Petition for Writ of Certiorari — Baranowowski v. Hart (No. 07-137)

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Supreme Court of the Anited States

THOMAS H. BARANOWSKI,

Petitioner,

LARRY HART, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOEL L. THOLLANDER

Counsel of Record

McKOOL SMITH, P.C.

300 W. 6th Street, Suite 1700

Austin, Texas 78701

(512) 692-8700

(512) 692-8744 (FAX)

ANTHONY GARZA

McKOoo_ SMITH, P.C.

300 Crescent Court, Suite 1500

Dallas, Texas 75201

(214) 978-4000

(214) 978-4044 (FAX)

Counsel for Petitioner

erie te

a oes a

COCKLE LAW BRIEF PRINTING CO. (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a regulation that forces an inmate to forfeit

his regular Sabbath group worship if he cannot secure the

presence of a Rabbi or prison-approved outside volunteer

constitutes a “substantial burden” under the Religious

Land Use and Institutionalized Persons Act.

PARTIES TO THE PROCEEDINGS

The petitioner in this Court is Thomas H.

Baranowski.

The respondents are Larry Hart, Unit Chaplain,

Huntsville Unit, Texas Department of Criminal Justice;

Bill Pierce, Director of Chaplaincy Department, Texas

Department of Criminal Justice; Lawrence Hodges,

Warden, Huntsville Unit, Texas Department of Criminal

Justice; and Douglas Dretke, Director of the Correctional

Institutions Division, Texas Department of Criminal

Justice.

iil

TABLE OF CONTENTS

Page

Fe PD ciscsnesteirsitectcstiintiniatenencecdmaiin 1

IE BE vsisissaccstniniannaniuvsnvsoctacamnencdethgevicincvaiitiaae 1

UNIT cinincxnnscusnmiienticksnpsenssedeaucniunieeiiemneseunteanebilnas 1

Applicable Statutory Provision.............::csssesseseeseseees 1

I iiccirdsniscnsctniennnstasnsenteenuinieiimianiasiaateiiions 2

Reasons for Granting the WTit................:csccsseseeeeeees 5

A. The Fifth Circuit’s Application of the

RLUIPA “Substantial Burden” Standard Is

Inconsistent With the Approach of Other

SEER ee nY Hetero FO SA ot Perm n LIEN Carr TBO 5

B. The Decision in the Court Below Conflicts

With Supreme Court Doctrine...................0000 10

C. The Decision Ignores Distinctions Between

Prisoner and Land-Use Cases ...............ceceeeee: 12

gS D RE ATIF ABER ENE Earn nee Mea RN Hae ae 14

TABLE OF AUTHORITIES

Page

CASES

Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004)........ passim

Agrawal v. Briley, No. 02-CV-6807, 2004 U.S. Dist.

LEXIS 16997 (N.D. Ill. Aug. 25, 2004)........ 10, 11, 13, 14

Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007)....passim

Baranowski v. Hart, No. 4:03-CV-03893, 2005 U.S.

Dist. LEXIS 36231 (S.D. Tex. July 15, 2005)................. 1

Charles v. Verhagen, 220 F. Supp. 2d 937 (W.D.

es Se icininscaienitsiennesiaiianidientabiseapdbadtecindiiniamebeentiontuciiions 9,14

Civil Liberties for Urban Believers v. City of

Chicago, 342 F.3d 752 (7th Cir. 2003) .......... cesses 3,11

Coronel v. Paul, 316 F. Supp. 2d 868 (D. Ariz. 2004)....... 14

Cutter v. Wilkinson, 544 U.S. 709 (2005) ..........cccecceeeeeeees 12

Episcopal Student Foundation v. Ann Arbor, 341

F. Supp. 2d 691 (E.D. Mich. 2004).............eceseeereee 11, 12

Farrow v. Stanley, No. 02-CV-567-B, 2004 U.S.

Dist. LEXIS 1518 (D.N.H. Feb. 5, 2004).............. 9,10, 14

Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001)....... 12

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006).............. 2, 6, 8

Lyng v. N.W. Indian Cemetery Protective Assoc. , 485

ee ee a catthinsshleirsancunabtdecaciprnacieindainiuniactaasedintedes 12

Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996)................. 14

Marria v. Broaddus, No. 97-CV-8297-NRB, 2003

U.S. Dist. LEXIS 13329 (S.D.N.Y. July 31, 2003)...10, 14

Midrash Sephardi, Inc. v. Town of Surfside, 366

Fe Ee SU DIED errsiccdeniccttnsinencaantceeesiics 3, 6, 9, 12

TABLE OF AUTHORITIES — Continued

Page

Murphy v. Mo. Dep’t of Corrs., 372 F.3d 979 (8th

CR aE iaistkcevibininsnecnsnvintnsseisaienisiasaniatiheassenbiamaaiandadskiuatens 6

San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004) .........ccccssorossossseseeeces 6, 9, 12

Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004).............0.005 9

Sherbert v. Verner, 374 U.S. 398 (1963) ............006 3, 10,11

Spratt v. R.I. Dep’t of Corrs., 482 F.3d 33 (1st Cir.

DT iscisnictessineccsretcpiniesnesectidiiinseniasiadiemaibaniiadal 3, 6, 8

Thomas v. Review Board, 450 U.S. 707 (1981)....3, 6, 10, 11

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.

I? hinaicduisstcsenvvkactssazaniadscenieiccaibasmsedesmistcabemalaaiiccicaesels. 11

Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995).......... 14

STATUTES

Be Tere A? sssccenninscssvsekarsbsebintitaeiesadititdanamieenauaiaas 1

42 U.S.C. §2000cc-1 (Religious Land Use and

Institutionalized Persons Act) ............:cccccsesccsseceseeseees 1,3

OTHER AUTHORITY

Derek L. Gaubatz, RLUIPA at Four: Evaluating the

Success and Constitutionality of RLUIPA’s

Prisoner Provisions, 28 Harv. J.L. & Pub. Pol’y

Fi FI i einstrcssincinntindnnnannaaale 14, 15

BRIEF FOR PETITIONER

Petitioner inmate respectfully requests a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 486

F.3d 112 (5th Cir. 2007), and is reproduced in the Appendix

at App. A. The opinion of the district court is reported at

2005 U.S. Dist. LEXIS 36231 (S.D. Tex. July 15, 2005),

and is reproduced in the Appendix at App. B.

’

JURISDICTION

The court of appeals entered its judgment on May 4,

2007. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

APPLICABLE STATUTORY PROVISION

The portion of the Religious Land Use and Institu-

tionalized Persons Act relevant to this petition is 42 U.S.C.

§ 2000cc-1(a):

No government shall impose a substantial bur-

den on the religious exercise of a person residing

in or confined to an institution, as defined in sec-

tion 1997 of this title, even if the burden results

from a rule of general applicability, unless the

government demonstrates that imposition of the

burden on that person —

(1) is in furtherance of a compelling govern-

mental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

STATEMENT

Petitioner Thomas H. Baranowski seeks review of the

Fifth Circuit’s interpretation of the term “substantial

burden” as used in the Religious Land Use and Institu-

tionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-

1(a). The panel held, incorrectly, that the Texas Depart-

ment of Criminal Justice (“TDCJ”) regulation which forced

Baranowski to forfeit his regular Sabbath group worship

did not constitute a “substantial burden” on Baranowski’s

religious exercise.

In reaching its holding, the panel did not examine

the particularized effect of the TDCJ regulation on

Baranowski’s religious exercise. Instead, the panel relied

on a prior Fifth Circuit case, Adkins v. Kaspar, which also

refused to engage in an adherent-based analysis in deter-

mining whether the burden placed on a prisoner’s reli-

gious exercise by the TDCJ regulation at issue was

substantial. 393 F.3d 559, 570 (5th Cir. 2004), cert. denied,

545 U.S. 1104 (2005).' This approach differs from that of

other circuits, and circumvents the wording and intent of

the statute. See Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.

* The panel noted that the facts in Baranowski are not materially

different from those in Adkins. See Baranowski v. Hart, 486 F.3d 112,

121 (5th Cir. 2007) (“We reach the same result in the instant case... on

facts that are not materially different from Adkins.”).

2006); i,» tt v. RI. Dep’t of Corrs., 482 F.3d 33, 38 (1st

Cir. 2007); Midrash Sephardi v. Town of Surfside, 366 F.3d

1214, 1227-28 (11th Cir. 2004).

The court of appeals buttressed its conclusion by

suggesting that any burden to Baranowski’s religious

exercise was caused most directly by a “dearth of clergy

and authorized volunteers,” and only indirectly by the

prison regulation which required the presence of such

volunteers. Although this “direct/indirect” analysis argua-

bly comports with that of another circuit, it conflicts with

this Court’s doctrine. Compare Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.

2003), cert. denied, 541 U.S. 1096 (2004); with Sherbert v.

Verner, 374 U.S. 398, 404 (1963); Thomas v. Review Board,

450 U.S. 707, 718-19 (1981).

Petitioner Thomas H. Baranowski is a practicing

Jewish prisoner confined by the TDCJ. App. B at 24.

Baranowski, like other observant followers of Judaism, is

obligated to attend congregational services every Friday

evening. TDCJ prison regulations require the presence

and direct supervision of either the unit Chaplain or an

“approved religious volunteer” for any meetings of a

religious nature, including these Sabbath congregational

services. App. B at 32. On September 5 and 12, 2003, as

well as October 3 and 10, 2003, Baranowski’s unit did not

sponsor any Jewish Sabbath services because a Rabbi

or qualified volunteer was not available. App. B at 32.

Baranowski claims, inter alia, that his inability to assem-

ble on every Sabbath and every Jewish holy day “substan-

tially burdens” the practice of his religion, in violation of

RLUIPA.

On July 15, 2005, the United States District Court for

the Southern District of Texas held that the Defendants

had not substantially burdened Baranowski’s religious

exercise, noting that “on the days [Baranowski] claims no

Friday evening services were provided, no rabbi or ap-

proved religious volunteer was available to lead the

services. [Baranowski] does not submit any summary

judgment evidence that defendants turned away an

available rabbi or approved religious volunteer for those

services.” App. B at 38. The district court cited Adkins for

support, noting that government action does not create a

substantial burden on religious expression if it “merely

prevents the adherent from either enjoying some benefit

that is not otherwise generally available or acting in a way

that is not otherwise generally allowed.” App. B at 38

(citing Adkins, 393 F.3d at 570).

The Fifth Circuit affirmed the district court, and

found that the TDCJ regulation that precluded

Baranowski from engaging in group worship on the

Sabbath did not place a substantial burden on his reli-

gious exercise. Like the district court, the Fifth Circuit

panel relied on Adkins for support. Baranowski, 486 F.3d

at 124-25. The Fifth Circuit has now twice held that the

requirement of an outside volunteer for all religious

assemblies does not place a substantial burden on the

religious exercise of inmates, whether or not that require-

ment effectively results, under the particular circum-

stances at issue, in a complete ban on group worship.

REASONS FOR GRANTING THE WRIT

A. The Fifth Circuit’s Application of the RLUIPA

“Substantial Burden” Standard Is Inconsistent

With the Approach of Other Circuits.

The Fifth Circuit’s application of the “substantial

burden” standard in Baranowski and Adkins is inconsis-

tent with the approach taken in other circuits — in both

Fifth Circuit cases, the analysis did not turn on the actual,

particularized effect of the government regulation on the

adherent. In Adkins, the court conceded that Adkins was

prevented from congregating on many holy days. 393 F.3d

at 571. The panel nevertheless concluded that the prereq-

uisite mandated by the prison — the attendance of an

outside volunteer — did not place a substantial burden on

Adkins’s religious exercise. Id. Significantly, it reached

this conclusion without considering whether Adkins could

actually find an outside volunteer for every holy day or

Sabbath. Jd. The court considered the same TDCJ regula-

tion in Baranowski, and again, without considering

whether Baranowski could find an outside volunteer for

each Sabbath and holy day, found no substantial burden

on his religious exercise. 486 F.3d at 124-25.

A close review of Adkins explains the results in both

cases. On the surface, the legal test enunciated in Adkins,

and quoted in Baranowski, is not worlds away from the

tests used in some other circuits — “a government action or

regulation creates a ‘substantial burden’ if it truly pres-

sures the adherent to significantly modify his religious

behavior and significantly violates his religious beliefs.”

393 F.3d at 570.” However, the Adkins panel continued:

And, in line with the foregoing teachings of the

Supreme Court, the effect of a government action

or regulation is significant when it either (1) in-

fluences the adherent to act in a way that vio-

lates his religious beliefs, or (2) forces the

adherent to choose between, on the one hand, en-

joying some generally available, non-trivial bene-

fit, and, on the other hand, following his religious

beliefs. On the opposite end of the spectrum,

however, a government action or regulation

* It is significant, however, that the six circuits to address the issue

have propounded differing definitions for “substantial burden” under

RLUIPA. In Midrash Sephardi, the Eleventh Circuit held that “an

individual’s exercise of religion is ‘substantially burdened’ if a regula-

tion completely prevents the individual from engaging in religiously

mandated activity, or if the regulation requires participation in an

activity prohibited by religion.” 366 F.3d at 1227. The Ninth Circuit, in

San Jose Christian College, held that a substantial burden results from

the imposition of a “significantly great restriction or onus on any

exercise of religion, whether or not compelled by, or central to, a system

of religious belief.” San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024, 1034-35 (9th Cir. 2004). In Murphy, the Eighth Circuit

defined substantial burden to include regulations that “significantly

inhibit or constrain conduct or expression that manifests some central

tenet of a person’s individual religious beliefs,” “meaningfully curtail a

person’s ability to express adherence to his or her faith,” or “deny a

person reasonable opportunities to engage in those activities that are

fundamental to a person’s religion.” Murphy v. Mo. Dep't of Corrs., 372

F.3d 979, 988 (8th Cir. 2004). In Lovelace, the Fourth Circuit held that a

substantial burden “occurs when a state or local government, through

act or omission, ‘put|s) substantial pressure on an adherent to modify

his behavior and to violate his beliefs.” 472 F.3d at 187 (quoting

Thomas. 450 U.S. at 718). The First Circuit, in Spratt, adopted the

Lovelace test. Spratt, 482 F.3d at 38. These varying definitions further

demonstrate the need for this Court’s guidance and clarification on the

correct standard for determining whether a burden is “substantial”

under RLUIPA.

does not rise to the level of a substantial

burden on religious exercise if it merely

prevents the adherent from either enjoying

some benefit that is not otherwise generally

available or acting in a way that is not oth-

erwise generally allowed.

Id. (emphasis added).’ The panel in Adkins focused on the

equal application of the regulation, rather than the par-

ticularized effect of the regulation on the adherent, in

determining that no substantial burden existed.’ Thus,

because unsupervised group worship was not “generally

available,” the restriction of such worship did not consti-

tute a “substantial burden” under RLUIPA. Jd. at 571.

The Baranowski panel also held that the regulation at

issue did not constitute a substantial burden without

determining the particularized effect of requiring an

outside volunteer on Baranowski’s ability to participate in

group Sabbath worship. 486 F.3d at 124-25. For example,

the panel did not analyze the burden of foregoing group

Sabbath worship in light of Baranowski’s individualized

religious beliefs, nor did it recognize the particular diffi-

culty of finding willing outside volunteers — which may be

* As noted earlier, the Baranowski district court relied on this

section of Adkins in determining that Baranowski had not shown a

substantial burden. See App. B at 38.

* See id. at 571 (“With the exception of Muslims who are subject to

a special court order, every religious group at [the prison] is required to

have a qualified outside volunteer on such occasions. ... The require-

ment of an outside volunteer ... is a uniform requirement for all

religious assemblies at [the prison] with the exception of Muslims... .

We admit some lingering concern about the prison authorities’ refusal

to [allow a certain couple to act as volunteers} ... which in turn

prevents YEA members from congregating on the same basis as other

similarly situated groups.”).

significant, considering that such volunteers who are

practicing Orthodox Jews cannot travel from sundown

Friday to sundown Saturday, and thus must stay in the

prison (or within walking distance) to participate in

Sabbath worship. Instead, the panel noted that it consid-

ered a similar regulation in Adkins, and applied its hold-

ing, without considering any particularized differences in

Baranowski’s and Adkins’s situations. Under the

Baranowski and Adkins analysis, then, the nature of the

regulation is the deciding factor, not the effect of the

regulation on the adherent’s religious exercise.

In contrast, other circuits consider the actual, particu-

larized effects on the adherent in determining whether a

prison regulation creates a substantial burden on the

adherent’s religious exercise. For example, in Lovelace, the

Fourth Circuit first considered the particular religious

beliefs of the affected inmate, and then determined that

the prison policy at issue actually restricted his religious

exercise, as it prevented him from fasting during daylight

hours or participating in organized religious services. See

472 F.3d at 187 (“[The dissent] overlooks the fact that the

policy works to restrict the religious exercise of any [Na-

tion of Islam} inmate who cannot or does not fast, but who

still wishes to participate in group services or prayers.”) In

Spratt, an inmate desired to preach to his fellow inmates.

482 F.3d at 35, 38. The First Circuit recognized a substan-

tial burden when, due to a generally-applicable prison

regulation, he was not allowed to preach “anytime or

anywhere.” Jd. Similarly, in deciding whether the reloca-

tion of a synagogue imposed a substantial burden, the

Eleventh Circuit recognized the actual, particularized

effect on observant Jews who may not drive on the Sab-

bath — they would have to walk farther to travel to the

synagogue. Midrash Sephardi, 366 F.3d at 1227-28. The

circuit court found the burden “of walking a few extra

blocks” to the synagogue insubstantial, id., but it is

unlikely that it would also have found the burden insub-

stantial if it meant an outright forfeiture of the right to

congregate on the Sabbath.

In its application of 4 tkins, the court of appeals

fundamentally misapplied RLUIPA by ignoring the ordi-

nary or natural meaning of “burden” — “something that is

oppressive.” See Midrash Sephardi, 366 F.3d at 1226

(“Because RLUIPA does not define ‘substantial burden,’ we

give the term its ordinary or natural meaning.”); San Jose

Christian College, 360 F.3d at 1034 (9th Cir. 2004) (quot-

ing Black’s Law Dictionary to define “burden”). The

Adkins panel did not determine whether a regulation was

oppressive to the adherent. Rather, the analysis in that

case turned on whether the regulation prevented the

adherent from participating in religious exercise that is

not “generally allowed.” This is in substantial conflict with

the many cases recognizing a prison regulation as oppres-

sive to religious exercise despite the fact that the exercise

in question would not be “generally allowed.” See Shakur

v. Selsky, 391 F.3d 106, 120 (2d Cir. 2004); Charles v.

Verhagen, 220 F.Supp. 2d 937, 946 (W.D. Wis. 2002);°

Farrow v. Stanley, No. 02-CV-567-B, 2004 U.S. Dist.

* Plaintiff requested permission to attend the Eid ul Fitr feast, a

Muslim holiday. Jd. at 108.

* Plaintiff requested two communal meals: one to celebrate the end

of Ramadan and one to celebrate the end of the Hajj. Jd. Prison

regulations limited religious feasts to one each year. /d.

LEXIS 1518, at *29-30 (D.N.H. Feb. 5, 2004);’ Marria v.

Broaddus, No. 97-CV-8297-NRB, 2003 U.S. Dist. LEXIS

13329, at *48 (S.D.N.Y. July 31, 2003); Agrawal v. Briley,

No. 02-CV-6807, 2004 U.S. Dist. LEXIS 16997, at *22

(N.D. Ill. Aug. 25, 2004). Baranowski shows that Adkins

was not a one-off situation; the circuit continues to ignore

the fundamental nature of burdens by applying Adkins to

RLUIPA challenges, and by failing to consider the chal-

lenged regulation’s actual particularized effect on the

adherent’s religious exercise. This interpretation and

application of the RLUIPA standard demands correction.

B. The Decision in the Court Below Conflicts With

Supreme Court Doctrine.

In past cases, this Court has not shown special

protection for government action that “indirectly”

burdens religion. In Sherbert v. Verner, this Court held

that an indirect burden may be constitutionally suspect.

374 U.S. 398, 404 (1963); see also id. (noting further

that the “placing of conditions upon a benefit or

privilege” can infringe religious liberty). In Thomas, the

Court held that indirect compulsion may substantially

impinge free exercise rights. 450 U.S. at 718-19; accord

’ Plaintiff requested access to a “sweat lodge,” a place of healing

used to cleanse the body and renew the spirit integral to Native

religions. Jd. at *5.

* Plaintiff requested access to the Supreme Mathematics and the

Supreme Alphabet — both numerology devices associated with the

Nation of Gods and Earths. Jd. at *9.

* Plaintiff requested a nutritious diet free of meat and eggs as

required by the Vaishnava Hindu religion. Jd. at *2.

Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)

(applying Thomas to an RLUIPA claim).

Despite this, the court of appeals justified its decision,

at least in part, by reference to the “indirect” nature of the

religious burden. See Baranowski, 486 F.3d at 125. (“We

explained fin Adkins} that the plaintiff and other YEA

members were not prevented from congregating by prison

policy but by the dearth of clergy and authorized volun-

teers.”); Adkins, 393 F.3d at 571; cf. Civil Liberties for

Urban Believers v. Chicago, 342 F.3d 752, 761 (7th Cir.

2003) (“[A] land-use regulation that imposes a substantial

burden on religious exercise is one that necessarily bears

direct, primary, and fundamental responsibility for rend-

ing religious exercise ... effectively impracticable.”).

Under this interpretation, indirect burdens are somehow

less “substantial” than direct burdens.

The direct/indirect distinction is neither legitimate

nor helpful. Indirect regulations can substantially burden

religion. See Agrawal, 2004 U.S. Dist. LEXIS 16997, at

*20-22 (finding that a regulation that conditioned a

religious diet on written verification by a clergy member

was a substantial burden under RLUIPA). Direct regula-

tions may not substantially burden religion. See Episcopal

Student Found. v. Ann Arbor, 341 F. Supp. 2d 691, 703-07

(E.D. Mich. 2004) (finding a denial of an application to

demolish its existing church did not constitute a substan-

tial burden). Because the Fifth Circuit relies on a distinc-

tion that this Court has already ruled inapposite in

analogous religion cases, this petition should be granted,

and that approach be corrected. See Sherbert, 374 U.S. at

404; Thomas, 450 U.S. at 718-19.

C. The Decision Ignores Distinctions Between

Prisoner and Land-Use Cases.

The Fifth Circuit’s approach also improperly imports

principles relevant to land-use cases into its analysis of

RLUIPA claims brought by prisoners such as Baranowski.

In land-use cases, the adherent usually has an element of

control. See, e.g., Episcopal Student Found., 341 F. Supp.

2d at 704 (finding no “substantial burden” when “the

solution to a majority of Plaintiff’s myriad constraints

appears to lie within Plaintiff’s control”). If a church is

denied a specific land use permit, for instance, the church

may be able to find another suitable site. See San Jose

Christian College, 360 F.3d at 1035. If alternative locations

or opportunities for comparable religious exercise are

available, the regulation may only inconvenience the

adherent, and may not constitute a substantial burden.

See Midrash Sephardi, 366 F.3d at 1227."

In Adkins, the Fifth Circuit cited Lyng v. N.W. Indian

Cemetery Protective Assoc., 485 U.S. 439 (1988), one of this

Court’s land-use cases, to support its assertion that “merely

preventing the adherent from either enjoying some benefit

that is not generally available or acting in a way that is not

generally allowed” is not a “substantial burden” upon an

adherent. Adkins, 393 F.3d at 570. Prisoners, however,

frequently rely wholly on prison management to provide

opportunities for religious exercise. See Cutter v. Wilkinson,

’° In the same vein, if the burdened exercise is one of many means

to the same end, the court may not find any single burden substantial.

See Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (finding that

a restriction on selling t-shirts on the national mall was not a substan-

tial burden on plaintiff’s belief in the need to spread the gospel)

(applying RFRA).

544 U.S. 709 (2005) (“RLUIPA thus protects institutional-

ized persons who are unable freely to attend to their

religious needs and are therefore dependent on the gov-

ernment’s permission and accommodation for exercise of

their religion”). If the government constrains a prisoner’s

religious exercise, therefore, the prisoner often lacks the

power — unlike those outside the prison walls — to seek

alternative opportunities to participate in comparable

forms of worship. In a prison setting, then, it is more likely

that any restriction on religious practice will create a

substantial burden on that practice. See id. at 720-21.

The Fifth Circuit panel did not take Baranowski’s

limited freedoms into account in deciding his appeal.

Although the panel recognized that no rabbi or approved

religious volunteer was available, the Court did not

consider whether Baranowski had a reasonable opportu-

nity to recruit sufficient free-world volunteers to satisfy

the prison’s group-worship regulation — especially consid-

ering the Sabbath travel restrictions for certain Jewish

volunteers. See Baranowski, 486 F.3d at 124-25; cf.

Agrawal, 2004 U.S. Dist. LEXIS 16997, at *21-23 (finding

a prison’s requirement that he receive documentation from

a clergy member to receive a non-traditional diet a sub-

stantial burden because, among other reasons, defendants

did not prove that a clergy member was available, willing,

and able to confirm the adherent’s religious requirements).

The Court did not consider whether Baranowski could

effectively recruit additional free-world volunteers for each

Sabbath from behind prison walls, and thus could not

determine whether the prison regulation effectively forces

him to refrain from Sabbath group worship, resulting in a

complete abandonment of that religious exercise.

Indeed, under the Adkins standard, courts need not

determine whether or not an adherent was forced to

refrain from religious exercise due to a lack of alternative

opportunities for comparable forms of worship. Under that

standard, burdens that force an adherent to refrain from

important religious exercise could still be classified as

insubstantial if the religious exercise is not “generally

allowed.” This defies common sense, along with multiple

courts’ interpretations. See Mack v. O’Leary, 80 F.3d 1175,

1180 (7th Cir. 1996) (interpreting RFRA); Werner v. McCot-

ter, 49 F.3d 1476, 1480 (10th Cir. 1995) (interpreting

RFRA); Charles, 220 F. Supp. 2d at 946; Farrow, 2004 WL

224602, at *9; Agrawal, 2004 U.S. Dist. LEXIS 16997, at

*21-23. In fact, some courts have recognized that, in a

prison setting, restrictions that force adherents to refrain

from group worship substantially burden religious exer-

cise. Marria, 2003 U.S. Dist. LEXIS 13329, at *48-51;

Coronel v. Paul, 316 F.Supp. 2d 868, 881-82 (D. Ariz.

2004), reversed on other grounds by 2007 U.S. App. LEXIS

6928 (9th Cir. Mar. 12, 2007). Because the Fifth Circuit

standard does not consider the degree of control the

prisoner has over alternative means of exercise, the Court

should grant certiorari.

CONCLUSION

Prisoners have filed a significant number of claims

under RLUIPA since its inception. See Derek L. Gaubatz,

RLUIPA at Four: Evaluating the Success and Constitu-

tionality of RLUIPA’s Prisoner Provisions, 28 Harv. J.L. &

Pub. Pol’y 501, 570 (2005) (recognizing sixty discrete

prisoner cases that have ruled on either the merits of the

claim or the constitutionality of RLUIPA). Prisoners will

continue to use RLUIPA to vindicate their statutory

religious rights. Because the Fifth Circuit’s application of

RLUIPA differs from its sister circuits, a prisoner’s right to

religious exercise depends on where he is incarcerated —

an anomalous result, considering that Congress sought to

enact a single nationwide standard through Federal

legislation. This Court should grant certiorari in this case

to harmonize the application of the “substantial burden”

standard. Cf. id. at 516 n.65 (collecting cases with incon-

sistent “substantial burden” standards).

Respectfully submitted,

JOEL L. THOLLANDER

Counsel of Record

McKOoo. SMITH, P.C.

300 W. 6th Street, Suite 1700

Austin, Texas 78701

(512) 692-8700

(512) 692-8744 (FAX)

ANTHONY GARZA

McKOoo. SMITH, P.C.

300 Crescent Court, Suite 1500

Dallas, Texas 75201

(214) 978-4000

(214) 978-4044 (FAX)

Counsel for Petitioner

App. 1

APPENDIX A

THOMAS H BARANOWSEI, Plaintiff-Appellant

CHAPLAIN LARRY HART; LAWRENCE N HODGES,

Huntsville Unit Warden; TED SANDERS, Rabbi

TDCJ Chaplaincy Department; BILL PIERCE,

TDCJ Chaplaincy Department; DOUGLAS DRETKE,

TDCJ-ID, Director

Defendants-Appellees

No. 05-20646

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

486 F.3d 112; 2007 U.S. App. LEXIS 11633

May 4, 2007, Filed

COUNSEL: THOMAS H. BARANOWSKI, Plaintiff-

Appellant, Pro se, Texas Department of Criminal Justice,

Huntsville, TX.

LARRY HART, LAWRENCE N HODGES, Huntsville Unit

Warden, TED SANDERS, BILL PIERCE, TDCJ Chaplaincy

Department, DOUG DRETKE, DIRECTOR, TEXAS DE-

PARTMENT OF CRIMINAL JUSTICE, CORRECTIONS

INSTITUTIONS DIVISION, Defendants-Appellee: Mar-

jolyn Carol Gardner, Assistant Attorney General, Office of

the Attorney General, Law Enforcement Defense Div,

Austin, TX.

JUDGES: Before HIGGINBOTHAM, WIENER, and PRADO,

Circuit Judges.

OPINION BY: PRADO

App. 2

OPINION

PRADO, Circuit Judge:

In this appeal, a Texas prisoner contends that the

defendants-appellees violated his rights under the First

Amendment, the Fourteenth Amendment, and the Reli-

gious Land Use and Institutionalized Persons Act, 42

U.S.C. § 2000cc-1 et seg., by failing to provide weekly

Sabbath and other holy day services, by failing to allow

Jewish prisoners to use the chapel for their religious

services, and by failing to provide him with a kosher diet.

He also alleges that he was improperly denied appoint-

ment of counsel, an evidentiary hearing, and his right to a

jury trial. For the reasons that follow, we AFFIRM the

district court’s order granting summary judgment in favor

of the defendants-appellees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Thomas H. Baranowski (“Baranowski”), an inmate

incarcerated in the Huntsville Unit of the Texas Depart-

ment of Criminal Justice (“TDCJ”), proceeding pro se and

in forma pauperis, filed a civil rights complaint in federal

district court, pursuant to 42 U.S.C. § 1983, against

employees and officials of the TDCJ: Defendants-Appellees

Larry Hart (“Hart”), Huntsville Unit Chaplain; Lawrence

Hodges, Huntsville Unit Warden; Ted Sanders, Rabbi

for the TDCJ; Bill Pierce (“Pierce”), Director of the

TDCJ Chaplaincy Department; and Douglas Dretke,

former Director of the TDCJ (collectively, “Defendants”).’

' Baranowski subsequently moved to dismiss Rabbi Ted Sanders as

a defendant, and the motion was granted.

App. 3

Baranowski’s complaint sought declaratory and injunctive

relief for alleged violations of the First Amendment, the

Fourteenth Amendment, and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc-1 et seq.”

Baranowski, a member of the Jewish faith, alleged

that Defendants “denied Jewish prisoners access to Sab-

bath services while depriving them of worship and fellow-

ship and holyday [sic] services, meals and observances and

finally discriminating against Jewish prisoners and

favoring other faith groups in regard to chapel services,

worship and rehabilitation.” More specifically, Baranowski

asserted that Defendants had deprived him and other

Jewish inmates of access to Friday Sabbath services in

September and October 2003 and High Holy Day services,

had deprived him and other Jewish inmates of access to

the Huntsville Unit, chapel for their religious observances,

and had failed to provide kosher diets conforming with the

dietary laws of Judaism. Baranowski also claimed that

prisoners of other religious faiths were treated more

favorably than Jewish prisoners, citing limited religious

services and chapel access for Jewish prisoners.’

* Baranowski’s complaint also alleged violations of the Fifth and

Ninth Amendments, the Americans with Disability Act, the Rehabilita-

tion Act, and the Texas Religious Freedom Act, as well as a § 1983

retaliation claim. Baranowski has not challenged the district court’s

ruling on these issues, and we decline to consider these claims any

further on appeal. See Yohey vu. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993) (stating that pro se litigants must brief arguments to preserve

them for appellate review).

* Although Baranowski listed other inmates as additional plain-

tiffs, the district court concluded that Baranowski was the only plaintiff

in this lawsuit. Baranowski has not challenged this ruling on appeal.

App. 4

Defendants moved for summary judgment, filing

copies of various prison policies and sworn affidavits in

support. In his affidavit, Pierce, the Director of the TDCJ

Chaplaincy Department, testified that “TDCJ allows all

offenders to worship according to their faith preference in

their cell[s}] using allowed items such as sacred texts,

devotional items, and materials.” According to Pierce,

TDCJ policy is to allow inmates as much freedom and

opportunity as possible for pursuing their individual

beliefs and practices, consistent with agency security,

safety, order, and rehabilitation concerns. Pierce explained

that religious services are provided based on demand,

need, and resources. He further testified that “[c]haplaincy

services are nondiscriminatory in the treatment of offend-

ers’ religious beliefs, but TDCJ policy attempts to take

space, time, and staffing restraints into consideration.”

Pierce stated that of the 145,000 offenders currently

confined in TDCJ, only 900 are self described as Jewish.

Of those, only 70 to 75 are “recognized” as actually practic-

ing their faith, with 90 in the conversion process. Accord-

ing to Pierce, these numbers are very small when

compared to the number of observant Protestants, Catho-

lics, and Muslims.

Pierce also stated that although Jewish programs and

activities are not available at every unit, they are avail-

able at the Huntsville Unit, which is one of seven Jewish

“host” units within the TDCJ. He explained that “[rlabbis,

not offenders, lead Jewish services to ensure that religious

practices reflect Jewish doctrines. There is no other way

for TDCJ to accommodate the demand for Jewish congre-

gational services from practicing Jews.” According to

Pierce, “[blecause of the small number of inmates who

actually practice Judaism and attend Jewish services, as

App. 5

well as the limited availability of rabbis in certain geo-

graphical areas of the state, TDCJ is unable to hold

Jewish services at every Jewish host unit on a weekly

basis.” Pierce testified that services are held at least

monthly at each of the Jewish host units. Pierce explained

that in addition to monthly services, however, the TDCJ

recognizes twenty-one Jewish holy days (compared with

two for Christians), and that time off is permitted for eight

of those days.

Pierce also testified about the numerous requests that

TDCJ receives from inmates for special diets for religious

reasons. He explained that:

While TDCJ tries to accommodate inmates’

religious needs, it must take into account the or-

derly administration of the prison and its re-

sources while not giving any single inmate or

group of inmates preferential treatment. If TDCJ

were to grant one inmate’s request for a special

diet or religious item, numerous inmates would

request similar special privileges.

TDCJ has reviewed requests for kosher diets

and has studied the impact of complying with

such a request, by either providing a separate

kosher kitchen or by bringing in kosher food from

the outside. TDCJ has determined that it would

be far too costly and would far exceed the allotted

budget to provide kosher food. No TDCJ unit is

currently set up to accommodate a kosher diet,

which requires food preparation under certain

ritual requirements and without contact with

non-kosher food. Given the small number of of-

fenders identifying themselves as Jewish (and

the small number recognized as practicing Jews

App. 6

by TDCJ Jewish authorities), and their various

classification and programmatic needs, at least

several units would have to remodel their kitch-

ens and substantially alter food preparation pro-

cedures. Kosher meals also are very costly. The

state of Florida has reported that it costs them

between 12 and 15 dollars per day per offender to

provide kosher meals compared with $2.46 per

day the State of Texas pays for offender meals.

Providing kosher meals for a very small subset of

offenders would place a tremendous burden on

the ability of TDCJ to provide a nutritionally ap-

propriate meal to all other offenders because of

the budgetary impact alone. Furthermore, due to

budget deficits, the Texas Legislature at the last

legislative session specifically targeted inmate

food services for a mandatory reduction in the bi-

ennial of more than $6 million. Providing kosher

meals would put a great strain on an already

strained system, and would raise resentment

among other inmates because payments for ko-

sher meals would of necessity come out of the

general food budget for all inmates. The problem

would be compounded because inmates of other

faiths would seek similar privileges.

Pierce testified that as an alternative to kosher meals, “all

inmates may choose to be served a pork-free diet or a

vegetarian diet.” In addition, Jewish inmates may receive

kosher items from the Aleph Institute, a not-for-profit

organization, at no cost to the state of Texas.

Prison policy 3.01, which Defendants included with

their summary judgment motion, elaborates on TDCJ’s

diet policy and substantiates Pierce’s testimony. It declares

that the “[gleneral population may select a regular tray, a

meat-free tray, or a pork-free tray from the food service

App. 7

line. Any type of meal may be selected from meal to meal.”

It goes on to state:

[tlo assure minimal nutritional needs are met,

menu item replacements using one of three op-

tions shall be made when meat or pork is not

served:

¢ Option 1-1 oz. of sliced cheese, additional 4

oz. of beans and additional serving of bread.

e Option 2-1 hard-boiled egg and 1 peanut

butter and jelly sandwich.

e Option 3-1 peanut butter and jelly sand-

wich and additional 4 oz. serving of beans.

Finally, the policy adds that while chaplains may assist

offenders in understanding what the food preferences or

restrictions are for various religions, it is the offender’s

responsibility to follow dietary preferences or restrictions

based on his designated faith preference.

Defendants also introduced affidavit testimony of

Hart, a chaplain at the Huntsville Unit, in support of their

summary judgment motion. Hart testified that because

rabbis or approved outside volunteers lead Jewish ser-

vices, “[s]cheduled events may be delayed or canceled

when qualified spiritual leaders are not available.” The

Huntsville Unit has a contract rabbi who works with Hart

to schedule Jewish services, order religious items, and

authorize time off for Jewish holy days. Hart explained

that Jewish services in September and October 2003 were

canceled, as complained of by Baranowski, because a rabbi

or qualified volunteer was not available.

App. 8

Hart also testified about the use of the Huntsville

Unit chapel. He explained that Friday night Sabbath

services for the twelve Jewish inmates who routinely

attend are held in the Education Department and not the

chapel because the chapel is made available to the New

Birth Bible Program, a group consisting of approximately

175 participants. Hart pointed out that the chapel is open

to all offenders from 10:30 a.m. until 11:30 a.m. on Mon-

day through Thursday for religious study.

The district court granted summary judgment and

entered a judgment dismissing the complaint with preju-

dice. The district court held that the summary judgment

evidence showed that restrictions on Baranowski’s reli-

gious observances were justified by valid penological

interests related to prison staffing, space limitations, and

the financial burden of accommodating Baranowski’s

requests. The district court concluded that Baranowski

had not shown that Defendants purposefully discrimi-

nated against him or that similarly situated individuals

were treated differently. The district court also held that

Baranowski had failed to present prima facie evidence

that Defendants had “substantially burdened” his reli-

gious practices under RLUIPA. The district court con-

cluded that even assuming Baranowski were to establish a

substantial burden on his religious observance, “defen-

dants’ financial, safety, space, and security concerns for

the prison, its inmates, and employees, and the goal of

maintaining a neutral policy of religious accommodation

for all recognized religious faiths, are compelling govern-

mental interests.”

Baranowski now appeals. We have jurisdiction over

this appeal pursuant to 28 U.S.C. § 1291.

App. 9

II. STANDARD OF REVIEW

We review the district court’s grant of summary

judgment de novo. Freeman v. Tex. Dep't of Criminal

Justice, 369 F.3d 854, 859 (5th Cir. 2004). Summary

judgment is warranted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, to-

gether with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED.

R. CIV. P. 56(c). If the movant satisfies its initial burden of

demonstrating the absence of a material fact issue, then

“‘the non-movant must identify specific evidence in the

summary judgment record demonstrating that there is a

material fact issue concerning the essential elements of its

case for which it will bear the burden of proof at trial.’”

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429

(5th Cir. 1996) (en banc) (quoting Forsyth v. Barr, 19 F.3d

1527, 1533 (5th Cir. 1994) (citations omitted)). “However,

the nonmovant cannot satisfy this burden with conclusory

allegations, unsubstantiated assertions, or only a scintilla

of evidence.” Freeman, 369 F.3d at 860.

III. DISCUSSION

Baranowski’s appeal raises three challenges to the

district court’s summary judgment ruling: the dismissal of

his free exercise claim; the dismissal of his equal protec-

tion claim; and the dismissal of his RLUIPA claim.*

‘ Two additional issues raised by Baranowski can be disposed of

here. First, Baranowski attempts to appeal the district court’s denials

of his motions for temporary restraining orders, but it is well estab-

lished in this circuit that the denial of an application for a temporary

restraining order is not appealable. See House the Homeless, Inc. v.

(Continued on following page)

App. 10

Baranowski also contends that he was wrongly denied

appointment of counsel, an evidentiary hearing, and the

right to his day in court. We address each issue in turn.

A. Free Exercise Claim

Baranowski argues that Defendants have impeded his

free exercise of religion under the First Amendment by

denying him access to Jewish Sabbath and other holy day

services, by depriving him of kosher meals required by his

faith, and by denying him access to the Huntsville Unit

chapel for religious observances. Defendants counter that

valid penological objectives, including security, staff and

space limitations, and financial burdens, justify TDCJ’s

policies, and that Baranowski has alternative means of

practicing his religion.

This court reviews prison policies that impinge on

fundamental constitutional rights under the deferential

standard set forth in Turner v. Safley, 482 U.S. 78, 107

S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Under Turner, a prison

regulation that impinges on an inmate’s constitutional

rights is valid if it is reasonably related to legitimate

penological interests. Jd. at 89. Turner requires the court

to consider four factors: (1) whether a valid and rational

connection exists between the prison regulation and the

legitimate governmental interest put forward to justify it;

Widnall, 94 F.3d 176, 180 n.8 (5th Cir. 1996). Second, Baranowski

contends in his reply brief that he has raised a claim of “denial of due

process rights to practice his Jewish faith.” However, he has done

nothing more than mention this as an issue, without any reference to it

in the argument section of his initial or reply brief or any citation of

legal authority. We decline to consider it further on appeal. See Yohey,

985 F.2d at 224-25.

App. 11

(2) whether there are alternative means of exercising the

right that remain open to prison inmates; (3) the impact of

the accommodation on prison guards, other inmates, and

the allocation of prison resources generally; and (4)

whether there are “ready alternatives” to the regulation in

question. Jd. at 89-90. “A court ‘must determine whether

the government objective underlying the regulation at

issue is legitimate and neutral, and that the regulations

are rationally related to that objective.” Freeman, 369

F.3d at 860 (quoting Thornburgh v. Abbott, 490 U.S. 401,

414-15, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989)); see also

Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 80-81 (5th Cir.

1992) (explaining that a court need not “weigh evenly, or

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

controlling standard).

Turning to the Turner factors, we hold that the TDCJ

policies on the availability of religious services and use of

the chapel pass constitutional muster. In so holding, we

are guided by this circuit’s recent decision in Adkins v.

Kaspar, 393 F.3d 559 (5th Cir. 2004).

In Adkins, the plaintiff argued that his free exercise

rights were denied when he and other members of the

Yahweh Evangelical Assembly (“YEA”) were not permitted

to assemble on every Sabbath day and on particular holy

days because no volunteer deemed acceptable by the

defendants was available to supervise the meetings. 393

F.3d at 564. Applying the Turner factors, the court in

Adkins first recognized that this court had recently held

that the TDCJ’s religious accommodationpolicy is ration-

ally related to legitimate government objectives. /d. (citing

Freeman, 369 F.3d at 861); see also Freeman, 369 F.3d

at 861 (holding that TDCJ’s religious accommodation

policy “is neutral — it ‘operatels] ... without regard to the

App. 12

content of the expression’”) (quoting Turner, 482 U.S. at

90). The court then looked to the second Turner factor,

recognizing that “‘[t]he pertinent question is not whether

the inmates have been denied specific religious accommo-

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

inmates opportunities to exercise their faith.’” Adkins, 393

F.3d at 564 (quoting Freeman, 369 F.3d at 861). The court

concluded that YEA members had alternative means of

exercising their religion, given their access to religious

materials and their ability to hold and attend live services

when a spiritual leader was available. Jd. Applying the

third Turner factor, the court reasoned:

The 20 to 25 active members of YEA consti-

tute less than one percent of the large inmate

population at Coffield. Requiring the defendants

to accommodate every religious holiday and re-

quirement of the YEA, regardless of the avail-

ability of volunteers, space, or time, could “spawn

a cottage industry of litigation and could have a

negative impact on prison staff, inmates and

prison resources.” Moreover, if Adkins were ac-

commodated and other similarly situated small

religious groups were not, the YEA could appear

to be favored over the others, a perception that

could have a negative effect on prison morale and

discipline.

Id. at 565 (quoting Freeman, 369 F.3d at 862). Finally,

under the fourth Turner prong, the court determined that

“no obvious, easy alternatives would accommodate both

Adkins and the TDCJ’s administrative needs.” Jd. (inter-

nal quotation marks and citation omitted). The court

concluded that in light of the Turner factors, the dismissal

of the plaintiff’s free exercise claim was proper.

App. 13

We reach the same result in the instant case pursuant

to Turner on facts that are not materially different from

Adkins. The record demonstrates that the prison policies

at issue here are logically connected to legitimate pe-

nological concerns of security, staff and space limitations,

and that there are no obvious or easy alternatives.

Baranowski’s main complaint is that the prison could

accommodate the need for weekly Jewish services if

inmates were permitted to lead the services without the

assistance of a rabbi or approved outside volunteer. How-

ever, Adkins rejected this argument, and we do so again

here. The summary judgment evidence shows that despite

being denied weekly Sabbath services and other holy day

services when a rabbi or approved volunteer is not pre-

sent, Baranowski retains the ability to participate in

alternative means of exercising his religious beliefs,

including the ability to worship in his cell using religious

materials and the ability to access the chapel and lockers

containing religious materials on certain days and times.”

See O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52, 107

S. Ct. 2400, 96 L. Ed. 2d 282 (1987) (upholding a regula-

tion that prevented Muslim prisoners from attending

Friday Jumu’ah services, and recognizing that although

there were “no alternative means of attending Jumu’ah

[since] respondents’ religious beliefs insist that it occur at

a particular time,” inmates were “not deprived of all forms

of religious exercise, but instead freely observe a number

of their religious obligations”); see also Turner, 482 U.S.

at 90 (“Where other avenues remain available for the

* Although Baranowski contends that some inmates could not take

advantage of the weekday religious study in the chapel because of work

assignments, he does not claim that he was not able to do so himself.

App. 14

exercise of asserted rights, courts should be particularly

conscious of the measure of judicial deference owed to

corrections officials in gauging the validity of the regula-

tion.”) (internal quotation marks, citations, and alterations

omitted). Finally, the Jewish population at the TDCJ

constitutes less than one percent of the total inmate

population. If this court were to require the TDCJ to

accommodate every religious holiday and requirement of

the Jewish faith, regardless of the availability of qualified

volunteers and adequate space and security, we “would

spawn a cottage industry of litigation and could have a

negative impact on prison staff, inmates, and prison

resources.” Freeman, 369 F.3d at 862. We decline to yield

to Baranowski’s demands.

We reach the same result on TDCJ’s policy of not

providing kosher meals. This circuit has already ruled that

prisons need not respond to particularized religious

dietary requests to comply with the First Amendment. See

Kahey v. Jones, 836 F.2d 948 (5th Cir. 1988); Udey v.

Kastner, 805 F.2d 1218 (5th Cir. 1986).

In Kahey, we held that the prison was not required to

accommodate a Muslim inmate’s request for a kosher diet,

with particularized requirements regarding the content

and preparation of food. 836 F.2d at 950-51. In applying

the Turner factors, the court concluded that there was a

logical connection between the prison policy on inmate diet

and the “legitimate governmental interest in running a

simplified prison food service rather than a full-scale restau-

rant.” Id. at 950. The court also determined that the inmate’s

practice of Islam was “not entirely circumscribed in the

prison, and that this factor, as the [Supreme Court] found in

O’Lone, compensates for the prison’s failure to satisfy her

dietary demand.” Jd. at 951. The court concluded that the

App. 15

impact of granting the inmate’s request would be expen-

sive, diverting resources from other penological goals, and

could result in the perception that certain inmates were

favored over others, which would have an adverse impact

on prison morale. Jd. Finally, the court found that there

were simply no ready alternatives to satisfy the inmate’s

dietary requirements at a de minimis cost to the prison.

Id.; see also Turner, 482 U.S. at 91.

Udey, decided before the Supreme Court’s decision in

Turner, also held that the First Amendment did not re-

quire a prison to provide an inmate with a diet consistent

with his religious beliefs. 805 F.2d at 1221. The court

reasoned that meeting the inmate’s religious and dietary

requirements would place undue costs and administrative

burdens on the prison system because of the likelihood of

proliferation of such requests and the concomitant need to

meet multiple distinct dietary requests. Id.

For the reasons stated by the courts in Kahey and

Udey, we conclude that denial of a kosher diet does not

violate Baranowski’s free exercise rights. Consequently, we

affirm the district court’s dismissal of Baranowski’s First

Amendment claim.

B. Equal Protection Claim

Baranowski next alleges that Defendants violated his

equal protection rights by favoring other religions over

Judaism. Specifically, he contends Christian and Muslim

services are conducted more frequently than Jewish

services, and that other groups have greater access to the

chapel. Defendants respond that Baranowski has provided

no summary judgment evidence of purposeful discrimina-

tion regarding any of his allegations.

App. 16

To succeed on his equal protection claim, Baranowski

“‘must prove purposeful discrimination resulting in a

discriminatory effect among persons similarly situated.’”

Adkins, 393 F.3d at 566 (quoting Muhammad v. Lynaugh,

966 F.2d 901, 903 (5th Cir. 1992)). “However, the Four-

teenth Amendment does not demand ‘that every religious

sect or group within a prison — however few in numbers —

must have identical facilities or personnel.’” Freeman, 369

F.3d at 862-63 (quoting Cruz v. Beto, 405 U.S. 319, 322 n.2,

92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972)). Rather, prison

officials must afford prisoners “reasonable opportunities

... to exercise the religious freedom guaranteed by the

First and Fourteenth Amendment([s].” Cruz, 405 U.S. at

322 n.2. “Turner applies with corresponding force to equal

protection claims.” Freeman, 369 F.3d at 863.

Baranowski’s equal protection claim must fail. He has

offered no competent summary judgment evidence that

similarly situated faiths are afforded superior treatment,

or that TDCJ’s policies are the product of purposeful

discrimination.® Although Baranowski claims that other

religious groups have greater access to the chapel, it is

recognized that “[a] special chapel or place of worship need

not be provided for every faith regardless of size; nor must

a chaplain, priest, or minister be provided without regard

to the extent of the demand.” Cruz, 405 U.S. at 322 n.2. It

is therefore not constitutionally impermissible for Defen-

dants to consider the demand and need of the group

requesting the chapel, along with space and staffing

* To the extent Baranowski is raising an equal protection claim

regarding the denial of kosher meals, the uncontroverted summary

judgment evidence shows that the TDCJ does not serve kosher meals to

any inmate.

App. 17

limitations, when deciding where religious groups will

conduct their services. See id. (noting that the Constitu-

tion does not demand that every religious group, regard-

less of size, have identical facilities).

In sum, Baranowski has failed to provide anything

more than bald and unsubstantiated allegations that

Defendants purposefully discriminated against him. This

is not enough to succeed on an equal protection claim. See

Adkins, 393 F.3d at 566. We therefore affirm the district

court’s dismissal of this claim.

C. RLUIPA Claim

Baranowski next argues that his inability to observe

Sabbath and other holy day services and his inability to

consume kosher meals substantially burden his ability to

practice Judaism, in violation of RLUIPA. As a “Torah-

observant Jew,” Baranowski claims that he is compelled to

observe the Sabbath and other holy days and to consume

kosher food. He contends that the substantial burdens

imposed by Defendants pressure him to modify his behav-

ior and to violate his sincerely held religious beliefs.

Defendants counter that Baranowski has failed to estab-

lish that his religious practices are substantially bur-

dened. In the alternative, Defendants argue that their

policies are the least restrictive means of furthering their

compelling interests of security, safety, space, personnel,

and financial concerns for the prison and its inmates and

employees.

RLUIPA mandates that

[nJo government shal! impose a substantial bur-

den on the religious exercise of a person residing

in or confined to an institution ... even if the

App. 18

burden results from a rule of general applicabil-

ity, unless the government demonstrates that

imposition of the burden on that person —

(1) is in furtherance of a compelling govern-

mental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). “RLUIPA thus protects institu-

tionalized persons who are unable freely to attend to their

religious needs and are therefore dependent on the gov-

ernment’s permission and accommodation for exercise of

their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721, 125

S. Ct. 2113, 161 L. Ed. 2d 1020 (2005).

The threshold inquiry under RLUIPA is whether the

challenged governmental action substantially burdens the

exercise of religion. The burden of proving the existence of

a substantial interference with a religious exercise rests

on the religious adherent. 42 U.S.C. § 2000cc-2(b). If such

a substantial burden is proven, it is then up to the gov-

ernment to demonstrate that the compelling interest test

is satisfied. See id.

RLUIPA defines “religious exercise” to include “any

exercise of religion, whether or not compelled by, or central

to, a system of religious belief.” Id. § 2000cc-5(7)(A).’ “‘[T]he

“exercise of religion” often involves not only belief and

” “Although RLUIPA bars inquiry into whether a particular belief

or practice is ‘central’ to a prisoner’s religion ... the Act does not

preclude inquiry into the sincerity of a prisoner’s professed religiosity.”

Cutter, 544 U.S. at 725 n.13. Here, however, Defendants have not

argued that Baranowski is not sincere in his beliefs, and the record

gives us no reason to question the sincerity of his religious beliefs.

App. 19

profession but the performance of ... physical acts [such

as] assembling with others for a worship service [or]

participating in sacramental use of bread and wine... .’”

Cutter, 544 U.S. at 720 (quoting Employment Div., Dep't of

Human Res. of Ore. v. Smith, 494 U.S. 872, 877, 110 S. Ct.

1595, 108 L. Ed. 2d 876 (1990)). There is no question that

the activities alleged to be burdened in this case — Jewish

Sabbath and holy day services and keeping kosher —

qualify as “religious exercises” for the practice of Judaism

under RLUIPA’s generous definition. See Adkins, 393 F.3d

at 567-68 (stating that Sabbath and holy day gatherings

“easily qualify as ‘religious exercise’”); Guzzi v. Thompson,

470 F. Supp. 2d 17, 25 (D. Mass. 2007) (stating that the

practice of “keeping kosher” constitutes a religious exer-

cise for the Jewish faith).

In Adkins, we considered the meaning of “substantial

burden,” which is not defined by the statute. We held that

“for purposes of applying the RLUIPA in this circuit, a

government action or regulation creates a ‘substantial

burden’ on a religious exercise if it truly pressures the

adherent to significantly modify his religious behavior and

significantly violate his religious beliefs.” 393 F.3d at 569-

70. The court cautioned, however, that “our test requires a

case-by-case, fact-specific inquiry to determine whether

the government action or regulation in question imposes a

significant burden on an adherent’s religious exercise. .. .”

Id. at 571.

We first consider whether Baranowski’s religious

exercise was substantially burdened when he was pre-

vented from congregating with other Jewish inmates on

many Sabbath and Jewish holy days. The uncontroverted

summary judgment evidence shows that on the days

Baranowski claims that services were not provided, no

App. 20

rabbi or approved religious volunteer was available to lead

the services. This court considered a similar claim under

RLUIPA in Adkins; the plaintiff in that case was pre-

vented from gathering with other YEA members for

various religious observances. We explained that the

plaintiff and other YEA members were not prevented from

congregating by prison policy but by the dearth of clergy

and authorized volunteers. Id. We held that the require-

ment of an outside volunteer did not place a substantial

burden on the plaintiff’s religious exercise under RLUIPA.

Id. In light of this court’s decision in Adkins and the

summary judgment evidence before us, we are convinced

that the acts of Defendants regarding religious services

have not placed a substantial burden on Baranowski’s free

exercise of his Jewish faith, within the contemplation of

RLUIPA. See id.

We next consider whether the failure of Defendants to

provide Baranowski with a kosher diet constitutes a sub-

stantial burden on his religious exercise. Baranowski

argues that his inability to consume kosher food has pres-

sured him to modify his behavior and to violate his sin-

cerely held religious beliefs. Cf’ Ran-Dav’s County Kosher,

Inc. v. New Jersey, 129 N.J. 141, 608 A.2d 1853, 1355-56

(N.J. 1992) (describing Jewish dietary laws and their

significance to Judaism). Given the strong significance of

keeping kosher in the Jewish faith, the TDCJ’s policy of not

providing kosher food may be deemed to work a substantial

burden upon Baranowski’s practice of his faith.

Turning to the compelling interest test, Defendants

must show that their dietary policy of not providing kosher

meals is the leasi restrictive means of furthering a compel-

ling governmental interest. As the Supreme Court recently

explained, “‘|cjontext matters’ in the application of that

App. 21

standard.” Cutter, 544 U.S. at 723 (quoting Grutter v.

Bollinger, 539 U.S. 306, 327, 123 S. Ct. 2325, 156 L. Ed. 2d

304 (2003)). Courts should apply the “compelling govern-

mental interest” standard with “‘due deference to the

experience and expertise of prison and jail administrators

in establishing necessary regulations and procedures to

maintain good order, security and discipline, consistent

with consideration of costs and limited resources.’” Id.

(quoting S. REP. NO. 103-111, at 10 (1993)) RLUIPA, in

other words, is not meant to elevate accommodation of

religious observances over the institutional need to main-

tain good order, security, and discipline or to control costs.

See Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006).

The uncontroverted summary judgment evidence

submitted by Defendants establishes that TDCJ’s budget

is not adequate to cover the increased expense of either

providing a separate kosher kitchen or bringing in kosher

food from the outside; that TDCJ’s ability to provide a

nutritionally appropriate meal to other offenders would be

jeopardized (since the payments for kosher meals would

come out of the general food budget for all inmates); that

such a policy would breed resentment among other in-

mates; and that there would be an increased demand by

other religious groups for similar diets.

Based on the record before us, we hold that this policy

is related to maintaining good order and controlling costs

and, as such, involves compelling governmental interests.

Cf. Andreola v. Wisconsin, 211 Fed. Appx. 495 at 499, 2006

WL 3724633, at *3 (7th Cir. 2006) (unpublished) (finding

no RLUIPA violation where the defendant did not provide

kosher meals based on the compelling governmental

interests of maintaining security and “abating the costs of

a prisoner’s keep”). Further, the administrative and

App. 22

budgetary interests at stake cannot be achieved by any

different or lesser means. Cf. Cutter, 544 U.S. at 726

(“Should inmate requests for religious accommodations

become excessive, impose unjustified burdens on other

institutionalized persons, or jeopardize the effective

functioning of an institution, the facility would be free to

resist the imposition.”). Accordingly, we conclude that the

district court properly granted summary judgment on

Baranowski’s RLUIPA claim.

D. Other Claims

Lastly, Baranowski claims that the district court erred

in denying his request for appointment of counsel and by

not giving him an evidentiary hearing or his day in court.

These claims are without merit.

Under 28 U.S.C. § 1915(e)(1), the court may appoint

an attorney to represent a litigant in federal court, but

there is no automatic right to appointment of counsel in a

civil rights case. See Castro Romero v. Becken, 256 F.3d

349, 353-54 (5th Cir. 2001). “In evaluating whether the

appointment of counsel is proper, the district court consid-

ers the type and complexity of the case, the litigant’s

ability to investigate and present the case, and the level of

skill required to present the evidence.” Jd. at 354. We

review the district court’s denial of appointment of counsel

for an abuse of discretion. Jd.

The district court held that Baranowski did not have a

right to court-appointed counsel because of his “demon-

strated ability to litigate his case” and “the elementary

nature of [the] issues” involved in the case. After reviewing

the record, we conclude that the district court did not

abuse its discretion.

App. 23

We also conclude that Baranowski has failed to show

how his claims would have been advanced by an eviden-

tiary hearing. He argues that he has not been given a

chance to present “real evidence to support his wholesome

claims.” Baranowski has not shown why a hearing is

needed to bring forth such evidence or why he did not

present this evidence in his opposition to Defendants’

motion for summary judgment. Accordingly, we cannot

hold that the district erred in not conducting an eviden-

tiary hearing.

Finally, Baranowski’s claim that he was denied a jury

trial is frivolous. Federal Rule of Civil Procedure 56(c)

requires the court to render summary judgment if the

appropriate materials on file “show that there is no genu-

ine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” As this court

has explained, “(t]he function of the jury is to try the

material facts; where no such facts are in dispute, there is

no occasion for jury trial. Thus the right to trial by jury

does not prevent a court from granting summary judg-

ment.” Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.

1988). When the district court properly entered summary

judgment dismissing Baranowski’s claims, his demand for

a jury trial became moot. See id.

IV. CONCLUSION

For the reasons stated above, we affirm the district

court’s grant of summary judgment.

AFFIRMED.

App. 24

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

THOMAS A. BARANOWSKI, §

TDCJ-CID # 378384 §

Dey §

Plaintiff, § CIVIL ACTION

" § NO. H-03-3893

LARRY HART, et al., ;

Defendants. 8

MEMORANDUM OPINION AND ORDER

Thomas A. Baranowski,’ an inmate incarcerated in the

Texas Department of Criminal Justice ~ Correctional Institu-

tions Division (TDCJ) Huntsville Unit, proceeding in forma

pauperis and pro se, filed a civil rights complaint under 42

U.S.C. § 1983 and 42 U.S.C. § 2000cc-1, et seg. (RLUIPA)

against TDCJ Chaplain Larry Hart, Warden Lawrence Neill

Hodges, Bill Pierce, Ted Sanders, and Douglas Dretke.

Pending before the Court are plaintiff’s motions to

dismiss Ted Sanders (Docket Entry No. 15), for an eviden-

tiary hearing, and for appointment of counsel (Docket

Entries No. 28 and 29). Respondents have filed a motion

for summary judgment (Docket Entry No. 17), to which

plaintiff has responded (Docket Entry No. 18). For the

* Baranowski named other inmates as additional plaintiffs in his

lawsuit. (Docket Entry No. 6, Part D.) These individuals have not

signed any pleadings, sought joinder, or intervened as plaintiffs, and no

class action status has been granted by the Court. Accordingly,

Baranowski is the only plaintiff in this lawsuit.

App. 25

reasons set forth below, summary judgment will be

GRANTED and this case dismissed.

I. Background and Claims

According to his form complaint (attached to Docket

Entry No. 4) and first amended complaint (Docket Entry

No. 6), plaintiff is an inmate practicing the Jewish faith.

He claims that the defendants violated the Religious Land

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-

1 (RLUIPA), and his First and Fourteenth Amendment

rights of religious freedom, equal protection, and due

process, by (1) not providing Friday evening services

during September and October, 2003; (2) not providing

Saturday morning services (followed by showers); (3) not

providing services for the 2003 Jewish High Holy Days; (4)

not providing a “break-the-fast” meal following the 2003

Yom Kippur day of fasting; (4) limiting access to religious

tapes and books located in the prison chapel; (5) not

providing kosher-prepared meals; and (6) holding Friday

evening services in a classroom instead of the chapel.

Plaintiff seeks a declaratory judgment, a permanent

injunction, changes in TDCJ policies regarding Jewish

inmates (Docket Entry No. 4, Complaint), and unspecified

damages (Docket Entry No. 6, Part F).

In their motion for summary judgment, defendants

argue, inter alia, that plaintiff’s claims are without merit

and should be dismissed.

The Court first will address plaintiff’s pending non-

dispositive motions.

App. 26

Il. Plaintiff’s Non-Dispositive Motions

A. Motion to Dismiss Ted Sanders

Plaintiff requests that Ted Sanders be dismissed as a

defendant (Docket Entry No. 15). The motion is

GRANTED, and Ted Sanders is dismissed from this

lawsuit.

B. Motion for Leave and Motion for an Eviden-

tiary Hearing

Plaintiff has filed a motion seeking leave to file a

motion for an evidentiary hearing, and a motion for an

evidentiary hearing. (Docket Entries No. 28, 29). Because

the Court will grant summary judgment dismissing this

lawsuit, the motions are DENIED AS MOOT.

C. Motion for Leave and Motion for Appointment

of Counsel

Plaintiff has filed a motion seeking leave to file a

(second) motion for appointment of counsel, and a (second)

motion for appointment of counsel. (Docket Entries No. 28,

29). Because the Court will grant summary judgment

dismissing this lawsuit, the motions are DENIED AS

MOOT. Moreover, and as the Court stated in its order

denying plaintiff’s first request for counsel, there is no

right to court-appointed counsel in a civil rights case, and

appointment of counsel is not warranted in this lawsuit

due to the elementary nature of its issues and plaintiff’s

demonstrated ability to litigate his case.

App. 27

Ii, Summary Judgment Standards

In deciding a motion for summary judgment, the court

must determine whether the pleadings, answers to inter-

rogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law. FED. R. Civ. P. 56(c). Once

the movant presents a properly supported motion for

summary judgment, the burden shifts to the nonmovant to

show with significant probative evidence the existence of a

genuine issue of material fact. Hamilton v. Segue Soft-

ware, Inc., 232 F.3d 473, 477 (5th Cir. 2000). All evidence

must be construed in the light most favorable to the

nonmoving party without weighing the evidence, assessing

its probative value, or resolving any factual disputes.

Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181

(5th Cir. 1996). However, the nonmovant cannot rely on

conclusory allegations or unsubstantiated assertions to

establish that there is a triable issue. Wallace v. Texas

Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996).

IV. First Amendment Claims

Plaintiff complains that defendants violated his right

to religious freedom by (1) not providing Friday evening

services during September and October, 2003; (2) not

providing Saturday morning services (followed by show-

ers); (3) not providing services for the 2003 Jewish High

Holy Days; (4) not providing a “break-the-fast” meal

following the 2003 Yom Kippur day of fasting; (4) limiting

access to religious tapes and books located in the prison

chapel; (5) not providing kosher-prepared meals; and (6)

holding Friday evening services in a classroom instead of

the chapel.

App. 28

The Constitution requires that an inmate be given a

reasonable opportunity to exercise the religious freedoms

guaranteed by the First and Fourteenth Amendments.

Cruz v. Beto, 405 U.S. 319, 322 (1972). An inmate retains

his First Amendment right to the free exercise of his

religion, subject to reasonable restrictions and limitations

necessitated by penological goals. Turner v. Safley, 482

U.S. 78, 89-91 (1987); O’Lone v. Estate of Shabazz, 482

U.S. 342, 349-50 (1987). Prison officials have a duty to

accommodate an inmate’s religious beliefs unless there is a

legitimate penological interest which prevents such

accommodation. Eason v. Thaler, 14 F.3d 8, 10 (5th Cir.

1994). If a prison regulation impinges on an inmate’s first

amendment rights, the regulation is valid only if it is

reasonably related to a legitimate penological interest.

Turner, 482 U.S. at 87. If the court is reviewing action

taken by prison officials rather than a regulation, the

same standard is applicable to determine whether the

prison official’s act is constitutionally permissible. Jackson

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

In determining whether a regulation or policy is a

valid restriction reasonably related to a legitimate pe-

nological interest, the Court considers the following

factors:

(1) whether there exists a valid, rational con-

nection between a restriction and the gov-

ernmental interest invoked to justify it;

(2) the availability of an alternative means to

exercise the restricted right;

(3) the impact on guards, other inmates, and

the allocation of prison resources that would

result from accommodating the asserted

right; and

App. 29

(4) whether there are ready alternatives to the

restriction.

Turner, 482 U.S. at 89-91; Adkins v. Kaspar, 393 F.3d 559,

564 (5th Cir. 2004). In support of summary judgment,

defendants present the following affidavit testimony of

Billy Pierce, Director of the TDCJ Chaplaincy Depart-

ment:

The Chaplaincy Department receives numerous

requests from inmates for special consideration

in terms of religious items, diets, services, and

privileges. While TDCJ tries to accommodate

inmates’ religious needs, it must take into ac-

count the orderly administration of prison and its

resources while not giving any single inmate or

group of inmates preferential treatment. If TDCJ

were to grant one inmate’s request for a special

diet or religious item, numerous inmates would

request similar special privileges.

There are approximately 145,000 offenders cur-

rently confined in TDCJ, and only about 900

classify themselves as Jewish. Not all of self-

identified Jewish offenders actively practice their

faith. There are approximately 70 to 75 offenders

in TDCJ who are recognized as Jewish and ap-

proximately 90 more who are in the conversion

process. These numbers are very small compared

to the total number of offenders and to the num-

bers of Protestants, Catholics, and Muslims... .

Limited resources and the low Jewish population

preclude Jewish activities, classes, and programs

at every unit. Instead, TDCJ has limited Jewish

programs and classes to seven units designated

as Jewish host units [including the Huntsville

unit).

App. 30

The main obstacle to giving Jewish inmates all

the Jewish activities and privileges that they de-

sire are our scarce resources, limited availability

of rabbis, and the very low demand.

* * *

Many inmates have requested special diets for

religious reasons. TDCJ has reviewed requests

for kosher diets and has studied the impact of

complying with such a request, by either provid-

ing a separate kosher kitchen or by bringing in

kosher food from the outside. TDCJ [h]as deter-

mined that it would be far too costly and would

far exceed the allotted budget to provide kosher

food. ... The problem would be compounded be-

cause inmates of other faiths would seek similar

privileges.

As an alternative to kosher meals, all inmates

may choose to be served a pork-free diet or a

vegetarian diet. TDCJ can afford to provide these

diets and they are available to all inmates. I do

not know of any other way to accommodate the

demand for kosher foods given TDCJ’s limited

resources and the need to treat all offenders

equally. In addition, Jewish inmates may receive

Kosher items from the Aleph Institute in Florida.

Because of the small number of inmates who ac-

tually practice Judaism and attend Jewish ser-

vices, as well as the limited availability of rabbis

in certain geographical areas of the state, TDCJ

is unable to hold Jewish services at every Jewish

host unit on a weekly basis. Services are held at

least monthly at each of the Jewish host units.

Rabbis, not offenders, lead the Jewish services to

ensure that religious practices reflect Jewish

doctrines. There is no other way for TDCJ to

App. 31

accommodate the demand for Jewish congrega-

tional services from practicing Jews.

TDCJ recognizes 21 Jewish holy days and per-

mits offenders to take time off for eight of those

days. TDCJ recognizes only two holy days for

Christians.

(Docket Entry No. 17, Affidavit of Billy Pierce, pp. 2-4.)

Plaintiff does not challenge this testimony with probative

summary judgment evidence.

In further support of summary judgment, defendants

present the following affidavit testimony of Larry Hart, a

chaplain at the Huntsville unit employed by TDCJ since

1999;

As a unit chaplain, I am not expected to function

in the role of a faith-group official. I facilitate the

ministry of representatives of various faith

groups by managing the schedule of volunteer

and contract chaplain services, ceremonies, and

study groups.

* * *

TDCJ employs a lead contract rabbi to serve as

the advisor to unit contract rabbis with decision-

making authority with respect to the interpreta-

tion of Jewish law and customs. My unit’s con-

tract rabbi works with me to schedule Jewish

services, order religious items, and authorize lay-

ins (time off) for Jewish holy days.

* . *

Chaplains are responsible for scheduling regular

opportunities for worship and other religious ac-

tivities for offenders. All such meetings must,

however, be governed by unit rules, regulations,

and policies with regard to staff and volunteer

App. 32

safety, security and orderly conditions of the unit,

and offender conduct. Scheduled events may be

delayed or canceled due to safety and security

concerns.

Chaplains have no control over showers. This is

strictly a security matter.

Ordinarily, worship events, religious activities

and meetings of a religious nature are under the

direct supervision of the unit’s chaplain. The

chaplain and warden may draw upon approved

religious volunteers from the outside community

to help facilitate and conduct scheduled religious

activities. Rabbis or approved outside volunteers,

not offenders, lead the Jewish services to ensure

that religious practices reflect Jewish doctrines.

Scheduled events may be delayed or canceled

when qualified spiritual leaders are not avail-

able. Jewish services were cancelled on September

5, 2003, September 12, 2003, October 3, 2004,

and October 10, 2003 because a Rabbi or quali-

fied volunteer was not available.

Chaplaincy services are nondiscriminatory in the

treatment of offenders’ religious beliefs, but

TDCJ policy attempts to take space, time, and

staffing restraints into consideration. All ser-

vices, religious and otherwise, are provided based

on demand, need, and resources. For example,

the New Birth Bible Program with approximately

175 participants has met in the Huntsville Unit’s

chapel every Friday evening for the past 12 years.

Only 12 individuals routinely attend Jewish ser-

vices. As a result, Friday evening Jewish services

are conducted in the Education Department.

Although Jewish offenders are denied access to

the chapel on Friday evenings, the chapel is open

App. 33

to all offenders from 10:30 a.m. until 11:30 a.m.

every Monday, Tuesday, Wednesday, and Thurs-

day for religious study. During these times of-

fenders have access to lockers containing

religious materials. Unfortunately, the chapel

does not have any devices for replaying audio re-

cordings.

TDCJ recognizes 21 Jewish holy days and per-

mits offenders to take time off (have lay-ins) for

eight of those days. Purim is not designated as a

holiday with time off (lay-in). I do not recall what

happened with regard to Yom Kippur in 2003.

(Docket Entry No. 17, Affidavit of Larry Hart, pp. 2-3,

emphasis added.) Plaintiff does not challenge this testi-

mony with probative summary judgment evidence.

The Fifth Circuit has upheld the constitutionality of

TDCJ’s religious accommodation policy as rationally

related to legitimate governmental interests. Freeman v.

Texas Department of Criminal Justice, 369 F.3d 854 (5th

Cir. 2004). The Fifth Circuit specifically held that prison

staff and space limitations, as well as financial burdens,

are valid penological interests. Jd. at 861.

Based on the summary judgment record before it, the

Court finds that TDCJ’s accommodation policies and

practices as set forth in these affidavits satisfy the Turner

factors as to plaintiff’s complaints. The pertinent question

is not whether plaintiff has been denied specific religious

accommodations, but whether, more broadly, the prison

affords him opportunities to exercise his faith. Freedman,

369 F.3d at 861. Plaintiff does not assert that defendants

denied or restricted his right to practice Judaism in his

cell, or that he had no other alternative means of practic-

ing his religious faith. Nor has he pointed to some obvious

App. 34

regulatory alternative that fully accommodates his as-

serted rights while not imposing more than a de minimis

cost to TDCJ’s valid penological goal of maintaining prison

security and discipline and remaining within its financial,

personnel, and space restraints, and nondiscriminatory

policy.

Plaintiff shows no violation of his free exercise rights,

and defendants are entitled to summary judgment.

V. Fourteenth Amendment Claims

Plaintiff claims that defendants violated his due

process and equal protection rights by (1) not providing

Friday evening services during September and October,

2003; (2) not providing Saturday morning services (fol-

lowed by showers); (3) not providing services for the 2003

Jewish High Holy Days; (4) not providing a “break-the-

fast” meal following the 2003 Yom Kippur day of fasting;

(4) limiting access to religious tapes and books located in

the prison chapel; (5) not providing kosher-prepared

meals; and (6) holding Friday evening services in a class-

room instead of the chapel.

To maintain his claims for violation of due process and

equal protection under the Fourteenth Amendment, plain-

tiff must allege and prove purposeful discrimination by

defendants resulting in a discriminatory effect among

persons siinilarly situated. See Muhammad v. Lynaugh, 966

F.2d 901, 903 (5th Cir. 1992). The Fourteenth Amendment

does not demand that every religious sect or group within

a prison, however few in numbers, must have identical

prison facilities or personnel. Freedman, 369 F.3d at 862.

Rather, prison administrators must provide inmates with

App. 35

reasonable opportunities to exercise their religious free-

doms. Jd. at 863.

The fact that TDCJ’s religious accommodation and

related policies and regulations adversely impact plaintiff

and his religious practices does not, by itself, establish a

Fourteenth Amendment violation. “[{D]jisparate impact,

alone, cannot suffice to state an Equal Protection viola-

tion; otherwise, any law could be challenged on Equal

Protection grounds by whomever it has negatively im-

pacted.” Rodriguez v. Johnson, 110 F.3d 299, 306 (5th Cir.

1997) (emphasis in original). To maintain an equal protec-

tion claim, plaintiff must allege and prove that he received

treatment different from that received by similarly situ-

ated individuals and that the unequal treatment stemmed

from a discriminatory intent. Taylor v. Johnson, 257 F.3d

470, 472 (5th Cir. 2001).

Plaintiff complains that defendants did not provide

him with kosher meals. He does not claim that defendants

provided some inmates or religious groups with kosher

meals while he himself was not. That “free world” religious

support groups, with TDCJ approval, may have donated

religious food to inmates of other religious groups does not

establish an equal protection claim, and plaintiff does not

allege that defendants turned away “free world” support-

ers who offered to provide him with kosher food. To state a

claim under the Equal Protection Clause, a plaintiff must

allege that similarly situated individuals have been

treated differently. Yates v. Stalder, 217 F.3d 332, 334 (5th

Cir. 2000). The inquiry focuses on whether the plaintiff is

similarly situated to another group for purposes of the

challenged governmental action. Yates, 217 F.3d at 334.

The summary judgment evidence clearly shows that TDCJ

does not provide kosher food to any inmate.

App. 36

Discriminatory purpose in an equal protection context

implies that the decision maker selected a particular

course of action at least in part because of, and not simply

in spite of, the adverse impact it would have on an identi-

fiable group. Johnson v. Rodriguez, 110 F.3d 299, 306 (5th

Cir. 1997). Plaintiff does not present any summary judg-

ment evidence that TDCJ’s refusal to serve kosher meals

is intended to discriminate against inmates of one reli-

gious faith or another. Defendants’ unchallenged evidence,

on the other hand, demonstrates that TDCJ’s refusal to

serve kosher meals is based on financial and uniformity

considerations.

This same reasoning holds against plaintiff’s claims

of failure to provide Friday services in September — Octo-

ber of 2003, failure to provide Saturday morning services

with showers, limited access to TDCJ’s collection of reli-

gious tapes and books, lack of a Yom Kippur “break-the-

fast” meal on October 6, 2003, and the holding of Friday

evening services in a classroom instead of the chapel.

Plaintiff provides no summary judgment evidence of

“purposeful discrimination resulting in a discriminatory

effect among persons similarly situated.” Adkins, 393 F.3d

at 566. To the contrary, defendants’ uncontroverted sum-

mary judgment evidence shown above sets forth neutral,’

non-discriminatory reasons for these events or situations.

It is immaterial that defendants cannot recall what

happened with regard to Yom Kippur in 2003, as plaintiff

fails to present summary judgment evidence in support of

his claim. His allegations of religious discrimination are

conclusory and insufficient to defeat defendants’ motion

for summary judgment. Even assuming defendants did not

provide plaintiff with a break-the-fast meal on October 6,

App. 37

2003, this Court finds that such complaint fails to rise to

the level of a constitutional issue.

Plaintiff’s claims under the Fourteenth Amendment

are without merit and will be dismissed.

VI. RLUIPA

The RLUIPA, codified at 42 U.S.C. § 2000cc, provides

in pertinent part as follows:

§ 2000cc-1. Protection of religious exercise of in-

stitutionalized persons

(a) General rule

No government shall impose a substantial bur-

den on the religious exercise of a person residing

in or confined to an institution ... even if the

burden results from a rule of general applicabil-

ity, unless the government demonstrates that

imposition of the burden on that person —

(1) is in furtherance of a compelling governmen-

tal interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

RLUIPA prohibits the State from imposing a “sub-

stantial burden” on the practice of religious faith. Under

the RLUIPA, plaintiffs must produce prima facie evidence

to support a violation, and they bear the burden of persua-

sion on whether the policies and regulations substantially

burden their exercise of religion. 42 U.S.C. § 2000cc-2(b). A

“religious exercise” for purposes of the RLUIPA includes

“any exercise of religion, whether or not compelled by,

or central to, a system of religious belief.” 42 U.S.C.

App. 38

§ 2000cc-5(7)(A). The Supreme Court recently made it

clear that under RLUIPA, accommodation of religious

observances is not elevated over a prison’s need to main-

tain order and safety. Cutter v. Wilkinson, __ U.S. __,

125 S. Ct. 2113, 2122 (2005).

The Fifth Circuit has determined that governmental

action or regulation creates a “substantial burden” on a

religious exercise if it “truly pressures the adherent to

significantly modify his religious behavior and signifi-

cantly violates his religious beliefs.” Adkins, 393 F.3d at

570. A governmental action or regulation does not rise to

the level of a substantial burden on religious freedom if it

“merely prevents the adherent from either enjoying some

benefit that is not otherwise generally available or acting

in a way that is not otherwise generally allowed.” Jd.

In this case, plaintiff fails to present prima facie

evidence that defendants have “substantially burdened”

the practice of his religion. The uncontroverted summary

judgment evidence shows that on the days plaintiff claims

no Friday evening services were provided, no rabbi or

approved religious volunteer was available to lead the

services. Plaintiff does not submit any summary judgment

evidence that defendants turned away an available rabbi

or approved religious volunteer for those services. The

uncontroverted evidence further shows that for the past

twelve years, the chapel has been used on Friday evenings

by a religious group of 175 members. That plaintiff's

religious group of 12 or so members must use classroom

facilities for Friday evening services does not create a

substantial burden on plaintiff’s religious practices, nor

does the fact that Saturday morning Jewish services (with

showers) are not provided in addition to Friday evening

services. Plaintiff presents no probative summary judgment

App. 39

evidence that defendants denied him services for the 2003

Jewish High Holy Days or a “break-the-fast” meal follow-

ing the 2003 Yom Kippur day of fasting. Even assuming

such events occurred, they were not “subtsantial burdens”

on plaintiff’s religious freedom. Moreover, it is clear from

the unchallenged evidence that defendants provide access

to religious books and materials located in the prison

chapel, and that financial and space limitations, as well as

considerations for fairness to all inmates, and religious

groups, prevent defendants from providing plaintiff kosher

meals and the other religion-based demands he seeks.

Even assuming plaintiff were to establish these

instances as substantial burdens on the practice of his

religion, defendants’ financial, safety, space, and security

concerns for the prison, its inmates, and employees, and

the goal of maintaining a neutral policy of religious ac-

commodation for all recognized religious faiths, are com-

pelling governmental interests. Defendants have shown,

and plaintiff has not shown to the contrary, that defen-

dants’ regulations and policies are the least restrictive

means of furthering those compelling governmental

interests. See Adkins, 393 F.3d at 567-68. As the Supreme

Court noted in Cutter, “Should inmate requests for reli-

gious accommodations become excessive, impose unjusti-

fied burden on other institutionalized persons, or

jeopardize the effective functioning of an institution, the

facility would be free to resist the imposition.” 125 S. Ct.

at 2125.

No RLUIPA violations have been shown, and defen-

dants are entitled to summary judgment dismissing

plaintiff’s claims under that statute.

App. 40

VII. Retaliation

To sustain a section 1983 retaliation claim, a plaintiff

must establish (1) the existence of a specific constitutional

right; (2) the defendants’ intent to retaliate for the exercise

of that right; (3) a retaliatory adverse act; and (4) causa-

tion. Freedman, 369 F.3d at 863. Plaintiff presents only

unsupported conclusory allegations that defendants retali-

ated against him, and the claim is dismissed. See Woods v.

Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

VIII. State Law and ADA claims

To the extent plaintiff claims that his rights under the

Americans with Disabilities Act (ADA) and “Rehabilitation

Act” have been violated, such claims are without support.

Plaintiff neither alleges nor establishes that he has a

disability as that term is meant under the ADA, and he

fails to show that either the ADA or the “Rehabilitation

Act” are applicable to the claims brought in this lawsuit.

The exact nature of his state law claims is unclear

from plaintiff’s pleadings. Regardless, as the Court has

dismissed plaintiff’s federal law claims, it declines to

exercise supplemental jurisdiction over any state law

claims he may have raised. 28 U.S.C. § 1367(c)(3).

IX. Conclusion and Order

The Court ORDERS as follows:

(1) Plaintiff’s motion to dismiss Ted Sanders

(Docket Entry No. 15) is GRANTED.

(2) Plaintiff’s motions for an evidentiary hearing

and appointment of counsel (Docket Entries No.

28, 29) are DENIED.

App. 41

(3) Defendants’ Motion for Summary Judgment

(Docket Entry No. 17) is GRANTED and plain-

tiff’s federal claims are DISMISSED with

prejudice.

(4) Plaintiff’s state law claims are DISMISSED

without prejudice.

(5) All other pending motions and requests for relief

are DENIED.

SIGNED on July 15, 2005

/s/ John D. Rainey

JOHN D. RAINEY

UNITED STATES

DISTRICT JUDGE

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