Turner v. Collier et al
Filing
115
OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN PART AND GRANTING TEMPORARY INJUNCTIVE RELIEF. The motions by Defendants Texas Department of Criminal Justice, Bryan Collier, David Goldstein, and Timothy Jones are GRANTED IN PART and DENIED IN PART. Dk ts 94 & 110. The motions are GRANTED as to the First Amendment free exercise claim, the Fourteenth Amendment equal protection claim, and the Americans with Disabilities Act claim. Those claims are DISMISSED WITH PREJUDICE. The motions are otherwise D ENIED. The motion by Plaintiff Noel Turner For preliminary injunction is GRANTED. Dkt 102. A separate order of preliminary injunction will be ENTERED compelling Defendants as follows: The State of Texas must provide Plaintiff Noel Turner three shelf -stable kosher meals per day, a hot pot that is to be used to heat those meals, and a location in which he can store such items. This relief is narrowly drawn, extends no further than necessary to correct the harm, and is the least intrusive means ne cessary to correct the harm. 18 USC § 3626(a)(2). TDCJ retains discretion under RLUIPA to avoid the preemptive force of this injunctive relief by changing the policy or practice that results in a substantial burden on religious exercise, by ret aining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden. 42 USC § 2000cc-3(e). A separate order appointing counsel for Turner will also be ENTERED. (Signed by Judge Charles Eskridge) Parties notified.(JosephWells, 4)
United States District Court
Southern District of Texas
ENTERED
September 30, 2022
Nathan Ochsner, Clerk
I’M UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NOEL TURNER,
§ CIVIL ACTION NO
Plaintiff, § 4:19-cv-04124
§
§
vs.
§ JUDGE CHARLES ESKRIDGE
§
§
BRYAN COLLIER,
§
et al,
§
Defendants. §
OPINION AND ORDER
GRANTING SUMMARY JUDGMENT IN PART AND GRANTING
TEMPORARY INJUNCTIVE RELIEF
The motions by Texas Department of Criminal Justice,
Bryan Collier, David Goldstein, and Timothy Jones for
summary judgment are granted in part and denied in part.
Dkts 94 & 110.
The motion by Noel Turner for preliminary injunctive
relief is granted. Dkt 102.
1. Background
Noel Turner is an inmate at the Texas Department of
Criminal Justice. Dkt 66 at ¶ 1. He contends that he was
born and raised Jewish, that he has earnestly practiced his
faith both before and while in prison, and that this includes
observing a kosher diet. Id at ¶¶ 24–26. He contends, “To
eat non-kosher food damages the soul/spiritual aspect of
the individual. It is a sin/transgression of Biblical
Commandments.” Dkt 13 at 14. To this end, and due to his
status as an indigent inmate, Turner seeks free shelfstable kosher meals, a hot pot to heat those meals, and a
storage locker for such items. See Dkt 66 at 20–21.
Turner brought this action pro se in December 2018.
Dkt 1. His filings are thus liberally construed. Erickson v
Pardus, 551 US 89, 94 (2007). Named as defendants are
Texas Department of Criminal Justice (as administrator of
the prison system of the State of Texas), Bryan Collier (as
Executive Director of the TDCJ), Rabbi David Goldstein (as
a contracted rabbi within the TDCJ Chaplaincy
Department), and Timothy Jones (as the TDCJ Deputy
Director of Chaplaincy). See Dkt 66 (second amended
complaint).
The heading of the second amended complaint
suggests that the individual Defendants are sued in their
individual and official capacities. Id at 1. But the pleading
itself suggests that they are sued in their individual
capacity alone. Id at ¶¶ 11, 13–14. Given that Turner
primarily seeks injunctive relief while also suing the TDCJ
in its “individual and official capacities,” it will be assumed
that the individual Defendants are also sued in both
capacities. Regardless, to the extent that they all assert
qualified immunity, it doesn’t “protect officials from
injunctive relief.” Williams v Ballard, 466 F3d 330, 334 n 7
(5th Cir 2006). Defendants will thus be referred to together
as TDCJ.
The TDCJ Chaplaincy Department implements
procedures to facilitate the pursuit of “individual religious
beliefs and practices, consistent with security, safety, and
orderly conditions in the unit.” Dkt 94-4 at 2. To this end,
TDCJ maintains two types of Jewish designated units.
Enhanced Jewish units provide free kosher meals to all
residents. Id at 4. Basic Jewish units make kosher products
available “for purchase at the offender’s expense.” Ibid.
TDCJ currently maintains one enhanced Jewish unit,
which is Stringfellow. It also maintains three basic Jewish
units—Jester III, Stiles, and Wynne. Ibid.
An offender may qualify for the enhanced Jewish unit
in one of three ways. First, if he’s born of a Jewish mother.
Second, if he maintains a Jewish background with
continuous study in the Jewish faith. Or third, if he
converts to Judaism in a manner consistent with Jewish
2
law. An offender may qualify for a basic Jewish unit if he
satisfactorily completes thirty of forty-five lessons in the
Jewish Interest Correspondence Course and maintains
knowledge of the Jewish faith and sincerely holds that
faith as determined by a Jewish rabbi employed by the
TDCJ. An offender who properly qualifies for either unit
type yet can’t be assigned to that unit because of custody
level, required treatment or educational program, or other
reason may be transferred to another unit “until the
condition preventing transfer changes.” Dkt 94-4 at 5.
Turner was first incarcerated in 1989 for a felony
offense in Angelina County, Texas. Dkt 94-6 at 53. He
asserts that he was placed in Coffield until 1991, at which
time he was transferred to Ramsey II so that he could
participate in Jewish services. TDCJ transferred him to
Stringfellow later that same year. TDCJ then transferred
Turner to Central in 1999, and it soon after transferred
him to Huntsville. Dkts 66 at ¶ 35 & 114 at 6. In 2004
during the same prison sentence, Turner received two
medical restrictions that limited him to single-level
facilities. Dkt 94-6 at 17; Dkt 66 at ¶ 34. Turner asserts
that despite this designation, he was again transferred to
Stringfellow—a multi-level facility—in 2007 so that he
could participate in its newly implemented kosher food
program. He remained there until he was attacked by
another prisoner. Dkt 66 at ¶ 38; Dkt 13 at 8. TDCJ
thereafter transferred Turner to an unspecified unit, where
he resided until his release in January 2009. Dkts 13 at 8,
66 at ¶ 40 & 94-6 at 53.
Turner’s present incarceration began in June 2013.
Dkt 94-6 at 53. He was assigned to Jester III—a singlelevel facility that is, as previously noted, a basic Jewish
unit. Dkt 66 at ¶ 42. But he wasn’t approved for
Stringfellow, the enhanced Jewish unit. Dkt 94-4 at 6–7.
Indeed, his religious classification was erroneously entered
as “unspecified Christian.” Turner altered this
classification immediately upon discovery in October 2013.
Dkt 13 at 16. He was thus allowed to participate in Jewish
programming while housed at Jester III. Dkt 94-4 at 6–7.
3
Turner first applied for assignment to an enhanced
Jewish-designated unit in 2016. That request was denied
due to his disciplinary history. Dkt 94-2 at 6–9. But Turner
remained at Jester III until October 2018, at which time he
was temporarily transferred to Terrell due to safety
concerns. Dkts 13 at 1 & 94 at 5. Turner in 2019 again
applied to be housed at a Jewish-designated unit in hopes
of returning to Jester III. Dkts 94-2 at 3 & 94-3 at 8. Rabbi
Goldstein approved that request upon determining that
Turner qualified for basic Jewish units but not for the
enhanced Jewish unit. Dkt 94-3 at 4–10. Turner returned
to Jester III on April 26, 2019. Dkts 66 at ¶ 42 & 13 at 1.
But he was again transferred in December 2020 due to
concerns for his safety. Dkt 48 at 1.
Turner currently resides at Powledge, which isn’t a
Jewish-designated unit. But it appears that the unit
nonetheless makes kosher food available for purchase in
the commissary. Dkts 13 & 66 at ¶ 51. Turner alleges that
he’s unable to access that food due to his indigent status.
Dkt 66 at ¶ 51. Indeed, Turner has made multiple requests
for free kosher meals—including filing Step One and Step
Two grievances. See Dkts 13 at 5 & 94-3 at 44. TDCJ has
rebuffed these requests. Dkt 13 at 5–7 & 94–3 at 44. He
consequently brought this action, asserting claims under
the Religious Land Use and Institutionalized Persons Act,
the First Amendment, the Americans with Disabilities Act,
the Texas Religious Freedom Restoration Act. Dkt 1.
Claims for negligence were added in Turner’s First
Amended Complaint. Dkt 35 at 19.
Collier, Goldstein, and TDCJ moved to dismiss in July
2020. Dkt 41. Judge Vanessa D. Gilmore granted the
motion as to the TRFRA and negligence claims but denied
it as to the RLUIPA, ADA, and constitutional claims.
Dkt 52. The motion to dismiss compensatory damages
under the ADA was also granted, but with leave to amend.
Ibid.
Turner filed his second amended complaint in April
2021, adding a Fourteenth Amendment claim and Jones as
a defendant. Dkt 66. Collier, Goldstein, and TDCJ moved
4
for summary judgment in September 2021. Dkt 94. The
action was reassigned to this Court in December 2021. Dkt
100. Turner moved for a preliminary injunction in January
2022. Dkt 102. Jones moved for summary judgment in June
2022. Dkt 110.
2. Legal standards
a. Summary judgment
Rule 56(a) of the Federal Rules of Civil Procedure
requires a court to enter summary judgment when the
movant establishes that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.” A fact is material if it “might affect the
outcome of the suit under the governing law.” Sulzer
Carbomedics Inc v Oregon Cardio-Devices Inc, 257 F3d 449,
456 (5th Cir 2001), quoting Anderson v Liberty Lobby Inc,
477 US 242, 248 (1986). And a dispute is genuine if the
“evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Royal v CCC & R Tres
Arboles LLC, 736 F3d 396, 400 (5th Cir 2013),
quoting Anderson, 477 US at 248.
The summary judgment stage doesn’t involve weighing
the evidence or determining the truth of the matter. The
task is solely to determine whether a genuine issue exists
that would allow a reasonable jury to return a verdict for
the nonmoving party. Smith v Harris County, 956 F3d 311,
316 (5th Cir 2020). Disputed factual issues must be
resolved in favor of the nonmoving party. Little v Liquid
Air Corp, 37 F3d 1069, 1075 (5th Cir 1994). All reasonable
inferences must also be drawn in the light most favorable
to the nonmoving party. Connors v Graves, 538 F3d 373,
376 (5th Cir 2008).
The moving party typically bears the entire burden to
demonstrate the absence of a genuine issue of material
fact. Nola Spice Designs LLC v Haydel Enterprises Inc, 783
F3d 527, 536 (5th Cir 2015); see also Celotex Corp v Catrett,
477 US 317, 322–23 (1986). But when a motion for
summary judgment by a defendant presents a question on
which the plaintiff bears the burden of proof at trial, the
5
burden shifts to the plaintiff to proffer summary judgment
proof establishing an issue of material fact warranting
trial. Nola Spice, 783 F3d at 536. To meet this burden of
proof, the evidence must be both “competent and
admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460
(5th Cir 2012).
b. Preliminary injunction
A preliminary injunction is an “extraordinary remedy.”
Byrm v Landreth, 566 F3d 442, 445 (5th Cir 2009). Its
purpose is to preserve the status quo during pendency of
the litigation. See City of Dallas v Delta Air Lines Inc, 847
F3d 279, 285 (5th Cir 2017). As stated by the Fifth Circuit,
“The purpose of a preliminary injunction is always to
prevent irreparable injury so as to preserve the court’s
ability to render a meaningful decision on the merits.”
Canal Authority of the State of Florida v Callaway, 489 F2d
567, 576 (5th Cir 1974).
A federal court may generally grant a preliminary
injunction only on a movant’s showing as to the familiar
factors of (i) a substantial likelihood of success on the
merits; (ii) a substantial threat of irreparable harm;
(iii) the balance of equities tips in the applicant’s favor; and
(iv) an injunction is in the public interest. Robinson v Hunt
County, 921 F3d 440, 451 (5th Cir 2019). Once such
findings are made, crafting a preliminary injunction is “an
exercise of discretion and judgment, often dependent as
much on the equities of a given case as the substance of the
legal issues it presents.” Trump v International Refugee
Assistance Project, 137 S Ct 2080, 2087 (2017).
A court issuing a preliminary injunction must provide
findings and conclusions that support its decision.
FRCP 52; see also Ali v Quarterman, 607 F3d 1046, 1048
(5th Cir 2010); Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2949 (Westlaw 2022). But
the preliminary injunction stage is less formal than trial,
and the Supreme Court generally recognizes that “a
preliminary injunction is customarily granted on the basis
of procedures that are less formal and evidence that is less
complete than in a trial on the merits.” University of Texas
6
v Camenisch, 451 US 390, 395 (1981). A federal court may
thus consider hearsay and similar evidence when deciding
whether to enter a preliminary injunction. See Sierra Club,
Lone Star Chapter v FDIC, 992 F2d 545, 551 (5th Cir 1993).
3. Analysis
The motions by Defendants for summary judgment as
to Turner’s claims under the First Amendment, Fourteenth
Amendment, and ADA will be addressed first. Dkts 94 &
110. Then follows determination of the motion by Turner
for preliminary injunction as it relates to his RLUIPA
claim. Dkt 102.
a. Free exercise of religion
“Lawful incarceration inherently involves the
limitation of many privileges and rights, but prisoners still
benefit from some constitutional protections, including the
First Amendment ‘directive that no law shall prohibit the
free exercise of religion.’” Butts v Martin, 877 F3d 571, 584
(5th Cir 2017), quoting O’Lone v Estate of Shabazz, 482 US
342, 348 (1987). That right has been incorporated against
the states via the Due Process Clause of the Fourteenth
Amendment. Cantwell v Connecticut, 310 US 296, 303
(1940). And it may be enforced against state officials
through 42 USC § 1983.
“Whether a prison regulation impermissibly
encroaches upon a prisoner’s First Amendment rights
depends upon whether it is reasonably related to legitimate
penological interests.” Butts, 877 F3d at 584 (quotation
marks and citation omitted). To that end, courts must
determine:
(i) whether a valid, rational connection
exists between the prison regulation and
the legitimate governmental interest put
forward to justify it, (ii) whether there exist
alternative means of exercising the
fundamental right that remain open to
prison inmates, (iii) what impact accommodation of the asserted constitutional right
will have on guards and other inmates, and
7
on the allocation of prison resources
generally, and (iv) whether there is an
absence of ready alternative to the
regulation in question.
Brown v Collier, 929 F3d 218, 232 (5th Cir 2019) (quotation
marks omitted), citing Turner v Safley, 482 US 78, 89–90
(1987). “Ultimately, the government objective must be a
legitimate and neutral one.” Butts, 877 F3d at 585
(quotation marks and citation omitted).
The Fifth Circuit has long held that “the denial of a
kosher diet does not violate” the Free Exercise Clause.
Baranowski v Hart, 486 F3d 112, 122 (5th Cir 2007); see
also Kahey v Jones, 836 F2d 948, 950–51 (5th Cir 1988);
Udey v Kastner, 805 F2d 1218, 1221 (5th Cir 1986). This
necessarily means that a policy making kosher meals
available for purchase isn’t a violation either.
Summary judgment will be granted as to Turner’s
claim under the First Amendment.
b. Equal protection of the laws
To succeed on his equal protection claim, a plaintiff
“must prove purposeful discrimination resulting in a
discriminatory effect among persons similarly situated.”
Adkins v Kaspar, 393 F3d 559, 566 (5th Cir 2004)
(quotation marks and citation omitted).
Turner alleges that he’s being discriminated against
due to his disability. He argues that non-disabled
individuals in an enhanced Jewish unit receive free kosher
meals, whereas those who otherwise qualify for such a unit
but can’t be housed there due to a disability aren’t provided
free kosher meals. See Dkt 66 at ¶¶ 137–138.
The argument fails for two reasons. First, the factual
foundation is incorrect. TDCJ has determined that Turner
doesn’t qualify for an enhanced Jewish unit. Dkt 94 at 15.
He thus isn’t similarly situated to those who do qualify for
such a unit. Second, even if equal protection analysis
applied, “disability is not a suspect classification like race,
alienage, or national origin, or a quasi-suspect classification like gender.” D.C. v Klein Independent School
8
District, 711 F Supp 2d 739, 748 (SD Tex 2010), citing City
of Cleburne v Cleburne Living Center, 473 US 432, 442
(1985). And TDCJ easily clears the rational basis analysis
that pertains.
Summary judgment will be granted on Turner’s claim
under the Fourteenth Amendment.
c. American with Disabilities Act
Turner claims he is denied access to free kosher meals
because of his disabilities. And he argues that such a denial
violates the ADA. Dkt 66 ¶¶ 78–80. TDCJ moves for
summary judgment based on Eleventh Amendment
immunity and failure to demonstrate denial of benefit.
Dkt 94 at 17.
i. Eleventh Amendment Immunity
TDCJ presents only a brief argument that the ADA
claim brought by Turner is barred by Eleventh
Amendment immunity. Dkt 94 at 17–18. The applicability
of such a defense presents a complicated legal question that
requires analysis of which aspects of the alleged conduct by
the State violated Title II; to what extent such misconduct
also violated the Fourteenth Amendment; and whether
(insofar as such conduct violated Title II but didn't violate
the Fourteenth Amendment) the purported abrogation of
sovereign immunity by Congress in such contexts is
nevertheless valid. Smith v Hood, 900 F3d 180, 184 (5th
Cir 2018), quoting United States v Georgia, 546 US 151,
159 (2006).
The claim by Turner clearly fails on an essential
element of an ADA claim—that being that he was not
prevented from participating in the enhanced designated
unit because of his disability. The question of Eleventh
Amendment immunity needn’t be addressed.
ii. Denial of a benefit
To prevail on an ADA claim, a plaintiff must show that
his exclusion from a service was based upon his disability.
Davidson v Texas Department of Criminal Justice, 91 F
Appx 963, 965 (5th Cir 2012); see also Melton v Dallas Area
Rapid Transit, 391 F3d 669, 676 n 8 (5th Cir 2004).
9
Turner contends that TDCJ is denying his
participation in the free kosher food program due to his
disabilities—specifically, he can’t be housed in Stringfellow
because he’s limited to single-level facilities. Dkt 66 at 9–
10. To the contrary, Turner’s disability isn’t the reason he
wasn’t transferred to an enhanced Jewish unit. He instead
didn’t qualify for such a unit under TDCJ chaplaincy
policy. Dkt 94-4 at 4–5. This means that, even absent his
disability, he still wouldn’t receive the benefit he seeks.
Summary judgment will be granted as to Turner’s
claim under the ADA.
d. Religious Land Use and Institutionalized
Persons Act
TDCJ seeks summary judgment on Turner’s RLUIPA
claim. To the contrary, Turner has demonstrated a
substantial likelihood of success on the merits. This in turn
supports entry of a preliminary injunction in his favor.
Proper framing of Turner’s RLUIPA claim is essential.
TDCJ argues, “Turner cannot show that he is presently
qualified to be housed on an enhanced Jewish designated
unit.” Dkt 94 at 17. But that isn’t Turner’s request. He
doesn’t ask for a transfer or even recognition that he
qualifies for such a transfer. He instead seeks injunctive
relief ordering TDCJ simply to provide him free shelfstable kosher meals, a hot pot, and a locker to store such
items—accommodations that will allow him to maintain a
kosher diet without regard to where he’s housed. See Dkts
66 at 20–21 & 98 at 1.
The narrow question at hand, then, is whether
withholding the accommodation actually sought by Turner
violates his RLUIPA rights.
i. Likelihood of success on the merits
RLUIPA provides:
No government shall impose a substantial
burden on the religious exercise of a person
residing in or confined to an institution . . .
even if the burden results from a rule of
general applicability, unless the govern-
10
ment demonstrates that imposition of the
burden on that person—
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
42 USC § 2000cc-1(a)(1)–(2).
There are, textually, four main points of inquiry:
o Whether the practice at issue and the
attendant, requested accommodation implicates a religious exercise within the meaning of
RLUIPA;
o Whether the subject governmental policy
imposes a substantial burden on the specified
religious exercise;
o If so, whether a compelling governmental
interest supports the burden imposed; and
o If so, whether that interest is being implemented by the least restrictive means.
Related to the first inquiry is another, implicit one:
o Whether the complaining party is sincere in his
observance of the subject religious practice and
attendant request for accommodation.
Holt v Hobbs, 574 US 352, 360–62 (2015); Moussazadeh v
Texas Department of Criminal Justice, 703 F3d 781, 790 &
794–95 (5th Cir 2012).
RLUIPA requires a burden-shifting analysis. See
42 USC § 2000cc-1(a). A plaintiff must initially show that
the challenged government practice imposes a substantial
burden on his or her religious exercise. Ramirez v Collier,
142 SCt 1264, 1277 (2022). If shown, “the burden flips,”
with the government then required to demonstrate that the
burden imposed is the least restrictive means of furthering
a compelling governmental interest. Ibid (quotation marks
and citation omitted); see also Brown v Collier, 929 F3d
218, 229 (5th Cir 2019).
11
Turner argues that the denial of free kosher food places
a substantial burden on his religious exercise. Dkt 66 at
¶¶ 111, 145. TDCJ contests the sincerity of Turner’s beliefs
and argues that their existing policy is the least restrictive
means of furthering a compelling government interest.
A. Religious exercise
RLUIPA defines religious exercise to mean “any
exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” 42 USC § 2000cc-5(7)(A).
Kosher food is well-recognized practice by members of the
Jewish faith. TDCJ doesn’t dispute this. See Dkt 94 at 13–
17. As such, the accommodation by which Turner seeks to
maintain a kosher diet must be deemed to meet the
definition of religious exercise under RLUIPA.
B. Sincerity
The Supreme Court instructs that a prisoner’s
requested accommodation “must be sincerely based on a
religious belief and not some other motivation.” Holt, 574
US at 360–61. The Fifth Circuit likewise observes that
scrutiny into religious sincerity addresses the question of
whether the adherent has “an honest belief that the
practice is important to his free exercise of religion,” which
is “almost exclusively a credibility assessment.”
Moussazadeh, 703 F3d at 790 & 792 (cleaned up).
When contested, the issue depends strongly upon the
specific facts of the case. The narrow question is whether
the plaintiff personally believes that the desired religious
practices are deeply important. See Sossamon v Lone Star
State of Texas, 560 F3d 316, 332-33 (5th Cir 2009). It
certainly isn’t the place of federal, state, or local
governments to dictate how religion should be practiced or
to define who is and isn’t devout. As observed by the
Supreme Court, “Men may believe what they cannot prove.
They may not be put to the proof of their religious doctrines
or beliefs.” United States v Ballard, 322 US 78, 86 (1944).
And so quite clearly, the inquiry isn’t a decision on the
truth or validity of the inmate’s belief. The question instead
is only whether the belief is “truly held.” United States v
12
Seeger, 380 US 163, 185 (1965). As such, sincerity is
“generally presumed or easily established.” Moussazadeh,
703 F3d at 791.
TDCJ contends that Turner can’t demonstrate that
he’s Jewish under Jewish law. Dkt 94 at 16. For his part,
Turner responds that he was born of a Jewish mother,
which alone makes him a Jew under Jewish law. He also
argues that he qualifies as having “a Jewish background
with continuous study in the Jewish faith.” Dkts 98 at 6 &
114 at 3; see also Dkt 94-4 at 5.
The argument and the rejoinder both miss the mark.
The Fifth Circuit has noted wide agreement among the
Circuits that “clergy opinion has generally been deemed
insufficient to override a prisoner’s sincerely held religious
belief.” McAlister v Livingston, 348 F Appx 923, 935 (5th
Cir 2009). The question under RLUIPA, then, isn’t whether
the religion (or a certain sect of the religion) would consider
plaintiff an observing member. The inquiry instead is
whether the plaintiff sincerely holds the tenants of his
asserted religion. See Sossamon, 560 F3d at 332.
Turner’s sincere desire to maintain a kosher diet and
practice the orthodox Jewish faith is undeniable. He
sufficiently establishes or alleges at least the following:
o He attended synagogue and kept kosher before
coming to prison. Dkt 66 at ¶ 25.
o He has maintained membership in the Aleph
Institute—which Turner describes as “a Jewish
organization that verifies Jewish origin, birth,
background, and practice”—since 1990 and has
completed all Aleph correspondence courses
(though TDCJ has been unable to verify this
claim). Dkts 66 at ¶ 27 n 1 & 98 at 6–7; but see
94-3 at 5.
o He quickly corrected his religious classification
in 2013 upon discovering it was entered
incorrectly as “unspecified Christian.” Dkts 13
at 16 & Dkt 94-3 at 2.
13
He’s been an active member within TDCJ’s
Jewish Program during his incarceration,
which TDCJ doesn’t dispute. Dkt 114 at 4; see
also Dkt 94 at 15.
o He has requested access to kosher foods
multiple times, including through Step One
and Step Two grievances. See 94-2 at 5–10, 16–
20; see also 94-3 at 44.
o He brought action in 2017 challenging the
religious headwear and grooming policies of
TDCJ. See Turner v Texas Department of
Criminal Justice, 4:17-cv-00297 (SD Tex) at
Dkt 96 (dismissed as moot after modifications
to TDCJ policy).
o And he’s steadfastly maintained this action
since late 2018.
TDCJ admits elsewhere that Turner has met the
requirements for basic Jewish housing. Dkt 94-3 at 6. It’s
thus difficult to entertain any deficiencies as to the
sincerity of Turner’s beliefs, especially when paired with
the above thirty years of expressed interest in the orthodox
Jewish faith and repeated attempts to obtain kosher foods.
Turner has made the requisite prima facie showing
that the requested religious practices are deeply important
to him as a subjective matter.
C. Substantial burden
The plaintiff bears the initial burden of proof in a
RLUIPA case to establish that the prison policy
substantially burdens his religious exercise. Holt, 574 US
at 360. But that burden is borne in a context where
RLUIPA has granted “expansive protection for religious
liberty,” affording an inmate with “greater protection” than
is available under the First Amendment. Id at 358 & 361.
A government practice imposes a substantial burden on
religious exercise where it “truly pressures the adherent to
significantly modify his religious behavior and
significantly violate his religious beliefs.” Adkins v Kaspar,
393 F3d 559, 569–70 (5th Cir 2004). A violation is
o
14
significant in this regard when it either “influences the
adherent to act in a way that violates his religious beliefs”
or “forces the adherent to choose between, on the one hand,
enjoying some generally available, non-trivial benefit, and,
on the other hand, following his religious beliefs.” Id at 570.
By contrast, a government practice imposes no substantial
burden “if it merely prevents the adherent from either
enjoying some benefit that is not otherwise generally
available or acting in a way that is not otherwise generally
allowed.” Ibid.
This typically is a fact-intensive inquiry that requires
a case-by-case analysis. Turner v Texas Department of
Criminal Justice, 836 F Appx 227, 230 (5th Cir 2021, per
curiam). But requests for religious accommodation in other
contexts provide helpful comparison. Indeed, the Fifth
Circuit case Moussazadeh v Texas Department of Criminal
Justice presents substantially similar facts to those at
issue here. The prisoner in Moussazadeh qualified for an
enhanced Jewish unit. But he was removed from that unit
and placed in a basic Jewish unit due to a disciplinary
infraction. He was thus relegated to purchasing kosher
food from the commissary. The prisoner subsequently
brought action under RLUIPA, seeking free kosher meals.
703 F3d at 786–87. Regarding substantial burden, the
Fifth Circuit found:
Where an inmate is denied a generally
available benefit because of his religious
beliefs, a substantial burden is imposed on
him. Every prisoner in TDCJ’s custody
receives a nutritionally sufficient diet.
Every observant Jewish prisoner at
Stringfellow receives a kosher diet free of
charge. Only Moussazadeh is denied that
benefit, because he is forced to pay for his
kosher meals. This practice substantially
burdens his ability to exercise his religious
beliefs.
Moussazadeh, 703 F3d at 794.
15
The only difference between the prisoner in
Moussazadeh and Turner is that Turner isn’t qualified for
an enhanced Jewish unit. But TDCJ is responsible for that
distinction because it arrogates to itself a purported ability
to define which inmates sincerely hold certain religious
beliefs. When that dubious sorting is set aside—and when
the inmate’s own sincerely held religious beliefs provide
the marker, as required by RLUIPA—Turner’s situation is
precisely that of the inmate in Moussazadeh. Both
maintain a sincerely held belief that they are Jewish. Both
believe they must maintain a kosher diet. And both are
forced to purchase kosher meals through the commissary.
As such, these circumstances substantially burden
Turner’s religious exercise.
Two further observations are readily apparent. One is
that Turner can’t access kosher food in the commissary due
to his indigent status. The other is that this reality forces
him to face an unavoidable choice every day of either
breaking his religious tenants or facing malnutrition. Dkt
66 at ¶¶ 43–45. Turner himself asserts that he’s relegated
to eating bread, vegetables, and beans as available with
meals or trading his meals for kosher commissary items.
Dkt 114 at 7; see also Dkt 87. In other words, TDCJ policy
is forcing Turner to choose between a generally available,
non-trivial benefit—that is, free nutritious meals—and
following his sincerely held religious beliefs. See Dkt 66 at
¶ 43; Adkins, 393 F3d at 570.
Based on the present record, Turner has sufficiently
shown a substantial burden on his religious exercise.
D. Compelling government interest
As to defining a compelling governmental interest in the
religious-exercise context, the Supreme Court stresses,
“The essence of all that has been said and written on the
subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate
claims to the free exercise of religion.” Wisconsin v Yoder,
406 US 205, 215 (1972). The Supreme Court and the Fifth
Circuit have both returned to this articulation in recent
years. See Fulton v City of Philadelphia, 141 S Ct 1868,
16
1881 (2021); McAllen Grace Brethren Church v Salazar,
764 F3d 465, 472 (5th Cir 2014). The Fifth Circuit has
likewise observed, “In this highly sensitive constitutional
area only the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.” Combs
v Central Texas Annual Conference of the United Methodist
Church, 173 F3d 343, 346 (5th Cir 1999) (cleaned up).
TDCJ argues that the injunction requested by Turner
would require it to not only “face the direct costs of the
purchase of kosher food and appliances” but would also
require it to “train personnel and modify security
procedures to comply with the preliminary injunction.” Dkt
75 at 6. This articulates concerns over security and costs.
These surely are compelling interests in the prison context.
Baranowski v Hart, 486 F3d 112, 125 (5th Cir 2007)
(holding policy “related to maintaining good order and
controlling costs” involves “compelling government
interests”).
Even so, these generalized interests are inadequate to
meet TDCJ’s burden. And that is “to demonstrate that its
policy ‘actually furthers’ a compelling interest when
applied to ‘the particular claimant whose sincere exercise
of religion is being substantially burdened.’” Tucker v
Collier, 906 F3d 295, 302–03 (5th Cir 2018), quoting Holt,
574 US at 363–64. The Supreme Court likewise instructs
that courts “cannot rely on broadly formulated
governmental interests,” but rather must scrutinize “the
asserted harm of granting specific exemptions to particular
religious claimants.” Mast v Fillmore County, 141 S Ct
2430, 2432 (2021) (Gorsuch, J, concurring), quoting Fulton,
141 S Ct at 1881, in turn quoting Gonzales v O Centro
Espirita Beneficente União do Vegetal, 546 US 418, 431
(2006) (cleaned up).
As to security, TDCJ fails to explain why provision of
the requested accommodations would require any
substantial training or modification of security procedures.
See Moussazadeh, 703 F3d at 794. Indeed, the assertion
rings particularly hollow considering kosher meals and hot
pots are already available for purchase in the commissary.
17
As to cost, the parties don’t sufficiently brief the issue.
But the Fifth Circuit in Moussazadeh found that “the
increased cost of providing kosher food to all observant
prisoners is minimal,” where the increased cost is but
$88,000 per year as against a “total food budget” for TDCJ
of $183.5 million. 703 F3d at 794–95. Those numbers have
no doubt increased since that decision in 2012. But the
point remains—the expense to accommodate Turner is
miniscule in comparison to the total TDCJ food budget.
And RLUIPA expressly anticipates that “this chapter may
require a government to incur expenses in its own
operations to avoid imposing a substantial burden on
religious exercise.” 42 USC § 2000cc-3(c).
TDCJ hasn’t at present demonstrated that its policy
actually furthers a compelling government interest when
applied to Turner.
E. Least restrictive means
The Fifth Circuit holds that least restrictive means “has
its plain meaning.” Sossamon, 560 F3d at 332. 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 parties.”
Burwell v Hobby Lobby Stores Inc, 573 US 682, 728 (2014).
“Put another way, so long as the government can achieve
its interests in a manner that does not burden religion, it
must do so.” Fulton, 141 S Ct at 1881.
This is “the most demanding test known to
constitutional law.” City of Borne v Flores, 521 US 507, 534
(1997). True, courts must give “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.” Chance
v Texas Department of Criminal Justice, 730 F3d 404, 410
(5th Cir 2013), quoting Cutter v Wilkinson, 544 US 709, 723
(2005) (cleaned up); see also O’Lone v Estate of Shabazz,
482 US 342, 349 (1987). But those administrators may not
simply “assume a plausible, less restrictive alternative
would be ineffective.” United States v Playboy Entertain-
18
ment Group Inc, 529 US 803, 824 (2002). As aptly and
recently summarized by Justice Gorsuch, “RLUIPA
prohibits governments from infringing sincerely held
religious beliefs and practices except as a last resort.” Mast,
141 S Ct at 2433 (Gorsuch, J, concurring).
In short, the burden is on the government to
affirmatively establish that alternatives to its chosen
course—here, the denial of free kosher meals to an indigent
prisoner who sincerely believes he must observe a kosher
diet as part of his faith—are ineffective. Ali, 822 F3d at
786. And the present record doesn’t support TDCJ
contention that it has adopted the least restrictive means
of meeting its compelling governmental interests. This is
particularly so where it has already provided prisoners the
very accommodation requested by Turner. See Morris v
Davis, 6:18-cv-0322 (WD Tex) at Dkt 18; Atomanczyk v
Texas Department of Criminal Justice, 4:17-cv-00719 (SD
Tex) (Eskridge, J) at Dkt 107-6. Nothing indicates why
such an accommodation can’t be here afforded to Turner.
ii. Other considerations
By the above, Turner makes a prima facie showing of a
substantial likelihood of success on the merits of his
RLUIPA claim. None of the other pertinent factors counsel
against issuance of a preliminary injunction on the terms
he requests.
As to irreparable injury, the Fifth Circuit holds that in
the First Amendment context, “The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Opulent
Life Church v City of Holly Springs, Mississippi, 697 F3d
279, 295 (5th Cir 2012) quoting Elrod v Burns, 427 US 347,
373 (1976). “This principle applies with equal force to the
violation of RLUIPA rights because RLUIPA enforces First
Amendment freedoms.” Ibid.
It’s not difficult to understand why this is so here.
Turner is harmed each time he must choose between
foregoing a meal and violating his sincerely held belief that
he must observe a kosher diet. He faces this harm daily,
19
and he will continue to face this harm until the matter is
resolved. See Dkts 13 at 17–18, 66 at ¶ 43 & 102 at 6.
This factor favors Turner.
Balance of potential harms. Because Turner easily
establishes an irreparable harm, TDCJ needs to present
“powerful evidence of harm to [their] interests” to prevail
on this requirement. Opulent Life Church v City of Holly
Springs, 697 F3d 279, 297 (5th Cir 2012); see also Ali v
Stephens, 2014 WL 495162, *3 (ED Tex).
At times, TDCJ classifies its harm as an entire
reworking of existing policies regarding Jewish designated
units. For example, see Dkt 94 at 10, 16. But such a drastic
remedy needn’t be considered at present, if for no other
reason than that Turner doesn’t request it. The concrete
harm to TDCJ appears to be providing one prisoner shelfstable kosher foods, a hot pot, and a storage locker. Dkt 102
at 3. The irreparable injury faced by Turner thus
outweighs any minimal, threatened harm to Defendants.
See Moussazadeh, 703 F3d at 796.
This factor favors Turner.
As to public interest. The Fifth Circuit holds that
“injunctions protecting First Amendment freedoms are
always in the public interest.” Opulent Life Church, 697
F3d at 298; see also Strong v Livingston, 2013 WL 6817095,
*3 (SD Tex 2013). This principle applies with equal force to
RLUIPA claims. Opulent Life Church, 697 F3d at 298.
This factor favors Turner. And with that, all pertinent
factors found to be in Turner’s favor. A preliminary
injunction will thus issue by separate order.
4. Appointment of counsel
“There is no right to appointment of counsel in civil
cases, but a district court may appoint counsel if doing so
would aid in the efficient and equitable disposition of the
case.” Delaughter v Woodall, 909 F3d 130, 140 (5th Cir
2018) (quotation marks and citation omitted). A district
court should consider:
20
The type and complexity of the case;
Whether the indigent is capable of adequately
presenting his case;
o Whether the indigent is in a position to
investigate adequately the case; and,
o Whether the evidence will consist in large part
of conflicting testimony so as to require skill in
the presentation of evidence and in cross
examination.
Ulmer v Chancellor, 691 F2d 209, 213 (5th Cir 1982).
“Generally, appointment of counsel should be reserved for
cases presenting ‘exceptional circumstances.’” Delaughter,
909 F3d at 141.
A motion by Turner for appointment of counsel was
previously denied. Dkts 71 & 77. But in light of the above
ruling, the Ulmer factors weigh heavily in Turner’s favor.
The claims have been substantially narrowed, but RLUIPA
remains a complex area of the law. And while Turner has
thus far admirably represented himself, he will no doubt
benefit from counsel. Additionally, this action will
necessitate careful document review and depositions,
which Turner simply can’t adequately conduct such from a
prison cell. Last, a significant amount of testimony is
likely, particularly regarding the issues of compelling
government interest and least restrictive means.
These are “exceptional circumstances” wherein
appointment of counsel would doubtlessly “aid in the
efficient and equitable disposition of the case.” Delaughter,
909 F3d at 140–41. Counsel will be appointed on behalf of
Turner.
5. Conclusion
The motions by Defendants Texas Department of
Criminal Justice, Bryan Collier, David Goldstein, and
Timothy Jones are GRANTED IN PART and DENIED IN PART.
Dkts 94 & 110.
o
o
21
The motions are GRANTED as to the First Amendment
free exercise claim, the Fourteenth Amendment equal
protection claim, and the Americans with Disabilities Act
claim. Those claims are DISMISSED WITH PREJUDICE.
The motions are otherwise DENIED.
The motion by Plaintiff Noel Turner for preliminary
injunction is GRANTED. Dkt 102.
A separate order of preliminary injunction will be
ENTERED compelling Defendants as follows:
The State of Texas must provide Plaintiff
Noel Turner three shelf-stable kosher
meals per day, a hot pot that is to be used
to heat those meals, and a location in which
he can store such items.
This relief is narrowly drawn, extends no further than
necessary to correct the harm, and is the least intrusive
means necessary to correct the harm. 18 USC § 3626(a)(2).
TDCJ retains discretion under RLUIPA to avoid the
preemptive force of this injunctive relief “by changing the
policy or practice that results in a substantial burden on
religious exercise, by retaining the policy or practice and
exempting the substantially burdened religious exercise,
by providing exemptions from the policy or practice for
applications that substantially burden religious exercise,
or by any other means that eliminates the substantial
burden.” 42 USC § 2000cc-3(e).
A separate order appointing counsel for Turner will
also be ENTERED.
SO ORDERED.
Signed on September 30, 2022, at Houston, Texas.
__________________________
Hon. Charles Eskridge
United States District Judge
22
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