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United States District Court, E.D. Texas, Tyler Division.

William E. CHANCE, Jr.

v.

TDCJ, et al.

Civil Action No. 6:11cv435.

July 9, 2012.

Donald H Mahoney, III, Kyril Vladimir Talanov, Walter Moreau Berger, Winston & Strawn, LLP, Houston, Brian Rolland McGiverin, James C. Harrington, Wayne Krause, Scott Medlock, Texas Civil Rights Project, Austin, TX, for William E. Chance, Jr.

Celamaine Cunniff, Marjolyn Carol Gardner, Attorney General's Office, Kimberly Fuchs, Office Of The Attorney General, Austin, TX, for TDCJ, et al.

SECOND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN D. LOVE, United States Magistrate Judge.

*1 Plaintiff William E. Chance, Jr., a prisoner confined at the Michael Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The complaint was referred for findings of fact, conclusions of law and recommendations for the disposition of the lawsuit.

Procedural History of the Case

The complaint was filed in the Western District of Texas on June 16, 2011. On August 10, 2011, the case was transferred to this Court. Plaintiff filed an amended complaint (docket entry # 37) on January 9, 2012. The present Report and Recommendation concerns Defendants' motion for summary judgment (docket entry # 59), Plaintiff's response (docket entry # 65) and Defendants' reply (docket entry # 70).

Plaintiff's Claims

Plaintiff is a member of the Native American (“NA”) faith group. He stated that he has been an active member of the NA community since his incarceration and has adhered to various facets of the NA faith traditions. He asserted that there are several ceremonies which are essential to the NA faith traditions. Unlike Western religions, where the ceremony is usually a means to serve theology, the rituals performed in the NA faith are an established practice that is distinct and as vital as the supported theology. He stressed that the ceremonies and practices are essential to the exercise of his sincerely held religious beliefs. To practice his faith he must participate in Native American teaching ceremonies every week and a biweekly pipe ceremony. The ceremonies include the smudging ritual, pipe ceremony, teaching ceremony, and “wiping away of tears” ceremony. He is also required to practice “keeping of souls,” where a small lock of a deceased's hair is kept in a small bag held against the body for one year to remember the life of the deceased.

Plaintiff is seeking injunctive and declaratory relief from TDCJ and Brad Livingston, in his official capacity as the Executive Director of TDCJ. He seeks to permanently enjoin them from the following:

a. restricting Plaintiff's religious practices;

b. denying Plaintiff the right to congregate for teaching ceremonies with other NA on a weekly basis;

c. denying Plaintiff the right to congregate for NA pipe ceremonies on a biweekly basis;

d. denying Plaintiff the right to participate in a smudging ceremony prior to all pipe and teaching ceremonies;

e. denying Plaintiff the required herbs, such as sage, in order to effectuate the smudging ceremony;

f. denying Plaintiff a personal pipe for use during NA pipe ceremonies;

g. denying Plaintiff possession of a small lock of his parents' hair to participate in “keeping of souls”; and

h. denying Plaintiff and other NA adherents the opportunity to congregate for pipe ceremonies on the holy days.

*2 Plaintiff is also seeking nominal and punitive damages against Defendants Director of Chaplaincy Bill Pierce, Michael Unit Chaplain Cynthia Lowery, Assistant Warden Edgar Baker, former Warden John Rupert and current Warden Todd Foxworth.

It should be noted that the backdrop of the lawsuit is, in part, the product of prison officials no longer permitting NA faith adherents to participate in activities that were allowed since the issuance of the decision in Yellowquill v. Scott, No. H–95–1080 (S.D.Tex. May 27, 1997). In that case, Judge Marcia Crone FN1 enjoined prison officials from prohibiting an inmate from participating in the sacred pipe ceremony. Although Yellowquill involved only one inmate, the settlement agreement in that case served as the basis for many of the policies regarding the practice of the NA faith. See, e.g., TDCJ Chaplaincy Manual Policy Numbers 9.01–9.04. Plaintiff asserted that the individual defendants knew of the Yellowquill injunction. The resulting settlement agreement required TDCJ to provide sacred pipe ceremonies twice per month with personal prayer pipes for the congregants and smudging ceremonies. He added that despite actual knowledge of the importance of providing Native American services for sincere believers, Defendants Lowery, Pierce, Baker, Rupert and Foxworth have callously ignored their obligations under the law.

FN1. At the time of the decision, Judge Crone was a United States Magistrate Judge for the Southern District of Texas. She subsequently was elevated to the position of United States District Judge for the Eastern District of Texas.

The details of the facts of the case and Plaintiff's legal arguments will be fully discussed in the Discussion and Analysis section of this Report and Recommendation.

Defendants' Motion for Summary Judgment

Defendants filed a motion for summary judgment (docket entry # 59) on June 1, 2012. In support of the motion, they attached relevant grievance records, affidavits, portions of transcripts from depositions, historical documents and various other prison records. They listed eleven issues to be decided by the Court, which will be discussed seriatim.

Plaintiff's Response

Plaintiff filed a response (docket entry # 65) on June 26, 2012. He asserted that there are genuine disputes over material facts that preclude summary judgment. In support of his response, he attached declarations, portions of transcripts from depositions, relevant portions of past and current prison chaplaincy policies, and portions of his grievance records.

Defendants' Sur–Reply

Defendants filed a reply (docket entry # 70) on July 5, 2012.

Discussion and Analysis

A “court shall grant summary judgment 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). The moving party for summary judgment has the burden of proving the lack of a genuine dispute as to all the material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galindo v. Precision American Corp., 754 F.2d 1212, 1221–23 (5th Cir.1985).

In deciding a motion for summary judgment, the Court must make a threshold inquiry in determining whether there is a need for a trial. “In other words, whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” 477 U.S. at 247–48.

*3 If the movant satisfies its initial burden of demonstrating the absence of a material fact dispute, then the non-movant must identify specific evidence in the summary judgment record demonstrating that there is a material fact dispute concerning the essential elements of its case for which it will bear the burden of proof at trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996). The non-movant cannot survive a motion for summary judgment by resting on the allegations in his pleadings. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988). Rather, he must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324. To carry this burden, the non-movant must present evidence sufficient to support a resolution of the factual disputes in his favor. Anderson, 477 U.S. at 257. The non-movant must submit competent summary judgment evidence sufficient to defeat a properly supported motion for summary judgment. See, e.g., Burleson v. Texas Dept. of Criminal Justice, 393 F.3d 577, 589–90 (5th Cir.2004); Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752, 755 (5th Cir.2001). All reasonable inferences are drawn in favor of the non-moving party, but the non-moving party “cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.2007); Miller v. Graham, 447 Fed. Appx. 549, 551 (5th Cir.2011); Chacon v. York, 434 Fed. Appx. 330, 332 (5th Cir.2011).

Defendants initially raised several procedural issues. The first issue raised by Defendants concerns exhaustion of administrative remedies. They asserted that Plaintiff failed to file grievances regarding (1) the Trail of Tears, the Battle of Wounded Knee and the Battle of Little Bighorn anniversaries or holy days, and (2) Wardens Baker, Foxworth and Rupert as individuals connected with his First Amendment claims.

In response, Plaintiff noted that Defendants admitted that he properly filed both Step 1 and Step 2 grievances with regard to the Sand Creek Massacre, one of the holy days representative of the Wiping Away of Tears ceremony, and the grievance was denied by Chaplain Lowery. He added that his grievance referred to “Holy Days,” rather than “a holy day,” and referenced a previous revision of the Chaplaincy Manual which recognized all four holy days, including the Sand Creeks Massacre, the Trail of Tears, the Battle of Wounded Knee and the Battle of Little Bighorn. He argued that his grievance placed Defendants on sufficient notice with regard to the rest of the holy days not specifically mentioned by name. Moreover, Chaplain Lowery's response to the grievance referred to “Holy Days” having been denied by the Religious Practices Committee, implying that the committee's decision related to all four holy days.

*4 As to naming individual defendants connected with the First Amendment claims, Plaintiff noted that his grievance placed the prison system on notice with regard to a certain practice, as opposed to a specific individual, department or committee. He noted that Defendants admitted that the statute has no requirement for naming the individuals involved. They cited no case law requiring individual notice. Plaintiff observed that Warden Rupert signed the Step 1 grievance, which placed him and other wardens on notice as to his claims.

The law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e. In 1996, Congress enacted the Prison Litigation Reform Act, which mandated that no action shall be brought by a prisoner “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court accordingly unanimously concluded that inmates must exhaust their administrative remedies before proceeding to federal court.   Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The Supreme Court has repeatedly held that exhaustion is mandatory and is required for all actions brought by prisoners. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In Jones v. Bock, 549 U.S. 199, 217, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), the Supreme Court rejected a “name all defendants” requirement that was judicially created by the Sixth Circuit.

In the present case, Plaintiff correctly noted that his grievance in Grievance Number 2010157737 discussed holy days, along with current and previous revisions of the Chaplaincy Manual. Defendant Chaplain Lowery's response used the term “Holy Days.” The October 2000 revision to Chaplaincy Manual 9.01 listed the Holy Days as Greasy Grass (Little Big Horn), Stone Creek (Sand Creek) and Historic Date of Payer Remembrance (Wounded Knee). The grievance placed the prison system on notice that Plaintiff was complaining about denying members of the NA faith the opportunity to participate in ceremonial observances of the holy days. The failure to exhaust argument with respect to the holy days lacks merit.

Defendants' argument that Plaintiff failed to exhaust his First Amendment claims regarding Wardens Baker, Foxworth and Rupert lacks merit in light of Jones v. Bock. The Supreme Court found that the “name all defendants” rule lacks textual basis in the PLRA and that the exhaustion requirement only requires exhaustion of “such administrative remedies as are available.” 549 U.S. 217. Defendants failed to cite any Fifth Circuit authority requiring inmates to specifically name everyone in a grievance before including them as defendants in a lawsuit. The Court finds that the argument that Defendants' motion for summary judgment regarding failure to exhaust administrative remedies lacks merit.

Defendants next argued that several of Plaintiff's requests are moot, particularly his request to participate in a smudging ceremony, to participate in weekly teaching ceremonies preceded by smudging, and to participate in a pipe ceremony twice each month. Defendants asserted that the Michael Unit has a weekly service for Native Americans, with the opportunity for smudging at each service. More specifically, during the first week of the month, contract chaplain Chari Bouse conducts a pipe ceremony. The offenders are smoke smudged into the circle and Chaplain Bouse smokes the pipe for them. During the second week of the month, Michael Unit Chaplain Lowery conducts a teaching service using a variety of DVDs. Inmates are offered the ability to be water smudged at the beginning of the services. A talking circle using the “talking stick” is held on the third and fourth weeks. The “talking stick” is passed around the circle with each participant generally allowed three to five minutes to say what the “Great Spirit” has placed in their heart. Inmates are offered the ability to be water smudged at the beginning of the services. Defendants argued that because Plaintiff's request to meet for ceremonies on a weekly basis and to participate in smudging prior to his ceremonies has been met, he is not suffering an actual injury and these requests are moot.

*5 Plaintiff rejected the argument in his response. He initially asserted that the resolution of this matter is contingent upon whether these activities actually amount to services and teaching ceremonies. Plaintiff argued that the meetings provided by contract chaplain Bouse are not services. He is not, for example, permitted to personally smoke the ceremonial pipe. He further argued that the DVD presentations are not teaching ceremonies. He explained that the teaching ceremony is a comprehensive ceremony that lasts about two hours and teaches congregants of the NA faith how to prepare for sacred pipe ceremonies. He further noted that individuals participating in the teaching ceremonies must be cleansed prior to the ceremonies, but he is not permitted to perform the smudging ceremony prior to the “talking circle” or DVD viewing activities, which further prevents him from participating in sacred activities. With respect to the smudging ceremony, he is permitted to smudge outdoors once a month under the supervision of contract chaplain Bouse, during her monthly visits. He is not allowed to smudge indoors and there is no adequate alternative to smudging outdoors in case of inclement whether. Plaintiff thus argued that none of his requests are moot.

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Rocky v. King, 900 F.2d 864, 867 (5th Cir.1990). Under the doctrine of mootness, litigants must continue to have a personal stake in the outcome of an action, i.e. meaning they “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation and citation omitted). The Fifth Circuit has regularly found that an inmate's requests for injunctive relief regarding religious issues are moot if he is no longer suffering any injury. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir.2011); Copeland v. Livingston, 464 Fed. Appx. 326, 330–31 (5th Cir.2012). For example, in DeMoss, an inmate's complaint that he was not permitted to attend religious services while on cell restrictions became moot once the policy was lifted. The Fifth Circuit found that TDCJ's abandonment of its cell restriction policy mooted the claim for injunctive and declaratory relief. 636 F.3d at 151.

Plaintiff's claims would be moot if they were favorably resolved by the prison system and the issues were no longer live. In the present case, however, the issues at hand are still in dispute. The issues in this case require full consideration of Plaintiff's claims under RLUIPA, the Free Exercise Clause and the Equal Protection Clause.

The third issue raised by the Defendants is whether Plaintiff has stated an actual controversy entitling him to declaratory relief. As with the mootness issue, Plaintiff's request for declaratory relief requires full consideration of his claims under RLUIPA, the Free Exercise Clause and the Equal Protection Clause. Defendant correctly noted that the Declaratory Judgment Act, 28 U.S.C. § § 2201–02, provides a form of relief, as opposed to an independent cause of action. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The Court cannot determine whether relief, declaratory or otherwise, is available in this case until the actual substantive claims are considered.

*6 Defendants next focused on the merits of Plaintiff's RLUIPA claims. Under RLUIPA, the Government is prohibited from imposing a substantial burden on a prisoner's exercise of religious freedom unless there is a compelling governmental interest and the burden is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc–1. Therefore, in order to make a claim under RLUIPA, a prisoner must show that the prison's regulations imposed a substantial burden on his exercise of religious activity. Adkins v. Kaspar, 393 F.3d 559, 564–65 (5th Cir.2004). Although RLUIPA imposes strict scrutiny of prison regulations, lawmakers were mindful that discipline, order, safety and security are urgent in penal institutions and anticipated that courts would apply the RLUIPA test “with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Cutter v. Wilkinson, 544 U.S. 709, 722–23, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

Under RLUIPA, Plaintiff must initially demonstrate that government practice imposes a “substantial burden” on his religious exercise, which requires the Court to determine (1) whether the burdened activity is “religious exercise,” and, if so, (2) is the burden “substantial”? Adkins, 393 F.3d at 567. RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious beliefs.” Id. 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 violates his religious beliefs. Id. at 570. Plaintiff has the burden to show a substantial burden on his religious exercise. If he satisfies this burden, then the Government must demonstrate that the policies are the least restrictive means of furthering a compelling governmental interest. Mayfield v. TDCJ, 529 F.3d 599, 613 (5th Cir.2008).

Plaintiff complained that Defendants have denied him the right to congregate with other Native Americans on a weekly basis for teaching ceremonies, a biweekly basis for NA pipe ceremonies and holy days ceremonies. It is without question that these ceremonies constitute religious exercise. The more significant question is whether the prison system has created a substantial burden on Plaintiff's religious exercise with respect to these ceremonies. Plaintiff initially focused on the need to personally smoke from the sacred pipe during pipe ceremonies. He stated that the Sacred Pipe ceremony requires establishing a personal relationship with the Spirits through a direct dialogue, which can only be accomplished by personally inhaling and exhaling the smoke from the pipe. For the Spirits to answer his prayers, he believes that he must make a personal offering to them by personally smoking the pipe. He argued that his wish to practice the Sacred Pipe ceremony in this manner is consistent with the NA faith and the way it is practiced by many other Native Americans, both incarcerated and outside the prison setting. In support of his claim, Plaintiff attached an affidavit from Liz Grobsmith, Provost and Vice President for Academic Affairs at Northern Arizona University, who is an expert on NA religious practices.

*7 Plaintiff noted that he is not permitted to engage in such religious practice by Defendants under the direction of contract chaplain Bouse. He is not permitted to personally smoke the ceremonial pipe. Instead, Bouse inhales and exhales the smoke during NA services. He noted that she acknowledged that smoking the pipe herself during NA services does not constitute prayer for or on behalf of Plaintiff, but rather her personal prayer for him. It should be further noted that Bouse justified her practice in her affidavit FN2 by stating that it “would be considered desecration of the Pipe” for an offender in the “Iron House” to smoke the sacred ceremonial pipe. On the other hand, Michael Unit Chaplain Lowery acknowledged that inmates who practice the NA faith were previously allowed to smoke from the ceremonial pipe when the pipe was brought to the unit by other NA volunteers.FN3

FN2. Defendants' Exhibit U.

FN3. Plaintiff's Exhibit I, page 11.

For purposes of summary judgment analysis it is clear from the competent summary judgment evidence that there are disputed issues of material fact as to whether Bouse's methods of conducting the services imposed a substantial burden on Plaintiff's religious exercise. Plaintiff, as the nonmovant, has presented evidence that would support a resolution of the factual dispute in his favor. He has submitted competent summary judgment evidence sufficient to defeat Defendants' motion for summary judgment on this issue.

With respect to the frequency of the pipe ceremonies, Plaintiff believes that the ceremony must be conducted twice a month. He argued that the twice a month ceremony is not arbitrary and that it is based on the lunar cycle. His claim is supported by Grobsmith.FN4 Defendants acknowledged that Bouse conducts a pipe ceremony only once a month. There are a disputed issues of material fact regarding the need for twice a month pipe ceremonies and whether the denial of twice a month pipe ceremonies imposes a substantial burden on Plaintiff's religious exercise. Plaintiff, nonetheless, has once again presented competent evidence that would support a resolution of the factual disputes in his favor. He has submitted competent summary judgment evidence to defeat Defendants' motion for summary judgment on this issue.

FN4. Plaintiff's Exhibit C, page 25.

Plaintiff also disputed the claim that he is being offered weekly services. He noted that Defendants imply that the “talking circle” or the DVD viewings are sufficient substitutes for the weekly Teaching ceremonies or the bi-weekly Sacred Pipe ceremonies. Plaintiff rejected Defendants' claim. The differences between weekly Teaching ceremonies and “talking circle” or DVD viewings were previously discussed on page eight. Plaintiff further noted that he is only allowed to participate in one Teaching ceremony per month and one NA service during which Bouse smokes the pipe, which he contends does not even constitute a Sacred Pipe ceremony. As before, there are disputed issues of material fact concerning whether the “talking circle” or the DVD viewings are sufficient substitutes for the weekly Teaching ceremonies or the bi-weekly Sacred Pipe ceremonies. Nonetheless, Plaintiff has presented once again competent summary judgment evidence that would support a resolution of the factual disputes in his favor. He has submitted competent summary judgment evidence to defendant Defendants' motion for summary judgment on this issue.

*8 In conjunction with these ceremonies, Plaintiff believes that he must be given the opportunity to participate in the smudging ceremony. Defendants, on the other hand, imply that the smudging ceremony can be performed without smoke. They asserted that water smudging is sufficient, although Plaintiff argued that they failed to present any reliable evidence to describe what water smudging is or how it relates to a NA American smudging ceremony. He noted that the only reference to water smudging came from the affidavit of Billy Pierce, the Chaplaincy Director, who has not been designated as a NA expert not claims to be one. The Court notes, however, that Bouse discussed water smudging in her affidavit. Plaintiff, nonetheless, has presented competent summary judgment evidence that would support a resolution of this factual dispute in his favor. He submitted competent summary judgment evidence to defendant Defendants' motion for summary judgment on this issue.

Plaintiff also seeks to carry a small lock of hair in a pouch from his deceased parents, to mourn their passing. He disputed the response that possession of the hair would pose a health hazzard. He argued that keeping small locks of his deceased parents' hair would be equally implicated by the horsehair, bone, teeth and feathers that he is already allowed to keep in his medicine bag.

In Adkins, the Fifth Circuit noted that it has held that circumscribing the use of a medicine bag did not rise to the level of a substantial burden on a prisoner's NA practice. Adkins, 393 F.3d at 568 n. 35. The Adkins decision is dispositive of this claim. It is further noted that Plaintiff stated that in accordance with the keeping of the souls practice, when a person dies, a lock of hair is obtained and kept in a medicine bag by the mourner for a year. Plaintiff has acknowledged that his mother died in 2008 and his father died in 2009, thus the time for him to obtain and hold a small amount of his parents' hair in his medicine bag to mourn their passing had expired by the time he filed the lawsuit. In his response, Plaintiff asserted that the year of mourning commences when the hair bundles are prepared and presented to the mourner at the Keeping of Souls ceremony. Nonetheless, the time for pursuing relief had long expired by the time filed his lawsuit in 2011.

Overall, Plaintiff has satisfied his burden as the non-movant in summary judgment proceedings in showing that Defendants have imposed a substantial burden on his religious exercise with respect to the right to congregate with other Native Americans on a weekly basis for teaching ceremonies, a biweekly basis for NA pipe ceremonies and holy days ceremonies, along with personally smoking from the ceremonial pipe during pipe ceremonies and participating in the smudging ritual before each of these ceremonies. He has satisfied his burden under RLUIPA in response to Defendants' motion for summary judgment.

The burden thus shifts to Defendants to demonstrate that the policies are the least restrictive means of furthering a compelling governmental interest. Defendants argued that TDCJ has several compelling governmental interests in the challenged practices and policies and is using the least restrictive means in furthering those interests. Defendants pointed out that to meet their burden of proof, they need only “take the unremarkable step of providing an explanation for the policy's restrictions that takes into account [their] institutional need to maintain good order, security, and discipline or to control costs.” Smith v. Ozmint, 578 F.3d 246, 252 (4th Cir.2009). See also Gooden v. Crain, 353 Fed. Appx. 885, 887 (5th Cir.2009). Both the Supreme Court and Congress have indicated that courts are to apply that standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Cutter, 544 U.S. at 721 (citations omitted). “Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions.” Id. Prison security is a compelling state interest, and deference is due to institutional officials' expertise in this area. Id. at 725. RLUIPA does not elevate accommodation of religious observances over a prison's need to maintain order and safety, and any accommodation must be measured so that it does not override other significant interests. Id. at 722. Once defendants point to a compelling state interest, the final part of the RLUIPA analysis is whether the challenged regulation is the least restrictive means of furthering the compelling government interest. 42 U.S.C. § 2000cc–1(a)(2). “The phrase ‘least restrictive means' has its plain meaning. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009), aff'd, ––– U.S. ––––, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). But, “[s]hould inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition.” Cutter, 544 U.S. at 726. Defendants argued that TDCJ has several compelling governmental interests in the challenged practices and policies and is using the least restrictive means in furthering those interests.

*9 Defendants initially focused on the pipe ceremonies. Plaintiff believes that he needs to participate in a pipe ceremony twice each month, once the day after the new moon, and once the day after the full moon. He requested a personal pipe to use during the pipe ceremony.

This issue of whether an inmate is entitled to have his own personal ceremonial pipe was rejected by this Court, and the decision was affirmed in Thunderhorse v. Pierce, 364 Fed. Appx. 141, 147–148 (5th Cir., 2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 896, 178 L.Ed.2d 746 (2011). In Thunderhorse, the Fifth Circuit found that the pipe ceremony is a religious exercise and that the prohibition on its use was a substantial burden. Id. at 147. It was further found that there was a compelling interest in prison security and prohibiting Thunderhorse from keeping materials in his cell in administrative segregation that could be used to start a fire or create an explosion. Id. The Fifth Circuit finally found that there was “no reason to question TDCJ's position that the prohibition on incendiary items within the cell [was] the least restrictive way to prevent inmates from starting fires in their cells.” Id. at 148.

The Thunderhorse decision provides a substantial basis for upholding present policy regarding the use of the pipe. Plaintiff, however, endeavored to distinguish his case from the facts in Thunderhorse. He noted that he is not confined in administrative segregation. He asserted that he needs to have a personal pipe because he has Hepatitis C and Tuberculosis, thus he should not share a pipe with others. He also contended that his personal pipe could be kept by the prison chaplain.

Defendants conceded that Plaintiff was once allowed to participate in a communal pipe ceremony in which one pipe was shared by all participants. But the policy was changed. These facts raise the issue of what compelling interest is now at stake and whether the new policy is the least restrictive means of furthering the compelling governmental interest?

Defendants asserted that the policy changed for medical reasons. Chaplain Pierce stated during his deposition that the change was prompted by grievances submitted by inmates who complained about smoking a ceremonial pipe with Plaintiff because he had communicable diseases. Plaintiff's response challenged this; nonetheless, officials obtained a medical opinion and concluded that the pipe should not be passed around. The change in policy was based on a compelling interest in preventing the spread of diseases.

With respect to least restrictive means, Plaintiff asserted that he should be given his own personal pipe, which could be kept by the prison chaplain. Defendants persuasively argued that the response was not grounded in the reality of prisons and prisoner litigation. Prior to the tobacco ban in July 1994, 24 inmates out of the 78,259 inmates incarcerated in the Texas prison system identified themselves as belonging to the Native American faith. That number jumped to 302 inmates after the ban and 1,057 by 2000. As of February 29, 2012, the number had jumped to 4,243 inmates out of the prison population of 155,000. Chaplain Pierce expressed the opinion that the jump was prompted by a desire to have access to tobacco. Moreover, when one inmate receives a privilege, then other inmates want the same thing. Jealousy and retaliation result. If Plaintiff was permitted to have his own personal pipe due to his health concerns, then other inmates would likewise come forward and demand the same. The prison system would be in a position where they would have to determine who had conditions that warranted personal pipes, but the task of making such determinations would violate federal and state privacy laws.

*10 Defendants also discussed the problems associated with providing pipes to all members of the NA faith. TDCJ has considered disposable versus non-disposable pipes. Non-disposable pipes raise problems with identifying and storing them in a secure place, sanitation and ensuring that the pipes were not stolen or desecrated. All of this would create significant storage problems. Regional Director Eason discussed the estimated security personnel hours that it would take to inventory pipes, store pipes, issue property papers and transport pipes. He also thought that more officers would be required to supervise the ceremonies. At the Michael Unit, there are 300 offenders who participate in NA ceremonies, and Eason expressed the opinion that it would take ten officers to supervise the ceremonies. The prison system already has problems with maintaining staff levels. He estimated that the annual cost for security for a disposable pipe ceremony would be $81,732, while the cost for a non-disposable pipe ceremony would be $104,592. That amount would double if two pipe ceremonies were conducted per month, as opposed to just one. In addition to costs associated with pipes, there would be security concerns involved with tobacco, particularly since tobacco is banned on prison property. Defendants argued that Eason correctly concluded that “[t]his increased burden on the staffing levels in order to provide adequate supervision of a prolonged pipe ceremony would divert scarce staff resources from other duties, which could adversely effect the operation of all units where this occurred.” Plaintiff tried to downplay the significance of these costs and prison realities; nonetheless, they exists.

In Cutter, the Supreme Court stressed that RLUIPA is to be applied “consistent with consideration of costs and limited resources.” 544 U.S. at 721. An accommodation of faith under RLUIPA is not to trump other significant interests. Id. at 722–23. The Fifth Circuit has specified that controlling costs is a compelling state interest. DeMoss v. Crain, 636 F.3d at 154. The Court finds that the prison system has a compelling interest in preventing the spread of disease and prison security in not permitting Plaintiff and other NA adherents from having their own pipes and that the prohibition is the least restrictive means of doing so.

The next issue concerns the frequency of ceremonies. Defendants do not deny that Plaintiff sincerely believes that the pipe ceremony should be held twice a month and that additional ceremonies for the holy days. Chaplain Pierce discussed the problem with hiring and paying contract chaplains, along with finding qualified NA volunteers. He provided the following discussion in his affidavit:

TDCJ employs a NA contract chaplain and seeks to obtain as many volunteers as possible to assist with NA services. The NA chaplain, who both conducts prayer circles at certain units, as well as recruits volunteers to assist him or her in conducting prayer circles at as many additional units as possible. I personally have made numerous attempts to locate persons who adhere to NA spirituality as both volunteers and paid contract chaplains. I routinely send letters and make telephone calls to each of the 60+ known NA resource groups in the region, but rarely get a response or follow-up commitment from these tribes and organizations. Unit chaplains may refer possible religious volunteers to the chaplaincy department.

*11 Along with sending letters, the chaplaincy department diligently worked to try and find volunteers and contract chaplains to conduct NA services at the Michael unit from June 2009 to May 2010. In May 2009, NA contract chaplain Nieto left the Michael unit. On November 19, 2009, chaplaincy contacted the Alabama Coushatta Tribe, there was no response. The same day chaplaincy contacted Sammy Gutierrez from the Tigua Indians in El Paso, Texas. Mr. Gutierrez stated that he was unavailable due to geographic location. On February 9, 2010, chaplaincy contacted Professor Lara–Lisa Condello on the Nicola Valley Institute of Technology; Institute of Indigenous Government of Canada, she was unavailable due to distance and geographic location. On February 12, 2010, chaplaincy contacted Dr. PeSheWa of the NA Church of Strawberry Plains Tennessee, she was unavailable due to distance and geographic location, but offered her advice if needed. In March 2010, chaplaincy contacted Kent Frazier from “Without Reservation” and he provided NA and Christian recordings. On March 16, 2012, chaplaincy contacted Doug Tapper from “Storyteller” radio program and he provided NA and Christian recordings. In March 2010, chaplaincy contacted Dr. Bob Pierce and proceeded to hire him as a NA contract chaplain as of May 2010, he held his first and only service at the Michael unit in June 2010. Furthermore, NA volunteer Sam Lonewolf started providing services at the Michael unit in June 2010 until November 2010. On May 20, 2010, Chaplain Sam Longoria visited with Javier Loera, a war captain, and Ysleta del Sur Pueblo, a tribal historic and preservation officer, they were unavailable due to distance and geographic location. From December 2010 through March 2011, Dr. Bob Pierce provided video recordings of services at the Michael unit. In Marc 2011, NA contract chaplain Chari Bouse started NA services at Michael, Hughes, Mountain View, Crain, and Murray units. In October 2011, NA contract chaplain Richard Van Wormer started religious services at the Stevenson unit. In November 2011, NA contract chaplain Ed Hernandez started NA services at Daniel, Connally, McConnell, and Terrell units. In April 2012, NA contract chaplain Ed Hernandez was hired as a State Chaplain I at the Estelle Unit and will continue to provide NA services once a month for offenders on the Terrell unit. He has also contacted the Alabama Coushatta tribe about volunteering and providing services for TDCJ. Currently, chaplaincy is in the process of hiring volunteer Shawn Mitchell as a NA contract chaplain for Daniel, McConnell, and Connally Units.FN5

FN5. Defendants' Exhibit U, page 2.

Chaplain Pierce's affidavit shows that the chaplaincy department has had a difficult time hiring and paying contract chaplains, along with finding qualified NA volunteers. Defendants submitted competent summary judgment evidence suggesting that such problems could be attributed to reluctance on the part of Native Americans to conduct the ceremonies or to the lack Native Americans in Texas.

*12 The Fifth Circuit has considered challenges by inmates of other faiths regarding the frequency of services. The volunteer policy has been reviewed and upheld on numerous occasions. See Mayfield, 529 F.3d at 613–14; McAlister v. Livingston, 348 Fed. Appx. 923, 936–37 (5th Cir.2009); Newby v. Quarterman, 325 Fed. Appx. 345, 350–52 (5th Cir.2009). Complaints about the frequency of services due to the limited number of outside volunteers were rejected. In the context of RLUIPA, the Fifth Circuit has held that the policy does not place a substantial burden on religious exercise. Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir.2007) (citing Adkins, 393 F.3d at 571). RLUIPA claims about the frequency of Native American services were specifically rejected in Odneal v. Pierce, No. 06–41165, 2009 WL 901511 at *4 (5th Cir. April 3, 2009). These cases are controlling. Furthermore, this Court recently rejected a similar RLUIPA claim by another practitioner of the Native American religion at the Michael Unit in Hopson v. TDCJ–CID, No. 6:09cv506, 2011 WL 4554379 (E.D.Tex. Sept.29, 2011) (no appeal). This issue has been repeatedly litigated and rejected by both the Fifth Circuit and this Court. Defendants are entitled to summary judgment with respect to Plaintiff's RLUIPA claims about the frequency of the ceremonies.

The next issue concerns the smudging ceremony. Plaintiff contends that he is required to participate in the smudging ceremony, where he rubs the smoke of certain burned herbs on his body, prior to all pipe and teaching ceremonies. Defendants contend that Plaintiff is allowed to smudge, using either dry or water smudging, prior to every ceremony. Plaintiff argued that the smudging ceremony should only be a dry ceremony, while the Defendants contend that there are both dry and water smudging ceremonies.

The dispute over whether the smudging ceremony should be dry or wet is not, however, the dispositive factor. Defendants observed that Plaintiff was once permitted to have a smoke ceremony indoors, but that is no longer possible because it activated the fire alarm. Although the kitchen utilizes flames in cooking procedures, an Ansul fire suppression system is used in those spaces and is designed to put out and control grease fires. Regional Director Eason explained that the system “protects areas associated with ventilating equipment including hoods, ducts, plenums, and filters, not generally recreational rooms and gyms. Therefore, it serves a different purpose than the already installed alarm systems at the units; this would only duplicate the fire code compliant systems TDCJ already has in place at the units.” It was noted that an Ansul fire suppression system costs $134,048.

Defendants correctly noted that the Fifth Circuit has held that RLUIPA “is not meant to elevate accommodation of religious observances over the institutional need ... to control costs,” and “controlling costs ... involves compelling governmental interests.” DeMoss, 636 F.3d at 154 (quoting Baranowski, 486 F.3d at 125). TDCJ is not obligated to spend large amounts of money in order that Plaintiff may have a smoke ceremony inside. Defendants also noted that TDCJ is not permitted to turn off the alarm system to permit the inside use of smoke. Such action could endanger the lives of other offenders, and the safety and security of the unit, as well as violate state law. Defendants correctly pointed out that the Fifth Circuit held in Thunderhorse that TDCJ had compelling governmental interests in not allowing incendiary items in the cells and that the prohibition was the least restrictive means to prevent inmates from starting fires inside their cells. 364 Fed. Appx. at 147–48. The same applies to Plaintiff being permitted to have a smoke ceremony inside.

*13 Nonetheless, when NA services are held outside, Plaintiff is permitted to have a dry smudging ceremony involving the burning of herbs. He is permitted to participate in a water smudging ceremony when ceremonies are held indoors. He is not permitted to have the ceremony outdoors more often due to the frequency issue heretofore discussed. TDCJ has compelling interests in safety, security and controlling costs in limiting dry smudging to ceremonies held outside, which is the least restrictive means of satisfying these compelling state interests.

The next issue addressed the weekly teaching ceremonies. Plaintiff wants to participate in weekly teaching ceremonies, which should take place in a large room wafted with smoke. Plaintiff wants to be dry smudged prior to each teaching ceremony. Defendants noted that TDCJ offers weekly services for Native American offenders at the Michael Unit, including one pipe ceremony, two Talking Circles and one teaching service. To provide additional teaching ceremonies would involve undue additional costs.

Defendants appropriately noted that the prison system is obligated to provide for many inmates' religious needs. TDCJ provides for the needs of members of the NA faith, even though the NA chaplains may not handle everything exactly in the manner Plaintiff desires. The Fifth Circuit has clearly stated that TDCJ “simply cannot be expected to provide group services catering to the desires of each individual inmate.” Freeman v. TDCJ, 369 F.3d 854 (5th Cir.2004). The Fifth Circuit made the following observation:

Although some Church of Christ prisoners may not be able to attend a service perfectly suited to their faith, this limitation is dictated by the demands of administering religious services to tens of thousands of inmates representing widely divergent faiths. TDCJ's policy provides the flexibility needed to accommodate the religious needs, to some degree, of the entire prison population.... The pertinent question is not whether the inmates have been denied specific religious accommodations, but whether, more broadly, the prison affords the inmates opportunities to exercise their faith.... TDCJ persuasively contends that yielding to the class's expansive demands would spawn a cottage industry of litigation and could have a negative impact on prison staff, inmates, and prison resources.

Id. at 861–62. Freeman was a free exercise case that used the standards set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); nonetheless, the discussion regarding accommodations to the specific desires of an individual inmate is equally applicable to claims filed under RLUIPA. Chaplain Bouse, the Native American chaplain who has been conducting services at the Michael Unit, has been conducting monthly meetings that have included the sacred pipe ceremonies and smudging rituals. She is not obligated to cater the meetings to the Plaintiff's specific desires. Defendants persuasively argued that it would be virtually impossible for numerous reasons to provide weekly or even monthly religious services to all members of the 230 faith groups in TDCJ, along with all of the nuances within faith groups, in light of security concerns, staffing and space limitations, and the large geographic expanse TDCJ covers, all of which are compelling governmental interests. As the Fifth Circuit concluded in Thunderhorse, there is no reason to question TDCJ's position that it is using the least restrictive means of furthering those compelling state interests.

*14 Defendants next focused on Plaintiff's desire to have pipe ceremonies on the four holidays, which concern four dates in NA history. Defendants initially noted that Plaintiff's desire to include additional pipe ceremonies for the four days involves issues previously discussed about the frequency in which ceremonies are held. Once again, this involves the availability of volunteers, and the Fifth Circuit has upheld the volunteer policy.

Defendants also noted that the problem with holy days had their genesis in the Thunderhorse decision decided by this Court. Defendants submitted competent summary judgment evidence noting that there are 565 recognized tribal entities in the United States, along with tribes that are not recognized, such as Thunderhorse's tribe. Each tribe has special days not recognized by the others. Defendants persuasively argued that it would be virtually impossible for the prison system to provide ceremonies for all of holidays of the various NA faith groups, along with all of the holidays of every other religion, in light of security concerns, staffing and space limitations, and the large geographic expanse TDCJ covers, all of which are compelling governmental interests. Once again, as the Fifth Circuit concluded in Thunderhorse, there is no reason to question TDCJ's position that it is using the least restrictive means of furthering those compelling state interests.

The final RLUIPA issue concerns Plaintiff's desire to carry a small lock of hair in a pouch from his deceased parents, to mourn their passing. He disputed the response provided by prison officials to his request that possession of the hair would pose a health hazzard. He argued that keeping small locks of his deceased parents' hair would be equally implicated by the horsehair, bone, teeth and feathers that he is already allowed to keep in his medicine bag. The Court has already decided that it is too late for relief on this issue since Plaintiff's parents died two to three years before the lawsuit was filed. Furthermore, the Fifth Circuit noted that it has held that circumscribing the use of a medicine bag did not rise to the level of a substantial burden on a prisoner's NA practice. Adkins, 393 F.3d at 568 n. 35. The Adkins decision is dispositive of this claim.

Defendants also pointed out that Plaintiff is not the only person who wants to keep special items. Hair could contain a controlled substance, such as having been dipped in embalming fluid, which could be smoked like PCP. Regional Director Eason noted that “[a]ny time we open the door for individuals to send items in, it breaches the security of our institution.” Defendants persuasively argued that TDCJ's policy of not allowing hair to be sent in by relatives is the least restrictive means of enforcing its compelling governmental interest of security.

Defendants Lowery, Pierce, Baker, Foxworth and Rupert next argued that they are entitled to qualified immunity to the extent that they have been sued in their individual capacities for damages. They have been sued for damages with respect to Plaintiff's free exercise and equal protection claims.

*15 The defense of qualified immunity protects government officials performing discretionary functions from “liability for civil damages insofar as their conduct does not violate clearly established rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir.2009). Government employees are presumptively entitled to the defense of qualified immunity. Once asserted, the burden shifts to a plaintiff to demonstrate that qualified immunity does not bar their recovery. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992). A two-step process has traditionally been employed in evaluating the defense of qualified immunity.   Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under the traditional approach, a court must first consider whether “the facts alleged show the officer's conduct violated a constitutional right.” Id. at 201. Second, if the plaintiff has satisfied the first step, courts are required to decide whether the right at issue was “clearly established” at the time of the defendant's alleged misconduct. Id. See also Brown v. Strain, 663 F.3d 245, 249 (5th Cir.2011). “To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.2010) (citations omitted). The Fifth Circuit has specified that the issue for a court's consideration with respect to the second step is whether the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question. Short v. West, 662 F.3d 320, 325 (5th Cir.2011) (citations omitted). Conclusory allegations of wrong-doing fail to satisfy both the first and second requirement. Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir.1988). More recently, the Supreme Court held that a case may be dismissed based on either step in the qualified immunity analysis: “The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in the light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Short v. West, 662 F.3d 320, 325 (5th Cir.2011).

Defendants first argued that Plaintiff has not shown a constitutional violation under the Free Exercise Clause. The Supreme Court has made it clear that prisoners must be provided “reasonable opportunities” to exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam ). The Court has recognized, however, that limits may be placed on the religious rights that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court held “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” and “[w]hen a prison regulation impinges upon the inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. Four factors that should be considered in determining the reasonableness of a regulation: (1) there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) are there alternative means of exercising the right that remain open to prison inmates; (3) the impact accommodation will have on guards and other inmates, and on the allocation of prison resources generally; and (4) the absence of alternatives is evidence of the reasonableness of a prison regulation. Id. 89–91. Shortly after the Turner decision, the Supreme Court applied the test to uphold a prison policy that prevented inmates from attending Islamic prayer services. O'Lone v. Estate of Shabazz, 482 U.S. 382 (1987). The Fifth Circuit subsequently added that the Supreme Court neither held any single factor to be dispositive, nor did it require all four factors to be met. Scott v. Mississippi Dept. of Corrections, 961 F.2d 77, 80 (5th Cir.1992). The first factor has been held to be controlling in these cases, and the other factors merely provided help in determining whether the connection was logical. Id. at 81. More recently, the Fifth Circuit reaffirmed the basic idea that rationality is the controlling factor. Mayfield, 529 F.3d at 607.

*16 Because Plaintiff has not shown a violation under RLUIPA, he likewise has not shown a violation of the Free Exercise Clause because RLUIPA imposes a more stringent standard than that of the First Amendment. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir.2008). Indeed, in Freeman, the Fifth Circuit expressed surprise that the inmate plaintiff brought religious claims under the First Amendment instead of RLUIPA because RLUIPA provides far greater challenges to prison regulations. 369 F.3d at 857 n. 1. The Fifth Circuit has considered free exercise claims similar to Plaintiff's claims and have rejected them. See Freeman, 369 F.3d at 862–63 (rejecting challenge to policy regarding volunteers); Baranowski, 486 F.3d at 121–22 (rejecting challenge to volunteer policy); Thunderhorse, supra (rejecting requests for items to practice NA faith, observance of holy days and pipe ceremony). As shown under the discussion of RLUIPA, there are valid rational connections between the challenged policies and practices and compelling governmental interests. The first factor in the Turner analysis is satisfied with respect to each of Plaintiff's claims.

Plaintiff also complained that he is not allowed to participate in NA ceremonies consistent with his beliefs, while inmates holding other religious beliefs are permitted to do so. He argued that his rights under the Equal Protection Clause are being violated. The Equal Protection Clause commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786, reh. denied, 458 U.S. 1131 (1982). To succeed in an equal protection claim, a plaintiff must prove purposeful discrimination resulting in a discriminatory effect among persons similarly situated. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Adkins, 393 F.3d at 566. “Discriminatory purpose in an equal protection context implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.1995). Prison officials are not required to allocate their resources equally among all religious groups within the prison system regardless of the size of each sect. Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir.1996). “A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of demand.” Cruz v. Beto, 405 U.S. at 322 n. 2. Defendants have shown that they have gone to great lengths to find volunteers and to hold meaningful religious activities for members of the NA faith. Their actions negate any discriminatory purpose which could be attributed to them. Plaintiff has not shown that they engage in any discriminatory actions.

*17 Defendants also noted that the amount of time set aside for Plaintiff's religious activities is more than generous when contrasted to other religious groups meeting at the Michael Unit. For example, there were 341 NA offenders as of February 29, 2012. At the same time, there were 460 Roman Catholics, 704 Baptists and 678 Christian non-denominational. Each group is allotted time to observe their religious beliefs. Although some of those groups may have more religious programming than NA, this is not due to discrimination, but simply due to the fact that their numbers far exceed the 341 NA offenders. Defendants persuasively argued that Plaintiff has not established an equal protection violation.

Overall, Plaintiff has not shown a constitutional violation in order to satisfy the first step in the qualified immunity analysis. He likewise failed to show that any of the individual defendants engaged in actions that were objectively unreasonable in light of clearly established law. Defendants are entitled to summary judgment based on qualified immunity to the extent that they have been sued in their individual capacities for damages.

Finally, the Court will briefly revisit Plaintiff's request for injunctive and declaratory relief. Since Plaintiff has not shown a violation under RLUIPA, the Free Exercise Clause or the Equal Protection Clause, he is not entitled to any relief, including injunctive or declaratory relief.

Recommendation

It is recommended that the Defendants' motion for summary judgment (docket entry # 59) be granted and the complaint be dismissed with prejudice.

Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.

A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir.1996) (en banc ).

So ORDERED.

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