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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40116
April 11, 2024
____________
Lyle W. Cayce
Eric Demond Lozano, Clerk
Plaintiff—Appellant,
versus
Bryan Collier; Lorie Davis; Lettie Watkins,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:18-CV-237
______________________________
Before Clement, Haynes, and Oldham, Circuit Judges.
Per Curiam:
Plaintiff Eric Demond Lozano, a Texas state prisoner and Sunni
Muslim, appeals the district court’s order granting summary judgment on
various claims related to his ability to practice Islam in prison. For the
reasons that follow, we REVERSE the district court’s order granting
summary judgment on two of his claims alleging violations of the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §
2000cc-1, and VACATE the order granting summary judgment on his third
RLUIPA claim and his Establishment Clause claim. We REMAND to the
district court for further proceedings consistent with this opinion.
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I. Background
A. Factual Background
Lozano is a Texas state prisoner and Sunni Muslim. As part of his
faith, Lozano engages in Jumah, a weekly prayer service that begins with a
holy obligation to cleanse oneself physically and spiritually. The Texas
Department of Criminal Justice (“TDCJ”) has a policy relating to Jumah,
which states that the TDCJ must “allow Muslim offenders to shower prior
to their Jumah service in order to meet their holy obligation for cleanliness in
prayer.” The Stringfellow Unit allows Muslim inmates to shower prior to
Jumah in accordance with this policy but also permits non-Muslim inmates
to shower at the same time. This has resulted in Muslim inmates having to
perform their religious showers while those around them are “masturbating
in the shower, cussing, [and] speaking idol talk,” with feces on the floor from
sexual conduct, even though Muslims are supposed to shower in silent prayer
before Jumah services.
Lozano also has a religious obligation to pray five times per day. His
faith requires that during these prayers he must “stand, bow, and prostrate.”
Moreover, if anyone invades his space while praying, his “prayer is void.”
During his time in the Stringfellow Unit, Lozano has not had sufficient space
to pray and has been assigned to cellmates hostile to Islam who have tried to
fight him and have threatened violence while he attempts to pray in the cell.
For example, one of his former cellmates believed that he was a “terrorist”
and “felt that [he] was trying to take the cell[] over” when he prayed. He
cannot pray in his bunk because it is physically too small for him to stand,
bow, and prostrate as required.
When Lozano requested either an individual cell or the ability to pray
in the chapel, the TDCJ responded that there were no single offender cells
that could permanently house him. The TDCJ has also since justified its
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denial by pointing to his ability to pray in his cell or during religious services,
his ability to report his cellmates and request transfers, and the fact that it is
his cellmates, not the TDCJ’s policies, that burden his ability to pray. After
one complaint, the TDCJ responded by threatening to put Lozano in a cell
“with someone who will hurt” him. Throughout this time, Orthodox Jewish
inmates were allowed to pray in the chapel unsupervised six days a week for
an hour and a half each day.
Lozano also believes that Muslims are required to engage in Taleem,
which he describes as the Muslim equivalent of Sunday School, and Quranic
studies. Taleem is required because it “is the means by which [Muslims]
learn about the religion and how to properly practice it.” Before 2019, the
TDCJ allowed Muslim inmates to attend Taleem and Quranic studies
without an outside volunteer present due to a Prison Litigation Reform Act
(PLRA) consent decree. Brown v. Collier, 929 F.3d 218, 224 (5th Cir. 2019).
The Stringfellow unit had Taleem on an almost weekly basis and Lozano
attended every week. We decided Brown on July 2, 2019, determining that
the consent decree was broader than necessary and dissolving it.
Id. at 254
(King, J., concurring). The TDCJ almost immediately stopped Taleem
services for Muslim inmates after this decision. The TDCJ relied on Policy
AD-07.30, which states that “additional [religious] programming shall be
scheduled dependent upon availability of time, space, security, and an
approved volunteer.” The record reflects that, at least in the Stringfellow
Unit, Taleem has not occurred in the more than three and a half years since
Brown. In response to Lozano’s multiple grievances concerning the complete
lack of Taleem, the TDCJ has responded that “no freeworld person is
interested in serving as a volunteer for them on our unit” and “we’re only
required to offer them one hour per week . . . which we do.” Currently, the
TDCJ has only filled two of the five Chaplaincy positions. Among other
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responsibilities, Chaplains are the employees responsible for recruiting the
volunteers on whom most religious services in prison are dependent.
B. Procedural History
After exhausting his administrative remedies, Lozano, proceeding pro
se, filed a federal civil rights lawsuit against three officials in the TDCJ: Bryan
Collier, Executive Director of the TDCJ; Lorie Davis, Director of the TDCJ;
and Lettie Watkins, a TDCJ chaplain at the Stringfellow Unit (collectively,
the “TDCJ Defendants”). He asserted claims under 42 U.S.C. § 1983 and
RLUIPA, 1 and sought monetary damages as well as equitable relief in the
form of a temporary restraining order and preliminary injunction.
In his first RLUIPA claim, Lozano alleges that the TDCJ Defendants
burdened his religious exercise by denying him the opportunity to shower
privately with other Muslim inmates for Jumah. He alleges that the shower
conditions—which include inmates who are “naked, cussing, speaking idol
talk” and inmates who are “homosexuals and predators”—make it
impossible for him to meet his “holy obligation for cleanliness in prayer for
Jumah” and are “a violation against Islam.”
Lozano’s second RLUIPA claim, alleges that the TDCJ defendants
burdened his religious liberty by denying him a private cell to pray.
Specifically, Lozano alleges that he cannot adequately pray because he does
not have space in his bunk to pray, and that other inmates in his cell intruded
into his prayer space and tried to provoke him to fight them during his
attempts to pray. Because of this, Lozano alleged that he had to forgo prayer
many times, which violates his faith.
_____________________
1
Lozano’s complaint never explicitly cited § 1983. But he eventually clarified his
§ 1983 cause of action in response to the TDCJ Defendants’ motion to dismiss.
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Lozano’s third RLUIPA claim involves an alleged lack of access to
religious programming and instruction, namely, Taleem and Quranic studies.
Currently, the TDCJ provides at least an hour of religious programming for
religious inmates. For Muslim inmates, that hour is used for Jumah.
Additional religious programming is available if, inter alia, an approved
volunteer is available to lead it. According to Lozano, there are not enough
Muslim volunteers to facilitate additional programming, such as Taleem and
Quranic studies, and the TDCJ’s treatment of volunteers discourages
volunteer participation. Lozano contends that the solution to this problem is
to either (1) designate a Muslim unit near a large Muslim population to
facilitate more volunteers, or (2) designate a Muslim dorm equipped with
TVs, DVDs, and CD players to enable Muslim inmates to conduct Taleem
and Quranic studies without a volunteer.
In his § 1983 claim, Lozano contends that the existence of Jewish- and
Native-American-designated units, and the absence of a Muslim-designated
unit, constitutes a neutrality problem and violates the Establishment Clause.
Lozano also alleges that the TDCJ’s faith-based dormitories have a
curriculum that requires inmates to attend Christian-based classes, despite
the faith-based dorms being nominally open to inmates of all religions.
According to Lozano, inmates who do not take the Christian-based classes
are kicked out of the faith-based dorms. Lozano argues that this favors
Christianity and constitutes an Establishment Clause violation.
After initial motion practice, which disposed of Lozano’s claims to the
extent they sought monetary damages, the TDCJ Defendants moved for
summary judgment. The district court granted the motion in full. After the
district court denied Lozano’s motion for reconsideration, Lozano timely
appealed. On appeal, counsel was appointed to represent Lozano.
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II. Jurisdiction & Standard of Review
The district court had jurisdiction over Lozano’s federal civil rights
lawsuit under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over the
district court’s final judgment pursuant to
28 U.S.C. § 1291. 2
We review a district court’s summary judgment order de novo. See
Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 414 (5th Cir. 2021).
Summary judgment is proper “if 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). “If the moving party fails to meet
its initial burden, the motion for summary judgment must be denied,
regardless of the nonmovant’s response.” Duffie v. United States,
600 F.3d
362, 371 (5th Cir. 2010) (quotation omitted). All facts and inferences must
be construed “in the light most favorable to the nonmoving party.” Dillon v.
Rogers,
596 F.3d 260, 266 (5th Cir. 2010) (citation omitted).
III. Discussion
Lozano raises two issues on appeal: (1) whether the district court erred
by granting summary judgment on his RLUIPA claims; and (2) whether the
_____________________
2
At oral argument, the TDCJ Defendants raised for the first time an argument that
because the TDCJ transferred Lozano from the Stringfellow Unit to the LeBlanc Unit after
the district court issued its summary judgment order, Lozano’s claims are moot. We
disagree. The TDCJ Defendants conceded at oral argument that Lozano has been
transferred between the Stringfellow Unit and the LeBlanc Unit before, and we are not
satisfied that the TDCJ will not simply transfer him back to the Stringfellow Unit after the
case has concluded. Because of the possibility (indeed, likelihood) of transferring him back
and forth to avoid consideration of these issues, this case involves the exception to
mootness known as “capable of repetition, yet evading review.” Davis v. Fed. Election
Comm’n, 554 U.S. 724, 735 (2008) (quotation omitted).
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district court erred by granting summary judgment on his Establishment
Clause claim. 3 We address each issue in turn.
A. RLUIPA Claims
RLUIPA prohibits the imposition of 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 burden
“(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(a).
We apply RLUIPA using a burden-shifting framework. Ali v.
Stephens, 822 F.3d 776, 782 (5th Cir. 2016). The plaintiff must first show that
the government has substantially burdened the plaintiff’s religious exercise
grounded in a sincerely held religious belief. 4
Id. at 782–83; Holt v. Hobbs,
574 U.S. 352, 360–61 (2015). “[A] government action or regulation creates
a ‘substantial burden’ on a religious exercise if it truly pressures the adherent
to significantly modify his religious behavior and significantly violate his
religious beliefs.” Adkins v. Kaspar,
393 F.3d 559, 570 (5th Cir. 2004).
“[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,
_____________________
3
Lozano also brought an Equal Protection claim against the TDCJ Defendants, on
which the district court also granted summary judgment. However, neither Lozano nor his
pro bono counsel argue that the district court erred in doing so. Accordingly, he has abandoned appellate review of the district court’s disposition of that claim. See Fishback
Nursery, Inc. v. PNC Bank, Nat’l Ass’n, 920 F.3d 932, 940 (5th Cir. 2019) (concluding an
issue is waived when a party does not raise it on appeal).
4
The TDCJ Defendants do not dispute the sincerity of Lozano’s religious beliefs
or whether the activities that the TDCJ Defendants are allegedly burdening constitute a
religious exercise.
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enjoying some generally available, non-trivial benefit, and, on the other hand,
following his religious beliefs.” Id.
Once the plaintiff has established a substantial burden, the burden
shifts to the government to prove that the relevant policy is the least
restrictive means of a furthering a compelling government interest. Holt, 574
U.S. at 362. RLUIPA “requires the Government to demonstrate that the
compelling interest test is satisfied through application of the challenged law
‘to the person’—the particular claimant whose sincere exercise of religion is
being substantially burdened.” Id. (quoting Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682, 726 (2015)). Additionally, “‘the least-restrictive-means
standard is exceptionally demanding,’ and it requires the government to
‘show that it lacks other means of achieving its desired goal without imposing
a substantial burden on the exercise of religion by the objecting party.’”
Id.
at 364–65 (quoting Hobby Lobby, 573 U.S. at 728) (alterations adopted). “If
a less restrictive means is available for the Government to achieve its goals,
the Government must use it.” Id. at 365 (alteration adopted) (quoting United
States v. Playboy Ent. Grp., Inc.,
529 U.S. 803, 815 (2000)).
1. Jumah showers
a. Substantial Burden
Lozano contends that there is a genuine dispute of material fact on
whether showering with non-Muslim inmates before Jumah services
substantially burdens his ability to practice Islam. Specifically, he contends
that showering with non-Muslim inmates interferes with his ability to
physically and spiritually cleanse himself and points to sworn testimony,
among other evidence, to create a genuine dispute of material fact. The
TDCJ Defendants, on the other hand, argue that Lozano is afforded
sufficient time and space to shower before his Friday Jumah services and that
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he can comply with his modesty obligations by wearing boxer shorts in the
shower while in the company of others.
We agree with Lozano that there is a genuine dispute of material fact
on whether the TDCJ Defendants substantially burden his ability to practice
Islam. Lozano presented evidence, through sworn testimony and verified
pleadings, that Islam requires him to physically and spiritually cleanse
himself for Jumah, that showering with non-Muslim inmates who engage in
certain behavior does not allow him to do so, and that this causes him to
violate his sincerely held religious beliefs. See Adkins, 393 F.3d at 570.
The TDCJ Defendants’ arguments to the contrary are unavailing. 5
First, although the time and space restrictions that the TDCJ Defendants
cited may prove relevant to the compelling-interest analysis, they are not
germane to whether Lozano faces a substantial burden. Cf. Holt, 574 U.S. at
361–62 (analyzing state’s rationale under second step of RLUIPA analysis).
Second, Lozano’s concern about modesty is only one aspect of the substantial
burden that the application of the shower policy allegedly imposes on him.
Wearing boxer shorts does not address Lozano’s concern that showering
with other inmates who are, inter alia, “naked, cussing, [and] speaking idol
talk” makes it impossible for him to meet his “holy obligation” for physical
and spiritual “cleanliness in prayer for Jumah.” So, Lozano’s lack of
evidence to refute these points does not warrant summary judgment on his
Jumah-shower claim.
_____________________
5
The district court took issue with the fact that Lozano did not report any specific
threats from other inmates that took place in the shower, but, notably, the TDCJ
Defendants have not pressed this issue on appeal. That is probably because the substantial
burden that Lozano alleges does not explicitly mention threats from other inmates.
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b. Least Restrictive Means and Compelling Governmental
Interest
Turning to the next step in the analysis, the TDCJ Defendants broadly
assert that their current shower policy is the least restrictive means of
furthering a compelling interest in efficient shower schedules based on time,
space, and staffing limitations. But this is not enough to satisfy their burden.
RLUIPA requires a more individualized showing so that courts may
“scrutinize the asserted harm of granting specific exemptions to particular
religious claimants and to look to the marginal interest in enforcing the
challenged government action in that particular context.” Holt, 574 U.S. at
363 (cleaned up) (quoting Hobby Lobby, 573 U.S. at 726–27)). Here, the
TDCJ Defendants have not satisfied their burden of explaining why
specifically it is not possible to restrict weekly Jumah showers to only Muslim
inmates for some relatively short period of time (i.e., it would not have to be
all day).
Moreover, Lozano has presented evidence that inmates at the
Stringfellow Unit who work as janitors, hall porters, and kitchen staff are
allowed to shower as separate groups. That the TDCJ Defendants’
“proffered objectives are not pursued with respect to analogous nonreligious
conduct . . . suggests that those interests could be achieved by narrower
ordinances that burdened religion to a far lesser degree.” See Holt, 574 U.S.
at 368 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,
546 (1993)). Accordingly, the TDCJ Defendants have not carried their
burden to establish that the current shower policy is the least restrictive
means of furthering a compelling government interest.
For these reasons, we hold that the district court erred by granting
summary judgment on Lozano’s RLUIPA claim regarding Jumah showers.
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2. Adequate prayer space
a. Substantial Burden
On his RLUIPA claim regarding adequate prayer space, Lozano
argues that the district court erred in granting summary judgment because
there was a genuine dispute of material fact on whether his housing
conditions and assigned cellmates substantially burdened his ability to pray.
We agree.
First, a genuine fact issue exists regarding whether Lozano has
adequate space to pray. Although the TDCJ Defendants presented evidence
that Lozano had adequate space to pray in his dorm, Lozano asserted in his
verified response to the TDCJ Defendants’ summary judgment motion that
“[w]e get moved everyday, week, month, year, to a different cell . . . for no
reason.” To that point, he stated in his verified motion for reconsideration
that he had since been moved from the dorm to a traditional cell with more
limited space. 6 Regarding his ability to pray on a bunk, he stated that “it’s
impossible to pray on the bunk because the bottom and top bunks are too
close to stand and the top bunk is too close to the ceiling to stand.” Lozano
also presented evidence that it would be a violation of TDCJ rules to stand
on his bunk. Although the TDCJ Defendants argue that Lozano would not
face discipline for praying in his cell, they say nothing to refute his assertion
that he would face discipline for attempting to stand on his bunk.
Second, Lozano’s concerns go beyond the alleged lack of adequate
space to pray. Even assuming arguendo that Lozano has adequate space to
pray, that does not address the problem of other inmates allegedly invading
_____________________
6
Lozano also stated in his appellate brief that he does not have adequate space to
pray in the LeBlanc Unit because he is being housed in a pod with only a foot and a half
between bunks.
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his prayer space, which renders his prayers void, and attempting to fight him
while he tries to pray. The TDCJ Defendants do not dispute that these issues
are occurring to Lozano; instead, they deny that they are responsible for the
“discomfort” caused by other inmates. We disagree. The TDCJ Defendants
are directly responsible for Lozano’s housing conditions, including where he
is housed, with whom he shares a cell, and even if he shares a cell. As the
Supreme Court has recognized, 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 religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
The TDCJ Defendants also contend that Lozano failed to report the
alleged interference of other inmates. But Lozano did report the interference
of other inmates to the TDCJ when he submitted a grievance to exhaust his
administrative remedies, as is required to bring a RLUIPA claim. See 42
U.S.C. § 1997e(a). In response, the TDCJ summarily denied his grievance,
stating that it had “been investigated” and “[n]o further action is
warranted.” Further, Lozano stated in a sworn declaration that he filed a
grievance for the same issue while he was housed in the LeBlanc Unit, and
the TDCJ denied him relief.
Finally, we disagree with the notion that because other Muslim
inmates allegedly can pray regularly, the TDCJ Defendants are entitled to
summary judgment on this RLUIPA claim. RLUIPA requires a tailored
analysis of Lozano’s individual situation. See Holt, 574 U.S. at 362–63. Here,
Lozano has presented sufficient evidence to raise a genuine issue of material
fact on whether his ability to pray in accordance with his religious obligations
has been substantially burdened.
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b. Least Restrictive Means and Compelling Governmental
Interest
Next, we consider whether the TDCJ Defendants established that
Lozano’s housing conditions are the least restrictive means of furthering a
compelling government interest.
The TDCJ Defendants argue that they have a compelling government
interest in managing limited facility space and staffing, and that directing
inmates to pray in their cells is the least restrictive means of furthering that
interest. They relied on an affidavit from the Stringfellow Unit’s warden
stating that the unit does not have single cells available for permanent
assignment because they are reserved for temporary use. The affidavit also
states that, although Lozano’s security status permits him to move through
the unit unescorted, an officer would be required to supervise his prayers in
the Chapel if he were allowed to use that space for his daily prayers. Another
concern raised in the affidavit is whether Lozano’s use of the chapel for
prayer would conflict with other scheduled activities throughout the day.
We disagree with the TDCJ Defendants. First, Lozano presented
evidence that Orthodox Jewish inmates in the Stringfellow Unit are allowed
to pray in the chapel, unsupervised, six days a week. The TDCJ Defendants,
on whom the burden rests at this stage of the analysis, did not contest this
evidence, and the district court did not address it. RLUIPA, however,
requires that “[i]f a policy is underinclusive, the state must provide an
adequate explanation for its differential treatment in order to avoid the
conclusion that the policy does not serve a compelling interest.” Tucker v.
Collier, 906 F.3d 295, 305 (5th Cir. 2018) (internal quotation marks and
citation omitted).
Second, the TDCJ Defendants fail to foreclose the availability of
alternative means of furthering their alleged compelling interest. See Ramirez
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v. Collier, 595 U.S. 411, 432 (2022) (“Texas does nothing to rebut these
obvious alternatives, instead suggesting that it is [plaintiff’s] burden to
identify any less restrictive means. That gets things backward.” (internal
quotation marks and citation omitted)). For example, the TDCJ Defendants
have not explained why they cannot assign Lozano to an adequately spaced
cell with another Muslim inmate who will respect his religious practices. Nor
have they explained why Lozano could not use one of the single cells reserved
for temporary use to pray intermittently throughout the day, even if he is not
housed in one permanently. Finally, as discussed above, the TDCJ
Defendants have not explained why Lozano specifically cannot pray in the
chapel unsupervised like the Orthodox Jewish inmates. Perhaps the TDCJ
Defendants can adequately explain why these alternative means are not
feasible, but they have not done so at this stage. Accordingly, the TDCJ
Defendants have not carried their burden to establish that Lozano’s housing
conditions are the least restrictive means of furthering a compelling
government interest.
We therefore hold that the district court erred by granting summary
judgment on Lozano’s RLUIPA claim regarding adequate prayer space.
3. Access to religious programming and instruction
a. Substantial Burden
On his RLUIPA claim regarding access to additional religious
programming, 7 Lozano contends that the district court erred in granting
_____________________
7
The parties and the district court framed this RLUIPA claim as alleging that the
absence of a Muslim-designated unit or dorm substantially burdened Lozano’s religious
exercise. But we construe Lozano’s complaint as alleging that his lack of access to
additional religious programming, as a result of the TDCJ’s volunteer requirement and the
absence of a Muslim designated dorm, constitutes a substantial burden. Accordingly,
whether a Muslim-designated unit would solve this problem is most germane to the second
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summary judgment because there was a genuine fact issue on whether the
religious dorm and unit designations have been neutrally applied across all
religions; whether the TDCJ has adequately sought to recruit Muslim
Chaplains and volunteers; and whether a Muslim dorm or unit would
enhance Lozano’s access to religious programming and resolve his
substantial burden. The TDCJ Defendants argue that the lack of additional
religious programming is due to a lack of Muslim volunteers, not the policies
or actions of the TDCJ, and that our decision in Brown v. Collier forecloses
this RLUIPA claim.
The district court held that Lozano did not cite any evidence that a
Muslim-designated unit or dorm would create opportunities for additional
Muslim programming. Acknowledging Lozano’s allegation that the TDCJ
discouraged Muslim volunteers through various practices, the district court
held that mere allegations were insufficient to prevent summary judgment.
Additionally, the district court agreed with the TDCJ Defendants that
Lozano’s claim was foreclosed by Brown v. Collier.
For the reasons that follow, we vacate and remand to the district court
to reconsider whether a genuine issue of material fact precludes summary
judgment on Lozano’s claim that his lack of access to religious programming
constitutes a substantial burden. First, Lozano presented summary judgment
evidence regarding the TDCJ’s alleged discouragement of Muslim
volunteers. “On summary judgment, factual allegations set forth in a verified
complaint may be treated the same as when they are contained in an
affidavit.” Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003). Lozano
alleged in his verified complaint that the TDCJ (1) discriminates against
_____________________
step of the analysis. See Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam)
(“A pro se complaint is to be construed liberally.” (emphasis omitted)).
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Muslim volunteers “because of ISIS and other non popular Islamic terrorist
groups that do terrible things in the name of Islam”; (2) “make[s] [Muslim]
volunteers sit in the parking lot over an hour or turn[s] them around for no
apparent reason to stop Taleem services etc.”; and (3) neglects to “call these
volunteers to let them know” when “units are on lockdown or services [have
been] cancelled for the week,” causing volunteers to be turned away after
going through the trouble of travelling to the facility.
Second, we disagree that Brown necessarily forecloses Lozano’s claim
of a substantial burden regarding his lack of access to religious programming.
In Brown, we held that a 1977 Consent Decree exempting Muslim inmates
from the TDCJ’s requirements regarding supervision of religious activities
did not remain necessary to correct current and ongoing violations of federal
law, including RLUIPA. 929 F.3d at 224. In so holding, we discussed a line
of other cases that addressed whether the TDCJ’s supervision requirement
imposed a substantial burden on religious practices. First, in Adkins, we held
that the TDCJ’s volunteer requirement did not substantially burden an
inmate’s inability to assemble on each of his religion’s holy days because the
TDCJ applied the policy uniformly.
393 F.3d at 566, 571. In Baranowski v.
Hart, we reached a similar conclusion.
486 F.3d 112, 124–25 (5th Cir. 2007).
But the Brown panel stated that this line of cases did not create a “per se rule”
and that the substantial burden inquiry “requires a case-by-case, fact-specific
inquiry.” Brown,
929 F.3d at 230 (quotation omitted). The next case the
Brown panel discussed, Mayfield v. Texas Department of Criminal Justice,
529
F.3d 599 (5th Cir. 2008), proves the point.
In Mayfield, we held that “the district court erred in concluding that,
as a matter of law, [a volunteer requirement for additional religious
programming] did not result in a substantial burden on [plaintiff’s] religious
exercise.” 529 F.3d 599, 614 (5th Cir. 2008). The Mayfield panel explained
that an Odinist volunteer was only available every eighteen months, and that
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No. 22-40116
unlike the situation in Adkins, there was no evidence that new volunteers
would likely become available to reduce the burden on plaintiff’s ability to
exercise their religion in a group. Id. The Mayfield panel also distinguished
Adkins on the basis that the Mayfield plaintiff “presented evidence [that] calls
into question the uniformity of the policy’s application.”
Id. Finally, the
panel noted that, unlike in Adkins, the plaintiff in Mayfield did not have
“access to alternative means of worship,” such as religious literature, video
tapes, and audio tapes.
Id. at 614–15. Accordingly, the Mayfield panel held
that such factual disputes “provide a reasonable basis for a finder of fact to
conclude that the application of TDCJ’s volunteer policy imposes a
substantial burden on [plaintiff’s] right to exercise his religion.”
Id. at 615.
The Brown panel, however, distinguished Mayfield because there was no
evidence on the record in Brown to call into question the uniformity of the
supervision requirement’s application. Brown,
929 F.3d at 231.
In the present case, the district court did not engage in the necessary
“case-by-case, fact-specific inquiry,” but instead treated Brown, Adkins, and
Baranowski as creating a “per se rule.” See Brown, 929 F.3d at 230 (quotation
omitted). As discussed above, Lozano presented evidence that Orthodox
Jewish inmates in the Stringfellow Unit are allowed to conduct religious
activities in the chapel, unsupervised, six days a week. The record also
indicates that Taleem and Quranic studies have been unavailable at the
Stringfellow Unit since 2019 due to the absence of volunteers. Cf. Mayfield,
529 F.3d at 614 (reversing summary judgment because, inter alia, the record
reflected that the religious volunteer “was only available every 18 months”).
We therefore vacate and remand this claim to the district court with
instructions to reconsider if a genuine issue of material fact precludes
summary judgment on Lozano’s claim that his lack of access to religious
programming constitutes a substantial burden using the correct legal
standard.
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b. Least Restrictive Means and Compelling Governmental
Interest
Turning to the next step of the analysis, the TDCJ Defendants argue
that they were entitled to summary judgment because the volunteer
requirement is the least restrictive means of furthering their alleged
compelling interest in maintaining order and controlling costs in a prison with
limited space and resources. But the district court did not address whether
Lozano’s proposed solutions provide a less restrictive means of furthering
those interests. For example, Lozano argued that designating a Muslim unit
near a large Muslim population would facilitate an increase in Muslim
volunteers for Taleem and Quranic studies. Lozano presented evidence that
the TDCJ created Jewish- and Native-American-designated units and that,
as a result, Jewish and Native American inmates receive on average six hours
per week of religious programming, compared to the one hour per week that
Muslim inmates receive. Lozano also proposed a solution in which Muslim
inmates could participate in Taleem and Quranic studies using DVDs and
other recorded content, obviating the need for a volunteer instructor. We
therefore vacate and remand this claim to the district court with instructions
to reconsider whether the TDCJ Defendants met their burden on the second
step of the RLUIPA analysis.
To summarize our RLUIPA holdings, we reverse the district court’s
order granting summary judgment on Lozano’s RLUIPA claims regarding
Jumah showers and adequate prayer space, and vacate and remand for further
consideration consistent with this opinion the summary judgment order on
his RLUIPA claim regarding additional religious programming.
B. Establishment Clause
We next address Lozano’s Establishment Clause claim. Lozano raises
three separate arguments—first, he contends that Brown is not controlling
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No. 22-40116
law; second, that there is a genuine dispute of material fact on whether the
TDCJ Defendants applied the housing policy in such a manner that it favors
Jewish and Native American inmates over Muslim inmates; and third, there
is a genuine dispute of material fact whether the TDCJ uses Christian-based
materials in its faith-based dorms in violation of the Establishment Clause.
The district court held that Lozano failed to demonstrate a genuine
issue of material fact on whether the absence of a Muslim-designated unit or
dorm violates the Establishment Clause. 8 In doing so, the district court relied
largely on Brown. 9 The district court also relied on its conclusion that Lozano
provided no evidence to support his allegation that the faith-based dorms
require inmates to study Christian materials.
We vacate and remand this claim to the district court to reconsider, in
a manner consistent with applicable precedent and this opinion, whether a
genuine issue of material fact precludes summary judgment. In doing so, we
note that Lozano did present evidence regarding the faith-based dorm’s
curriculum. Lozano provided sworn declarations from himself and another
inmate stating that the faith-based dorms require inmates to take Christian-based classes. As the Court explained in Kennedy v. Bremmerton, coercion of
religious exercise “was among the foremost hallmarks of religious
_____________________
8
We note that the district court issued its opinion before the Supreme Court, in
Kennedy v. Bremerton, 142 S. Ct. 2407 (2022), solidified the proper post-Lemon
Establishment Clause standard. The Court explained that, [i]n place of Lemon and the
endorsement test . . . the Establishment Clause must be interpreted by reference to
historical practices and understandings.” Kennedy,
142 S. Ct. at 2428 (internal quotations
and citation omitted).
9
We also note that the Establishment Clause section of Chief Judge Richman’s
opinion in Brown was not joined by any other panel member. Judge King joined all sections
of Chief Judge Richman’s opinion except the Establishment Clause section, Brown, 929
F.3d at 254 (King, J., concurring in part and concurring in the judgment), and Judge Dennis
dissented,
id. (Dennis, J., dissenting).
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No. 22-40116
establishments the framers sought to prohibit when they adopted the First
Amendment.” 142 S. Ct. 2407, 2429 (2022). On the other hand, the TDCJ
Defendants presented the January 2020 version of Policy 02.04, which states
that faith-specific services and religious-text studies in the faith-based dorms
“may be offered as electives but shall not be mandated.” But Lozano
counters that the TDCJ revised its policy mid-litigation and has not provided
a copy of the policy in place at the time that Lozano filed suit. Because the
district court did not address these points below, we direct it to do so on
remand, in addition to all other considerations relevant to the summary
judgment analysis for Lozano’s Establishment Clause claim.
IV. Conclusion
For the reasons discussed above, we REVERSE the district court’s
grant of summary judgment on Lozano’s RLUIPA claims regarding Jumah
showers and adequate prayer space, and VACATE the district court’s grant
of summary judgment on Lozano’s RLUIPA claim regarding additional
religious programming and his Establishment Clause claim. We REMAND
for further proceedings consistent with this opinion. 10
_____________________
10
Given the complexity of the issues raised in this case, we recommend that the
district court on remand consider appointing counsel for Lozano, or, alternatively,
soliciting pro bono counsel to represent him, including from the law firm that represented
him pro bono during this appeal.
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Andrew S. Oldham, Circuit Judge, concurring in the judgment:
I agree with the majority that the district court’s judgment must be
reversed. I write separately to make two observations—one about the Texas
prison system and one about the state of our precedent.
I.
First, our law protects religious liberty differently inside and outside
prisons. This might seem obvious. But I worry it is not obvious to some prison
officials.
Outside a prison, voluntary choice is the baseline. See Stephanie Hall
Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites,
134 Harv. L. Rev. 1294, 1326–33 (2021). People can generally make their
own choices about primary activities (where and with whom to live, where or
whether to work, what to eat, when to sleep, &c.). So too with religious
liberty. People can choose when, where, how, and whether to worship. And
the government is generally under no legal compulsion to affirmatively
subsidize or support those choices. For example, the Religious Freedom
Restoration Act of 1993 (“RFRA”) does not require the federal government
to build churches or employ rabbis. Rather, the government offends RFRA
when it penalizes or prohibits religious exercise. See, e.g., Burwell v. Hobby
Lobby Stores, Inc.,
573 U.S. 682 (2014) (unlawful burden where government
penalized employer’s religious choices in employment benefits); Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) (unlawful
burden where government criminalized use of hallucinogen used by religious
community).
Inside a prison, everything is different. The baseline is not voluntary
choice but involuntary coercion. “Government defendants control the
minute details of most inmates’ lives, from when and what they eat to what
they wear and where they sleep.” Barclay & Steele, supra, at 1333–34. In such
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a setting, “religious individuals are unable to voluntarily perform their
desired religious practices unless the government affirmatively acts to lift its
coercive power through a religious accommodation.” Id. at 1333. So in
prison, the government often burdens religious exercise and violates the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)
by not doing something—by not providing kosher food, United States v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1341 (11th Cir. 2016), or not providing a space
for group religious services, Greene v. Solano Cnty. Jail,
513 F.3d 982 (9th Cir.
2008), or not providing access to a sweat lodge, Yellowbear v. Lampert,
741
F.3d 48 (10th Cir. 2014) (Gorsuch, J.).
The federal courts have repeatedly underscored RLUIPA’s
accommodation requirements. In case after case, “courts have recognized a
government duty to affirmatively provide religious accommodations, even
though these affirmative accommodations might, at times, require the
government to expend significant additional resources.” Barclay & Steele,
supra, at 1334 (listing cases). This obligation comes straight from RLUIPA’s
text: “[T]his 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). And the Supreme Court has reiterated it. See Hobby
Lobby, 573 U.S. at 730 (“[B]oth RFRA and its sister statute, RLUIPA, may
in some circumstances require the Government to expend additional funds
to accommodate citizens’ religious beliefs.” (citing § 2000cc-3(c)).
The litigation position adopted by the Texas Department of Criminal
Justice (“TDCJ”) in this case misses this point. A hostile, anti-Muslim
cellmate is making it hard for Lozano to pray? TDCJ says that’s not the
prison’s problem, even though TDCJ controls exactly where and with whom
Lozano lives. Lozano must shower before Jumah services with other nonMuslims who are cussing and blaspheming? Again, TDCJ says that’s not the
prison’s problem, even though TDCJ controls when and with whom Lozano
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showers. Lozano cannot receive religious instruction in Taleem and Quranic
Studies? You guessed it: Not the prison’s problem, even though TDCJ
controls prisoner schedules, classroom schedules, and volunteer
requirements. Of course, these are the prison’s problems because Congress
required the prison to take affirmative steps to protect Lozano’s religious
exercise. “Not my problem” might be a good government defense under
RFRA outside prison, but it does not cut it under RLUIPA inside prison.
II.
Second, our approach to RLUIPA has changed significantly in the last
generation. But some of our older precedents are continuing to cause
confusion in the district courts.
Congress passed RLUIPA in 2000, and in the beginning, the statute
lacked bite. That owed in no small part to Cutter v. Wilkinson, 544 U.S. 709
(2005). Cutter was nominally a case about the Establishment Clause. Yet in
dicta, Justice Ginsburg’s majority opinion softened RLUIPA’s strict scrutiny
standard. Cutter instructed federal courts to give “due deference to the
experience and expertise of prison and jail administrators” and to measure
religious accommodations so they “do not override other significant
interests.”
Id. at 717, 722 (citation omitted). The Court further instructed us
to apply RLUIPA “in an appropriately balanced way, with particular
sensitivity to security concerns.”
Id. at 722; see also
id. at 723 (“Lawmakers
supporting RLUIPA were mindful of the urgency of discipline, order, safety,
and security in penal institutions.”).
Likewise, for the first 15 years of RLUIPA’s existence, our court took
a hands-off approach to religious liberty in prison. We allowed prison officials
to prevent Yahweh Evangelical Assembly prisoners from congregating on
various holy days, see Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004), to deny
Jewish prisoners kosher meals, see Baranowski v. Hart,
486 F.3d 112 (5th Cir.
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2007), to deny a Druid prisoner necessary religious items, see McFaul v.
Valenzuela, 684 F.3d 564 (5th Cir. 2012), to discipline a Native American
prisoner for growing out his hair, see Longoria v. Dretke,
507 F.3d 898 (5th
Cir. 2007); see also DeMoss v. Crain,
636 F.3d 145 (5th Cir. 2011) (per curiam),
and to deny a Native American prisoner access to a colored headband and
religious items like a flute or drum, see Thunderhorse v. Pierce,
364 F. App’x
141 (5th Cir. 2010) (per curiam). In doing so, we questioned the centrality of
religious beliefs, see McFaul,
684 F.3d at 577. But see § 2000cc-5(7)(A) (“The
term ‘religious exercise’ includes any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”), confused
substantial burden with compelling state interest, cf. Chance v. TDCJ,
730
F.3d 404, 415 n.8 (5th Cir. 2013), and deferred to broadly asserted
government interests like order, security, and cost control, see Baranowski,
486 F.3d at 125–26 (deferring to “good order and controlling costs”);
Longoria,
507 F.3d at 904 (concluding that the “grooming policy ‘is related
to security’”); DeMoss,
636 F.3d at 154 (deferring to “prison safety and
public safety concerns”); Chance,
730 F.3d at 416 (deferring to “staffing and
space limitations” and “administrative burden[s]”). Many of these decisions
relied heavily on Cutter. See, e.g., DeMoss,
636 F.3d at 150; Baranowski,
486
F.3d at 125; Longoria,
507 F.3d at 902; Chance,
730 F.3d at 410; Thunderhorse,
364 F. App’x at 145–46.
The legal landscape changed when the Supreme Court decided Holt
v. Hobbs, 574 U.S. 352 (2015). In that case, a unanimous 9–0 Court gave
significant weight to RLUIPA’s “expansive protection for religious liberty.”
Id. at 358. The Court clarified the statute’s substantial burden bar and
distinguished it from the First Amendment’s less-protective standards. See
id. at 361–62. The Court also stressed that RLUIPA’s strict-scrutiny
requirement must be focused on the particular claimant, without concern for
“broadly formulated” penological interests. See
id. at 362–63 (citation
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No. 22-40116
omitted). Finally, the Court took a much less deferential stance towards
government justifications. Whereas Cutter had emphasized deference, Holt
shifted to respect. See id. at 369 (“[T]he courts below deferred to these prison
officials’ mere say-so that they could not accommodate petitioner’s request.
RLUIPA, however, demands much more.”). Rather than simply accepting
the prison officials’ security concerns, cf., e.g., Longoria,
507 F.3d at 904, the
Court thoroughly examined the justifications proffered by state defendants
and found them lacking, see Holt, 574 U.S. at 364–69.
In Ramirez v. Collier, 595 U.S. 411 (2022), the Supreme Court applied
RLUIPA in an equally rigorous manner. As in Holt, the Court rejected
excessive deference to state defendants. See
id. at 429 (“[R]espondents offer
only a conclusory defense of the policy’s tailoring . . . . [T]hey ask that we
simply defer to their determination. That is not enough under RLUIPA.”).
The Court also emphasized the burden on state defendants to prove
compelling interest and least restrictive means. See
id. at 432 (“Texas does
nothing to rebut these obvious alternatives, instead suggesting that it is
Ramirez’s burden to identify any less restrictive means. That gets things
backward.” (quotation omitted)).
In recent years, our court has generally followed the Supreme Court’s
post-Holt instructions. For example, we tailored the strict scrutiny inquiry to
individual plaintiffs, see Davis v. Davis, 826 F.3d 258, 271–72 (5th Cir. 2016)
(vacating a district court RLUIPA opinion that did not examine the prison’s
asserted interests “in light of the particular characteristics of each
Plaintiff”), scrutinized the government’s asserted interests, see Ali v.
Stephens,
822 F.3d 776, 782–86 (5th Cir. 2016) (applying Holt to enjoin a
prison grooming policy, despite the defendant’s repeated invocation of
Longoria); Ware v. La. Dep’t of Corr.,
866 F.3d 263 (5th Cir. 2017) (similar),
and strengthened the least restrictive means analysis, see Tucker v. Collier,
906 F.3d 295, 305–07 (5th Cir. 2018).
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That is not to say that we’ve completely sworn off the habit of our pre-Holt precedent or that we’ve been able to resist having one last drink. Cf.
Alexander v. Sandoval, 532 U.S. 275, 287 (2001). For example, in Brown v.
Collier,
929 F.3d 218 (5th Cir. 2019), the panel followed earlier decisions like
Adkins and Baranowski, which confused substantial burden with compelling
interest and failed to scrutinize the government’s asserted interests. Of
course, given our circuit’s strict rule of orderliness, see Tech. Automation
Servs. Corp. v. Liberty Surplus Ins. Corp.,
673 F.3d 399, 405 (5th Cir. 2012)
(requiring that a Supreme Court decision “unequivocally overrule prior
precedent” (citation omitted)), Brown is perhaps understandable. But Adkins
and its offspring are impossible to square with Holt and Ramirez. And it
should be an uncontroversial proposition that we are bound to follow
Supreme Court precedent, not our own, when they conflict. 1
Cases like Adkins and its progeny (including Brown) create particularly
difficult problems for district courts in our circuit. The district courts handle
high volumes of prison lawsuits. Many of those lawsuits are pro se, requiring
the district courts to spend more time understanding the relevant facts and
law. That task is made all the more difficult by our court’s confusing onagain, off-again understanding of the pre-Holt, post-Holt legal rules. 2
_____________________
1
The majority notes that our RLUIPA cases require a “case-by-case, fact-specific
inquiry.” Ante, at 17. It then distinguishes Brown on narrow factual grounds. While this is
a correct application of our precedents, see Adkins, 393 F.3d at 571; Ali, 822 F.3d at 784–
85, our use of narrow factual distinctions does little to aid district courts or litigants. It
would be far better to overrule Brown and its forebears.
2
In this case at least, TDCJ’s brief did not recognize or alleviate this confusion. It
cited almost exclusively our court’s pre-Holt precedents. It of course cited Brown, without
recognizing that case’s tension with other post-Holt cases. And it cited Holt and Hobby
Lobby merely to reject them without analysis. And it made precisely the same generalized
arguments—about “maintaining order and controlling costs,” “managing limited facility
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At some point, hopefully soon, our en banc court will have occasion to
reconsider our precedent in this area. Doing so would provide much-needed
clarity to district courts and prison officials in our circuit.
_____________________
space and staffing,” “efficient showering schedules,” &c.—that Holt, Ramirez, and many
of our post-Holt cases reject as insufficient.
27
