Max Moussazadeh v. Texas Dept of Crim Justice, et , 703 F.3d 781 ( 2012 )

Case: 09-40400 Document: 00512093372 Page: 1 Date Filed: 12/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2012
No. 09-40400
Lyle W. Cayce
Clerk
MAX MOUSSAZADEH,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
BRAD LIVINGSTON, Solely in His Official Capacity as Executive Director
of Texas Department of Criminal Justice, Correctional Institutions Division;
DAVID SWEETEN, Solely in His Official Capacity as Warden of
the Eastham Unit of the Texas Department of Criminal Justice,
Correctional Institutions Division,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Texas
Before KING, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Through more than seven years of litigation, Max Moussazadeh has
Case: 09-40400 Document: 00512093372 Page: 2 Date Filed: 12/21/2012
No. 09-40400
sought kosher meals while confined at the Texas Department of Criminal Justice
(“TDCJ”). The district court, on motion for summary judgment, dismissed Mous-
sazadeh’s claim on two independent grounds: failure to exhaust administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”) and lack of
sincerity of religious belief as required under the Religious Land Use and Insti-
tutionalized Persons Act (“RLUIPA”). Moussazadeh appeals, and we reverse and
remand.
I. Background.
A. Procedural History.
While at the Eastham Unit (“Eastham”) serving a seventy-five-year sen-
tence for murder, Moussazadeh on July 15, 2005, properly filed a Step 1 admin-
istrative grievance complaining that he was “forced to eat non kosher foods” and
requesting that he “be allowed to receive kosher meals because it is part of [his]
religious duty.” He asserted that he is Jewish, that he was “born and raised jew-
ish [sic],” and that his family “kept a kosher house hold [sic]” all his life. He
claims that his faith requires him to “eat kosher foods,” and not being able to do
so forces him to “go[] against [his] religious beliefs,” for which he believes God
will punish him. He noted in his grievance that he had contacted the prison
chaplain and captain of the mess facility at Eastham to request kosher meals but
that his requests had been denied.
On July 21, TDCJ denied Moussazadeh’s grievance and refused to provide
him with kosher food. It provided no reason for doing so and stated only that as
a matter of current policy, it did not provide kosher meals. Appealing the out-
come of his Step 1 grievance, on July 29 Moussazadeh filed a Step 2 grievance,
which was denied on September 19. The Grievance Response stated that TDCJ
could “take no further action in this matter.”
Having exhausted the grievance process, Moussazadeh sued TDCJ and
2
Case: 09-40400 Document: 00512093372 Page: 3 Date Filed: 12/21/2012
No. 09-40400
prison officials (collectively referred to as “TDCJ”) in October 2005, alleging sub-
stantially the same facts as in his grievances. He argued that he was a “sincere
adherent of the Jewish faith” and that a fundamental tenet requires that believ-
ers “eat food prepared and served in a kosher manner.” He noted his grievances
and TDCJ’s denial of his requests for kosher food, and he asserted that TDCJ’s
refusal to provide kosher food was a violation of RLUIPA and the Texas Relig-
ious Freedom Restoration Act. He requested injunctive and declaratory relief
compelling TDCJ to provide him with nutritionally sufficient kosher meals.
About six months after the suit was filed, the district court stayed discov-
ery at the request of the parties to facilitate settlement negotiations. After
nearly a year of negotiations, TDCJ began offering kosher food in the dining hall
at the Stringfellow Unit (“Stringfellow”), to which, in April 2007, Moussazadeh
was transferred; he then began receiving kosher meals from the kitchen free of
charge. The parties did not settle, however, because TDCJ refused to meet
Moussazadeh’s demand for a guarantee that it would not ever deny him kosher
food. Two years later, the district court dismissed the case as moot. Moussaza-
deh v. TDCJ, 2009 WL 819497 (S.D. Tex. Mar. 26, 2009).
Moussazadeh appealed the dismissal, and while his appeal was pending,
he committed an infraction and was transferred to the Stiles Unit (“Stiles”),
which did not provide kosher meals in the dining hall but did offer kosher food
for purchase at the commissary. This court remanded, concluding that those
changed circumstances rendered Moussazadeh’s claim no longer moot. See
Moussazadeh v. TDCJ, 364 F. App’x 110 (5th Cir. 2010) (per curiam).
On remand, the parties conducted further discovery and filed cross-
motions for summary judgment. The district court granted summary judgment
for TDCJ on two grounds. First, it held that Moussazadeh’s claim was barred
by the PLRA, which requires inmates to exhaust their administrative remedies
before seeking judicially granted relief. In the alternative, the court dismissed
3
Case: 09-40400 Document: 00512093372 Page: 4 Date Filed: 12/21/2012
No. 09-40400
under RLUIPA based on its conclusion that Moussazadeh was not sincere in his
religious beliefs, so there was no substantial burden on his religious exercise.
Moussazadeh timely appealed.
B. Factual Background.
Neither party disputes the fact that Jewish dietary laws, “kashrut,” are
fundamental to the practice of Judaism as embodied in the Torah and Rabbinic
laws. Food that satisfies the biblical and rabbinic requirements is deemed
“kosher.” Those laws demand that food be stored, prepared, and served in a cer-
tain manner, and they exclude certain types of food. For example, pork is per se
nonkosher. Food that would otherwise be kosher becomes nonkosher if mixed
with nonkosher food or brought into contact with utensils that have been used
in the preparation of nonkosher food. For that reason, certain types of food must
not be served, and a separate set of cookware, utensils, and flatware must gener-
ally be used.
Before this suit, TDCJ had no program for providing kosher food to
inmates. In fact, during the pendency of this case, TDCJ successfully litigated
against another prisoner who had requested kosher food. See Baranowski v.
Hart, 486 F.3d 112, 125 (5th Cir. 2007). During settlement negotiations with
Moussazadeh, however, TDCJ undertook a study of the logistics and cost of pro-
viding kosher food to observant Jewish inmates. It examined kosher programs
in other prison systems, such as those in Pennsylvania, Colorado, and the Fed-
eral Bureau of Prisons, that offered entirely prepackaged “cold” kosher meals,
kosher meals prepared on site, and the “common fare” program of the Bureau of
Prisons.
TDCJ considered the benefits and drawbacks of each system and decided
to implement a two-tier program. The first, the Basic Designated Jewish Unit,
provided kosher meals that could be purchased in the prison commissary, a mar-
4
Case: 09-40400 Document: 00512093372 Page: 5 Date Filed: 12/21/2012
No. 09-40400
ketplace where inmates can purchase food and hygienic items. Basic Units were
located at the Darrington, Terrell, Stiles, and Wynne facilities. The second tier,
the Enhanced Designated Jewish Unit, provided kosher meals free of charge to
Jewish offenders in the prison dining hall. The only Enhanced Unit was located
at Stringfellow. To provide kosher food there, TDCJ cordoned off a section of the
already extant kitchen and purchased items such as utensils, a refrigerator, a
microwave, and a burner for the exclusive preparation of kosher food. The cost
of establishing the kosher kitchen was $8,066.26.
TDCJ decided to implement the two-tier program based on factors includ-
ing cost, convenience, and the dynamics of the Jewish prison population. There
are about 900 self-identified Jewish prisoners out of more than 140,000 prisoners
in TDCJ custody. Of these, only 70S75 are “recognized” as Jewish, and another
90 are in the conversion process. Because of the cost associated with establish-
ing a kosher kitchen and the low number of Jewish prisoners, TDCJ decided to
build its single Enhanced Unit at Stringfellow and move all observant Jewish
prisoners there. Stringfellow was chosen because it is classified to house pris-
oners with a wide range of security levels, everyone except the most violent
offenders. Stringfellow also is close to a large Jewish population that TDCJ
determined would facilitate kosher certification and would volunteer services
and provide religious materials.
Aside from the start-up costs of the kosher kitchen, TDCJ’s Enhanced Des-
ignated Unit program cost more than regular prison meals. In 2009, TDCJ’s
expenditures on food service were just over $183.5 million, with a cost per day,
per inmate, of $3.87; the cost of food from the Stringfellow kosher kitchen was
$6.82. The total extra cost based on TDCJ’s 2009 data is roughly $1,095 per
year, per inmate. The Basic Jewish Designated Units, on the other hand, do not
impose those same costs on TDCJ. Inmates must purchase kosher food at the
commissary with their own money, lest they receive the same nonkosher food as
5
Case: 09-40400 Document: 00512093372 Page: 6 Date Filed: 12/21/2012
No. 09-40400
does the general population.
After establishing the Enhanced Unit at Stringfellow, TDCJ transferred
observant Jewish inmates, including Moussazadeh, there. Moussazadeh
remained at Stringfellow for two years and consistently ate the kosher meals,
even though they often consisted of food he characterized as “highly distasteful,”
such as tofu. He alleged that he was harassed by prison officials for his religious
beliefs and for his attempt to secure kosher food by means of this suit.
In 2009, Moussazadeh committed serious infractions that increased his
security level from G4 to G5. Because Stringfellow was not designated to house
G5 level offenders, Moussazadeh was transferred to Stiles. The prison had only
a Basic Jewish Designated Unit, and so Moussazadeh did not receive kosher
meals from the dining hall. He was able to purchase them in the commissary,
which he did at least during the Passover holiday. He also purchased food that
was not certified as kosher, such as coffee and sweets. He eventually became
eligible to transfer back to Stringfellow, but that eligibility was short-lived,
because he again lost it after committing another disciplinary infraction. At the
time of oral argument in this appeal, Moussazadeh remains at Stiles, where he
does not receive free kosher meals.
II. Standard of Review.
Summary judgments are reviewed de novo. See Meditrust Fin. Servs.
Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999). Summary judg-
ment is appropriate where, taking the evidence in the light most favorable to the
nonmoving party, there is no genuine dispute of material fact and the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). See also FED. R. CIV. P. 56(a).
6
Case: 09-40400 Document: 00512093372 Page: 7 Date Filed: 12/21/2012
No. 09-40400
III. Discussion.
A. PLRA Exhaustion.
Under the PLRA, “[n]o action shall be brought with respect to prison con-
ditions . . . by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). “[T]he PLRA pre-filing exhaustion requirement is mandatory and
non-discretionary.” Gonzalez v. Seal, No. 11-31068, 2012 U.S. App. LEXIS
25371, at *3 (5th Cir. Dec. 12, 2012) (per curiam). The purpose of the exhaustion
requirement is twofold. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). First, it
“protects administrative agency authority” by allowing the agency to “correct its
own mistakes” rather than being immediately “haled into federal court.” Id.
(internal citations omitted). Second, it promotes efficiency insofar as administra-
tive review processes are generally faster and more economical than is litigation.
Id. Even where the parties subsequently seek judicial remedies, the adminis-
trative-review process often produces a useful record to ease and expedite fur-
ther proceedings. Id. See also McCarthy v. Madigan, 503 U.S. 140, 150S51
(1992).
In determining exhaustion under the PLRA, we look to the processes
established by the prison and the parties’ use of these processes, beginning with
the sufficiency of the inmate’s “complaint.” We “typically use a standard accord-
ing to which a grievance should give prison officials ‘fair notice’ of the problem
that will form the basis of the prisoner’s suit.” Johnson v. Johnson, 385 F.3d
503, 516 (5th Cir. 2004). The complaint must be sufficient in detail to give offi-
cials “time and opportunity to address complaints internally before allowing the
initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 525 (2002). If the
complaint meets those standards, and if there are no further avenues for admin-
istrative resolution, we will find exhaustion.
Where the prisoner’s complaint addresses an ongoing problem or multiple
7
Case: 09-40400 Document: 00512093372 Page: 8 Date Filed: 12/21/2012
No. 09-40400
instances of the same type of harm, prisoners need not file a new grievance in
each instance to quality for exhaustion. “As a practical matter,” a prisoner can-
not be “expected to file a new grievance” each time he is harmed in the same
manner.1 Further, TDCJ’s policies expressly direct prisoners not to file multiple
grievances for a repeating harm, and they threaten sanctions for excessive
filings.2 Where the original grievance complains of a general prison policy,
changed circumstances will not necessarily necessitate re-exhaustion.3
Moussazadeh initially went through TDCJ’s entire grievance process
before filing this suit. In Texas, prison grievances involve a two-step process.
The inmate first files a Step 1 grievance, in which he must state the grievance
and his proposed relief. If relief is denied, the inmate may then file a Step 2
grievance appealing the denial. Moussazadeh filed both claims. And indeed,
before filing formal grievances, he sought the assistance of the prison chaplain
and the kitchen captain in resolving the issue. In its denial of his Step 2 griev-
ance, TDCJ told Moussazadeh that no further action could be taken regarding
his request for kosher food.
The district court held that Moussazadeh had not exhausted. There was
a convergence of changed circumstances, it found, that required him to re-
exhaust. Namely, TDCJ put in place a kosher meals program and served Mous-
sazadeh kosher meals from the prison kitchen during his time at Stringfellow.
Thereafter, Moussazadeh was transferred to Stiles, which left him in a different
position. The district court held that these facts required him to submit new
grievances. We disagree.
1
Johnson, 385 F.3d at 521 (holding that a prisoner who suffered similar harassment
on multiple occasions had sufficiently exhausted even though he had not filed new grievances
at each instance of harassment).
2
See id.
3
Id. (citing Aiello v. Litscher, 104 F. Supp. 2d 1068, 1074 (W.D. Wis. 2000)).
8
Case: 09-40400 Document: 00512093372 Page: 9 Date Filed: 12/21/2012
No. 09-40400
Although Moussazadeh can purchase kosher food at Stiles and did receive
kosher food for a time at Stringfellow, the claim that gave rise to his initial
grievances and suit remains unchanged. His original grievance asked TDCJ to
“grant [him] access to kosher meals in the prison dining hall.” In the “Action
Requested to resolve your Complaint” field, Moussazadeh asked to “receive
kosher meals from the unit kitchen and dining hall.”4 The grievance related to
his ability to be fed a kosher, nutritionally adequate diet in the dining hall as a
substitute for the nonkosher meals he was being served. His claim is for relief
related to ongoing conduct—he is currently being denied kosher food. Even
though he was granted the relief he requested for a time, it has been taken away
from him.
This is analogous to the situation in Johnson, in which a prisoner was
being assaulted on a regular basis but not every single day. See Johnson, 385
F.3d at 521. We explained that the pattern of assault did not require multiple
grievances. Id. Johnson did not have to be assaulted each and every day for the
conduct underlying his grievance to be considered ongoing. Similarly, Moussaza-
deh’s claim relates to conduct that continues to occur.
Further, even granting that Moussazadeh’s situation has changed with his
transfer to Stiles and that he is now free to purchase kosher food, it would be
improper to dismiss under the PLRA. This case has been ongoing for more than
seven years. The administrative process has yet to yield a satisfactory result,
and the final grievance response stated that TDCJ would “take no further
action.” Insofar as the purpose of exhaustion under the PLRA is to provide
notice of the prisoner’s grievances and a chance for the prison system to address
4
TDCJ asks us to apply an even narrower reading of Moussazadeh’s complaint. It
suggests that his original grievance only requested “access” to kosher food. That strained
understanding of the complaint does not comport with its clear language. Moussazadeh expli-
citly requested kosher meals served by the prison kitchen.
9
Case: 09-40400 Document: 00512093372 Page: 10 Date Filed: 12/21/2012
No. 09-40400
them, these proceedings have undoubtedly accomplished those objectives. TDCJ
is fully aware of Moussazadeh’s requests and complaints. Nothing in the record
suggests that, were Moussazadeh to file an administrative grievance, TDCJ
would take any action. Forcing re-exhaustion would be fruitless and would
needlessly extend already prolonged litigation.
Finding the need for re-exhaustion here would also allow TDCJ and future
potential defendants to take improper advantage of the PLRA’s exhaustion
requirement. To avoid any future suit on grounds of not providing a kosher diet,
TDCJ would merely have to transfer the complaining inmate to Stringfellow
after a suit was filed, then move for dismissal. Once the suit was dismissed,
TDCJ would have free reign to deny the inmate kosher food again. Even assum-
ing good faith on the part of TDCJ, such a system, which would be allowable
under the district court’s understanding of the PLRA, would be contrary to the
purposes of the act.
Finally, the statute states that “[n]o action shall be brought . . . until”
administrative remedies have been exhausted. 42 U.S.C. § 1997e(a) (emphasis
added). Once those remedies are exhausted, the suit may be filed. All of our
previous cases upholding dismissals under § 1997e have involved a failure to file
grievances at all or a failure to see the administrative review process through to
its conclusion.5 We have never before held that, once he has initially exhausted
available remedies, an inmate must re-exhaust based on changed circumstances.
The PLRA serves as a threshold; once it is met, a suit may not be dismissed so
long as the claims remain the same. In seven years of litigation, Moussazadeh
has not amended his initial complaint—in fact, the district court noted that he
5
See, e.g., Robinson v. Wheeler, 338 F. App’x 437, 438 (5th Cir. 2009) (upholding dismis-
sal for lack of exhaustion where prisoner was told that he could re-file a grievance before the
suit was initiated); Simkins v. Bridges, 350 F. App’x 952, 953 (5th Cir. 2009) (upholding dis-
missal for lack of exhaustion where prisoner did not appeal denial of his initial grievance as
required).
10
Case: 09-40400 Document: 00512093372 Page: 11 Date Filed: 12/21/2012
No. 09-40400
did not need to file an amended complaint.
Moussazadeh exhausted his administrative remedies in 2005 when he
properly filed grievances. TDCJ has been on notice since that time of Moussaza-
deh’s complaints and his request for kosher food to be served in the dining hall.
“Re-exhaustion” is not required; Moussazadeh has met the exhaustion as a mat-
ter of law.
B. RLUIPA.
Under RLUIPA, government entities as a general matter may not “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 applicabil-
ity.” 42 U.S.C. § 2000cc-1(a). RLUIPA “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 reli-
gion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). The threshold questions
for applying RLUIPA are whether a “religious exercise” is at issue and whether
the state action places a “substantial burden” on that exercise.6 Subsumed
within the substantial-burden inquiry is the question whether the inmate sin-
cerely believes in the requested religious exercises. See id. at 725 n.13 (noting
that inquiries into sincerity are appropriate under RLUIPA). A belief not sin-
cerely held cannot be substantially burdened.
1. Religious Exercise.
“Religious exercise” is defined by RLUIPA as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42
6
Mayfield v. TDCJ, 529 F.3d 599, 613 (5th Cir. 2008) (stating that a RLUIPA inquiry
“normally requires two separate assessments, first whether the burdened activity is ‘religious
exercise,’ and second whether that burden is ‘substantial’”).
11
Case: 09-40400 Document: 00512093372 Page: 12 Date Filed: 12/21/2012
No. 09-40400
U.S.C. § 2000cc-5(7)(A). The parties do not dispute the centrality to the Jewish
faith of keeping kosher. Nor do they dispute that eating kosher food constitutes
a “religious exercise.” The district court properly held this to be so.
2. Sincerity.
To be substantially burdened, a religious belief must be sincerely held.
“[W]hile the ‘truth’ of a belief is not open to question, there remains the signifi-
cant question of whether it is ‘truly held.’” United States v. Seeger, 380 U.S. 163,
185 (1965). It does not matter whether a religious belief itself is central to the
religion, but only that “the adherent [ ] have an honest belief that the practice
is important to his free exercise of religion.” Sossamon v. Lone Star State of Tex.,
560 F.3d 316, 332 (5th Cir. 2009), aff’d sub nom. Sossamon v. Texas, 131 S. Ct.
1651 (2011). Sincerity of a belief is an essential initial matter in a RLUIPA
claim.
We have “had few occasions to conduct this part of the inquiry, as the
sincerity of a religious belief is not often challenged.” McAlister v. Livingston,
348 F. App’x 923, 935 (5th Cir. 2009). Sincerity is generally presumed or easily
established. When we have inquired as to sincerity, however, we have looked to
the words and actions of the inmate. See Sossamon, 560 F.3d at 332. “[T]he
important inquiry was what the prisoner claimed was important to him.” McAl-
ister, 348 F. App’x at 935.
In addressing whether Moussazadeh’s religious beliefs were sincere, the
district court correctly looked to his words and actions but incorrectly concluded
that those factors established insincerity “as a matter of law.” The court decided
that Moussazadeh was insincere based on a combination of three findings. First,
it found that he purchased “nonkosher” food itemsSSincluding cookies, soft
drinks, coffee, tuna, and candySSwhile at Stringfellow, despite being served
kosher food in the dining hall. Second, the court found that, while at Stiles,
12
Case: 09-40400 Document: 00512093372 Page: 13 Date Filed: 12/21/2012
No. 09-40400
Moussazadeh purchased the same types of “nonkosher” food from the commis-
sary. Finally, the court noted that Moussazadeh had not filed a grievance
requesting a transfer back to Stringfellow from Stiles when he became eligible.
These findings alone, however, do not indicate that Moussazadeh was
insincere. In the first place, because the court ruled on a motion for summary
judgment, it was required to view the evidence in the light most favorable to the
non-movant, who on the issue of sincerity was Moussazadeh. Celotex, 477 U.S.
at 322. The determination of a substantial burden in general is “fact-specific and
requires a case-by-case analysis.”7 This is doubly true regarding sincerity. The
district court improperly weighed the evidence proffered by TDCJ more heavily
than it did Moussazadeh’s.
As an initial matter, the court was incorrect to say that Moussazadeh
bought nonkosher food at the commissary. The court concluded that items that
were not certified as kosher were per se not kosher, but, as Moussazadeh and
amicus curiae relate, a certificate does not render food kosher or nonkosher. See
Brief for Amicus Curiae American Jewish Committee at 16S22. The items that
Moussazadeh purchased, such as coffee and soda, do not need a certificate to be
“kosher.” Id. Although certain adherents of Judaism may consume only certi-
fied kosher food, others will consume food that is not per se nonkosher. Id. Indi-
viduals may practice their religion in any way they see fit, and “it is not for the
Court to say it is an unreasonable one.” A.A. ex rel. Betenbaugh v. Needville
Indep. Sch. Dist., 611 F.3d 248, 261 (5th Cir. 2010). A showing of sincerity does
not necessarily require strict doctrinal adherence to standards created by organ-
ized religious hierarchies.
7
McAlister, 348 F. App’x at 936. See also Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir.
2004) (“We recognize that our test requires a case-by-case, fact-specific inquiry to determine
whether the government action or regulation in question imposes a substantial burden on an
adherent’s religious exercise.”).
13
Case: 09-40400 Document: 00512093372 Page: 14 Date Filed: 12/21/2012
No. 09-40400
Even assuming, arguendo, that some of the food Moussazadeh purchased
was nonkosher, that does not necessarily establish insincerity. A finding of sin-
cerity does not require perfect adherence to beliefs expressed by the inmate, and
even the most sincere practitioner may stray from time to time. “[A] sincere reli-
gious believer doesn’t forfeit his religious rights merely because he is not scru-
pulous in his observance; for where would religion be without its backsliders,
penitents, and prodigal sons?” Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir.
2012). Though Moussazadeh may have erred in his food purchases and strayed
from the path of perfect adherence, that alone does not eviscerate his claim of
sincerity.
In support of his sincerity, Moussazadeh offered his statements in his ini-
tial grievances and complaint that he was born and raised Jewish and has
always kept a kosher household. He offered evidence that he requested kosher
meals from the chaplain, kitchen staff, and TDCJ. He tendered evidence that,
while at Stringfellow, he ate the kosher meals provided to him from the dining
hall, even though he found them to be “distasteful” compared to the standard
prison fare.
Moussazadeh also showed that he was harassed for his adherence to his
religious beliefs and for his demands for kosher food while at Stringfellow. For
instance, he alleged that the guards there delayed his mail and searched his cell
more often than they did so for other prisoners, sometimes seizing non-
contraband items. Moussazadeh offered evidence that he purchased some
kosher food in the Stiles commissary, including kosher-for-Passover meals. He
also attempted to present testimony from religious authorities supporting his
sincerity, though the district court rejected that.
Further, during seven years of litigation, TDCJ had never questioned
Moussazadeh’s sincerity. It created the two-tier program as part of negotiations
with him. It transferred him to Stringfellow so he could receive kosher food and
14
Case: 09-40400 Document: 00512093372 Page: 15 Date Filed: 12/21/2012
No. 09-40400
transferred him to Stiles because the commissary offered kosher food for pur-
chase. Those actions establish TDCJ’s acknowledgment of Moussazadeh’s
sincerity.
Though the sincerity inquiry is important, it must be handled with a light
touch, or “judicial shyness.” A.A. ex rel. Betenbaugh, 611 F.3d at 262. We limit
ourselves to “almost exclusively a credibility assessment” when determining
sincerity. See Kay, 500 F.3d at 1219. To examine religious convictions any more
deeply would stray into the realm of religious inquiry, an area into which we are
forbidden to tread.8
Moussazadeh has offered sufficient evidence to establish sincerity as a
matter of law. He has shown through his initial claims, his actions while at
Stringfellow, and his continued prosecution of this suit that he sincerely believes
in the importance of eating kosher food. His few lapses in perfect adherence do
not negate his overarching display of sincerity. The district court improperly
eschewed the required “judicial shyness” in determining otherwise.
C. Standard on Remand.
Where an inmate’s religious beliefs are sincere and his exercise of those
beliefs is burdened, the court must determine whether the plaintiff has estab-
lished that the burden is substantial. 42 U.S.C. § 2000cc-1(a). If it is, the state
must “demonstrate[ ] that imposition of the burden . . . (1) is in furtherance of
a compelling governmental interest; and (2) is the least restrictive means of fur-
thering that compelling governmental interest.” Id. There are thus three ques-
tions the district court must address on remand: whether the regulation sub-
stantially burdens religious conduct, whether the government has a compelling
interest in the regulation, and whether the regulation is the least restrictive
8
See United States v. Ballard, 322 U.S. 78, 86S87 (1944) (“Men may believe what they
cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”).
15
Case: 09-40400 Document: 00512093372 Page: 16 Date Filed: 12/21/2012
No. 09-40400
means of achieving the interest.
1. Substantial Burden.
Denying all access to kosher food places a substantial burden on the prac-
tice of an inmate’s faith. Baranowski, 486 F.3d at 125. We have not opined,
however, on the policy of charging inmates for kosher meals.
In addressing substantial burdens on religion under the First Amendment,
the Supreme Court has provided useful guideposts for our application of
RLUIPA. In Sherbert v. Verner, 374 U.S. 398, 404 (1963), the Court held that
withholding unemployment benefits from an individual who could not, based on
her religious beliefs, work on the Sabbath would constitute a substantial burden
on religion. Denying benefits would “force[ ] [the plaintiff] to choose between fol-
lowing the precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on the
other hand.” Id. This type of imposition substantially burdens religion because
it would be the same as “a fine imposed against appellant for her Saturday wor-
ship.” Id. Similarly, in Thomas v. Review Board of the Indiana Employment
Security Division, 450 U.S. 707, 717S18 (1981), the Court held that conditioning
receipt of “an important benefit” upon religiously proscribed conduct, or denying
a benefit because of “conduct mandated by religious belief,” would impose a sub-
stantial burden on religion.
Applying these standards to RLUIPA, we held in Adkins, 393 F.3d at 570,
that a government action substantially burdens a religious belief if “it truly pres-
sures the adherent to significantly modify his religious behavior and signifi-
cantly violate his religious beliefs.” We explained that
the 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,
16
Case: 09-40400 Document: 00512093372 Page: 17 Date Filed: 12/21/2012
No. 09-40400
and, on the other hand, following his religious beliefs. On the oppo-
site end of the spectrum, however, a government action or regula-
tion does not rise to the level of a substantial burden on religious
exercise if it merely prevents the adherent from either enjoying
some benefit that is not otherwise generally available or acting in
a way that is not otherwise generally allowed.
Id.
TDCJ argues that what is at stake is not pressure or forbidding religious
practice but “underwriting” it. TDCJ cites Cutter, 544 U.S. at 720 n.8, which
noted that “RLUIPA does not require a State to pay for an inmate’s devotional
accessories.” But for two reasons, Cutter is distinguishable from the case at
hand: First, it addressed an Establishment Clause challenge to RLUIPA. The
Court was not focused on analyzing the question of a substantial burden. Sec-
ond, the benefit requested in Cutter was provision of religious items, not food.
Like the unemployment payments at issue in Sherbert, food is an “essential”
benefit given to every prisoner, regardless of religious belief. Based on Sherbert,
Thomas, and Adkins, denial of religiously sufficient food where it is a generally
available benefit would constitute a substantial burden on the exercise of
religion.
TDCJ further cites Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th
Cir. 2008), as its most persuasive support of the position that there is no sub-
stantial burden. Prisoner Patel had requested halal food and was served food
that did not comport with his conception of Islamic dietary law. Halal meals
that would have satisfied him were available for purchase in the prison commis-
sary. Id. at 816. Patel had offered no evidence that he could not afford to pur-
chase the halal food. The court held that the prison did not have to provide him
free halal meals from the commissary and that it was not imposing a substantial
burden on his religious exercise.
Patel is distinguishable on two grounds. First, the Eighth Circuit appears
17
Case: 09-40400 Document: 00512093372 Page: 18 Date Filed: 12/21/2012
No. 09-40400
to define “substantial burden” differently from how we define it. According to
the Eighth Circuit, government action must “significantly inhibit or constrain
conduct or expression that manifests some central tenet of a person’s individual
religious beliefs; must meaningfully curtail a person’s ability to express adher-
ence to his or her faith; or must deny a person reasonable opportunities to
engage in those activities that are fundamental to a person’s religion” in order
to constitute a substantial burden. Id. at 813 (quoting Murphy, 372 F.3d at 988).
Unlike our definition, embodied in Adkins, the Eighth Circuit’s definition of sub-
stantial burden makes no reference to denial of generally available benefits.
Second, Patel is distinguishable because both kosher and halal food were
already being offered free of charge in the dining hall. Patel requested not only
halal food, which was already being served and satisfied all the other Muslims
in the prison, but a particularly nuanced version of halal food. Additionally, six-
teen of the twenty-one meals Patel received each week in the dining hall met his
standards.
Where an inmate is denied a generally available benefit because of his
religious beliefs, a substantial burden is imposed on him. Every prisoner in
TDCJ’s custody receives a nutritionally sufficient diet. Every observant Jewish
prisoner at Stringfellow receives a kosher diet free of charge. Only Moussazadeh
is denied that benefit, because he is forced to pay for his kosher meals. This
practice substantially burdens his ability to exercise his religious beliefs.
2. Compelling Interest.
A governmental entity can escape the prohibition on substantially burden-
ing religious practice where it establishes that it has a compelling interest in
doing so. TDCJ alleges that it has two interests: prison security and costs. This
court held in Baranowski, 486 F.3d at 125, that these considerations, in that par-
ticular case, constituted a compelling interest.
18
Case: 09-40400 Document: 00512093372 Page: 19 Date Filed: 12/21/2012
No. 09-40400
TDCJ has failed to produce evidence of security concerns related to pro-
viding kosher food at Stiles. It offered evidence that the offenders at Stiles have
generally been convicted of more violent crimes, but it did not offer any evidence
that those more violent offenders would be more likely to cause violence or safety
disturbances as a result of some prisoners being served kosher food. TDCJ
relied on bare assertions that more violent offenders would present a greater
security threat if different meals were served, but this is insufficient to establish
a compelling interest related to these facts. On remand, TDCJ may present evi-
dence substantiating its claims of security concerns, if such evidence exists.
TDCJ has shown that costs for kosher food would be almost double what
they would be for the nonkosher “loaf” that is served to other prisoners at Stiles.
Moussazadeh does not deny those extra costs. TDCJ’s argument that it has a
compelling interest in minimizing costs by denying Moussazadeh kosher food,
however, is dampened by the fact that it has been offering kosher meals to pris-
oners for more than two years and provides them at no cost to all observant Jew-
ish inmates that accepted a transfer to Stringfellow.
Further, the increased cost of providing kosher food to all observant pris-
oners is minimal¯even if the more expensive prepackaged meals, as distin-
guished from the kosher-kitchen meals, were provided three times a day to each
observant prisoner, the cost would only be about $88,000 per year. To provide
those meals to Moussazadeh alone would cost a fraction of this. To put this
amount in perspective, the total food budget of TDCJ is $183.5 million.
In Beerheide v. Suthers, 286 F.3d 1179, 1191 (10th Cir. 2002), the court
held that excluding a $13,000 expenditure from a budget of over $8 million did
not constitute a compelling government interest, even under rational-basis
review. That minimal cost was, as a percentage of total outlay, roughly three
times higher than the expenditure if TDCJ offered the most expensive kosher
meal program to all observant prisoners. Although cost reduction, as a general
19
Case: 09-40400 Document: 00512093372 Page: 20 Date Filed: 12/21/2012
No. 09-40400
matter, is unquestionably a compelling interest of TDCJ, we are skeptical that
saving less than .005% of the food budget constitutes a compelling interest. We
recognize, however, that the inquiry is fact-intensive, and we decline to draw a
bright-line rule. See Adkins, 393 F.3d at 571.
3. Least Restrictive Means.
Assuming, arguendo, that TDCJ establishes a compelling interest in secur-
ity and cost minimization, its chosen means of achieving that interest must be
the least restrictive of Moussazadeh’s right to exercise his religious beliefs
“among available, effective alternatives.” Ashcroft v. Am. Civil Liberties Union,
542 U.S. 656, 666 (2004) (applying the least restrictive means test in the speech
context). “Requiring a State to demonstrate . . . that it has adopted the least
restrictive means of achieving [a compelling] interest is the most demanding test
known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
TDCJ argues that it has chosen the least restrictive means by allowing
Moussazadeh to purchase kosher meals at the Stiles commissary. It relies on
Baranowski to suggest that complete denial of kosher food is among the least
restrictive means for achieving its goal of minimizing costs and preventing secur-
ity risks and that therefore its chosen method is even less restrictive. This, how-
ever, improperly broadens Baranowski. We there held that, “[b]ased on the rec-
ord before us, . . . [TDCJ’s] policy [of denying inmates kosher food] is related to
maintaining good order and controlling costs and, as such, involves compelling
governmental interests.” Baranowski, 486 F.3d at 125 (emphasis added).
We did not hold in Baranowski that there cannot be a less restrictive
means of achieving the interests of security and cost reduction, but only that on
the record in that case, there was not. We note that, on a subject that demands
a fact-intensive inquiry, the record in Baranowski was thin¯the plaintiff was pro
se and presented no evidence to rebut any of TDCJ’s claims regarding the cost
20
Case: 09-40400 Document: 00512093372 Page: 21 Date Filed: 12/21/2012
No. 09-40400
of a kosher food program. Our holding in that case does not foreclose a finding
that TDCJ’s current program is not the least restrictive means available.
Circumstances since Baranowski was decided have changed, as TDCJ and
the district court pointed out in their discussion of administrative exhaustion.
TDCJ has now offered kosher meals in the dining hall at Stringfellow for years
and has offered kosher meals for purchase. To the extent that TDCJ claimed
that its least-restrictive means of achieving cost reduction was completely deny-
ing prisoners kosher food, that is no longer so. Baranowski therefore is instruc-
tive but not dispositive.
There thus remains the factual question whether there is a less restrictive
means of minimizing costs and maintaining security other than forcing Moussa-
zadeh to pay for all his kosher meals. He has suggested four alternatives less
restrictive than forcing him to pay for every meal he eats, which he has stated
he cannot afford. Less restrictive means include supplementing the regular diet
with prepackaged kosher meals; establishing another kosher kitchen; shipping
food to Stiles from Stringfellow’s kosher kitchen; and providing prepackaged
kosher meals through the commissary for free. On remand, the district court
must determine whether any “alternative, available” means would allow TDCJ
to achieve any established compelling interest while being less restrictive of
Moussazadeh’s ability to exercise his religion. If a less restrictive alternative is
available, RLUIPA commands that TDCJ adopt it.
For the foregoing reasons, the summary judgment is REVERSED, and this
matter is REMANDED for further proceedings. We do not suggest how the dis-
trict court should proceed or what decisions should be reached in light of the
guidance set forth in this opinion. If the court decides, as to any issue, that
there are no genuine disputes of material fact, summary judgment may be
appropriate. If there are fact issues, the case may be ready for trial on issues
other than exhaustion and sincerity, which are now decided as matters of law.
21
Case: 09-40400 Document: 00512093372 Page: 22 Date Filed: 12/21/2012
No. 09-40400
We do not mean to hamper the court in any way in its resolution of any ques-
tions still needing to be resolved.9
9
Moussazadeh’s request for reassignment to a different district judge on remand is
DENIED. Reassignment is an “extraordinary” remedy that is “rarely invoked.” Johnson v.
Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997). The district judge has handled this matter capa-
bly and without bias, and we are confident she will continue to do so.
22
Case: 09-40400 Document: 00512093372 Page: 23 Date Filed: 12/21/2012
No. 09-40400
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part:
Amazingly, akin to the adage about “inmates running the asylum”, and
contrary to the Religious Land Use and Institutionalized Persons Act (RLUIPA),
42 U.S.C. §§ 2000cc–2000cc-5, the able majority is permitting this inmate to run
the penitentiary. When combined with two other adages–“no good deed goes
unpunished” and “don’t lose sight of the forest for the trees”–the true character
of this action is revealed. In that light, for the issues remanded for further
proceedings, the majority’s application of RLUIPA’s compelling-interest
standard, 42 U.S.C.§ 2000cc-1(a)(2), is contrary to precedent and impermissibly
substitutes the majority’s judgment for that of prison officials. Along that line,
the majority ignores Moussazadeh’s fault, through his serious disciplinary
violations, in bringing about the deprivation about which he complains.
Therefore, although I join the majority’s denial of reassignment, Maj. Opn. at 22
n.9, and join, dubitante, its holdings that Moussazadeh has met his threshold
exhaustion and sincerity requirements, Maj. Opn. at 11, 15, 21, I must
respectfully dissent from my esteemed colleagues’ vacating judgment for TDCJ
and remanding for further proceedings on: whether TDCJ has shown a
compelling governmental interest; and whether it has adopted the least
restrictive means of achieving that interest (remanded issues).
I.
In granting summary judgment to TDCJ, the district court’s comprehen-
sive and detailed opinion based judgment on failure to satisfy the exhaustion
and sincerity issues, and, therefore, did not reach the remanded issues.
Moussazadeh v. Tex. Dep’t of Criminal Justice, No. G-07-574, 2011 WL 4376482
(S.D. Tex. Sept. 20, 2011). No authority need be cited for our ability to affirm the
summary judgment based on the issues that are instead being remanded. These
issues were raised in district court.
Along that line, the opinion provides compelling support for why
23
Case: 09-40400 Document: 00512093372 Page: 24 Date Filed: 12/21/2012
No. 09-40400
Moussazadeh’s claim fails for the remanded issues. The following two
paragraphs from that opinion shine a piercing light on what is really afoot:
TDCJ–CID defendants also note that Moussazadeh did
not request a transfer [from the Stiles Unit] back to the
Stringfellow Unit for religious reasons [where a free
kosher diet is available] when he became eligible for
such transfer and that he filed no grievances complain-
ing that he was denied kosher meals or any religious
practice on the Stiles Unit [to which he had been
transferred for disciplinary violations]. They further
note that Moussazadeh voluntarily committed major
disciplinary violations [at Stiles] that resulted in a
change of his custodial classification, thereby, depriving
him of the opportunity to transfer back to the
Stringfellow Unit, where he could freely obtain kosher
food.
***
Moussazadeh’s conclusory declaration does not demon-
strate that his professed religious need for a kosher diet
motivates his actions or that he has attempted to
reform his ways and return to keeping kosher during
his two-year incarceration on the Stiles Unit. Rather,
his personal desire to harass defendants with an
unnecessary lawsuit took precedence, and he was
willing to sacrifice his religious dietary beliefs in favor
of this secular pursuit. Indeed, he would be without any
access to kosher food to this day had defendants not
attempted to accommodate his dietary beliefs.
Id. at *14-15 (citations omitted).
In the light of these penetrating comments, Moussazadeh asserts here:
“the district court suggested that Moussazadeh brought all of this trouble on
himself by ‘voluntarily committ[ing] major disciplinary violations’”. In truth,
Moussazadeh knows the district court has pinpointed exactly what he is
attempting. He even characterizes this correct statement of fact as an
expression of “remarkable hostility”, requesting–unsuccessfully–this action’s
being reassigned to a new judge on remand. In other words, he was aware that
24
Case: 09-40400 Document: 00512093372 Page: 25 Date Filed: 12/21/2012
No. 09-40400
any hope of success depended on pulling the wool over the eyes of a new judge;
the extremely able district judge sees this claim for what it is with 20/20 vision.
II.
In not affirming the summary judgment on the remanded issues, the
majority errs in two ways. First, it applies RLUIPA’s compelling-interest
standard as if Moussazadeh’s claim were to be analyzed in a context other than
RLUIPA, such as under the Fourteenth Amendment. In that regard, RLUIPA
does not require the exacting review associated with court-created strict scrutiny
in such other contexts; indeed, such a harsh standard contravenes the Act’s
purpose. Second, in refusing to recognize what is really in play, the majority
ignores TDCJ’s having already provided Moussazadeh the religious benefit he
seeks, and his having lost access to it through his repeated, serious disciplinary
infractions.
A.
The majority cites City of Boerne v. Flores, 521 U.S. 507, 534 (1997), to
support its conclusion that a very demanding standard of review is appropriate
in analyzing TDCJ’s kosher-food policy. Maj. Opn. at 20. There, the Court
addressed the constitutionality of RLUIPA’s predecessor, the Religious Freedom
Restoration Act (RFRA). City of Boerne, 521 U.S. at 511. As the majority notes,
City of Boerne stated: the test for the “least restrictive means of achieving [a
compelling] interest” is the most rigorous in all of constitutional law. Id. at 534.
This standard is often referred to as “fatal in fact”, because it often leads to the
challenged government policy’s being struck down. E.g., Bernal v. Fainter, 467
U.S. 216, 219 n.6 (1984).
What the majority fails to take into consideration is that Congress’ use in
RFRA of this standard, constituting a “considerable congressional intrusion into
the States’ traditional prerogatives . . . to regulate for the health and welfare of
their citizens”, is part of the reason why, in City of Boerne, RFRA was held
25
Case: 09-40400 Document: 00512093372 Page: 26 Date Filed: 12/21/2012
No. 09-40400
unconstitutional. 521 U.S. at 534. Therefore, in the subsequent RLUIPA
context, the standard is necessarily less stringent than its language suggests.
Precedent from the Supreme Court, our court, and other circuits bears this out.
Our court has already applied RLUIPA to kosher food vel non in TDCJ
prisons. Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007). In Baranowski, the
inmate complained of TDCJ’s complete denial of kosher food. Id. at 116-19. Our
court held: although failure to provide such food did work a substantial burden
on the inmate’s religious practice, TDCJ could not be forced to add kosher food
to its menu:
Turning to the compelling interest test, Defendants
must show that their dietary policy of not providing
kosher meals is the least restrictive means of furthering
a compelling governmental interest. As the Supreme
Court recently explained, “‘[c]ontext matters’ in the
application of that standard.” Cutter [v. Wilkinson], 544
U.S. [709, 723 (2005)], 125 S. Ct. 2113 (quoting Grutter
v. Bollinger, 539 U.S. 306, 327, 123 S. Ct. 2325, 156
L. Ed. 2d 304 (2003)). Courts should apply the “compel-
ling governmental interest” standard with “‘due defer-
ence to the experience and expertise of prison and jail
administrators in establishing necessary regulations
and procedures to maintain good order, security and
discipline, consistent with consideration of costs and
limited resources.’” Id. (quoting S.Rep. No. 103–111, at
10 (1993) 1993 U.S.C.C.A.N. 1892, 1899). RLUIPA, in
other words, is not meant to elevate accommodation of
religious observances over the institutional need to
maintain good order, security, and discipline or to
control costs. See Lovelace v. Lee, 472 F.3d 174, 190 (4th
Cir.2006).
Id. at 125. This holding was consistent, of course, with the Supreme Court’s
opinion in Cutter, which held:
We do not read RLUIPA to elevate accommodation of
religious observances over an institution’s need to
maintain order and safety. Our decisions indicate that
an accommodation must be measured so that it does not
26
Case: 09-40400 Document: 00512093372 Page: 27 Date Filed: 12/21/2012
No. 09-40400
override other significant interests. In [Thornton v.]
Caldor, [472 U.S. 703, 105 S. Ct. 2914 (1985)] the Court
struck down a Connecticut law that “arm[ed] Sabbath
observers with an absolute and unqualified right not to
work on whatever day they designate[d] as their Sab-
bath.” 472 U.S., at 709, 105 S. Ct. 2914. We held the law
invalid under the Establishment Clause because it
“unyielding[ly] weigh[ted]” the interests of
Sabbatarians “over all other interests.” Id., at 710, 105
S. Ct. 2914.
We have no cause to believe that RLUIPA would not be
applied in an appropriately balanced way, with particu-
lar sensitivity to security concerns. While the Act
adopts a “compelling governmental interest” standard,
see supra, at 2118, “[c]ontext matters” in the applica-
tion of that standard. See Grutter v. Bollinger, 539 U.S.
306, 327, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003).
Lawmakers supporting RLUIPA were mindful of the
urgency of discipline, order, safety, and security in
penal institutions. See, e.g., 139 Cong. Rec. 26190
(1993) (remarks of Sen. Hatch). They anticipated that
courts would apply the Act’s standard with “due defer-
ence 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.” Joint Statement 16699 (quoting
S.Rep. No. 103-111, at 10, U.S.Code Cong. &
Admin.News 1993, pp. 1892, 1899, 1900).
Cutter, 544 U.S. at 722-23.
Baranowksi thus established that maintaining good order and controlling
costs were included in such “compelling interests”, and held TDCJ’s policy of
providing no kosher food whatsoever was “the least restrictive means of
furthering” those interests. Baranowski, 486 F.3d at 125-26; 44 U.S.C. § 2000cc-
1. Despite the majority’s attempt to distinguish the cases on their facts, Maj.
Opn. at 20-21, Baranowski’s admonition that RLUIPA does not allow religious
accommodation to overrun considerations of prison administration is general in
27
Case: 09-40400 Document: 00512093372 Page: 28 Date Filed: 12/21/2012
No. 09-40400
scope. As discussed, Baranowski held TDCJ did not violate RLUIPA’s
compelling-interest standard when it provided no kosher-food options.
Accordingly, how can it violate that standard now by providing free kosher meals
at one unit and making them available for purchase at several others? The
majority posits, for example, that the increased cost of providing free kosher
meals outside Stringfellow would be relatively minimal. Maj. Opn. at 19-20.
Even if correct, that is for prison officials, not our court, to add to the mix for
their decision in this instance.
Other courts have similarly determined RLUIPA’s compelling-interest
standard is more forgiving to prison systems than the court-created, strict-
scrutiny standard normally is to government policies. For example, in
Hoevenaar v. Lazaroff, the inmate wanted to grow a “kouplock”, a small section
of hair at the base of the skull that is grown longer than the rest of the person’s
hair, to conform with his religious practice. 422 F.3d 366, 367 (6th Cir. 2005).
The Ohio prison warden defended his system’s absolute ban on long hair, noting
its security interests in preventing inmates from hiding contraband in their hair
and eliminating an easy way for recently-escaped inmates to quickly change
their appearance (i.e. by cutting their hair). Id. at 369.
The district court ruled: because the inmate was classified only as
“medium security” and in bad health, his kouplock was unlikely to pose a
security threat; and the warden should have taken that into account in applying
the hair-length rule to him. Id. at 368. The Sixth Circuit reversed because the
district court “did not give proper deference to the opinions of . . . veterans of the
prison system”. Id. at 371. When analyzing a RLUIPA claim, courts must
accord “requisite deference to the expertise and experience of prison officials” in
their approach to the prison system’s compelling interests and the appropriate
means of achieving them. Id.
This more deferential standard is a far cry from court-created strict
28
Case: 09-40400 Document: 00512093372 Page: 29 Date Filed: 12/21/2012
No. 09-40400
scrutiny, in which the whole point is for the court to apply its own judgment to
determine whether a government policy is sufficiently narrowly tailored to a
truly compelling interest. See Johnson v. California, 543 U.S. 499, 512-13
(2005). In this context, the summary judgment record demonstrates there is no
genuine dispute of material fact that necessitates the remanded issues.
Nevertheless, the majority has impermissibly substituted its judgment for
that of the professionals at TDCJ, including implicitly accepting an inmate’s
assessment of whether granting his wishes poses a security problem.
Moussazadeh contends there is no reason to believe what worked at Stringfellow
would not work at Stiles, despite TDCJ’s having shown the inmates housed at
Stiles tend to be far more dangerous than those at Stringfellow. The majority
dismisses this clear difference in security situations as a “bare assertion[]”, Maj.
Opn. at 19, and adopts Moussazadeh’s analysis, despite the obvious fact that “a
prisoner’s view of what promotes prison security is hardly objective”. Borzych
v. Frank, 439 F.3d 388, 391 (7th Cir. 2006) (Easterbrook, J.).
Moussazadeh’s alternative solution–that he and other Orthodox Jewish
inmates be guaranteed they will never be transferred away from
Stringfellow–presents a similarly obvious security concern. Stringfellow is not
designed to house TDCJ’s most dangerous inmates, and introducing some of
those offenders into Stringfellow’s environment would change the facility’s entire
character. Pursuant to the Supreme Court’s admonition in Cutter,
Moussazadeh’s religious diet cannot be elevated above these legitimate security
concerns. 544 U.S. at 723.
Moreover, TDCJ has presented legitimate concerns that granting
Moussazadeh special treatment will not end there. For example, the cost and
security concerns associated with providing him free kosher meals at one of
TDCJ’s most dangerous prisons would likely multiply, as “inmates of other faiths
would seek similar privileges”. Baranowksi, 486 F.3d at 118 (quoting testimony
29
Case: 09-40400 Document: 00512093372 Page: 30 Date Filed: 12/21/2012
No. 09-40400
of TDCJ official).
These are but a few examples of the legitimate security and cost burdens
TDCJ has resolved. The majority should have deferred to the judgment of prison
officials on these questions and, accordingly, affirmed the summary judgment.
B.
Moreover, in assessing whether to affirm the summary judgment on the
remanded issues, the majority refuses to recognize what truly is at issue.
Moussazadeh’s disciplinary violations have caused this litigation to drag on.
They should be an important factor in affirming the summary judgment.
When housed at Stringfellow, Moussazadeh was given exactly what he
seeks now: kosher food provided free of charge in the prison dining hall. He is
no longer housed at Stringfellow–not because TDCJ chose to move him away
from the kosher kitchen there, but because prison officials found cellular phone
parts, cash, an iPod, hand-rolled cigarettes, a lighter, and marijuana in his cell.
This major disciplinary infraction, which the majority glosses over, Maj. Opn. at
3, 6, downgraded Moussazadeh’s security status; as a result, he was no longer
eligible for housing at Stringfellow. Therefore, he was moved because of his
refusal to follow well-known and necessary prison rules against contraband; yet
TDCJ made a special effort to continue accommodating his claimed desire to
keep kosher by transferring him to Stiles, where he could buy kosher food.
Once there, Moussazadeh did not reform his behavior in order to improve
his security status and earn a transfer back to Stringfellow. On the contrary, his
wife smuggled more cellular phone parts to him during a visit to Stiles. Further,
even though he has been eligible for transfer back to Stringfellow during part of
his time at Stiles, as of oral argument for this appeal he had never requested the
transfer. At base, Moussazadeh is demanding what he had not even tried to
obtain for himself. Worse, he is seeking to undermine the prison system’s
disciplinary process. The district court recognized this fault on the inmate’s
30
Case: 09-40400 Document: 00512093372 Page: 31 Date Filed: 12/21/2012
No. 09-40400
part. Yet the majority, in refusing summary judgment to TDCJ, does not
consider the conduct a factor in its decision.
The Texas prison system should not be required to choose between: giving
up its right to transfer, for disciplinary reasons, inmates who keep kosher; or
incurring financial and security hardships in order to accommodate, even more
robustly than it already does, such inmates when they commit disciplinary
violations. Our precedent is unequivocal in holding RLUIPA is not meant to
impose such hardships on prison officials’ ability to perform their difficult and
dangerous jobs. Baranowski, 486 F.3d at 125.
III.
Consistent with RLUIPA, proper deference must be accorded decisions by
prison officials. And, Moussazadeh’s conduct in prison should result in even
more deference being accorded. Unfortunately, the majority does just the
opposite. Therefore, I must respectfully dissent from the summary judgment’s
not being affirmed.
31