Tucker v. Gaddis

• Decision Date: 11 July 2022
• Docket Number: 20-40267
• Citation: 40 F.4th 289
• Parties: George Lee TUCKER, II, Plaintiff—Appellant, v. Steve GADDIS, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

40 F.4th 289

George Lee TUCKER, II, Plaintiff—Appellant,

v.Steve GADDIS, Defendant—Appellee.

No. 20-40267

United States Court of Appeals, Fifth Circuit.

FILED July 11, 2022

Samuel E. Perrone, Esq., Ropes & Gray, L.L.P., Boston, MA, Kevin J. Post, Ropes & Gray, L.L.P., New York, NY, for Plaintiff—Appellant.

Judd Edward Stone, II, Kathryn Cherry, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendant—Appellee.

Before King, Graves, and Ho, Circuit Judges.

Per Curiam:

For years, the Texas Department of Criminal Justice ("TDCJ") has denied prisoner requests to hold religious gatherings for the Nation of Gods and Earths ("the Nation"). Originally, Texas denied such requests on the ground that it perceived the Nation as a racial supremacy group, and that allowing such an assembly would pose a security threat to the prison.

In response, Plaintiff George Lee Tucker II brought this suit against Steve Gaddis, TDCJ's Deputy Director of Volunteer Services and Special Populations, in the hope of vindicating the rights of the Nation's adherents to congregate. The suit was initially filed pro se over half a decade ago. But Tucker began receiving the aid of pro bono legal counsel a few years later.

The State now says that it has promulgated a new policy to govern congregation requests on behalf of the Nation's adherents. As a result, the State contends that this suit is now moot.

We disagree. The new policy merely allows Tucker to apply for a congregation. It does not in fact allow the Nation to congregate. To the contrary, any such requests remain subject to "time, space, and safety concerns." And to date, Texas has never permitted the Nation's adherents to congregate. Nor is there any indication that Texas will allow them to do so anytime soon. So this case is not moot. Accordingly, we reverse.

I.

Texas provides two types of communal religious services for inmates. It allows an hour of weekly "primary" religious services through a TDCJ chaplain for members of ten recognized religious groups—Catholicism, Non-Roman Catholic Christianity, Islam, Sabbatarianism, Judaism, Native American religions, Neo-Paganism, Eastern Religion, Jehovah's Witnesses, and Mormonism. In addition, adherents of these recognized religions can seek "secondary" services, led by an approved outside volunteer, subject to time, place, and security requirements as established by TDCJ's Religious Practices Committee.

For adherents of other religions not recognized by TDCJ, however, no primary religious services are permitted. Inmates may only apply for secondary services. But that is subject to the approval of the Committee and must be led by an outside volunteer director.

From 2007 to 2014, Texas categorized the Nation's adherents as members of the Islamic faith. As a result, they had access to primary Islamic religious services.

But that changed in 2014, when the Committee determined that the Nation is a racial supremacy group that would pose a security threat if allowed to congregate. Accordingly, the Committee removed the Nation from the Islamic category and refused to allow its members access to either primary or secondary services. So when Tucker applied for a secondary service in 2015, he was refused because of the Committee's categorical ban on the Nation's ability to congregate.

Tucker filed suit stating various claims, only one of which remains at issue in this appeal—a claim for a declaration that, under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), TDCJ must allow secondary services for the Nation. The district court assumed that the Nation is a "religion" for purposes of RLUIPA. The court then dismissed Tucker's claim for secondary services, finding TDCJ's ban on the Nation from congregating was the least restrictive means of maintaining security.

On appeal, this court vacated the judgment to the congregation claim, holding that there were genuine disputes of material fact as to "whether the state's ban: (1) advances a compelling interest (2) through the least restrictive means." Tucker v. Collier (Tucker I) , 906 F.3d 295, 302 (5th Cir. 2018). This court remanded the claim back to the district court.

While the case was on remand, the Committee again altered its policies with respect to the Nation. First, it once again categorized the Nation's adherents as members of the Islamic faith, thereby allowing them to participate in primary services. Second, it allowed members of the Nation to apply for secondary services subject to the same conditions as other faiths—it must obtain an approved volunteer, and the Committee must approve the congregation based on time, venue, and security concerns. It also approved the receipt and acquisition of the Nation's literature and the celebration of the Nation's holy days.

After adopting the changes, TDCJ sought summary judgment on the grounds that Tucker's case was moot. TDCJ assured the district court that it had "no intention of revoking Tucker's religious rights" and detailed its affirmative efforts to help the Nation obtain secondary services. The district court dismissed Tucker's claim as moot, finding that TDCJ's changes were made in good faith.

II.

"The doctrine of mootness arises from Article III of the Constitution, which provides federal courts with jurisdiction over a matter only if there is a live ‘case’ or ‘controversy.’ " Dierlam v. Trump , 977 F.3d 471, 476 (5th Cir. 2020) (citing DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). "[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Id. This court reviews questions of federal jurisdiction, including mootness, de novo. Freedom from Religion Found. v. Abbott , 955 F.3d 417, 423 (5th Cir. 2020).

To determine whether Tucker received relief from the change in policy, we consider his original demands in his complaint. Tucker's complaint was submitted pro se. "The filings of a pro se litigant are to be ‘liberally construed’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ " Coleman v. United States , 912 F.3d 824, 828 (5th Cir. 2019) (quoting Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ) (cleaned up).

TDCJ asserts that the crux of Tucker's claim is about eliminating the absolute ban on the Nation's ability to congregate. As TDCJ explains, its recent change in policy now allows Tucker to apply for secondary congregations "subject to time, venue, and security concerns—the same conditions applied to other faiths." Thus, TDCJ argues that Tucker has received his desired relief given that the Nation is on the same footing as other religious groups.

But Tucker's original complaint does not merely seek an equal right to apply for secondary services. It asks for the "[a]ccommodation of the [Nation] with the provisions of scheduled time and venue for [the Nation's] assembly and practice." To date, Tucker and his fellow Nation adherents have not had the opportunity to congregate.

In response, TDCJ notes that there are no available external volunteers—a necessary requirement for secondary service. But at oral argument, counsel for TDCJ admitted that, even if Tucker could locate a willing volunteer, TDCJ could not guarantee congregation because such a request would still be subject to "time, space, and security concerns."

In other words, TDCJ's policy change gives Tucker nothing more than the right to apply for a congregation—to date TDCJ has never approved the Nation for congregation. And it is the latter that this suit seeks to obtain.

The Supreme Court has explained that "[t]he test for mootness in cases such as this is a stringent one." City of Mesquite v. Aladdin's Castle, Inc. , 455 U.S. 283, 289 n.10, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). TDCJ bears the "heavy" burden of demonstrating mootness. Pederson v. La. State Univ. , 213 F.3d 858, 874 (5th Cir. 2000) (quotations omitted). "A case is not rendered moot simply because there is a possibility, or even a probability, that the outcome of a separate administrative proceeding may provide the litigant with similar relief." El Paso Elec. Co. v. FERC , 667 F.2d 462, 467 (5th Cir. 1982).

TDCJ claims that its policy change moots this case. But "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways."

Aladdin's Castle , 455 U.S. at 289 n.10, 102 S.Ct. 1070 (cleaned up).

To be sure, "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. (emphasis added). But the government has not even bothered to give Tucker any assurance that it will permanently cease engaging in the very conduct that he challenges. To the contrary, as noted, counsel for TDCJ stated precisely the opposite during oral argument—TDCJ would not guarantee congregation in the future, but instead would reserve the question in light of potential "time, space, and security concerns." If anything, it is far from clear that the government has ceased the challenged conduct at all , let alone with the permanence required under the "stringent" standards that govern the mootness determination when a defendant claims voluntary compliance. For each of these reasons, this case cannot possibly be moot.

* * *

We reverse and remand for further proceedings.

King, Circuit Judge, concurring:

I concur. I agree that Tucker has not yet achieved the full relief he sought in his initial pro se complaint and that, therefore, this case is not moot. I write separately to dispel any implication that the TDCJ's current actions and policies are in error, especially if that implication is drawn from the TDCJ's statement (which was made at oral argument) that it "could not guarantee congregation...