaintiff’s

specific

religious

obligations. Under the policy, all food served pursuant

to the restricted vegan meal plan was required to be

prepared separately from all other food, only utensils

designated for use with restricted vegan food were to

be used to prepare and serve that food, and all trays

used to serve restricted vegan food were, at least in

Plaintiff’s case, to be color-coded. See (Doc. 1-4).

Plaintiff has provided no evidence that this procedure

was not followed.

Furthermore, even if Plaintiff’s conclusory

allegations were accepted as true, the color-coding

policy was breached on an unspecified number of

occasions by inadequately identified prison officials.

Such a slight burden on Plaintiff’s religious exercise

does not rise to the level of a constitutional violation.

63a

See McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d

Cir. 2004) (“[T]here are some burdens so minor that

they do not amount to a violation [of the Free Exercise

Clause.]”); Rapier v. Harris, 172 F.3d 999, 1006 n.4

(7th Cir. 1999) (“De minimis burdens on the free

exercise of religion are not of constitutional

dimension. . . . Thus, the prison officials’ failure to

accommodate Mr. Rapier’s standing request for nonpork meals on three isolated occasions does not give

rise to liability for a constitutional violation.”

(citations omitted)).

As Plaintiff has not established that his

constitutional rights were violated when Defendants

purportedly served food to Plaintiff on the wrong

colored tray on an unspecified number of occasions,

Defendants are entitled to qualified immunity from

Plaintiff’s free exercise claim.

ii. Serving of Non-Halal Meat

As to Plaintiff’s claim that he was served non-Halal

meat, namely, chicken and chili, during Ramadan in

2016, Plaintiff’s religious exercise was not

substantially burdened.

Liberally construed, Plaintiff, in his amended

complaint, stated that he was served chicken and chili

on two occasions, June 7 and 13, 2016, respectively,

although there is some confusion as to the exact dates.

(Doc. 39-1, ¶ 35). For example, Plaintiff stated in a

grievance that he was provided “chicken strips” on

June 17, 2016. (Doc. 169-2, p. 102). Another inmate,

Daniel Barfield, filed a grievance, in which he stated

that, on June 16, 2016, inmates on the vegan and

restricted vegan plans were provided with chicken

64a

strips, and, on June 19, 2016, the vegan and restricted

vegan inmates were provided with “ground beef chili,”

not vegan chili. (Doc. 11-6, p. 4); see also (Decl. of

Daniel Barfield, Doc. 11-6, p. 2 (verifying “complaints

about food service putting regular tray food onto the

vegan and restricted vegan trays”)).

Regardless of the inconsistent reports concerning

the dates on which Plaintiff was served chicken and

(possibly beef) chili, the evidence, even viewed in the

light most favorable to Plaintiff, indicates that the

issue occurred only twice during the 2016 Ramadan

fast. Similar to the serving-tray issue, these two

isolated incidents constituted a mere inconvenience

on religious exercise, as opposed to a substantial

burden. See Midrash, 366 F.3d at 1227. Although

Plaintiff was presented with the classic Hobson’s

choice between following his religious precepts by

refusing to eat the meals and abandoning his beliefs

by eating non-Halal meat, see Holt v. Hobbs, 135 S.

Ct. 853, 862 (2015); Abdulhaseeb v. Calbone, 600 F.3d

1301, 1317 (10th Cir. 2010), he was faced with the

choice on only two occasions, occurring several days

apart. Such a temporary and slight infraction on

religious exercise is generally not considered a

“substantial” burden. See, e.g., Wilkinson v. GEO

Grp., Inc., 617 F. App’x 915, 918 (11th Cir. 2015)

(finding that the temporary deprivation of a religious

artifact did not substantially burden the inmate’s

religious practice); Lewis v. Ollison, 571 F. Supp. 2d

1162, 1170 (C.D. Cal. 2008) (considering a temporary

shower policy that would have required the inmate to

walk through the prison in boxers and shower shoes,

in violation of his religious tenets, imposed, at most,

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an inconvenience on his free exercise rights); Omar v.

Casterline, 414 F. Supp. 2d 582, 593 (W.D. La. 2006)

(finding that the refusal to serve or let the inmate

retain his meals after sunset on two days during

Ramadan was, at most, “a de minimis impact on his

free exercise rights”).

As Plaintiff has not demonstrated that the serving

of non-Halal meat on two occasions violated the Free

Exercise Clause, Defendants enjoy qualified

immunity from the claim.

3. Insufficient

Caloric

Ramadan Fast

Intake

During

Plaintiff has not established that his caloric intake

during the 2016 Ramadan fast imposed a substantial

burden on his religious exercise.

As an initial matter, the parties dispute the total

amount of calories Ramadan observants at the prison

lose during the fast. According to Senior Dietician at

Georgia Correctional Industries, which provides the

menus for GDC facilities, Samantha Minardo, “[t]he

28-day average calorie intake target for male inmates

is 2700 calories,” and inmates observing Ramadan

“receive approximately 295-419 [fewer calories] per

day” by missing their midday meal. (Doc. 175-4, pp.

2–3). Therefore, according to Defendants’ estimate,

Muslim prisoners fasting during Ramadan received

around 2,281 to 2,405 calories per day, or between 84

and 89% of the 2,700-calorie diet.

Plaintiff, on the other hand, argues that male

inmates are supposed to receive 2,800 calories each

day, but receive “3[3].33%,” or one-third, fewer

calories per day during Ramadan. (Docs. 39-1, ¶¶ 36–

66a

37; 140-1, p. 7). By Plaintiff’s estimate, then, he

received only 1,867 calories per day during the

Ramadan fast. As evidence that he must receive at

least 2,800 calories per day, Plaintiff has provided an

article purportedly written by Alyssa Guzman, an

“eHow Contributor,” printed from the website

ehow.com. (Doc. 1-5). In the article, Guzman claims

that the GDC requires male inmates to receive 2,800

calories per day, not 2,700, as suggested by

Defendants. (Id.). Although unverified, Guzman’s

statement is supported by an affidavit from Food

Service Director Frederick Sutton, a defendant in this

case, which states that kitchen staff “always follow

the plating guide for a 2800 calorie diet.” (Doc. 18124, p. 17). For purposes of summary judgment, all

evidence provided by Plaintiff, the nonmovant, must

be believed, see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986); therefore, at this stage in the

proceedings, Plaintiff’s assertion that he must receive

at least 2,800 calories per day is accepted as true.

Plaintiff’s contention that he lost one-third of his

daily calories during Ramadan by forgoing his midday

meal cannot be accepted as true, however, as it is not

supported by evidence and is merely speculative. The

allegation that he lost one-third of the 2,800 calories

during Ramadan appears to have been deduced from

the fact that he missed one of his three meals, the

midday meal, each day while observing the fast.

Plaintiff, however, has provided no evidence that the

midday meal constituted one-third of his daily caloric

intake during the fast. In contrast, Minardo, a

dietician, in a sworn declaration, stated that

Ramadan observers received “approximately 295-419

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[fewer] calories” per day during the fast, which, on a

diet of 2,800 calories, equates to a loss of between 11

and 15% of a male inmate’s daily calories. (Doc. 1754, pp. 2–3). Under Minardo’s estimates, then, Plaintiff

received between 2,381 and 2,505 calories per day

during Ramadan, and Plaintiff has presented no

evidence that indicates otherwise.

Even accepting as true Minardo’s lowest

estimation, Plaintiff has not demonstrated that the

provision of only 2,381 calories per day

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