Respondents Brief — Hjalmar Rodriguez, Jr., Petitioner v. Edward H. Burnside, et al.

No. 22-594

================================================================================================================

In The

Supreme Court of the United States

----------------------------------------------------------------------HJALMAR RODRIGUEZ, JR.,

Petitioner,

v.

EDWARD H. BURNSIDE, et al.,

Respondents.

----------------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

----------------------------------------------------------------------BRIEF IN OPPOSITION

----------------------------------------------------------------------LORETTA PINKSTON-POPE

Deputy Attorney General

ROGER CHALMERS

Senior Asst. Attorney General

ELLEN CUSIMANO

Asst. Attorney General

CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

ROSS W. BERGETHON

Deputy Solicitor General

WAYNE R. BECKERMANN

Asst. Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents

i

QUESTION PRESENTED

Petitioner Hjalmar Rodriguez is an inmate in

Georgia’s Department of Corrections, thanks to, among

other things, a conviction for strangling another man

in a motel room. While incarcerated, he then killed

another inmate, precipitating his transfer to a highsecurity facility. That facility has some prison cells

equipped with showers and some not. While housed in

cells without attached showers, Rodriguez, like all inmates, was allowed to shower three times a week in a

common shower, under specific security protocols.

Those protocols limit inmates to wearing shoes and

underwear while traveling to and from the shower.

Rodriguez asserts that his religion requires daily

shower access and that he keep his upper body covered

on the way to and from his cell. After officials denied

Rodriguez’s request to transfer him to a showerequipped cell, he sued, seeking damages based on the

prison’s refusal to provide daily showers and change

its policy regarding travel to and from the showers.

The question presented is whether it is clearly

established law that declining to provide a dangerous

inmate with daily shower access and requiring he wear

only shoes and underwear during transport violates

the Free Exercise Clause.

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

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

iv

Introduction .........................................................

1

Statement ............................................................

5

A.

Governing Legal Framework .....................

5

B.

Factual Background ..................................

6

C.

Proceedings Below .....................................

8

Reasons for Denying the Petition ........................ 12

I.

This case does not present a recurring and

important question worthy of certiorari ..... 13

A. The fourth Turner element is a nondispositive factor in a test that is itself

now largely irrelevant in this context..... 14

B. There is no meaningful split amongst

the circuits ........................................... 20

II.

This case is an exceptionally poor vehicle

to address the question presented............. 25

A. Rodriguez’s claims are barred by qualified

immunity regardless of whether he could

prevail under Turner............................... 25

B. Because the burden on Rodriguez’s

religious exercise was the result of his

own actions (killing another inmate),

it does not fit neatly into the ordinary

Turner analysis.................................... 28

iii

TABLE OF CONTENTS—Continued

Page

III.

The Eleventh Circuit was correct on the

merits ......................................................... 30

Conclusion............................................................ 34

iv

TABLE OF AUTHORITIES

Page

CASES

Amatel v. Reno,

156 F.3d 192 (D.C. Cir. 1998) ..................................14

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................... 25, 26

Beard v. Banks,

548 U.S. 521 (2006) ..................................... 14, 29, 30

Boles v. Neet,

486 F.3d 1177 (10th Cir. 2007) ................................16

Brodheim v. Cry,

584 F.3d 1262 (9th Cir. 2009) ..................................15

Brooks v. State,

298 Ga. 722 (2016) ....................................................6

Brooks v. Warden,

800 F.3d 1295 (11th Cir. 2015) ...................................6

Casey v. Lewis,

4 F.3d 1516 (9th Cir. 1993) ................................ 15, 31

Cavin v. Mich. Dep’t of Corr.,

927 F.3d 455 (6th Cir. 2019) ........................ 19, 23, 28

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) .................................................19

Cutter v. Wilkinson,

544 U.S. 709 (2012) .................................................16

Dehart v. Horn,

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

District of Columbia v. Wesby,

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

v

TABLE OF AUTHORITIES—Continued

Page

Dorman v. Aronofsky,

36 F.4th 1306 (8th Cir. 2022) ..................................18

Elrod v. Burns,

427 U.S. 347 (1976) .................................................19

Employment Div. v. Smith,

494 U.S. 872 (1990) ....................................... 3, 16, 17

Flagner v. Wilkinson,

241 F.3d 475 (6th Cir. 2001) ........................ 22, 23, 24

Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) .................................................19

Freeman v. Tex. Dep’t of Criminal Justice,

369 F.3d 854 (5th Cir. 2004) ....................................18

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .............................................17

Grayson v. Schuler,

666 F.3d 450 (7th Cir. 2012) ............................... 16, 17

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ..................................... 25, 27, 28

Hatim v. Obama,

760 F.3d 54 (D.C. Cir. 2014) ....................................15

Heyer v. United States Bureau of Prisons,

849 F.3d 202 (4th Cir. 2017) .............................. 22, 24

Jehovah v. Clarke,

798 F.3d 169 (4th Cir. 2015) ............................... 21, 24

Kuperman v. Wrenn,

645 F.3d 69 (1st Cir. 2011) ......................................32

vi

TABLE OF AUTHORITIES—Continued

Page

Lewis v. Sternes,

712 F.3d 1083 (7th Cir. 2013) ..................................18

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006) ....................................32

Maciariello v. Sumner,

973 F.2d 295 (4th Cir. 1992) ....................................28

Moore v. Castro,

3:17-cv-2, 2017 WL 6045973

(S.D. Ga. Nov. 14, 2017) .............................................6

Morrison v. Hall,

261 F.3d 896 (9th Cir. 2001) .............................. 15, 31

Moss v. Clark,

886 F.2d 686 (4th Cir. 1989) ....................................32

Overton v. Bazzetta,

539 U.S. 126 (2003) ..................................... 30, 31, 34

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987)............................................. 14, 31

Pollock v. Marshall,

845 F.2d 656 (6th Cir. 1988) ............................ 21, 24

Rodriguez v. Bryson,

No. 5:17-cv-10 (M.D. Ga. 2019) ........................6-8, 29

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) .................................................19

Sandin v. Conner,

515 U.S. 472 (1995) .................................................32

Scott v. Miss. Dep’t of Corrections,

961 F.2d 77 (5th Cir. 1992) ................................ 15, 31

vii

TABLE OF AUTHORITIES—Continued

Page

Sepulveda v. Burnside,

170 F. App’x 119 (11th Cir. 2006) ..............................6

Shakur v. Schriro,

514 F.3d 878 (9th Cir. 2008).....................................17

Shaw v. Murphy,

532 U.S. 223 (2001) ............................................. 5, 14

Sossamon v. Lone Star State of Tex.,

560 F.3d 316 (2009), aff’d, Sossamon v. Texas,

563 U.S. 277 (2011) .................................................18

Spies v. Voinovich,

173 F.3d 398 (6th Cir. 1999) ............................... 15, 31

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) ...............................................19

Thornburgh v. Abbott,

490 U.S. 401 (1989) .................................................33

Turner v. Safley,

482 U.S. 78 (1987) ........................................ 1-5, 9-34

Ward v. Walsh,

1 F.3d 873 (9th Cir. 1993) .................................. 23, 24

Watson v. Bishop,

No. 5:12-cv-451, 2013 WL 1748617

(M.D. Ga. Mar. 28, 2013) ...........................................6

STATUTES

28 U.S.C. § 1915 ............................................................8

42 U.S.C. § 1983 ................................. 8, 9, 17-19, 21, 25

42 U.S.C. § 2000cc-1(a)(1)-(2)......................................17

1

INTRODUCTION

Granting review in this case would be the epitome

of futility. The Eleventh Circuit already held that Respondents are entitled to qualified immunity no matter how anyone resolves the underlying substantive

question. And even if that were not the case, Rodriguez

asks this Court to address a non-dispositive factor of

a multipart test under Turner v. Safley, 482 U.S. 78

(1987), where Turner itself is of questionable ongoing

relevance in the free-exercise realm. There is no reason

to grant review.

Petitioner Hjalmar Rodriguez is a convicted killer

who, while in prison, killed again, so he was then

transferred to a high security facility. In that facility,

some cells lack attached showers, and inmates housed

in those cells are transported three times a week to

communal showers. To increase safety, during

transport the prisoners are allowed to wear only shoes

and underwear. Rodriguez claims that this policy

forces him to violate his religious beliefs requiring

daily showers and physical modesty. In a scattered

complaint, he asserted (among a laundry list of other

claims) that he was entitled to damages, on the theory

that this shower policy violates his rights under the

Free Exercise Clause.

Rodriguez is wrong across the board, but regardless, there is no point to this Court reviewing the question. The Eleventh Circuit correctly rejected

Rodriguez’s arguments, holding that the prison’s

shower policies were constitutional under Turner,

2

because they were reasonably calculated responses to

the risks involved in transporting dangerous inmates

to showers. The panel then unanimously held that

even if the policies at issue had violated Rodriguez’s

free-exercise rights, his claims would nevertheless be

barred by qualified immunity because there was no authority clearly establishing that these types of policies

violate the First Amendment.

Although the Eleventh Circuit held that all of the

four Turner factors weighed against him, Rodriguez

argues that certiorari is warranted because the court

of appeals supposedly applied a single, non-dispositive

Turner factor incorrectly. He focuses on the fourth factor, which asks whether there are “obvious, easy alternatives” to the challenged policy. Turner, 482 U.S. at

90. Rodriguez asserts that the Eleventh Circuit misread Turner, and created a split with other circuits, by

holding that that factor contemplates only the availability of obvious alternative policies, not one-off exceptions for a particular inmate.

It is Rodriguez, not the Eleventh Circuit, who misunderstands Turner, and there is no reason for this

Court to grant review. This question is not important,

recurring, or the subject of any meaningful split of authority. Of the four Turner factors, the first, which asks

whether there is a valid, rational connection between

the prison regulation and the legitimate governmental

interest put forward to justify it, is by far the most significant. The entire goal of the Turner test is to determine whether the challenged regulation is “reasonably

related to legitimate penological interests.” Turner,

3

482 U.S. at 89. The first factor goes directly to that

question, while the remaining three factors simply

“provide more angles from which to view [that] fundamental inquiry.” Pet.App.7a. Where it is relevant at all,

the fourth factor is merely informative, rather than

dispositive. No wonder Rodriguez himself cannot identify a single decision that turned on the application of

that factor. It is simply not a point of hot debate between the circuits.

Nor is the Turner framework as a whole particularly relevant in free-exercise context. It was likely abrogated by Employment Division v. Smith, 494 U.S.

872, 878 (1990), which held that generally applicable

regulations that incidentally burden religion do not offend the Free Exercise Clause. And, regardless of any

tension there, Turner has faded from significance as a

practical matter. The advent of the significantly more

prisoner-friendly Religious Land Use and Institutionalized Persons Act (RLUIPA) leaves prisoners with little reason to bring claims under Turner (and at least

one circuit court has held that, thanks to RLUIPA,

prisoners no longer can file free-exercise claims under

Turner). Rodriguez, in short, is asking the Court to

take up a question focused on an optional, non-dispositive subpart of a now largely irrelevant legal framework. That is the very opposite of an “extraordinarily

important” question. See Pet. at 4.

And even if the Court were interested in this question, Rodriguez’s case would be an especially poor vehicle for addressing it. The court of appeals’ standalone

ruling on qualified immunity means that Rodriguez’s

4

question presented is not ultimately relevant in his

own case. Rodriguez does not seriously dispute the

qualified-immunity holding, nor could he. Because of

the qualified-immunity bar, a decision on Rodriguez’s

question presented would be no more than an advisory

opinion. On top of that, the Turner test is not a good fit

for situations, like this one, where the restrictions at

issue are the result of the prisoner’s own misconduct.

The reason for Rodriguez’s limited shower access is

that he killed another inmate, leading to his transfer

to Georgia’s highest-security facility. As the court of appeals noted, prison officials adopted the three-showersweekly policy due to the heightened risks associated

with escorting high-risk prisoners like Rodriguez to

and from the shower area. Allowing individualized alternatives to such policies would undercut the prison’s

ability to account for such risks.

On top of everything else, Rodriguez is wrong on

the merits. The point of the fourth Turner factor is to

identify whether a policy is reasonable—asking

whether one could theoretically provide individual exemptions does not meaningfully address that question.

And even if it did, Rodriguez has not identified any reasonable alternative here: granting an individualized

exemption (to him) would increase security risks,

strain prison resources, and lead to conflicts as other

prisoners perceive Rodriguez’s special treatment.

The Court should deny certiorari.

5

STATEMENT

A. Governing Legal Framework

To allow prison officials “to remain the primary arbiters of the problems that arise in prison management,” courts evaluate a prisoner’s constitutional

claim under a “unitary, deferential standard.” Shaw v.

Murphy, 532 U.S. 223, 229–30 (2001). That standard,

announced in Turner, requires that a prison regulation

burdening an inmate’s exercise of constitutional rights

be “reasonably related to legitimate penological interests.” 482 U.S. at 89. Turner outlines four factors for

determining whether a prison policy impermissibly

burdens a prisoner’s First Amendment right to free exercise:

(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”;

(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.”

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

6

B. Factual Background

In July 2003, Rodriguez strangled a man to death

in a motel room. Rodriguez v. Bryson, No. 5:17-cv-10,

Doc. 175-3 at 17–18 (M.D. Ga. 2019). He left the victim

at the motel and evaded authorities for weeks. Id. at

18. That episode resulted in a voluntary manslaughter

conviction. Id. at 17. Eight years later, while incarcerated at Hays State Prison, Rodriguez stabbed and

killed a fellow inmate with a homemade knife. Id. at

14–16. He was again convicted of voluntary manslaughter, and he was then transferred to the Special

Management Unit at the Georgia Diagnostic and Classification Prison. Pet.App.2a.

The Special Management Unit houses “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.”

Id. The Georgia Supreme Court describes it as a “high

max unit, housing the most dangerous inmates in the

prison system.” Brooks v. State, 298 Ga. 722, 723 n.5

(2016). “[V]iolence is commonplace in the” Special

Management Unit, and there has been “a violent altercation between inmates during a shower escort in the

[Unit].” Pet.App.70a, 72a (citing Watson v. Bishop,

No. 5:12-cv-451, 2013 WL 1748617, at *3 (M.D. Ga.

Mar. 28, 2013)).1 Its “rigorous policies reflect the

Numerous decisions attest to the violence in the Special

Management Unit. See, e.g., Brooks v. Warden, 800 F.3d 1295,

1298 (11th Cir. 2015); Sepulveda v. Burnside, 170 F. App’x 119,

121 (11th Cir. 2006); Moore v. Castro, 3:17-cv-2, 2017 WL 6045973

(S.D. Ga. Nov. 14, 2017).

1

7

greater risk those inmates pose to prison safety and

security.” Id. at 2a.

Two of those policies are relevant here. First, for

those inmates housed in cells without showers, prison

“policy [is] to escort each inmate to a separate shower

three times per week,” Monday, Wednesday, and Friday. Id. at 2a–3a; Rodriguez, No. 5:17-cv-10, Doc. 175-3

at 54. Second, “[t]o ensure safety and security during

the shower transports . . . [c]lothing [is] . . . kept to a

minimum—inmates c[an] wear only boxers and

shower shoes when walking to the shower, and [they

cannot] bring along any other clothes.” Pet.App.3a.2

These policies “help[ ] stop the flow of contraband and

weapons that could be hidden in clothing and taken to

the shower.” Id. Shower transports also include a number of searches and precautions, which “require[ ] . . .

between two and five officers” to execute each time. Id.

Absent killing another inmate, Rodriguez would

have remained at Hays State Prison, where there is no

indication that he was ever subject to any similar policy regarding showers.

Rodriguez suggests that wearing t-shirts is allowed under Department policy, Pet. at 10–11, but that general policy pertains to the “Opening of Cells and Feeding/Handcuff Slot,” and

says nothing regarding transport, Rodriguez, 5:17-cv-10, Doc. 118 at 7. The more specific policy for transporting Special Management Unit inmates makes clear that inmates can wear only

shower shoes and boxers. Id. at Doc. 169-8 at 6, 15.

2

8

C. Proceedings Below

Rodriguez filed an ongoing parade of inmate grievances and lawsuits addressing virtually every aspect

of his residency in the Special Management Unit. See,

e.g., Rodriguez, No. 5:17-cv-10, Doc. Nos. 181-8–181-24

(grievances); Doc. No. 1 at 1–4 (description of past

suits). This appeal arises from a § 1983 action Rodriguez filed in the Middle District of Georgia in 2017. Id.

at Doc. 1. Rodriguez, acting pro se, asserted a host of

claims, eleven of which survived screening under 28

U.S.C. § 1915. Pet.App.28a–29a. The primary focus of

the action—and the subject of six of the surviving

eleven claims—was Rodriguez’s dissatisfaction with

various aspects of the prison’s food service. Id. (summarizing claims). Three more claims related to allegedly deficient medical treatment. Id. And finally, as

relevant here, he alleged that the prison’s policies of

allowing only three showers a week and transferring

prisoners to and from showers wearing only boxers and

flip-flops violated his free-exercise rights as a Muslim.

Id.

A magistrate judge recommended granting summary judgment in favor of Respondents on all but two

of the claims—his deliberate indifference and retaliation claims against a prison doctor. Pet.App.101a. With

respect to the shower policies, the magistrate concluded that both the three-shower-a-week and boxersonly policies were reasonably related to the legitimate

security concerns associated with transporting dangerous inmates to the showers. Pet.App.68a–73a. The

9

district court adopted the recommendation in relevant

part. Pet.App.26a.

In June 2018, roughly eighteen months after he

filed suit, Rodriguez was transferred to Valdosta State

Prison. Pet.App.50a. He remains incarcerated there

and is able to “to shower at will” without violating any

of his religious precepts. Id. at 52a (quotation omitted).

Rodriguez therefore does not contest that his claims for

declaratory and injunctive relief, whether under

RLUIPA or § 1983, are moot. Id.

But Rodriguez appealed with respect to the damages claims. Now represented by counsel, he reformulated his argument to focus exclusively on the showerrelated claims.

The Eleventh Circuit affirmed after applying the

four-factor Turner test. As to the three-showers-perweek limitation, the court held that “a rational connection exists between limiting the frequency of showers

and furthering safety and security,” especially given

“the risks involved in transporting . . . inmates” like

Rodriguez. Id. at 8a–9a. That connection satisfied the

first Turner factor. Id. The court held that the remaining three factors also weighed in favor of the challenged policies. Rodriguez “could exercise his religion

in many other ways,” including performing the wudu

washing ritual in his sink, participating in Friday Jumah service with a chaplain, and partaking in specially timed meals during Ramadan. These programs

showed that “Rodriguez had many alternative means

of practicing his religious faith despite the shower

10

policy.” Pet.App.10a. On the third element, dealing

with resource allocation, the court held that “[p]roviding daily showers would have . . . severe[ly] drain[ed]

. . . the prison’s limited resources” by nearly doubling

the time officers would have to devote to shower transports. Id. And finally, on the fourth, obvious-alternatives element, the court rejected Rodriguez’s argument

that prison officials had the obvious alternative of moving him to a cell with a private shower. That, the court

explained, was not an alternative policy at all. Unlike

RLUIPA, which can require prison officials to justify

its denial of specific, individualized exemptions, under

Turner, prison officials needed only to show their policy

was reasonable, not “shoot down every conceivable alternative method of accommodating the claimant’s

constitutional complaint.” Because the officials had in

fact shown their policy was reasonable, and because

Rodriguez had not proposed any obvious alternative

policy, the fourth factor also weighed against Rodriguez. Id. at 10a–12a.

With respect to boxers-only transport policy, the

court reasoned that minimizing “the places where a

prisoner could hide a weapon reduces the risk that an

officer will be harmed [and] the risk that the weapon

will be conveyed to other prisoners.” Id. at 13a. Again,

the second policy was rationally connected to ensuring

safety and security and therefore satisfied the first

Turner factor. Id. The court explained that the second

and third Turner factors weighed in favor of the prison

officials for the same reasons as with the three-showers-a-week policy. And, finally, on the fourth factor, the

11

court rejected Rodriguez’s argument that the facility’s

Standard Operating Procedures, which provided that

inmates must never be removed from their cells in

anything more than a t-shirt, could be applied to

shower transport, as well. Pet.App.14a. The court held

that “[b]ecause Rodriguez’s proposal would introduce

the exact risk of harm the prison is working to prevent,

it [was] not an obvious, easy alternative to the existing

policy.” Pet.App.13a–15a.

The court of appeals then unanimously held that

“[e]ven if the prison’s policies were improper,” the

prison officials were nonetheless shielded by qualified

immunity. Id. at 15a–16a. The court emphasized that

Rodriguez “concede[d] that no materially similar case

clearly establishe[d] that these kinds of policies violate

prisoners’ First Amendment rights.” Id. And it rejected

Rodriguez’s argument that Turner itself was so decisive that it clearly established the shower policies were

unlawful. Id. at 16a. The court explained that Turner

provides no such “bright line between lawful and unlawful,” and would not provide a reasonable official

with “fair and clear” warning that this particular conduct was unconstitutional. Id. (quotation omitted).

Judge Jill Pryor concurred in part and concurred

in the judgment. She noted that because she agreed

that Rodriguez’s suit did not implicate a clearly established First Amendment right, she would not have decided whether that right had actually been violated.

Pet.App.19a.

12

REASONS FOR DENYING THE PETITION

This petition does not warrant a grant of certiorari. First, the question presented is neither important

nor recurring. Given the nature of the Turner test, with

its crucial first factor and merely illustrative remaining factors, application of the fourth factor is unlikely

to impact the outcome in most cases. That was certainly the case here, where the court of appeals ruled

that all of the other factors weighed against Rodriguez.

Moreover, free-exercise claims subject to Turner are

increasingly irrelevant (if available at all) following

the enactment of RLUIPA. Given the declining freeexercise significance of Turner generally and its fourth

factor specifically, there is no meaningful split of authority on the application of that factor. Tellingly,

Rodriguez cannot point to a single case that has turned

on the fourth factor, much less a case where a court

specifically contradicted the Eleventh Circuit here.

Second, this case is not just a poor vehicle to decide

this issue, it is no vehicle at all. Respondents are entitled to qualified immunity no matter how the substantive analysis under Turner pans out. The Eleventh

Circuit already held as much. To grant any relief, this

Court would have to vacate that portion of the judgment, and it would make no sense to do so even if this

Court ultimately agreed with Rodriguez on the substantive issue: in no universe was Rodriguez’s supposed right clearly established.

13

On top of that, it makes little sense to consider alternative policies under the fourth Turner factor when

prisoners are subject to the restriction in question as a

result of their own misconduct. Here, the reason for

Martinez’s limited shower access was that he was

transferred to a maximum-security unit after killing

another inmate. To ask whether prison officials must

provide individualized exemptions for an inmate who

is subject to a policy precisely because of his own misconduct is a wholly different question than whether

prisoners generally can point to individualized exemptions as support under the fourth Turner factor.

Third, to the extent it matters, the Eleventh Circuit was right on the merits. Proposed individualized

alternative policies do not satisfy the fourth Turner

factor, the whole point of which is to help analyze

whether the prison policy at issue is reasonable. And

the mere possibility of individualized exceptions, like

the ones Rodriguez proposes here, tells us nothing

about the reasonableness of the policy at issue. In any

event, Rodriguez has not shown a reasonable alternative nor has he shown that he would be successful even

if he could.

I.

This case does not present a recurring and

important question worthy of certiorari.

Rodriguez contends that the Eleventh Circuit

erred by “excluding individualized accommodations”

from its consideration of the fourth Turner factor,

which asks if there are any “obvious, easy alternatives”

to the current regulation. Pet. at. 4; Turner, 482 U.S. at

14

90. By doing so, Rodriguez contends, the court got “an

extraordinarily important question squarely wrong.”

Pet. at 4. To the contrary, the question is rarely, if ever

dispositive, and it is the furthest thing from “extraordinarily important.”

A. The fourth Turner element is a nondispositive factor in a test that is itself

now largely irrelevant in this context.

1. To start, the fourth Turner factor is not nearly

as significant as Rodriguez suggests. “The Turner factors concern only the relationship between the asserted penological interests and the prison regulation.”

Shaw, 532 U.S. at 230. A court’s “real task . . . is not

balancing the [four] factors but determining whether

the [defendants show] . . . a reasonable relation” between the challenged policies and the penological interest they assert. Beard v. Banks, 548 U.S. 521, 533

(2006). That means that the first Turner factor, which

examines whether there is a “valid, rational connection” between the prison regulation and the government interest that is claimed to justify it, Turner, 482

U.S. at 89, “looms especially large” in the analysis because “[i]ts rationality inquiry tends to encompass the

remaining factors, and some of its criteria are apparently necessary conditions,” Amatel v. Reno, 156 F.3d

192, 196 (D.C. Cir. 1998). The remaining factors are

merely “relevant to th[e] reasonableness determination.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 350

(1987). Even if “two of the[ ] latter three factors seem

to support” one party, that does not necessarily “count

in [that party’s] favor.” Beard, 548 U.S. at 533.

15

All of that means that “in no way is the fourth

Turner factor, the presence or absence of alternative

means of achieving the stated objective, dispositive.”

Brodheim v. Cry, 584 F.3d 1262, 1273 (9th Cir. 2009)

(emphasis added); see also Hatim v. Obama, 760 F.3d

54, 61 (D.C. Cir. 2014) (explaining that the third and

fourth factors in particular “cover much of the same

ground as the first” and generally just “reinforce” the

reasonableness or unreasonableness of a particular

policy). The first factor “is the sine qua non of the

Turner test,” and once a “regulation passes muster under the first Turner factor,” courts “need not consider

the remaining factors” at all. Morrison v. Hall, 261 F.3d

896, 907 (9th Cir. 2001) (quotation omitted).

The ruling below reflects these principles. The

panel noted at the outset that “we do not balance these

factors to see if some outweigh the others.” Pet.App.7a.

Instead, it noted that the final three factors simply

“provide more angles from which to view the fundamental inquiry” framed by the first element. Id. And

because it held that the first, second, and third Turner

factors weighed in favor of the defendants, it could

have ignored the fourth factor altogether. See Scott v.

Miss. Dep’t of Corrections, 961 F.2d 77, 80 (5th Cir.

1992) (nothing “require[s] a court to weigh evenly, or

even consider, each of th[e] [remaining] factors”); accord Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir.

1999); Casey v. Lewis, 4 F.3d 1516, 1522 (9th Cir. 1993).

Nothing about the court’s opinion suggests it would

have reached a different outcome if it had adopted

Rodriguez’s preferred approach to the fourth element.

16

Put another way, the fourth factor does not even

matter in this case, much less most other cases. Rodriguez misses the forest for the trees by focusing exclusively on the fourth Turner factor. See Pet. at 13–20.

While that factor can be helpful in certain contexts, it

is far from essential to the Turner analysis, and it

played only a minor role (if any) in Rodriguez’s own

case.

2. For that matter, Turner claims in general have

limited continuing relevance in the context of prisoner

religious rights. Just three years after Turner, the

Court held in Employment Division v. Smith, 494 U.S.

872 (1990), that generally applicable laws need not be

justified by a compelling governmental interest even if

the law has an “incidental effect” of burdening a particular religious practice. Id. at 878. The Smith framework is “sharply at odds” with Turner. Boles v. Neet,

486 F.3d 1177, 1181 (10th Cir. 2007). That is especially

true of the fourth Turner factor, which focuses on “obvious, easy alternatives to the [challenged] regulation

that accommodate the [prisoner’s free exercise] right

. . . while imposing a de minimis burden on the pursuit

of security objectives.” 482 U.S. at 98. “Accommodation,” however, “is what Smith says the free exercise

clause does not require; and it’s hard to believe that

prisoners have more rights than nonprisoners.” Grayson v. Schuler, 666 F.3d 450, 453 (7th Cir. 2012) (emphasis added). It is unclear whether Smith abrogated

Turner outright: while the Court seemed to assume as

much in Cutter v. Wilkinson, 544 U.S. 709, 714–17

(2012), neither Smith nor Cutter expressly overruled

17

Turner. At the very least, Smith casts considerable

doubt on Turner’s ongoing validity, especially its fourth

element, in the free-exercise context. See Grayson, supra.

To be sure, several members of this Court have

called for overruling or otherwise possibly altering the

Smith framework. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1888 (2021) (Alito, J., concurring

in the judgment); id at 1882 (Barrett, J., concurring).

But if anything, that is just another reason that diving

into Turner right now would be worse than useless. As

long as Smith is the rule, Turner is (it seems) of questionable utility in the free-exercise realm. And if the

Court ever were to overrule, modify, or in any other

way address Smith’s continuing vitality, it makes no

sense for the Court to rule on Turner, only to have to

redo everything in a post-Smith world.

And whatever Turner’s legal vitality, its practical

significance has inarguably waned in the free-exercise

context due to the passage of RLUIPA. That law,

passed in response to Smith, provides that “[n]o [state

or local] government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an institution,” unless the government shows

that the burden furthers “a compelling governmental

interest” and does so by “the least restrictive means.”

42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA has largely displaced § 1983 claims in this context by “mandat[ing] a

stricter standard of review for prison regulations that

burden the free exercise of religion than the reasonableness standard under Turner.” Shakur v. Schriro,

18

514 F.3d 878, 888 (9th Cir. 2008) (quotation omitted);

see also Freeman v. Tex. Dep’t of Criminal Justice, 369

F.3d 854, 857 n.1 (5th Cir. 2004) (noting that RLUIPA

“poses a far greater challenge than does Turner to

prison regulations”).

Prisoners have a much greater chance of prevailing on a free-exercise claim under RLUIPA than

Turner, rendering claims under the latter mostly redundant. Indeed, “[i]f a claim fails under the

RLUIPA—which embeds a heightened standard for

government restrictions of the free exercise of religion—it necessarily fails under the First Amendment.”

Dorman v. Aronofsky, 36 F.4th 1306, 1313 (8th Cir.

2022) (quotation omitted). That has led courts to express “[s]urpris[e]” in the rare instances when prisoners chose to bring claims under § 1983—and thus

Turner—rather than under RLUIPA. Freeman, 369

F.3d at 857 n.1; see also Lewis v. Sternes, 712 F.3d 1083,

1085 (7th Cir. 2013) (“One might think that, given

RLUIPA, no one would bother to argue for the denial

of his constitutional right to the free exercise of religion.”).

The only conceivable reason to bring free-exercise

claims under Turner is for the chance of money damages. There are “no remedial differences between

RLUIPA and the Constitution for purposes of an injunction.” Sossamon v. Lone Star State of Tex., 560 F.3d

316, 335 (2009), aff ’d, Sossamon v. Texas, 563 U.S. 277

(2011). While states are “immune[e] to private suits for

money damages under RLUIPA,” Sossamon, 563 U.S.

at 293, such damages have sometimes “been available

19

under § 1983 for clearly established violations of the

First Amendment,” Tanzin v. Tanvir, 141 S. Ct. 486,

492 (2020).

But, as at least one court of appeals has held, prisoners “cannot use § 1983 to get damages that RLUIPA

does not provide.” Cavin v. Mich. Dep’t of Corr., 927 F.3d

455, 460 (6th Cir. 2019). Judge Sutton explained that

“where, as with RLUIPA, Congress provides an express cause of action under the statute, it ordinarily

indicates that plaintiffs cannot access a more expansive remedy under § 1983.” Id. (quoting City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005), and

citing Fitzgerald v. Barnstable Sch. Comm., 555 U.S.

246, 256 (2009)). In other words, that “RLUIPA doesn’t

allow for damages indicates that Congress didn’t intend § 1983 to provide a backdoor to achieving a different result.” Id. (citations omitted).

And even if damages are theoretically recoverable—a far from certain proposition—they will almost

always be barred, as here, by qualified immunity. That

is especially true where it is not even clear that Turner

is still good law in the free-exercise context.

To be sure, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality op.); see also, e.g., Roman

Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,

67 (2020) (per curiam). But RLUIPA’s equitable remedies protect prisoners in such instances.

20

Ultimately, then, Rodriguez asks this Court to

weigh in on an issue that is almost never dispositive,

(and was not dispositive in this case), regarding a test

that is likely abrogated (or might be soon), seeking

damages that are likely unavailable (given RLUIPA),

where qualified immunity will ordinarily protect state

officials anyway (as it has here). Circuit split or no

circuit split, that is the opposite of an “extraordinarily

important question,” see Pet. at 4.

B. There is no meaningful split amongst

the circuits.

To the extent it matters, there is no circuit split on

this question, and it would be surprising if there were.

As discussed above, the fourth Turner factor is non-dispositive and functions simply to provide perspective

for the central, reasonable-relation determination—in

simple terms, it is just not that important. Rodriguez

nonetheless argues that the Third, Fourth, Sixth, and

Ninth Circuits have “considered as-applied, individualized alternatives to prison policies under Turner,”

which puts them at odds with the Eleventh Circuit

here. Pet. at 20. Reading those cases makes it hard to

understand where the supposed tension is. The Eleventh Circuit, like many others, simply declined to

consider individualized alternative polices when evaluating the fourth Turner factor. That does not preclude

as-applied claims subject to Turner. Regardless, other

courts have hardly held that the fourth factor turns on

individualized exemptions.

21

In Jehovah v. Clarke, for example, the plaintiff

claimed in relevant part that state prison officials violated the First Amendment and RLUIPA by prohibiting him from consuming wine during communion. 798

F.3d 169, 173 (4th Cir. 2015). The court of appeals determined that although there was at least a reasonable

connection between the policy and the stated government interest, the second, third, and fourth Turner

factors all weighed in favor of the prisoner. Id. at 178–

79. With respect to the fourth Turner factor, the prisoner proposed both generally-applicable alternative

policies (applying the same security measures used for

medication to wine, or allowing wine as a default but

excluding inmates who commit alcohol-related infractions) and an individualized “accommodation to drink

wine.” Id. The court determined that “at least one of

these alternatives” could satisfy the fourth Turner

factor. Id. at 179 (emphasis added). In other words,

Jehovah did not purport to hold that individualized

exceptions can amount to “obvious alternatives” under

Turner.

In Pollock v. Marshall, the inmate filed a § 1983

claim to enjoin prison officials from cutting his hair in

violation of his faith. 845 F.2d 656, 657 (6th Cir. 1988).

Like the Eleventh Circuit here, the Sixth Circuit rejected the plaintiff ’s proposed individualized alternative because “a limited exception to a general rule,

allowed under special circumstances, does not prove

that the reasons for the rule were fabricated.” Id. at

659. So it is unclear how that decision helps Rodriguez.

22

Moving on, Heyer v. United States Bureau of Prisons did not involve free-exercise claims at all: the civil

detainee there filed claims for failing to accommodate

his deafness. 849 F.3d 202, 205–06 (4th Cir. 2017). Specifically, he requested that the detention facility provide access to a videophone and lift its restrictions on

accessing a teletypewriter. Id. The Fourth Circuit held

that the second, third, and fourth Turner factors

weighed in favor of the plaintiff. On the fourth factor,

the court reasoned that “[a]ccess to the videophone

could be restricted to deaf inmates, and any abuses of

the system could be handled on a case-by-case basis”

because that is how the prison already handled abuses

of the inmate phone system. Id. at 217. The court, in

other words, relied on the prison’s willingness to police

the phone system on an individual basis to hold it to

that same standard with respect to videophones. And

the court emphasized “that many of the security risks

associated with a videophone” were already posed by

the regular telephone system and that any additional

risk “could be minimized by” treating videophones like

it already treated teletypewriters. Id. There are no

such analogous, readily adaptable policies at issue

here.

Rodriguez’s reliance on Flagner v. Wilkinson is

particularly misplaced. There, the orthodox Jewish

plaintiff grew his beard and sidelocks longer than

prison policy allowed for five years. 241 F.3d 475, 478

(6th Cir. 2001). Prison officials eventually cut his beard

and sidelocks and then “exempted him and four Native

American inmates from the grooming regulation” for

23

nearly two years before forcibly cutting his beard and

sidelocks again. Id. at 479. The Sixth Circuit held that

qualified immunity barred the plaintiff ’s damages

claims, but allowed a claim for injunctive relief to proceed. Id. at 483–84. The court then determined that all

four Turner factors weighed “heavily” in favor of the

prisoner. Id. at 486–87. The Flagner court’s cursory

analysis of the fourth Turner factor focused on the fact

that the prison had already granted the plaintiff an individual exemption for almost seven years. Id. at 478,

486–87. Rodriguez’s case, by contrast, involves no history of past exemptions.3

Nor do the rest of Rodriguez’s cases help him. In

Dehart v. Horn, for example, “neither party separately

addressed the district court’s findings on the fourth

Turner factor” and the court concluded that the prisoner “fail[ed] to put forward, in specific terms, a[ny]

diet that would fit within his restrictions.” 390 F.3d

262, 269, 271 (3d Cir. 2004). In Ward v. Walsh, the

Court examined, among other things, requests for religious clothing, candles, and kosher food. 1 F.3d 873,

877, 880 (9th Cir. 1993). With respect to the kosher

food, the district court had failed to make a number of

findings regarding the second, third, and fourth Turner

factors, so the Ninth Circuit remanded on that basis.

1 F.3d at 877–79. But with respect to the candles, the

court did not even examine multiple factors, it

Also worth noting is that, in the Sixth Circuit, Turner

claims for damages under the Free Exercise Clause are not available, so even if there were some tension between Flagner and this

case, it would be wholly irrelevant. Cavin, 927 F.3d at 460.

3

24

summarily held that the “serious safety and security

concerns raised by allowing inmates to possess and use

candles outweigh the curtailment of Ward’s religious

practice.” Id. at 879. And in rejecting the claim for religious clothing, the court emphasized that “[a]llowing

one prisoner to receive preferential treatment . . . could

potentially cause conflicts among inmates and providing each prisoner with the clothing or other implements necessary to the practice of their religion would

impose a cost that would be more than de minimis.” Id.

at 880. How any of this conflicts with the decision below is a mystery.

Moreover, none of Rodriguez’s examples includes

a case where the fourth factor is remotely dispositive.

In Dehart, for example, all four Turner factors favored

the prison. 390 F.3d at 269, 272. The same is true of

Pollock, 845 F.2d at 658–59. On the other end of the

spectrum, in Flagner, all four factors weighed “heavily”

in favor of the prisoner. 241 F.3d at 486–87. The second,

third, and fourth factors all ultimately favored the

civil-detainee in Heyer, 489 F.3d at 216–18, while at

least the third and fourth factors did so in Clarke, 798

F.3d at 178–79. And in Ward v. Walsh, though the first

factor favored the prison, the district court failed to

make findings regarding the others, resulting in a remand. 1 F.3d at 877–79. Rodriguez cites no authority

suggesting that the outcome turned on the fourth factor at all, much less whether a prison could provide individualized exemptions.

At most, then, Rodriguez has shown that courts

sometimes weigh the fourth Turner factor in favor of

25

the prisoner. And even if Rodriguez were able to point

to a minor tension between a few opinions on a nondispositive issue, that is hardly the sign of an important and recurring problem.

II.

This case is an exceptionally poor vehicle

to address the question presented.

Even if the question needed answering, this would

be a terrible case to try to answer it. First, the prison

officials are entitled to qualified immunity irrespective

of any error in assessing the fourth Turner factor—or,

for that matter, any error at all. Second, the consideration of an individualized alternative should be especially irrelevant where, as here, the prisoner is

subjected to the challenged policies as a result of his

own misconduct.

A. Rodriguez’s claims are barred by qualified immunity regardless of whether

he could prevail under Turner.

Even if the Court were to reverse the Eleventh

Circuit’s holding on the fourth Turner factor, it would

make no difference. Rodriguez already lost on qualified

immunity, which protects state actors from liability

under § 1983 “unless a plaintiff pleads facts showing

(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft

v. al-Kidd, 563 U.S. 731, 735, (2011) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). So this Court

would have to find some way to vacate that holding to

26

even answer the question presented, and it is unclear

how the Court could do that, even if it wanted to.

The Eleventh Circuit’s qualified immunity holding

was not difficult because Rodriguez “concede[ed] that

no materially similar case clearly establishe[d] that

the[ ] kinds of policies [at issue] violate [his] First

Amendment rights.” Pet.App.15a–16a. He argued only

that Turner “formed a broader, clearly established

principle that should control the novel facts of the

situation,” which is a barely colorable argument. Id. at

16a (quotation omitted). Rodriguez’s own petition is

chock full of courts rejecting Turner claims; there is no

conceivable way that a prison official could know, based

on Turner alone, he or she was clearly violating the law.

Accordingly, certiorari review would be pointless

unless the Court is also willing to overrule the qualifiedimmunity determination, which Rodriguez acknowledges. Pet. at 27. If the Court does not intend to disturb

that grant of immunity, then it would grant the petition just to affirm on those same grounds. The Court

has never done that and it should not start now.

Rodriguez asks for this Court to step in anyway,

but his reasons don’t add up. To be sure, this Court has

“discretion to correct . . . errors at each step” where a

lower court errs on both the merits and the qualified

immunity analysis. al-Kidd, 563 U.S. at 735. But it

exercises that discretion when, “if followed elsewhere,

[the lower court’s decision] would undermine the values

qualified immunity seeks to promote.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation

27

omitted). Those values are: to “avoid excessive disruption of government and permit the resolution of many

insubstantial claims on summary judgment.” Harlow,

457 U.S. at 818. The decision below furthers those goals

while Rodriguez seeks to undermine them.

Rodriguez’s attempts to gin up a problem with the

Eleventh Circuit’s qualified immunity analysis also

badly miss the mark. He insists that “the qualified immunity ruling does not independently support the

panel’s judgment” because its analysis on that point “is

inextricably intertwined with its [supposed] misreading of Turner.” Pet. at 27. Therefore, he reasons, this

Court could remand so the Eleventh Circuit can “reconsider . . . its qualified immunity analysis under a

proper understanding of [the fourth] Turner” factor, as

if that would make any difference. Id.

This theory, supported by nothing, turns qualified

immunity analysis on its head. If the Eleventh Circuit

were wrong about the substantive analysis, the qualified immunity analysis would be identical: we know

this because (among other things) the Eleventh Circuit

already said so. The qualified immunity analysis assumes that the Eleventh Circuit got the substantive

law wrong. Rodriguez’s position that the Eleventh Circuit would have to revisit that analysis makes no sense

all. The very point of the alternative holding is to assume that Rodriguez was right and then rule against

him on alternative grounds.

Again, the key question is whether Rodriguez’s asserted free-exercise rights were “clearly established at

28

the time an action occurred.” Harlow, 457 U.S. at 818.

Even if the panel were wrong (and it was not), nothing

“clearly establishes” as much. If it did, Rodriguez

would not be asking this Court to answer this supposedly important and recurring question. Officials cannot “reasonably be expected to anticipate subsequent

legal developments, nor [can they] fairly be said to

‘know’ that the law forbade conduct not previously

identified as unlawful.” Id. Yet here, Rodriguez would

have this Court decide a substantive question of law

for the first time and then somehow also decide that

the answer was “clearly established,” even though “it

is notoriously difficult to predict the outcome of a balancing test [like Turner] in advance, making it even

more important that precedent place the question beyond doubt.” Cavin, 927 F.3d at 461 (quotation omitted). Put simply, “[o]fficials are not liable for bad

guesses in gray areas; they are liable for transgressing

bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298

(4th Cir. 1992).

So, even if the Court thinks the Eleventh Circuit

erred on the merits, it could not possibly have erred

with respect to qualified immunity, making any review

by this Court wholly pointless.

B. Because the burden on Rodriguez’s religious exercise was the result of his

own actions (killing another inmate), it

does not fit neatly into the ordinary

Turner analysis.

Rodriguez conveniently neglects to explain how he

came to occupy a cell without a shower and therefore

29

needed to be transported to and from the prison’s

shower facilities. As discussed above, he was transferred from Hays State Prison to the Special Management Unit at Georgia Diagnostic and Classification

Prison after he stabbed a fellow inmate to death.

Pet.App.2a; Rodriguez, No. 5:17-cv-10, Doc. 175-3 at

15–17. And there is no indication that Rodriguez faced

any shower-related restrictions while at Hays. Rodriguez thus became subject to the shower policies he

complains of only because he killed another inmate.

But the Turner framework comes up short when

“applied to prison regulations that seek to modify inmate behavior through privilege deprivation.” Beard,

548 U.S. at 540 (Thomas, J., concurring in the judgment). That is especially true of the fourth factor: inquiring into available alternatives makes no sense

when the objective of a policy is to “encourag[e] compliance with prison rules.” Id. at 541. So, under such

circumstances, the third and fourth factors “collapse

. . . into the first . . . because accommodating the exercise of the deprived right will undermine the incentive

effects of the prison policy and because the unavailability of ‘ready alternatives’ is typically (as in this case)

one of the underlying rationales for the adoption of inmate privilege deprivation policies.” Id. at 541–42.

So too here. If prisoners kill other prisoners, they

risk being moved to different areas or facilities with

more restrictive policies. Without such consequences,

officials would lose an important tool to account for the

acute security risks posed by demonstrably violent inmates. It may be that policies in high-security units

30

incidentally burden religious exercise in one way or another. But that is a readily foreseeable consequence of

committing violence in prison. Allowing individualized

alternatives to such policies would undermine prison

officials’ discretion to deal with violent inmates and

would ignore this Court’s instruction that even “ ‘severe’ restriction[s]” on normal inmate privileges are “a

proper and even necessary management technique to

induce compliance with the rules of inmate behavior.”

Beard, 548 U.S. at 533 (quoting Overton v. Bazzetta,

539 U.S. 126, 134 (2003)).

So even if the question presented here were worth

answering in the abstract, it should wait for a case

where the prisoner does not seek an individualized accommodation to avoid restrictions of his own making.

III. The Eleventh Circuit was correct on the

merits.

Finally, Rodriguez’s argument that the fourth

Turner factor should account for individualized accommodations misunderstands the nature of both the test

and that factor. The point of the fourth Turner factor

(like those that precede it) is to tell courts something

about the “logical connection between the regulation

and the asserted goal.” Turner, 482 U.S. at 89. In other

words, it is relevant only to the extent it helps “determin[e] the reasonableness of a prison restriction.” Id.

at 90. The “absence of ready alternatives” is merely

“evidence” of a prison regulation’s “reasonableness.”

Id. And the existence of some alternatives is also not

dispositive—recall, the Turner test is not a least

31

restrictive means test or anything close to that. The

point of asking if there are alternatives is just to figure

out if this policy is, in fact, reasonable. One can always

posit a policy with individual exemptions—if that were

the point of the fourth Turner factor, there would be

no reason to have a fourth Turner factor.

In Overton, one of the Court’s most recent decisions applying Turner in the free-exercise context, the

Court explained that the fourth factor asks “whether

the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right

while not imposing more than a de minimis cost to the

valid penological goal.” Overton, 539 U.S. at 136. The

Court there rejected alternatives to prison visitation

policies because they did “not go so far toward accommodating the asserted right with so little cost to penological goals that they [met] Turner’s high standard.”

Id. That conception of the fourth factor does not suggest courts should consider individualized alternatives. And, again, several lower courts reject having to

consider any alternative once the first factor favors the

prison. See Morrison, 261 F.3d at 907; Spies, 173 F.3d

at 403; Casey, 4 F.3d at 1522; Scott, 961 F.2d at 80

(citing O’Lone, 482 U.S. at 350).

Rodriguez nonetheless insists that Turner “favors

as-applied, individualized alternatives” because such

alternatives “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 prisonwide basis.” Pet. at 14. Not so. The fundamental “interest of uniform treatment” means it is a “desirable

32

development” “to avoid widely different treatment of

similar” prisoners. Sandin v. Conner, 515 U.S. 472, 482

(1995).

Forcing courts to consider individualized alternatives when assessing the fourth Turner factor would

undermine States’ interests in “[p]reserving uniform

treatment of inmates who are incarcerated together

. . . to maintain morale and efficient prison administration.” Moss v. Clark, 886 F.2d 686, 691 (4th Cir. 1989).

Indeed, prison-wide policies promote fair notice, impartial enforcement, and administrative efficiency.

Individualized alternatives, by contrast, transform

prisoners into islands that officials must carefully

navigate between in ways that “impose daunting administrative costs.” Lovelace v. Lee, 472 F.3d 174, 221

(4th Cir. 2006) (Wilkinson, J., concurring). And, as they

proliferate, individualized alternatives “have the perverse effect of encouraging inmates to put even secular grievances in religious terms . . . to receive . . .

special treatment.” Id. (quotation omitted). Lower

courts therefore regularly consider “the additional burden which non-uniform rules place on prison staff.”

Kuperman v. Wrenn, 645 F.3d 69, 76 (1st Cir. 2011).

Finally, even if the Eleventh Circuit was required

to consider individualized alternatives when assessing

the fourth Turner factor, Rodriguez would still lose.

He would have the burden to overcome Respondents’

interest in uniformity, which he almost certainly could

not satisfy, as deploying more officers, more often, to

guard a highly dangerous prisoner, would at best drain

resources and at worst create problems vis-à-vis other

33

prisoners in that Rodriguez would receive special

treatment.

Rodriguez’s proposed individualized alterative is

analogous to the one this Court rejected in Thornburgh

v. Abbott, 490 U.S. 401 (1989). There, prisoners challenged “all-or-nothing” rules, which banned entire

publications if they included anything that may have

threatened security and order. Id. at 418. As an alternative under the fourth Turner factor, the prisoners

suggested “tearing out the rejected [or offending] portions and admitting the rest of the publication.” Id. at

418–19. The Court upheld that “all-or-nothing policy”

because it was not an “exaggerated response” to security concerns and the alternative posed “administrative inconvenience[s.]” Id. Here too Rodriguez wants

prison officials to excise portions of their policies to accommodate him. But those officials are entitled to rest

on their “all-or-nothing” shower policies.

Rodriguez has not adequately addressed the practical obstacles to an individualized exception to the

shower polices at issue, nor has he demonstrated that

any such exception was an “obvious, easy alternative[ ]” to the polices. Turner, 482 U.S. at 90. Rodriguez

has further failed to demonstrate, through his proposed alternatives or any other record evidence, that

the shower polices are “ ‘exaggerated response[s]’ to

prison concerns.” Id. Rodriguez’s proposed individualized alternative therefore fails to accommodate his interest “with so little cost to penological goals that [it]

meet[s] Turner’s high standard,” and, thus, the fourth

34

factor “cannot justify [a] decision . . . to invalidate the

regulation.” Overton, 539 U.S. at 136.

Finally, as a reminder, all of this speaks only to a

single, non-dispositive factor of the Turner test. Even

if the Court granted review, reversed the lower court

on this point, somehow sidestepped qualified immunity, and remanded, Rodriguez would still lose because

all the other factors weighed against him as well.

CONCLUSION

For the reasons set out above, this Court should

deny the petition.

Respectfully submitted,

LORETTA PINKSTON-POPE

Deputy Attorney General

ROGER CHALMERS

Senior Asst. Attorney General

ELLEN CUSIMANO

Asst. Attorney General

CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

ROSS W. BERGETHON

Deputy Solicitor General

WAYNE R. BECKERMANN

Asst. Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents