Case: 23-40216 Document: 92-1 Page: 1 Date Filed: 09/11/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40216
FILED
September 11, 2024
____________
Lyle W. Cayce
Keith M. Cole, Clerk
Plaintiff—Appellant,
versus
Bryan Collier; Texas Department of Criminal Justice;
Mary Gilder; Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:20-CV-15
______________________________
Before Wiener, Elrod, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Keith M. Cole adheres to the Bahá’í faith. He is also a prisoner in the
Texas Department of Criminal Justice. It is his sincerely held religious belief
that he must eat non-pork meat with every meal. But TDCJ only provides
non-pork meat in about two-thirds of its meals. Cole sued the prison for
violating his rights under the Religious Land Use and Institutionalized
Persons Act. The district court held that TDCJ has a compelling interest in
controlling costs and that its meal-selection policy was the least restrictive
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No. 23-40216
means of furthering that interest. Because TDCJ provided no evidence
supporting its compelling interest nor demonstrating that its current policy
was the least restrictive means of furthering that asserted interest, we
VACATE and REMAND for further proceedings consistent with this
opinion.
I
Cole is incarcerated in the Stiles Unit of the Texas Department of
Criminal Justice, Correctional Division. Cole is a devout member of the
Bahá’í faith. As part of his faith, Cole believes that he must abstain from
eating pork and that he is required to eat non-pork meat with every meal. The
Texas Department of Criminal Justice does not provide non-pork meat for
every meal that it serves. In fact, Cole maintains that approximately onethird of lunch and dinner meals do not contain non-pork meat.
TDCJ provides three menu options for each meal: (1) a regular tray,
which includes all items offered in the serving line for that meal; (2) a meatfree tray, which excludes any meat in the serving line; and (3) a pork-free tray,
which excludes any pork that is offered in the serving line. Options (2) and
(3) replace the excluded items with non-meat items such as cheese, beans,
eggs, or peanut butter and jelly sandwiches. Importantly, TDCJ never
replaces the excluded items with meat.
In addition, inmates are able to purchase non-pork meat from the
commissary using personal funds. Indeed, Cole supplemented his TDCJprovided diet with foods from the commissary including frequent purchases
of non-pork meat. The cost of non-pork meat items at the commissary ranges
from $0.95 (for a mackerel fillet) to $4.25 (for roast beef and gravy). Over
the years, Cole has spent hundreds of his own dollars purchasing foods from
the commissary in order to maintain his religious diet. And he expects to
continue to incur this expense under current TDCJ policy.
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No. 23-40216
II
After exhausting TDCJ’s “Offender Grievance Procedure,” Cole
filed this lawsuit pro se against TDCJ and various TDCJ officials (Lorie
Davis, 1 Bryan Collier, and Mary Gilder). 2 He alleged violations of the
Religious Land Use and Institutionalized Persons Act (codified at 42 U.S.C.
§ 2000cc–1(a)) by TDCJ when it refused to provide him with non-pork meat
for each meal as required by his sincere religious beliefs. Cole sought
equitable relief but stated that he would accept any damages award that the
court thought proper.
Defendants moved for summary judgment, asserting that TDCJ
policy did not substantially burden Cole’s exercise of his religious beliefs
because he could purchase non-pork meat from the commissary to
supplement his meals. In the alternative, defendants argued without
evidentiary support that TDCJ’s meal-selection plan is the least restrictive
means of furthering a compelling interest in controlling resources and the
cost of food service.
The magistrate judge concluded that “Defendants have shown that
they have a compelling interest in controlling its [sic] resources and the costs
of food service, and their meal selection plan is the least restrictive means of
accommodating various dietary needs of the entire inmate population.”
Over Cole’s objection, the district court adopted the report and
recommendation of the magistrate judge on March 24, 2023, noting that
_____________________
1
Lorie Davis was the Director of the Texas Department of Criminal Justice,
Correctional Institutions Division when Cole initiated this lawsuit. She has since been
replaced by Bobby Lumpkin.
2
In his complaint, Cole states that he is suing Davis (now Lumpkin), Collier, and
Gilder in their official capacities. In addition, Cole’s complaint references claims against
Gilder in her individual capacity.
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“TDCJ’s food service policies further a compelling interest in controlling
costs, and the policies are the least restrictive means to advance those
interests.” The district court promptly entered Final Judgment, and Cole
timely appealed.
III
This court “reviews the district court’s summary judgment ruling de
novo.” Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020) (citing
Windham v. Harris Cnty.,
875 F.3d 229, 234 (5th Cir. 2017)). Summary
judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). When evaluating a motion for
summary judgment, we “must view the evidence in the light most favorable
to the nonmoving party and draw all reasonable inferences in that party’s
favor.” Cadena,
946 F.3d at 723 (citing SEC v. Kahlon,
873 F.3d 500, 504
(5th Cir. 2017)).
The Religious Land Use and Institutionalized Persons Act “prohibits
a state or local government from taking any action that substantially burdens
the religious exercise of an institutionalized person unless the government
demonstrates that the action constitutes the least restrictive means of
furthering a compelling governmental interest.” Holt v. Hobbs, 574 U.S. 352,
356 (2015) (citing 42 U.S.C. § 2000cc–1). “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). Specifically, RLUIPA states that:
No 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
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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.
42 U.S.C. § 2000cc–1. RLUIPA effectively codified strict scrutiny as the
rule of decision for religious free exercise cases brought by prisoners against
institutions that receive federal funding. 3 See id.
Under RLUIPA, the plaintiff bears the burden of establishing that:
(1) his religious belief is sincerely held; 4 and (2) that government policy
substantially burdens the exercise of that sincere belief. Holt, 574 U.S. at
360–61.
If the plaintiff makes such a showing, the burden then shifts to the
government to demonstrate that: (1) its policy is in furtherance of a
compelling governmental interest; and (2) its policy is the least restrictive
means of furthering that compelling governmental interest. Id. at 362.
_____________________
3
RLUIPA’s sister statute, the Religious Freedom Restoration Act, contains
substantially similar language. See 42 U.S.C. § 2000bb et seq. RFRA was passed in
response to the Supreme Court’s decision in Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990). That case held that neutral laws of
general applicability generally do not violate the First Amendment’s Free Exercise Clause.
Holt, 574 U.S. at 356–57 (citing Smith, 494 U.S. at 878–82). In reaching that determination,
the Court largely renounced traditional balancing under strict scrutiny. See, e.g., Wisconsin
v. Yoder,
406 U.S. 205, 214, 219 (1972) (exemplifying strict-scrutiny-style balancing);
Sherbert v. Verner,
374 U.S. 398, 403, 406 (1963) (same).
Congress relied on Section 5 of the Fourteenth Amendment to make RFRA
applicable to the States. But in City of Boerne v. Flores, the Supreme Court held that RFRA
exceeded Congress’s authority under that section. 521 U.S. 507, 532–36 (1997). In
response to City of Boerne, Congress—this time invoking its Spending and Commerce
Clause authority—enacted RLUIPA. See Holt, 574 U.S. at 357.
4
The government does not challenge the sincerity of Cole’s religious beliefs.
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A
The district court did not decide whether Cole’s religious exercise is
substantially burdened by TDCJ policy. Instead, it concluded that the policy
is the least restrictive means of furthering a compelling governmental interest
in controlling costs. That determination was erroneous. Indeed, at oral
argument, counsel for Defendants disclaimed any reliance on the compelling
interest and least restrictive means prongs of RLUIPA. Counsel further
conceded that there was no evidence in the record to support a finding that
TDCJ policy is the least restrictive means of furthering a compelling
governmental interest in controlling costs.
Bare assertions of increased costs do not automatically satisfy the
requirement of a compelling governmental interest. In fact, as part of
RLUIPA itself, Congress explicitly stated that “this chapter may require a
government to incur expenses in its own operations to avoid imposing a
substantial burden on religious exercise.” 42 U.S.C. § 2000cc–3(c). If the
relevant statute contemplates increased government expenditures, then it
stands to reason that invocation of cost—absent evidence—is insufficient to
establish a compelling interest.
When analyzing whether the government has a compelling interest,
“RLUIPA requires us to Bscrutiniz[e] the asserted harm of granting specific
exemptions to particular religious claimants’ and Bto look to the marginal
interest in enforcing’ the challenged government action in that particular
context.” Holt, 574 U.S. at 363 (alteration in original) (quoting Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27 (2014)); see also Ali v. Stephens,
822 F.3d 776, 792 (5th Cir. 2016) (“In determining whether a cost is
compelling, a court may need to Bput th[e] amount in perspective’ by
measuring the projected expense against the resources devoted to that
interest.” (alteration in original) (quoting Moussazadeh v. Texas Dep’t of
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Crim. Just., 703 F.3d 781, 795 (5th Cir. 2012))). This is a necessarily
comparative analysis. But with no evidence in the record of the cost of
accommodating Cole’s religious requests, it is impossible to perform the
required analysis.
The Seventh Circuit addressed a similar situation in a case where the
plaintiff requested religiously required food for a single feast. Schlemm v.
Wall, 784 F.3d 362 (7th Cir. 2015). It held that the government was not
entitled to summary judgment.
Id. at 365.
Wisconsin fears that every prisoner would demand a religious
diet that requires daily, person-specific preparation so
expensive that in the aggregate the costs of compliance would
be crippling and the need to avoid them Bcompelling.’ But it
has not tried to estimate what it would cost to honor
Schlemm’s request; expense may be negligible . . . . [A]nd the
costs of accommodating other inmates’ requests (should any
be made) can be left to future litigation.
Id. at 365–66. The same is true for Cole.
Even if it could be said that TDCJ has a compelling interest in limiting
expenses, TDCJ would need to demonstrate that its current meal-selection
plan is the least restrictive means of furthering that interest. In other words,
TDCJ would need to demonstrate that there is no cheaper method of
accommodating Cole’s religious practices. “BThe least-restrictive-means
standard is exceptionally demanding,’ and it requires the government to
Bsho[w] that it lacks other means of achieving its desired goal without
imposing a substantial burden on the exercise of religion by the objecting
part[y].’” Holt, 574 U.S. at 364–65 (alterations in original) (quoting Hobby
Lobby, 573 U.S. at 728).
Defendants provided no evidence to meet their burden at summary
judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
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(en banc) (“If the moving party fails to meet this initial burden, the motion
must be denied.”). Thus, we cannot say—based on the non-existent
evidence provided—that TDCJ has used the least restrictive means of
furthering a compelling governmental interest.
At bottom, TDCJ’s “argument is but another formulation of 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.” Holt, 574 U.S.
at 368 (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546
U.S. 418, 436 (2006)). Just as the Supreme Court did in Holt, we reject this
argument.
Id. RLUIPA and the summary judgment standard require more.
…
Because Defendants provided no evidence to meet their burden at
summary judgment of demonstrating both a compelling governmental
interest and that they used the least restrictive means of furthering that
alleged interest, summary judgment should not have been granted. We
VACATE and REMAND to the district court for further proceedings
consistent with this opinion.
8
