# Petition for Writ of Certiorari — Thunderhorse v. Pierce > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1953%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 821 ## Text 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 OT PTET OR OD verte Fou uerae beteasacaeee ee EE oo os nin sin vcs bene ensaevianawenancuccmiieccseeuesee me ee 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 b suse the burt hot wal { \ i rT f ] LLIT) : : i WV ahi ’ } } f } | | { | ) ‘ | , mpliaint once ( tabl) hment Q]) brought unde! Institutionalized must show that t substantial Autobiogy yphical himself in hi Co., Santa Fe NM, date; he refers to a late ‘60s, at the age ) book, \(merican VWeten Ls « relevant b Ih TDC lacke ly) but tn rtificate pury t rca I } } tT i t 1a d tl i ’ nself to bp I eral d rent i oy t rtificate C1] Q that ree ¢ reise ol rely!) On, and UGUISCrinNnlnatlo He aid that hi law Rehgiou: Land | deta Act (RILUTPA) an y I|nunderhor Thunderbein that 1950 | thie jmourney which he to en Return of the 1980) indica motorcycle of 12 Return of the Phunde d rrTyé ( a>) Jetendant te f } ft } t had ipheld th ) ) that those cages wi nial ahi RLUIPA ed that z 1) uld l f ( j i¢ | ran ; j Cal { } ‘ j 1) i | i] { ‘ ’ I { | 1 rit } iT ‘ ) pis ‘ | i j i} it f 1} ? | rot I i] y f I ! 1a , I cd I I I ‘ h) t iT f } re i] i ’ , ! 1} 1c) nm | | j I i j ! ‘ pf raja } 1 t | pT , | ’ ‘ q>) ’ ‘ , ( ‘ ‘ : 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 52a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1953%3A1. Public record. Not legal advice.