Taylor v. Nelson ( 2022 )

Case: 20-51051 Document: 00516416430 Page: 1 Date Filed: 08/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 2, 2022
No. 20-51051
Lyle W. Cayce
Clerk
Rene Michelle Taylor,
Plaintiff—Appellant,
versus
Rose Nelson; Joy Fattori; Michael Rutledge; Kimberly
Massey,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-467
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Per Curiam:*
Rene Michelle Taylor is a former Texas inmate and practicing
Muslim. For decades she wore a hijab that covered her hair, ears, and chest.
The parties do not dispute that Taylor sincerely believed she needed to wear
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-51051 Document: 00516416430 Page: 2 Date Filed: 08/02/2022
No. 20-51051
such a hijab. In 2012 the Texas Department of Criminal Justice promulgated
a system-wide policy regulating hijab size. Taylor admits her hijab was larger
and covered more of her than the TDCJ-approved hijab. Prison officials
(“the Officials”) did not at first enforce the new policy against Taylor, but
when they did Taylor sued.
Taylor sued pro se following the permanent confiscation of her larger
hijab. She brought claims against Rose Nelson, Joy Fattori, Michael
Rutledge, and Kimberly Massey under 42 U.S.C. § 1983. Among other
things, Taylor alleged that each of these Officials violated her rights under
the Free Exercise Clause by having a hand in confiscating her hijab. The
district court granted the Officials summary judgment on all of Taylor’s
claims. Taylor appealed, and we appointed her counsel. Taylor advises us
that she now abandons all her claims other than those under the Free Exercise
Clause against Nelson, Fattori, and Rutledge.
Taylor mainly argues that the district court misapplied the parties’
burdens in dismissing her claims under the Free Exercise Clause. We agree.
The district court faulted Taylor for “not complain[ing] in any detail about
how the hijab policy violates her First Amendment Rights.” But the district
court got ahead of itself. All Taylor needed to show at summary judgment
was that she was “sincere” in her religious beliefs. DeMarco v. Davis, 914
F.3d 383, 388 (5th Cir. 2019). Once she did—something nobody disputes—
it was up to the Officials to defend their actions.
True, “reasonable restrictions” on religious exercise do not offend
the Free Exercise Clause if they “stem[] from legitimate penological
concerns.” Id. at 389 (citation omitted). But it is not the prisoner’s or a
court’s job to speculate what those concerns are. It is up to officials, rather,
to “put forward” some. Id. at 390 (quoting Turner v. Safley, 482 U.S. 78, 89
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(1987)). The Officials have yet to do so. Therefore, Taylor met her burden at
this stage. See id. at 389.
Taylor urges us to remand her case if we agree with her that the
Officials needed to put forward some legitimate penological concern. 1 But the
defendant officials in DeMarco never pleaded qualified immunity. In fact,
they never pleaded anything before the district court dismissed the prisoner’s
claims. That is because the district court dismissed the prisoner’s claims in
DeMarco under 28 U.S.C. § 1915A(b)(1) for failing to state a claim. 914 F.3d
at 386. In other words, the district court in DeMarco dismissed the prisoner’s
claims at a pre-docketing “[s]creening.” § 1915A(a). Taylor contends that
“[t]he district court failed to address qualified immunity,” and so we should
not “reach the issue in the first instance.” We disagree with Taylor’s
characterization and recommendation. The district court addressed qualified
immunity in subpart G of its order where it also dismissed Taylor’s claim
under the Free Exercise Clause.2
Even so, the Officials asserted in the district court that, as state
officials, they are entitled to qualified immunity. That meant Taylor had to
show that (1) each Official’s “conduct violated [her] constitutional right[s],”
and (2) her “right was clearly established at the time of the violation.” Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation omitted). “To be
clearly established for purposes of qualified immunity, the contours of the
right must be sufficiently clear that a reasonable official would understand
1
See DeMarco, 914 F.3d at 390 (“On remand, the court should determine whether
the alleged confiscation was reasonably related to a legitimate penological objective.”).
2
The Supreme Court has also “stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227
(1991); see also Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
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that what he is doing violates that right.” Id. (citation omitted). Taylor
cannot get past qualified immunity’s second prong.
First, Taylor fails to identify a clearly established right. Taylor
contends that the law was “clearly established that no restriction on religious
practice is constitutional” absent a reasonable relationship between the
restriction and a legitimate penological concern. But plaintiffs who assert
religion-based rights cannot overcome qualified immunity by defining those
rights at such a “high level of generality.” Morgan v. Swanson, 755 F.3d 757,
760 (5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Taylor needed to be more specific.
Second, reasonable officials would not have understood that enforcing
the hijab policy was unconstitutional. “[L]egitimate penological interests”
support whether “a prison regulation imping[ing] on inmates’ constitutional
rights . . . is valid.” Turner, 482 U.S. at 89–90 (emphasis added). But
nonpromulgating officials enforcing that policy act reasonably so long as the
policy itself does not itself suffer from an “obvious” constitutional defect.
See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam) (quoting Hope v.
Pelzer, 536 U.S. 730, 745 (2002)). We said as much in Cope v. Cogdill, 3 F.4th
198 (5th Cir. 2021). There we explained, in the Eighth Amendment context,
that officials acting under prison policy are “essentially follow[ing] orders”
and so they do not violate clearly established law unless those orders are
“facially outrageous.” Id. at 208 (quoting Jacobs v. W. Feliciana Sheriff’s
Dep’t, 228 F.3d 388, 398 (5th Cir. 2000)). So, too, has the Second Circuit.
See Varrone v. Bilotti, 123 F.3d 75, 82 (2d Cir. 1997) (extending qualified
immunity to officials “carrying out [an] order, not facially invalid, issued by
a superior officer who is protected by qualified immunity”); see also Barnes v.
Furman, 629 F. App’x 52, 57 (2d Cir. 2015) (summary order) (noting that “a
different analysis may apply to those responsible for the policy” as opposed
to those merely “following” it (emphasis added)). Taylor admits she violated
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the hijab policy, but does not argue that it is obviously unconstitutional.
Therefore, we cannot agree with her that Officials who enforced it against
her violated clearly established law.
Because Taylor cannot overcome the Officials’ qualified immunity
defense, the judgment of the district court is AFFIRMED.
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