486 F.3d 112 (5th Cir. 2007), 05-20646, Baranowski v. Hart

Docket Nº:05-20646.
Citation:486 F.3d 112
Party Name:Thomas H. BARANOWSKI, Plaintiff-Appellant, v. Chaplain Larry HART; Lawrence N. Hodges, Huntsville Unit Warden; Ted Sanders, Rabbi TDCJ Chaplaincy Department; Bill Pierce, TDCJ Chaplaincy Department; Douglas Dretke, TDCJ-ID Director, Defendants-Appellees.
Case Date:May 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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486 F.3d 112 (5th Cir. 2007)

Thomas H. BARANOWSKI, Plaintiff-Appellant,


Chaplain Larry HART; Lawrence N. Hodges, Huntsville Unit Warden; Ted Sanders, Rabbi TDCJ Chaplaincy Department; Bill Pierce, TDCJ Chaplaincy Department; Douglas Dretke, TDCJ-ID Director, Defendants-Appellees.

No. 05-20646.

United States Court of Appeals, Fifth Circuit.

May 4, 2007

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Thomas H. Baranowski, Huntsville, TX, pro se.

Marjolyn Carol Gardner, Asst. Atty. Gen., Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

In this appeal, a Texas prisoner contends that the defendants-appellees violated his rights under the First Amendment, the Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 et seq., by failing to provide weekly Sabbath and other holy day services, by failing to allow Jewish prisoners to use the chapel for their religious services, and by failing to provide him with a kosher diet. He also alleges that he was improperly denied appointment of counsel, an evidentiary hearing, and his right to a jury trial. For the reasons that follow, we AFFIRM the district court's order granting summary judgment in favor of the defendants-appellees.


Thomas H. Baranowski ("Baranowski"), an inmate incarcerated in the Huntsville Unit of the Texas Department of Criminal Justice ("TDCJ"), proceeding pro se and in forma pauperis, filed a civil rights complaint in federal district court, pursuant to 42 U.S.C. § 1983, against employees and officials of the TDCJ: Defendants-Appellees Larry Hart ("Hart"), Huntsville Unit Chaplain; Lawrence Hodges, Huntsville Unit Warden; Ted Sanders, Rabbi for the TDCJ; Bill Pierce ("Pierce"), Director of the TDCJ Chaplaincy Department; and Douglas Dretke, former Director of the TDCJ (collectively, "Defendants"). 1 Baranowski's complaint sought declaratory and injunctive relief for alleged violations of the First Amendment, the Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq. 2

Baranowski, a member of the Jewish faith, alleged that Defendants "denied Jewish prisoners access to Sabbath services while depriving them of worship and fellowship and holyday [sic] services, meals and observances and finally discriminating against Jewish prisoners and favoring other

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faith groups in regard to chapel services, worship and rehabilitation." More specifically, Baranowski asserted that Defendants had deprived him and other Jewish inmates of access to Friday Sabbath services in September and October 2003 and High Holy Day services, had deprived him and other Jewish inmates of access to the Huntsville Unit chapel for their religious observances, and had failed to provide kosher diets conforming with the dietary laws of Judaism. Baranowski also claimed that prisoners of other religious faiths were treated more favorably than Jewish prisoners, citing limited religious services and chapel access for Jewish prisoners. 3

Defendants moved for summary judgment, filing copies of various prison policies and sworn affidavits in support. In his affidavit, Pierce, the Director of the TDCJ Chaplaincy Department, testified that "TDCJ allows all offenders to worship according to their faith preference in their cell[s] using allowed items such as sacred texts, devotional items, and materials." According to Pierce, TDCJ policy is to allow inmates as much freedom and opportunity as possible for pursuing their individual beliefs and practices, consistent with agency security, safety, order, and rehabilitation concerns. Pierce explained that religious services are provided based on demand, need, and resources. He further testified that "[c]haplaincy services are nondiscriminatory in the treatment of offenders' religious beliefs, but TDCJ policy attempts to take space, time, and staffing restraints into consideration."

Pierce stated that of the 145,000 offenders currently confined in TDCJ, only 900 are self described as Jewish. Of those, only 70 to 75 are "recognized" as actually practicing their faith, with 90 in the conversion process. According to Pierce, these numbers are very small when compared to the number of observant Protestants, Catholics, and Muslims.

Pierce also stated that although Jewish programs and activities are not available at every unit, they are available at the Huntsville Unit, which is one of seven Jewish "host" units within the TDCJ. He explained that "[r]abbis, not offenders, lead Jewish services to ensure that religious practices reflect Jewish doctrines. There is no other way for TDCJ to accommodate the demand for Jewish congregational services from practicing Jews." According to Pierce, "[b]ecause of the small number of inmates who actually practice Judaism and attend Jewish services, as well as the limited availability of rabbis in certain geographical areas of the state, TDCJ is unable to hold Jewish services at every Jewish host unit on a weekly basis." Pierce testified that services are held at least monthly at each of the Jewish host units. Pierce explained that in addition to monthly services, however, the TDCJ recognizes twenty-one Jewish holy days (compared with two for Christians), and that time off is permitted for eight of those days.

Pierce also testified about the numerous requests that TDCJ receives from inmates for special diets for religious reasons. He explained that:

While TDCJ tries to accommodate inmates' religious needs, it must take into account the orderly administration of the prison and its resources while not giving any single inmate or group of inmates preferential treatment. If TDCJ were to grant one inmate's request

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for a special diet or religious item, numerous inmates would request similar special privileges.


TDCJ has reviewed requests for kosher diets and has studied the impact of complying with such a request, by either providing a separate kosher kitchen or by bringing in kosher food from the outside. TDCJ has determined that it would be far too costly and would far exceed the allotted budget to provide kosher food. No TDCJ unit is currently set up to accommodate a kosher diet, which requires food preparation under certain ritual requirements and without contact with non-kosher food. Given the small number of offenders identifying themselves as Jewish (and the small number recognized as practicing Jews by TDCJ Jewish authorities), and their various classification and programmatic needs, at least several units would have to remodel their kitchens and substantially alter food preparation procedures. Kosher meals also are very costly. The state of Florida has reported that it costs them between 12 and 15 dollars per day per offender to provide kosher meals compared with $2.46 per day the State of Texas pays for offender meals. Providing kosher meals for a very small subset of offenders would place a tremendous burden on the ability of TDCJ to provide a nutritionally appropriate meal to all other offenders because of the budgetary impact alone. Furthermore, due to budget deficits, the Texas Legislature at the last legislative session specifically targeted inmate food services for a mandatory reduction in the biennial of more than $6 million. Providing kosher meals would put a great strain on an already strained system, and would raise resentment among other inmates because payments for kosher meals would of necessity come out of the general food budget for all inmates. The problem would be compounded because inmates of other faiths would seek similar privileges.

Pierce testified that as an alternative to kosher meals, "all inmates may choose to be served a pork-free diet or a vegetarian diet." In addition, Jewish inmates may receive kosher items from the Aleph Institute, a not-for-profit organization, at no cost to the state of Texas.

Prison policy 3.01, which Defendants included with their summary judgment motion, elaborates on TDCJ's diet policy and substantiates Pierce's testimony. It declares that the "[g]eneral population may select a regular tray, a meat-free tray, or a pork-free tray from the food service line. Any type of meal may be selected from meal to meal." It goes on to state:

[t]o assure minimal nutritional needs are met, menu item replacements using one of three options shall be made when meat or pork is not served:

· Option 1--1 oz. of sliced cheese, additional 4 oz. of beans and additional serving of bread.

· Option 2--1 hard-boiled egg and 1 peanut butter and jelly sandwich.

· Option 3--1 peanut butter and jelly sandwich and additional 4 oz. serving of beans.

Finally, the policy adds that while chaplains may assist offenders in understanding what the food preferences or restrictions are for various religions, it is the offender's responsibility to follow dietary preferences or restrictions based on his designated faith preference.

Defendants also introduced affidavit testimony of Hart, a chaplain at the Huntsville Unit, in support of their summary judgment motion. Hart testified that because

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rabbis or approved outside volunteers lead Jewish services, "[s]cheduled events may be delayed or canceled when qualified spiritual leaders are not available." The Huntsville Unit has a contract rabbi who works with Hart to schedule Jewish services, order religious items, and authorize time off for Jewish holy days. Hart explained that Jewish services in September...

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