Petition for Writ of Certiorari — Thunderhorse v. Pierce

Supreme Court, U.S.

FILED

091353 MAY 4- 2010

No. _OEEICE OF THE CLERK

In the Supreme Court of the Anited States

LRON ‘THUNDISRHORSE,

Petitioner.

BILL PIERCE, ef al.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL R. ORTIZ* DAVID 'T. GOLDBERG

GEORGE RUTHERGLEN Donahue & Goldberg,

JAMES EK. RYAN LLP

University of Virginia 99 Hudson Street,

School of Law S'* Floor

Supreme Court Litigation New York, NY 10018

Clinic (212) 334-8813

580 Massie Road

Charlottesville, VA 22903

(1434) 924-3127

dortiz@uirginia.edu *Counsel of Record

{Additional Counsel Listed cn Inside Cover]

MARK TT. STANCTI

Robbins, Russell, Englert,

Orseck, lU/ntereiner &

Sauber LLP

ISO! K Street, N.W.

Sutte 41]

Washington, DC 20006

(202) 775-4500

QUESTION PRESENTED

Did the Court of Appeals misinterpret the

Religious Land Use and Institutionalized Persons

Act (RLUIPA), 42 U.S.C. § 2000cc et seq., to require

only a minimal showing that a prison grooming rule

that concededly imposes a substantial burden on

religious exercise is the “least restrictive means of

furthering [a] compelling governmental interest,”

contrary to the decisions of other circuits and the

literal terms of the statute?

PARTIES 'TO ‘THE PROCEEDINGS

Petitioner Iron Thunderhorse was the plaintiff

the District Court and the appellant in the Court

Appeals. Respondent Bill Pierce is the Director

Chaplaincy Services of the Texas Department

Criminal Justice and respondent Brad Livingston

the Executive Director of the Texas Department

Criminal Justice. Both respondents were sued

their personal and official capacities.

in

of

of

of

1S

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES q..ccccscesscscesscosscacseses

OPINIONS BELOW

JURISDICTION

STATUTORY AND REGULATORY

PROVISIONS INVOLVED........ ais kg Raa Ro Ant Bip

STATEMENT

Statutory Framework

B. Proceedings Below

REASONS FOR GRANTING THE PETITION

The Cireuits Are in Sharp and Fundamental!

Conflict Over the Interpretation of Strict

Scrutiny Under RLUIPA, as Their Divided

Decisions on Prison Grooming Rules Reveal

Pidtieve icdaisdassatawiakcadteicnavek es daa igccananbestinceveusensonas 10

The Conflicting Decisions of the Circuits

Raise Important and Recurring Issues of

Religious Freedom and Strict Scrutiny,

Which Are Clearly Presented by This Case

Ill. The Court of Appeals Erred in Concluding

That Respondents Carried Their Burden of

Proving That the Prison Grooming Rule

Was the Least Restrictive Means of

Furthering a Compelling Governmental

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APPENDIX

Appendix A: Fifth Circuit Opinion

Appendix B: District Court Opinion

Appendix C: Exhibit No. 5

TABLE OF AUTHORITIES

Cases

Baranowski v. Hart,

486 F.3d 112 (5th Cir. 2007),

cert. denied, 552 U.S. 1067 (2007)

Brunskili v. Boyd,

141 Fed. Appx. 771 (11th Cir. 2005)

Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993)

Citizens Untted v. Federal Election Comm'n,

130 S.Ct. 876 (2010)

Cutter v. Wilkinson,

544 U.S. 709 (2005)

Diaz v. Collins,

114 F.3d 69 (5th Cir. 1997)

Employment Division v. Smith,

NR sc ci ae kakasbcasddan tasdovauesnendessasanes 20

Fegans v. Norris,

537 F.3d 897 (8th Cir. 2008)

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006)

Hoevenaar v. Lazaroff,

422 F.3d 366 (6th Cir. 2005)

Johnson v. California,

543 U.S. 499 (2005) ...

Jova v. Smith,

582 F.3d 410 (2d Cir. 2009)

(per curiam), cert. denied,

No. 09-9237 (Apr. 19, 2010)

Koger v. Bryan,

523 F.3d 789 (7th Cir. 2008)

Lathan v. Thompson,

251 Fed. Appx. 665 (11th Cir.

Longoria v. Dretke,

507 F.3d 898 (5th Cir. 2007)

Lovelace v. Lee,

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

McRae v. Johnson,

261 Fed. Appx. 554 (4th Cir. 2008).........

Murphy v. Missouri Dep't of Corrections,

372 F.3d 979 (8th Cir. 2004), cert. denied,

543 U.S. 991 (2004)

Odneal v. Pierce,

324 Fed. Appx. 297 (5th Cir. 2009)

Parents Involved in Community Schools v.

Seattle School District, No. 1,551 U.S. 701

“eS aa tp dayne Tia nes a MTSE) IE RP 2

Smith v. Ozmint,

578 F.3d 246 (4th Cir. 2009)

Spratt v. Rhode Island Dep’t of Corrections,

482 F.3d 33 (1st Cir. 2007)

United States v. Playboy Entertainment

Group, 529 U.S. 808 (2000)

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005) ........

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007)

Williams v. Snyder,

No. 08-1908, 2010 WL 750105

(7th Cir. Mar. 5, 2010)

Constitutional and Statutory Provisions

U.S. Const., amend. 1...

The Controlled Substances Act.

SB ie kee oo 2” ae Rede eerie cee .20, 25

28 U.S.C. § 1254(1) ho Ae es:

28 U.S.C. § 1331

BB UGC. 6 BOS .occccccccccccscsssccssccecsss

Prison Litigation Reform Act of 1996,

Ms eI oes ohne dnas kp ccivnackicdsuse¥eluncveves«s

vill

Religious Freedom Restoration Act

of 1993 (RFRA),

42 U.S.C. § 2000ce et seq. .............. !

Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA),

42 U.S.C. § 2000cc et seq. .............

RLUIPA § 2,

42 U.S.C. § 2000cc-1

RLUIPA § 4(e), 42 U.S.C. § 2000ce-3(e) .......

RLUIPA § 6(2), 42 U.S.C. § 2000cc-5(2)..................3, 6

Legislative Materials

146 Cong. Rec. $7774 at S7775 (daily ed. July

5

27, 2000) Goint statement of Sens. Hatch and

F.OTITIOCEY } ic.csccusweai einen hie sandesececess Te sp lecessences 28

Administrative Materials

28 C.F.R. § 551.1

28 C.F.R. § 551.4(a)

Colorado Department of Corrections,

Administrative Regulation: Hygiene and

Grooming § IV.A.1.d (2009)

Kentucky Department of Corrections, Policies

and Procedure: Hair, Grooming, and ID Card

Standards § 2.A (2008)

1X

Michigan Department of Corrections, Policy

Directive: Humane ‘Treatment and Living

Conditions of Prisoners § D (2009)

Oregon Department of Corrections, Inmate

Hygiene, Grooming, and Sanitation

Standards, Or. Admin. R. 291-123-0015 § 2(a)

(2010)

Texas Department of Criminal Justice Offender

Orientation Handbook,

Ch. 1 § IILA (2004).............. mee , ...o-4, 6,

Miscellaneous

James D. Nelson, Note, Incarceration,

Accommodation, and Strict Scrutiny, 95 Va. L.

Rev. 2053 (2009)

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Fifth Circuit (App., infra, lJa-

19a) is reported at 2010 WL 454799 and U.S. App.,

LEXIS 2713. ‘The opinion of the District Court

(App., infra, 20a-88a) 1s reported at 2008 U.S. App.

LEXIS 58842. The prior opinions in this case (on

rulings not sought to be reviewed by this petition for

certiorari) are reported at 232 Fed. Appx. 425, 2007

WL 1455940, 2007 U.S. App. LEXIS (5th Cir. May

18, 2007); 418 F.Supp.2d 375, 2006 WL 359723, 2006

U.S. Dist. LEXIS 9997 (E.D. Tex. Feb. 13, 2006);

2006 U.S. Dist. LEXIS 9985 (E.D. Tex. Feb. 13,

2006); 2005 WL 1398644, 2005 U.S. Dist. LEXIS

23154 (f.D. Tex. June 10, 2005).

JURISDICTION

The judgment of the court of appeals was entered

on February Y, 2010. The jurisdiction of this court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 2 of the Religious Land Use and

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

§ 2000cc-1, provides:

(a) General rule

No government shall impose a_ substantial

burden on the religious exercise of a person

residing in or confined to an institution, as

defined in section 1997 of this title, even if the

burden results from ae rule of general

applicability, unless the government

demonstrates that imposition of the burden on

that person

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

Section 3 of RLUIPA, 42 U.S.C. § 2000cc-2

provides in relevant part:

(a) Cause of action

A person may assert a violation of this chapter

as a Claim or defense in a judicial proceeding and

obtain appropriate rehef against a government.

Standing to assert a claim or defense under this

section shall be governed by the general rules of

standing under Article III of the Constitution.

section 4 of RLUIPA, 42 U.S.C. § 2000cc-3,

provides, in relevant part:

(e) Governmental discretion in_ alleviating

burdens on religious exercise

A government may avoid the preemptive force

of any provision of this chapter by changing the

policy or practice that results in a substantial

burden on religious exercise, by retaining the

policy or practice and exempting _— the

substantially burdened religious exercise, by

providing exemptions from the policy or practice

for applications that substantially burden

religious exercise, or by any other means that

climinates the substantial burden.

Section 6 of RLUIPA, 42 U.S.C. § 2000cc-5,

provides, in relevant part:

In this chapter:

(1) Claimant

The term “claimant” means a person raising a

claim or defense under this chapter.

(2) Demonstrates

The term “demonstrates” means meets the

burdens of going forward with the evidence and of

persuasion.

ee &

(7) Religious exercise

(A) In general

The term “rehgious exercise” includes any

exercise of religion, whether or not compelled by,

or central to, a system of religious belief.

Texas Department of Criminal Justice Offender

Orientation Handbook, Ch. 1 § IIIA (2004), provides,

in relevant part:

A. Personal Cleanliness and Grooming

x22

4. Male offenders must keep their hair

trimmed up the back of thew neck and head.

Hair must be neatly cut. Hair must be cut

around the ears. Sidevurns will not extend below

the middles of the ears. No block style, afro

natural or shag haircuts will be permitted. No

fad or extreme hairstyles/haircuts are allowed.

No Mohawks, tails, or designs cut into the hair

are allowed.

5. Female offenders will not have extreme

hairstyles. No Mohawk, “tailed” haircuts or

shaved/partially-shaved heads will be allowed.

Female offenders may go to the beauty shop on

their unit; however, going to the beauty shop is a

privilege. Female offenders may be restricted

from going to the beauty shop as the result of

disciplinary action.

STATEMENT

This case presents a single question: whether the

courts below incorrectly interpreted RLUIPA to

require only a minimal showing that a_ prison

rrooming rule is the least restrictive means of

furthering a compelling governmental interest. The

rule in question prohibits male inmates from having

long hair and it makes no exception for petitioner, a

prisoner who adheres to a Native American religion

that requires long hau. Petitioner 1s 66 years old,

suffers from diabetes, a heart condition, and failing

eyesight, and his earliest possible release date is

2023. He seeks to practice his religion in the years

5,

remaining to him and to enter the next life in a

condition acceptable under the tenets of his faith.

The District Court found that petitioner’s religious

beliefs were sincere, App., infra, at 66a, and

recognized “that the wearing of long hair its

important to practitioners of Native American

religions.” Jd. at 69a (footnote omitted). The Court

of Appeals agreed. Jd. at 8a-9a. Under RLUIPA,

respondents therefore had the burden of proving

that this restriction on relgious freedom was “the

least restrictive means of furthering [a] compelling

governmental interest.” § 2(a), 42 U.S.C. § 2000cc-

l(a). In deciding to the contrary, the Court of

Appeals aggravated a conflict among the circuits and

misinterpreted the literal terms of RLUIPA.

A. Statutory Framework

Congress has twice acted to protect the religious

freedom of prison inmates, in the Religious Land Use

and Institutionalized Persons Act of 2000 (RLUIPA),

42 U.S.C. § 2000cc et seq., and in its predecessor, the

Religious Freedom Restoration Act of 1993 (RFRA),

42 U.S.C. § 2000bb et seg. In particular, RLUIPA

provides that “[nJo government shall impose a

substantial burden on the religious exercise of a

person residing in or confined to an institution,”

unless the burden is shown to further “a compelling

governmental interest,” and does so by “the least

restrictive means.” § 2(a), 42 U.S.C. § 2000ce-1(a).

This Court upheld the constitutionality of RLUIPA

in Cutter v. Wilkinson, 544 U.S. 709 (2005), acknow-

Jedging that Congress condemned “frivolous or

arbitrary” barriers to the exercise of religion by

6

institutionalized persons, and holding that strict

scrutiny under RLUIPA did not impermissibly favor

religion. Jd. at 713-17.

A plaintiff under RLUIPA bears the initial

burden of demonstrating that the challenged prison

policy substantially burdens the exercise of his

sincerely held religious beliefs. If the plaintiff

proves that the burden on the exercise of his religion

is substantial, the defendant must demonstrate that

the challenged policies are the least restrictive

means of furthering a compelling governmental

interest. RLUIPA § 2(a), 42 U.S.C. § 2000cc-1(a).

“Demonstrates” means carrying “the burdens of

going forward with the evidence and of persuasion.”

Id. § 6(2), 42 U.S.C. § 2000cc-5(2). This case comes

down to the question whether respondents carried

these burdens under a correct :interpretation of

RLUIPA.

The prison regulation in this case makes no

exception for religious practices and provides as

follows: “Male offenders must keep their hair

trimmed up the back of their neck and head.” Texas

Department of Criminal — Justice Offender

Orientation Handbook, Chapter 1 § IIL.A.4 at p. 10

(2004), supra, at 3-4.

B. Proceedings Below

Petitioner Iron Thunderhorse practices Native

American shamanism and is an inmate of the Texas

Department of Criminal Justice (TDCJ). App., infra,

¢

at 20a. Thunderhorse is 66 years old and is serving

a 99-year prison term.! Thunderhorse has been

incarcerated for more than three decades. Jd. at 4a.

While an inmate of the TDCJ, Thunderhorse has

sought to engage in numerous rituals of his Native

American religion. From 1994 to 2003, at the Stiles

Unit, and at earlier times at various other units of

the TDCJ, 'Thunderhorse was permitted to practice

certain of these rituals and, pertinent to this

petition, grew his hair Jong enough to wear it in

braids—a fact that is undisputed in this case. Jd. at

4a&n.1.

In August 2004, Thunderhorse was transferred to

the Polunsky Unit of the TDCJ for treatment of

various disabilities. App., infra, at 29a. At the

Polunsky Unit, he no longer received religious

accommodations regarding his religious practices

and he faced discipline for continuing to have long

hair. Jbid.; id. at 5a. Thunderhorse filed grievances

challenging these restrictions, including’ the

restriction on hair length, and has exhausted prison

grievance procedures. Only the restriction on hair

length is at issue in this petition.

Thunderhorse filed this action asserting claims

under RLUIPA and the Constitution for denial of the

right to exercise his religion and for denial of other

federal rights. Jurisdiction in the District Court was

based on 28 U.S.C. §§ 1331, 1343. By consent of the

parties, the lawsuit was referred for all proceedings

' Thunderhorse was originally convicted of robbery, rape,

and kidnapping. He received an additional 20-year

sentence for attempted escape in 1991.

8

to a magistrate judge pursuant to 28 U.S.C. § 636(c).

In 2006, the magistrate judge granted summary

judgment for defendants, a decision which was

vacated by the Fifth Circuit because Thunderhorse

had not received sufficient notice to allow him to

submit evidence in response to defendants’ motion.

Thunderhorse v. Pierce, 418 F.Supp.2d 875, 899

(E.D.Tex. 2006), rev’d, 232 Fed. Appx. 425 (5th Cir.

2007).2, Upon remand, Thunderhorse’ submitted

additional evidence in a bench trial before the

magistrate judge.

The magistrate judge denied Thunderhorse’s

claim under RLUIPA for an exemption from the rule

against long hair, but granted him relief in other

respects. App., infra, at 82a-83a. In particular, the

magistrate judge entered an injunction requiring the

TDCJ to recognize Native American shamanism as a

valid faith. Jd. at 82a. Respondents took no appeal

or cross-appeal from this ruling. Also undisputed is

the magistrate judge’s finding that the “wearing of

long hair is important to practitioners of Native

American religions.” App., tnfra, at 69a (footnote

omitted).

2 These rulings are not at issue in this petition, the first

because it was vacated and the second because it was in

petitioner’s favor. Also not at issue are the rulings by the

District Court in denying a preliminary injunction and in

dismissing defendant Teel from the case because he was no

longer employed by the TDCJ. Thunderhorse v. Pierce, 2006

U.S. Dist. LEXIS 9985 (K.D. Tex. Feb. 13, 2006); 2005 WL

1398644, 2005 U.S. Dist. LEXIS 23154 (E.D. Tex. June 10,

2005). Petitioner no longer contests these rulings.

y

At trial, Thunderhorse presented evidence of the

TCDJ’s arbitrary enforcement of the rule against

long hair and evidence of the policies of other prisons

permitting long hair. Jd. at 28a, 30a, 34a-35a, 44a.

With respect to the arbitrary enforcement of the rule

against long hair, the magistrate judge noted that

one TDCJ inmate, a witness at the trial, let down his

hair “to show the Court that it was well past his

collar,” in apparent violation of the prison’s grooming

policy. Id. at 35a. When questioned by the

magistrate judge, the regional director of the TDCJ,

William Stephens, admitted that the witness’s long

hair resulted from a shortage of officers “and so some

matters were overlooked.” Id. at 44a. The

magistrate judge nevertheless held that there was

no violation of RLUIPA under governing Fifth

Circuit precedent and denied all relief on this claim.

Id. at 69a-70a, 83a. The District Court’s judgment

was entered on July 30, 2008, and Thunderhorse

filed a timely notice of appeal on August 7, 2008.

On February 9, 2010, the Fifth Circuit affirmed

the judgment of the District Court, agreeing that

prior Fifth Circuit precedent foreclosed

Thunderhorse’s claim under RLUIPA. App., infra,

at 8a-10a. In a _ footnote, the court rejected

Thunderhorse’s arguments that the rule was

enforced arbitrarily, that it did not apply in the

Texas prisons for women, and that other prison

systems permit long hair, including the Federal

Bureau of Prisons. /d. at 10a n.3. The court recog-

nized that the Ninth Circuit had reached a contrary

decision in considering exactly the same arguments.

Warsoldier v. Woodford, 418 F.3d 989, 998-1001 (9th

10

Cir. 2005). But the Fifth Circuit did not analyze the

Ninth Circuit’s opinion or consider the evidence

presented by ‘Thunderhorse because _ circuit

precedent did not permit it to do so. App., infra, at

10a n.3.

REASONS FOR GRANTING THE PETITION

The Circuits Are in Sharp and

Fundamental Conflict Over the

Interpretation of Strict Scrutiny Under

RLUIPA, as Their Divided Decisions on

Prison Grooming Rules Reveal

RLUIPA requires government regulations that

impose substantial burdens on prisoners’ religious

exercise to be “the least restrictive means of

furthering [a] compelling governmental interest.”

RLUIPA § 2(a), 42 U.S.C. 2000cc-1(a). In Cutter v.

Wilkinson, 544 U.S. 709 (2005), this Court observed

that lower courts should apply RLUIPA with “due

deference to the experience and expertise of prison

and jail administrators.” Jd. at 723 (citations

omitted). But the courts of appeals have disagreed

over how much deference can be given to prison

officials consistently with the statutory standard of

strict scrutiny. The Fifth Circuit stands at the

extreme of deferring to the dated and conclusory

assertions of prison officials.

The circuit split over hair length restrictions

presents a sharply defined, concrete example of a

broader and deeper split over the meaning of strict

1]

scrutiny under RLUIPA. Nine circuits have heard

challenges under the statute. Seven circuits—the

First, Second, Third, Fourth, Seventh, Eighth, and

Ninth—require the government to submit specific

evidence and closely examine it on the issue of least

restrictive means. Spratt v. Rhode Island Dep't of

Corrections, 482 F.3d 33, 38-43 (1st Cir. 2007); Jova

v. Smith, 582 F.3d 410, 415-417 (2d Cir. 2009) (per

curiam), cert. denied, No. 09-9237 (Apr. 19, 2010);

Washington v. Klem, 497 F.3d 272, 284-286 (3d Cir.

2007), Lovelace v. Lee, 472 F.3d 174, 189-193 (4th

Cir. 2006); Koger v. Bryan, 523 F.3d 789, 801 (7th

Cir. 2008); Murphy v. Missouri Dep't of Corrections,

372 F.3d 979, 988-989 (8th Cir. 2004), cert. denied,

543 U.S. 991 (2004); Warsoldier v. Woodford, 418

F.3d 989, 998-1001 (9th Cir. 2005). Two circuits—

the Fifth and Sixth—accept the government’s own

assertion of what constitutes least restrictive means.

Baranowski v. Hart, 486 F.3d 112, 125-126 (5th Cir.

2007), cert. denied, 552 U.S. 1067 (2007); Hoevenaar

v. Lazaroff, 422 F.3d 366, 369-372 (6th Cir. 2005),

cert. denied, 549 U.S. 875 (2006). A comprehensive

survey of lower court decisions has identified an

even broader and more severe division among the

circuits. James D. Nelson, Note, /ncarceration,

Accommodation, and Strict Scrutiny, 95 Va. L. Rev.

2053, 2068-2071 (2009).

The seven circuits which have required specific

evidence have _ scrutinized both inconsistent

applications of prison policy and alternatives used in

other institutions. The Seventh Circuit’s decision in

Koger illustrates this approach. The court examined

whether a rule requiring clergy to verify prisoners’

12

dietary requests was the least restrictive means to

achieve orderly food service. 523 F.3d at 801. The

Seventh Circuit compared the rule to the practice in

federal prisons of only requiring a written statement

from the prisoner for dietary accommodations. Ibid.

Concluding that this was a less_ restrictive

alternative, the Seventh Circuit determined that

“the prison officials failed to meet their burden that

they were employing the least restrictive means,”

and accordingly ordered summary judgment for the

plaintiff. Jbid. Other circuits have applied the same

level of scrutiny. Spratt, 482 F.3d at 41 n.11 (First

Circuit held that the prison could not satisfy its

burden with “a blanket statement that all

alternatives have been considered and rejected”);

Jova, 582 F.3d at 417 (Second Circuit remanded for

more specific evidence on least restrictive means

with respect to prison policies on diet); Washington,

497 F.3d at 284 (Third Circuit required government

to show that it considered and rejected alternatives

to prove its chosen policy is the least restrictive

means); Lovelace, 472 F.3d at 190 (Fourth Circuit

held that “the superficial nature of defendant’s

explanation” required remand on whether prison’s

interest was compelling and its policy the least

restrictive means); Murphy, 372 F.3d at 988-989

(Eighth Circuit remanded for more evidence on

consideration of alternatives to ban on _ group

worship); Warsoldier, 418 F.3d at 998-1001 (Ninth

Circuit required evidence that prison officials

considered and rejected less restrictive alternatives).

By contrast, only two circuits—the Fifth and

Sixth—have held simple assertions of security or

13

budgetary interests to be sufficient and rarely

considered alternatives from other prison systems.

The Fifth Circuit exemplified this approach in

Baranowski, affirming summary judgment for

defendants. The prisoner there sought a kosher diet

under RLUIPA, but the Fifth Circuit accepted the

assertion of prison officials that denial of a religious

diet was “related to maintaining good order and

controlling costs and, as such, involves compelling

government interests.” 486 F.3d at 125. The Sixth

Circuit took the same approach in Hoevenaar,

reversing a preliminary injunction based on the

general testimony of prison officials about the

difficulty of making individualized exceptions. 422

F.3d at 371.

When this deep-seated difference in approach has

been applied to prison rules against long hair, it has

resulted in decisions that are all over the lot. Of the

seven courts of appeals that have addressed

challenges to hair length restrictions under RLUIPA,

one has required a religious exception, two have

taken the categorical approach of the court below,

two have engaged in more detailed analysis to

uphold the restriction, and two have _ upheld

restrictions in some cases and required more

evidence in others. The Ninth Circuit has held that

a prison rule against long hair did not satisfy

RLUIPA’s least restrictive means requirement.

Warsoldier, 418 F.3d at 998. The Fifth and Sixth

Circuits upheld such restrictions based on minimal

evidence, App., infra, at 8a-10a; Hoevenaar, 422 F.3d

at 371-372, while the Seventh and Eighth have

relied on more specific evidence to reach the same

14

conclusion. Williams v. Snyder, No. 08-1908, 2010

WL 750105, 2010 U.S. App. Lexis 4777 (7th Cir.

Mar. 5, 2010); Fegans v. Norris, 537 F.3d 897, 902-

906 (8th Cir. 2008). The Fourth and Eleventh

Circuits have upheld some hair length restrictions,

while they have required more evidence to support

others. Compare McRae v. Johnson, 261 Fed. Appx.

554, 560 (4th Cir. 2008) (upholding) and Brunskill v.

Boyd, 141 Fed. Appx. 771, 776 (11th Cir. 2005)

(upholding) with Smith v. Ozmint, 578 F.3d 246, 254

(4th Cir. 2009) (more evidence); Lathan vy.

Thompson, 251 Fed. Appx. 665, 667 (11th Cir. 2007)

(more evidence).

In a conflicting decision explicitly acknowledged

by the court below, App., infra, at 10a n.3, the Ninth

Circuit held that California’s hair length policy was

not the least restrictive means of achieving prison

security. Warsoldier, 418 F.3d at 998. The court

ordered the entry of a preliminary injunction

because the state had offered only conclusory

statements that the policy was the least restrictive

means. TJ/bid. Instead, the state was required to

demonstrate “that it has actually considered and

rejected the efficacy of less restrictive measures

before adopting the challenged practice.” Jd. at 999.

The court explicitly noted that the Federal Bureau of

Prisons and _ other state institutions allowed

prisoners to choose their own hairstyle without

sacrificing prison security. Jd. at 999-1000. The

court also rejected the disparate treatment of male

and female inmates because the government had not

shown cause for the difference. Jd. at 1000-01

At the opposite extreme, the Fifth Circuit in this

case did not examine any new evidence to justify the

rule against long hair. Instead, the panel decision

rehed on a precedent, which in turn relhed on a

precedent, which was ultimately based on evidence

that is now more than fifteen years old. App., infra,

at 8a-10a, relying on Longoria v. Dretke,

507 F.3d 898, 903-04 (5th Cir. 2007), relying on Diaz

v. Collins, 114 F.3d 69, 72-73 (5th 1997), affg 872

F.Supp. 353 (E£.D.Tex.1994). In Longoria, the Fifth

Circuit upheld the district court’s dismissal of an

RLUIPA challenge to the TDCJ policy even without

a response from the state. 507 F.3d at 903-04. The

court held this claim to be foreclosed by its prior

decision in Diaz, which involved a RFRA challenge

to the same policy. J/bid. In Diaz, the Fifth Circuit

summarily accepted that the hair length policy was

the least restrictive means of achieving prison

security. 114 F.3d at 73. It did not consider a single

alternative policy, nor did it examine the cost of an

individual accommodation. /bid.*

As noted, the Sixth Circuit stands with the Fifth

in requiring the least support for hair length

restrictions. In Hoevenaar, the Sixth Circuit

accepted a blanket rule against long hair as the least

restrictive means for achieving security based on

3 In unpublished decisions, the Fifth Circuit has narrowed

the scope of Diaz, while affirming that it remains dispositive

for cases within its scope. E.g., Odneal v. Pierce, 324 Fed

Appx. 297, 301 (5th Cir. 2009). In the present case, the

Fifth Circuit explicitly recognized the continuing force of

Diaz and the conflict that it creates with the Ninth Circuit

App., infra, at 10a n.3

16

assertions that recognizing individual exceptions

would cause problems, despite the absence of any

evidence that previously recognized exceptions had

resulted in security inaidents. 422 I°.3d at 369-7]

The Seventh and Lighth Circuits have upheld

hair length restrictions avainst challenges under

RLUIPA, but with the consideration of more specific

evidence. Williams v. Snyder, No. 08-1908, 2010 WI,

750105, at *3-*4, 2010 U.S. App. Lexis 4777 at *7-*8

(7th Cir. March 5, 2010); Fegans, 537 F.3d at 9OZ

906. In these cases, prison administrators testified

to specific cxamples of hidden contraband and less

restrictive policies they had considered and rejected

Williams, 2010 WL 7501085, at *3-*4, 2010 U.S. App

Lexis 4777 at *7-*8; Fevans, 537 F.3d at 902-06

Nevertheless, as the separate opinion in Iepgans

pointed out, none of these cases has required

evidence supporting different rules for men and

women, beyond generalizations that women simply

are less violent than men. 537 F.3d at 912 (Melloy,

J., concurring in part and dissenting in part)

The Fourth and Eleventh Circuits have come to

different conclusions jn different cases. In Smith, the

fourth Circuit addressed a South Carolina prison

policy which differentiated between male and female

inmates and allowed prison officials to forcibly cut

inmates’ hair to conform to prison rules. 578 F.3d at

249. The Fourth Circuit rejected the government's

affidavit—prepared for another case involving a

different security unit-——attesting that this policy

was the least restrictive means for achieving

security. Jd. at 253. In fact, the Fourth Circuit

17

suggested that accepting such conclusory statements

would violate the principles set forth by this Court in

“ronzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006), which required a case-

by-case analysis of the government’s interest in

denying an exemption under RFRA. 546 U.S. at

430-31. In McRae, however, the Fourth Circuit

upheld Virginia’s hair length restriction based on

specific examples of contraband in prisoners’ hair

and medical problems hidden by their hair. 261 Fed.

Appx. at 558.

Similarly, the Eleventh Circuit rejected a

RLUIPA challenge to a Florida polcy lhmiting

inmates to “medium length” hair. Brunskill, 141

Fed. Appx. at 774-76. The court provided little

analysis, saying only that “the hair length policy * *

* [is] the least restrictive means in furthering

compelling governmental interests in the security,

health, and safety of inmates and staff.” Jd. at 776

Yet in Lathan, the Eleventh Circuit vacated the

district court’s grant of summary judgment because

it was dissatisfied with the ten-year-old evidentiary

record. 251 Fed. Appx. at 667 (remanding for trial).

The multiple circuit splts—on results, methods,

and reasoning over’ permissible’ hair length

restrictions—reflect the deeper conflict over just

what strict scrutiny means under RLUIPA. The

circuits are divided on the fundamental question of

how much deference can be given to prison officials

consistent with strict scrutiny. The courts of appeals

have given no indication that they will be able to

resolve these conflicts themselves. If anything, the

18

disarray among the circuits 1s likely to increase,

resulting in increasing disagreement over the

meaning of RLUIPA and over the rights that it

protects. Review by this Court is necessary to

restore the uniformity of federal law.

Il. The Conflicting Decisions of the Circuits

Raise Important and Recurring Issues of

Religious Freedom and Strict Scrutiny,

Which Are Clearly Presented by This Case

This case presents an important and recurring

question on the standard for judicial review of prison

rules that “impose a substantial burden on the

religious exercise of a person residing in or confined

to an institution.” RLUIPA § 2(a), 42 U.S.C. §

2000cc-1(a). In the wake of Cutter v. Wilkinson, 544

U.S. 709 (2005), prison administrators and inmates

have vigorously contested whether — specific

regulations run afoul of the protections afforded by

RLUIPA. As noted above, challenges to institutional

rules specifically against long hair have arisen in

seven circuits, generating substantial confusion and

uncertainty over the scope of the rights protected by

RLUIPA. ‘These claims represent only a small

fraction of the total number of claims brought under

RLUIPA, which extend across the full range of

religious practices, from religious meetings, to diet,

to religious objects. Nelson, supra, 95 Va. L. Rev. at

2071-79, 2092-98. As of 2008, the lower federal

courts faced prisoner claims for accommodation

under RLUIPA in hundreds of cases, and this

id

number has only grown since then. Id. at 2054 &

n.4.

The continuing disarray among the circuits

reveals the need for guidance from this Court on

what satisfies strict scrutiny under RLUIPA. ‘The

statute specifically requires prison officials to prove

that rules which substantially burden an inmate’s

religious exercise are “(1) in furtherance of a

compelling governmental interest; and (2) the least

restrictive means of furthering that compelling

governmental interest.” § 2(a), 42 U.S.C. § 2000cc-

l(a). As this Court recognized in Cutter, Congress

anticipated that “courts would apply [RLUIPA’s]

standard with due deference to the experience and

expertise of prison and jail administrators.” 544

U.S. at 723 (citations omitted). This Court expressed

confidence that the lower federal courts would apply

RLUIPA’s standard “in an appropriately balanced

way. Ibid. The conthct among the circuits,

however, reveals that they have failed to strike any

stable balance at all. Whether RLUIPA requires

religious exemptions from prison rules against long

hair appears to depend entirely on the circuit in

which the inmate finds himself incarcerated.

The confusion among the circuits stands in stark

contrast to this Court’s application of strict scrutiny

to protect religious freedom. In Church of the

Lukumi Babalu Aye v. City of Hialeah, 508 U.s. 520

(1993), a local ordinance restricting religious

sacrifices was struck down under the _ First

Amendment. As this Court said, “if the object of a

law is to infringe upon or restrict practices because

20

of their religious motivation, the law is not neutral

and it is invalid unless it is justified by a compelling

interest and is narrowly tailored to advance that

interest.” Jd. at 533 (citations omitted). Likewise, in

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006), this Court subjected a

federal statute to strict scrutiny under the Religious

Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.

§ 2000bb et seg. A rehgious group sought an

exemption from the Controlled Substances Act, 21

U.S.C. § 801 et seq., for the use of a hallucinogen in

religious ceremonies. This Court upheld the claim

for an exemption because “RFRA _ operates by

mandating consideration, under the compelling

interest test, cf exceptions to ‘rule|s] of general

applicability.” O Centro, 546 U.S. at 436 (citation

omitted).

The Fifth Circuit’s excessively deferential review

in this case vividly ulustrates how it undermines the

standards for strict scrutiny in other cases. As this

Court observed in Employment Division v. Smuth,

494 U.S. 872, 888 (1990): “If the ‘compelling interest’

test is to be applied at all, then, it must be apphed

across the board, to all actions thought to be

religiously commanded.” Otherwise, “watering it

down here would subvert its rigor in the other fields

where it is applied.” /bid. These risks extend well

beyond claims for religious freedom to other claims,

including those arising in a prison setting. For

instance, in Johnson v. California, 543 U.S. 499

(2005), this Court struck down a practice of racially

segregating inmates upon their arrival at a state

prison. The prison officials invoked a compelling

21

interest in prison safety, but this Court held that

that alone was insufficient: “Prison administrators,

however, will have to demonstrate that any race-

based policies are narrowly tailored to that end.” Jd.

at 514.

Strict scrutiny also applies, of course, across a

range of other constitutional issues. E.g., Citizens

United v. Federal Election Comm'n, 130 S. Ct. 876,

898 (2010) (“[llaws that burden political speech are

subject to strict scrutiny’) (citations omitted);

Parents Involved in Community Schools v. Seattle

School District, No. 1, 551 U.S. 701, 720 (2007)

(‘when the government distributes burdens or

benefits on the basis of individual racial

classifications, that action is reviewed under strict

scrutiny’); United States v. Playboy Entertainment

Group, 529 U.S. 803, 813 (2000) (if a statute

regulates speech based on its content, it must be

narrowly tailored to promote a compelling Govern-

ment interest’). The erosion of strict scrutiny 1n this

case does more than depart from the standard

adopted by Congress—although that is worrisome

enough. It also compromises the integrity of that

standard throughout constitutional law.

This case serves as an especially suitable vehicle

for resolving the conflicts over the interpretation of

RLUIPA. It presents a rare example of prisoner

litigation finally resolved on the merits after trial,

presenting a single issue for review. This case

stands at the opposite extreme from Jova v. Smith,

582 F.3d 410 (2d Cir. 2009) (per curiam), cert.

denied, No. 09-9237 (Apr. 19, 2010), in which two

9) 9

prisoners petitioned for review of a judgment which

was, in some respects, interlocutory. The court of

appeals remanded that case for consideration of a

religious diet, while the prisoners sought review on

related issues. This case presents no_ such

comphications.

Petitioner properly exhausted his administrative

remedies, as required by the Prison Litigation

Reform Act of 1996, 42 U.S.C. § 1997e. He fully

presented all available evidence and he fully argued

the merits to both of the courts below.

III. The Court of Appeals Erred in Concluding

That the Prison Grooming Rule Was the

Least Restrictive Means of Furthering a

Compelling Governmental Interest

The decision of the Court of Appeals cannot be

allowed to stand uncorrected. Respondents have not

met their burden of proving that an absolute

prohibition against long hair, without any exception

for religious practices, is the least restrictive means

of furthering an interest in prison security. Any

such contention is belied by the absence of similarly

inflexible policies in numerous prison systems, the

complete inapplicability of the rule to women within

the TDCJ, and the TDCJ’s' own inconsistent

apphecation of the rule to men. Under RLUIPA,

respondents had the burden of demonstrating that

the rule is the least restrictive means of furthering a

compelling governmental interest. § 2(a), 42 U.S.C.

§ 2000cc-1(a). They failed to do so.

23

Numerous prisons systems’ throughout’ the

country, including the Federal Bureau of Prisons

(BOP), do not find it necessary to restrict men’s hair

length. The BOP’s own statement of policy “permits

an inmate to select the hair style of their personal

choice,” 28 C.F.R. § 551.1, and explicitly hmits the

authority of wardens to do otherwise: “The Warden

may not restrict hair length if the inmate keeps it

neat and clean.” Jd. § 551.4(a) The BOP does not

stand alone in allowing prisoners to have control

over their own hair length. A number of the states

have adopted the same or similar policies. Evidence

in the record, which was admitted and not

challenged at trial, reveals that a majority of states

either do not restrict hair length or allow exceptions

for religious practices. Exh. 5, App., infra, at 84a-

86a, Tr. at 16, 115 (admission of exhibit at trial and

cross-examination of witness who compiled it).

Several prison systems have made their policies

on permitting long hair available in publications.

E.g., Colorado Department of Corrections, Admin-

istrative Regulation: Hygiene and Grooming § IV.A.

1.d (2009), available at https://exdoc.state.co.us/

userfiles/regulations/pdf/0850_ll.pdf (“An offender

who claims that long hair and/or a beard is a

fundamental tenet of a sincerely held religious belief

will not be required to have a hair cut as long as the

offender obtains documentation from the Office of

Faith and Citizens Programs’ coordinator.”);

Kentucky Department of Corrections, Policies and

Procedure: Hair, Grooming, and ID Card Standards

>

§ 2.A (2008), available at http://www.corrections.ky.

24

gov/NR/rdonlyres/E3C6E5A8-3782-48C8-B162-ACAO

923D73A0/160611/1598.pdf (“An inmate may * * *

[c]hoose the length of his hair.”); Michigan

Department of Corrections, Policy Directive:

Humane Treatment and Living Conditions of

Prisoners § D (2009), available at http://www.

michigan.gov/documents/corrections/03_03_130_270

875 7.pdf (“Prisoners shall be permitted to maintain

head and facial hair in accordance with their

personal beliefs provided that reasonable hygiene is

maintained.”); Oregon Department of Corrections,

Inmate Hygiene, Grooming, and _ Sanitation

Standards, Or. Admin. R. 291-123-0015 § 2(a) (2010)

(“Head and facial hair must be maintained daily in a

clean and neat manner.”).

These prison systems include the full range of

range of prisons, from minimum to maximum

security, and they face the same issues of preserving

prison security as the TDCd. Following theu

example, the TDCJ could allow a narrow religious

exemption as envisioned by RLUIPA, which provides

that the government may accommodate religious

practices by “retaining the policy or practice and

exempting the substantially burdened religious

exercise.” § 4(e), 42 U.S.C. § 2000cc-3(e). The TDCJ

has failed to articulate why other prison systems,

with an indistinguishable interest in prison security,

can accommodate religious practices while it cannot.

Respondents have presented nothing more than

conclusory statements to meet their burden of proof

under RLUIPA. At trial, the regional! director of the

TDCJ advanced only unsubstantiated opinions about

25

possible problems’ of identification, hidden

contraband, and hair pulling. Tr. at 222-25. He

offered no specific examples in which long hair had

actually caused such problems and he did not refer

at all to the experience of other prison systems. Far

from supplying specific reasons why a religious

exception would never be feasible, the director

admitted that other exceptions occurred anyway

because the prisons were understaffed. Jd. at 222:

App., infra, at 44a.

So far from establishing that the rule against

long hair is narrowly tailored, the TDCJ’s own

policies demonstrate the contrary. While the TDCJ

requires that men keep their hair short, it allows

women to have almost any hairstyle they choose, so

long as it is not “extreme.” Texas Department of

Criminal Justice Offender Orientation Handbook,

Ch. 1 § ILA.5 at p. 11 (2004), supra, at 3-4.

Respondents have presented no evidence that

women are less able than men to hide contraband in

their hair, that they can less easily change their

appearance, or that they are Jess vulnerable to

attack because of their long hair.

This inconsistency directly undermines any

assertion that the absolute rule against long hair is

narrowly tailored. In Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetai, 546 U.S. 418 (2006),

this Court held that a statutory exception for peyote

use by Native Americans demonstrated that the

Controlled Substances Act, 21 U.S.C. § 801 et seq.,

could accommodate other exceptions for religious

practices. The defendants in that case accordingly

26

failed to meet the requirements of strict scrutiny

under RFRA. Jd. at 432-34. Even more so in this

case, the wholesale exception for women

demonstrates the need to allow an exception for

petitioner’s religious exercise. Respondents have

failed to explain how the double standard in the

TDCJ’s grooming policy serves the asserted interest

in prison security.

Wholly apart from these defects, the inconsistent

and arbitrary enforcement of the rule against long

hair defeats any claim that it is narrowly tailored.

There are several visible exceptions to the rule,

despite respondents’ claims that it must be

uniformly enforced. Thunderhorse, in fact, was

originally allowed to have long hair while in

administrative segregation in the Stiles Unit. App.,

infra, at 28a. It was only when he was transferred

to a different prison that Thunderhorse was no

longer permitted to grow his hair long or to keep his

braids, once cut, with his persona! property. Id. at

28a-29a. In addition, as the magistrate judge noted,

Thunderhorse was not the only prisoner allowed to

keep hair longer than the regulations prescribed.

One of the inmate witnesses, Sidney Byrd, had hair

that fell down “well past his collar.” Jd. at 34a-35a.4

In explanation, the regional director of the TDCJ

could only observe that the prison was understaffed,

“and so some matters were overlooked.” Jd. at 44a.

If the Texas prisons cannot afford to enforce the rule

4 The transcript of the trial reveals that Byrd was

disciplined for this violation of the rule against hair length

only after he was called to testify at trial, long after he had

grown his hair to that length. Tr. at 98-99.

27

they have, then they cannot enforce it against

religious practices. If budget constraints result in de

facto exceptions, then the same constraints cannot

be invoked to deny exceptions for religion.

In O Centro, this Court “looked beyond broadly

formulated interests justifying the general

applicability of government mandates and

scrutinized the asserted harm of granting specific

exemptions to particular religious claimants.” 546

U.S. at 431. An existing exception in that case, as in

the present one, demonstrated the feasibility of the

proposed accommodation. Jd. at 434-35. Strict

scrutiny requires a specific inquiry into the religious

exemption sought by petitioner. There is no

indication that the TUDCJ has made such an inquiry.

Petitioner is an elderly, diabetic, and legally blind

inmate, with the safest possible security rating in

the Texas prison system. The TDCJ has done no

assessment indicating that inmates with similar

religious beliefs and a similar security rating should

be subject to the same restrictions as the general

prison population. More than one circuit has held

that the failure to consider exemptions on such

grounds defeats any attempt to prove that a policy is

narrowly tailored. Warsoldier v. Woodford, 418 F.3d

989, 999 (9th Cir. 2005); Smith v. Ozmint, 578 F.3d

246, 253-254 (4th Cir. 2009).

Whatever deference is due to prison officials, it

must be to a policy based on more than conclusory

assertions about the need for general rules. The

TDCJ’s policy typifies the “inadequately formulated

prison regulations and policies grounded on mere

28

speculation, exaggerated fears, or post-hoc

rationalizations’ that Congress subjected to strict

scrutiny in RLUIPA. 146 Cong. Rec. 87774 at S7775

(daily ed. July 27, 2000) QGoint statement of Sens.

Hatch and Kennedy). Respondents’ arguments fare

no better than those of the federal officials in O

Centro: “The Government’s argument echoes the

classic rejoinder of bureaucrats throughout history:

If I make an exception for you, I'll have to make one

for everybody, so no exceptions.” 546 U.S. at 436.

The TDCJ’s ostensibly absolute rule against long

hair has lmited scope, inconsistent enforcement,

and little justification. Respondents have failed to

prove that the rule, in its present form, 1s the least

restrictive means of furthering a compelling

governmental! interest.

CONCLUSION

The petition for a writ

granted

Respectfully submitted

Damiel R. Ortiz’

George Rutherglen

James &. Ryan

University of Virginia

School of Law

Supreme Court Litigation

Clinic

580 Massie Road

Charlottesville, VA 229083

(434) 924-3127

dortiz@uirginia.edu

Mark 'T. Stancil

Robbins, Russell, Englert

Orseck, Untereiner &

Sauber LLP

1801 K Street, N.W.

Suite 41]

Washington, DC 20006

(202) 775-4500

May 2010

,

of certiorar1 should

David ‘I’. Goldberg

Donahue & Goldberg

99 Hudson Street,

8h Floor

New York, NY 100

(212) 3384-88103

*('ounsel Oo] Record

LL&’

APPENDIX

APPENDIX A

In the

United States Court of Appeals

For the Fifth Circuit

No. 08-4082]

IRON THUNDERHORSE.

BILL PIERCE, INDIVIDUALLY AND IN HIS OFFICIAI

CAPACITY AS CHAPLAINCY DIRECTOR; RON TEEL,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

COORDINATOR OF NATIVE AMERICAN KELIGIOUS

PROGRAMS: UNIDENTIFIED DORS: AND RRAD

LIVINGSTON,

| se |

/ J je naants A ppt iLee

Appeal from the United States District Court

for the Eastern District of Texas, Lufkin Divisio!

USDC No. 9:04-CV-222

DECIDED FEBRUARY 9, 2010

Before KING, BARKSDALE, and ELROD, Ctrcutt

Judges.

PER CURIAM:*

This appeal arises from a bench trial involving

claims brought pursuant to the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. §§ 2000cc-2000cc-5, and 42 U.S.C. § 1983,

against Defendants-Appellees who are officials or

employees of the Texas Department of Criminal

Justice-Institutional Division (“TDCJ”). Pro se

Plaintiff-Appellant Iron Thunderhorse, a prisoner in

the custody of the TDCJ, contends that the

magistrate judge improperly dismissed his claims

that Defendants violated his free-exercise rights

under RLUIPA by (1) denying him permission to

grow his hair, (2) prohibiting him from performing

pipe ceremonies in his cell, and (3) denying him

access to a colored headband. Thunderhorse also

argues that the TDCJ’s failure to explicitly recognize

Native Americans as a racial category (as opposed to

“Other’) denies him certain prison benefits. With

respect to the bench tmrial, he alleges that the

magistrate judge inappropriately denied both his

request to subpoena two witnesses and his motion

for a jury trial. He further claims that the

magistrate judge was biased against him and the

* Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not. precedent

except under the limited circumstances set forth in 5th Cir.

R. 47.5.4

oa

attorneys for Defendants committed discovery abuse.

For the reasons set forth below, we AFFIRM.

lL PROCEDURAL AND FACTUAL

BACKGROUND

Thunderhorse filed this action in October 2004,

and this is the second time that this case has come

before us. The magistrate judge had previously

granted summary judgment for Defendants on the

RLUIPA claims now before us. See Thunderhorse v.

Pierce, 418 F.Supp.2d 875, 899 (E.D.Tex.2006), rev'd

232 Fed. Appx. 425 (5th Cir.2007). On appeal, we

found that the magistrate judge did not give

Thunderhorse sufficient notice so that he could

properly respond to Defendants’ motions, and the

Jack of notice resulted in Thunderhorse’s failure to

file a “large amount of evidence.” Thunderhorse, 232

Fed. Appx. at 427. Accordingly, we vacated the grant

of summary judgment and remanded the case for the

magistrate judge to consider the motions in light of

the previously unfiled evidence. See id. Instead of

reconsidering the summary-judgment motions, the

magistrate judge held a bench trial on April 1, 2008.

At the pre-trial conference and again at trial,

Thunderhorse objected to the magistrate judge’s

denial of his request for a jury trial and his motion to

subpoena Debra Liles and Chaplain Al O’Brien,

former employees of the TDCd, as trial witnesses.

On July 20, 2008, the magistrate judge issued an

opinion granting the following injunctive relief: (1)

the ‘TDCJ_ shall recognize Native American

Shamanism as a valid faith with its own “faith code”;

4a

(2) “Thunderhorse shall be permitted to request the

designation of a reasonable number of holy days and

to request traditional foods for feast days, in

conformity with TDCJ regulations’; and (38) if

Thunderhorse is released from administrative

seeregation, the TDCJ shall not unreasonably deny

him access to pipe ceremonies, a medicine bundle, a

clay flute, and a small drum. She denied all other

rehef that Thunderhorse sought. The facts set forth

below were developed at the bench trial.

Thunderhorse claims that he is the “Grand

Sachem” (Chief) of the Quinnipiac Indians, a part of

the Algonquian Confederacy. His faith is Native

American Shamanism. Although Thunderhorse has

submitted an application for federal recognition of

the Quinnipiac, it is not a federally recognized tribe.

Thunderhorse first entered the TDCJ in 1967. He

has been released and re-incarcerated at least three

times, and he has remained incarcerated since 2002.

His current problems with the TDCJ began when he

transferred from the Stiles Unit of the TDCJ to the

Polunsky Unit in August 2004. Before arriving at the

Polunsky Unit, Thunderhorse claims that he was

able to maintain long hair (with braids that fell to

his lower back),! wear a colored headband, perform

pipe ceremonies, and possess other religious items.

According to Thunderhorse, the TDCJ_ provided

these accommodations while he was in the general

population and when he _ was_ confined to

administrative segregation.

' Indeed, these severed braids, which we have inspected,

were part of the appellate record.

Ja

When he first arrived at the Polunsky Unit, he

was in the general population. He alleges that the

staff there harassed him about his religion and

ethnicity, and the guards confiscated his medicine

bag, religious medallon, and quartz crystal.

According to Thunderhorse, this harassment

resulted in an altercation with a guard in June 2006.

As ae result, the TDCJ assigned him = to

administrative segregation. While there, he is not

allowed to attend pipe ceremonies, conduct a

personal pipe ceremony in his cell, or possess a fl 2

or drum. In addition, the TDCJ prohibits him © »m

wearing a colored headband, and the TDCJ reiuses

to grant him an exemption to its hair length

restriction. However, the TDCJ does allow him to

wear a white headband. All inmates at the Polunsky

Unit must abide by the headband and hair length

policies.

Il. STANDARD OF REVIEW

We review the magistrate judge's legal

conclusions at a bench trial de novo and her findings

of fact for clear error. Adkins v. Kaspar, 393 F.3d

559, 563 (5th Cir.2004) (citation omitted). Because

Thunderhorse is a pro se htigant, we construc his

briefs liberally and “apply less stringent standards”

than to parties represented by counsel. Grant. v.

Cuellar, 59 F.3d 523, 524 (5th Cir.1995).

lil. DISCUSSION

A. The RLUIPA Frec-Exercise Claims

6a

The core of this appeal is Thunderhorse’s

contention that certain policies of the TDCJ violate

his rights, under RLUIPA, to freely exercise Native

American Shamanism. Specifically, he complains

that the TDCJ prohibits him from growing his hair

and from performing religious pipe ceremonies in his

cell. He also complains that the TDCJ prohibits him

from wearing a colored headband.

1. Legal Standards

RLUIPA mandates that

[njo government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution * * * even

if the burden results from a rule of general

applicability, unless the government

demonstrates that imposition of the burden on

that person-

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental mterest.

42 US.C. § 2000cc-1(a). “RLUIPA thus protects

institutionalized persons who are unable freely to

attend to their religious needs and are therefore

dependent on the government’s permission and

accommodation ‘for exercise of their religion.” Cutter

v. Wilkinson, 544 U.S. 709, 721 (2005).

An inmate-plaintiff seeking relief under RLUIPA

bears the initial burden of demonstrating that the

da

challenged prison policy substantially burdens his

exercise of religion. See 42 U.S.C. §§ 2000cc-1(a)-

2000cc-2(b). To meet this burden, the plaintiff must

show (1) that the burdened activity is a “religious

exercise,’ and (2) that the burden is substantial.

RLUIPA defines “religious exercise” as “any exercise

of religion, whether or not compelled by, or central

to, a system of religious belief.” 42.U.S.C. § 2000cc-

5(7)(A). In Adkins uv. Kaspar, we defined “substantial

burden” as follows:

[A] government action or regulation creates <

“substantial burden” on a religious exercise if 31

truly pressures the adherent to significantly

modify his religious behavior and significantly

violate his religious beliefs. * * * [T]he effect of a

government action or regulation is significant

when it either (1) influences the adherent. to act

in a way that violates his religious beliefs, or (2)

forces the adherent to choose between, on the one

hand, enjoying some generally available, non-

trivial benefit, and, on the other hand, following

his religious beliefs.

393 F.3d 559, 570 (5th Cir.2004) (citations omitted).

This inquiry “requires a case-by-case, fact-specific

inquiry to determine whether the government action

or regulation in question tmposes a_ substantial

burden.” Id. at 571.

if the plaintiff satisfies this threshold

requirement, the burden shifts to the defendant to

demonstrate that the challenged policies are the

least restrictive means of furthering a compelling

8a

governmental interest. Baranowski v. Hart, 486 F.3d

112, 124 (5th Cir.2007) (citation omitted). In making

this determination, the court must give due

deference “to the experience and expertise of prison

and jail administrators in establishing necessary

regulations and procedures to maintain good order,

security and discipline, consistent with consideration

of costs and limited resources.” Cutter v. Wilkinson,

544 U.S. 709, 723 (2005) (citation omitted). RLUIPA

“is not meant to elevate accommodation of religious

observances over the institutional need to maintain

good order, security, and discipline or to control

costs.” Baranowski, 486 F.3d at 125 (citation

omitted).

Thunderhorse’s primary contention here is that

the magistrate judge failed to analyze his claims

under RLUIPA’s compelling-interest least-

restrictive-means standard of review.

2. The TDCJ’s Hair length Policy

The magistrate judge properly found that Diaz v.

Collins, 114 F.3d 69 (5th Cir.1997), and Longoria v.

Dretke, 507 F.3d 898 (5th Cir.2007), foreclosed

Thunderhorse’s RLUIPA claim against the TDCJ’s

hair length policy. In both cases, the plaintiffs, hke

Thunderhorse, were prisoners who, for religious

reasons, sought permission not to cut their hair.

Diaz, 114 F.3d at 70 (following the religious practices

of the Aztecs); Longoria, 507 F.3d at 900-01

(practicing his rehgion as a Mexica Nahua Native

American). In both cases, we found that the policy

substantially burdened (or the _ plaintiff had

9a

sufficiently pleaded that the policy substantially

burdened) a religious exercise. See Longoria, 507

F.3d at 903; Diaz, 114 F.3d at 72-73. But we upheld

the policy as the least restrictive way to serve a

compelling governmental interest-prison security.

In Diaz, which arose under RLUIPA’s

predecessor statute, the Religious Freedom

Restoration Act (“RFRA”), we _ explained that

prisoners may hide weapons and other contraband in

their hair. 114 F.3d at 73. In addition, requiring

short hair makes it more difficult for an escaped

prisoner to alter his appearance from’ the

photographs that the TDCJ periodically takes of

each inmate. /d.? In light of these concerns, we held

that “the security interest at stake cannot

meaningfully be achieved appropriately by any

different or lesser means than hair length

standards.” Id.

In Longoria, 507 F.3d at 904, we affirmed the

district court’s dismissal of Longoria’s RLUIPA claim

even though the district court did not determine

whether the policy was narrowly tailored to achieve

a compelling governmental interest. We explained

that such a determination was unnecessary because

we had previously evaluated the same policy under

RFRA. Id. at 901, 904 (citing Diaz, 114 F.3d at 73).

2 Defendants introduced similar evidence in this case.

Furthermore, the Regional Director of the TDCJ explained

that, because altercations between inmates occur with some

frequency, the policy prevents inmates from “grab[bing] that

handful of hair, [which] becomes a heck of a leverage issue.

”

10a

Because RLUIPA and RIERA shared the least-

restrictive-means, compelling-interest test, we held

that the district court was not required to reexamine

the TDCJ’s hair length policy to conclude that

Longoria had failed to state a claim under RLUIPA.

See id. at 904. Consistent with these decisions, we

affirm the dismissal of this RLUIPA claim.?

3. Colored Headband

To establish that the TDCJ’s prohibition against

colored headbands violates RLUIPA, Thunderhorse

must first show that the prohibition substantially

burdens his religious exercise. See 42 U.S.C. §§

2000cc- 1(a)-2000cc-2(b). The magistrate judge found

that Thunderhorse failed to establish that wearing a

white cloth headband, which the TDCJ allows, as

3 Thunderhorse argues that the policy cannot be the least

restrictive way to maintain prison security because the

TDCJ enforces it in an arbitrary manner and other prison

systems, including the Federal Bureau of Prisons, permit

long hair. He cites examples of how the TDCJ had

previously perrnitted him and other inmates to have long

hair. These contentions find support in Warsoldier ov.

Woodford, in which the Ninth Circuit issued a preliminary

injunction, pursuant to RLUIPA, that prevented the

California Department of Corrections from enforcing its hair

length restriction against a Native American inmate. See

418 F.3d 989, 999-1001 (9th Cir.2005). The Ninth Circuit

found that the restriction was not the least restrictive

means to maintain prison security, in part, because the

prisons run by the federal government, Oregon, Colorado,

and Nevada all permit long hair or provide religious

exemptions to their hair length restrictions. See td. at 999

(citations omitted). This court, however, is bound by Diaz

and Longoria.

lla

opposed to a colored headband, which the TDCJ

prohibits, substantially burdens his religious

exercise. We agree.

Thunderhorse’s sole complaint on appeal is that

he is unable to purchase the white headbands

through the approved vendors or at the TDCJ’s

commissaries. He contends that this inability to

purchase the white headbands, rather than the

policy itself, is the substantial burden. At trial, he

admitted that he cannot purchase the _ white

headbands because the only remaining approved

vendor mishandles his orders. In response, the

Regional Director of the TDCJ promised to attempt

to secure more vendors. Based on this evidence, the

only fault that the magistrate judge could have

attributed to the TDCJ is that it should have

selected more competent vendors-an oversight that

does not rise to the level of a RLUIPA violation. In

sum, Thunderhorse has not shown that the T7DCJ’s

headband policy substantially burdens his rights

under RLUIPA.‘

4 Thunderhorse does dispute the TDCJ’s justification for the

restriction against colored headbands, which the magistrate

judge credited. According to the TDCJ, the restriction is the

least restrictive way to prevent inmates from using colored

accessories to promote gang affiliations. Thunderhorse,

however, is in administrative segregation where he spends

most of his time alone and in his cell. Neither the magistrate

judge nor the TDCJ has explained how allowing him to wear

a colored headband while he is alone and in his cell could

promote gang violence. But we do not reach this question

because Thunderhorse has failed to satisfy his threshold

burden of establishing that the white-headband-only policy

substantially burdens his religious exercise.

4. Performing Personal Pipe Ceremonies in

His Cell

The TDCJ’s ban on pipe use within the cell doe:

not violate RLUIPA. Thunderhorse seeks to perform

personal pipe ceremonies inside of his cell

According to Thunderhorse, Native American

Shamans use the pipe to pray. It is undisputed that

the pipe ceremony is a religious exercise and that the

prohibition on it is a substantial burden. Therefore,

the issue is whether Defendants have shown that the

prohibition on personal pipe use within the cell is the

least restrictive method to achieve a compelling

interest.

Defendants argue that the compelling interest

here 1s prison security: no inmate may have

materials inside of his cel) that could be used to start

a fire or create an explosive. The magistrate judge

properly ruled for Defendants on this basis, stating

that “[b]ecause Thunderhorse is in administrative

seyregation, he does not have access to pipe

ceremonies for security reasons, which reasons

79

represent compelling governmental interest:

Maintaining prison security is a compelling

interest. Sossamon v. Lone Star State of Texas, 560

ii3d 316, 334 (th Cir.2009) (“Texas obviously ha

The TDCJ allows those in the general population (but not

those in administrative segregation such as Thunderhorsce)

to participate in group pipe ceremonies outdoors. At trial

Thunderhorse made clear that he did not seek to attend

those ceremonies. Instead, he only sought to perform

personal pipe ceremonies inside of his cell

compelling governmental interests in the security

of its prisons... .”). We find no reason to question

the TDCJ’s position that the prohibition’ on

incendiary items within the cell is the _ least

restrictive way to prevent inmates from starting

fires in their cells. Hence, the 'TDCJ’s prohibition on

pipe use within the cell does not violate RLUIPA

B. Request for a Jury Trial

Thunderhorse was not entitled to a jury trial

because he sought only injunctive and declaratory

relief. See Baum v. Blue Moon Ventures, LLC, 513

F.3d 181, 193 (5th Cir.2008) (“[U]nless Congress ha

expressly provided to the contrary, an injunction 1

an equitable remedy that does not invoke A

constitutional right to a jury trial.” (citation

omitted)); Allison v. Citgo Petroleum Corp., 151 F.3d

402, 423 n. 19 (5th Cir.1998) (citations omitted). At

trial, when ‘Thunderhorse raised this issue, the

magistrate judge explained that “the reason it was a

bench trial was because you were seeking injunctive

relief and declaratory rehef. That’s equitable rehef.’

Thunderhorse conceded, “Okay. I misunderstood.’

He did not claim that he sought any rehef other than

equitable rehef. Under these circumstances, th

magistrate judge properly denied ‘Thunderhorse

request for a jury trial

Thunderhorse apparently recognizes that he wa

not entitled to a jury trial, so he argues that, under

Federal Rule of Civil Procedure 39(c), the court

should have ordered one. Rule 39(c) 1s inapplhicabl

It states that “liJn an action not triable of right by

|

jury, the court, on motion or on its own: (1) may t)

an issue with an advisory jury: or (2) may, with the

partics consent, try an issue by a jury whose verdict

has the same effect as if a jury tral had been a

matter of mnght Ked R.Civ.P 39(c)

Thunderhorse did not seek an advisory jury nor ha

he argued or pointed to any portion of the record

howling that Defendants consented to a jury trial!

Thunderhorse also claims that he was entitled to

a jury trial because, in his Complaints, he “left open

the issue of damages depending on what verdict wa

returned by a jury.” His Amended Complaint

however, does not seek, or reserve the right to seek

monetary damages. Instead, the “Prayer for Relhef”

only includes the following five requested remedie

(1) declaratory judgment, (2%) injunctive rehef, (3)

costs of the suit. (4) attorney fee and (5) other rehet

deemed proper by the court

C. Request to Subpoena Witnesses

‘The mapistrate judge did not err by denying

Thunderhorse’s request to subpoena two witnesse

Debra Liles and Chaplain Al O’Brien, to testify at

triat. We review such decisions for an abuse of

:

discretion. Adkins v. Kaspar, 393 F.3d 559, 571 (5th

(ir.2004). “Before we will hold that the district court

abused its discretion by refusing to issue a subpocna

the proponent of the subpoena must how that

relevant restimony WAS excluded Oy? that a

substantial need for a witness’: trial testimony

existed.” /d. (lootnote omitted). Thunderhorse argue

that the mayistrate judge should have compelled the

attendance of Liles and O’Brien because he

considered them unnamed John and Jane Doe

Defendants, and his Amended Complaint identified

“all others similarly situated” as Defendants

lt appears that he raised this argument for the

first time on the day of trial, and the record does not

show that Thunderhorse has ever served or

the court to serve Liles and O’Brien

Summons and Complaint, cf. Fed.R.Ci,

such, the magistrate judge properly det

request to compel Liles and O’Brien to

Defendants

lhunderhorse als mischaracterizes

proceedings before the magistrate judge on this issu

by selectively quoting from her February 20

Order to Produce Witnesses According

Thunderhorse, the Order stated, “Ihe State of ‘Texas

shall produce Debra Liles, Deacon Al O’Brien °

But what the Order actually required was that the

“State of Texas shall produce, Debra Liles, Reverend

Deacon Al O’Brien ( or provide last known address )

... On March 17, 2008, Defendants complied: They

informed the magistrate judge and Thunderhorse

that Liles and O’Brien were no longer employed with

the TDCJ and that they would not be available for

trial. Defendants also provided Liles and O'Brien's

last known addresses to the court under: al. Unde

these circumstances, we cannot find that the

magistrate judge abused her discretion in denying

Thunderhorse’s request to subpoena these witnesses

to testify.

16a

D. Alleged Judicial Bias

During the trial, the magistrate judge stated that

this court had already ruled that the TDCd’s

grooming code, as applied to hair length, is

enforceable under RLUIPA. She explained that

Thunderhorse would have to argue the issue to this

court because she was bound by our precedent

Thunderhorse argues that these statements, coupled

with the magistrate judge’s unwillingness _ to

consider evidence that the hair length regulations

violated RLUIPA, evinces judicial bias. Once again,

Thunderhorse’ mischaracterizes what occurred

Contrary to Thunderhorse’s argument, the record

reflects that the magistrate judge allowed detailed

testimony about the hair length code over

Defendants’ objections that the Fifth Circuit had

already decided the issue. In sum, there is no merit

to this claim of judicial bias.

EK. Alleged Discovery Abuse

Thunderhorse alleges that Defendants’ attorneys

engaged in discovery abuse, such as failing to

disclose documents and impeachment information,

and informing Thunderhorse, just four days before

trial, that Liles and O’Brien no longer worked for the

TDCJ. According to Thunderhorse, “[{t]hese tactics

and elements of surprijsjJe etc. operated to cause

Appellant, a disabled | Pro Se | htigant],} extreme

undue prejudice and constitutes misconduct by the

[Sjtate of Texas.” We review alleged discovery errors

for an abuse of discretion and will not reverse unless

the party alleging the error establishes that he was

l7a

prejudiced by the error. See United States v. Garcia,

567 F.3d 721, 734 (5th Cir.2009); Hastings v. North

Fast Indep. Sch. Dist., 615 F.2d 628, 631 (5th

Cir. 1980)

We have already addressed the magistrate

judge's denial of the motion to subpoena Liles and

O’Brien. Thunderhorse’s remaining. allegations of

misconduct also fail because he has not alleged that

the magistrate judge made incorrect rulings or

rulings that prejudiced him as a result of this alleged

misconduct. Nor has he identified anything in the

record showing that he objected to this conduct.

Instead, his appellate papers focus exclusively on the

“misconduct by the [S]tate of Texas.” As such, these

claims are not properly before the court as there are

no decisions by the magistrate judge to review. See

Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d

1, 14 (Ist Cir.2002) (finding no abuse of discretion

where the plaintiffs did not object to the alleged

discovery abuses).

F. Recognition of Native Americans as a

Racial Category

Thunderhorse complains about the TDCJ’s

method for categorizing its inmates as either

“White,” “Black,” “Hispanic,” or “Other .” According

to Thunderhorse, categorizing him as “Other”

instead of “Native American” violates his Fourteenth

Amendment rights by depriving him of “any

legitimate rehabilitative, cultural programs, services

and activities that could, should or would be

available if such a category existed.” Once again.

LlSa

Thunderhorse has not pointed to any evidence to

support this supposition. Nor have we found any in

the appellate record. To the contrary, the Regional

Director of the TDCJ testified that there are no

benefits attached with these racial classifications

Hence, we find no ciear error in the magistrate

judge’s decision to credit this uncontroverted

testimony and to dismiss this claim

G. Other Claims

Thunderhorse’s remaining claims lack merit

First, he argues that the TDCJ favors. white

supremacist and multi-denominational faiths over

traditionalist Native American Shamanism because

the TDCJ does not have a “faith code” for Native

American Shamanism. This argument overlooks the

fact that he prevailed on this very issue before the

magistrate judge who ordered that “Native American

shamanism should be recognized as a legitimate

faith, with its own faith code. .. .” Indeed, his brief

recognizes that the magistrate judge’s decision

“give[s] Appellant the right to be recognized and

categorized as a Native American Shaman with its

own sub-code, with a choice of holy days and with

special meals.”

Second, Thunderhorse complains about the

magistrate judge’s ruling that he inev have a

ceremonial pipe, drum, clay flute, and medicine

bundle when he is released from administrative

segregation. He argues that this ruling creates an

incentive for the TDCJ to keep him in administrative

19a

segregation for as long as possible. This argument is

entirely speculative and not ripe.

Third, during this appeal, Thunderhorse filed a

Motion for Leave to File a Supplemental Brief, which

we granted. In it, he contends that the TDCd

discriminates against his religion because he cannot

obtain special foods for his holy days while Jewish,

Muslim, and Catholic prisoners in administrative

segregation can. The magistrate judge ruled on this

matter in her Order Denving Plaintiff's Second

Motion for Enforcement, dated July 21, 2009. She

found that the religious meals that the Jewish,

Muslim, and Catholic prisoners receive consist of the

same foods provided to all inmates. She ruled tha‘,

consistent with the TDCd’s policy, if Thunderhorse

wants food that the TDCJ does not serve so that he

can celebrate religious holidays, he can arrange for

outside sources to deliver the food through the prison

chaplain. Thunderhorse does not challenge these

rulings in his supplemental brief. Therefore, we do

not address this claim.®

IV. CONCLUSION

For the reasons set forth above. we AFFIRM the

judgment.

6 The remainder of the supplemental brief echoes prior

requests for a pipe ceremony and an exemption to the hair

length policy, which we have addressed.

20a

APPENDIX B

IN THE UNITED STATES DISCTRICT COURT

I

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

LRON THUNDERHORSE

Civil Action No. 9:04ev222

BILL PIERCE, ET AL.

MEMORANDUM OPINION

The Plaintiff lron Thunderhorse, an inmiate of the

Texas Department of Criminal Justice, Correctional

Institutions Division proceeding pro se, filed this

lawsuit under 42 U.S.C. $1983 and other federal

laws complaining of alleged violations of his

constitutional rights. The lawsuit has been referred

to the undersigned United States Magistrate Judge

pursuant to 28 U.S.C. $686(c).

The Allegations of the Complaint

Thunderhorse’s original and amended complaints

center around the issue of religious freedom. After

an extensive discussion of his long history fighting

TDCJ-CID in court, Thunderhorse explains that he

is a practitioner of Native American religion and

refers to himself as a “shaman.” He states that the

2la

Native American religious program existing in

TDCJ-CID, as it now stands, gives preferential

treatment to “Christian-oriented” Native American

behefs while “disfavoring and excluding”

traditionalist Native American ceremonial leaders

known as shamans. He says that the Native

American program fails to inform interested persons,

including himself, what the program entails and

what items are allowed to be possessed before the

interested inmate submits an 1-60 inmate request

form declaring a religious preference. Thunderhorse

says that this 1s discriminatory because “mainstream

Christians” are informed and know what to expect.

Furthermore, he asserts, Native American programs

within the prison are restricted to certain units, and

inmates in administrative segregation are restricted

from participating in the programs. Thunderhorse

himself is in administrative segregation, as a result

of a disciplinary case which he_ received for

assaulting an officer.

Next, Thunderhorse says that the current TDCJ-

CID policy setting out Native American “holy days”

is not neutral, but favors Plains Indians culture and

excludes other regions. He says that he requested a

fair resolution in which one holy day for each of the

seven cultural regions would be adopte?, but that

the Defendant Bull Pierce told him it was up to then-

chaplain Ron ‘Teel, and Teel said that only Pierce

could approve it.

Thunderhorse reiterates that the restriction of

Native American programs to only certain units

violates the Establishment Clause. He stated that he

OO .«

aia

had been allowed a viable program while confined at

the Stiles Unit, and to deny him one, at the Polunsky

Unit, violates his right to practice his religion.

Thunderhorse goes on to say that TDCJ-CID

“maintains a separate catcgory” for shamanism, the

practitioners of which are entitled to “nothing.” He

says that he is an “acknowledged shaman,

equivalent to a priest and ceremonial leader,” and

that he has been listed as a shaman on his prison

travel card since 1978, but that TDCJ-CID’s failure

to develop a set of shamans’ items and procedures is

proof that the prison system has tried to get him to

convert to its “Christian-Indian program” or do

without.

Although the 'TDCJ policy on religious devotional

items claims the availability of such items as

feathers, headbands, medicine bag, and natural

objects such as stones, shells, feathers, bone, tooth,

and plants, Thunderhorse says, this is not done in

practice. He says that he used to have several multi-

colored headbands, but that a new policy restricts

these headbands to white only. Thunderhorse states

that he asked for a copy of this new policy, but it has

not been given to him. ‘hunderhorse contends that

the Mushms are allowed to have multi-colored

headgear, so the fact that he is not is discriminatory

Thunderhorse states that medicine bags must

come from an approved vendor. He says that this is

“sacrilegious” bece. ~e medicine bags are to be

handled only by shamans and medicine men, not

vendors. Thunderhorse adds that the allowance of

natural objects, kept in medicine bags, is left to the

whims of unit wardens. He says that he had a quartz

crystal in his medicine bag since the 1980s, but it

was confiscated by Warden Alford who determined,

by only visual inspection, that it was just “a hunk of

plastic.” Furthermore, Thunderhorse says, by policy

medicine bags must be worn only in cells or to and

from ceremonies, but that he wants to-wear his

medicine bag everywhere because “to remove it is to

court death.”

Thunderhorse complains that the TDCJ Rehgous

Program Committee 1s. staffed by Christian

chaplains, and there are no Native American

traditional elders or shamans on the committee. He

states that the Native American program, which he

again complains is located only on certain units, gets

only occasional ceremonies, as opposed to “frequent

services” for mainstream religions. He says that

Shamans and Native American circle members are

not allowed any feast days or celebrations, while

mainstream religious groups have celebrations “on a

weekly basis.” He points to such things as Bill Glass

Ministry Revivals, Mike Barber Ministry Revivals,

and KAIROS celebrations, which present everything

from magicians to singing groups, motorcycle

displays, comedians, and martial arts exhibits,

which he claims have “nothing to do” with religious

issues. Thunderhorse says that he has formally

suggested a plan allowing quarterly feast days

celebrating the seasons, but to no avail.

Next, Thunderhorse says that Muslims, Orthodox

Jews, and Orthodox Greeks in TDCJ are allowed

DA

ata

special diets and foods in conjunction with holy day

observances, but no such privileges are allowed for

Native Americans. He says that it 1s an “ancient

tradition” to celebrate the four seasons

including special foods. Thunderhorse’

does not identify the special dict or food

seeking.

Thunderhorse says that he is the person m

responsible for the existence of a Native American

program in TDCJ-CID, but that he is excluded fron

the program because the defendants have refused to

develop “a similar but unique category” for shaman

and because TDCJ has created a “Christian-oriented

program” to the exclusion of traditionalist shaman

such as himself. He says that he is a “traditional

Algonquian shaman” and as such has sacred dutie

obligations, and responsibilities to perform for hi

clan, nation, and confederacy, which he does not

specify; in any event, Thunderhorse says, thes

duties have all been “chilled” since 2004. He say

that the “shift” in TDCJ policies away from the thre:

previous agreements which he says that he

with prison officials places a substantial burden o1

his “exercise of ancient traditions.”

3Setween 2004 and 2005, Thunderhorse says, all

of the sacred items allowed for him during the past

decade have been confiscated or destroyed or forced

to be sent home, due to “vague and ambiguous

changes and interpretations” which served as

“official excuses to discriminate and retaliate.” He

says that he has been subjected to acts of

discrimination and retaliation, including: repeated

20a

disciplinary cases for violating grooming standa)

harm and threats of harm by use ol

destruction of handicap aids such as glasses

shields: and placement In administrative

segregation. He says that he has submitted several

proposals for informal resolution, which were all

’

ignored. He claims that he has suffered a denial «

|

medical care and the discontinuanc {f medical

maroritys

ignificantly betwee

ay that mainstream

nificantly on many i:

adds that ‘TDCJ-CIll

existence represent a aeparture

iccommodations mad to num 1n violati )]

United Nations treaties, and also violat«

rights between the Algongq in Famuly of

well as the International Indian Treat’

the Spiritual Right

American Prisoners. He says that he 1

descendant’ of an autonomous confederation

“helped America establish it entire

political system “

Thunderhorse goes on to say that he ha

requested an exemption to the TDCJ-CID groomin;

code under RLUIPA and in consideration of previou:

out-of-court settlements. He says that he wa

a security breach, even with long hair

visual] searches were possible and were done, and

because TDCJ-CID had multiple photographs of him

on file. Thunderhorse argues that this distinguishe

his case from Diaz v. Collin

In summarizing his claims, Thunderhors« ay

that the key facts in his amended complaint are: (

confiscation of religious items; (2) denial of relimiou:

(3) denial of programs for shamans; (4) denial!

of a racial category for “Native Americans"; (5)

ailure to provide exemptions or accommodations for

he dress code and grooming code: (6) fatlure to allow

gual acc te rvices for inmates 1n sepregatio1

ailure honor pri avyreements which he

tered into

PDCJI-CID’

that hi

VPNIZE only

excluding

him of

\de) lv] nly mMmmunctlve relilel ana

the case wa Set |! trial before the Court, which

conducted on April 2008. The trial

proceedings commenced by the parties disputing

ibout the exhibits being offered. While there was no

question that many of the exhibit may have

contained hearsay, the Court overruled’ the

| | 4

objections to the Thunderhorse objected to

the admission of a birth certificate, stating that it

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29a

Thunderhorse said that his problems began when

he was sent to the Polunsky Unit in August of 2004.

He was not 1n_— segregation at that time.

Thunderhorse stated that Warden Alford and Major

Duff insulted him with childish name-calling at the

Unit Classification Committee hearing after his

arrival at the unit, and not long after that, his

medicine bag was taken and a quartz crystal

confiscated and destroyed. Thunderhorse said that

the medicine bag had a buckeve, the crystal, and

some herbs, white cedar and sage, in it. He explained

that the crystal was two inches tig and not

sharpened, but that it was ccnfiscated because the

prison officials said that it was _ plastic;

Thunderhorse questioned the relevance of this

explanation, pointing out that the prison allows

plastic rosary crosses.

Thunderhorse testified that a number of disabled

inmates were transferred to the Polunsky Unit at

about the same time that he was, and the unit was

not ready for such an influx. He indicates that he

received some disciplinary cases and was sent to 1]

Building for pre-hearing detention, and his religious

property was taken and sent to his wife; however, he

was not given any confiscation papers.” His mecicine

bag was destroyed, however, and he talked to the

chaplain and was allowed to get a new one, but could

not get any quartz. This bag was later destroyed in

2006, along with a number of other items which

2 Thunderhorse stated that he spoke to Warden Alford, wh«

talked to the captain and had the disciplinary charges

dismissed

30a

Thunderhorse possessed. After this, Chaplain Rose

brought him another medicine bag with a stone and

some sage, and this is the bag he currently has.

While he was at the Wynne Unit, Thunderhorse

stated, he was allowed to make his own ceremonial

pipe and was able to do a morning and evening

ceremony. He said that this was part of an

agreement which he had with Wayne Scott, the

former Director of TDCJ-CID, and Debbie Lyles.

Under this agreement, Thunderhorse said, he cut his

hair, and was allowed to keep the cut hair and to

perform his pipe ceremonies. He _ kept’ these

privileges at the Stiles Unit, but lost them when he

went to the Polunsky Unit. Thunderhorse

maintained that he never violated the agreement or

abused the privileges which he received in any way.

He said that he has pictures of himself while in

prison, with long hair and a beard.

When asked by the Court what he wanted from

the lawsuit, Thunderhorse said that TDCJ has 32

“faith codes,” of which half are Christian. Native

Americans have one, which he said means “practice

our way or else.” He said that he wants a code for

shamanism, access to a musical instrument (a drum

or flute), a colored headband, and a access to a pipe.

Thunderhorse stated that while Native Americans

are allowed only white headbands, because TDCJ

officials say that they are concerned about prisoners

using colored headbands as gang symbols, other

religious faiths are allowed multi-colored robes or

bandannas with white and blue trim. Thunderhorse

also complained that three of the four holidays

ola

allocated to Native Americans are “battle days”

rather than true holy days, and said that he wants to

celebrate the seasons, something that other religious

faiths do. He also stated that he wanted feast days.

For these feasts, Thunderhorse said that fish and

widhfe would be preferable, but he would not wish

to place a burden on the kitchen, and so chicken

could be substituted for wild turkey.

Thunderhorse said that he knows of two other

inmates who have submitted requests to be classified

as Native American shamanists, but they were

refused. He estimated that one-fourth of all inmates

who identify their religious preference as Native

American would want to be shamanists. He said that

Bill Pierce claimed that some inmates designate

their religious faith as Native American just to get to

smoke, but ‘Phunderhorse said that this was

incorrect because cigarettes are readily available,

albeit unlawfully, within the prison.

Thunderhorse again referred to the prison faith

code, pointing out that a religious faith calling itself

the “Church of Jesus Christ Christian-Aryan” was

recognized and asking why shamanism could not

also be recognized. He says that according to Pierce,

TDCJ has gone from 36 recognized faiths to 136, but

it is not clear what the additional 100 are; in any

event, Thunderhorse says, there is not one for

shamanism.

As for the issue of his ethn: Thunderhorse

said that there are Native Americaus who neither

practice the religion nor speak the language. He

complained that he cannot have a pipe or a colored

headband, although he does have a bottle of white

sage. ‘Thunderhorse said that TDCJ had _ four

vendors of Native American supphes, but three are

now defunct and the other one repeatedly gets orders

wrong. He says that prison officials want him to use

the sage ina “smokeless ceremony.”

On cross-examination, the Defendants referred to

an organization called the Algonquian Confederacy

of the Quinnipiac Tribal Council (ACQTC).

Thunderhorse explained that this was a non-profit

organization chartered in the State of Connecticut,

“

and said that it was a “business council

Pk)

not a

religious one. He acknowledged that he had written

virtually all of the information on the ACQTC

website and that the address for its headquarters

was his wife’s home. Thunderhorse said that his wife

was the chief financial officer for ACQTC and that he

was the “grand sachem” (chief), as well as a historian

and linguist.

When asked how he was harmed by lack

recognition for shamanism in the TDCJ faith code,

Thunderhorse explained that because shamanists

are not recognized, they are not allowed to have

certain items, including personal pipes, colored

headbands, other shamanistic items such as drums

or flutes, and appropriate holy days with feast days.

He said that Native Americans do not have

“authoritative sources” spelling out the practice of

their faith, and explained that not all Native

Americans practice the same—there are seven

regions with seven linguistic branches,

33a

Thunderhorse conceded that the Indian t ibe in

which he claims membership, which he identifies as

the Quinnipiac Indians, is not a federally recognized

tribe as of yet, although he says that the application

form seeking federal recognition has been submitted.

Returning to the issue of the birth certificate, the

Defendants note that one of ‘Thunderhorse’s

purported certificates lists his mother as an Indian,

while the other lsts her as “white.” Thunderhorse

said that someone else had submitted one of the

questioned certificates under his name and said that

“this is a problem that he has gone through.” He

testified that “he did not know what vear he was

born.”

Il. Steve Young

The second witness called was inmate Steve

Young, a former cellmate. Young said that he was

familiar with Thunderhorse’s religion as Native

American Shamanism and that he has discussed this

religion with Thunderhorse, although he, Young,

was not a shamanisi. He said that he had seen

Thunderhorse with 2 medicine bag, long hair, and a

bandanna, and stated that as far he knew, there was

no Native American policy at TDCJ; he also stated

that he had helped Thunderhorse, who has vision

problems, get around, and that Thunderhorse was

one of the first inmates interviewed by Special

Master Vince Nathan as part of the Ruiz case.

Lli. Dennis Collins

o4a

Collins testified that he had been in inmate in

TDCJ for about six and a half years. He said that he

lived in the same section as Thunderhorse and had

talked to Thunderhorse about his faith. Collins said

that he tried to change his own faith to Native

American Shamanism, but was told that he would

have to be “Native American Christian.’ He filed a

erievance about this, but 1t was never returned to

him.

Collins stated that he received an inter-office

communication from Chaplain Rose referring to

“Native American Christian.” However, as the Court

pointed out, the document did not make clear that

the word “Christian” went with the words “Native

American,” or was just typed in proximity to them.

IV. Sidney Byrd

Byrd testified that he had been in prison since

1999 and had never been housed on the same unit

with Thunderhorse; however, he said that he knew

of Thunderhorse through the “struggle for religious

freedom.” Byrd stated that he himself is a Native

American spiritualist, a Cherokee, and that he was

not ralsea 9n a reservation but has known about

Native American religion all of his life. He said that

he has never written to Thunderhorse, but that

Thunderhorse has written to him.

Byrd stated that he has tried to practice Native

American religion during the entire time he has been

in prison, but has been unable to do so. He said that

he is familiar with “Native American shamanism,”

Ova

saying that this refers to “traditional practices.” He

added that Chaplain Teel had written to him about

Thunderhorse, using “racial epithets.”

Byrd noted that he is now in administrative

segregation and said that there is no program for

Native Americans, possibly referring to those

inmates also confined in segregation. Byrd had his

hair up, but let it down to show the Court that it was

well past his collar. He explained that he received a

“religious exemption” from the assistant warden at

the unit where he is confined. On cross-examination,

Byrd acknowledged that he had_ received a

disciplinary case for failure to groom, but offered the

opinion that counsel for the Defendants in this case

had something to do with this fact. He also pointed

out that he had obviously been growing his hair for a

considerable period of time for it to have reached

that length.

V. Ruth Thunderhorse

The plaintiff's wife Ruth Mahweeyeuh

Thunderhorse testified that she has known him

since 1994 and has been married since 2002. She

said that she has never been arrested and has never

been in trouble with the law, and that she used to be

a Christian missionary.

At present, she said, she serves as the chief

financial officer for ACQTC. In 2005, she filed a

letter of intent with the Bureau of Indian Affairs,

seeking recognition for the Quinnipiac Indians.

36a

Ruth Thunderhorse stated that she visited the

Plaintiff at the Stiles Unit, at a time when he was

not in administrative segregation. When he was

placed in segregation, his property was taken and

sent to her. This property included religious items,

and Ruth said that the chaplain at the Stiles Unit

had the religious items sent to him so that they could

be returned to Thunderhorse.

Ruth testified that she had written a biography of

Thunderhorse, which was published in 2007.3 She

stated that she had not been raised in the Indian

culture, but had been told that she was part-Indian,

although her family “hid” it. She did not begin

exploring her own native roots until moving to

Arizona. Ruth said that she was editing a magazine

for which Thunderhorse had written an article,

which is how she met him.

VII. [sic] Ron Teel

Teel, a named Defendant in this lawsuit, testified

that he was hired by TDCJ in 1998 and terminated

in 2005. He originally filed a pro se answer in the

case saying that he was not the TDCJ Native

American coordinator, but the answer filed on his

behalf by the Attorney General said that he was.

Teel stated that he has Native American

(Cherokee) ancestry himself, although he did not

3 See Ruth Thunderhorse, Following the Footprints of a

Stone Giant—the Life and Times of [ron ‘Thunderhorse

(Infinity Publishing Co., West Conshohocken PA, 2007).

37a

belong to any Cherokee organizations. Thunderhorse

offered into evidence a letter which Teel had written

to Byrd, in which Teel referred to Thunderhorse as a

“wanna-be” and a “crybaby.” Thunderhorse also

offered a card which Teel had sent to him, wishing

him a happy Thanksgiving and Columbus Day and

saying “we think Italians rock.” Thunderhorse stated

that he considered the card an insult, because in his

view, Thanksgiving and Columbus Day are offensive

to Native Americans and because the reference to

Italians possibly related to the _ fact that

‘fhunderhorse’s father was Italian and not Indian.‘

Teel testified that Native American ceremonies

within the prison were set up by the Religious

Practices Committee, and that he did not know who

this committee consisted of. He explained that when

he was hired in 1998, the Native American directives

were already in place. Teel stated that he had

received training from a pipe carrier named Two

Bears, from the Pequod tribe, who taught him ways

of carrying out ceremonies.

4 As noted in the discussion concerning Thunderhorse’s birth

certificate, some prison officials hold the view that

Thunderhorse does not have Native American ancestry. A

letter in Thunderhorse’s parole file (Defendants’ Exhibit No.

8) from an individual named Daniel Whitman, says that

Thunderhorse is not a Native American; this letter also says

that Thunderhorse was born in Italy and came to the United

States at age five, which does not appear to comport with

the birth certificate which says that he was born in New

Haven, Connecticut. This question is not relevant to any

issue in the lawsuit and so the Court does not purport to

resolve it.

38a

Thunderhorse stated that he had written Teel a

letter about ceremonial items, and that Teel had

responded that Thunderhorse should “get out and

start his own circle.” Thunderhorse referred to a case

called Yellowquill v. Scott, in which an individual

named Jolene Yellowquil! was allowed, as part of a

settlement, to have a personal pipe.®

VIII. Bill Pierce

Pierce testified that he was now the Director of

Chaplaincy Operations at TDCJ, and he had been a

regional chaplain before that. He said that the

director's position was an admunistrative and

supervisory one, and that the majority of policies

being administered were in effect in 2002. Pierce

stated that TDCJ had a “Religious Practices

Committee” with representatives from different

backgrounds, but he did not know if any of the

members had a Native American background.

Pierce testified that he was familiar with the

faith codes used by TDCJ, explaining that these

codes were not for recognition but simply for record-

keeping purposes. He acknowledged that there was

only one faith code for Native Americans.

A number of the codes were for various Christian

denominations, and so Thunderhorse asked Pierce

|

why half of the codes were for Christian groups but

he could not add one more for Native American

5 See Yellowquill v. Scott, et al., civil action no. 4:95cev1080

(S.D.Tex.). The precise terms of the settlement do not

appear on the docket or 1n the order of dismissal

39a

shamanism. He also asked about the Church of

Jesus Christ Christian-Aryan. Pierce stated that if

15 people wanted a church, they could have one, but

that Thunderhorse was the only inmate wanting

Native American shamanism. Thunderhorse said

that requests had been sent to Pierce, apparently

from other prisoners, wanting Native American

shamanism, but these were returned with the word

“shamanism” crossed out; Pierce said that he had not

done this but that someone else must have.

Pierce stated that Thunderhorse could be listed

as “Native American shamanist” on his travel card,

but that in the chaplain’s office, he would be listed

only as “Native American.” When asked why

shamanism could not be included within Native

American, Pierce stated that this had been done, but

Thunderhorse said that he had _ received no

accommodations. Thunderhorse explained that he

wanted a hand drum or a whistle, but Pierce said

that he had not received any request like that from

him. Thunderhorse insisted that he had sent three

separate requests for Pierce for such items

Documents were introduced into evidence,

including a 2005 letter from Thunderhorse to Pierce

that Pierce said he referred to the Attorney General

because this lawsuit was pending, a letter from one

chaplain to another in 1998 concerning

Thunderhorse’s shamanism, and a letter from 1995

from a chaplain saying that Thunderhorse had

carned out a pipe ceremony without incident.

1a

Thunderhorse contended that this last letter wa:

proof that an agreement had existed at one time

allowing him to perform pipe ceremonies. Pierce said

that he had nothing to do with any such agreement

and that he did not know if the letter showed the

existence of an actual agreement or not

Pierce conceded that Native American pow-wow

ceremonies were done in other prisons. He said that

TDCJ had two Native American contract chaplayn:

and that he had tried to contact tribes for assistance,

but received no response. Although Thunderhorse

maintained that there were only four vendors of

Native American supplies, Pierce said that there

were more than that

After a lengthy discussion of grooming codes,

Thunderhorse returned to the question of the TDCd

faith codes. Pierce said that at one time, there were

36 faith codes for different religious faiths, but now

there are 135. He explained that this increase

occurred because more inmates were claiming to be

members of different faiths

Pierce went on to ay hat headbands were

required to be of white cloth or natural leather

Thunderhorse asserted that Mushms get mult)

colored headgear, and Pierce said that this was not

true, or that it should not be true if it was. At one

time, there were 302 inmates in TDCdJ claiming to be

adherents of Native American religion but now

there are about 3400

lla

With regard to pipe ceremonies, Pierce noted that

tobacco 1s banned in prison except for the permitted

Native American pipe ceremonies. Ile said that

Inmates must be participating in the unit's Native

American circle in order to partake of the pipe

ceremony. ‘These ceremonies are done at 13 or 14

units, and all but one are managed by chaplains. He

noted that Native Americans were the only inmate:

allowed to do things forbidden by policy; they could

use tobacco in their pipe ceremonies, but Catholic:

could not use wine

As to the question of holy days, Pierce said that

prison officials go to outside resources, including

persons who are leaders in their respective faiths

He said that holy days in prison often mean a day off

and possibly the chance to yather toyether, a:

Muslims do in celebration of Ramadan, but that

inmates in admunistrative segregation are not

permitted to do so. He pointed out that inmates can

request the designation of holy days, and the request

will go to the Religious Practices Committee

Thunderhorse complained that the Committee wa:

made up of “mainstream Christians,” and Pierce

stated that there are two Native American chaplain

and five Muslim chaplains. He pointed out that ther

are “generic” worship services at which members of

different Christian denominations worship together

and the members of the various sect of Islam and

Judaism worship together

Pierce tated that there art no feast day |

Christians, asserting that Christma not

religous ri i} ‘The Mou lim rot two feast ad 1’ De}

year, and special food is brought in from outside. The

’

question of kosher food for Jewish inmates 3:

currently im ihtigation Lie said that Ometime

inmates lead ervict but only with voluntee

present

Thunderhorse contended that (Christian

evangelists such as Mike Barber and Bill Gla are

allowed to bring special programs into the prmson. He

said that a Christian group called Kairos gives out

cookies to inmates, even in sepregation, and asked if

a yroup 1s allowed to distribute cookies, why could a

vyroup not help inmates perform pipe ceremomies’

Pierce rephed that the prison did not tell volunteer

what to do

Thunderhors apain pointed ae thy kederal

Bureau of Prison poles concerning Native

American inmates, stating that under these pohenr

inmates in seyregation could have pipe ceremonie

and sweat lodves were allowed. Pierce said that

under TDCJ rules, sweat lodges are not permitted

but pipe ceremonies are allowed on certain units. EH

added that some Native Americans refuse to po to

Pplpe Ceremonies because of a perception that there

are “fakers” there, and Thunderhorse acknowledved

that this was true. Pierce stated that TTDCJ had |

funding than the Federal Bureau of Prisons, us well

is a sShortave of office

Pierce Stated that hunderhorse could pet a

piritual advisor to come visit him every month, and

that all inmates had to be treated equally. Ile said

that as far as he know Thunderhorse is the only

inmate claiming a faith of Native American

shamanism, to which Thunderhorse repled that he

was the only one pushing it, and that no othe

inmates knew that this faith was available

1X. Daniel Rose

Thunderhorse said that Daniel Rose used to be

the chaplain at the Polunsky Unit. and that Rose

had put “Native American’ shamanist” on

Thunderhorse’s travel card. Rose also gave

Thunderhorse a medicine bag, but Thunderhorse

wanted a flute. which had been rejected by the

warden, and a turtle shell. Rose said_ that

Thunderhorse did try to follow the rules, but the

vendor made a mistake.

Rose said that Thunderhorse was the onty person

who had requested “Native American shamanism’ as

his faith. He said that Thunderhorse’s faith had been

listed as “Native American” because there was no

code for Native American shamanism, and that if

Thunderhorse had insisted on Native American

shamanism for his faith, it would have show” up on

the computer as “other.” Consequently, Rose said. he

listed Thunderhorse’s faith as “Native American” so

that Thunderhorse could have a medicine bag

X. William Stephens

6 Thunderhorse’s current travel card reflects “Native

American Shamanism’ as his faith.

44a

The final witness called at trial was William

Stephens, the Region II Director. Thunderhorse read

the TDCJ grooming code into the record, and

Stephens conceded that he did not know of any

inmates receiving cases for not showering or

brushing their teeth. ‘hunderhorse argued based on

this that only “certain portions” of the grooming code

(i.e. those relating to hair) were enfcrced; however,

he acknowledged that he knew of instances in which

inmates had been compelled to shower.

Thunderhorse said that there was an exemption

to the grooming code, relating to medical issues—if

inmates have a skin issue, they can wear beards. He

pointed out that TDCJ had multiple photographs of

his and could identify him even if he cut his hair, but

Stephens indicated that inmates could drastically

change their appearances by cutting long hair or

shaving off beards.

The Court asked Stephens about Byrd, who

clearly had long hair. Stephens stated that TDCd

had a shortage of about 3500 officers, and so some

matters were overlooked. He pointed out that Byrd

“looked like a different person” when he let his hair

down. and said that when an inmate name Carlos

Kidd escaped, he was recaptured because of a

photograph which the prison had put out.

Stephens said that inmates in administrative

segregation could not go to pipe ceremonies, but

Thunderhorse contended that he was not asking to

go to a ceremony but to have them done in his cell.

Stephens said that TDCJ policy prohibited this

45a

because of complaints by other inmates, fire safety

concerns, and the fact of having yet one more item to

search. He said that Thunderhorse could not have a

ceremony outside because two guards would have to

escort him, and the Coffield Unit alone had a

shortage of 270 officers. In addition, he stated that

some inmates would try to manipulate the system to

obtain combustible items.

Stephens testified that a balance had to be struck

between religious belefs and security issues. He

explained that items must be ordered from approved

vendors because of contraband concerns.

Thunderhorse rephed that the problem was one of

availability, and Stephens said that this concern

could be brought up with the Religious Practices

Committee or through Pierce, the director of the

chaplaincy program. Stephens noted that colored

headbands represented a problem because gangs use

colors to show affiliations, and that Thunderhorse

could not be allowed to have a pipe ceremony in his

cell because other inmates would want to be able to

smoke in their cells too.

Stephens said that passing out cookies was

different from holding religious ceremonies because

of staffing and safety concerns. He said that

whistles, drums or flutes could be made _ into

weapons. In addition, he said, the prison was already

noisy, and such items can be made into weapons.

Stephens added that there would be no “automatic

benefits” from creating a category for Native

American shamanism, nor from creating a racial

category for Native Americans.

{6a

Thunderhorse described the flute as being 12

inches of bamboo, which can be crushed with one

hand. He said that a pencil was more dangerous

than the flute. Stephens said that a flute could be

made into a blow gun, which Thundecrhorse disputed

on the ground that a blow gun ts longer.

Thunderhorse stated that he had _ various

documents giving his ethnicity as white, Native

American, Indian, and “other,” but Stephens again

said that there were ro advantages to creating a

racial category of Native American. After finishing

this hne of questioning, the parties announced that

there was no further evidence to offer at trial.

Legal Standards and Analysis

This Court has previously expounded upon the

central importance of religion in this country’s

history. Diaz v. Collins, 872 F.Supp. 353, 356-57

(E.D.Tex. 1994), affd 114 F.3d 69 (5th Cir. 1997)

(citing the 1786 Virginia Statute of Religious

liberty, James Madison’s 1785 Memorial and

Remonstrance on Religious Liberty, the 1776

Virginia Bili of Rights, the 1780 Massachusetts Bill

of Rights, and the Northwest Ordinance of 1787).

The current law 1s codified in the Religious Land

Use and Institutionalized Persons Act of 2000

(RLUIPA), 42 U.S.C. §2000cc. This law provides that

no state or local government shall impose a

substantial burden upon a person residing in or

confined to an institution unless the government

A4ija

shows that the burden furthers a compelling

eovernmental interest and does so by the least

restrictive means. This standard was carried over

from RFRA, but Congress’ noted that courts

entertaining complaints under RLUIPA would

accord “due deference to the experience and

expertise of prison and jail administrators.” 146

Cong. Rec. $7775 Goint statement of Sen. Hatch and

Sen. Kennedy, July 27, 2000).

There are five cases which must be discussed

with regard to the applicable legal standards. These

are: Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct.

2113 (2005); Longoria v. Dretke, 507 F.3d 898 (5th

Cir. 2007); Adkins v. Kaspar, 393 F.3d 559 (5th Cir.

2004): Freeman v. TDCJ-CID, 369 F.3d 854 (2004):

and Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). In

Cutter, members of various “non-mainstream”

religons in the Ohio prison system brought suit

under RLUIPA complaining that the prison officials

failed to accommodate their religious exercises in

various ways, including denying them access to

religious literature, denying the same opportunities

for group worship enjoyed by adherents of

mainstream religious, forbidding them to adhere to

dress and grooming requirements, withholding

ceremonial objects substantially identical to those

permitted to adherents of mainstream religions, and

failing to provide chaplains trained in their faith.

In response, the prison officials mounted a facial

challenge to RLUIPA, arguing inter alia that

RLUIPA improperly advances religion in violation of

the Establishment Clause. The district court denied

48a

the defendants’ motion to dismiss, but the Sixth

Circuit reversed this decision, holding that RLUIPA

violated the Establishment Clause by giving “greater

protection to religious rights than to other

constitutionally protected rights.” This decision was

in turn reversed by the Supreme Court.

The Supreme Court began by tracing the history

of congressional efforts to accord religious exercise

heightened protection from government-imposed

burdens. Congress responded to the Court's decision

in Employment Div., Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872 (1990) by enacting the

Religious Freedom Restoration Act (RFRA) of 1993.

The Court invalidated this law in City of Boerne uv.

Flores, 521 U.S. 507 (1997). Congress then enacted

the Religious Land Use and_Institutionalized

Persons Act. This law provides that no state or local

yovernment shall impose a substantial burden upon

a person residing in or confined to an institution

unless the government shows that the burden

furthers a compelling governmental interest and

does so by the least restrictive means. This standard

was carried over from RFRA, but Congress noted

that courts entertaining complaints under RLUIPA

would accord “due deference to the experience and

expertise of prison and jail administrators.” 146

Cong. Rec. 87775 (Goint statement of Sen. Hatch and

Sen. Kennedy, July 27, 2000).

In rejecting the Sixth Circuit’s conclusion, the

Supreme Court said first that RLUIPA is consistent

with the Establishment Clause because it “alleviates

exceptional government-created burdens on private

49a

religious exercise.” Cutter, 125 S.Ct. at 2118. The

Court noted that individuals in institutions are

dependent upon the government’s permission and

accommodation for exercise of their fa‘th.

However, the Court then stated that “we do not

read RLUIPA to elevate accommodation of religious

observances over an institution’s need to maintain

order and safety.” The Court explained that while

the Act adopts a “compelling governmental interest”

standard, “context matters” in the application of this

standard. The Supreme Court said that lawmakers

supporting RLUIPA were “mindful of the urgency of

discipline, order, safety, and security in penal

institutions,” quoting Sen. Hatch, and said that

these lawmakers anticipated that courts would apply

the Act’s standard with “due deference to the

expertise and experience of prison and _ jail

administrators in establishing necessary regulations

and procedures to maintain good order, security, and

discipline, consistent with consideration of cost and

limited resources.” Cutter, 125 S.Ct. at 2123.

Finally, the Court concluded that should inmate

requests for religious accommodations become

excessive, impose unjustified burdens upon other

institutionalized persons, or jeopardize the effective

functioning of an institution, the facility would be

free to resist the imposition. Cutter, 125 S.Ct. at

2125.

In Longoria, the plaintiff Juan Longoria, an

inmate of Mexican and Native American descent,

requested permission to grow his hair because the

50a

Great Spirit told him not to mutilate his hair. He

advised prison officials that he would not cut his hair

due to his religious beliefs, and was told that an

exemption could not be authorized for him under the

grooming policy. Longoria received disciplinary

action for refusing to cut his haur. He sued under

RLUIPA, and the district court dismissed the

lawsuit as frivolous, and the Fifth Circuit affirmed.

In Adkins v. Kaspar, inmate Donald Adkins was

a member of a church called the Yahweh Evangelical

Assembly. He complained that he was not permitted

to observe particular days of rest and worship, each

Saturday for the Sabbath and certain holy days

during the year. A hearing pursuant to Flowers v.

Phelps, 956 F.2d 488, modified in part on other

grounds, 964 F.2d 400 (5th Cir. 1992), was conducted

by the district court.

At the hearing, YEA elder Jerry Healan testified

that the church required adherents to mect together

on each Sabbath and to make particular observances

on specific holy days. He said that he went to the

prison unit approximately once a month to oversee

Sabbath services, but that the distances involved

made more frequent trips impracticable. Healan

stated that 25 to 30 inmates at Coffield attended the

services. Healan stated that he and Adkins

corresponded regularly and that Adkins had

authored several articles which were published in

the YEA newsletter and on the Internet. Healan also

said that he had been allowed to come to Coffield and

conduct a baptismal ceremony for Adkins and other

inmates.

Hla

Adkins testified that he had been granted lay-ins for

holy days ard the Sabbath, but that he and other

YEA members could not assemble and hold services

on their own. He stated that he and other YEA

members had been allowed to attend tape sessions

and listen to tapes sent by Healan, but that they

could only do this on Mondays; tape sessions could

not be conducted on Saturdays unless an accredited

religious volunteer was present.

Leonard Sanchez, the senior chaplain at the

Coffield Unit, testified that YEA members could

congregate on the Sabbath if Healan was present

(Healan was the only accredited volunteer for YEA),

and that if Healan could come more frequently,

arrangements would be made for YEA members to

congregate, conditioned on availability of space and

time. Another couple, the McEnanys, had not yet

been accredited as YEA volunteers, but Sanchez said

that when they were, they could lead YEA services

on their own.

The district court concluded that the defendants

had not denied Adkins a reasonable opportunity to

practice his religion and that they had not burdened

his religious exercise in violation of RLUIPA. On

appeal, the Fifth Circuit first examined Adkins’

claim that TDCJ policies violated his right to free

exercise of religion.

The Court reviewed the test of Zurner v. Safley,

482 U.S. 78 (1987). This case established a four-

factor “rational relationship” test for analyzing the

constitutionality of regulations that burden a

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prisoner's fundamental rights. Under this test,

courts must consider (1) whether a valid, rational

connection exists between the prison regulations and

the legitimate governmental interest put forth to

justify it, (2) whether there exist alternative means

of exercising the fundamental right which remain

open to prison inmates, (3) what’ impact

accommodation of the asserted constitutional right

would have on guards and other inmates, and on the

allocation of prison resources generally, and (4)

whether there is an absence of ready alternatives to

the regulation in question. Adkins, 393 F.3d at 564.

The Fifth Circuit noted that TDCJ’s religious

accommodation policy had been held to be rationally

related to legitimate government objectives in

Freeman v. TDCJ, 369 F.3d 854 (5th Cir. 2004). In

reviewing the second prong of the Turner test, the

Fifth Circuit stated that the pertinent question is

not whether the inmates have been denied specific

religious accommodations, but whether, more

broadly, the prison affords the inmates opportunities

to exercise their faith. In this regard, the Fifth

Circuit stated that Adkins had access to religious

materials, he and other YEA inmates were not

required to work on the Sabbath, video and audio

tapes were made available to YEA inmates on

Mondays, and YEA members were permitted to hold

services when Healan was able to attend. The Fifth

Circuit concluded that these accommodations were

sufficient to accord Adkins and other YEA members

alternative means to exercise their faith.

Next, the Fifth Circuit turned to the question of

the impact which accommodation would have on

guards, other inmates, and the allocation of

resources generally. The approximately 25 active

members of YEA represented less than one percent

of the population at the Coffield Unit; requiring the

defendants to accommodate every religious holiday

and requirement of the YEA, regardless of the

availability of volunteers, space, or time, could

“spawn a cottage industry of litigation” and have a

negative impact on prison staff, inmates, and

resources. In addition, the Fifth Circuit said, if YEA

were accommodated but other small religious groups

were not, a perception of favoritism could arise

which would have a negative impact on prison

discipline and morale.

The Court concluded the discussion of Adkins’

free exercise claim by stating that there was no

obvious, easy alternative which would accommodate

both Adkins’ and TDCJ’s needs. Adkins’ request,

that YEA members be allowed to congregate on all

Sabbaths and holy days without regard for the

availability of qualified volunteers or adequate space

and security was not an alternative’ which

accommodated the prisoner’s rights at de minimis

cost to legitimate prison interests, and the chaplain

testified that the Assembly could meet more often if

volunteers could be present and time and space were

avallable.

The Fifth Circuit then addressed Adkins’ equal

protection claim, saying first that the Constitution

docs not require that every religious group in prison,

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however small in number, have identical facilities or

personnel. The Court stated that every religious

group at Coffield, except for Muslims who have a

separate court order, must have outside volunteers

present for meetings. Hence, Adkins had failed to

show any equal protection violation.

Adkins also complained that TDCJ’s policies

violated RLUIPA. The Fifth Circuit held that in

RLUIPA claims, the plaintiff first has the burden of

demonstrating that the governmental practice

imposes a “substantial burden” on his rcligious

exercises. This requires the court to answer two

questions: (1) is the burdened activity a “religious

exercise,” and (2) if so, whether the burden is

“substantial.”

The Fifth Circuit acknowledged that the term

“religious exercise” in RLUIPA means any exercise of

religion, whether or not compelled by or central to a

system of religious belief. The exercise alleged to be

burdened, which was the YEA Sabbath and holy day

gatherings, was clearly a “religious exercise” under

this definition, requiring review of the second

question, whether or not the burden’ was

“substantial.”

In answering this question, the Fifth Circuit first

noted that the term “substantial burden” was not

defined in the statute, and different circuits had

defined the term differently. After reviewing the

definitions adopted by the Seventh, Kighth, Ninth,

and Eleventh Circuits, as well as pertinent Supreme

Court decisions, the Fifth Circuit concluded that the

proper definition was as follows

(Jor purposes of applying the RLUIPA in this

circult, a 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

significantly modify his religious behefs

And, in line with the foregoing teachings of

the Sup .ne Court, the effect of a povernment

action regulation is significant when it either

(1) ini ces the adherent to act in a way that

violates wis religious beliefs, or (2) forces the

adherent to choose between, on the one hand,

enjoying some generally available non-trivial

benefit, and, on the other hand, following hi

religious behef:

On the opposite end of the spectrum, howeve}

a government action or regulation does not rise to

the level of a substantial burden on relipiou

exercise if it merely prevents the adherent from

either enjoying some benefit that is not otherwise

generally available or acting in a way that is not

otherwise generaily allowed

Adkins, 393 I|'.3d at 569-70. The Court again

emphasized that no test may require that the

religious exercise be central to the adherent’s belief

system; however, the Court said, “the Supreme

Court’s express disapproval of any test that would

require a court to divine the centrality of a religiou:

H6u

belicf does not relieve a complaining adherent of the

burden of demonstrating the honesty and accuracy of

his contention that the religious practice at issue 1s

important to the free exercise of his religion.” In

applying this test to Adkins, the Court said that the

requirement that an outside volunteer lead worship

services does not place a substantial burden upon

Adkins’ religious exercise, and therefore did not

violate RLUIPA. Adkins, 393 F.3d at 571

In Freeman v. TDCJ, the plaintiff Wilham

Freeman joined the Church of Christ while in

confinement at the Price Damel Unit. A chaplain

named Wayne Horton, a Church of Christ Member

was assigned to that unit, but Freeman said that

Horton’s teachings departed from established

Church of Christ doctrine. Freeman filed a gnevance

complaining about Horton's performance and about a

decision to reduce the two-hour Church of Christ

services to an hour and a half. This pnevance asked

that elders from «a local Church of Christ

conyrevation oversee services, that incarcerated

members be permitte’ to conduct services without

Horton’s interference, and that the services be

restored to two hours. This grievance was denied but

the dispute continued, culminating in a walk-out by

some 50 inmates from a service, for which Freeman

received a disciplinary case and was transferred to a

high-security unit

Freeman filed a lawsuit and a class was certified

‘This lawsuit complained that TUDCJ was denying

Church of Christ members an adequate opportunity

to practice their faith. The lawsuit’ sought an

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injunction ordering TDCJ to recognize the Church of

Christ as a Christian religion separate and apart

from other faiths. enjoin prison officials from

violating Church of Christ members’ right to

worship, order prison officials to allow Church of

Christ members to have an hour of separate worship

time each Sunday according to tenets which the

members believed essential to salvation, including a

cappella singing and communion, order TDCJ

officials to allow Church of Christ ministers and

teachers from outside the prison to conduct

individual Bible studies or assist with religious

services, and order prison officials to allow these

outside ministers and teachers to periorm baptism

by full immersion at an inmate’s request. Freeman

also claimed that he individually was the victim of

retaliation.

‘The evidence showed that 'TDCJ provides weekly

religious services for what it considered to be the five

major faith sub-groups within the prison. These are

Roman Catholic, Christian non-Catholic, Jewish,

Muslim, and Native American. The Church of Christ

falls within the Christian non-Roman Catholic sub-

group.

In addition, the evidence showed that

supplemental devotional oppertunities are offered for

Church of Christ members. In 41 TDCJ_ units,

worship services are conducted by volunteers, who

can often tailor the services to include a capella

singing and communion; immersion baptism can be

arranged for and performed by a Church of Christ

minister at an inmate’s request; and inmates may

meet with an approved spiritual advisor twice a

month.

The Fifth Circuit, applying the Turner test,

concluded that TDC.J’s policy was content-neutral

and was_- rationally related to legtimate

governmental objectives. Specifically, the Court

stated that staff and space limitations, as well as

financial burdens, are valid penological interests.

The division of worship services into five major sub-

groups was “eminently reasonable,” and Church of

Christ inmates also had alternative means to

exercise their beliefs. The Fifth Circuit rejected the

view that if TDCJ offered Church of Christ services

in 41 units, it must offer such services 1n all units,

and also rejected the equal protection argument set

out. by the plaintiff class.

Finally, the Fifth Circuit rejected Freeman's

retahation claim, noting that Freeman had engaged

in a public rebuke of Chaplain Horton and incited a

walkout, which behavior was inconsistent with his

status as a prisoner; consequently, punishment

imposed for that behavior was not unconstitutional

retaliation.

In Diaz v. Collins, the Fifth Circuit reviewed a

case from the Eastern District of Texas decided in

1994. The plaintiff Felipe Diaz expressed himself as

a follower of Native American beliefs and said that

he wished to worship in traditional ways, including

the use of pipes, the keeping of a medicine pouch, a

headband, and the wearing of long hair. The district

court observed that in April of 1994, TDCJ had

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instituted a new policy specifically addressing the

needs of Native American adherents in the prison.

Under this directive, the Native American adherents

could possess a headband, a shell, a medicine pouch,

seven sacred stones, a feather, and such other

objects as may be permitted by the unit warden and

unit chaplain. The inmates had access to ceremonial

items such as drums, pipes, tobacco, a gourd, sage,

sweetgrass, and cedar, which were made available to

them by the chaplain as required. The regulations

stipulated that items must be ordered from approved

vendors, but stipulated that the medicine pouch

could not be touched by any other person although it

could only be worn in the cell.

The district court, after sketching the history of

religious freedom in America, reviewed the Religious

Freedom Restoration Act, the law in effect at that.

time. The district court applied the Act to each of

Diaz's claims in turn.

In so doing, the district court concluded first that

TDCJ’s hair regulations served the compelling

governmental] interest of security and were the least

restrictive means available to further this interest.

Although Diaz complained that his religious beliefs

did not allow him to obtain a medicine pouch from a

commercial vendor, the evidence at trial showed that

he would be permitted to obta:n such a pouch from

his spiritual advisor, but that the pouch had to be

sent through the warden’s office and that Diaz had

to allow it to be visually inspected for contraband.

The district court concluded that these regulations,

as well as the rule that Diaz could wear the pouch

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only in his cell, did not constitute a substantial

burden on the exercise of his religion.

The evidence at trial showed that according to

Glenda Taylor, who testified at Diaz's trial, the

headband had more of a cultural than a religious

significance. Diaz stated that the headband

continually reminds the wearer of his duties to the

Creator, to fellow humans, to his family, his

community and himself, and lkened the headband

to ceremonial headgear worn by some Christians,

Jews, and Muslims. The district court determined

that headbands posed a potential security threat

because of the possibility of concealing contraband,

including weapons, and concluded that Diaz’s rights

were not violated by the requirement that he wear

the headband only in his cell. The district court

therefore concluded that to the extent that the prison

regulations inhibited the free exercise of religion,

they did so in furtherance of a compelling

governmental interest and were narrowly tailored to

meet this purpose. Diaz v. Collins, 872 F.Supp. 353

(E.D.Tex. 1994).

On appeal, the Fifth Circuit affirmed the district

court’s rulings on the medicine pouch and headband,

explaining that Diaz had failed to prove that the

prison regulations at issue substantially burdened

his exercise of religion. Because Diaz was confined in

administrative segregation, he was in his cell for

some 22 hours per day, during which time he was

allowed to wear his medicine pouch and headband.

The Fifth Circuit also upheld the district court’s

conclusion regarding Diaz’s hair, affirming the

6la

finding that a prison regulation on hair length

involves a compelling state interest and did not

violate RFRA.

The Fifth Cuircuit’s holding in the Longoria

decision rehed heavily upon Diaz. The Court

explained that although RFRA had been struck

down, the compelling governmental interest/least

restrictive means test was carried over from RFRA

to RLUIPA. Because the test was essentially the

same, the Longoria decision concluded that Diaz was

dispositive of that case as well.

The Claims Raised by ‘Thunderhorse

With these cases and the appropriate legal

standards in mind, the Court will turn to the specific

claims raised by Thunderhorse. As set out in his

amended complaint, these are: (1) confiscation of

religious items; (2) denial of religious items; (3)

denial of programs for shamans; (4) denial of a racial

category for “Native Americans”; (5) failure to

provide exemptions or accommodations for the dress

code and grooming code; (6) failure to allow equal

access to services for inmates in segregation; and (7)

failure to honor prior agreements which he entered

into with prison officials.

I. & II. Confiscation and_Denial_ of Religious

Items

Thunderhorse says that he used to have several

multi-colored headbands, but a new policy restricts

these headbands to white only. He testified that the

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Muslims are allowed to have multicolored headgear

so this is discriminatory, but Pierce testified that

this was not true, and that Muslhms werc not

permitted to have such headgear.

The testimony at trial shows that prison officials

have a legitimate concern that colored headgear

could be used as gang identification symbols. In

addition, a review of the evidence, including

Thunderhorse’s pleadings and testimony at trial,

fails to show that the provision of a white headband

rather than a— multi-colored one _ influences

Thunderhorse to act in a way that violates his

religious beliefs, or forces him to choose between

enjoying some generally available non-trivial benefit

or following his religious beliefs. See Adkins, 393

F.3d at 570. In other words, Thunderhorse has not

shown that this regulation “substantially burdens”

his exercise of religious freedom, and the Defendants

have proffered a legitimate basis for the regulation.

His claim on this point is without merit.

Similarly, Thunderhorse refers to an incident in

which a warden confiscated a quartz crystal upon

determination that the item was simply a piece of

plastic.? He says that he had possessed this crystal

for a number of years, and had a photograph of

himself with the crystal around his neck. However,

none of Thunderhorse’s pleadings indicate that

confiscation of the crystal amounted to a substantial

burden upon his religious faith, nor that this

confiscation was not done in accordance with TDCJ-

7 Thunderhorse does not make clear if this is an accurate

determination.

63a

CID policy. As noted above, policy allows inmates to

keep seven sacred stones, among other natural

objects. Instead, this claim appears to be one for the

random and unauthorized confiscation of personal

property.

The doctrine of Parratt v. Taylor, 451 U.S. 527,

(1981) (overruled in part on grounds not relevant

here) and Hudson v. Palmer, 468 U.S. 517 (1984),

known collectively as the Parratt/Hudson Doctrine,

states that a random and unauthorized deprivation

of a property or liberty interest does not violate

procedural due process if the State furnishes an

adequate post-deprivation remedy. See Caine uv.

Hardy, 943 F.2d 1406, 1412 (Sth Cir. 1991). Three

predeprivation conditions must exist before the

doctrine can be applied. These are: (1) that the

deprivation be unpredictable; (2) that predeprivation

process be impossible, making any _ additional

safeguard useless; and (3) that the conduct of the

state actor be unauthorized. Where these conditions

exist, the State cannot be required to do the

impossible by providing predeprivation process.

Charbonnet v. Lee, 951 F.2d 638, 642 (5th Cir. 1992),

citing Zinermon v. Burch, 494 U.S. 113 (1990); Myers

v. Klevenhagen, 97 ¥.3d 91, 94-95 (5th Cir. 1996).

Hudson holds that deprivations of property by

prison officials, even when intentional, do not violate

the Due Process Clause of the Fourteenth

Amendment provided that an adequate state post-

deprivation remedy exists. Hudson, 468 U.S. at 533.

The Texas state administrative and judicial systems

provide an adequate state post-deprivation remedy.

64a

Tex. Gov. Code Ann. art. 501.007 (Vernon Supp.

1994); see also Murphy v. Collins, 26 F.3d 541, 543-

44 (5th Cir. 1994). Thus, the appropriate forum for

this claim lies in state court or in the administrative

procedures of TDCJ rather than federal court.

Stmmons v. Poppell, 837 F.2d 1243 (5th Cir. 1987).

Thunderhorse’s claim on this point is without

merit.

Thunderhorse further complains that he must get

his medicine bag from an “approved vendor,” which

in his pleadings he says is “sacrilegious.” This same

requirement was addressed in Diaz, and the Fifth

Circuit concluded that the policy did not on its face

violate the Constitution. In that case, the prison

representatives agreed that Diaz could obtain a

medicine bag from a non-approved vendor provided

that it was sent through the unit warden’s office and

that he allowed visual inspections of the bag. At

trial, Thunderhorse acknowledged that he currently

has a medicine bag, which was provided to him by

Chaplain Rose. He did not allege that this bag or the

means by which he obtained it were “sacrilegious.”

Thunderhorse’s claim on this point is foreclosed by

Diaz.

III. Denial of Recognition of Native American

Shamanism

8 In addition, the Court notes that while the size of the

crystal is not specified, there is no question that a large

stone (or piece of plastic) could putatively pose a security

threat, particularly if, hke many crystals, it was sharp or

could be sharpened.

65a

Thunderhorse placed great emphasis on the fact

that TDCJ recognizes some 136 religious faiths, but

does not recognize Native American shamanism. He

noted that the prison system recognizes a faith

called the Church of Jesus Christ Christian-Aryan.

The 1997 TDCJ faith codes list includes the

Church of Jesus Christ Christian (Aryan Nations).

Although Pierce testified at trial that “this was not a

racial group,” this is patently incorrect. That church

by its own description believes in a doctrine called

Christian Identity, which teaches, inter alia. that

Adam was the father of the white race only, that the

Jews are descended from Satan and are the enemy of

the white Christian race, being “a parasite that

attacks our racial body to destroy our great culture

and the purity of our race,” and that blacks are “two-

legged beasts.” See http://www.aryannations.org/; see

alsohttp://www.adl.org/learn/ext_us/Aryan_Nations.a

sp. The Church of Jesus Christ Christian, and the

Christian Identity movement, is discussed in the

FBI’s’ Project Megiddo Report on Domestic

Terrorism, which states as follows:

Nevertheless, Christian Identity is the most

unifying theology for a number of these diverse

groups and one widely adhered to by white

supremacists. It is a belief system that provides

its members with a religious basis for racism and

an ideology that condones violence against non-

Aryans. This doctrine allows believers to fuse

religion with hate, conspiracy theories, and

apocalyptic fear of the future. Christian Identity-

66a

inspired millennialism has a distinctly racist

tinge in the belief that Armageddon will be a race

war of Aryans against Jews and nonwhites.

See

http://permanent.access.gpo.gov/lps3578/www.fbi.

gov/library/megiddo/megiddo.pdf.

The Court can discern no rational basis in the

prison officials’ contention that an organization such

as the Church of Jesus Christ Christian-Aryan

Nations is accepted as a legitimate religious faith

and designated with a faith code, but Native

American shamanism cannot be. In addition, while

prison officials testified that Thunderhorse was the

only Native American shamanic practitioner that

they knew of, the Defendants’ exhibits show that the

number of adherents alone is not dispositive; the

religious faith code list for March 31, 1996, lists a

faith with two adherents (Druid) and another with

three (Quaker), and on the December 31, 1997 list,

there were four Quakers and six Druids, yet these

belief systems had their own (faith codes.

Thunderhorse’s request for recognition of Native

American shamanism is meritorious and should be

granted; Native American shamanism should be

recognized as a legitimate faith, with its own faith

code, as a sub-set of Native American religion, in the

same manner that Baptists, Presbyterians, and

Methodists are recognized as legitimate faiths, with

their own faith codes, as sub-sets of Christianity.

However, this does not mean that any special

privileges will necessarily flow from _— such

67a

recognition. As part of his shamanic faith,

Thunderhorse said that he wanted access to a

musical instrument, and TDCJ policies allow for

such access, but only in connection with use in a pipe

ceremony. See TDCJ Chaplaincy Policy No. 9.01 (rev.

2). This policy says that medicine bundles, used in

pipe ceremonies, may contain a small clay flute for

music, a small hand-held drum, and gourds and deer

claw shakers for music and rhythm. Because

Thunderhorse is in administrative segregation, he

does not have access to pipe ceremonies for security

reasons, which reasons’ represent compelling

governmental interests. Cutter, 125 S.Ct. at 2123. In

the event that Thunderhorse is released from

administrative segregation into the general prison

population, he should be given access to pipe

ceremonies as well as approved musical instruments

in accordance with TDCJ policies governing Native

American practitioners who are housed in general

population. Thunderhorse’s request that he be given

access to a flute or drum thus lacks merit for so long

as he 1s housed in administrative segregation.

‘l'o the extent that Thunderhorse complains that

those services which are available to him in

administrative segregation are geared toward Native

American non-shamanists and are unsuitable for

shamanists, his claim in this regard is similar to

that in Freeman, in which the Church of Christ

plaintiffs complained that the general Christian non-

Catholic service was not suitable for them. However,

their claim that they were entitled to a wholly

separate service was rejected by the Fifth Circuit. In

this case, Thunderhorse has failed to show that he

68a

does not have a reasonable opportunity to practice

his faith; rather, the evidence shows that the lack of

services congruent with Thunderhorse’s beliefs is

due to the fact that Thunderhorse is confined in

administrative segregation and to a lack of

volunteers rather than any discriminatory purpose.

In a similar vein, Thunderhorse complains that

the TDCJ policy designating holy days for Native

Americans are oriented toward the Plains Indian

culture. As noted above, TDCJ cannot reasonably be

expected to differentiate between the holy days for

all of the branches of Native American religion. In

addition, Thunderhorse has not shown that the fact

that the holy days designated for Native Americans

within TDCJ-CID are oriented towards Plains

Indians places a _ substantial burden upon his

religious practice. He is in administrative

segregation and so does not require lay-ins from

work, and the evidence shows that inmates are

permitted to request additional holy days if they

desire. As was the case in Freeman, 'Thunderhorse’s

claims on this point are without merit.

IV. Denial of a Racial Category for Native

Americans

Thunderhorse complains that TDCJ does not

recognize “Native American” as a racial category,

thus depriving him of benefits which he could

otherwise obtain. The prison officials respond that

Thunderhorse could not benefit from such a category

because the tribe in which he claims membership,

the Quinnipiac Indians, is not federally recognized.

59%a

Thunderhorse asserts that the tribe’s application for

federa) recognition is currently pending.

Thunderhorse does not identify any benefits of

which he claims to have been deprived, nor any

harms which he has suffered, as a result of the fact

that ‘TDCJ-CID does not have a racial category for

Native Americans. For example, there is no

indication in the record that TDCJ has or enforces a

policy limiting participation in Native American

ceremonies to persons with provable Native

American ancestry.? Thunderhorse has not shown

any basis for rehef on this point and so this claim is

without merit.

V. Exemptions to the Dress Code and Grooming

Code

‘The parties spent a considerable period of time at

trial discussing the TDC.J grooming code. While the

Court does not dispute that the wearing of long hair

is important to practitioners of Native American

religions,!® this 1s an issue which has been settled by

the Fifth Circuit. In Longoria v. Dretke, 507 F.3d

898, 904 (5th Cir. 2007), the Fifth Circuit upheld the

dismissal of an inmate’s challenge to the TDCJ

grooming code based on religious reasons. This Court

is bound by the Fifth Circuit’s decision in this

The Fourth Circuit has held such a policy to be unconstitu

tional. Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001)

10 See, e.g., Diaz v. Collins, 114 F.3d 69, 72-73 (5th Cir

1997); accord, ‘Jeterud v. Burns, 522 F.2d 357, 359-60 (8th

Cir. 1975); R. Thunderhorse, Iollowing the footprints of a

Stone Giant, pp. 87-88.

regard, and so Thunderhorse’s claim on this point is

without merit.

To the extent that Thunderhorse complains that

he cannot wear his headband or medicine pouch

outside of his cell, this claim is without merit. The

evidence before the Court includes an affidavit from

Nathaniel Quarterman, now the Director of TDCd

CID, which points out that TDCJ has a security

concern regarding the presence of gangs, who often

use clothing or insignia to identify members; for this

reason, such items as Kufi caps worn by Muslims or

medicine bags and headbands worn by Native

Americans may only be worn inside of cells or during

religious services. In addition, the plaintiff in Diaz

challenged the requirement that the headband and

medicine pouch could only be possessed inside his

cell, but the dismissal of this claim was affirmed by

the Fifth Cirewit. Diaz, 1]14 F.8d at id.

Thunderhorse’s claim on this point 1s without merit.

VI. Access to Services in Segregation

In his complaint, Thunderhorse asserts that

TDCJ-CID’s policies do not allow “equal access to

services’ for inmates confined in administrative

segregation. According to the ‘TDCJ-CID Inmate

Orientation Handbook, administrative segregation is

a classification for offenders who must be separated

from the yenera]l population because they are

dangerous to other offenders or to staff, or because

they are in danger from other offenders. ‘Those

inmates in administrative segregation may have a

chaplain or volunteer visit

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The Constitution requires that inmates be given

a “reasonable opportunity” to practice their religion.

Pedraza v. Meyer, 919 F.2d 317. 320 (5th Cir. 1990).

Thunderhorse has failed to show that he has been

denied such an opportunity by reason of his

confinement in segregation. As noted above, TDCJ

policy allows him to possess numerous sacred objects

and to have a religious chaplain or volunteer visit;

Thunderhorse does not indicate that he has sought

to avail himself of such visitation opportunities and

has been denied. It is clear that ‘Thunderhorse has

access to research and other materials, presumably

including religious materials; he has written and

published numerous articles, including’ the

Metacomet-Mattabesett Trail Study, written in

March of 2004 and reprinted on the website of the

Algonquian Confederacy of the Quinnipiac Tribal

Council (ACQTC) (http://acqtc.com/branford040326

.php), articles for the ACQTC newsletter as well as ¢

number of other publications, and at least one book

as well as various articles on shamanism. See

Thunderhorse & Le Vie, Return of the

‘Thunderbeings (Bear & Co., 1990).

The TDCJ_ policies’ prohibiting access to

communal services for inmates in segregation are

related to the compelling state interest = of

maintaining security, in that inmates in

administrative segregation are placed there because

they pose a danger to others or are in danger from

others. ‘Thunderhorse has adequate alternative

means to practice his religion through private

worship in his cell, including possession of religious

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artifacts and literature, and through the opportunity

to receive religious visitors. See Pedraza, 919 F.2d at

320. This claim is without merit.

VII. Failure to Honor Prior Agreements

Thunderhorse contends that he had entered into

a series of agreements with TDCJ regarding his

faith, which he asserts are not being kept, although

he offers no evidence of any of these agreements.

Thunderhorse’s’ pleadings indicate that’ these

agreements were arrived at through litigation; he

cites a case which he filed with the help of an ACLU

attorney named Patrick Wiseman in the Western

District of Texas, which he says resulted in the

“third out-of-court settlement.”

The cause number for the lawsuit filed by

Wiseman on Thunderhorse’s behalf is 1:95cev222

(W.D.Tex.). A review of the docket in this cause

shows no evidence of a settlement agreement: rather,

the record shows that on September 9, 1997,

Magistrate Judge Alan Albright entered a Report

recommending that the defendants’ motion for

summary judgment be granted as to the prison

grooming policies and that the claim of denial of

access to religious publications be transferred to the

U.S. District Court for the Southern District of

Texas. This recommendation was adopted over the

plaintiffs’ objections. Following this _ transfer,

Thunderhorse’s claims were’ dismissed’ with

prejudice on March 2, 1998. Neither the Western

District nor the Southern District made any mention

of a settlement agreement.

T3a

Even assuming that any settlement agreements

existed, however, Thunderhorse has failed to show

that these agreements are enforceable by this Court.

The Supreme Court has held that enforcement of a

settlement agreement, whether through damages or

a decree of specific enforcement, is more than just a

continuation or renewal of the dismissed lawsuit,

and hence requires its own basis for jurisdiction;

however, the mere claim of breach of a _ prior

settlement agreement is insufficient in and of itself

to confer federal court jurisdiction. Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375, 378

(1994). The Supreme Court rejected the theory that

the doctrine of ancillary jurisdiction provided a basis

for federal court jurisdiction over such claims,

although stating that the terms of the dismissal

order itself could allow the court to. retain

jurisdiction over the settlement contract. Kokkonen,

511 U.S. at 381; accord, Langley v. Jackson State

University, 14 F.3d 1070, 1074 (5th Cir. 1994).

In this case, even if these settlement agreements

exist, Thunderhorse has not shown any basis for his

contention that this Court should enforce these

agreements, nor does it appear that the Court would

have jurisdiction to enforce settlement agreements

entered into with other federal district courts in the

State of Texas. In effect, the settlement agreement

becomes a contract between the parties, which may

give rise to a breach-of-contract action in state court

but fails to accord any basis of jurisdiction in a

federal court other than the one in which the

settlement agreement was reached. Hospitality

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House Inc. v. Gilbert, 298 F.3d 424, 431 (5th Cir.

2002), citing Kokkonen, 511 U.S. at 381-82.'' His

claim on this point fails for want of jurisdiction.

Other Claims

VIII. Treaty Allegations

Thunderhorse claims that his rights under

various other treaties and laws, including the Indian

Civil Rights Act (25 U.S.C. 1301 et seq.), U.S. treaty

law, the Universal Declaration of Human Rights,

and the United Nations Covenant on Civil and

Political Rights, have been violated. The Indian Civil

Rights Act provides that in exercising powers of self-

government, Indian tribes may not take certain

actions, corresponding to the guarantees. of

11 The Fifth Circuit has held that federal courts have the

inherent power to enforce settlement agreements entered

into by the parties in a case pending before it, to determine

compliance with procedural prerequisites, and to determine

when, if ever, a party may repudiate a contractually binding

settlement agreement. White Farm Equipment Co. v.

Kupcho, 792 F.2d 526, 529 and n.4 (5th Cir. 1986); Mid-

South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th

Cir. 1984). The district court has the power to enforce

summarily a settlement agreement reached in a case

pending before it. Mid-South Towing, 733 F.2d at 389

(emphasis added). Such enforcement may be done without

regard to what the result might have been had the parties

chosen to litigate. Terrain Enterprises v. Western Casualty

and Surety Co., 774 F.2d 1320, 1321 (5th Cir. 1985). The

cases in which Thunderhorse claims that settlements were

reached were not pending before or decided by this Court,

and so this Court is not the appropriate forum in which to

enforce such settlements.

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individual liberties set out in the Bill of Rights (25

U.S.C. 1302) and provides that the writ of habeas

corpus shall be available to test the legality of

detention by order of an Indian tribe (25 U.S.C.

1303). The courts have held that the Act is not an

affirmative declaration of rights, but 1s negative in

form and forbids certain tribal actions. Spotted Eagle

v. The Blackfeet Tribe of the Blackfeet Indian

Reservation, City of Browning, 301 F.Supp. 85, 89

(D.Mont. 1969). Because Thunderhorse is_ not

challenging a tribal action, this Act is inapplicable to

his case.

Next, Thunderhorse raises the issue of treaty

law, but fails to show that any treaties exist between

the United States and the Quinnipiac tribe under

which he may make a claim of right. See Kappler,

Indian Affairs: Laws and Treaties, available on-line

at

http://digital. library.okstate.edu/kappler/index.htm

(containing no mention of any treaties with the

Quinnipiac Indians). Thunderhorse’s invocation of

treaty rights, lacking any evidence that a treaty with

his tribe exists, is without merit.

Nor has ‘Thunderhorse shown that any treaties

with any of the other tribes making up the

Algonquin Family of Nations afford him any

protected rights. He invokes a document called the

International Indian Treaty Council’s Declaration of

the Spiritual Rights of Native American Prisoners,

but does not show that this document has any

binding effect or that he has standing to bring claims

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under it.)2 Finally, Thunderhorse raises claims

under the Universal Declaration of Human Rights

and the United Nations Covenant on Civil and

Pohtical Rights. These documents are addressed to

the obligations of governments and do not confer

standing on individual plaintiffs to bring suit.

Dickens v. Lewis, 750 F.2d 1251, 1254 (5th Cir.

1984); Diggs v. Richardson, 180 U.S. App. D.C. 376,

555 F.2d 848, 850 (5th Cir. 1984). Thunderhorse’s

claims under these charters is without merit.

In a similar vein, Thunderhorse asserts that

TDCJ-CID policies violate his “sovereign and

autonomous cultural integrity” as well as that of his

tribe, which he describes as a tribal confederation

with 501(c)(3) status, in violation of Article I(3) and

Section 8(3) of the Constitution as well as Article

V1(2), relating to Indian treaties.

The motion to intervene by ACQTC and TUELN,

the Traditional United Eastern Lenope Confederacy

Nation was denied on September 1, 2005. As a non-

attorney pro se_ plaintiff, Thunderhorse cannot

represent these parties in litigation. Guajardo v.

Luna, 432 F.2d 1324 (5th Cir. 1970). The fact that

ACQTC is a Section 501(c)(3) corporation does not

provide any special basis upon which to intervene in

this lawsuit. Furthermore, the interest of these

groups, as stated in the motion to intervene which is

12 The International Indian Treaty Council is a non-

governmental organization with consultive status to the

United Nations Economic and _ Social Council. See

http://www.treatycouncil.org/about.htm.

TVa

written in Thunderhorse’s handwriting, is_ the

protection of the ‘right to religious liberty of

Thunderhorse, the Grand Sachem.

This text is long and has been trimmed here. Open the source document for the complete record.