730 F.3d 404 (5th Cir. 2013), 12-41015, Chance v. Texas Dep't of Criminal Justice

Docket Nº:12-41015
Citation:730 F.3d 404
Opinion Judge:W. EUGENE DAVIS, Circuit Judge:
Party Name:WILLIAM E. CHANCE, JR., Plaintiff-Appellant v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in his official capacity as Executive Director of the Texas Department of Criminal Justice; CYNTHIA LOWERY, in her individual capacity; BILL PIERCE, in his individual capacity; EDGAR BAKER, in his individual capacity; WARDEN JOHN RUPERT; WARDEN TOD
Attorney:For WILLIAM E. CHANCE, JR., Plaintiff - Appellant: Steffen Nathanael Johnson, Esq., Winston & Strawn, L.L.P., Washington, DC; Benjamin Lee Ellison, Attorney, Winston & Strawn, L.L.P., Chicago, IL; Scott Charles Medlock, Texas Civil Rights Project, Austin, TX. For TEXAS DEPARTMENT OF CRIMINAL JUST...
Judge Panel:Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
Case Date:August 27, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 404

730 F.3d 404 (5th Cir. 2013)

WILLIAM E. CHANCE, JR., Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in his official capacity as Executive Director of the Texas Department of Criminal Justice; CYNTHIA LOWERY, in her individual capacity; BILL PIERCE, in his individual capacity; EDGAR BAKER, in his individual capacity; WARDEN JOHN RUPERT; WARDEN TODD FOXWORTH, Defendants-Appellees

No. 12-41015

United States Court of Appeals, Fifth Circuit

August 27, 2013

Editorial Note:

This decision has been designated as "Table of Denials of Rehearing En Banc" in a Fifth Circuit of the Federal Reporter.

Appeal from the United States District Court for the Eastern District of Texas. USDC No. 6:11-CV-435.

For WILLIAM E. CHANCE, JR., Plaintiff - Appellant: Steffen Nathanael Johnson, Esq., Winston & Strawn, L.L.P., Washington, DC; Benjamin Lee Ellison, Attorney, Winston & Strawn, L.L.P., Chicago, IL; Scott Charles Medlock, Texas Civil Rights Project, Austin, TX.

For TEXAS DEPARTMENT OF CRIMINAL JUSTICE, BRAD LIVINGSTON, in his official capacity as Executive Director of the Texas Department of Criminal Justice, CYNTHIA LOWERY, in her individual capacity, BILL PIERCE, in his individual capacity, EDGAR BAKER, in his individual capacity, JOHN RUPERT, Warden, TODD FOXWORTH, Warden, Defendants - Appellees: Douglas D. Geyser, Esq., Office of the Solicitor General, for the State of Texas, Austin, TX; Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX.

For PAN-AMERICAN INDIAN ASSOCIATION, WHITE BEAR BARNARD, HUY, NATIVE AMERICAN COUNCIL OF TRIBES, ELIZABETH S. GROBSMITH, Amici Curiae: Todd Donnelly Batson, Attorney, William Balden Adams, Quinn Emanuel Urquhart & Sullivan, LLP., New York, NY.

For CHRISTIAN LEGAL SOCIETY, Amicus Curiae: James Andrew Sonne, Attorney, Stanford Law School, Legal Clinics, Stanford, CA.

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.

OPINION

W. EUGENE DAVIS, Circuit Judge: [*]

Plaintiff-Appellant William Chance, Jr. (" Chance" ) is a prisoner currently incarcerated by the Texas Department of Criminal Justice (" TDCJ" ). Chance filed suit under the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ) alleging that TDCJ has failed to accommodate several tenets of his Native American religion, including: (1) personal participation in a pipe-smoking ceremony, (2) participation in a minimum number of various ceremonies, (3) indoor smoke-wafting, and (4) personal possession of a lock of a deceased relative's hair. We agree with the district court that the summary judgment record demonstrated that the prison policies associated with Chance's first three complaints are the least restrictive means of furthering TDCJ's compelling interests. However, we disagree with the district court that summary judgment was appropriate on Chance's claim that prohibiting the possession of a lock of a relative's hair was not the least restrictive means of furthering TDCJ's compelling interests. We therefore AFFIRM the district court's judgment in part, and VACATE and REMAND it in part.

I.

Chance is a prisoner currently incarcerated in the TDCJ's Michael Unit in Tennessee Colony, Texas. The Michael Unit is among several TDCJ incarceration units specifically designated to house adherents of Native American faith groups. Chance traces his lineage to the Cheyenne people, a recognized tribe of indigenous Native Americans. Chance is also a practicing follower of a traditional Native American faith. 1 According to Chance, an integral part of his faith and worship is the requirement that he regularly participate in a number of traditional rituals and ceremonies, including the " Sacred Pipe ceremony," the " Smudging ritual," the " Teaching ceremony," holy day ceremonies (" Wiping Away the Tears ceremonies" ), and the " Keeping of Souls" practice.

Arguing that TDCJ has failed to adequately accommodate these practices, Chance filed this lawsuit in June 2011, asserting multiple violations of RLUIPA. 2 TDCJ moved for summary judgment, arguing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. As is discussed in greater detail below, the magistrate judge agreed and issued a report recommending that TDCJ's motion be granted and all of Chance's claims be dismissed. The district court adopted the magistrate judge's report and recommendation, and Chance now appeals.

A. The Sacred Pipe Ceremony

Chance alleges that a cornerstone of his Native American faith is participation in the Sacred Pipe ceremony. For adherents of the Native American faith, it is only by personally smoking a mixture of herbs and tobacco from a special pipe that they can offer their prayers to the Spirits. During the ceremony, the Sacred Pipe is passed around the group, with each participant smoking the pipe and offering his personal prayers as he exhales the smoke.

For most of Chance's incarceration, he and other prisoners were allowed to smoke a communal Sacred Pipe. From 2008 to 2010, Chance was even permitted to smoke a separate Sacred Pipe due to his chronic infections with Hepatitis C and tuberculosis. It is unclear what happened to Chance's separate pipe, but it is undisputed that he no longer had access to it sometime in 2010. Thereafter, Chance and several other prisoners filed administrative grievances with TDCJ complaining about the risk of communicable disease transmission from a communal pipe. In his grievance, Chance specifically cited his own chronic infections as preventing him from using the communal pipe and entitling him to a separate pipe.

In an effort to resolve the prisoners' concerns about disease, the grievances were referred to Dr. Robert Williams, Deputy Director of TDCJ's Health Service Division. Dr. Williams subsequently issued a detailed opinion on the health implications of using a communal pipe in the Sacred Pipe ceremony. Dr. Williams ultimately concluded: " There is no way to share an object designed to be placed in one's mouth outside of a clinical setting with enough certainty that diseases cannot be transmitted for Health Services to advocate instituting this practice." Based on Dr. Williams's recommendation, TDCJ determined that it would no longer permit a communal Sacred Pipe ceremony. Although a form of the Sacred Pipe ceremony would still be held, only the chaplain conducting the service would be allowed to smoke the pipe and pray on behalf of those present.

Chance subsequently filed this suit, alleging that TDCJ's new Sacred Pipe policy was an insufficient accommodation of his religious exercise under RLUIPA, because his personal participation in the pipe ceremony is essential. In response to TDCJ's motion for summary judgment, the district court found that although the policy substantially burdened Chance's religious beliefs, it is nonetheless the least restrictive means of furthering TDCJ's compelling interests in prison health, administration, and security. Accordingly, TDCJ's Sacred Pipe policy did not violate RLUIPA.

B. Frequency of Native American Ceremonies

The second major grievance asserted by Chance is the insufficient frequency of Native American ceremonies in the Michael Unit. According to Chance, Native American believers must regularly participate in Sacred Pipe ceremonies, as well as " Teaching ceremonies" and " Wiping Away the Tears ceremonies." A Teaching ceremony is a Sunday school-style ceremony where Native Americans receive teaching and participate in discussions concerning their beliefs. A Wiping Away the Tears ceremony is a special Sacred Pipe ceremony conducted in observance of a Native American holy day.

Around the same time that TDCJ modified its Sacred Pipe policy, it began having difficulty finding volunteers or chaplains to oversee any of the traditional Native American services in the Michael Unit. As a result, TDCJ could not offer all of the services requested by Native Americans. Chance claims that his beliefs require twice-monthly Sacred Pipe ceremonies, weekly Teaching ceremonies, and four annual Wiping Away the Tears ceremonies on certain holy days. Instead, TDCJ provides Sacred Pipe ceremonies once a month, Teaching ceremonies once a month, and Wiping Away the Tears ceremonies on four different Native American holy days. In addition, TDCJ offers Native American " Talking Circle" 3 activities twice each month and religious DVD presentations once a month. Chance, however, insists that these are inadequate substitutes for the formal Sacred Pipe and Teaching ceremonies and the holy day recognition his faith requires.

Chance's complaint alleged that TDCJ's failure to provide more Sacred Pipe, Teaching, and holy day ceremonies unreasonably burdened his religious exercise under RLUIPA. However, the district court reasoned that given the number of prisoners and faith groups represented in Texas prisons, TDCJ could not be expected to provide weekly services that catered to everyone. Accordingly, TDCJ's failure to provide more Native American ceremonies did not violate RLUIPA.

C. The Smudging Ritual

Like the Sacred Pipe ceremony, the Smudging ritual is an elemental component of the Native American faith. Smudging is ordinarily done in conjunction with other Native American rituals such as the Sacred Pipe and Teaching ceremonies. It involves burning a small amount of herbs and then fanning the resulting smoke over the individual, any sacred object to be used, and the ceremonial site. For Chance and other adherents of the Native American faith, Smudging is necessary to purify ceremonial objects and participants in order to make contact with the Spirits.

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