IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION
MAX MOUSSAZADEH,

Plaintiff, v.

Case No. 3:07CV574

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et. al.

Defendants.

STATEMENT OF INTEREST OF THE UNITED STATES This litigation implicates the proper interpretation and application of the Religious Land Use and Institutionalized Persons Act of2000, 42 U.S.C. § 20000cc et seq. ("RLUIPA"). RLUIPA protects the religious freedom of individuals confined to institutions, providing that their religious exercise may only be substantially burdened if there is a compelling state interest in doing so, and if the institution uses the least restriction on religious exercise necessary to further that interest. See 42 U.S.C. § 2000cc-1(a). The United States enforces RLUIPA in state and local jurisdictions across the country and, given the important liberties at stake, has a strong interest in ensuring that RLUIPA's requirements are vigorously and uniformly enforced. The United States files this Statement ofInterest pursuant to 28 U.S.C. § 517. Defendants, the Texas Department of Criminal Justice ("TDCJ"), et al., have denied Mr. Moussazadeh's request for a kosher diet as a religious accommodation. This policy can on~y be

sustained under RLUIPA if Defendants prove that this restriction furthers a compelling governmental interest and is the least restrictive alternative for furthering that interest. 42 U.S.C. § 2000cc-2(b). TDCJ makes a naked assertion that the policy is necessary to advance a purported compelling interest in controlling costs. As explained below, costs savings alone do not qualify as compelling governmental interest under RLUIPA. Even if cost savings qualified, TDCJ's conclusory assertion that its refusal to accommodate Mr. Moussazadeh's request for a kosher diet represents the least restrictive means of furthering this cost savings interest fails. Thirty-two states and the Federal Bureau of Prisons already provide such kosher meals.
Because Defendants' position substantially departs from RLUIPA's requirements and the practices of many other jurisdictions with interests identical to those ofTDCJ, this Court should find that TDCJ has failed to satisfy its burden of demonstrating that its denial of a kosher diet represents the least restrictive means of furthering a qualifying compelling governmental interest.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Moussazadeh is an observant Jew who maintains that keeping a kosher diet is fundamental to his religion. 1 .Plaintiff s Motion for Summary Judgment at 8 ("Pl. MSJ"), Dkt. No. 199; Defendants' Second Motion for Summary Judgment at 22 ("Def. MSJ"), Dkt. No. 198. In 2005, Mr. Moussazadeh filed this lawsuit seeking relief from TDCJ's failure to accommodate his request for a kosher diet. PI. MSJ at 8; Def. MSJ at 2. At that time, Mr. Moussazadeh was housed in TDCJ's Eastham Unit, where Defendants did not provide him kosher meals. PI. MSJ at 8; Def. MSJ at 2. Currently, Mr. Moussazadeh is housed in the Stiles Unit, which TDCJ has
J The United States relies on the facts as presented in the Parties' Motions for Summary Judgment for the purposes of this Statement of Interest.
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labeled a "Basic Designated Jewish Unit," but where Defendants do not provide him with kosher meals. PI. MSJ at 14; Def. MSJ at 16-17.
TDCJ's current dietary policy and practice is to provide kosher meals only to inmates assigned to the Enhanced Designated Jewish Unit, located in the Stringfellow Unit? Def. MSJ at 12; PI. MSJ at 11. Those kosher meals are provided via a kosher kitchen located at the Stringfellow Unit. Id. TDCJ does not provide inmates assigned to the Basic Designated Jewish Units with kosher meals. Instead, TDCJ policy states that inmates in Basic Designated Jewish Units may purchase kosher entrees and other kosher products through the commissary at the inmate's expense. Id.
Mr. Moussazadeh and Defendants filed cross motions for summary judgment on December 10,2010. Those motions have now been fully briefed and are presently pending before the Court.
ARGUMENT In 2000, Congress enacted RLUIPA after "document[ingJ, in hearings spanning three years, that 'frivolous or arbitrary' barriers impeded institutionalized persons' religious exercise." Cutter v. Wilkinson, 544 U.S. 709, 716 (2005) (citing 146 Congo Rec. 16698, 16699 (2000)). As the Supreme Court explained, an institution's refusal to accommodate a religious diet is the type of restriction on religious exercise that Congress enacted RLUIPA to eliminate. See Cutter, 544 U.S. at 716 n.5 (noting "typical examples" of barriers impeding religious exercise included refusal to provide halal food to Muslim inmates while offering kosher food to Jewish prisoners, and unwillingness to provide Jewish inmates with sack lunches to facilitate breaking fasts after
2 For a short period of this litigation, Mr. Moussazadeh was housed in the Stringfellow Unit, and Defendants provided him with kosher meals. In 2009, however, Defendants transferred him to the Stiles Unit, where Defendants have not provided him kosher meals.
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nightfall). RLUIPA's purpose was to "protect[] institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Id at 721.
I. RLUIPA Grants Broad Protections to Religious Exercise by Institutionalized Persons. RLUIPA erects a high bar to institutions seeking to burden the religious practice of
institutionalized persons, adopting a compelling state interest test. RLUIPA requires that the statute "be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." 42 U.S.C. § 2000cc-3(g); see also Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006) ("Congress ... intended to provide as much protection as possible to prisoners' religious rights without overly encumbering prison operations. RLUIPA's heightened protection stemmed from Congress's recognition that the right of inmates (and other institutionalized persons) to practice their faith is at the mercy of those running the institution. As the Supreme Court has stressed, inmates are subject to a degree of governmental control unparalleled in civilian society and severely disabling to private religious exercise. ").
RLUIPA's adoption of the compelling state interest test requires that courts apply the most exacting level of scrutiny to an institution's denial of a religious accommodation. Accordingly, once Mr. Moussazadeh establishes a prima facie case that Defendants have substantially burdened his religious exercise, RLUIPA shifts the burden to Defendants to prove that their restriction materially furthers a compelling governmental interest, and that the restriction is the least restrictive alternative for furthering that interest. 42 U.S.C. § 2000cc-2(b). Defendants' conclusory statements do not satisfy this high burden; they have not demonstrated
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that their refusal to provide Mr. Moussazadeh with kosher meals furthers a compelling governmental interest, or that their refusal is the least restrictive means of furthering that interest.
II. Defendants Have Not Demonstrated a Compelling Government Interest for Refusing Mr. Moussazadeh's Request for Religious Accommodation. A. Cost Alone Is Not a Compelling Governmental Interest. The sole interest Defendants assert for their refusal to provide kosher meals to Mr.
Moussazadeh is a desire to control costs. Def. MSJ 25-47; Def. Opp. at 12-13. RLUIPA's text and repeated court decisions show cost alone is not a compelling governmental interest.
RLUIPA itself states that compliance with its terms may require increased costs. 42 US.C. § 2000cc-3(c) ("[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise."). Beyond this specific textual recognition that cost alone cannot justify a substantial burden on religious exercise, RLUIPA also adopted the compelling government interest test, and thus imported the existing legal precedent establishing that cost alone is not a compelling governmental interest. See, e.g., Mem 'I Hosp. v. Maricopa Cnty., 415 US. 250, 264 (1974) ("conservation of the taxpayers' purse" is not a compelling government interest); see also NLRB v. Town & Country Elec., Inc., 516 U.S. 85,94, (1995) (courts interpreting statute must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning ofterm).3
3 In cases such as Turner v. Safley, 482 U.S. 78 (1987) and Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), the Supreme Court held that, in certain circumstances, burdens on religious exercise need not satisfy the strict scrutiny analysis generally applied under the First Amendment. Turner, 482 US. at 89 (holding that prison rules did not need to satisfy a compelling government interest to impinge on constitutional rights, but need only be reasonably related to legitimate penological interests); Emp 't Div., Dep't, 494 U.S. at 877-82 (holding that First Amendment does not prohibit governments from burdening religious practices through generally applicable laws); see Sherbert v. Verner, 374 U.S. 398,40203 (1963) (holding that governmental actions that substantially burden a religious practice must
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In addition to RLUIPA's text, courts have repeatedly held that costs alone fail RLUIPA's compelling government interest requirement. See, e.g., Koger v. Bryan, 523 F.3d 789,800 (7th Cir. 2008) ("recognizing that, although budgetary considerations are "legitimate concerns of prison officials ... no appellate court has ever found these to be compelling interests."); Willis v. Ind. Dep 't a/Carr., ---F.Supp.2d ---,2010 WL 4457432, at *8 (S.D. Ind. Nov. 1,2010) ("[A]ccommodating a religious practice will generally be more expensive than a failure to accommodate; as such, RLUIPA specifically contemplates that the law 'may require a government to incur expenses in its own operations to avoid imposing a substantial burden.' Because the statute expressly anticipates increased costs, the fact that such diets may be more costly than non-religious diets is not alone a compelling governmental interest under the statute."); Rouser v. White, 630 F. Supp. 2d 1165, 1185 (E.D. Cal. 2009) ("Tile court is aware of no authority - and the defendants have directed it to none - that has held that cost is a compelling government interest under RLUIPA when a prison policy or practice was at issue."); El-Tabech v. Clarke, No. 4:04CV3231, 2007 WL 2066510, at *3 (D. Neb. July 17,2007) (finding "incredulous" defendant's claim that budgetary interests kept it from obtaining kosher items from a vendor and ordered the parties to "negotiate the feasibility of ... '[s]upplying
inmates with prepackaged kosher meals"); Elsinore Christian Ctr. v. City 0/Lake Elsinore, 291
F. Supp. 2d 1083, 1093-94 (C.D. Cal. 2003) (cost not a compelling interest under RLUIPA);
be justified by a compelling governmental interest). Congress responded by enacting the Religious Freedom Restoration Act of 1993 ("RFRA"), 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq., which reinstated the strict scrutiny standard for burdens on religious exercise. See, e.g., Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,424 (2006). But in City a/Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court struck down RFRA as applied to state and local jurisdictions. Congress again responded, enacting RLUIPA, which sought to reinstate the strict scrutiny standard in certain contexts, including those at issue here. See Cutter, 544 U.S. at 714-17.
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Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1228 (C.D. Cal. 2002) (same).
These decisions align with settled jurisprudence establishing that, except in extraordinary circumstances, cost considerations are not compelling for purposes of strict scrutiny analysis. See Mem. Hosp., 415 U.S. at 264; see also Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986) ("[A]lthough we recognize that costs are a valid consideration for First Amendment purposes, we have stated in other prison suits that 'inadequate resources can never be an adequate justification for depriving any person of his constitutional rights.''') (citation omitted).
B. Under Fifth Circuit Law, Cost Is Not a Compelling Governmental Interest. Fifth Circuit precedent is consistent with the case law cited above rejecting cost alone as a compelling governmental interest. In Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007), the Fifth Circuit found that cost was one of several factors that, depending on the facts of the case, could constitute a compelling government interest. In Baranowski, the court held that, on the specifi,c factual evidence presented, the pro se plaintiff had not demonstrated a RLUIPA violation where TDCJ refused to provide him with kosher meals. Contrary to Defendants' assertion, the Baranowski court did not recognize that TDCJ's "interest in maintaining costs in the feeding of its prison population" was, in itself, a compelling governmental interest. See Def. . MSJ at 17. Rather, the Baranowski court considered several factors asserted by the defendants, namely defendants' contentions that offering kosher meals to Baranowski would: (1) increase costs so significantly that TDCJ's ability to provide a nutritionally appropriate meal to other offenders would be jeopardized; (2) breed resentment among inmates that would result in security risk, and; (3) lead to increased demand by other religious groups for similar diets. 486 F.3d at 125.
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In considering the defendants' multiple asserted factors, the Baranowski court expressly followed the Supreme Court's holding that "context matters" for the compelling government interest standard. Baranowski, 486 F.3d at 125 (quoting Cutter, 544 U.S. at 723). After noting that the pro se plaintiff had not disputed any of the assertions proffered by the defendants on summary judgment, the court found that "[bJased on the record before us, we hold that this policy is related to maintaining good order and controlling costs and, as such, involves compelling government interests." Baranowski, 486 FJd at 125 (emphasis added). Accordingly, Baranowski did not find, even on the facts of the case, that cost alone could qualify as a compelling government interest. See Willis, 2010 WL 4457432 at *9 ("budgetary shortfall . . . is not itself a Baranowski factor," and "[i]nosfar as the [defendant] asks that the Court find that a budgetary shortage alone can qualify as a compelling interest, the Court must reject that claim.") (citing Cutter, 544 U.S. at 709).
The evidence presented in the instant case is substantially different from what was presented to the court in Baranowski. Cf McAlister v. Livingston, 348 F. App'x 923,937 (5th Cir. 2009) (reviewing TDCJ volunteer policy evert though court had previously rendered decision on that policy in Baranowski because McAlister presented different facts, and RLUIPA requires a fact-specific, case-by-case review). As an initial matter, unlike Baranowski, Defendants here assert cost-savings as the only interest furthered by their refusal to provide kosher meals to Moussazadeh, and do not combine that interest with interests in maintaining order and discipline. Furthermore, Mr. Moussazadeh has introduced evidence that TDCJ severely overestimated budgetary concerns in Baranowski. See, e.g., PI. MSJ Reply at 8-11. Mr. Moussazadeh has also introduced evidence that the other concerns cited by TDCJ in Baranowski as justifying their policy (breeding resentment among inmates that would result in
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security risk and leading to increased demand for religious diets by other religious groups) are unfounded, extensively citing the experience of other corrections systems that have successfully provided kosher meals to inmates throughout their housing units for years.
Thus, contrary to Defendants' assertions, the Fifth Circuit's Baranowski decision does not compel the conclusion that Defendants' refusal to provide a kosher diet to Mr. Moussazadeh furthers a compelling governmental interest. Rather, the court in Baranowski concluded that cost could be considered in combination with other interests, but Defendants have failed to assert any other interests here.
III. Defendants Have Not Demonstrated That Their Refusal To Provide Mr. Moussazadeh with a Kosher Diet Specifically Furthers Their Asserted Governmental Interest. Even if cost control were a compelling governmental interest in itself, Defendants cannot
merely assert an interest in controlling costs to satisfy RLUIPA. Instead, Defendants must show that the restriction is in actual furtherance of their cited compelling interest - a tangential or tenuous relationship between the policy and the interest is insufficient. See 42 U.S.c. § 2000cc1(a)(1). Specifically, Defendants have the burden of showing that cost savings, their only asserted compelling interest, is actually furthered by refusing to provide Mr. Moussazadeh with kosher meals. 42 U.S.C. § 2000cc-l(a) (prohibiting government imposition ofa substantial burden on "religious exercise of a person" unless "the government demonstrates that imposition of the burden on that person" furthers a compelling government interest) (emphasis added); see, e.g., Jova v. Smith, 582 F.3d 410,415 (2d Cir. 2009) ("[T]he state may not merely reference an interest in security or institutional order in order to justify its actions."); Washington v. Klem, 497 F.3d 272,283 (3d Cir. 2007) ("Even in light of the substantial deference given to prison authorities, the mere assertion of security or health reasons is not, by itself, enough for the
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Government to satisfy the compelling governmental interest requirement. Rather, the particular policy must further this interest."); Murphy v. Ma. Dep't a/Carr., 372 F.3d 979, 988-89 (8th Cir. 2004) ("[Officials] must do more than offer conclusory statements and offer post hoc rationalizations.").
While Defendants have made general assertions about cost savings, they have not cited evidence that the cost savings accrued by their refusal to provide Mr. Moussazadeh with a kosher diet is more than merely marginal. Indeed, Defendants used to provide Mr. Moussazadeh with a kosher meal in the past, and still provide prisoners on the Stringfellow Unit with kosher meals, undermining their assertion that providing Mr. Moussazadeh with a kosher meal is costprohibitive. Thus, Defendants' cursory assertion of cost savings is not enough to meet their burden of demonstrating that a compelling interest is at stake. See 146 Congo Rec. 16698, 16699 (2000) Goint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) ("Joint Statement"), ("[I]nadequately formulated prison regulations and policies gr?unded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements." (quoting S. Rep. No. 103-111 at 10 (1993))); see alsa Spratt v. R.I Dep 't a/Carr., 482 F.3d 33, 39 (1st Cir. 2007) ("[M]erely stating a compelling interest does not fully satisfy [State],s burden on this element ofRLUIPA").
IV. Defendants Have Not Demonstrated That Their Refusal To Provide Mr. Moussazadeh with a Kosher Diet Is the Least Restrictive Means To Further Defendants' Asserted Governmental Interest. Similarly, Defendants have also not demonstrated that, even if cost control were a
compelling governmental interest in itself, their refusal to provide Mr. Moussazadeh with kosher meals is the least restrictive means to further this purported interest. As the Supreme Court explained, "[t]o survive strict scrutiny ... a State must do more than assert a compelling state
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interest-it must demonstrate that its law is necessary to serve the asserted interest." Burson v. Freeman, 504 U.S. 191, 199 (1992) (emphases added).4 Instead, where less restrictive alternatives are available, state officials must consider and offer a legitimate reason for rejecting those alternatives. See, e.g., Washington v. Klem, 497 F.3d 272,284 (3d Cir. 2007); Warsoldier v. Woodford, 418 F.3d 989,999 (9th Cir. 2005) ("CDC cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy ofless restrictive measures before adopting the challenged practice."); Murphy, 372 F.3d at 989 ("It is not clear that MDOC seriously considered any other alternatives, nor were any explored before the district court."). Defendants fail to demonstrate that their refusal is the least restrictive alternative, because they fail to explain why numerous other jurisdictions provide kosher meals without unduly damaging the public fisc, Defendant's asserted compelling interest.
TDCJ's claim that it cannot afford to provide kosher meals is undermined by its inability to distinguish its purported interests from the interests of the numerous prison systems that do provide kosher meals. The nation's largest penal institution - the Federal Bureau of Prisons ("BOP") - provides kosher meals to all Jewish inmates as part of its common fare program. See 28 C.F.R. § 548.20 (federal policy); U.S. Dep't of Justice, Fed. Bureau of Prisons, Program Statement No. 4700.05, Religious Diet Program, ch. 4 (June 12,2006).5 When it enacted RLUIPA, Congress was cognizant of BOP's practices and experiences with religious
4 RLUIPA's legislative history underscores this specificity requirement, explaining that '''inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements. ", 146 Congo Rec. S7775 (daily ed. July 27,2000) (quoting S. Rep. No. 103-111 at 10 (1993)). 5 Available at http://www.bop.gov/policy/progstat/4700_00S.pdf.
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accommodations under the requirements of the RFRA (the pre-cursor to RLUIPA)6 and used BOP's experience as a touchstone for evaluating the practicality ofRLUIPA's requirements. Cutter, 544 U.S. at 726 ("For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners. The Congress that enacted RLUIPA was aware of the Bureau's experience.") (internal quotations omitted); see also 146 Congo Rec. S7775 (daily ed. July 27,2000) (letter from Assistant Attorney General to Senator Hatch) ("We do not believe RLUIPA would have an unreasonable impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system.").
Mr. Moussazadeh cites a 2006 study from the Michigan Department of Corrections that found that 32 state prison systems provide kosher meals to prisoners upon request. PI. MSJ at 25 & Exhibit 2. These prison systems accommodate anywhere from "an average of two (2), to an average of one thousand-five hundred (1,500)" Jewish prisoners every day, either through use of a kosher kitchen, provision of prepared kosher meals from outside vendors, or accommodation of religious diets through a common fare program. Id. at 3. Although other state systems undoubtedly have similar interests to TDCJ in controlling costs, many - including some with large~ Jewish prisoner populations than TDCJ - have successfully provided kosher food for years using various alternative means, demonstrating that TDCJ's decision not to provide Mr. Moussazadeh with any accommodation is not the least restrictive alternative. Indeed, TDCJ used to provide Mr. Moussazadeh himself with a kosher diet, and it still provides prisoners on the
6 See supra note 2.
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Stringfellow Unit with a kosher diet. Cf Church ofthe Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) ("It is established in our strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest of the "highest order" ... when it leaves appreciable damage to that supposedly vital interest unprohibited. ''') (citation omitted).
Defendants' only response to evidence that the BOP and 32 other states provide a kosher diet is to claim that RLUIPA does not "require state prison officials to adopt any religious accommodation that is recognized by other institutions" and that "there is room within RLUIPA for a particular prison to decline to join the 'lowest common denominator' when, in the discretion of its officials, there are better means to provide a particularized accommodation." Def. MSJ Opp. at 5. As other circuits have recognized, when an institution refuses to provide an accommodation that othe~ institutions do provide, the practice of other institutions - which all share Defendants' budgetary concerns - is highly relevant to the legal question of whether this Defendants' refusal is, in fact, the least restrictive means necessary to serve the purported interests. See Spratt, 482 F.3d at 42 (Although "evidence of policies at one prison is not conclusive proof that the same policies would work at another institution," absent significant differences between the defendant system and the federal prison system, Federal Bureau of Prisons policy is relevant); Warsoldier, 418 F.3d at 1000 ("[W]e have found comparisons between institutions analytically useful when considering whether the government is employing the least restrictive means. Indeed, the failure ofdefendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that defendants was using the least restrictive means."); see also Procunier v. Martinez, 416 U.S. 396,414 n.14 (1974) ("[T]he policies followed at other well-run institutions would be relevant to a determination of the need for a particular type ofrestriction.");
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Turner, 482 U.S. at 97-98 (general allowance by federal Bureau of Prisons suggested that state prison had alternatives to prohibition on inmate marriage).
The success of BOP and state systems across the country in accommodating inmates' requests for kosher diets demonstrates that TDC], s refusal to provide kosher meals outside of the Stringfellow Unit is a matter of preference rather than necessity. RLUIPA, however, requires that TDCJ demonstrate that its refusal is one of necessity. 42 U.S.C. § 2000cc-1(a)(2). Accordingly, Defendants have failed to satisfy their burden under RLUIPA.
CONCLUSION Defendants have not met their burden of demonstrating that there is a compelling interest justifying the substantial burden they have placed on Mr. Moussazadeh, nor have they shown that their refusal to provide him with a kosher diet is the least restrictive means for furthering their asserted compelling interest. Because Defendants have not met their obligations under RLUIPA, Defendants' Motion for Summary Judgment should be denied.7
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division JONATHAN M. SMITH Chief Special Litigation Section
7 The United States requests the Court's permission to participate in any hearing on this matter.
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TIMOTHYD. MYGATT Special Counsel Special Litigation Section
l\
United Sta: s Departm n of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 514-6255 (202) 514-514-0212 (fax) mafthew.donnelly@usdoj.gov
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CERTIFICATE OF SERVICE
I certify that on April 8,2011, I caused a true copy of the forgoing Statement ofInterest of the United States to be served, via e-mail and first class U.S. Mail, to the following:

For the Plaintiff:
Allen M Gardner James C Knapp, Jr. Matthew Todd Murchison Anne Wylde Robinson Latham & Watkins - D. C . 555 Eleventh Street, NW Suite 1000 . Washington, D.C. 20004 allen.gardner@lw.com J ames.knapp@lw.com matthew.murchison@lw.com anne.robinson@lw.com
Derek L Gaubatz The Becket Fund .1350 Connecticut. Avenue NW, Suite 605 Washington, D.C. 20004 dgaubatz@becketfund.org
Eric Christopher Rassbach Luke W Goodrich The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007 erassbach@becketfund.org 19oodrich@becketfund.org

For the Defendants:
Celamaine Cunniff M Carol Gardner Office of the Texas Attorney General PO Box 12548 Austin, TX 78711-2548 cela.cunniff@oag.state.tx.us carol. gardner@oag.state.tx.us
George Baxter Ward, IV Attorney at Law 221 West 6th Street Suite 1050 Austin, TX 78701 gward@dwlawtx.com
For the Amicus: The Becket Fund/or Religious Liberty
Eric Christopher Rassbach The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007 erass bach@becketfund.org

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 Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 1 of 20
CLOSED,PRIS,STAYED
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Galveston) CIVIL DOCKET FOR CASE #: 3:07−cv−00574

Moussazadeh et al v. Texas Department of Criminal Justice et al Assigned to: Judge George C Hanks, Jr Case in other court: Eastern District of Texas Lufkin Division,
9:05−CV−197 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 12/13/2007 Date Terminated: 03/31/2017 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Max Moussazadeh

represented by Anne Wylde Robinson Latham and Watkins LLP 555 Eleventh St NW Ste 1000 Washington, DC 20004 202−637−2161 Fax: 202−637−2201 fax Email: anne.robinson@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald H Lee Latham & Watkins−D.C. 555 Eleventh Street, NW, Suite 1000 Washington, DC 20004 202−637−2200 Fax: 202−637−2201 Email: ronald.lee@lw.com TERMINATED: 10/14/2010 LEAD ATTORNEY

Allen M Gardner Latham & Watkins − DC 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 202−637−2270 Fax: 202−637−2201 Email: allen.gardner@lw.com ATTORNEY TO BE NOTICED

David Paul Palmer 425 I St NW Room 6100 Washington, DC 20536 202−305−9599 TERMINATED: 03/12/2008 ATTORNEY TO BE NOTICED

Derek L Gaubatz The Becket Fund 1350 Conn. Ave. NW Suite 605 Washington, DC 20004 202−955−0098 ATTORNEY TO BE NOTICED

Eric Christopher Rassbach The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 202−349−7211

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 2 of 20
Fax: 202−955−0090 Email: erassbach@becketlaw.org ATTORNEY TO BE NOTICED
James C Knapp , Jr. Latham & Watkins LLP 555 Eleventh St NW STE 1000 Washington, DC 20004 202−637−2200 Email: James.knapp@lw.com ATTORNEY TO BE NOTICED
Luke William Goodrich The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 202−955−0095 X216 Email: lgoodrich@becketlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Todd Murchison Latham & Watkins LLP 555 Eleventh St. NW Suite 1000 Washington, DC 20004 202−637−2136 Fax: 202−637−2201 Email: matthew.murchison@lw.com ATTORNEY TO BE NOTICED
William Scott Croft Latham & Watkins D.C. 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 TERMINATED: 03/12/2008 ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
Gerald Yale David TERMINATED: 10/16/2006

V. Defendant Texas Department of Criminal Justice

represented by Celamaine Cunniff Office of the Atty Gen Law Enforcement Def Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Email: cela.cunniff@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
M Carol Gardner Office of the Attorney General Law Enforcement Defense

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 3 of 20

P O Box 12548 Austin, TX 78711−2548 512−475−1355 Fax: 512−495−9139 Email: carol.gardner@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Baxter Ward , IV De Leon & Washburn, P.C. 901 South Mopac Expy Barton Oaks Plaza #5, Suite 230 Austin, TX 78746 512−478−5308 Fax: 512−482−8628 Email: gward@dwlawtx.com ATTORNEY TO BE NOTICED

Defendant
Brad Livingston Solely in his official capacity as Executive Director of TDCJ−CID

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Carol Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Baxter Ward , IV (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Sweeten Solely in his official capacity as Warden of the Eastham Unit of the TDCJ−CID

represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M Carol Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Baxter Ward , IV (See above for address) ATTORNEY TO BE NOTICED

V. Consol Defendant Vance Drum TERMINATED: 10/16/2006
Consol Defendant Tommy R Goodin TERMINATED: 10/16/2006
Consol Defendant David L Stacks TERMINATED: 10/16/2006

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 4 of 20
Intervenor Plaintiff United States Of America TERMINATED: 10/16/2006
Movant Ricky L Long TERMINATED: 01/11/2006

V. Amicus Liberty Legal Institute
Amicus The Becket Fund for Religious Liberty Amicus US Department Of Justice
Interested Party David Scott Helfond

represented by Nathaniel Q. Moran Nathaniel Moran Law Firm PLLC PO Box 9430 Tyler, TX 75711 903−571−5667 Email: nmoran@MoranFirm.com TERMINATED: 03/26/2008 LEAD ATTORNEY
represented by Eric Christopher Rassbach (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew J Donnelly US Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202−514−6255 Email: matthew.donnelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori E. Rifkin U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 202−514−8434 Email: lori.rifkin@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 10/12/2005
10/12/2005 10/12/2005

# Docket Text
1 Prisoner Civil Rights COMPLAINT against TDCJ−CID, Brad Livingston, David Sweeten (Filing fee $ 250.00) filed by Max Moussazadeh.(ceaton, ) (Entered: 12/17/2007)
*** Filing Fee $250.00, receipt number 9−1−0189, filed. (ceaton, ) (Entered: 12/17/2007)
2 (APPROVED) MOTION for Dane Holbrook to Appear Pro Hac Vice by Max Moussazadeh, filed. (ceaton, ) (Entered: 12/17/2007)

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10/12/2005 10/12/2005 10/12/2005 10/12/2005 10/12/2005 10/12/2005
10/12/2005 10/12/2005 10/12/2005
11/08/2005 11/08/2005 11/09/2005 11/15/2005 11/15/2005 11/15/2005
11/23/2005 11/30/2005
12/01/2005 12/02/2005 12/02/2005 12/05/2005 12/05/2005

3 (APPROVED) MOTION for Derek L Gaubatz to Appear Pro Hac Vice by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/17/2007)
4 (APPROVED) MOTION for Joshua Chandler to Appear Pro Hac Vice by Max Moussazadeh, filed.(ceaton, ) (Entered: 12/17/2007)
5 (APPROVED) MOTION for Allen Gardner to Appear Pro Hac Vice by Max Moussazadeh, filed. (ceaton, ) (Entered: 12/17/2007)
6 (APPROVED) MOTION for Parker Douglas to Appear Pro Hac Vice by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/17/2007)
7 Magistrate Consent Form E−Mailed to Max Moussazadeh attorney's of record (ceaton, ) (Entered: 12/17/2007)
*** ORDER REFERRING CASE to Magistrate Judge Judith K Guthrie per General Order 05−04. Signed by Judge Thad Heartfield on 10/12/05. (ceaton, ) (Entered: 12/17/2007)
Summons Issued as to TDCJ−CID, Brad Livingston, David Sweeten and mailed back to attorney for service., filed.(ceaton, ) (Entered: 12/17/2007)
***Pro Hac Vice Filing fee paid by Derek Gaubatz; Fee $25.00, receipt number 9−1−0191, filed. (ceaton, ) (Entered: 12/17/2007)
*** Pro Hac Vice Filing fee paid by Joshua Chandler, Allen Gardner, Parker Douglas, Dane Holbrook; Fee $100.00, receipt number 9−1−0190, filed. (ceaton, ) (Entered: 12/17/2007)
8 ANSWER to 1 Complaint with Jury Demand by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/17/2007)
9 PARTIAL MOTION to Dismiss 1 Complaint by TDCJ−CID, Brad Livingston, David Sweeten, filed.. (Attachments: # 1 Proposed Order)(ceaton, ) (Entered: 12/17/2007)
***Magistrate Consent Form Mailed to David Sweeten, TDCJ−CID, Brad Livingston, filed. (ceaton, ) (Entered: 12/17/2007)
10 RETURN of Service Executed as to TDCJ−CID on 10/28/05, filed.(ceaton, ) (Entered: 12/17/2007)
11 RETURN of Service Executed as to Brad Livingston on 10/20/05, filed.(ceaton, ) (Entered: 12/17/2007)
12 RETURN of Service Executed as to Brad Livingston Executive Director of the Texas Dept of Criminal Justice by delivering to Tina Rodriguez authorized to accept was served on 10/20/05, filed.(ceaton, ) (Entered: 12/17/2007)
13 RESPONSE in Opposition to 9 MOTION to Dismiss 1 Complaint, filed by Max Moussazadeh. (Attachments: # 1 Proposed Order)(ceaton, ) (Entered: 12/17/2007)
14 MOTION for Leave to File Amicus Curiae Brief in Opposition to Defendants' Partial Motion to Dismiss by Liberty Legal Institute, filed. (Attachments: # 1 Brief)(ceaton, )***Document deficient (no certificate of conference or certificate of service. Please ignore.*** (Entered: 12/17/2007)
15 REPORT of Rule 26(f)Planning Meeting by The Becket Fund for Religious Liberty, filed.(ceaton, ) (Entered: 12/17/2007)
16 NOTICE of Appearance by George Ward on behalf of TDCJ−CID, Brad Livingston, David Sweeten, filed. (ceaton, ) (Entered: 12/17/2007)
17 MOTION to Consolidate Cases by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/17/2007)
18 RESPONSE/ REPLY to Response to 9 MOTION to Dismiss 1 Complaint, filed by TDCJ−CID, Brad Livingston, David Sweeten. (ceaton, ) (Entered: 12/17/2007)
19 SCHEDULING ORDER setting cae specific deadlines. Signed by Judge Judith K Guthrie, filed.(ceaton, ) (Entered: 12/17/2007)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 6 of 20

12/09/2005 12/09/2005 12/09/2005 12/19/2005 12/19/2005
12/19/2005
12/19/2005 12/22/2005 12/30/2005
01/04/2006 01/04/2006 01/06/2006 01/09/2006
01/09/2006
01/10/2006 01/10/2006 01/11/2006

20 NOTICE of Disclosure by TDCJ−CID, Brad Livingston, David Sweeten, filed. (ceaton, ) (Entered: 12/17/2007)
21 NOTICE of Disclosure by Max Moussazadeh, filed. (ceaton, ) (Entered: 12/17/2007)
22 MOTION for Leave to File Amicus Curiae Brief in Opposition to Defendants' Partial Motion to Dismiss by Liberty Legal Institute, filed.. (Attachments: # 1 Brief# 2 Proposed Order)(ceaton, ) (Entered: 12/17/2007)
23 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Max Moussazadeh, filed. (Attachments: # 1 # 2 Exhibit # 3 Exhibit)(ceaton, ) (Entered: 12/17/2007)
24 WITHDRAWN PER (62) ORDERORDER granting Motion to consolidate cases. It is Ordered that Moussazadeh vs TDCJ #9:05cv197 and David vs TDCJ #9:04cv5, are consolidated with the lead case being Civil Action No. 9:05cv197. The scheduling order previously entered in Civil Action 9:05cv197 remains in effect and will govern the consolidated cases.Signed by Judge Judith K. Guthrie on 12/19/05, filed.(ceaton, ) (Entered: 12/17/2007)
25 ORDER granting Motion for Leave to File amicus curiae brief of Liberty Legal Institute in opposition to dft's partial motion to dismiss. The Clerk shall file the amicus brief attached to the motion for leave. Signed by Judith K Guthrie.() Parties notified.(ceaton, ) (Entered: 12/17/2007)
26 AMICUS CURIAE BRIEF by Liberty Legal Institute, filed.(ceaton, ) (Entered: 12/18/2007)
27 NOTICE of Disclosure by Brad Livingston, David Sweeten, TDCJ−CID, filed. (ceaton, ) (Entered: 12/18/2007)
28 NOTICE by David Sweet, TDCJ−CID, Brad Livingston re: 23 Appeal of Magistrate Judge Decision to District Court, Defendants Response to Plaintiff's Objections to Magistrate Judges Scheduling Order by TDCJ−CID, Brad Livingston, David Sweeten, filed. (ceaton, ) (Entered: 12/18/2007)
29 OBJECTIONS to the Courts denial of (80) Motion to Intervene in 9:04−CV5, filed by Ricky Long. (ceaton, ) (Entered: 12/18/2007)
30 MOTION for Reconsideration of (80) Motion to Intervene filed in the consolidated case 9:04−CV−5 by Ricky Long, filed.. (ceaton, ) (Entered: 12/18/2007)
31 NOTICE By Max Moussazadeh re: 28 Notice Plaintiff's Reply in Support of Objections to Magistrate Judge's Scheduling Order, filed. (ceaton, ) (Entered: 12/18/2007)
32 REPORT AND RECOMMENDATIONS that (57) and (57) Motions for Summary Judgment (filed in Civil Action No. 9:04cv5) should be denied without prejudice. Signed by Judith K Guthrie on 1/8/06 Objections to R&R due by 1/24/2006. Parties notified.(ceaton, ) (Entered: 12/18/2007)
33 REPORT AND RECOMMENDATIONS that the (9)Motion to Dismiss filed by TDCJ−CID, Brad Livingston, David Sweeten be granted and that the TRFA claim be dismissed without prejudice to being pursued in state court. Signed by Judge Judith K Guthrie on 1/9/06. Objections to R&R due by 1/24/2006. Parties notified.(ceaton, ) (Entered: 12/18/2007)
34 NOTICE of Disclosure by TDCJ−CID, Brad Livingston, David Sweeten Notice of Second Supplemental Disclosure, filed. (ceaton, ) (Entered: 12/18/2007)
35 ACKNOWLEDGMENT OF SERVICE on 1/5/06 re: (24) Order on Motion to Consolidate Cases received on 1/5/06, filed.(ceaton, ) (Entered: 12/18/2007)
36 ORDER denying 23 objection to the scheduling order and denying 29 Objections and denying 30 MOTION for Reconsideration. Plaintiffs and defendants need to designate a lead attorney, and documents should be filed only by the designated lead attorney. Signed by Judge Thad Heartfield. Parties notified.(ceaton, ) (Entered: 12/18/2007)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 7 of 20

01/12/2006 01/13/2006 01/19/2006 01/19/2006 01/24/2006 01/26/2006
01/30/2006 02/03/2006 02/03/2006 02/06/2006
02/06/2006
02/06/2006 02/08/2006
02/08/2006
02/24/2006 04/06/2006 04/07/2006 04/12/2006
05/26/2006

37 NOTICE of Appearance by Marjolyn Carol Gardner on behalf of TDCJ−CID, Brad Livingston, David Sweeten, filed. (ceaton, ) (Entered: 12/18/2007)
38 NOTICE of Appearance by Dane A Holbrook on behalf of Max Moussazadeh, filed. (ceaton, ) (Entered: 12/18/2007)
39 ACKNOWLEDGMENT OF SERVICE by Max Moussazadeh on 1/13/06 re: (32) Report and Recommendations, filed.(ceaton, ) (Entered: 12/18/2007)
40 ACKNOWLEDGMENT OF SERVICE by Max Moussazadeh on 1/13/06 re: (33) Report and Recommendations, filed.(ceaton, ) (Entered: 12/18/2007)
41 MOTION to Amend/Correct Unopposed Motion to Adopt Pleadings and Orders by by TDCJ−CID, Brad Livingston, David Sweeten, filed.. (ceaton, ) (Entered: 12/18/2007)
42 ORDER granting 41 MOTION to Amend /Adopt Pleadings and Orders. All pleadings and the Court's order regarding the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 filed in Civil Action No. 9:04cv5 are incorporated in the consolidated cases. Signed by Judge Thad Heartfield. Parties notified.(ceaton, ) (Entered: 12/18/2007)
43 OBJECTIONS to 32 Report and Recommendations, filed by Gerald Yale David. (ceaton, ) (Entered: 12/18/2007)
44 NOTICE by Gerald Yale David regarding mail, filed. (ceaton, ) (Entered: 12/18/2007)
45 MOTION for Reconsideration of 36 Order, by Gerald Yale David, filed.. (ceaton, ) (Entered: 12/18/2007)
46 ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 32 Report and Recommendations. and denying without prejudice the Motions for Summary Judgment (docket entry numbers 57 & 58 filed in Civil Action No.9:04cv5). Signed by Judge Thad Heartfield. Parties notified.(ceaton, ) (Entered: 12/18/2007)
47 ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 33 Report and Recommendations, and granting (9) Motion to Dismiss plaintiff's TRFA claim. Plaintiff's TRFA claim is dismissed without prejudice to being pursued in state court. Signed by Judge Thad Heartfield. Parties notified.(ceaton, ) (Entered: 12/18/2007)
48 MOTION to Amend/Correct 19 Scheduling Order by TDCJ−CID, Brad Livingston, David Sweeten, filed.. (ceaton, ) (Entered: 12/18/2007)
49 ORDER denying 45 MOTION for Reconsideration of 36 Order,.The Clerk shall return unfiled any new motion filed by Long or any other party that seeks to permit Long to intervene in this lawsuit. Signed by Judge Thad Heartfield, Parties notified.(ceaton, ) (Entered: 12/18/2007)
50 ORDER granting 48 MOTION to Amend 19 Scheduling Order. The new deadlines in effect are as follows: 5/3/06−completion of discovery; 5/31/06−file dispositive motions; 6/16/06−file responses to dispositive motions. Signed by Judge Judith K Guthrie. Parties notified.(ceaton, ) (Entered: 12/18/2007)
52 ACKNOWLEDGMENT OF SERVICE by Max Moussazadeh on 2/22/06 re: (50) Order on Motion to Amend/Correct, filed.(ceaton, ) (Entered: 12/18/2007)
53 NOTICE by TDCJ−CID, Brad Livingston, David Sweeten of Vaction, filed. (ceaton, ) (Entered: 12/18/2007)
54 JOINT MOTION to Stay Litigation by TDCJ−CID, Brad Livingston, David Sweeten, Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/18/2007)
55 ORDER granting 54 MOTION to Stay. All deadlines are tolled until further orders are issued by the Court. The Parties are to submit a joint status report at the beginning of each month, starting on 6/1/06, regarding the status of efforts to reach a settlementSigned by Judge Judith K Guthrie Parties notified.(ceaton, ) (Entered: 12/18/2007)
56 MOTION for Extension of Time to file Settlement Report by TDCJ−CID, Brad Livingston, David Sweeten, filed.. (ceaton, ) (Entered: 12/18/2007)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 8 of 20

05/30/2006
06/30/2006 07/24/2006
08/01/2006
10/06/2006
10/06/2006 10/16/2006 10/16/2006
11/20/2006 12/04/2006 01/26/2007 02/26/2007 03/01/2007 03/05/2007
03/13/2007 03/15/2007
03/27/2007 04/02/2007 04/25/2007
04/25/2007 06/01/2007

57 ORDER granting 56 MOTION for Extension of Time to file Settlement Report. The first settlement report is now due by 7/1/06. Signed by Judge Judith K Guthrie Parties notified.(ceaton, ) (Entered: 12/18/2007)
58 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, Max Moussazadeh, filed.(ceaton, ) (Entered: 12/18/2007)
51 ACKNOWLEDGMENT OF SERVICE by Max Moussazadeh on 2/22/06 re: (46) Order Adoping Report and Recommendations, (47) Order Adopting Report and Recommendations, filed.(ceaton, ) (Entered: 12/18/2007)
59 STATUS REPORT for July 2006 (Joint) by TDCJ−CID, Brad Livingston, David Sweeten, Max Moussazadeh, filed.(ceaton, ) Modified on 12/18/2007 (ceaton, ). (Entered: 12/18/2007)
60 STATUS REPORT for August 2006 by TDCJ−CID, Brad Livingston, David Sweeten, Max Moussazadeh, filed.(ceaton, ) Additional attachment(s) added on 12/18/2007 (ceaton, ). (Entered: 12/18/2007)
61 STATUS REPORT For September 2006, by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
62 ORDER WITHDRAWING (24) Order on Motion to Consolidate Cases. Signed by Judge Judith K Guthrie.( Parties notified.(ceaton, ) (Entered: 12/18/2007)
*** Parties Gerald Yale David; United States Of America; Vance Drum; Tommy R Goodin; David L Stacks terminated per order #62 withdrawing consolidation. (ltien, ) (Entered: 12/20/2007)
63 STATUS REPORT October 2006, by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) Modified on 12/20/2007 (ltien, ). (Entered: 12/18/2007)
64 STATUS REPORT for November 2006, by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
65 STATUS REPORT for January and February 2007 by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
66 NOTICE of Appearance by David Paul Palmer on behalf of Max Moussazadeh, filed. (ceaton, ) (Entered: 12/18/2007)
67 STATUS REPORT for March 2007, by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
68 ORDER SETTING STATUS CONFERENCE, Status Conference set for 4/25/07 10:00 AM before Magistrate Judge Judith K Guthrie in Tyler. The State of Texas shall produce Max Moussazadeh at the US Marshal's office for this hearing. Signed by Judge Judith K Guthrie.() Parties notified.(ceaton, ) (Entered: 12/18/2007)
69 MOTION for Dane Holbrook, Joshua Chandler and Parker Douglas to Withdraw as Attorney by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/18/2007)
70 ORDER granting 69 MOTION for Dane Holbrook, Joshua Chandler and Parker Douglas to Withdraw as Attorney. Signed by Judge Judith K Guthrie, Parties notified.(ceaton, ) Modified on 12/18/2007 (ceaton, ). (Entered: 12/18/2007)
71 (approved−fees paid) MOTION for William Scott Croft to Appear Pro Hac Vice by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/18/2007)
72 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
73 Minute Entry for proceedings held before Judge Judith K Guthrie: Status Conference held on 4/25/07. Court continues stay and requirement that monthly status report be filed. Court reporter Ron Mason(ceaton, ) (Entered: 12/18/2007)
74 EXHIBITSWitness List from Status Conference, filed.(ceaton, ) (Entered: 12/18/2007)
75 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 9 of 20

07/02/2007 08/09/2007 09/05/2007 10/03/2007 10/05/2007
10/15/2007 11/09/2007 11/19/2007 11/19/2007 11/19/2007 11/20/2007 11/20/2007 11/27/2007 12/10/2007 12/13/2007
12/26/2007 12/26/2007 01/03/2008 01/03/2008 01/10/2008 01/23/2008 02/08/2008 02/11/2008

76 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
77 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
78 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/18/2007)
79 STATUS REPORT by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/19/2007)
80 TRANSCRIPT of Proceedings held on 4/25/07, before Judge Judith K Guthrie, Court Reporter: Ron Mason. (ceaton, ) Additional attachment(s) added on 12/21/2007 (ltien, ). (Entered: 12/19/2007)
81 NOTICE by TDCJ−CID, Brad Livingston, David Sweeten(Vacation Notice/Letter), filed. (ceaton, ) (Entered: 12/19/2007)
82 STATUS REPORT by Max Moussazadeh, filed.(ceaton, ) (Entered: 12/19/2007)
83 NOTICE of Appearance by Ronald H Lee on behalf of Max Moussazadeh, filed. (ceaton, ) (Entered: 12/19/2007)
84 MOTION for David P Palmer to Withdraw as Attorney by Max Moussazadeh, filed.. (ceaton, ) (Entered: 12/19/2007)
85 MOTION to Lift Stay by Max Moussazadeh, filed.. (ceaton, ) Modified on 2/12/2008 (ltrevino, ). (Entered: 12/19/2007)
86 ORDER transferring this case to the Southern District of Texas, Galveston Division, Signed by Judge Judith K Guthrie. Parties notified.(ceaton, ) (Entered: 12/19/2007)
87 STATUS REPORT for October 2007, by TDCJ−CID, Brad Livingston, David Sweeten, filed.(ceaton, ) (Entered: 12/19/2007)
88 Additional Attachments to Main Document (85) Motion to Lift Stay by Max Moussazadeh, filed.(ceaton, ) (Entered: 12/19/2007)
*** Interdistrict transfer to the Southern District of Texas Galveston Division, filed. (ceaton, ) (Entered: 12/19/2007)
89 Case transferred in from Eastern District of Texas Lufkin Division. Case Number 9:05−CV−197 certified copy of transfer order, certified docket sheet, and transfer letter received.(ceaton, ) (Entered: 12/19/2007)
90 MOTION for Allen M Gardner to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 1/15/2008. (ceaton, ) (Entered: 12/27/2007)
91 MOTION for Ronald H Lee to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 1/15/2008. (ceaton, ) (Entered: 12/27/2007)
92 ORDER granting 90 Allen M Gardner's Motion to Appear Pro Hac Vice.( Signed by Judge Melinda Harmon ) Parties notified.(htippen, ) (Entered: 01/03/2008)
93 ORDER granting 91 Ronald H. Lee's Motion to Appear Pro Hac Vice.( Signed by Judge Melinda Harmon ) Parties notified.(htippen, ) (Entered: 01/03/2008)
94 MOTION for Eric C Rassbach to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 1/30/2008. (ceaton, ) (Entered: 01/11/2008)
95 Mail Returned Undeliverable as to attorney William Scott Croft re: 92 Order on Motion to Appear Pro Hac Vice, filed. (ckrus, ) (Entered: 01/24/2008)
97 Mail Returned Undeliverable as to attorney David Paul Palmer re: 92 Order on Motion to Appear Pro Hac Vice, filed. (kosborne, ) (Entered: 02/12/2008)
96 Unopposed MOTION for William Scott Croft to Withdraw as Attorney by Max Moussazadeh, filed. Motion Docket Date 3/3/2008. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Lee, Ronald) (Entered: 02/11/2008)

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02/13/2008 02/15/2008 02/27/2008 02/27/2008 03/12/2008
03/26/2008 03/28/2008 04/15/2008 04/15/2008 04/22/2008 07/17/2008 07/25/2008 08/22/2008
08/22/2008 08/29/2008 09/05/2008
09/05/2008
09/10/2008

98 Mail Returned Undeliverable as to attorney William Scott Croft re: 93 Order on Motion to Appear Pro Hac Vice, filed. (jdav, ) (Entered: 02/13/2008)
99 Unopposed MOTION for Entry of Order re: Discovery Plan by Max Moussazadeh, filed. Motion Docket Date 3/6/2008. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Lee, Ronald) (Entered: 02/15/2008)
100 Mail Returned Undeliverable as to attorney David Paul Palmer re: 93 Order on Motion to Appear Pro Hac Vice, filed. (Address Updated & Order Re−Noticed) (bdaniel, ) (Entered: 02/27/2008)
101 DESIGNATION of Celamaine Cunniff as attorney in charge of Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed.(Cunniff, Celamaine) (Entered: 02/27/2008)
102 ORDER granting 84 Motion to Withdraw as Attorney. Attorney William Scott Croft and David Paul Palmer terminated; granting 94 Motion to Appear Pro Hac Vice ; granting 96 Motion to Withdraw as Attorney. Attorney William Scott Croft and David Paul Palmer terminated.( Signed by Judge Melinda Harmon ) Parties notified.(amaly, ) (Entered: 03/13/2008)
103 NOTICE By Attorney Nathaniel Moran to be removed from the notice list., filed. (ceaton, ) (Entered: 03/27/2008)
104 ADVISORY by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed.(Cunniff, Celamaine) (Entered: 03/28/2008)
105 MOTION for Anne W Robinson to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 5/5/2008. (ceaton, ) (Entered: 04/15/2008)
106 NOTICE of Motions Pending by Max Moussazadeh, filed. (Attachments: # 1 Certificate of Service)(Gardner, Allen) (Entered: 04/15/2008)
107 ORDER granting 105 Motion to Appear Pro Hac Vice.( Signed by Judge Melinda Harmon ) Parties notified.(ceaton, ) (Entered: 04/22/2008)
108 ORDER granting 85 Motion to Stay; granting 99 Motion for Entry of New Scheduling Order and Discovery Plan.(Signed by Judge Melinda Harmon) Parties notified.(ceaton, ) (Entered: 07/21/2008)
109 Letter from plaintiff's counsel to defendant's counsel re: illegal retaliation against Max Moussazadeh, filed. (ltien, ) (Entered: 07/29/2008)
110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. Motion Docket Date 9/11/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Cunniff, Celamaine) (Entered: 08/22/2008)
111 NOTICE Defendants TDCJ, Livingston, and Sweeten's Notice of Third Supplemental Disclosure by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. (Cunniff, Celamaine) (Entered: 08/22/2008)
112 NOTICE of Fourth Supplemental Disclosure by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. (Cunniff, Celamaine) (Entered: 08/29/2008)
113 Opposed MOTION to Expedite Ruling on Their Motion to Stay the Court's July 17, 2008, Order by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. Motion Docket Date 9/25/2008. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 09/05/2008)
114 Opposed MOTION to Stay the Court's July 17, 2008, Order by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. Motion Docket Date 9/25/2008. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 09/05/2008)
115 MOTION for Luke W Goodrich to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 9/30/2008. (ceaton, ) (Entered: 09/10/2008)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 11 of 20

09/10/2008
09/11/2008 09/11/2008 09/12/2008 09/22/2008
09/25/2008 09/26/2008
09/26/2008 09/26/2008 09/26/2008 10/14/2008 10/14/2008
10/14/2008

116 ORDER granting 113 Opposed MOTION to Expedite Ruling on Their Motion to Stay the Court's July 17, 2008, Order, granting 114 Opposed MOTION to Stay the Court's July 17, 2008, Order, Plaintiff shall file a response to 110 Defendant's motion for summary judgment within 30 days. All outstanding discovery and depositions in the present cause are STAYED until further Order of this Court.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 09/10/2008)
117 Opposed MOTION for Leave to File an Amended and Supplemental Complaint by Max Moussazadeh, filed. Motion Docket Date 10/1/2008. (Attachments: # 1 Amended and Supplemental Complaint, # 2 Proposed Order, # 3 Certificate of Service)(Robinson, Anne) (Entered: 09/11/2008)
118 RESPONSE in Opposition to 110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment, filed by Max Moussazadeh. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order, # 5 Certificate of Service)(Robinson, Anne) (Entered: 09/11/2008)
119 Opposed MOTION for Reconsideration of 116 Order,, Set/Clear Flags, by Max Moussazadeh, filed. Motion Docket Date 10/2/2008. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Robinson, Anne) (Entered: 09/12/2008)
120 RESPONSE to 118 Response in Opposition to Motion, 119 Opposed MOTION for Reconsideration of 116 Order,, Set/Clear Flags, Defendants' Response to Plaintiff's Opposed Motion for Reconsideration and Reply to Opposition to Defendants' Motion to Stay Discovery, filed by Texas Department of Criminal Justice, Brad Livingston, David Sweeten. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Cunniff, Celamaine) (Entered: 09/22/2008)
121 EXHIBITS re: 120 Response,, by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed.(Cunniff, Celamaine) (Entered: 09/25/2008)
122 Supplemental MOTION to Dismiss 110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment by Texas Department of Criminal Justice, Brad Livingston, David Sweeten, filed. Motion Docket Date 10/16/2008. (Attachments: # 1 Proposed Order, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K, # 10 Exhibit L, # 11 Exhibit M, # 12 Exhibit N, # 13 Exhibit O, # 14 Exhibit P, # 15 Exhibit Q, # 16 Exhibit R)(Cunniff, Celamaine) (Entered: 09/26/2008)
123 REPLY to 118 Response in Opposition to Motion,, filed by Texas Department of Criminal Justice, Brad Livingston, David Sweeten. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 09/26/2008)
124 RESPONSE to 117 Opposed MOTION for Leave to File an Amended and Supplemental Complaint, filed by Texas Department of Criminal Justice, Brad Livingston, David Sweeten. (Attachments: # 1 Exhibit A, # 2 Exhibit B−Part 1, # 3 Exhibit B−Part 2, # 4 Proposed Order)(Cunniff, Celamaine) (Entered: 09/26/2008)
125 REPLY in Support of 119 Opposed MOTION for Reconsideration of 116 Order,, Set/Clear Flags,, filed by Max Moussazadeh. (Attachments: # 1 Certificate of Service)(Robinson, Anne) (Entered: 09/26/2008)
126 REPLY to Response to 117 Opposed MOTION for Leave to File an Amended and Supplemental Complaint, filed by Max Moussazadeh. (Robinson, Anne) (Entered: 10/14/2008)
127 RESPONSE to 122 Supplemental MOTION to Dismiss 110 MOTION to Dismiss or, In the Alternative, Motion for Summary JudgmentSupplemental MOTION to Dismiss 110 MOTION to Dismiss or, In the Alternative, Motion for Summary JudgmentSupplemental MOTION to Dismiss 110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment, 110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment, filed by Max Moussazadeh. (Robinson, Anne) (Entered: 10/14/2008)
128 MOTION for Summary Judgment by Max Moussazadeh, filed. Motion Docket Date 11/3/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Proposed Order)(Robinson, Anne) (Entered: 10/14/2008)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 12 of 20

12/19/2008 01/12/2009 02/11/2009
02/17/2009 02/17/2009 02/24/2009 03/26/2009
03/26/2009 04/10/2009
04/13/2009
04/20/2009 04/27/2009 05/13/2009 05/14/2009
01/21/2010 03/03/2010 03/03/2010

129 MOTION for Entry of Order re: Deeming Motion Unopposed( Motion Docket Date 1/8/2009.), MOTION for Summary Judgment by Max Moussazadeh, filed. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 12/19/2008)
130 ORDER granting 115 Luke Goodrich's Motion to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 01/13/2009)
131 RESPONSE in Opposition to 129 MOTION for Entry of Order re: Deeming Motion Unopposed MOTION for Summary Judgment, filed by Texas Department of Criminal Justice, Brad Livingston, David Sweeten. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 02/11/2009)
132 MOTION to Strike 131 Response in Opposition to Motion, by Max Moussazadeh, filed. Motion Docket Date 3/9/2009. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 02/17/2009)
133 REPLY to Response to 129 MOTION for Entry of Order re: Deeming Motion Unopposed MOTION for Summary Judgment, filed by Max Moussazadeh. (Robinson, Anne) (Entered: 02/17/2009)
134 NOTICE of Relevant Authority by Max Moussazadeh, filed. (Attachments: # 1 Exhibit A)(Robinson, Anne) (Entered: 02/24/2009)
135 OPINION ON DISMISSAL granting 110 MOTION to Dismiss or, In the Alternative, Motion for Summary Judgment, 122 Supplemental MOTION to Dismiss. All other motions are denied. Case is DISMISSED WITH PREJUDICE for want of jurisdiction.(Signed by Judge Melinda Harmon) Parties notified.(kcarr, ) Modified on 3/27/2009 (kcarr, ). (Entered: 03/27/2009)
136 FINAL JUDGMENT. Case terminated on 3/26/2009.(Signed by Judge Melinda Harmon) Parties notified.(kcarr, ) (Entered: 03/27/2009)
137 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 36 Order, 135 Memorandum on Dismissal, 136 Final Judgment, 116 Order,, Set/Clear Flags, by Max Moussazadeh (Filing fee $ 455, receipt number 05410000000004922461), filed.(Robinson, Anne) (Entered: 04/10/2009)
138 Notice of the Filing of an Appeal. DKT13 transcript order form was not mailed to appellant. Fee status: Paid. The following Notice of Appeal and related motions are pending in the District Court: 137 Notice of Appeal,, filed.(mmar, ) (Entered: 04/13/2009)
139 Notice of Assignment of USCA No. 09−40040 re: 137 Notice of Appeal,, filed.(lfilmore, ) (Entered: 04/20/2009)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 137 Notice of Appeal, 139 USCA Case Number USCA No. 09−40040, filed.(mmar, ) (Entered: 04/27/2009)
140 DKT−13 TRANSCRIPT ORDER FORM by Anne W. Robinson. Transcript is Already on File in Clerk's Office. This order form relates to the following: 137 Notice of Appeal,, filed.(jewilliams, ) (Entered: 05/14/2009)
141 Transmittal Letter on Appeal Certified re: 137 Notice of Appeal,. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals in 8 volumes. (USCA No. 09−40040), filed. Tracking # 1Z7262750345225190 (mmar, ) (Entered: 05/14/2009)
142 NOTICE of Change of Address by Luke W. Goodrich, counsel for Max Moussazadeh, filed. (ltrevino, ) (Entered: 01/25/2010)
143 MOTION to Reinstate the Scheduling Order by Max Moussazadeh, filed. Motion Docket Date 3/24/2010. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Robinson, Anne) (Entered: 03/03/2010)
144 MOTION to Expedite Ruling on Motion to Reinstate the Scheduling Order by Max Moussazadeh, filed. Motion Docket Date 3/24/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 03/03/2010)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 13 of 20

03/04/2010
03/04/2010
03/04/2010 03/16/2010
03/16/2010 03/17/2010 03/18/2010 05/27/2010
06/15/2010 06/21/2010
06/29/2010 06/30/2010 07/07/2010 07/08/2010 07/08/2010 07/12/2010

145 PER CURIAM of USCA; issued as mandate March 1, 2010 re: 137 Notice of Appeal, USCA No. 09−40400. Case is REMANDED for additional proceedings to allow the parties and the district court to further develop the record. Case reopened on 3/4/2010, filed.(jdav, ) (Additional attachment(s) added on 8/27/2010: # 1 percuriam) (jdav, ). (Entered: 03/04/2010)
146 JUDGMENT of USCA;issued as mandate 3/1/2010 re: 137 Notice of Appeal, ; USCA No. 09−40400. The appeal is REMANDED to the District Court for further proceedings in accordance with the opinion of this court., filed.(jdav, ) (Entered: 03/04/2010)
147 Court of Appeals LETTER advising the electronic copy of the record has been recycled (USCA No. 09−40400), filed.(jdav, ) (Entered: 03/04/2010)
148 RESPONSE in Opposition to 143 MOTION to Reinstate the Scheduling Order, filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Exhibit A − Offender Disciplinare Report No. 20100017196, # 2 Affidavit re: Grievances, # 3 Proposed Order)(Cunniff, Celamaine) (Entered: 03/16/2010)
149 Amended PROPOSED ORDER **ORDER DENYING PLAINTIFF'S MOTION TO REINSTATE THE SCHEDULING ORDER ** re: 148 Response in Opposition to Motion,, filed.(Cunniff, Celamaine) (Entered: 03/16/2010)
151 Letter from Celamaine Cunniff re: Attorney of Record, filed. (jewilliams, ) (Entered: 03/18/2010)
150 REPLY in Support of 143 MOTION to Reinstate the Scheduling Order, filed by Max Moussazadeh. (Attachments: # 1 Exhibit A)(Robinson, Anne) (Entered: 03/18/2010)
152 ORDER: 143 Plaintiff's Motion to reinstate the scheduling order is DENIED. 144 Plaintiff's motion for an expedited hearing is DENIED, as moot. With respect to the remand, the Court orders the parties to adhere to the following deadlines. All fact discovery shall be completed within 8 weeks of entry of this order. The parties shall file all dispositive motions no later than 3 weeks after the end of the discovery period. (Signed by Judge Melinda Harmon) Parties notified.(jhancock) (Entered: 05/27/2010)
153 ADVISORY by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed.(Cunniff, Celamaine) (Entered: 06/15/2010)
154 Unopposed MOTION for Extension of Time to Extend Discovery & Dispositive Motions Deadlines by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 7/12/2010. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 06/21/2010)
155 ORDER granting 154 Motion for Extension of Time.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 06/29/2010)
156 NOTICE Notice of Defendants' Fifth Supplemental Disclosures by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 06/30/2010)
157 Privilege Log for Defendants' Supplemental Responses and Objections to Plaintiff's Fourth Set of Interrogatories by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed.(Cunniff, Celamaine) (Entered: 07/07/2010)
158 NOTICE Defendants' Notice of Sixth Supplemental Disclosures by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 07/08/2010)
***Set/Reset Deadlines/Hearings: Dispositive Motion Filing due by 7/12/2010 (bgoolsby, ) (Entered: 07/08/2010)
159 Unopposed MOTION for Clarification as to Set/Reset Deadlines/Hearings, 155 Order on Motion for Extension of Time by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 8/2/2010. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 07/12/2010)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 14 of 20

07/16/2010 07/22/2010 07/27/2010 07/28/2010
07/30/2010 08/02/2010 08/05/2010 08/09/2010 08/17/2010 08/17/2010
08/17/2010 08/17/2010 08/18/2010
08/20/2010
08/20/2010 08/25/2010

160 NOTICE Notice of Defendants' Seventh Supplemental Disclosures by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 07/16/2010)
161 ORDER granting 159 Motion for Clarification. Discovery deadline is 08/06/10 and dispositive motions deadline is 08/27/10.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 07/22/2010)
162 NOTICE Notice of Defendants' Eighth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 07/27/2010)
163 Joint MOTION for Extension of Time to Extend Discovery and Dispositive Motions Deadlines by Brad Livingston, Max Moussazadeh, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 8/18/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 07/28/2010)
164 ORDER granting 163 Motion for Extension of Time Discovery due by 8/27/2010 Dispositive Motion Filing due by 9/24/2010.(Signed by Judge Melinda Harmon) Parties notified.(jegonzalez, ) (Entered: 07/30/2010)
165 MOTION for Matthew T. Murchison to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 8/23/2010. (Robinson, Anne) (Entered: 08/02/2010)
166 ORDER granting 165 MOTION for Matthew T. Murchison to Appear Pro Hac Vice, Attorney Matthew T. Murchison for Max Moussazadeh added.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 08/05/2010)
167 NOTICE Notice of Defendants' 9th Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 08/09/2010)
168 NOTICE Notice of Defendants' Tenth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 08/17/2010)
169 MOTION to Quash Deposition by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 9/7/2010. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Proposed Order)(Cunniff, Celamaine) (Entered: 08/17/2010)
170 MOTION to Expedite Ruling on Motion to Quash by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 9/7/2010. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/17/2010)
171 Joint MOTION for Extension of Time Discovery by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 9/7/2010. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/17/2010)
172 Corrected MOTION for Extension of Time Parties' Discovery and Dispositive Motions Deadlines by Brad Livingston, Max Moussazadeh, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 9/8/2010. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/18/2010)
173 RESPONSE in Opposition to 169 MOTION to Quash Deposition, filed by Max Moussazadeh. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Robinson, Anne) (Entered: 08/20/2010)
174 MOTION to Compel Discovery by Max Moussazadeh, filed. Motion Docket Date 9/10/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 08/20/2010)
175 ORDER denying as moot 171 Motion for Extension of Time; granting 172 Corrected Joint Motion for Extension of Time. Discovery due by 9/17/2010 Dispositive Motion Filing due by 10/15/2010.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 08/26/2010)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 15 of 20

08/31/2010 09/03/2010 09/09/2010 09/14/2010 09/15/2010 09/20/2010
09/29/2010 10/04/2010 10/13/2010 10/14/2010
10/15/2010 10/18/2010 10/19/2010 10/22/2010 10/25/2010 10/29/2010 11/03/2010

176 RESPONSE to 174 MOTION to Compel Discovery filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/31/2010)
177 ORDER denying 169 Motion to Quash; granting 170 Motion to Expedite; granting in part and denying in part 174 Motion to Compel.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 09/07/2010)
178 NOTICE Defendants' Notice of Eleventh Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 09/09/2010)
179 Joint MOTION to Extend Discovery and Dispositive Motions Deadlines by Max Moussazadeh, filed. Motion Docket Date 10/5/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 09/14/2010)
180 NOTICE Defendants' Notice of Twelfth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 09/15/2010)
181 ORDER granting 179 Joint MOTION to Extend Discovery and Dispositive Motions Deadlines. Discovery due by 10/1/2010. Dispositive motions shall be filed no latere than 4 weeks after the end of the discovery period.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 09/20/2010)
182 Joint MOTION to Extend Discovery and Dispositive Motions Deadlines by Max Moussazadeh, filed. Motion Docket Date 10/20/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 09/29/2010)
183 MOTION for Ronald H. Lee to Withdraw as Attorney by Max Moussazadeh, filed. Motion Docket Date 10/25/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 10/04/2010)
184 MOTION for James C Knapp, Jr. to Appear Pro Hac Vice by Max Moussazadeh, filed. Motion Docket Date 11/3/2010. (Robinson, Anne) (Entered: 10/13/2010)
185 ORDER granting 182 Joint Motion to Extend Discovery and Dispositive Motions Deadlines. Discovery shall be completed by 10/15/10 and dispositive motions shall be filed no later than 11/12/10; granting 183 Motion to Withdraw as Attorney. Attorney Ronald H Lee terminated.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 10/14/2010)
186 NOTICE Defendants' Notice of Thirteenth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 10/15/2010)
187 ORDER granting 184 MOTION for James C Knapp, Jr. to Appear Pro Hac Vice, Attorney James C Knapp, Jr for Max Moussazadeh added.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 10/18/2010)
188 NOTICE Defendants' Notice of 14th Supplemental Disclosures by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 10/19/2010)
189 NOTICE (Notice of Defendants Fifteenth Supplemental Disclosure) by Brad Livingston, David Sweeten, filed. (Cunniff, Celamaine) (Entered: 10/22/2010)
190 NOTICE Defendants' Notice of Sixteenth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 10/25/2010)
191 NOTICE NOTICE OF SEVENTEENTH SUPPLEMENTAL DISCLOSURE by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 10/29/2010)
192 Joint MOTION for Extension of Time to file Dispositive Motions by Max Moussazadeh, filed. Motion Docket Date 11/24/2010. (Attachments: # 1 Proposed Order)(Robinson, Anne) (Entered: 11/03/2010)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 16 of 20

11/05/2010 11/08/2010
11/18/2010 11/30/2010 12/06/2010 12/10/2010

193 NOTICE of 18th Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 11/05/2010)
194 ORDER granting 192 Motion for Extension of Time Dispositive Motion Filing due by 12/10/2010. Responses due by 1/18/2011 Replies due by 2/11/2011. The case is now more than five years old; discovery has ceased. Therefore the deadlines sought and entered are firm.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 11/08/2010)
195 NOTICE of NINETEENTH SUPPLEMENTAL DISCLOSURE by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 11/18/2010)
196 NOTICE Defendants' Notice of Twentieth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 11/30/2010)
197 NOTICE Defendants' Notice of Amended Twentieth Supplemental Disclosure by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Cunniff, Celamaine) (Entered: 12/06/2010)
198 MOTION for Summary Judgment Defendants' Motion for Summary Judgment with Brief in Support by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 1/3/2011. (Attachments: # 1 Exhibit A − TDCJ Laundry, Food and Supply Department − Jewish Dietary Policy and Procedures, # 2 Exhibit B − Relevant Portions of Chapter 3 of the TDCJ Chaplaincy Department Chaplaincy Manual, # 3 Exhibit C − Relevant Portions of Chapter 7 of the TDCJ Chaplaincy Department Chaplaincy Manual, # 4 Exhibit D − Affidavit of Rabbi Dovid Goldstein, # 5 Exhibit E − Affidavit of Vanessa Jones, # 6 Exhibit F − Affidavit of R. C. Thaler, # 7 Exhibit G − Correspondence dated December 7, 2010, to Opposing Counsel re: Plaintiff's Eligibility for Transfer to the Enhanced Jewish Designated Unit, # 8 Exhibit H − Affidavit of Kelly Enloe, # 9 Exhibit I − Affidavit of TDCJ Chaplaincy Director Billy Pierce dated October 21, 2004, # 10 Exhibit J − Affidavit of TDCJ Chaplaincy Director Billy Pierce dated September 1, 2010, # 11 Exhibit K − Plaintiff's Relevant TDCJ Grievances from October 2001 to March 23, 2010, # 12 Exhibit L − Plaintiff's Relevant TDCJ Grievances from March 2010 to October 22, 2010, # 13 Exhibit M − Plaintiff's Relevant TDCJ Grievances from January 2005 to November 9, 2005, # 14 Exhibit N − Affidavit of No Record of Plaintiff Filing a Grievance re: Religious Services or Kosher Meals while at Stiles Unit from October 13, 2009 to January 4, 2010, # 15 Exhibit O − Affidavit of Billy Pierce, TDCJ Director of Chaplaincy Operations, # 16 Exhibit P − List of Kosher Foods Sold in the Stiles Unit Commissary as of March 25, 2010, # 17 Exhibit Q − TDCJ Commissary Price Lists, # 18 Exhibit R − Affidavit of Suzanne Vaughn dated November 24, 2010, # 19 Exhibit S − Affidavit of Suzanne Vaughn dated November 8, 2010, # 20 Exhibit T − Relevant Portion of Plaintiff's Commissary Purchase Records, # 21 Exhibit U − Plaintiff's TDCJ Inmate Trust Fund Account Records, # 22 Exhibit V − TDCJ In Forma Pauperis Data Information for Plaintiff, # 23 Exhibit W − TDCJ Bank History Screens for Plaintiff, # 24 Exhibit X − Sample 2006 and 2007 Kosher Menus, # 25 Exhibit Y − Relevant Portions of TDCJ's Commissary Daily Operations Manual, # 26 Exhibit Z − Relevant Portions of TDCJ's Offender Orientation Handbook, # 27 Exhibit AA − Relevant Portions of the Status Conference Hearing April 25, 2007, # 28 Exhibit BB − Affidavit of Chaplain Billy Pierce dated October 15, 2010, # 29 Exhibit CC − Affidavit of Chaplain Billy Pierce dated October 15, 2010, # 30 Exhibit DD − Initial Equipment Purchase for Creation of Kosher Kitchen in May 2007, # 31 Exhibit EE − 2007 and 2008 Food Services Cost per day per Inmate for Select Units, # 32 Exhibit FF − 2009 Food Services Cost per day per Inmate for Select Units, # 33 Exhibit GG − Affidavit of Jerry McGinty, # 34 Exhibit HH − Document from My Own Meal − Glatt Kosher, # 35 Exhibit II − Defendants' Supplemental Responses to Interrogatory No. 5 of Defendants' Second Supplemental Objection and Answers to Plaintiff's Fourth Set of Interrogatories, # 36 Exhibit JJ − Estimate for the Construction of a Free−standing Building at the Stiles Unit to be used as a Kosher Kitchen Facility, # 37 Exhibit KK − Estimate for the Construction of a Free−standing Building at the Jester III and Wynne Units to be used as a Kosher Kitchen Facility, # 38 Exhibit LL − Affidavit of Dovid Goldstein, # 39 Exhibit MM − Relevant Records from the Commissary and Trust Fund Department Records of Kosher Food Products/Availability of Kosher Food to Offenders, # 40 Affidavit NN − Relevant Portions of the TDCJ Food Service

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 17 of 20

12/10/2010 01/18/2011
01/18/2011 01/19/2011 02/01/2011 02/11/2011 02/11/2011 02/11/2011 02/22/2011
02/22/2011 03/04/2011 04/08/2011

Procedures Manual, # 41 Exhibit OO − Affidavit of Beryl Bailey dated November 30, 2010, # 42 Exhibit PP − Affidavit of Paul Morales dated December 2, 2010, # 43 Exhibit QQ − Letter from Brad Livingston, TDCJ Executive Director, to the Governor's Office of Budget, Planning and Policy, # 44 Exhibit RR − "Budget Cuts to State Prison System Could Mean 3,100 Jobs Lost" Austin American Statesman, # 45 Exhibit SS − Agency News: A Budget Update for TDCJ Employees dated May/June 2010, # 46 Exhibit TT − Affidavit of Karen Hall dated October 29, 2010, # 47 Exhibit UU − Affidavit of Karen Hall dated December 8, 2010, # 48 Exhibit VV − Affidavit of Jerry McGinty dated July 14, 2010, # 49 Exhibit WW − Relevant Excerpts from the Deposition of Beryl Bailey, # 50 Exhibit XX − Relevant Excerpts from the Deposition of Allison Dunbar, # 51 Exhibit YY − Relevant Excerpts from the Deposition of Nathaniel Quarterman, # 52 Proposed Order)(Cunniff, Celamaine) (Entered: 12/10/2010)
199 MOTION for Summary Judgment by Max Moussazadeh, filed. Motion Docket Date 1/3/2011. (Attachments: # 1 Affidavit of Matthew T. Murchison, # 2 Exhibits 1 − 32, # 3 Proposed Order)(Murchison, Matthew) (Entered: 12/10/2010)
200 RESPONSE in Opposition to 199 MOTION for Summary Judgment, filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Supplemental Exhibit WW − Relevant Excerpts from the Rule 30(b)(6) Deposition of Beryl Bailey, # 2 Supplemental Exhibit XX − Relevant Excerpts from the Rule 30(b)(6) Deposition of Allison Dunbar)(Cunniff, Celamaine) (Entered: 01/18/2011)
201 RESPONSE in Opposition to 198 MOTION for Summary Judgment Defendants' Motion for Summary Judgment with Brief in Support, filed by Max Moussazadeh. (Attachments: # 1 Affidavit Matthew T. Murchison, # 2 Exhibit 33−37)(Murchison, Matthew) (Entered: 01/18/2011)
202 SUPPLEMENT to 201 Response in Opposition to Motion, by Max Moussazadeh, filed.(Murchison, Matthew) (Entered: 01/19/2011)
203 MOTION to Strike 200 Response in Opposition to Motion, by Max Moussazadeh, filed. Motion Docket Date 2/22/2011. (Attachments: # 1 Exhibits A − G, # 2 Proposed Order)(Murchison, Matthew) (Entered: 02/01/2011)
204 REPLY in Support of 199 MOTION for Summary Judgment, filed by Max Moussazadeh. (Attachments: # 1 Affidavit of Matthew T. Murchison, # 2 Exhibit 38)(Murchison, Matthew) (Entered: 02/11/2011)
205 REPLY to 201 Response in Opposition to Motion, 198 Motion for Summary Judgment, filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 02/11/2011)
206 MOTION to Strike 201 Response in Opposition to Motion, by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 3/4/2011. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 02/11/2011)
207 RESPONSE in Opposition to 203 MOTION to Strike 200 Response in Opposition to Motion,, filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Exhibit XX to Defendants' Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment − Errata Sheet to Deposition of Allison Dunbar signed November 19, 2010, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 02/22/2011)
208 RESPONSE in Opposition to 206 MOTION to Strike 201 Response in Opposition to Motion,, filed by Max Moussazadeh. (Attachments: # 1 Proposed Order)(Murchison, Matthew) (Entered: 02/22/2011)
209 REPLY to Response to 203 MOTION to Strike 200 Response in Opposition to Motion,, filed by Max Moussazadeh. (Murchison, Matthew) (Entered: 03/04/2011)
210 MOTION for Matthew J Donnelly to Appear Pro Hac Vice by US Department Of Justice, filed. Motion Docket Date 4/29/2011. (lusmith, ) (Entered: 04/08/2011)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 18 of 20

04/08/2011 04/12/2011 04/14/2011
04/14/2011 04/15/2011 04/18/2011 04/21/2011 04/27/2011 05/09/2011 05/12/2011 05/19/2011 06/22/2011 09/20/2011
10/12/2011 10/14/2011 10/19/2011 10/19/2011

211 STATEMENT OF INTEREST OF THE UNITED STATES re: 198 MOTION for Summary Judgment Defendants' Motion for Summary Judgment with Brief in Support by US Department Of Justice, filed.(lusmith, ) (Entered: 04/08/2011)
212 ADVISORY by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. (Attachments: # 1 Attachment)(Cunniff, Celamaine) (Entered: 04/12/2011)
213 Unopposed MOTION for Extension of Time to Respond to the Department of Justice's Statement of Interest by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed. Motion Docket Date 5/5/2011. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 04/14/2011)
216 ORDER granting 210 MOTION for Matthew J Donnelly to Appear Pro Hac Vice,.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 04/18/2011)
214 RESPONSE to 212 Advisory, filed by Max Moussazadeh. (Murchison, Matthew) (Entered: 04/15/2011)
215 MOTION for Lori E. Rifkin to Appear Pro Hac Vice by United States Of America, filed. Motion Docket Date 5/9/2011. (mfoley) (Entered: 04/18/2011)
217 ORDER granting 215 MOTION for Lori E. Rifkin to Appear Pro Hac Vice, Attorney Lori E. Rifkin for US Department Of Justice added.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 04/25/2011)
218 ORDER granting 213 Motion for Extension of Time Responses due by 5/19/2011.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 04/27/2011)
219 Mail Returned Undeliverable as to attorney Derek L Gaubatz re: 218 Order on Motion for Extension of Time, filed. Updated address not found. (lcampbell ) (Entered: 05/09/2011)
220 ADVISORY by Max Moussazadeh,re 199 filed. (Attachments: # 1 Exhibit A)(Murchison, Matthew) Modified on 5/12/2011 (jdav, ). (Entered: 05/12/2011)
221 RESPONSE to 211 Statement Defendants' Response in Opposition to the Department of Justice's Statement of Interest, filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Cunniff, Celamaine) (Entered: 05/19/2011)
222 ADVISORY by Max Moussazadeh, filed. (Attachments: # 1 Exhibit A)(Murchison, Matthew) (Entered: 06/22/2011)
223 OPINION ON REMAND granting 206 MOTION to Strike 201 Response in Opposition to Motion, denying 203 MOTION to Strike 200 Response in Opposition to Motion, denying 199 MOTION for Summary Judgment, granting 198 MOTION for Summary Judgment Defendants' Motion for Summary Judgment with Brief in Support. All other pending motions, if any, are DENIED. This case is DISMISSED WITH PREJUDICE. Case terminated on September 20, 2011.(Signed by Judge Melinda Harmon) Parties notified.(htippen, ) (Entered: 09/20/2011)
224 Mail Returned Undeliverable as to attorney Derek L Gaubatz as to Max Moussazadeh re: 223 Order of Dismissal, [Updated address info not available], filed. (bdaniel, ) (Entered: 10/13/2011)
225 Amended NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 223 Order of Dismissal,, by Max Moussazadeh, filed.(Robinson, Anne) (Entered: 10/14/2011)
Electronic Supplemental Record #1 on appeal certified to the Fifth Circuit Court of Appeals re: 137 Notice of Appeal, 225 Notice of Appeal − Amended USCA No. 09−40400, filed.(ltrevino, ) Modified on 10/20/2011 (lusmith, ). (Entered: 10/19/2011)
226 Original Record on Appeal consisting of 8 volumes of record with certified docket sheet transmitted to US Court of Appeals for the Fifth Circuit re: 137 Appeal, Supplemental#1 Notice of Appeal; consisting of 9 volumes of record (USCA No. 09−40400), filed.(ltrevino, ) (Main Document 226 replaced on 10/19/2011) (ltrevino,

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 19 of 20

10/24/2011
10/25/2011 10/31/2011
11/03/2011 01/12/2012 02/25/2013
03/05/2013 03/05/2013
03/05/2013 03/05/2013 03/05/2013 04/05/2013 07/24/2013 08/13/2013
09/05/2013 03/06/2014 04/04/2014 04/04/2014
04/09/2014 05/21/2015

). (Entered: 10/19/2011)
227 CD Request: re Certified Record on Appeal re: 137 Notice of Appeal, filed by Max Moussazadeh, 225 Notice of Appeal − Amended filed by Max Moussazadeh, filed. (ltrevino, ) (Entered: 10/24/2011)
228 Court of Appeals Memorandum to Counsel (USCA No. 09−40400), filed.(sbyrum, ) (Entered: 10/27/2011)
229 NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 225 Notice of Appeal − Amended (USCA No. 10−40400), rec'd at the 5USCA 10/25/2011 filed.(jdav, ) (Entered: 11/02/2011)
230 Mail Returned Undeliverable as to attorney Derek L Gaubatz as to Max Moussazadeh re: 226 Supplemental ROA Sent to USCA,, filed. (lfilmore, ) (Entered: 11/07/2011)
231 ADVISORY by Brad Livingston, David Sweeten, Texas Department of Criminal Justice, filed.(Cunniff, Celamaine) (Entered: 01/12/2012)
232 PER CURIAM of USCA for the Fifth Circuit re: 225 Notice of Appeal − Amended ; USCA No. 09−40400. Rehearing en banc is DENIED., filed.(jdav, ) (Additional attachment(s) added on 2/25/2013: # 1 cover letter) (jdav, ). (Entered: 02/25/2013)
233 Court of Appeals LETTER advising Approved bill of costs (USCA No. 09−40400), filed. (Bill of Costs was not included in envelope)(cfelchak) (Entered: 03/05/2013)
234 Order of USCA; judgment issued as mandate 2/28/2013 re: 137 Notice of Appeal, 225 Notice of Appeal − Amended ; USCA No. 09−40400. Judgment of the District Court is REVERSED and REMANDED to the District Court. Case reopened on 3/5/2013.(dwilkerson, ) (Entered: 03/05/2013)
235 Copy of Bill of Costs by USCA in the amount of $723.00 against Texas Dept of Criminal Justice et al (USCA No. 09−40400), filed.(ltrevino, ) (Entered: 03/05/2013)
236 Order of USCA; USCA No. 09−40400, filed.(ltrevino, ) (Entered: 03/05/2013)
237 Order of USCA; USCA No. 09−40400, filed.(ltrevino, ) (Entered: 03/05/2013)
238 Court of Appeals LETTER advising electronic copy of the record has been recycled (USCA No. 09−40400).(dwilkerson, ) (Entered: 04/05/2013)
239 MOTION to Intervene filed by David Scott Helfond, pro se. Motion Docket Date 8/14/2013. (dwilkerson, ) (Entered: 07/24/2013)
240 RESPONSE to 239 MOTION to Intervene filed by Brad Livingston, David Sweeten, Texas Department of Criminal Justice. (Attachments: # 1 Exhibit A: Affidavit of Frankie Reescano, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 08/13/2013)
241 REPLY to Response to 239 MOTION to Intervene, filed by David Scott Helfond. (lusmith, 3) (Entered: 09/05/2013)
242 ORDER denying 239 Motion to Intervene.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez) (Entered: 03/06/2014)
243 STATUS REPORT by Max Moussazadeh, filed.(Murchison, Matthew) (Entered: 04/04/2014)
244 Joint MOTION to Stay Litigation by Max Moussazadeh, filed. Motion Docket Date 4/25/2014. (Attachments: # 1 Proposed Order)(Murchison, Matthew) (Entered: 04/04/2014)
245 ORDER granting 244 Motion to Stay Litigation.(Signed by Magistrate Judge Frances H Stacy) Parties notified.(glyons, 4) (Entered: 04/09/2014)
246 NOTICE of Reassignment to Judge Kenneth M. Hoyt, pursuant to General Order No. 2015−5. Deadlines in scheduling orders remain in effect. All court settings are vacated. Judge Melinda Harmon no longer assigned to the case. Parties notified, filed. (dkellyadi, 4) (Entered: 05/21/2015)

Case: 3:07-cv-574 As of: 07/06/2017 03:17 PM CDT 20 of 20

06/03/2015 08/19/2015
10/13/2015 01/08/2016 03/31/2017
04/10/2017 04/10/2017

247 Mail Returned Undeliverable as to Derek L Gaubatz re: 246 Notice of Reassignment (FORM),, filed. (mxperez, 5) (Entered: 06/03/2015)
248 NOTICE of Reassignment to Judge George C. Hanks, Jr, pursuant to General Order No. 2015−10. Deadlines in scheduling orders remain in effect. All court settings are vacated. Judge Kenneth M. Hoyt no longer assigned to the case. Parties notified, filed. (dkellyadi, 4) (Entered: 08/19/2015)
249 Letter from Troy Lee Perkins, filed. (lusmith, 3) (Entered: 10/13/2015)
250 STIPULATION of Dismissal (Joint) by Max Moussazadeh, filed.(Robinson, Anne) (Entered: 01/08/2016)
251 ORDER granting 250 Stipulation of Dismissal. This case is Dismissed without prejudice(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 03/31/2017)
252 Mail Returned Undeliverable as to attorney Derek L Gaubatz re: 251 Order, filed. (mperez, 1) (Entered: 04/10/2017)
253 Mail Returned Undeliverable as to David Paul Palmer re: 251 Order, filed. (mperez, 1) (Entered: 04/10/2017)

 
 Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 1 of 8

TN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

MAX MOUSSAZADEH, Plaintiff,

q: q7 Sc Civil Action No.

0

V /

v.
TEXAS DEPARTMENT OF CRJMINAL JUSTICE;
BRAD LIVINGSTON, solely in his official capacity as Executive Director of the Texas Department of Criminal Justice; and

11+ /-sKc;,
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND ATTORNEY'S FEES; AND DEMAND FOR A JURY TRIAL

DAVID SWEETEN, solely in his official capacity as warden of the Eastham Unit ofthe Texas Department of Criminal Justice,

Defendants.

COMPLAINT Comes now Plaintiff Max Moussazadeh, by and through his attorneys, and for his Complaint states as follows:
NATURE OF ACTION 1. Max Moussazadeh is a sincere adherent of the Jewish faith who is in the custody of the Texas Department of Criminal Justice. The Jewish faith holds, as one of its fundamental tenets, that believers must eat food prepared and served in a kosher manner. Plaintiff seeks injunctive and declaratory relief requesting that the Texas Department of Criminal JusticeCorrectional Institutions Division provide him a nutritionally-sufficient kosher diet.

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 2 of 8
.llJRISDJCTION AND VENUE 2. This Court has jurisdiction over this action as arising under the laws of the United States pursuant to 28 U.S. C.§§ 1331 and 1343(a)(4), and under 42 U.S.C. § 2000cc-l et seq., which confers original jurisdiction on United States District Courts in suits to redress the deprivation of rights, privileges and immunities, as stated herein. This Court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 3. Venue lies in this District pursuant to 28 U.S.C. § 1391. Plaintiff and Defendant are located in this District. The events giving rise to this action occurred in this District.
PARTIES 4. Plaintiff MAX MOUSSAZADEH is, and all times pertinent, was, a prisoner in the Eastham Unit of the Texas Department of Criminal Justice. He is also a sincere adherent of the Jewish faith. 5. Defendant TEXAS DEPARTMENT OF CRIMINAL JUSTICE ("TDCJ") is a legal subdivision of the State of Texas, created and existing by virtue of the Constitution and laws of the State of Texas, and is empowered by the State to act through its governing body, its officials, employees and official bodies. TDCJ is empowered by the State of Texas to regulate and maintain the state's correctional system. 6. Defendant BRAD LIVINGSTON is the Executive Director of the Texas Department of Criminal Justice. He is sued in official capacity only. 7. Defendant DAVID SWEETEN is the warden of the Eastham Unit of the Texas Department of Criminal Justice in Lovelady, Texas. He is sued in his official capacity only.
2

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 3 of 8
STATEMENT OF FACTS Plaintiff's Need for a Kosher Diet is a Religious Conviction 8. Plaintiff Max Moussazadeh (TDCJ #712440) is a prisoner within the custody of TDCJ and is presently housed at the Department's Eastham Unit in Lovelady, Texas. 9. Plaintiff was born and raised in the Jewish faith and is a sincere adherent of that faith. As part of the practice of his faith, Plaintiff sincerely believes he is required to keep a kosher diet. 10. In accordance with established Jewish tradition and practice, Plaintiff believes that keeping a kosher diet is a fundamental tenet of the Jewish faith and that the primary purpose of observing and keeping a kosher diet is to conform to the divine will of God as expressed in the Torah. Plaintiff subscribes to established Jewish teaching that the Torah teaches that the slightest morsel of forbidden food taints not only the body, but the soul itself. 11. Keeping kosher includes adherence to specific rules-commonly referred to as the laws of kashruth-derived from the Torah concerning which foods may be consumed and the manner of preparation and service of permitted foods. 12. Keeping kosher requires strict adherence to the rules set forth in the Torah regarding the foods that may be consumed. Foods that may be eaten include all non-animal products such as fruits and vegetables, meat from animals that chew the cud and have cloven hooves (e.g., cows and sheep), certain types of poultry (e.g., chicken, turkey, and duck), and fish that have fins and scales. Dairy products are permitted, but meat and dairy may not be mixed together. 13. Keeping kosher also dictates specific methods by which allowable foods may be prepared for consumption. For example, kosher food is no longer considered kosher when the
3

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 4 of 8
food is prepared in containers that are non-kosher To keep kosher food untainted, the containers, pots and pans, utensils, and all other implements used in the preparation must not come into contact or have contact with non-kosher food. The food must also be served on plates and bowls and eaten with utensils that have not had contact with non-kosher food.
14. In short, the three essential qualities of a kosher diet are: A. it must be derived from a religiously-acceptable source; B. it must be prepared and served in a religiously acceptable way; and C. meat and dairy may not be mixed.
15. A kosher diet can easily be made available to Jewish believers in institutional environments through several possible means, including, but not limited to, the following: (1) preparing food on site with proper kitchen facilities under the direction of a qualified kosher food supervisor; (2) obtaining pre-packaged meals from kosher food vendors around the country (e.g., sealed airline dinners or shelf stable packaging); or (3) obtaining acceptable kosher products through retail outlets and kosher food purveyors. In addition, the use of disposable plastic or paper goods and utensils is an easy, cost-effective and religiously-acceptable means of providing kosher food in an institutional environment.
TDCJ Does Not Provide a Kosher Diet Option 16. TDCJ, including the Eastham Unit, provides inmates a choice between pork-free, meat-free, and regular diet trays. 17. None of those meal plans qualify as kosher under Jewish laws of kashruth. There is no such thing as "close to" kosher. If a meal falls short of kosher, it is not at all kosher and does not meet the requirements of Plaintiffs faith.
4

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 5 of 8
18. The majority of states and the Federal Bureau of Prisons provide a kosher diet, including Federal prisons in Texas operated by the Bureau, but TDCJ, including the Eastham Unit, refuses to similarly accommodate the religious needs of Jewish prisoners in its facilities by providing a kosher diet.
Defendants' Denial ofPlaintifrs Requests for a Kosher Diet 19. Plaintiff filed a formal grievance with the TDCJ on or about July 15,2005. In this grievance, Plaintiff requested a kosher diet as required by his faith:
I am a jewish inmate. My beliefs state that I must eat kosher foods. I am born and raised jewish and both of my parents are jewish. Since I have been in the prison system, I have been forced to eat non kosher foods. All of my life my family has kept a kosher house hold. I feel that I am going against my beliefs and that I will be punished by God for not practicing my religion
correctly. * * * In my requests I asked that I be allowed to receive kosher meals because it is part of my religious duty. * * * I am
asking that you please grant me access to kosher meals in the prison dining hall. 20. On July 22, 2005, Defendants denied Plaintiffs request. Their denial provided no statement of Defendants' rationale for their decision to impose a burden on Plaintiffs religious exercise by refusing to provide him a kosher diet. 21. On July 29, 2005, Plaintiff filed a second level grievance again requesting kosher meals as required by his faith and, thereby, substantially burdened his free exercise of religion. 22. Defendants denied this second level grievance on September 20, 2005. Their denial provided no statement of Defendants' rationale for their decision to impose a burden on Plaintiffs religious exercise by refusing to provide him a kosher diet. 23. Despite the fact that Plaintiff has exhausted all administrative remedies, Defendants continue to this day to deny Plaintiff a kosher diet, as required by the applicable laws and his sincere religious beliefs.
5

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 6 of 8
24. Defendants have never demonstrated the existence of any compelling government interest for their decision to substantially burden Plaintiffs religious exercise by denying him a kosher diet, or demonstrated how the failure to provide a kosher diet is the least restrictive means of advancing any such alleged compelling government interest.
25. TDCJ receives Federal financial assistance. 26. The activities and operation ofTDCJ, including its provision of meals for prisoners under its custody, affects commerce with foreign nations, among several states, or with Indian tribes.
Legal Violations COUNT I
Violation of the Religious Land Use and Institutionalized Persons Act of 2000 "Substantial Burden on Religious Exercise" (42 U.S.C. § 2000cc et seq.)
27. Paragraphs 1 through 26 are incorporated by reference as if set forth fully herein. 28. Defendants have deprived and continue to deprive Plaintiff of his right to the free exercise of religion, as secured by the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), by unlawfully imposing a substantial burden on Plaintiffs religious exercise. 29. Defendants refusal to offer kosher meals (1) influences Plaintiff to act in a way that violates his religious beliefs, and (2) forces Plaintiff to choose between, on the one hand, enjoying a generally available and non-trivial benefit, and, on the other hand, following his religious beliefs. 30. The substantial burden Defendants have imposed on Plaintiffs religious exercise is imposed in a program or activity that receives Federal financial assistance.
6

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 7 of 8
31. The substantial burden Defendants have imposed on Plaintiff's religious exercise affects, or removal of this substantial burden would affect commerce with foreign nations, among the several states, or with Indian tribes.
COUNT II Violation of the Texas Religious Freedom Restoration Act
Tex. Civ. Prac. & Rem. Code Ann. §110.001 et seq. 32. Paragraphs I through 31 are incorporated by reference as if set forth fully herein. 33. Defendants have deprived Plaintiff of his right to the free exercise of religionas secured by the Texas Religious Freedom Restoration Act- by unlawfully imposing a substantial burden on his religious exercise.
REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: (a) A preliminary and permanent injunction requiring Defendants to provide Plaintiff
with a nutritionally sufficient kosher diet; (b) A declaration that Defendants' failure to provide Plaintiff with a nutritionally
sufficient kosher diet, as required by his sincere religious beliefs, is in violation of the Religious Land Use and Institutionalized Persons Act of2000 and the Texas Religious Freedom Restoration Act. (c) An award to Plaintiff of full costs and attorneys' fees arising out of this litigation; and (d) Such other and further relief as this Court may deem just and appropriate.
7

Case 3:07-cv-00574 Document 1 Filed in TXSD on 10/12/05 Page 8 of 8

DEMAND FOR .TIIRY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands

a trial by jury in this action of all issues so triable.

Dated: October 11, 2005

Respectfully submitted,
~v~~
THE BECKET FUND FOR RELIGIOUS LIBERTY Eric Rassbach (Attorney in Charge) State Bar No. 24013375 Derek L. Gaubatz (pro hac vice application pending) 1350 Connecticut Ave., N.W. Suite 605 Washington, D.C. 20036 Telephone: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org

LATHAM& WATKINS LLP Allen Gardner (pro hac vice application pending) Parker Douglas (pro hac vice application pending) Dane A. Holbrook (pro hac vice application pending) Joshua Chandler (pro hac vice application pending) 555 Eleventh St., N.W. Suite 1000 Washington D.C., 20004 Telephone: (202) 637-2200 Fax: (202) 637-2201

Attorneys for PlaintiffMax Moussazadeh

8

 
 364 Fed.Appx. 110 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find CTA5
Rule 47) United States Court of Appeals,
Fifth Circuit.
Max MOUSSAZADEH, Plaintiff-Appellant v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Brad Livingston, Solely in His Official Capacity as
Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; David Sweeten, Solely in His Official Capacity as Warden of the Eastham Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division, Defendants-
Appellees.
No. 09-40400. |
Feb. 5, 2010.
Attorneys and Law Firms
Luke W. Goodrich, Eric Christopher Rassbach, Becket Fund for Religious Liberty, Washington, DC, Anne Wylde Robinson, Michael J. Songer, Latham & Watkins, Washington, DC, for Plaintiff-Appellant.
Adam Warren Aston, Office of the Attorney General, Austin, TX, Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law
Footnotes

Enforcement Defense Div., Austin, TX, for DefendantsAppellees.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 3:07-CV-574. Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*
Opinion
PER CURIAM:**
**1 The district court dismissed this case as moot. Since that time, the conditions and treatment about which this prisoner complained have substantially changed, and these changes affect the issues before us. Moreover, before we can address the merits of this appeal, there are matters to be brought before the district court that must be addressed by it. We therefore remand for additional proceedings to allow the parties and the district court to further develop the record. Once the work of the district court has been completed, any party may file a supplemental notice of appeal, which will be considered along with the notice of appeal herein. In any event, once the district court has ruled, the parties should advise the clerk of this court whether this appeal has or has not been mooted by the district court’s action. Upon remand, however, this panel does not retain jurisdiction over this or subsequent appeals in this case.
REMANDED.
All Citations
364 Fed.Appx. 110, 2010 WL 445401

*

District Judge, Southern District of Mississippi, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

 
 2009 WL 819497 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas,
Galveston Division.
Max MOUSSAZADEH, Plaintiff, v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Defendants.
Civil Action No. G–07–574. |
March 26, 2009.
Attorneys and Law Firms
Anne Wylde Robinson, Ronald H. Lee, Allen M. Gardner, Latham and Watkins LLP, Derek L. Gaubatz, The Becket Fund, Eric Christopher Rassbach, Luke W. Goodrich, The Becket Fund for Religious Liberty, Washington, DC, for Plaintiff.
Celamaine Cunniff, M. Carol Gardner, Office of the Attorney General, George Baxter Ward, IV, Assistant Attorney General, Austin, TX, for Defendants.
OPINION ON DISMISSAL
MELINDA HARMON, District Judge.
*1 On October 12, 2005, counsel for state inmate Max Moussazadeh filed in the United States District Court for the Eastern District of Texas, Lufkin Division a complaint seeking injunctive and declaratory relief from defendants to “provide him a nutritionally-sufficient kosher diet” pursuant to the Texas Religious Freedom Restoration Act (“TRFA”) and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). (Docket Entry No. 1). On February 6, 2006, the Lufkin District Court adopted the Second Report and Recommendation of the Magistrate Judge and dismissed plaintiff’s claims arising under TRFA. (Docket Entry No. 47). Plaintiff was transferred to the Stringfellow Unit of TDCJ in Brazoria County in May 2007, where a kosher kitchen was in operation. (Docket Entry No. 75). In November 2007, a magistrate judge in the Lufkin District Court transferred the case to the present Court. (Docket Entries No. 86, No.

89). In July 2008, the Court granted plaintiff’s Motion to Lift Stay and his Unopposed Motion for a New Scheduling Order and Discovery Plan. (Docket Entry No. 108). Within a month, defendants filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (Docket Entry No. 110) and moved to stay further discovery. (Docket Entry No. 113). The Court granted defendants’ opposed motion to stay and ordered plaintiff to file a response within thirty days. (Docket Entry No. 116). Pending are defendants’ motion to dismiss and supplemental motion to dismiss (Docket Entries No. 110, No. 122) and plaintiff’s motions for leave to file an amended and supplemental complaint (Docket Entry No. 117), for reconsideration of the Court’s order to stay discovery (Docket Entry No. 119), for summary judgment (Docket Entry No. 128), and for an order deeming motion unopposed and for summary judgment. (Docket Entry No. 129). For the reasons to follow, the Court will deny plaintiff relief.
I. CLAIMS
In his original complaint, plaintiff states that he is a sincere adherent of the Jewish faith and therefore, must keep a kosher diet. (Docket Entry No. 1). Plaintiff indicates that keeping a kosher diet “includes the adherence of specific rules—commonly referred to as the laws of kashruth—derived from the Torah concerning which foods may be consumed and the manner of preparation and service of permitted foods.” (Id., page 3). Plaintiff indicates that the three essential qualities of a kosher diet are:
A. it must be derived from a religiously-acceptable source;
B. it must be prepared and served in a religiously acceptable way; and
C. meat and dairy may not be mixed.
(Id., page 4). Plaintiff claims that an institution, like TDCJ, can make a kosher diet available to Jewish believers in at least three of the following ways: “(1) preparing food on site with proper kitchen facilities under the direction of a qualified kosher food supervisor; (2) obtaining pre-packaged meals from kosher food vendors around the country (e.g., sealed airline dinners or shelf stable packaging); or (3) obtaining acceptable kosher products through retail outlets and kosher food purveyors.” (Id.). Plaintiff also indicates that “the use of disposable plastic or paper goods and utensils is an easy,
1

cost-effective and religiously-acceptable means of providing kosher food in an institutional environment.” (Id.).
*2 Plaintiff requested such diet through the prison grievance system on the Eastham Unit of TDCJ in July, 2005, but was denied relief on September 20, 2005. (Id., page 5). Plaintiff claims that the majority of states and the Federal Bureau of Prisons accommodate the religious needs of Jewish inmates by providing a kosher diet in their correctional facilities. (Id., page 5). Almost a month after his grievances were denied, plaintiff filed the pending suit. Plaintiff seeks a preliminary and permanent injunction to require defendants to provide him with a kosher diet. (Id., page 7). He also seeks a declaration that defendants have violated RLUIPA and TRFA by their failure to provide him with the same. (Id.).
Defendants move to dismiss this case under Federal Rule of Civil Procedure 12(b)(1) and (b)(6) on grounds that plaintiff’s claims are moot and he has not alleged a violation of a clearly-established constitutional right. (Docket Entry No. 110). Alternatively, defendants contend the Court should grant summary judgment pursuant to Rule 56(c) because there is no genuine issue as to any material fact with respect to plaintiff’s claim. (Id.). Plaintiff moves for summary judgment on grounds that TDCJ denied him kosher food at the time he filed the present suit and for nineteen months thereafter in violation of RLUIPA. (Docket Entry No. 128).
II. DISCUSSION
A. Plaintiff’s Motion for Reconsideration of Order Staying Discovery
On November 19, 2007, plaintiff moved to lift the stay of litigation, which a Magistrate Judge in the Lufkin District Court had entered on April 12, 2007, pending settlement negotiations. (Docket Entry No. 85). On November 20, 2007, the Magistrate Judge sua sponte ordered the case transferred to the Galveston District Court. (Docket Entry No. 86). Citing the November 9, 2007, Status Report (Docket Entry No. 82) and the pending Motion to Lift Stay (Docket Entry No. 85), the Magistrate Judge noted that the parties had negotiated in good faith to reach a settlement but that negotiations had broken down. The Magistrate Judge observed that the “source of the breakdown in negotiations is the prison system’s insistence that they be allowed to deny the Plaintiff access to nutritionally sufficient kosher meal by transferring him

to a different facility with a kosher diet program.” (Id.). The Magistrate Judge also noted in the Order of Transfer that plaintiff’s primary goal was to obtain injunctive relief and that arguably, his claims became moot when he was transferred to the Stringfellow Unit. (Id.). The Magistrate Judge, however, declined to dismiss the case as moot because “the parties have invested too much time and effort in this case.” (Id.). The Magistrate Judge determined that venue was proper in the Galveston District Court because “the primary Defendants are located in the Southern District.” (Id.). Neither party objected to the transfer. (Id.).
*3 On July 17, 2008, this Court granted the motion to lift stay of litigation and for entry of a new scheduling order. (Docket Entry No. 108). For eight months after the cause was transferred to the present Court and many more months after plaintiff had been transferred to the Stringfellow Unit, plaintiff filed no motions to amend or supplement the pleadings to substitute or add new defendants or to add claims that were not alleged in the original pleading even though such issues were the source of the breakdown in their settlement negotiations. A month after the Court granted the motion to lift stay of litigation, defendants moved to dismiss the suit or alternatively, for summary judgment on the ground that the case was moot given plaintiff’s transfer to the Stringfellow Unit, where a kosher kitchen had been established. (Docket Entry No. 110). Two weeks later defendants filed an opposed motion to stay the Court’s Order of July 17, 2008, on grounds that it was unfair to require further discovery when plaintiff was receiving the relief that he had requested in his complaint. (Docket Entry No. 114). Defendants also filed an opposed motion to expedite ruling on their motion to stay discovery. (Docket Entry No. 115). On September 10, 2008, the Court granted defendants’ motions and stayed discovery and depositions; the Court also ordered plaintiff to file a response to defendants’ dispositive motion within thirty days of entry of the Order. (Docket Entry No. 116).
On September 11, 2008, plaintiff filed an Opposed Motion for Leave to File an Amended and Supplemental Complaint (Docket Entry No. 117) and a Response in Opposition to defendants’ dispositive motion. (Docket Entry No. 119). On September 12, 2008, plaintiff filed an Opposed Motion for Reconsideration and Opposition to Defendants’ Opposed Motion to Stay Discovery. (Docket Entry No. 112). Plaintiff complains in the Opposed Motion that the Court did not give him the opportunity to respond to the motion before entering its Order of September 10, 2008. (Docket Entry No. 119). Plaintiff also complains that a stay of discovery is prejudicial because he will continue to suffer a substantial delay to his case and to suffer violations of his sincerely held
2

religious beliefs. (Id.). Plaintiff argues that TDCJ’s motion to dismiss cannot dispose of the entire action because a material fact issue exists as to whether the Stringfellow kitchen is certifiably kosher, because TDCJ has asserted a right to deny plaintiff kosher food at any time, and because plaintiff’s request for nominal damages would survive even if the Court were to grant defendants’ motion to dismiss. (Id.). Plaintiff claims he needs additional discovery on “(1) the expense of providing kosher food to Jewish inmates in the Texas prison system (particularly in light of the recent creation of the Stringfellow kitchen), (2) the security implications from providing kosher food, and (3) the likelihood that TDCJ will close the kitchen .” (Id.).
*4 Defendants refute plaintiff’s claims for further discovery regarding the expense of providing kosher food to Jewish inmates in the Texas prison system, the security implications of providing kosher food, and the likelihood that TDCJ will close the kosher kitchen because none of these issues go to whether plaintiff is currently receiving a kosher diet, which is the dispositive issue in this case. (Docket Entry No. 120). Defendants maintain that plaintiff’s purported discovery needs go beyond the scope of permissible discovery because they do not prove or disprove the issue in this case. (Id.).
Defendants also refute plaintiff’s claim regarding the need to hire a rabbi to inspect the kitchen and certify the food as kosher because defendants hired an expert that was agreeable to plaintiff to establish and supervise the kosher kitchen and to certify it as kosher. (Id.). Defendants contend they see no need for a second kosher expert. (Id.).
Defendants maintain that plaintiff’s allegation that the food served to plaintiff at the Stringfellow Unit is not kosher is a new claim that plaintiff has not asserted in the past sixteen months since he was transferred to the Stringfellow Unit. (Id.). Defendants argue that plaintiff has not exhausted his administrative remedies with respect to this claim, that his attorneys have admitted that plaintiff was receiving a kosher diet in their motion to intervene in another RLUIPA case, and that the Stringfellow food operation is kosher as kosher expert Rabbi David Goldstein attests.1 (Id.). Defendants further argue that the nominal damages claim is improper. (Id.).
Plaintiff disputes defendants’ argument regarding the scope of discovery and defendants’ contention that he agreed that Rabbi Goldstein was an agreeable “outside expert,” who can certify the kosher nature of the food served on the Stringfellow Unit; plaintiff notes that TDCJ has retained Goldstein to provide contract rabbi services for the last ten years. (Docket Entry No. 125). Plaintiff cites the Joint Status Report filed June 30, 2006, as proof

that he did not state that Rabbi Goldstein was an agreeable expert. (Id.). The report recites plaintiff’s settlement offer to include the establishment of a “Kosher Task Force” consisting of Rabbi Dovid [sic] Goldstein, an outside kosher expert agreeable to Plaintiff, and relevant individuals from TDCJ’s food services and/or other relevant departments.” (Docket Entry No. 58). The report also reflects that TDCJ had not accepted or rejected the settlement offer but that TDCJ had included Rabbi Goldstein in its discussions and attempts to collect and analyze information regarding the feasibility of plaintiff’s proposal. (Id.).
Plaintiff also contends that he did not raise the allegation that the food served on the Stringfellow Unit was not kosher for sixteen months because for the first time during his incarceration he has had the opportunity to eat food that was potentially kosher and because he is not a rabbi and therefore, not qualified to determine whether the food he is eating is kosher. (Docket Entry No. 125). Plaintiff further contends that his attorneys’ statement regarding the kosher kitchen on the Stringfellow Unit in another RLUIPA case is not an admission but a statement in their argument to the Fifth Circuit that TDCJ had misled the appellate court by holding that it could not afford to set up a kosher food program while at the same time attempting to do so. (Id.).
*5 The federal rules provide that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery. FED. R. CIV. P. 26(c). Based on the present record, the Court finds that defendants correctly state that no discovery would be needed to resolve their pending motion to dismiss on the ground that the claims raised in plaintiff’s original complaint are moot and that to allow additional discovery with respect to these claims would be burdensome and wasteful. The record reflect that none of the monthly status reports filed by the parties expressed concern or complaint that plaintiff was not receiving kosher meals after his transfer in mid–2007 to the Stringfellow Unit, which had an operational kosher kitchen. In the July 2, 2007 Joint Status Report, the parties reported that the Stingfellow “kosher kitchen remains in operation.” (Docket Entry No. 76). The Joint Status Report filed August 8, 2007, reflects a disagreement between the parties regarding TDCJ dietary policies, but no complaint that plaintiff was not receiving a kosher meal. (Docket Entry No. 77). Plaintiff’s counsel complained in plaintiff’s Status Report, dated November 9, 2007, that TDCJ’s policy revisions were unacceptable because TDCJ would not “guarantee that Mr. Moussazadeh will be provided a nutritionally-sufficient kosher diet throughout the duration of his time in TDCJ’s
3

custody.” (Docket Entry No. 82). Plaintiff’s counsel did not complain in the same report that the food served to plaintiff was not kosher; he did, however, complain that “Mr. Moussazadeh has been forced to return to litigation because even the attempt to provide a kosher kitchen at the Stringfellow Unit is proving to be inadequate; the meals provided have proven to be nutritionally insufficient.” (Id.).
Moreover, in Intervenor–Appellants’ Motion to Intervene filed May 18, 2007, in Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir.2007), plaintiff’s counsel stated that TDCJ has now set up a kosher kitchen at the Stringfellow Unit outside Houston, determined which Jewish prisoners are kosher-observant, and transferred most of those 30 prisoners to the Stringfellow Unit.” (Docket Entry No. 120, Exhibit E). Plaintiff’s counsel argued in the same motion that “[t]his directly contradicts TDCJ’s arguments to this Court and the district court that it could not provide these accommodations. In any case, since the relief sought has been provided by TDCJ, this appeal is moot, and the Court lacks jurisdiction over the appeal. The Court should therefore vacate its decision and the district court’s and dismiss the appeal for lack of jurisdiction.” (Id.) (emphasis added).
Because defendants advance good cause under Rule 26(c), the Court DENIES plaintiff’s Opposed Motion for Reconsideration and Opposition to Defendants’ Opposed Motion to Stay Discovery. (Docket Entry No. 112).
B. Amended and Supplemental Pleadings
*6 The Court construes plaintiff’s Opposed Motion for Leave to File an Amended and Supplemental Complaint (Docket Entry No. 117) as follows: Plaintiff seeks to supplement his original complaint by adding Stringfellow Warden James Mossbarger as a defendant in his official capacity and by adding a claim that defendants have continued to deny him a kosher diet on the Stringfellow Unit and refused to guarantee kosher meals if plaintiff is transferred to another unit. (Docket Entry No. 117). Plaintiff seeks to amend his original complaint to seek nominal damages and to eliminate his claim under the TRFA. (Id.).
Whether to grant or deny a motion for leave to amend pleadings rests in the sound discretion of the district court. James v. McCaw Cellular Communications, Inc., 988 F.2d 583, 587 (5th Cir.1993). Courts may consider several factors including undue delay, bad faith, dilatory motive, prejudice to the opposing party, and the futility of

amendment. Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.1996). In this case, justice does not require such amendment given the futility of such amendment. See FED. R. CIV. PROC. 15(a) (providing for circumstances by which a party may amend a pleading and requiring that leave be freely granted if justice so requires). The Court has already dismissed plaintiff’s claim under TFRA and plaintiff concedes that his claim for nominal damages is foreclosed by Sossamon v. Lone Star State of Texas, No.07–50632, 2009 WL 382260 at *8 (5th Cir. Feb.17, 2009) (holding that an action under RLUIPA does not exist for individual-capacity claims and the sovereign immunity of the State of Texas bars any RLUIPA cause of action for official-capacity claims except claims for equitable relief). (Docket Entry No. 134).
The Court will also deny plaintiff’s motion to supplement his pleading. A district court may permit a party to file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. FED. R. CIV. P. 15(d); Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir.1998). A supplemental pleading may bring in new claims and parties when the subsequent events alleged stem from the original cause of action. Griffin v. County Sch. Bd. of Prince Edward County, 377 U.S. 218, 226–27, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). Other than being transferred to the Stringfellow Unit, where Mossbarger is warden, plaintiff sets forth no transactions, occurrences, or events to show that Warden Mossbarger was, or is, personally involved in any capacity with any of the events giving rise to plaintiff’s original complaint or to his proposed supplemental claims. Likewise, plaintiff states no specific reason for his belief that the Stringfellow kitchen does not comply with the laws of kashruth,2 except that the kitchen has not been certified by plaintiff’s designated expert. Nor does he set forth transactions, occurrences, or events that would give rise to a claim that TDCJ has denied him kosher meals after he was transferred to the Stringfellow Unit.3 Moreover, “[l]iberality in pleading does not bestow on a litigant the privilege of neglecting [his] case for a long period of time.” Matter of Southmark Corp., 88 F.3d 311, 315–16 (5th Cir.1996). Months after plaintiff was transferred to the Stringfellow Unit, plaintiff and his attorneys were explicitly notified that plaintiff’s case was subject to dismissal as moot because he had been transferred to the Stringfellow Unit. Plaintiff, nevertheless, did not move to amend or supplement his complaint with an allegation that he had been denied kosher meals on the Stringfellow Unit until defendants sought to dismiss the complaint as moot. See e.g. Rainey v. Herrera, Civil Action No.C–06– 097, 2007 WL 2142091, slip op. at 1 (S.D.Tex. July 25, 2007) (applying the Rule 15(a) factors in denying plaintiff’s motion for leave to file supplemental
4

complaint).
*7 With respect to petitioner’s proposed claim that TDCJ has refused to guarantee that he will received kosher meals if he is transferred off the Stringfellow Unit, the Court finds that plaintiff’s request for a permanent injunction, requiring defendants to provide him with a nutritionally sufficient kosher diet, sufficiently incorporates this claim. Accordingly, plaintiff’s Opposed Motion for Leave to File an Amended and Supplemental Complaint (Docket Entry No. 117) is DENIED.
C. Motion to Dismiss
Pending are defendants’ Motion to Dismiss, or In the Alternative Motion for Summary Judgment (Docket Entry No. 110) and Supplemental Motion to Dismiss or, In the Alternative, Motion for Summary Judgment (Docket Entry No. 122), and plaintiff’s Motion for Summary Judgment. (Docket Entry No. 128).
Defendants seek dismissal of plaintiff’s complaint under Rules 12(b)(1) and (6) and 56(c) of the Federal Rules of Civil Procedure on the ground that plaintiff has received the relief sought by his voluntary transfer to the Stringfellow Unit. (Docket Entry No. 110). Defendants also claim that because of the Fifth Circuit’s holding in Baranowski v. Hart, 486 F.3d 112 (5th Cir.2007), plaintiff’s complaint is factually and legally insufficient to state a claim under RLUIPA. (Docket Entry No. 122).
Plaintiff argues that a material fact question exists as to whether plaintiff is actually receiving kosher food on the Stringfellow Unit. Plaintiff also argues that even if he were receiving kosher food, he would still have a right to declaratory and injunctive relief, and nominal damages “because his claims fall well within two exceptions to mootness: voluntary cessation and capable of repetition yet evading review.” (Docket Entry No. 118). Plaintiff further argues that Baranowski holding does not overcome plaintiff’s summary judgment proof. (Docket Entry No. 127). Plaintiff seeks summary judgment on the ground that defendants have violated RLUIPA by denying him a kosher diet. (Docket Entry No. 128).
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. Home Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). A Rule 12(b)(1) motion to dismiss should be granted “only if it appears certain that

the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Id.
A party may bring either a “facial attack” or a “factual attack” upon a complaint’s subject matter jurisdiction pursuant to Rule 12(b)(1). See Rodriguez v. Tex. Comm’n on the Arts, 992 F.Supp. 876, 878 (N.D.Tex.1998), af’d 199 F.3d 279 (5th Cir.2000). “A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the complaint, which are presumed to be true. See id. (citation omitted). A facial attack usually occurs early in the proceedings and directs the court’s attention only to “the sufficiency of the allegations in the complaint because they are presumed to be true.” Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1998). If sufficient, those allegations alone provide jurisdiction. However, if the defendant supports the motion with evidence, then the attack is factual, and “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). In a factual attack, matters outside the pleadings, such as testimony and affidavits, may be considered. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). Moreover, a factual attack may occur at any stage of the proceedings. Id. Regardless of the nature of the attack, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Id.
*8 Defendants’ mootness contention is a factual attack, requiring the Court to look at matters outside the pleadings. See id. Accordingly, no presumption of truth attaches to plaintiff’s factual allegations concerning mootness. See Williamson, 645 F.2d at 412.
The argument that a claim is moot challenges the court’s jurisdiction. See Eddins v. Excelsior Ind. Sch. Dist., 88 F.Supp .2d 695, 701 (E.D.Tex. Mar.15, 2000). A claim becomes moot if it “no longer present[s] a case or controversy under Article III, § 2 of the Constitution.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Under the case or controversy requirement, “[t]he parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Id. “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ ” Id.
The Declaratory Judgment Act also requires an “actual controversy” between the parties before a federal court may exercise its jurisdiction. 28 U.S.C. § 2201(a); Aetna
5

Life Ins. Co. v. Haworth, 300 U.S. 227, 239–41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The standard under Article III “is identical to the actual controversy requirement under the Declaratory Judgment Act.” Texas v. West Publ’g Co., 882 F.2d 171, 175 (5th Cir.1989). A district court lacks subject matter jurisdiction to issue a declaratory action pursuant to 28 U.S .C. § 2201(a) unless an actual controversy exists. Id..
RLUIPA provides the following, in pertinent part:
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 government 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 U.S.C. § 2000cc–1(a)(1)-(2). The religious adherent bears the threshold burden of proving the existence of a substantial interference with a religious exercise. Id. § 2000cc–2(b). If a substantial burden is proven, the government must demonstrate that compelling interest test is satisfied. Id.
Keeping kosher qualifies as a religious exercise for the practice of Judaism under RLUIPA. Baranowski, 486 F.3d at 124). “Given the strong significance of keeping kosher in the Jewish faith, the TDCJ’s policy of not providing kosher food may be deemed to work a substantial burden upon [a Jewish inmate’s] practice of his faith. Id. at 125; see also Adkins v. Kaspar, 393 F.3d 559, 569–71 (5th Cir.2004) (defining a substantial burden as an action by defendants that either influences the plaintiff to act in a way that violates his religious beliefs or forces him to choose between enjoying some generally available, non-trivial benefit or following his religious belief). RLUIPA is not violated “where the defendant did not provide kosher meals based on the compelling governmental interests of maintaining security and ‘abating the costs of a prisoner’s keep’ “ and where “the administrative and budgetary interests at stake cannot be achieved by any different or lesser means.” Id. at 125–26 (quoting Andreola v. Wisconsin, 211 Fed. Appx. 495, 498–99 (7th Cir.2006) (unpublished) and comparing Cutter v. Wilkinson, 544 U.S. 709, 726, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)).
*9 Plaintiff seeks declaratory and injunctive relief from the Eastham Unit’s refusal to provide him with a

nutritionally balanced kosher diet. (Docket Entries No. 1, No. 117, No. 127, No. 128). As previously discussed, defendants contend, and plaintiff concedes, that plaintiff is no longer incarcerated on the Eastham Unit but has been transferred to the Stringfellow Unit, where TDCJ has established a Jewish Enhanced Program and a kosher kitchen. (Docket Entries No. 110, 118). Plaintiff, however, contends his claims are live for the following reasons: First, he denies that the food he is now receiving is kosher; therefore, he claims a material factual dispute exists over whether he has received any of his requested relief. Second, he argues that even if he is now receiving kosher food, the voluntary cessation of the illegal conduct on the Eastham Unit does not make the case moot and the alleged violation is capable of repetition. Finally, plaintiff seeks nominal damages, a claim which plaintiff concedes is foreclosed by the holding of the Sossamon Court. (Docket Entries No. 118, No. 134).
After a thorough review of the entire record, the Court finds no issue of material fact with respect to whether the food served to plaintiff on the Stringfellow Unit is kosher for the reasons previously discussed. Although plaintiff decries that he was not allowed to independently certify that the kitchen was kosher (Docket Entry No. 118), plaintiff state no facts to support his claim that he has continued to be denied kosher food at the Stringfellow Unit other than the fact that he does not know if the food is kosher because he is not an expert and that the food served at the Unit does not conform to a kosher menu that he purportedly attached to his declaration. (Docket Entry No. 128–2, page 4). Moreover, he provides no other probative evidence to support his claim that the food served to him on the Stringfellow Unit is not kosher.4 On the other hand, defendants’ exhibits support their claim that the Stringfellow kitchen is kosher and the food prepared and served to Jewish inmates on the unit, including plaintiff, is kosher. (Docket Entries No. 110, No. 120, No. 121, No. 122, No. 123, Exhibits).
Plaintiff is no longer incarcerated on a TDCJ Unit that is incapable of providing him with a kosher diet to accommodate his religious beliefs. Because he has been transferred to the Stringfellow Unit, where kosher food is prepared and served in a kosher kitchen, plaintiff’s request for injunctive and declaratory relief is moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir.2001) (finding that request for injunctive and declaratory relief becomes moot when inmate leaves the complained-of prison facility, and “[a]ny suggestion of relief based on the possibility of transfer back to the [facility] is too speculative to warrant relief).
Plaintiff, however, contends the voluntary cessation of defendants’ illegal conduct on the Eastham Unit does not
6

make the case moot. (Docket Entry No. 118). The standard for determining whether a case has been mooted by a defendant’s voluntary conduct is stringent. “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Sossamon, No.07–50632, 2009 WL 382260 at *4 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). The party asserting mootness bears the heavy burden. Id.
*10 Under Fifth Circuit precedent, RLUIPA is not violated by TDCJ’s failure to provide a kosher diet to a Jewish inmate at the unit of his incarceration because of compelling administrative and budgetary constraints. Baranowski, 486 F.3d at 125–26. Defendants concede that plaintiff was not served kosher food on the Eastham Unit of TDCJ. Defendants, however, have shown that notwithstanding Baranowski, it sought to lessen the substantial burden on the religious expression of plaintiff and other like inmates by transferring them to the Stringfellow Unit, where a kosher kitchen has been established. (Docket Entry No. 121).
“[C]ourts are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude, mooting cases that might have been allowed to proceed had the defendant not been a public entity—a practice that is reconcilable with Laidlaw .” Sossamon, No.07–50632, 2009 WL 382260 at *4 (citations omitted). “Although Laidlaw establishes that a defendant has a heavy burden to prove that the challenged conduct will not recur once the suit is dismissed as moot, governmental actors in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties. Without evidence to the contrary, [the Court] assume[s] that formally announced changes to official governmental policy are not mere litigation posturing.” Id. In this case, the good faith nature of TDCJ’s policy is buttressed by the fact that the State of Texas has given plaintiff that which he did not obtain under Fifth Circuit precedent or in district court.
Plaintiff also complains that TDCJ’s alleged RLUIPA violation falls within a separate exception to mootness in that it is capable of repetition yet evading review. (Docket Entry No. 118). Plaintiff contends in this case that the issues have not been fully litigated and the State of Texas has asserted the right to subject plaintiff to the same action again. (Id.). Plaintiff claims that “TDCJ refused to accept any agreement that guaranteed kosher food throughout Moussazadeh’s period of incarceration.” (Id.).

“Although a case may appear to be technically mooted, a continuing controversy exists if the problem is likely to recur yet evade review.... For a case to fall within this category, two requirements must be met: (1) the duration of the challenged action must be too short to allow full litigation; and (2) a reasonable expectation must exist that the same party will be subjected to the same action again.” Pierce v. Winograd, 757 F.2d 714, 715 (5th Cir.1985) (citations omitted). Defendants correctly contend that issues regarding plaintiff’s right to a kosher diet if TDCJ were to cease its kosher kitchen in the future or transfer plaintiff to a different unit where he was unable to obtain a kosher meal are capable of review. (Docket Entry No. 122). The disposition of the pending suit does not preclude plaintiff from exhausting his administrative remedies and filing another suit in federal court. Moreover, given the extent to which TDCJ has attempted to accommodate plaintiff’s religious beliefs, the Court finds that any claim that plaintiff might be transferred to another unit, where kosher food is unavailable, is too speculative to avoid mooting the case.
*11 Accordingly, the Court finds that this Court lacks subject matter jurisdiction to address the merits of plaintiff’s complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants’ motion to dismiss (Docket Entries No. 110, No. 122) is, therefore, GRANTED.
III. CONCLUSION
Based on the foregoing, the Court ORDERS the following:
1. Defendants’ Motion to Dismiss (Docket Entries No. 110, No. 122) is GRANTED. All claims against all defendants are DISMISSED. Plaintiff’s complaint is DISMISSED WITH PREJUDICE for want of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
2. Plaintiff’s Opposed Motion for Leave to File an Amended and Supplemental Complaint (Docket Entry No. 117), Opposed Motion for Reconsideration and Opposition to Defendants’ Opposed Motion to Stay Discovery (Docket Entry No. 119), Motion for Summary Judgment (Docket Entry No. 128) are DENIED.
3. All other pending motions are DENIED AS MOOT.
The Clerk shall provide a copy of this Order to the parties.
7

Not Reported in F.Supp.2d, 2009 WL 819497

All Citations

Footnotes

1

Rabbi David Goldstein attests that he helped to establish the Jewish Enhanced Program at the Stringfellow Unit in March, 2007,

“which included the opening of a kosher kitchen.” (Docket Entry No. 121). Rabbi Goldstein further attests that he serves as

supervisor for the kosher kitchen and the food cannery at the Unit and that he visits the kitchen weekly to ensure that it is

operating according to kosher laws. (Id.). He unequivocally attests that the “foods served in the kitchen are kosher .... [and] the

inmates who work in the kosher kitchen have been properly trained to prepare and handle foods in a kosher manner.” (Id.).

Goldstein attests that such inmates are properly supervised by the Stringfellow kitchen captain, who Goldstein trained and

educated, to ensure that kitchen tasks are performed in a proper kosher manner. (Id.). Goldstein also attests that he has

reviewed the food list for foods purchased for the kosher kitchen and inspected the food and that the foods are properly kosher.

(Id.). He further attests that for foods that are not readily available and unattainable by TDJC because of a lack of a vendor, he

purchases kosher food for inmates from charitable donations. (Id.). Goldstein serves on a contract with TDCJ as a Jewish prison

chaplain and provides rabbinical services at the Stringfellow, Wynne, Stiles, Darrington, and Terrell Units of TDCJ. (Id.).

2

Plaintiff concedes that he receives food from a separate kitchen at the Stringfellow Unit, although he complains that the kitchen

provides only dried cereal, boiled potatoes, tofu, and other vegetarian fare. (Docket Entry No. 117).

3

Moreover, the record does not show that plaintiff or any other Jewish inmate at the Stringfellow Unit has complained, grieved, or

attested that the food served at the Stringfellow Unit is not kosher.

4

Plaintiff attached the affidavit of Billy Pierce, the Director of the TDCJ’s Chaplaincy Department, which was filed in the

Baranowski case. (Docket Entry No. 128–9). Pierce attests in the affidavit, dated October 21, 2004, that “[n]o 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.” (Id., page 4). Plaintiff has also attached defendants’ second and third supplemental responses to

plaintiff’s first set of interrogatories, signed and dated by defendants’ counsel in 2008, which recite whole portions of Pierce’s

affidavit, including the statement that no TDCJ unit currently set up to accommodate a kosher diet. (Docket Entries No. 128–4,

No. 128–5).

8

 
 703 F.3d 781 (2012)
Max MOUSSAZADEH, Plaintiff-Appellant, v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Brad Livingston, Solely in His Official Capacity as Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; David Sweeten, Solely in His Official Capacity as Warden of the Eastham Unit of the Texas Department of Criminal Justice, Correctional Institutions Division,
Defendants-Appellees.
No. 09-40400.
United States Court of Appeals, Fifth Circuit.
December 21, 2012. As Corrected February 20, 2013.
784*784 Luke William Goodrich, Eric C. Rassbach, Becket Fund for Religious Liberty, Matthew Todd Murchison, Anne Wylde Robinson (argued), Michael J. Songer, Latham & Watkins, L.L.P., Washington, DC, for Plaintiff-Appellant.
Arthur Cleveland D'Andrea (argued), Office of the Sol. Gen., Celamaine Cunniff, 785*785 Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.
Joshua D. Hawley, Hogan Lovells US, L.L.P., Daniel Mach, Program on Freedom of Religion & Belief, ACLU, Washington, DC, Martin Jonathan Siegel, Law Office of Martin J. Siegel, P.C., Rebecca L. Robertson, Houston, TX, Kelly Anne Laudenslager, Wheeler, Trigg & O'Donnell, L.L.P., Michael Alex Sink, Perkins Coie, L.L.P., Denver, CO, Marc D. Stern, American Jewish Committee, New York City, for Amici Curiae.
Before KING, SMITH and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Through more than seven years of litigation, Max Moussazadeh has sought kosher meals while confined at the Texas Department of Criminal Justice ("TDCJ"). The district court, on motion for summary judgment, dismissed Moussazadeh's claim on two independent grounds: failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA") and lack of sincerity of religious belief as required under the Religious

Land Use and Institutionalized Persons Act ("RLUIPA"). Moussazadeh appeals, and we reverse and remand.
I. Background.
A. Procedural History.
While at the Eastham Unit ("Eastham") serving a seventy-five-year sentence for murder, Moussazadeh on July 15, 2005, properly filed a Step 1 administrative grievance complaining that he was "forced to eat non kosher foods" and requesting that he "be allowed to receive kosher meals because it is part of [his] religious duty." He asserted that he is Jewish, that he was "born and raised Jewish [sic]," and that his family "kept a kosher house hold [sic]" all his life. He claims that his faith requires him to "eat kosher foods," and not being able to do so forces him to "go[] against [his] religious beliefs," for which he believes God will punish him. He noted in his grievance that he had contacted the prison chaplain and captain of the mess facility at Eastham to request kosher meals but that his requests had been denied.
On July 21, TDCJ denied Moussazadeh's grievance and refused to provide him with kosher food. It provided no reason for doing so and stated only that as a matter of current policy, it did not provide kosher meals. Appealing the outcome of his Step 1 grievance, on July 29 Moussazadeh filed a Step 2 grievance, which was denied on September 19. The Grievance Response stated that TDCJ could "take no further action in this matter."
Having exhausted the grievance process, Moussazadeh sued TDCJ and prison officials (collectively referred to as "TDCJ") in October 2005, alleging substantially the same facts as in his grievances. He argued that he was a "sincere adherent of the Jewish faith" and that a fundamental tenet requires that believers "eat food prepared and served in a kosher manner." He noted his grievances and TDCJ's denial of his requests for kosher food, and he asserted that TDCJ's refusal to provide kosher food was a violation of RLUIPA and the Texas Religious Freedom Restoration Act. He requested injunctive and declaratory relief compelling TDCJ to provide him with nutritionally sufficient kosher meals.
About six months after the suit was filed, the district court stayed discovery at the request of the parties to facilitate settlement negotiations. After nearly a year 786*786of negotiations, TDCJ began offering kosher food in the dining hall at the Stringfellow Unit ("Stringfellow"), to which, in April 2007, Moussazadeh was transferred; he then began receiving kosher meals from the kitchen free of charge. The parties did not settle, however, because TDCJ refused to meet Moussazadeh's demand for a guarantee that it would not ever deny him kosher food. Two years later, the district court dismissed the case as moot. Moussazadeh v. TDCJ, 2009 WL 819497 (S.D.Tex. Mar. 26, 2009).
Moussazadeh appealed the dismissal, and while his appeal was pending, he committed an infraction and was transferred to the Stiles Unit ("Stiles"), which did not provide kosher meals in the dining hall but did offer kosher food for purchase at the commissary. This court remanded, concluding that those changed circumstances rendered Moussazadeh's claim

no longer moot. See Moussazadeh v. TDCJ, 364 Fed.Appx. 110 (5th Cir.2010) (per curiam).
On remand, the parties conducted further discovery and filed cross-motions for summary judgment. The district court granted summary judgment for TDCJ on two grounds. First, it held that Moussazadeh's claim was barred by the PLRA, which requires inmates to exhaust their administrative remedies before seeking judicially granted relief. In the alternative, the court dismissed under RLUIPA based on its conclusion that Moussazadeh was not sincere in his religious beliefs, so there was no substantial burden on his religious exercise. Moussazadeh timely appealed.
B. Factual Background.
Neither party disputes the fact that Jewish dietary laws, "kashrut," are fundamental to the practice of Judaism as embodied in the Torah and Rabbinic laws. Food that satisfies the biblical and rabbinic requirements is deemed "kosher." Those laws demand that food be stored, prepared, and served in a certain manner, and they exclude certain types of food. For example, pork is per se nonkosher. Food that would otherwise be kosher becomes nonkosher if mixed with nonkosher food or brought into contact with utensils that have been used in the preparation of nonkosher food. For that reason, certain types of food must not be served, and a separate set of cookware, utensils, and flatware must generally be used.
Before this suit, TDCJ had no program for providing kosher food to inmates. In fact, during the pendency of this case, TDCJ successfully litigated against another prisoner who had requested kosher food. See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir.2007). During settlement negotiations with Moussazadeh, however, TDCJ undertook a study of the logistics and cost of providing kosher food to observant Jewish inmates. It examined kosher programs in other prison systems, such as those in Pennsylvania, Colorado, and the Federal Bureau of Prisons, that offered entirely prepackaged "cold" kosher meals, kosher meals prepared on site, and the "common fare" program of the Bureau of Prisons.
TDCJ considered the benefits and drawbacks of each system and decided to implement a two-tier program. The first, the Basic Designated Jewish Unit, provided kosher meals that could be purchased in the prison commissary, a marketplace where inmates can purchase food and hygienic items. Basic Units were located at the Darrington, Terrell, Stiles, and Wynne facilities. The second tier, the Enhanced Designated Jewish Unit, provided kosher meals free of charge to Jewish offenders in the prison dining hall. The only Enhanced Unit was located at Stringfellow. To provide kosher food there, TDCJ cordoned off a section of the already extant kitchen and purchased items such as utensils, a refrigerator, 787*787 a microwave, and a burner for the exclusive preparation of kosher food. The cost of establishing the kosher kitchen was $8,066.26.
TDCJ decided to implement the two-tier program based on factors including cost, convenience, and the dynamics of the Jewish prison population. There are about 900 selfidentified Jewish prisoners out of more than 140,000 prisoners in TDCJ custody. Of these, only 70-75 are "recognized" as Jewish, and another 90 are in the conversion process. Because of the cost associated with establishing a kosher kitchen and the low number of Jewish prisoners, TDCJ decided to build its single Enhanced Unit at Stringfellow and move

all observant Jewish prisoners there. Stringfellow was chosen because it is classified to house prisoners with a wide range of security levels, everyone except the most violent offenders. Stringfellow also is close to a large Jewish population that TDCJ determined would facilitate kosher certification and would volunteer services and provide religious materials.
Aside from the start-up costs of the kosher kitchen, TDCJ's Enhanced Designated Unit program cost more than regular prison meals. In 2009, TDCJ's expenditures on food service were just over $183.5 million, with a cost per day, per inmate, of $3.87; the cost of food from the Stringfellow kosher kitchen was $6.82. The total extra cost based on TDCJ's 2009 data is roughly $1,095 per year, per inmate. The Basic Jewish Designated Units, on the other hand, do not impose those same costs on TDCJ. Inmates must purchase kosher food at the commissary with their own money, lest they receive the same nonkosher food as does the general population.
After establishing the Enhanced Unit at Stringfellow, TDCJ transferred observant Jewish inmates, including Moussazadeh, there. Moussazadeh remained at Stringfellow for two years and consistently ate the kosher meals, even though they often consisted of food he characterized as "highly distasteful," such as tofu. He alleged that he was harassed by prison officials for his religious beliefs and for his attempt to secure kosher food by means of this suit.
In 2009, Moussazadeh committed serious infractions that increased his security level from G4 to G5. Because Stringfellow was not designated to house G5 level offenders, Moussazadeh was transferred to Stiles. The prison had only a Basic Jewish Designated Unit, and so Moussazadeh did not receive kosher meals from the dining hall. He was able to purchase them in the commissary, which he did at least during the Passover holiday. He also purchased food that was not certified as kosher, such as coffee and sweets. He eventually became eligible to transfer back to Stringfellow, but that eligibility was short-lived, because he again lost it after committing another disciplinary infraction. At the time of oral argument in this appeal, Moussazadeh remains at Stiles, where he does not receive free kosher meals.
II. Standard of Review.
Summary judgments are reviewed de novo. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir.1999). Summary judgment is appropriate where, taking the evidence in the light most favorable to the nonmoving party, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also FED.R.CIV.P. 56(a).
III. Discussion.
A. PLRA Exhaustion.

Under the PLRA, "[n]o action shall be brought with respect to prison 788*788conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA pre-filing exhaustion requirement is mandatory and non-discretionary." Gonzalez v. Seal, 702 F.3d 785, 787 (5th Cir.2012) (per curiam). The purpose of the exhaustion requirement is twofold. See Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). First, it "protects administrative agency authority" by allowing the agency to "correct its own mistakes" rather than being immediately "haled into federal court." Id. (internal citations omitted). Second, it promotes efficiency insofar as administrative review processes are generally faster and more economical than is litigation. Id. Even where the parties subsequently seek judicial remedies, the administrative-review process often produces a useful record to ease and expedite further proceedings. Id. See also McCarthy v. Madigan, 503 U.S. 140, 150-51, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).
In determining exhaustion under the PLRA, we look to the processes established by the prison and the parties' use of these processes, beginning with the sufficiency of the inmate's "complaint." We "typically use a standard according to which a grievance should give prison officials `fair notice' of the problem that will form the basis of the prisoner's suit." Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir.2004). The complaint must be sufficient in detail to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). If the complaint meets those standards, and if there are no further avenues for administrative resolution, we will find exhaustion.
Where the prisoner's complaint addresses an ongoing problem or multiple instances of the same type of harm, prisoners need not file a new grievance in each instance to quality for exhaustion. "As a practical matter," a prisoner cannot be "expected to file a new grievance" each time he is harmed in the same manner.[1] Further, TDCJ's policies expressly direct prisoners not to file multiple grievances for a repeating harm, and they threaten sanctions for excessive filings.[2] Where the original grievance complains of a general prison policy, changed circumstances will not necessarily necessitate re-exhaustion.[3]
Moussazadeh initially went through TDCJ's entire grievance process before filing this suit. In Texas, prison grievances involve a two-step process. The inmate first files a Step 1 grievance, in which he must state the grievance and his proposed relief. If relief is denied, the inmate may then file a Step 2 grievance appealing the denial. Moussazadeh filed both claims. And indeed, before filing formal grievances, he sought the assistance of the prison chaplain and the kitchen captain in resolving the issue. In its denial of his Step 2 grievance, TDCJ told Moussazadeh that no further action could be taken regarding his request for kosher food.
The district court held that Moussazadeh had not exhausted. There was a convergence of changed circumstances, it found, that required him to re-exhaust. 789*789 Namely, TDCJ put in place a kosher meals program and served Moussazadeh kosher meals from the prison kitchen during his time at Stringfellow. Thereafter, Moussazadeh was transferred to Stiles, which left him in a different position. The district court held that these facts required him to submit new grievances. We disagree.

Although Moussazadeh can purchase kosher food at Stiles and did receive kosher food for a time at Stringfellow, the claim that gave rise to his initial grievances and suit remains unchanged. His original grievance asked TDCJ to "grant [him] access to kosher meals in the prison dining hall." In the "Action Requested to resolve your Complaint" field, Moussazadeh asked to "receive kosher meals from the unit kitchen and dining hall."[4] The grievance related to his ability to be fed a kosher, nutritionally adequate diet in the dining hall as a substitute for the nonkosher meals he was being served. His claim is for relief related to ongoing conduct — he is currently being denied kosher food. Even though he was granted the relief he requested for a time, it has been taken away from him.
This is analogous to the situation in Johnson, in which a prisoner was being assaulted on a regular basis but not every single day. See Johnson, 385 F.3d at 521. We explained that the pattern of assault did not require multiple grievances. Id. Johnson did not have to be assaulted each and every day for the conduct underlying his grievance to be considered ongoing. Similarly, Moussazadeh's claim relates to conduct that continues to occur.
Further, even granting that Moussazadeh's situation has changed with his transfer to Stiles and that he is now free to purchase kosher food, it would be improper to dismiss under the PLRA. This case has been ongoing for more than seven years. The administrative process has yet to yield a satisfactory result, and the final grievance response stated that TDCJ would "take no further action." Insofar as the purpose of exhaustion under the PLRA is to provide notice of the prisoner's grievances and a chance for the prison system to address them, these proceedings have undoubtedly accomplished those objectives. TDCJ is fully aware of Moussazadeh's requests and complaints. Nothing in the record suggests that, were Moussazadeh to file an administrative grievance, TDCJ would take any action. Forcing re-exhaustion would be fruitless and would needlessly extend already prolonged litigation.
Finding the need for re-exhaustion here would also allow TDCJ and future potential defendants to take improper advantage of the PLRA's exhaustion requirement. To avoid any future suit on grounds of not providing a kosher diet, TDCJ would merely have to transfer the complaining inmate to Stringfellow after a suit was filed, then move for dismissal. Once the suit was dismissed, TDCJ would have free reign to deny the inmate kosher food again. Even assuming good faith on the part of TDCJ, such a system, which would be allowable under the district court's understanding of the PLRA, would be contrary to the purposes of the act.
Finally, the statute states that "[n]o action shall be brought ... until" administrative remedies have been exhausted. 42 U.S.C. § 1997e(a) (emphasis added). Once those remedies are exhausted, the suit may be filed. All of our previous cases upholding dismissals under § 1997e have 790*790 involved a failure to file grievances at all or a failure to see the administrative review process through to its conclusion.[5] We have never before held that, once he has initially exhausted available remedies, an inmate must re-exhaust based on changed circumstances. The PLRA serves as a threshold; once it is met, a suit may not be dismissed so long as the claims remain the same. In seven years of litigation, Moussazadeh has not amended his initial complaint — in fact, the district court noted that he did not need to file an amended complaint.

Moussazadeh exhausted his administrative remedies in 2005 when he properly filed grievances. TDCJ has been on notice since that time of Moussazadeh's complaints and his request for kosher food to be served in the dining hall. "Re-exhaustion" is not required; Moussazadeh has met the exhaustion as a matter of law.
B. RLUIPA.
Under RLUIPA, government entities as a general matter may not "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." 42 U.S.C. § 2000cc-1(a). RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). The threshold questions for applying RLUIPA are whether a "religious exercise" is at issue and whether the state action places a "substantial burden" on that exercise.[6] Subsumed within the substantial-burden inquiry is the question whether the inmate sincerely believes in the requested religious exercises. See id. at 725 n. 13, 125 S.Ct. 2113 (noting that inquiries into sincerity are appropriate under RLUIPA). A belief not sincerely held cannot be substantially burdened.
1. Religious Exercise.
"Religious exercise" is defined by RLUIPA as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). The parties do not dispute the centrality to the Jewish faith of keeping kosher. Nor do they dispute that eating kosher food constitutes a "religious exercise." The district court properly held this to be so.
2. Sincerity.
To be substantially burdened, a religious belief must be sincerely held. "[W]hile the `truth' of a belief is not open to question, there remains the significant question of whether it is `truly held.'" United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). It does not matter whether a religious belief itself is central to the religion, but only that "the adherent [ ] have an honest belief that the practice is important to his free exercise of religion." Sossamon v. Lone Star State of Tex.,560 F.3d 316, 332 (5th 791*791 Cir.2009), aff'd sub nom. Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). Sincerity of a belief is an essential initial matter in a RLUIPA claim.
We have "had few occasions to conduct this part of the inquiry, as the sincerity of a religious belief is not often challenged." McAlister v. Livingston, 348 Fed.Appx. 923, 935 (5th Cir.2009). Sincerity is generally presumed or easily established. When we have inquired as to sincerity, however, we have looked to the words and actions of the inmate. See Sossamon, 560 F.3d at 332. "[T]he important inquiry was what the prisoner claimed was important to him." McAlister, 348 Fed.Appx. at 935.

In addressing whether Moussazadeh's religious beliefs were sincere, the district court correctly looked to his words and actions but incorrectly concluded that those factors established insincerity "as a matter of law." The court decided that Moussazadeh was insincere based on a combination of three findings. First, it found that he purchased "nonkosher" food items — including cookies, soft drinks, coffee, tuna, and candy — while at Stringfellow, despite being served kosher food in the dining hall. Second, the court found that, while at Stiles, Moussazadeh purchased the same types of "nonkosher" food from the commissary. Finally, the court noted that Moussazadeh had not filed a grievance requesting a transfer back to Stringfellow from Stiles when he became eligible.
These findings alone, however, do not indicate that Moussazadeh was insincere. In the first place, because the court ruled on a motion for summary judgment, it was required to view the evidence in the light most favorable to the non-movant, who on the issue of sincerity was Moussazadeh. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The determination of a substantial burden in general is "fact-specific and requires a case-by-case analysis."[7] This is doubly true regarding sincerity. The district court improperly weighed the evidence proffered by TDCJ more heavily than it did Moussazadeh's.
As an initial matter, the court was incorrect to say that Moussazadeh bought nonkosher food at the commissary. The court concluded that items that were not certified as kosher were per se not kosher, but, as Moussazadeh and amicus curiae relate, a certificate does not render food kosher or nonkosher. See Brief for Amicus Curiae American Jewish Committee at 16-22. The items that Moussazadeh purchased, such as coffee and soda, do not need a certificate to be "kosher." Id. Although certain adherents of Judaism may consume only certified kosher food, others will consume food that is not per se nonkosher. Id. Individuals may practice their religion in any way they see fit, and "it is not for the Court to say it is an unreasonable one." A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.,611 F.3d 248, 261 (5th Cir.2010). A showing of sincerity does not necessarily require strict doctrinal adherence to standards created by organized religious hierarchies.
Even assuming, arguendo, that some of the food Moussazadeh purchased was nonkosher, that does not necessarily establish insincerity. A finding of sincerity does not require perfect adherence to beliefs expressed by the inmate, and even the most sincere practitioner may stray from time to time. "[A] sincere religious believer doesn't forfeit his religious rights 792*792 merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?" Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir.2012). Though Moussazadeh may have erred in his food purchases and strayed from the path of perfect adherence, that alone does not eviscerate his claim of sincerity.
In support of his sincerity, Moussazadeh offered his statements in his initial grievances and complaint that he was born and raised Jewish and has always kept a kosher household. He offered evidence that he requested kosher meals from the chaplain, kitchen staff, and TDCJ. He tendered evidence that, while at Stringfellow, he ate the kosher meals provided to him from the dining hall, even though he found them to be "distasteful" compared to the standard prison fare.

Moussazadeh also showed that he was harassed for his adherence to his religious beliefs and for his demands for kosher food while at Stringfellow. For instance, he alleged that the guards there delayed his mail and searched his cell more often than they did so for other prisoners, sometimes seizing non-contraband items. Moussazadeh offered evidence that he purchased some kosher food in the Stiles commissary, including kosher-for-Passover meals. He also attempted to present testimony from religious authorities supporting his sincerity, though the district court rejected that.
Further, during seven years of litigation, TDCJ had never questioned Moussazadeh's sincerity. It created the two-tier program as part of negotiations with him. It transferred him to Stringfellow so he could receive kosher food and transferred him to Stiles because the commissary offered kosher food for purchase. Those actions establish TDCJ's acknowledgment of Moussazadeh's sincerity.
Though the sincerity inquiry is important, it must be handled with a light touch, or "judicial shyness." A.A. ex rel. Betenbaugh, 611 F.3d at 262. We limit ourselves to "almost exclusively a credibility assessment" when determining sincerity. See Kay,500 F.3d at 1219. To examine religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.[8]
Moussazadeh has offered sufficient evidence to establish sincerity as a matter of law. He has shown through his initial claims, his actions while at Stringfellow, and his continued prosecution of this suit that he sincerely believes in the importance of eating kosher food. His few lapses in perfect adherence do not negate his overarching display of sincerity. The district court improperly eschewed the required "judicial shyness" in determining otherwise.
C. Standard on Remand.
Where an inmate's religious beliefs are sincere and his exercise of those beliefs is burdened, the court must determine whether the plaintiff has established that the burden is substantial. 42 U.S.C. § 2000cc-1(a). If it is, the state must "demonstrate[ ] that imposition of the burden... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Id. There are thus three questions the district court must address on remand: whether the regulation substantially burdens religious conduct, whether the government has a compelling interest in the regulation, 793*793 and whether the regulation is the least restrictive means of achieving the interest.
1. Substantial Burden.
Denying all access to kosher food places a substantial burden on the practice of an inmate's faith. Baranowski, 486 F.3d at 125. We have not opined, however, on the policy of charging inmates for kosher meals.
In addressing substantial burdens on religion under the First Amendment, the Supreme Court has provided useful guideposts for our application of RLUIPA. In Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court held that

withholding unemployment benefits from an individual who could not, based on her religious beliefs, work on the Sabbath would constitute a substantial burden on religion. Denying benefits would "force[ ] [the plaintiff] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." Id. This type of imposition substantially burdens religion because it would be the same as "a fine imposed against appellant for her Saturday worship." Id. Similarly, in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), the Court held that conditioning receipt of "an important benefit" upon religiously proscribed conduct, or denying a benefit because of "conduct mandated by religious belief," would impose a substantial burden on religion.
Applying these standards to RLUIPA, we held in Adkins, 393 F.3d at 570, that a government action substantially burdens a religious belief if "it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs." We explained that
the effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) 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. On the opposite end of the spectrum, however, a government action or regulation does not rise to the level of a substantial burden on religious exercise 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.
Id.
TDCJ argues that what is at stake is not pressure or forbidding religious practice but "underwriting" it. TDCJ cites Cutter, 544 U.S. at 720 n. 8, 125 S.Ct. 2113,which noted that "RLUIPA does not require a State to pay for an inmate's devotional accessories." But for two reasons, Cutter is distinguishable from the case at hand: First, it addressed an Establishment Clause challenge to RLUIPA. The Court was not focused on analyzing the question of a substantial burden. Second, the benefit requested in Cutter was provision of religious items, not food. Like the unemployment payments at issue in Sherbert, food is an "essential" benefit given to every prisoner, regardless of religious belief. Based on Sherbert, Thomas, and Adkins, denial of religiously sufficient food where it is a generally available benefit would constitute a substantial burden on the exercise of religion.
TDCJ further cites Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008), as its most persuasive support of the position that there is no substantial burden. Prisoner Patel had requested halal food and was served food that did not 794*794 comport with his conception of Islamic dietary law. Halal meals that would have satisfied him were available for purchase in the prison commissary. Id. at 816. Patel had offered no evidence that he could not afford to purchase the halal food. The court held that the prison did not have to provide him free halal meals from the commissary and that it was not imposing a substantial burden on his religious exercise.

Patel is distinguishable on two grounds. First, the Eighth Circuit appears to define "substantial burden" differently from how we define it. According to the Eighth Circuit, government action must "significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion" in order to constitute a substantial burden. Id. at 813 (quoting Murphy, 372 F.3d at 988). Unlike our definition, embodied in Adkins, the Eighth Circuit's definition of substantial burden makes no reference to denial of generally available benefits.
Second, Patel is distinguishable because both kosher and halal food were already being offered free of charge in the dining hall. Patel requested not only halal food, which was already being served and satisfied all the other Muslims in the prison, but a particularly nuanced version of halal food. Additionally, sixteen of the twenty-one meals Patel received each week in the dining hall met his standards.
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.
2. Compelling Interest.
A governmental entity can escape the prohibition on substantially burdening religious practice where it establishes that it has a compelling interest in doing so. TDCJ alleges that it has two interests: prison security and costs. This court held in Baranowski, 486 F.3d at 125, that these considerations, in that particular case, constituted a compelling interest.
TDCJ has failed to produce evidence of security concerns related to providing kosher food at Stiles. It offered evidence that the offenders at Stiles have generally been convicted of more violent crimes, but it did not offer any evidence that those more violent offenders would be more likely to cause violence or safety disturbances as a result of some prisoners being served kosher food. TDCJ relied on bare assertions that more violent offenders would present a greater security threat if different meals were served, but this is insufficient to establish a compelling interest related to these facts. On remand, TDCJ may present evidence substantiating its claims of security concerns, if such evidence exists.
TDCJ has shown that costs for kosher food would be almost double what they would be for the nonkosher "loaf" that is served to other prisoners at Stiles. Moussazadeh does not deny those extra costs. TDCJ's argument that it has a compelling interest in minimizing costs by denying Moussazadeh kosher food, however, is dampened by the fact that it has been offering kosher meals to prisoners for more than two years and provides them at 795*795 no cost to all observant Jewish inmates that accepted a transfer to Stringfellow.
Further, the increased cost of providing kosher food to all observant prisoners is minimal — even if the more expensive prepackaged meals, as distinguished from the kosher — kitchen

meals, were provided three times a day to each observant prisoner, the cost would only be about $88,000 per year. To provide those meals to Moussazadeh alone would cost a fraction of this. To put this amount in perspective, the total food budget of TDCJ is $183.5 million.
In Beerheide v. Suthers, 286 F.3d 1179, 1191 (10th Cir.2002), the court held that excluding a $13,000 expenditure from a budget of over $8 million did not constitute a compelling government interest, even under rational-basis review. That minimal cost was, as a percentage of total outlay, roughly three times higher than the expenditure if TDCJ offered the most expensive kosher meal program to all observant prisoners. Although cost reduction, as a general matter, is unquestionably a compelling interest of TDCJ, we are skeptical that saving less than .05% of the food budget constitutes a compelling interest. We recognize, however, that the inquiry is fact-intensive, and we decline to draw a brightline rule. See Adkins, 393 F.3d at 571.
3. Least Restrictive Means.
Assuming, arguendo, that TDCJ establishes a compelling interest in security and cost minimization, its chosen means of achieving that interest must be the least restrictive of Moussazadeh's right to exercise his religious beliefs "among available, effective alternatives." Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (applying the least restrictive means test in the speech context). "Requiring a State to demonstrate ... that it has adopted the least restrictive means of achieving [a compelling] interest is the most demanding test known to constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
TDCJ argues that it has chosen the least restrictive means by allowing Moussazadeh to purchase kosher meals at the Stiles commissary. It relies on Baranowski to suggest that complete denial of kosher food is among the least restrictive means for achieving its goal of minimizing costs and preventing security risks and that therefore its chosen method is even less restrictive. This, however, improperly broadens Baranowski. We there held that, "[b]ased on the record before us, ... [TDCJ's] policy [of denying inmates kosher food] is related to maintaining good order and controlling costs and, as such, involves compelling governmental interests." Baranowski, 486 F.3d at 125 (emphasis added).
We did not hold in Baranowski that there cannot be a less restrictive means of achieving the interests of security and cost reduction, but only that on the record in that case, there was not. We note that, on a subject that demands a fact-intensive inquiry, the record in Baranowski was thin — the plaintiff was pro se and presented no evidence to rebut any of TDCJ's claims regarding the cost of a kosher food program. Our holding in that case does not foreclose a finding that TDCJ's current program is not the least restrictive means available.
Circumstances since Baranowski was decided have changed, as TDCJ and the district court pointed out in their discussion of administrative exhaustion. TDCJ has now offered kosher meals in the dining hall at Stringfellow for years and has offered kosher meals for purchase. To the extent that TDCJ claimed that its least-restrictive means of achieving cost

reduction was completely denying prisoners 796*796 kosher food, that is no longer so. Baranowski therefore is instructive but not dispositive.
There thus remains the factual question whether there is a less restrictive means of minimizing costs and maintaining security other than forcing Moussazadeh to pay for all his kosher meals. He has suggested four alternatives less restrictive than forcing him to pay for every meal he eats, which he has stated he cannot afford. Less restrictive means include supplementing the regular diet with prepackaged kosher meals; establishing another kosher kitchen; shipping food to Stiles from Stringfellow's kosher kitchen; and providing prepackaged kosher meals through the commissary for free. On remand, the district court must determine whether any "alternative, available" means would allow TDCJ to achieve any established compelling interest while being less restrictive of Moussazadeh's ability to exercise his religion. If a less restrictive alternative is available, RLUIPA commands that TDCJ adopt it.
For the foregoing reasons, the summary judgment is REVERSED, and this matter is REMANDED for further proceedings. We do not suggest how the district court should proceed or what decisions should be reached in light of the guidance set forth in this opinion. If the court decides, as to any issue, that there are no genuine disputes of material fact, summary judgment may be appropriate. If there are fact issues, the case may be ready for trial on issues other than exhaustion and sincerity, which are now decided as matters of law. We do not mean to hamper the court in any way in its resolution of any questions still needing to be resolved.[9]
RHESA H. BARKSDALE, Circuit Judge, dissenting in part:
Amazingly, akin to the adage about "inmates running the asylum", and contrary to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc2000cc-5, the able majority is permitting this inmate to run the penitentiary. When combined with two other adages — "no good deed goes unpunished" and "don't lose sight of the forest for the trees" — the true character of this action is revealed. In that light, for the issues remanded for further proceedings, the majority's application of RLUIPA's compellinginterest standard, 42 U.S.C. § 2000cc-1(a)(2), is contrary to precedent and impermissibly substitutes the majority's judgment for that of prison officials. Along that line, the majority ignores Moussazadeh's fault, through his serious disciplinary violations, in bringing about the deprivation about which he complains. Therefore, although I join the majority's denial of reassignment, Maj. Opn. at 796 n. 9, and join, dubitante, its holdings that Moussazadeh has met his threshold exhaustion and sincerity requirements, Maj. Opn. at 790, 792, 795-96, I must respectfully dissent from my esteemed colleagues' vacating judgment for TDCJ and remanding for further proceedings on: whether TDCJ has shown a compelling governmental interest; and whether it has adopted the least restrictive means of achieving that interest (remanded issues).
I.
In granting summary judgment to TDCJ, the district court's comprehensive and detailed opinion based judgment on failure to satisfy the exhaustion and sincerity 797*797 issues, and, therefore, did not reach the remanded issues. Moussazadeh v. Tex. Dep't of Criminal

Justice, No. G-07-574, 2011 WL 4376482 (S.D.Tex. Sept. 20, 2011). No authority need be cited for our ability to affirm the summary judgment based on the issues that are instead being remanded. These issues were raised in district court.
Along that line, the opinion provides compelling support for why Moussazadeh's claim fails for the remanded issues. The following two paragraphs from that opinion shine a piercing light on what is really afoot:
TDCJ-CID defendants also note that Moussazadeh did not request a transfer [from the Stiles Unit] back to the Stringfellow Unit for religious reasons [where a free kosher diet is available] when he became eligible for such transfer and that he filed no grievances complaining that he was denied kosher meals or any religious practice on the Stiles Unit [to which he had been transferred for disciplinary violations]. They further note that Moussazadeh voluntarily committed major disciplinary violations [at Stiles] that resulted in a change of his custodial classification, thereby, depriving him of the opportunity to transfer back to the Stringfellow Unit, where he could freely obtain kosher food. * * * Moussazadeh's conclusory declaration does not demonstrate that his professed religious need for a kosher diet motivates his actions or that he has attempted to reform his ways and return to keeping kosher during his two-year incarceration on the Stiles Unit. Rather, his personal desire to harass defendants with an unnecessary lawsuit took precedence, and he was willing to sacrifice his religious dietary beliefs in favor of this secular pursuit. Indeed, he would be without any access to kosher food to this day had defendants not attempted to accommodate his dietary beliefs.
Id. at *14-15 (citations omitted).
In the light of these penetrating comments, Moussazadeh asserts here: "the district court suggested that Moussazadeh brought all of this trouble on himself by `voluntarily committ[ing] major disciplinary violations'". In truth, Moussazadeh knows the district court has pinpointed exactly what he is attempting. He even characterizes this correct statement of fact as an expression of "remarkable hostility", requesting — unsuccessfully — this action's being reassigned to a new judge on remand. In other words, he was aware that any hope of success depended on pulling the wool over the eyes of a new judge; the extremely able district judge sees this claim for what it is with 20/20 vision.
II.
In not affirming the summary judgment on the remanded issues, the majority errs in two ways. First, it applies RLUIPA's compelling-interest standard as if Moussazadeh's claim were to be analyzed in a context other than RLUIPA, such as under the Fourteenth Amendment. In that regard, RLUIPA does not require the exacting review associated with court-created strict scrutiny in such other contexts; indeed, such a harsh standard contravenes the Act's purpose. Second, in refusing to recognize what is really in play, the majority ignores TDCJ's having already provided Moussazadeh the religious benefit he seeks, and his having lost access to it through his repeated, serious disciplinary infractions.

A.
The majority cites City of Boerne v. Flores, 521 U.S. 507, 534, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), to support its conclusion 798*798 that a very demanding standard of review is appropriate in analyzing TDCJ's kosher-food policy. Maj. Opn. at 795. There, the Court addressed the constitutionality of RLUIPA's predecessor, the Religious Freedom Restoration Act (RFRA). City of Boerne, 521 U.S. at 511, 117 S.Ct. 2157. As the majority notes, City of Boerne stated: the test for the "least restrictive means of achieving [a compelling] interest" is the most rigorous in all of constitutional law. Id. at 534, 117 S.Ct. 2157. This standard is often referred to as "fatal in fact", because it often leads to the challenged government policy's being struck down. E.g., Bernal v. Fainter, 467 U.S. 216, 219 n. 6, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984).
What the majority fails to take into consideration is that Congress' use in RFRA of this standard, constituting a "considerable congressional intrusion into the States' traditional prerogatives ... to regulate for the health and welfare of their citizens", is part of the reason why, in City of Boerne, RFRA was held unconstitutional. 521 U.S. at 534, 117 S.Ct. 2157. Therefore, in the subsequent RLUIPA context, the standard is necessarily less stringent than its language suggests. Precedent from the Supreme Court, our court, and other circuits bears this out.
Our court has already applied RLUIPA to kosher food vel non in TDCJ prisons. Baranowski v. Hart, 486 F.3d 112 (5th Cir.2007). In Baranowski, the inmate complained of TDCJ's complete denial of kosher food. Id. at 116-19. Our court held: although failure to provide such food did work a substantial burden on the inmate's religious practice, TDCJ could not be forced to add kosher food to its menu:
Turning to the compelling interest test, Defendants must show that their dietary policy of not providing kosher meals is the least restrictive means of furthering a compelling governmental interest. As the Supreme Court recently explained, "`[c]ontext matters' in the application of that standard." Cutter [v. Wilkinson], 544 U.S. [709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)], (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)). Courts should apply the "compelling governmental interest" 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.'" Id. (quoting S.Rep. No. 103-111, at 10 (1993) 1993 U.S.C.C.A.N. 1892, 1899). RLUIPA, in other words, is not meant to elevate accommodation of religious observances over the institutional need to maintain good order, security, and discipline or to control costs. See Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir.2006).
Id. at 125. This holding was consistent, of course, with the Supreme Court's opinion in Cutter, which held:
We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In [Thornton v.] Caldor, [472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985)] the Court

struck down a Connecticut law that "arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath." 472 U.S. at 709, 105 S.Ct. 2914. We held the law invalid under the Establishment Clause because it "unyielding[ly] weigh[ted]" the interests of Sabbatarians "over all other interests." Id., at 710, 105 S.Ct. 2914, 86 L.Ed.2d 557. 799*799 We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a "compelling governmental interest" standard, see supra, at 2118, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act's 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." Joint Statement 16699 (quoting S.Rep. No. 103-111, at 10, U.S.Code Cong. & Admin.News 1993, pp. 1892, 1899, 1900).
Cutter, 544 U.S. at 722-23, 125 S.Ct. 2113.
Baranowski thus established that maintaining good order and controlling costs were included in such "compelling interests", and held TDCJ's policy of providing no kosher food whatsoever was "the least restrictive means of furthering" those interests. Baranowski, 486 F.3d at 125-26; 42 U.S.C. § 2000cc-1. Despite the majority's attempt to distinguish the cases on their facts, Maj. Opn. at 795-96, Baranowski's admonition that RLUIPA does not allow religious accommodation to overrun considerations of prison administration is general in scope. As discussed, Baranowski held TDCJ did not violate RLUIPA's compelling-interest standard when it provided no kosher-food options. Accordingly, how can it violate that standard now by providing free kosher meals at one unit and making them available for purchase at several others? The majority posits, for example, that the increased cost of providing free kosher meals outside Stringfellow would be relatively minimal. Maj. Opn. at 794-95. Even if correct, that is for prison officials, not our court, to add to the mix for their decision in this instance.
Other courts have similarly determined RLUIPA's compelling-interest standard is more forgiving to prison systems than the court-created, strict-scrutiny standard normally is to government policies. For example, in Hoevenaar v. Lazaroff, the inmate wanted to grow a "kouplock", a small section of hair at the base of the skull that is grown longer than the rest of the person's hair, to conform with his religious practice. 422 F.3d 366, 367 (6th Cir.2005). The Ohio prison warden defended his system's absolute ban on long hair, noting its security interests in preventing inmates from hiding contraband in their hair and eliminating an easy way for recently-escaped inmates to quickly change their appearance (i.e. by cutting their hair). Id. at 369.
The district court ruled: because the inmate was classified only as "medium security" and in bad health, his kouplock was unlikely to pose a security threat; and the warden should have taken that into account in applying the hair-length rule to him. Id. at 368. The Sixth Circuit reversed because the district court "did not give proper deference to the opinions of...

veterans of the prison system". Id. at 371. When analyzing a RLUIPA claim, courts must accord "requisite deference to the expertise and experience of prison officials" in their approach to the prison system's compelling interests and the appropriate means of achieving them. Id.
This more deferential standard is a far cry from court-created strict scrutiny, in which the whole point is for the court to apply its own judgment to determine whether a government policy is sufficiently 800*800 narrowly tailored to a truly compelling interest. See Johnson v. California, 543 U.S. 499, 512-13, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). In this context, the summary judgment record demonstrates there is no genuine dispute of material fact that necessitates the remanded issues.
Nevertheless, the majority has impermissibly substituted its judgment for that of the professionals at TDCJ, including implicitly accepting an inmate's assessment of whether granting his wishes poses a security problem. Moussazadeh contends there is no reason to believe what worked at Stringfellow would not work at Stiles, despite TDCJ's having shown the inmates housed at Stiles tend to be far more dangerous than those at Stringfellow. The majority dismisses this clear difference in security situations as a "bare assertion[]", Maj. Opn. at 794, and adopts Moussazadeh's analysis, despite the obvious fact that "a prisoner's view of what promotes prison security is hardly objective". Borzych v. Frank, 439 F.3d 388, 391 (7th Cir.2006) (Easterbrook, J.).
Moussazadeh's alternative solution — that he and other Orthodox Jewish inmates be guaranteed they will never be transferred away from Stringfellow — presents a similarly obvious security concern. Stringfellow is not designed to house TDCJ's most dangerous inmates, and introducing some of those offenders into Stringfellow's environment would change the facility's entire character. Pursuant to the Supreme Court's admonition in Cutter, Moussazadeh's religious diet cannot be elevated above these legitimate security concerns. 544 U.S. at 723, 125 S.Ct. 2113.
Moreover, TDCJ has presented legitimate concerns that granting Moussazadeh special treatment will not end there. For example, the cost and security concerns associated with providing him free kosher meals at one of TDCJ's most dangerous prisons would likely multiply, as "inmates of other faiths would seek similar privileges". Baranowski, 486 F.3d at 118 (quoting testimony of TDCJ official).
These are but a few examples of the legitimate security and cost burdens TDCJ has resolved. The majority should have deferred to the judgment of prison officials on these questions and, accordingly, affirmed the summary judgment.
B.
Moreover, in assessing whether to affirm the summary judgment on the remanded issues, the majority refuses to recognize what truly is at issue. Moussazadeh's disciplinary violations have caused this litigation to drag on. They should be an important factor in affirming the summary judgment.

When housed at Stringfellow, Moussazadeh was given exactly what he seeks now: kosher food provided free of charge in the prison dining hall. He is no longer housed at Stringfellow — not because TDCJ chose to move him away from the kosher kitchen there, but because prison officials found cellular phone parts, cash, an iPod, hand-rolled cigarettes, a lighter, and marijuana in his cell. This major disciplinary infraction, which the majority glosses over, Maj. Opn. at 785-86, 787, downgraded Moussazadeh's security status; as a result, he was no longer eligible for housing at Stringfellow. Therefore, he was moved because of his refusal to follow well-known and necessary prison rules against contraband; yet TDCJ made a special effort to continue accommodating his claimed desire to keep kosher by transferring him to Stiles, where he could buy kosher food.
Once there, Moussazadeh did not reform his behavior in order to improve his security status and earn a transfer back to Stringfellow. On the contrary, his wife smuggled more cellular phone parts to him during a visit to Stiles. Further, even 801*801 though he has been eligible for transfer back to Stringfellow during part of his time at Stiles, as of oral argument for this appeal he had never requested the transfer. At base, Moussazadeh is demanding what he had not even tried to obtain for himself. Worse, he is seeking to undermine the prison system's disciplinary process. The district court recognized this fault on the inmate's part. Yet the majority, in refusing summary judgment to TDCJ, does not consider the conduct a factor in its decision.
The Texas prison system should not be required to choose between: giving up its right to transfer, for disciplinary reasons, inmates who keep kosher; or incurring financial and security hardships in order to accommodate, even more robustly than it already does, such inmates when they commit disciplinary violations. Our precedent is unequivocal in holding RLUIPA is not meant to impose such hardships on prison officials' ability to perform their difficult and dangerous jobs. Baranowski, 486 F.3d at 125.
III.
Consistent with RLUIPA, proper deference must be accorded decisions by prison officials. And, Moussazadeh's conduct in prison should result in even more deference being accorded. Unfortunately, the majority does just the opposite. Therefore, I must respectfully dissent from the summary judgment's not being affirmed.
[1] Johnson, 385 F.3d at 521 (holding that a prisoner who suffered similar harassment on multiple occasions had sufficiently exhausted even though he had not filed new grievances at each instance of harassment).
[2] See id.
[3] Id. (citing Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis.2000)).
[4] TDCJ asks us to apply an even narrower reading of Moussazadeh's complaint. It suggests that his original grievance only requested "access" to kosher food. That strained understanding of the complaint does not comport with its clear language. Moussazadeh explicitly requested kosher meals served by the prison kitchen.
[5] See, e.g., Robinson v. Wheeler, 338 Fed.Appx. 437, 438 (5th Cir.2009) (upholding dismissal for lack of exhaustion where prisoner was told that he could re-file a grievance before the suit was initiated); Simkins v. Bridges, 350 Fed.Appx. 952, 953 (5th Cir.2009) (upholding dismissal for lack of exhaustion where prisoner did not appeal denial of his initial grievance as required).

[6] Mayfield v. TDCJ, 529 F.3d 599, 613 (5th Cir.2008) (stating that a RLUIPA inquiry "normally requires two separate assessments, first whether the burdened activity is `religious exercise,' and second whether that burden is `substantial'").
[7] McAlister, 348 Fed.Appx. at 936. See also Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir.2004) ("We recognize that our test requires a case-by-case, fact-specific inquiry to determine whether the government action or regulation in question imposes a substantial burden on an adherent's religious exercise.").
[8] See United States v. Ballard, 322 U.S. 78, 86-87, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) ("Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.").
[9] Moussazadeh's request for reassignment to a different district judge on remand is DENIED. Reassignment is an "extraordinary" remedy that is "rarely invoked." Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir.1997). The district judge has handled this matter capably and without bias, and we are confident she will continue to do so.

 
 2011 WL 4376482 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas,
Galveston Division.
Max MOUSSAZADEH, Plaintiff, v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Defendants.
Civil Action No. G–07–574. |
Sept. 20, 2011.
Attorneys and Law Firms
Anne Wylde Robinson, Allen M. Gardner, James C. Knapp, Jr., Matthew Todd Murchison, Latham and Watkins LLP, Derek L. Gaubatz, The Becket Fund, Eric Christopher Rassbach, Luke William Goodrich, The Becket Fund for Religious Liberty, Washington, DC, for Plaintiff.
Celamaine Cunniff, M. Carol Gardner, Office of the Attorney General, George Baxter Ward, IV, Attorney at Law, Austin, TX, for Defendants.
OPINION ON REMAND
MELINDA HARMON, District Judge.
*1 Although Jewish inmate Max Moussazadeh originally challenged the Texas prison policy of not providing kosher food to Jewish inmates when he filed suit in 2005, the central issue in this case on remand involves the application of the Texas Department of Criminal Justice– Correctional Institutions Division’s (“TDCJ–CID”) Chaplaincy Manual Policy Number 07.03 (rev.2) (“the Policy”), dated April 2007, and signed by Bill Pierce, Director of Chaplaincy Operations. (Docket Entry No. 198–3, pages 12–15). The policy subject at issue, “Judaism: Reassignment Procedures to a Jewish– Designated Unit,” provides for two types of designated Jewish units in TDCJ–CID—an Enhanced Designated Jewish Unit and a Basic Designated Jewish Unit. (Id., page 12). Jewish inmates incarcerated on the Enhanced Designated Jewish Unit, i.e., the Stringfellow Unit, are

provided kosher meals from an on-site kosher kitchen. (Id.). Jewish inmates incarcerated on a Basic Designated Jewish Unit, such as the Stiles Unit, may purchase kosher entrees and other kosher products through the unit commissary. (Id., pages 12–13).
In its Opinion on Dismissal of March 26, 2009, this Court rejected Moussazadeh’s claim that he was not receiving kosher meals on the Stringfellow Unit in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and denied his motion for summary judgment on this ground. (Docket Entry No. 135). The Court found that because Moussazadeh had been transferred off the Eastham Unit, where he had been denied a kosher diet, and transferred to the Stringfellow Unit, where he was provided with a kosher diet, his requests for injunctive and declaratory relief were moot. (Id.). In March 2009, this Court granted the TDCJ–CID defendants’ motion and dismissed Moussazadeh’s complaint as moot. (Docket Entry No. 135). Moussazadeh filed an appeal from this judgment.
On January 6, 2010, TDCJ–CID confirmed that Moussazadeh had been transferred for disciplinary reasons to the Stiles Unit on October 13, 2009.1 Moussazadeh v. Texas Department of Criminal Justice, No.09–40400, Document 0051997970. On February 5, 2010, the Fifth Circuit Court of Appeals remanded the case to this Court. Moussazadeh v. Texas Department of Criminal Justice, No.09–40400 (5th Cir.2010) (unpublished).
The action of this court upon remand of a case by the Fifth Circuit is governed by the “mandate rule,” which is an application of the law of the case doctrine. Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir.1987); see also Vieux Carre Property Owners, Residents and Associates, Inc. v. Brown, 948 F.2d 1436, 1443 (5th Cir.1991). The mandate rule requires the following of a district court, as explained by the Court of Appeals for the Third Circuit, in pertinent part:
[O]n remand for further proceedings after decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.... The rule ensures “careful observation of [the] allocation of authority” established by the three-tier system of federal courts which “is necessary for a properly functioning judiciary.”
*2 Casey v. Planned Parenthood of Southeastern Pa., 14
1

F.3d 848, 857 (3d Cir.1994) (citations omitted).
In this case, the Fifth Circuit issued the following mandate:
The district court dismissed this case as moot. Since that time the conditions and treatment about which this prisoner complained have substantially changed, and these changes affect the issues before us. Moreover, before we can address the merits of this appeal, there are matters to be brought before the district court that must be addressed by it. We therefore remand for additional proceedings to allow the parties and the district court to further develop the record.... In any event, once the district court has ruled, the parties should advise the clerk of this court whether this appeal has or has not been mooted by the district court’s actions.
(Docket Entry No. 145).
A claim is moot when the parties are no longer “adverse parties with sufficient legal interests to maintain the litigation.” DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir.2011) (quoting Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009), quoting United States v. Lares–Meraz, 452 F.3d 352, 354 (5th Cir.2006) (per curiam), aff’d ––– U.S. ––––, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011)). “ ‘[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice ... A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ “ Sossamon, 560 F.3d at 325 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Embracing the principles of the mandate rule and taking into consideration that Moussazadeh’s transfer to the Stiles Unit during the pendency of the appeal have made it less than clear that the challenged conduct might reasonably be expected to recur, the Court presumes that Moussazadeh’s request for injunctive relief, ordering defendants TDCJ–CID, Brad Livingston, and David Sweeten (“TDCJ–CID defendants”), to provide him with a nutritionally sufficient kosher diet per RLUIPA, presents a live case and controversy and therefore, is no longer moot. The Court makes no other presumptions or

amendments with respect to all other issues addressed in its Opinion on Dismissal, except as noted herein.
To develop the record per the appellate court’s mandate and address the present claim, the Court ordered the parties to conduct discovery on three specific issues and to submit supplemental dispositive motions. (Docket Entry No. 152). See U.S. v. Bell Petroleum Servs., Inc., 64 F.3d 202, 204 (5th Cir.1995) (noting “[w]here further proceedings are contemplated by an appellate opinion, the district court retains the discretion to admit additional evidence”). The three issues designated by the Court are, as follows:
1. Whether the failure to provide Moussazadeh with kosher meals at the Stiles Unit poses a substantial burden on his religious practices under Baranowski v. Hart, 486 F.3d 112 (5th Cir.2007);
*3 2. Whether TDCJ’s decision not to provide kosher meals at prison units other than the Stringfellow Unit is the least restrictive means of furthering a compelling government interest; and,
3. Whether Moussazadeh is entitled to a guarantee that he will receive kosher meals for the duration of his seventy-five year prison sentence.
(Docket Entry No. 152). Pending are Moussazadeh’s and TDCJ–CID defendants’ supplemental cross-motions for summary judgment (Docket Entries No. 198, No. 199) and their responses to the same. (Docket Entries No.200, No.201, No.202, No.204, No.205). The Department of Justice has also filed a Statement of Interest (Docket Entry No.211), to which TDCJ–CID defendants have filed a Response in Opposition. (Docket Entry No.221).
For the reasons to follow, the Court REAFFIRMS its finding that Moussazadeh’s requests for injunctive and declaratory relief are moot and AMENDS the Opinion on Dismissal of March 26, 2009, by granting the TDCJ–CID defendant’s supplemental motion for summary judgment and denying Moussazadeh’s supplemental motion for summary judgment.
I. EVIDENTIARY ISSUES
Both parties raise objections to the summary judgment evidence. Moussazadeh moves to strike three documents, i.e., an errata sheet and two affidavits, which the TDCJ– CID defendants proffered as summary judgment evidence. (Docket Entry No.203). TDCJ–CID defendants move to strike two expert affidavits attached to
2

Moussazadeh’s response to defendant’s motion for summary judgment. (Docket Entry No.206).
A. Moussazadeh’s Motion to Strike
Moussazadeh indicates that he sought discovery of TDCJ–CID commissary policies with respect to the spending limits imposed on inmates. (Docket Entry No.203, pages 1–2). TDCJ–CID defendants produced the latest version of the Chaplaincy Manual, which provides that inmates may purchase kosher entrees and products through the unit commissary, and the Commissary Manual, which sets monetary limits on an inmate’s ability to purchase most items, including food, at the unit commissaries. (Id.). Moussazadeh asserts that according to TDCJ policy, inmate spending limits are based upon the inmate’s security classification and neither manual explicitly exempts kosher entrees or other religious dietary purchases from the spending limits. (Id., page 2).
TDCJ–CID defendants’ designated witness, Allison Dunbar of TDCJ’s Office and Budget, attested by deposition to questions regarding the commissary policy as found in the November 2004 Offender Orientation Handbook. (Docket Entries No.198–50, page 24; No.207– 1, pages 6–7). Moussazadeh claims that Dunbar’s testimony “conclusively established that kosher meals are not, at least under TDCJ’s current policy, exempted from commissary spending limits.” (Docket Entry No.203, page 3). Moussazadeh complains that two days before dispositive motions were due, TDCJ–CID defendants “produced an errata sheet to the Dunbar deposition attempting to reverse all of her substantive answers on the commissary spending limits.” (Id.). He also complains about the timeliness of the errata sheet. (Id., pages 5–7).
*4 Federal Rule of Civil Procedure 30(e)(1) allows a deponent to make changes in “form or substance” to the deposition. Rule 30(e) (1) states, the following in pertinent part:
On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
FED. R. CIV. P. 30(e)(1). The Fifth Circuit has not

addressed the scope of permissible substantive corrections to a deposition under Rule 30(e) and courts have taken a variety of approaches. The traditional view is that Rule 30(e) permits a deponent to change deposition testimony by timely corrections, even if they contradict the original answers, giving reasons. See, e.g., Eicken v. USAA Fed. Savings Bank, 498 F.Supp.2d 954, 961–62 (S.D.Tex.2007). Other courts apply the analysis used in the “sham-affidavit” rule to Rule 30(e) corrections. This approach allows such corrections if the deponent can provide a reason showing that the changes were not simply “purposeful rewrites tailored to manufacture an issue of material fact.” Hambleton Bros. Lumber Co. v. Balkin Enterprises, 397 F.3d 1217, 1225 (9th Cir.2005). This Court has rejected a strict approach to changes under rule 30(e) in favor of a more flexible approach. “The Rule allows changes in substance for legitimate reasons, such as to correct a misstatement or an honest mistake. The more flexible approach allows for legitimate corrective changes while implementing adequate safeguards to prevent abuse.” See Devon Energy Corp. v. Westacott, Civil Action No.H–09–1689, 2011 WL 1157334 at *6 (S.D.Tex. Mar.24, 2011).
Dunlap’s errata sheet reflects a correction to her testimony regarding her understanding of the inmate’s spending limit with respect to kosher food as stated in the Offender Orientation Handbook, and not the Chaplaincy Manual or the Commissary Handbook. Her corrected testimony affirmatively states that an inmate may purchase a kosher meal any day and that the purchase of both kosher Passover and kosher non-Passover meals do not apply towards the offender’s commissary spending limit. (Docket Entry No.203–1, page 37). Dunbar indicates that the corrections were necessary due to her misunderstanding of the kosher, non-Passover meals counting towards the offender’s commissary spending limit. (Id.).
Contrary to Moussazadeh’s claim, the record does not show that Dunbar conclusively or unambiguously confirmed the policy of counting kosher purchases toward the inmate’s commissary spending limit in her original deposition testimony. (Docket Entry No.203, page 2). Instead, her original deposition testimony reflects that she stipulated to her uncertainty about the offender’s commissary spending limits with respect to kosher, nonPassover meals.2 (Docket Entry No.207–1, pages 6–7). Although Dunlap’s correction to her deposition is a change in substance, it does not squarely contradict her previous answers. Dunlap’s change is permissible because she has stated a reason and given supporting details. Dunlap’s original deposition testimony, however, will remain as part of the record.
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*5 Moussazadeh also complains of two affidavits submitted by Suzanne Vaughn, the Program Supervisor for the Commissary and Trust Fund Department. (Docket Entry No.203, page 1). TDCJ–CID defendants contend that Vaughn was not disclosed as a Rule 30(b)(6) witness and her affidavits directly contradict Dunlap’s sworn testimony and TDCJ’s official documents and therefore, are sham affidavits. (Id ., page 1).
A party may not create a genuine issue of material fact with an affidavit that contradicts prior deposition testimony. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136–37 n. 23 (5th Cir.1992). When an affidavit is impeached by prior sworn testimony without sufficient explanation, the court must view that affidavit with profound skepticism. See Herrera v. CTS Corp., 183 F.Supp.2d 921, 928 (S.D.Tex.2002) (citation omitted). Indeed, it is within the court’s discretion to disregard an affidavit altogether should the court determine that it is dealing with a “sham affidavit.” See Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.2000) (noting that the utility of summary judgment would be greatly diminished were courts unable to screen out “sham issues of fact”). Nevertheless, when an affidavit merely supplements or clarifies rather than contradicts prior sworn testimony, a court may consider that affidavit when evaluating genuine issues in a motion for summary judgment. S. W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir.1996).
In an affidavit dated November 8, 2010, Vaughn testified “that kosher entrees are coded as to not affect an offenders spend period balance.” (Docket Entry No.203– 1, page 39). In an affidavit dated November 24, 2010, Vaughn certified that “kosher food items are sold at all TDCJ commissaries, and such items are available year round to the offender population at all units”; she further attested that “[p]urchase of the Kosher entrees listed in the price list, under the header of Kosher Items, ... and Passover Kosher pre-packaged meals and food items are not counted against the offender’s commissary spending limit.” (Id., page 41). Vaughn’s affidavits do not contradict the Chaplaincy or Commissary Manuals. The affidavits also appear to substantiate Dunlap’s errata sheet and therefore, are not subject to being stricken as sham affidavits. (Docket Entry No.203–1, pages 39, 41).
Moussazadeh further complains that Dunlap’s errata sheet should be stricken as untimely filed because TDCJ–CID defendants failed to submit any errata to the court reporter within the time agreed to by the parties. (Docket Entry No.203, page 6). The record reflects that Dunbar was deposed on September 29, 2010. (Docket Entry No.203– 1, pages 26, 30). The parties agreed at that time that she had 45 days “per agreement of counsel after being

notified by the officer that the transcript is available for review by the witness and if there are any changes in the form or substance to be made, then the witness shall sign a statement reciting such changes and the reasons given by the witness for making them.” (Id., page 33). On October 13, 2010, the parties were notified that Dunlap’s deposition testimony was ready for review. (Docket Entry No.203–1, page 45). On November 19, 2010, Dunlap’s errata sheet was signed and notarized. (Docket Entry No.203–1, page 36). On November 30, 2010, defendants mailed the original errata sheet to the court reporter, confirming the documents they sent to the reporter on November 29, 2010, via email. (Id., page 35). Defendants argue that their failure to mail the errata sheet to insure its arrival on time, rather than three days late, is excusable neglect because the deadline to review the deposition expired on Saturday, November 27, 2010, during the Thanksgiving holiday weekend. (Docket Entry No.207, page 3). The Court agrees. Moussazadeh’s Opposed Motion to Strike (Docket Entry No.203) is DENIED.
B. TDCJ–CID Defendants’ Motion to Strike
*6 TDCJ–CID defendants move to strike Moussazadeh’s Exhibits 35 and 36, i.e., the affidavit testimony of experts Rabbi Moshe Heinemann and George Sullivan, attached to Moussazadeh’s Response to TDCJ–CID defendants’ supplemental Motion for Summary Judgment. (Docket Entry No.206, pages 1–2). TDCJ–CID defendants contend that both witnesses clearly identified themselves as testifying experts and offered their opinions in their respective declarations but Moussazadeh failed to identify either affiant as an expert in its Disclosures to TDCJ–CID defendants as required by Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure.
Moussazadeh argues that Rule 26(a)(2)(A) does not require the parties to disclose expert witnesses before the start of summary judgment briefing. (Docket Entry No.208, page 3). Rule 26 of the Federal Rules of Civil Procedure mandates that a party “disclose to the other parties the identity of any witness it may use at trial to present” expert testimony. FED. R. CIV. P. 26(a)(2)(A). Rule 26(a)(2)(C) provides that the deadline to disclose expert testimony, absent a stipulation or court order, is “at least 90 days before the date set for trial.” In this case, the Court did not stipulate or order when the parties were to disclose the identity or testimony of expert witnesses. (Docket Entry No. 185). The Court did not set a trial date because the Fifth Circuit did not vacate the judgment of this Court but remanded the case for further findings.
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This Court, however, upon a joint motion by the parties, ordered that “[d]iscovery shall be completed by October 15, 2010.” (Docket Entry No. 185). On November 8, 2010, the Court granted another Joint Motion to Extend Dispositive Motions Deadlines. (Docket Entry No. 194). In such Order, the Court emphatically noted that “[t]he case is now more than five years old; discovery has ceased. Therefore, the deadlines sought and entered are firm.” (Id.). The parties each filed a motion for summary judgment on December 10, 2010. (Docket Entries No. 199, No.200).
Notwithstanding the firm deadline and the cessation of discovery, Moussazadeh indicates that he sought out the declarations from these two experts because the TDCJ– CID defendants allegedly raised “a slew of new arguments and factual assertions” in its Second Motion for Summary Judgment. (Docket Entry No.208, pages 1– 2) (emphasis added). Moussazadeh did not file a motion to reopen discovery but engaged in discovery in violation of the Court’s unambiguous order.3
“Control of discovery is committed to the sound discretion of the trial court and its discovery rulings will be reversed only where they are arbitrary or clearly unreasonable.” Mayo v. Tri–Bell Industries, Inc., 787 F.2d 1007, 1012 (5th Cir.1986). “Generally, a ruling that denies a party an adequate opportunity to discover facts to oppose a motion for summary judgment is unreasonable if summary judgment is subsequently entered against that party.” Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 382 (5th Cir.1987). However, Rule 37(b)(2) of the Federal Rules of Civil Procedure grants the district court discretion to exclude evidence due to a party’s noncompliance with a discovery order. See Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir.1996). The Fifth Circuit has enunciated a four-part test for the consideration of exclusion of evidence pursuant to Rule 37(b)(2): “(1) the explanation, if any, for the party’s failure to comply with the discovery order; (2) the prejudice to the opposing party of allowing the [evidence]; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of [the evidence].” See id.
*7 Moussazadeh proffers no explanation for his failure to move to reopen discovery. TDCJ–CID defendants most certainly are prejudiced by the evidence proffered by the experts. Moussazadeh acknowledges that it attached such expert opinion affidavit testimony to rebut TDCJ–CID defendants’ contention that costs and security were compelling government interests under RLUIPA for denying Moussazadeh a kosher meal.4 (Docket Entry No.201, pages 23–25, 27). This case has been pending for more than five years and a continuance at this stage of

proceedings would only result in additional delay and unnecessary expense.
Accordingly, TDCJ–CID defendants’ Motion to Strike (Docket Entry No.206) is GRANTED. The Court ORDERS that Moussazadeh’s Exhibits 35 and 36 attached to Moussazadeh’s Opposition to TDCJ–CID defendants’ Second Motion for Summary Judgment (Docket Entry No.201–2, pages 12–32) be STRICKEN from the record.
II. SUMMARY JUDGMENT
The parties have filed cross-motions for summary judgment, responses to summary judgment motions, and replies in support of summary judgment motions. (Docket Entries No.198, No.199, No.200, No .201, No.204, No.205). In addition, the United States Department of Justice has submitted a Statement of Interest of the United States (Docket Entry No.211), to which TDCJ–CID defendants have filed a Response in Opposition. (Docket Entry No.221).
A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden falls on the movant to identify areas essential to the nonmovant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). If the moving party fails to meet its initial burden, the motion must be denied, regardless of the adequacy of any response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Moreover, if the party moving for summary judgment bears the burden of proof on an issue, either as a plaintiff or as a defendant asserting an affirmative defense, then that party must establish that no dispute of material fact exists regarding all of the essential elements of the claim or defense to warrant judgment in his favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir.1986) (the movant with the burden of proof “must establish beyond peradventure all of the essential elements of the
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claim or defense to warrant judgment in his favor”) (emphasis in original).
*8 Once the movant meets its burden, the nonmovant 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 323–24. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party must produce evidence upon which a jury could reasonably base a verdict in its favor. Anderson, 477 U.S. at 248. To do so, the nonmovant must “go beyond the pleadings and by [its] own affidavits or by depositions, answers to interrogatories and admissions on file, designate specific facts that show there is a genuine issue for trial.” Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 536 (5th Cir.1998). Unsubstantiated and subjective beliefs and conclusory allegations and opinions of fact are not competent summary judgment evidence. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Nor are pleadings summary judgment evidence. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1046 (5th Cir.1996). The nonmovant cannot discharge his burden by offering vague allegations and legal conclusions. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992). Nor is the court required by Rule 56 to sift through the record in search of evidence to support a party’s opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998).
Nevertheless, all reasonable inferences must be drawn in favor of the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). Furthermore, the party opposing a motion for summary judgment does not need to present additional evidence, but may identify genuine issues of fact existing in the summary judgment evidence produced by the moving party. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 198–200 (5th Cir.1988). The nonmoving party may also identify evidentiary documents already in the record that establish specific facts showing the existence of a genuine issue. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990).
A. Procedural Objections
1. Failure to File Amended Complaint

TDCJ–CID defendants move for summary judgment because Moussazadeh has not filed an amended complaint asserting claims that reflect his present circumstances, which differ greatly from the circumstances to which he was subjected when he filed his original complaint in 2005. (Docket Entry No.198, pages 16–17). Moussazadeh contends he is not required to file an amended complaint because the issue raised in his original complaint, i.e., the denial of kosher food, has not changed. (Docket Entry No.201, pages 55–56).
The record shows that after the case was transferred to this Court, Moussazadeh moved to amend his pleading with a claim that TDCJ had refused to guarantee that he would receive kosher meals if he was transferred off the Stringfellow Unit. (Docket Entry No. 117). The Court found that Moussazadeh’s request for a permanent injunction in his original complaint, requiring TDCJ–CID defendants to provide him with a nutritionally sufficient kosher diet, sufficiently incorporated this claim and denied Moussazadeh’s Opposed Motion for Leave to File an Amended and Supplemental Complaint. (Docket Entry No. 135, page 11). With that in mind, the Court framed the issues on remand and allowed discovery on the same. (Docket Entry No. 152). Although his present circumstances differ greatly from those in 2005, the procedural posture of this case does not require that Moussazadeh amend his complaint.
2. Exhaustion of Administrative Remedies
*9 TDCJ–CID defendants also move for summary judgment because Moussazadeh has failed to exhaust his administrative remedies regarding kosher meals. (Docket Entry No. 198, pages 13–15). The uncontroverted record shows that Moussazadeh has not filed any grievances while at the Stiles Unit complaining that the Stiles Unit kitchen has not served him with kosher food, that the menu options of regular, pork-free, or meat-free meals do not meet his religious practices, or that the kosher items for purchase through the unit commissary are inadequate or prevent him from practicing his religious beliefs. (Docket Entries No.198–11; No.198–12). In fact, Moussazadeh has not submitted any grievances regarding religious services or kosher meals while incarcerated at the Stiles Unit. (Docket Entry No. 198–14).
Moussazadeh contends that he is not required to file additional grievances with respect to the denial of kosher food because he exhausted his administrative remedies in July 2005, while on the Eastham Unit, when his grievances regarding kosher meals were denied. (Docket
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Entry No.201, pages 52–53). In his original complaint of October 12, 2005, Moussazadeh stated that he complained of the denial of kosher meals in his Step 1 Grievance, as follows:
I am a jewish inmate. My beliefs state that I must eat kosher foods. I am born and raised jewish and both of my parents are jewish. Since I have been in the prison system, I have been forced to eat non kosher foods. All of my life my family has kept a kosher house hold. I feel that I am going against my beliefs and that I will be punished by God for not practicing my religion correctly. * * * In my requests I asked that I be allowed to receive kosher meals because it is part of my religious duty. * * * I am asking that you please grant me access to kosher meals in the prison dining hall.
(Docket Entry No. 1, page 5).
TDCJ–CID defendants claim that Moussazadeh’s 2005 grievance regarding the lack of kosher food at the Eastham Unit does not exhaust his administrative remedies as to any complaint he has regarding the Stiles Unit and does not address an on-going violation because Moussazadeh was receiving a kosher diet supplied by a kosher kitchen on the Stringfellow Unit from May 27, 2007, to October 13, 2009. (Docket Entry No. 198, page 14).
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that “[n]o action shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Section 1997(e) does not say how specific a prisoner’s grievances must be, but that as a general rule, courts typically use a standard according to which a grievance must give prison officials “fair notice” of the problem that will form the basis of the prisoner’s suit. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir.2004). In determining how much detail is required, a court must interpret the exhaustion requirement in light of its purposes, including the goal of giving officials time and opportunity to address complaints internally. Id. at 516 (citing Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)).

*10 An inmate who is subjected to repeated or continued abuse need not continue to file grievances about the same issue. Id. at 521 (citing Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis. June 7, 2000) (holding that when inmates have filed a grievance regarding a prison policy, they need not file grievances regarding subsequent incidents in which the policy is applied)). Moreover, TDCJ policies direct prisoners not to file repetitive grievances about the same issue and threaten sanctions for excessive use of the grievance process. (Id.).
A grievance filed in response to one particular incident does not automatically exhaust claims that arise from future incidents of the same general type. Id. at 521, n. 13. To exhaust administrative remedies, an inmate must file additional grievances for future incidents that reflect a different problem. Id.
At the time Moussazadeh filed his original complaint, TDCJ provided Jewish inmates a choice between porkfee, meat-free, and regular diet trays. (Docket Entry No. 1, page 4). In April 2007, TDCJ–CID’s policy changed. Chaplaincy Manual Policy Number 07.03, established the Jewish Designated Units, which provide inmates with an opportunity to receive kosher meals. (Docket Entry No.198–3, pages 12–15). In May 2007, Moussazadeh was transferred to the Stringfellow Unit, where he was provided with kosher meals from an on-site kosher kitchen. (Docket Entry No.75). Thereafter, he was transferred for disciplinary reasons to the Stiles Unit, where prepackaged kosher food is available for purchase.
After Moussazadeh was transferred off the Eastham Unit, he was subjected to a different dietary policy and to circumstances that differed greatly from the policy and circumstances, to which he was subjected on the Eastham Unit. While the core issue with respect to his request for a permanent injunction remains, the circumstances that he has faced on the Stringfellow and the Stiles Units give rise to a different set of problems than those he faced on the Eastham Unit. Without filing a grievance complaining about the availability of kosher food on the Stiles Unit, Moussazadeh did not give TDCJ officials fair notice and the opportunity to address his complaint about this particular accommodation. See Cutter v. Wilkinson, 544 U.S. 709, 723 n. 12, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (citing 42 U.S.C. § 1997e(a) and 42 U.S.C. § 2000cc–2(e) and noting that “[s]tate prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies”).
Because the uncontroverted record reflects that Moussazadeh has not exhausted his administrative
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remedies regarding the revised Chaplaincy Policy and the circumstances with respect to the availability of kosher food on the Stiles Unit, Moussazadeh’s claims regarding the same are subject to dismissal pursuant to 42 U.S.C. § 1997(e).
B. Application of RLUIPA
*11 Alternatively, Moussazadeh’s request for injunctive relief is subject to dismissal because Moussazadeh has not meet his burden to show that TDCJ’s policy with respect to kosher meals at the Stiles Unit poses a substantial burden on his religious practices under Baranowski v. Hart, 486 F.3d 112 (5th Cir.2007).5
RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter, 544 U.S. at 721. RLUIPA does not elevate accommodation of religious observances over an institution’s need to maintain order and safety; nor does it override other significant interests. Id. “Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility [is] free to resist imposition.” Id. at 726.
RLUIPA provides, the following, in pertinent part:
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 government 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 U.S.C. § 2000cc–1(a).
Under RLUIPA, Moussazadeh bears the initial burden of proving that “the challenged government action ‘substantially burdens’ the plaintiff’s ‘religious exercise.’ ” Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599, 613 (5th Cir.2008). The RLUIPA framework requires that a court ask two initial questions: (1) is the burdened activity religious exercise; and (2) is that burden substantial. Id. at 613.

“Religious exercise” is defined broadly as: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A). Under the RLUIPA, a plaintiff must show that the practices the plaintiff requests permission to engage in are religious exercise, i.e, whether “the religious practice[s] at issue [are] important to the free exercise of his religion.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir.2004) (stating that RLUIPA complainant bears burden of proving religious practice is important to free exercise of his religion). This determination requires consideration of the importance of the practice to the plaintiff himself. See Cutter, 544 U.S. at 725, n. 13 (stating that “RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion [but] does not preclude inquiry into the sincerity of a prisoner’s professed religiosity”); Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332 (5th Cir.2009) (stating “[t]he practice burdened need not be central to the adherent’s belief system, but the adherent must have an honest belief that the practice is important to his free exercise of religion”), aff’d ––– U.S. ––––, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011); McAlister v. Livingston, 348 Fed. Appx. 923, 935 (5th Cir.2009) (noting that in this first inquiry, the Court considers the importance of the practice to McAlister himself).
*12 Without question, keeping kosher qualifies as a “religious exercise” for the practice of Judaism under RLUIPA’s definition. Baranowski, 486 F.3d at 124. Defendants note, without contravention, that only about fifteen percent of Jews in America keep kosher, and that the pork-free and meat-free trays offered in each TDCJ– CID Unit would meet most Jewish offenders’ religious dietary needs. (Docket Entry No.198, page 5 n. 8). They concede that such trays would not meet the needs of a strict Orthodox Jewish observant. (Id.).
Moussazadeh claims to be Jewish by birth, heritage, and belief. (Docket Entry No.199, page 15). In his Declaration attached to his supplemental motion for summary judgment, Moussazadeh declares his sincerity with respect to maintaining a kosher practice as follows, in pertinent part:
4. I was born and raised in the Jewish faith and remain a sincere adherent of that faith. Both of my parents are devout practitioners of Judaism. To exercise my faith, I believe that the Jewish laws of kashruth require me to consume an exclusively kosher diet.
5. I will be the first to admit that I am not perfect. I do not always obey all of the commands of my faith as perfectly as I would like, but I sincerely try to consume
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an exclusively kosher diet whenever possible. For example, while housed at the Stringfellow Unit, I consumed the kosher meals offered there, even though they frequently consisted of highly distasteful tofu and other items that were far less appealing than the regular diet. I ate the far less appealing kosher food because that is what my religious beliefs required. In the past, when I have occasionally slipped up and failed to keep kosher, I have always tried to reform my ways and to continue keeping kosher.
6. Although my attendance has not been perfect, I have also sincerely tried to attend Jewish religious services at Eastham, Stringfellow, and Stiles when possible.
(Docket Entry No. 199–2, page 155) (emphasis in original).
TDCJ–CID defendants do not question that Moussazadeh is Jewish according to Jewish law or that he is a sinner. (Docket Entry No.205, page 6). Defendants, however, question the importance of maintaining a kosher practice to Moussazadeh and whether he is an observant Orthodox practitioner (versus a Reform or Conservative practitioner) because “[s]ince his 2005 statement in his grievance regarding his professed belief, Moussazadeh’s actions do not show that he sincerely holds that same belief currently.” (Docket Entries No. 198, page 24; No.205, page 6).
Moussazadeh complains that TDCJ–CID defendants have not questioned his sincerity in over five years of litigation and notes that TDCJ Director of Chaplaincy Operations Billy D. Pierce attested in his deposition that he never questioned whether Moussazadeh was Jewish.6 (Docket Entry No.201, page 21). No ruling regarding the sincerity of Moussazadeh’s religious beliefs has been made in this case, most likely because the sincerity of Moussazadeh’s belief in keeping kosher was not challenged during his incarceration at the Eastham Unit and Stringfellow Unit. The presumption, if any, that his belief was sincere during his incarceration on the Eastham or Stringfellow Unit, however, does not extend indefinitely into the future to vaccinate Moussazadeh from a challenge to his present belief. “[P]rison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Cutter, 544 U.S. at 725 n. 13.
*13 Sincerity of religious belief is not often challenged; therefore, the Fifth Circuit has had little opportunity to address the issue. McAlister, 348 Fed. Appx. at 935 (unpublished per curiam). However, in a non-RLUIPA case where the plaintiff bore the burden of proving the sincerity of belief, the Fifth Circuit considered the

plaintiff’s verbal expression of his belief and his conduct as an outward expression of belief in determining that his belief was sincere. See A.A. ex rel Betenbaugh v. Needville Indep. Sch. Dist ., 611 F.3d 248 (5th Cir.2010) (noting that district court found that Native American had shown that he held deeply religious belief in wearing visibly long hair because he had not cut his hair in ten to eleven years, professed to others why he held such belief, and sought an exemption from school regulation that required him to hide or cut his hair). The Seventh Circuit Court of Appeals also considered several factors in determining the sincerity of the inmate’s belief in its analysis of a RLUIPA claim such as whether the inmate regularly asserted the accommodation based on his religious beliefs and practices and the duration of time over which he sought the accommodation for religious reasons. See Koger v. Bryan, 523 F.3d 789, 797–98 (7th Cir.2008).
Moussazadeh was housed on the Stringfellow Unit from April 27, 2007, to October 13, 2009. His uncontroverted commissary records from September 22, 2008, through September 3, 2009, show that he regularly visited the Stringfellow Unit commissary where he purchased nonkosher food items for consumption even though he was provided with kosher food on the Unit.7 (Docket Entry No.198–20, pages 4–13). The uncontroverted commissary records also show that from November 5, 2009, to May 27, 2010, while Moussazadeh was classified as a G–5 inmate on the Stiles Unit,8 he made commissary purchases twice in November 2009, once in January and February 2010, four times in March 2010, twice in April, 2010, and three times in May 2010. He purchased around $24.00 of goods from the commissary on each occasion, except on November 12, 2009, when he purchased $42.85 of goods, and on March 30, 2010, when he purchased a Passover Meal for $85.00. With the exception of a few personal items, he continued to purchase soft drinks and noodles, a few packages of coffee, cookies, chips, candy, and so forth. (Docket Entry No.198–20, pages 14–17). Except for the Passover Meal and occasional kosher dill pickles, none of the items purchased were denoted as kosher. (Id.).
Moussazadeh indicates in his Declaration that TDCJ regulations prohibited him from spending more than $25.00 every two weeks at the Stiles Commissary because he was classified as G–5 (Docket Entry No.199–2), although he does not dispute the aforementioned record. He claims that this amount includes his personal items; consequently, it was impossible for him to keep kosher by purchasing kosher meals at the commissary. (Id.). Moussazadeh does not claim, and the aforementioned records do not show, that he purchased any kosher meal or item from the Stiles Unit commissary, except for the yearly Passover Meal. (Docket Entry No.198, page 22).
9

He does not indicate that he attempted to purchase kosher food and was denied the same by the alleged spending limitation pursuant to TDCJ–CID policy.
*14 TDCJ–CID defendants also note that Moussazadeh did not request a transfer back to the Stringfellow Unit for religious reasons when he became eligible for such transfer and that he filed no grievances complaining that he was denied kosher meals or any religious practice on the Stiles Unit. (Docket Entry No.198, page 24). They further note that Moussazadeh voluntarily committed major disciplinary violations that resulted in a change of his custodial classification, thereby, depriving him of the opportunity to transfer back to the Stringfellow Unit, where he could freely obtain kosher food. (Id.).
In his response to TDCJ–CID defendants’ summary judgment motion, Moussazadeh downplays the record of his commissary purchases as “a sample” and contends that TDCJ–CID defendants ignore undisputed evidence that keeping kosher is deeply rooted in his heritage, i.e ., he was born and raised Jewish by Jewish parents, who kept a kosher household. (Docket Entry No.201, page 21). Moussazadeh maintains that there is no evidence that he falsely declared a belief in Judaism to gain some special benefit, such as fresh produce and meat products, but that he requested a kosher diet long before TDCJ–CID offered any kosher option. (Id., page 22). Moussazadeh cites as evidence of his sincerity in maintaining a kosher practice his declaration that he suffered hardship for his belief at the Stringfellow Unit, i.e., he ate “less appealing kosher food.” (Id.). Moussazadeh does not, however, refute that he did not maintain an exclusively kosher diet while on the Stringfellow and Stiles Units or that he purchased non-kosher food items for his personal consumption from the unit commissaries. (Id .).
Moussazadeh also claims that he suffered retaliation for his religious beliefs at the hands of prison officials on the Stringfellow Unit, which included anti-Semitic comments, cell searches, and unfounded disciplinary actions. (Id.). In support of this contention, Moussazadeh cites to a letter written by his attorney to the attorney for TDCJ–CID defendants, complaining of the same. (Id.) (citing to Docket Entry No. 109, page 1). The Court notes that Moussazadeh does not allege, and the record does not show, that he grieved these matters to prison officials.
In short, Moussazadeh’s evidence of his sincerity in consuming “an exclusively kosher diet” for religious reasons is that he is Jewish by birth, he was raised in a kosher household, he did not falsely profess his belief in Judaism to gain a benefit, he endured hardship by eating distasteful kosher food on the Stringfellow Unit, he suffered retaliation at the hands of Stringfellow prison

officials for his beliefs and for filing suit, and he is a sincere sinner. (Docket Entries No.199, pages 23–24; No.201, pages 21–23; No.204, page 12). While he professes a sincerity of belief, he proffers no evidence to support his declaration or to show that he maintained an exclusively kosher diet when one was provided.
*15 Moreover, he proffers no evidence to contravene TDCJ–CID’s defendants’ summary judgment evidence, which shows that while on the Stiles Unit, he has not purchased a kosher meal except for the yearly Passover Meal or complained by grievance that kosher meals were not offered by the Stiles Unit kitchen. Nor has he indicated, by an affirmative expression or by his conduct, a desire to return to the Stringfellow Unit where kosher meals are provided. Compare Horacek v. Burnett, Civil Action No.07–11885, 2008 WL 4427825 at *8 (E.D.Mich. Aug.19, 2008) (evidence showed plaintiff passed eligibility test and had chaplain’s recommendation for placement in kosher meal program and that plaintiff submitted affidavits, his own and other Jewish inmates, attesting to the sincerity of his religious beliefs and his active participation in Jewish services, study groups and other religious activities); Terrell v. Montalbano, Civil Action No.7:07–cv–00518, 2008 WL 4679540 at *6 (W.D.Va. Oct.21, 2008) (inmate offered explanation why he ate non-kosher food and showed that he sought alternative food such as the no-meat diet before resuming kosher practice).
Moussazadeh’s conclusory declaration does not demonstrate that his professed religious need for a kosher diet motivates his actions or that he has attempted to reform his ways and return to keeping kosher during his two-year incarceration on the Stiles Unit. Rather, his personal desire to harass defendants with an unnecessary lawsuit took precedence, and he was willing to sacrifice his religious dietary beliefs in favor of this secular pursuit. Indeed, he would be without any access to kosher food to this day had defendants not attempted to accommodate his dietary beliefs.
Accordingly, the Court finds that the TDCJ–CID defendants have shown that Moussazadeh has failed to satisfy the threshold issue in his case and have established Moussazadeh’s lack of sincerity regarding a kosher practice as a matter of law. As Moussazadeh fails to offer competent evidence on which he could prove that his religious dietary beliefs were sincere following his transfer to the Stiles Unit, the Court finds that the TDCJ– CID defendants are entitled to summary judgment as to all of Moussazadeh’s claims in this lawsuit. Absent proof of sincerity, he has no right to accommodation of his religious dietary beliefs under the RLUIPA or injunctive or declaratory relief.
10

III. CONCLUSION
Based on the foregoing, the Court REAFFIRMS its holding that Moussazadeh’s requests for injunctive and declaratory relief from the denial of a kosher diet on the Eastham Unit are moot, for the reasons stated therein. (Docket Entry No.135).
The Court AMENDS its Opinion on Dismissal of March 26, 2009, (Docket Entry No. 135) with the following ORDERS:
1. Moussazadeh’s Opposed Motion to Strike (Docket Entry No.203) is DENIED.
2. TDCJ–CID defendants’ Motion to Strike (Docket Entry No.206) is GRANTED. Moussazadeh’s Exhibits 35 and 36 attached to Moussazadeh’s Opposition to TDCJ–CID defendants’ Second Motion for Summary Judgment (Docket Entry No.201–2, pages 12–32) shall be STRICKEN from the record.

Department of Criminal Justice, Brad Livingston, and David Sweeten, is GRANTED. (Docket Entry No. 198). All claims against defendants are DENIED.
4. The supplemental summary judgment motion filed by plaintiff Max Moussazadeh (Docket Entry No. 199) is DENIED.
5. All other pending motions, if any, are DENIED.
6. This case is DISMISSED WITH PREJUDICE.
The Clerk shall provide a copy of this Opinion on Remand to the parties.
Q. Okay. So if an offender has a $25 limit for every two weeks, like a G5 offender, and spent $4.50 on a meal, and it is not Passover, then he could afford roughly five-and-a half-meals over that two-week period. Is that correct?
All Citations
Not Reported in F.Supp.2d, 2011 WL 4376482

*16 3. The supplemental summary judgment motion filed by TDCJ–CID defendants, i.e., the Texas
Footnotes

1

Moussazadeh committed significant major disciplinary violations while incarcerated on the Stringfellow Unit, which resulted in

action by the State Classification Committee to change his custodial classification to G–5, or close custody. (Docket Entries

No.198, pages 3–4; No.198–5, pages 2–13). Because the Stringfellow Unit houses inmates with custodial classifications of G–1 or

trusty status, to G–4 or medium custody, Moussazadeh’s change in custodial classification required the State Classification

Committee to transfer him on October 13, 2009, to the Stiles Unit, which houses G–5 inmates. (Docket Entry No.198–5, page 3).

In November 2010, the Stiles Unit Classification Committee promoted Moussazadeh to a custodial level of G–2 in accordance

with the review required by the TDCJ Classification Policy. (Docket Entry No.198–8, page 3). At that time, Moussazadeh became

eligible for a transfer back to the Stringfellow Unit to participate in the Enhanced Jewish program, which includes receiving

kosher meals. (Docket Entry No.198, page 5–6). TDCJ–CID defendants maintain, without supporting documentation, that

Moussazadeh was not transferred back to the Stringfellow Unit because he asserted that his life was in danger while at the

Stringfellow Unit and thus, a life endangerment investigation was implemented per TDCJ policy. (Docket Entry No.221, n. 3). The

life endangerment claims were not substantiated. (Id.). TDCJ–CID defendants note that on March 18, 2011, Moussazadeh was

found in possession of contraband, and was again reclassified as G–5. (Id.).

2

The transcript of Dunlap’s original deposition testimony regarding spending limits is, as follows, in pertinent part:

A. Yes, unless I misunderstood but—

Q. $4.50 goes into 25 roughly five-and-a half times or three times?

A. Uh-huh.

Q. And once he purchased that, let’s say the fifth meal or sixth meal or wherever we are, he would not be allowed to

purchase any further meals until that two-week period is up. Is that correct?

Q. Sure. This is a two-week limit. Right?

A. Yes.

Q. So once the offender has used up that $25 limit for the two weeks, he has to stop spending at the commissary, and he

can’t start-up again until the next two-week period begins. Is that correct?

A. For non Passover—

11

Q. Yes. A. —kosher meals? Q. Yes, ma‘am. A. I believe that is correct. Q. Okay. Has TDCJ ever considered making an exception for the purchase of meals, basically say that the purchase of any meals, not just on Passover but any kosher meal will not count against the spend period balance? A. Not that I’m aware of, no sir. Q. So TDCJ has never considered extending that Passover exception that we were talking about to include all kosher meal purchases at the commissaries. Is that right? A. Correct. Q. Okay. A. I would like to stipulate I may be mistaken on that. Q. Okay. A. That may be for kosher and Passover meals. Q. Okay. A. The exemption of going towards that limit. Q. Okay. But to the best of your knowledge— A. To the best of my knowledge, it is only Passover. (Docket Entry No.207–1, pages 6–7).

3

Defendants filed their motion for summary judgment on December 10, 2010. (Docket Entry No.198). Rabbi Moshe Heinemann

executed his affidavit on January 7, 2011. (Docket Entry No.201–2, page 19). George Sullivan executed his affidavit on January 17,

2011. (Id., page 32).

4

Moussazadeh offers the affidavit testimony of Rabbi Heinemann to rebut defendants’ challenge to the sincerity of

Moussazadeh’s belief, including Moussazadeh’s purchase of non-kosher commissary items during his incarceration on the Stiles

Unit, and defendants’ contention regarding the use of a microwave oven to heat kosher meals. (Docket Entries No.201, pages

23–25, 40–41, 48–49; No.201–2, pages 12–19). Moussazadeh proffers the affidavit testimony of George Sullivan, an expert in the

management and operations of correctional facilities, to rebut defendants’ “original claim of a compelling security interest in

denying a kosher diet.” (Docket Entries No.201, page 27; No.201–2, pages 21–32).

5

The Court’s first designated issue and the threshold issue in this case is “[w]hether the failure to provide Moussazadeh with

kosher meals at the Stiles Unit poses a substantial burden on his religious practices.” (Docket Entry No. 152).

6

Pierce actually testified that he did not question or look at the sincerity of the inmate professing a religious belief. (Docket Entry

No.201–2, page 10). He attested, “If an offender says that they are Jewish and in Max Moussazadeh’s case, I’ve never questioned

whether he was Jewish or not.” (Id.).

7

The record shows that Moussazadeh visited the Stringfellow Commissary one to four times a month and regularly purchased

twenty-four soft drinks, ten packages of noodles, two packages of coffee, cookies, flour tortillas, and chips, four packages of tuna,

and breakfast foods, and candy. Occasionally, he purchased refried beans, barbeque sauce, ketchup, jalapenos, squeeze cheese,

nuts, pastries, beef tips, and peanut butter. (Docket Entry No.198–20, pages 4–13). The only designated kosher items he regularly

purchased were dill pickles. (Id.). Over this period, Moussazadeh spent from $8.00 to $105.00 on food and a few personal items

per trip. (Id.).

8

On September 22, 2009, plaintiff’s classification was downgraded to G–5 and on October 13, 2009, he was transferred to the

Stiles Unit. (Docket Entry No. 198–8, page 3). Moussazadeh remained at a G–5 custody level until November 2, 2010, when he

was reclassified at G–4. On November 16, 2010, Moussazadeh was upgraded to G–2 custody. (Id.). On March 18, 2011, he was

reclassified as G–5, after he received another major disciplinary case. (Docket Entry No.221, n. 3).

12

 
 2014 WL 897928 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas,
Galveston Division.
Max MOUSSAZADEH, et al, Plaintiffs, v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al, Defendants.
Civil Action No. 3:07–CV–574. |
Signed March 6, 2014.
Attorneys and Law Firms
Anne Wylde Robinson, Allen M. Gardner, Matthew Todd Murchison, James C. Knapp, Jr., Latham & Watkins, Washington, DC, Derek L. Gaubatz, Eric Christopher Rassbach, Luke William Goodrich, The Becket Fund for Religious Liberty, Washington, DC, for Plaintiffs.
Celamaine Cunniff, M. Carol Gardner, Office of the Attorney General, George Baxter Ward, IV, Attorney at Law, Austin, TX, for Defendants.
ORDER
MELINDA HARMON, District Judge.
*1 Plaintiff Max Moussazadeh brought this civil rights suit under 42 U.S.C. § 1983 alleging that Defendants violated his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by denying his requests for kosher meals. On September 20, 2011, the Court granted summary judgment in favor of Defendants (Docket No. 223), prompting an appeal by Plaintiff. On December 21, 2012, the United States Court of Appeals for the Fifth Circuit reversed the grant of summary judgment and remanded the case for further proceedings. (Docket No. 236.) Presently before the Court is Movant David Scott Helfond’s motion to intervene. (Docket No. 239.)
ANALYSIS

Movant Helfond is a Jewish inmate in the custody of the Texas Department of Criminal Justice–Correctional Institutions Division. Since 1985, Helfond has been continuously housed in “Safekeeping” at the Stiles Unit in Beaumont, Texas. Movant seeks to intervene in this case to establish his right to the same accommodations afforded to Plaintiff Moussazadeh. In April 2013, following the second remand of this case from the Fifth Circuit, Moussazadeh was transferred from the Stiles Unit to the Enhanced Jewish Program at the Stringfellow Unit, which provides Jewish religious programming and kosher meals free of charge. Movant asserts that he is similarly situated to Moussazadeh and, therefore, is also entitled to transfer to the Stringfellow Enhanced Jewish Program.1 Defendants have opposed Movant’s request to intervene, asserting that it is untimely and that Movant does not satisfy the other requirements for intervention.
I. Legal Standard
Rule 24(a) of the Federal Rules of Civil Procedure states that, on a timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
Fed.R.Civ.P. 24(a). Because Movant does not cite a specific federal statute, to establish a right to intervene in this case he must satisfy the requirements of Rule 24(a)(2) by showing that: (1) his application for intervention is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and, (4) his interest is inadequately represented by the existing parties to the suit. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984) (en banc ).
II. Timeliness
1

Defendants assert that Movant’s request to intervene should be denied is untimely. The relevant factors for deciding whether a petition to intervene is timely are: (1) how long the intervenor has known or reasonably should have known of his interest in the case, (2) any prejudice to the existing parties caused by any delay between the intervenor’s knowledge of his interest in the case and his motion to intervene, (3) the prejudice to the intervenor if his motion is denied, and, (4) any unusual circumstances. Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996) (citing Stallworth v. Monsanto Co., 558 F.2d 257, 265) (5th Cir.1977)).
*2 As noted by Defendants, the present suit has been pending for over eight years, during which time extensive discovery has been completed, dispositive motions have been filed, and the case has twice gone up to the Fifth Circuit and been remanded for further proceedings. During much of the pendency of this case, Plaintiff Moussazadeh was housed in the Stiles Unit with Movant, making it likely that Movant has been aware of this litigation for quite some time.2 Had Plaintiff been actively seeking Jewish religious accommodations in the Stiles Unit during this time he reasonably should have known about his interest in this case long before he filed his present motion. Movant’s only explanation for waiting so long to assert a right to intervene here is that he only recently became aware of the Fifth Circuit’s second remand of this case. That explanation is unavailing, however, because Movant has not identified anything in the Fifth Circuit’s latest ruling that clarifies Movant’s interest in this case. Thus, it appears that Movant simply slept on his right to intervene and now wishes to jump on the bandwagon based on the Fifth Circuit’s latest ruling.
The remaining timeliness factors also support the conclusion that Movant’s application to intervene is untimely. Defendants assert that if intervention is granted, additional discovery would be necessary to evaluate Movant’s claims because Movant’s “Safekeeping” classification makes him ineligible for housing in the Stringfellow Unit. (Docket No. 241.) Although Movant denies that he would be at risk in the Stringfellow Unit and asks that his “Safekeeping” classification be rescinded, Movant cannot deny that his situation raises unique issues of fact that are not applicable to Plaintiff Moussazadeh and would, therefore, likely warrant additional discovery. (Docket No. 242.) Given the advanced stage of this litigation, Defendants would clearly be prejudiced by having to reopen discovery at this point to investigate Movant’s unique circumstances. On the other hand, it does not appear that Movant will be
Footnotes

significantly prejudiced if his motion is denied. In fact, by pursuing his claims in a new case Movant will not only benefit from any relevant discovery already conducted here, but he can also request additional discovery to refute Defendants’ housing classification argument. Moreover, Movant’s housing classification amounts to an unusual circumstance that undermines his motion to intervene here. In sum, Movant fails to satisfy the first requirement for intervention as of right because his motion is untimely.
III. Other Factors
Turning to the remaining factors relevant to the Rule 24(a)(2) analysis, it does not appear that Movant is so situated that disposition of this action will impair or impede Movant’s ability to protect his interests in this litigation.3 Although Plaintiff undoubtedly has a general interest in the outcome of this litigation, his interest is more than adequately represented by the existing parties to this suit, as demonstrated by the history of this case. Thus, the Court concludes that Movant has not satisfied the requirements for intervention as of right and that permissive intervention under Rule 24(b) is not warranted. Fed.R.Civ.P. 24(b).
ORDER
*3 Accordingly, it is hereby ORDERED that Movant Helfond’s Motion to Intervene (Docket No. 239) is DENIED.
It is FURTHER ORDERED that the parties shall submit a report to the Court within thirty (30) days regarding Plaintiff Moussazadeh’s current status and the parties’ intentions to proceed with this case.
The Clerk of Court will send a copy of this Order to Movant and to the parties.
All Citations
Not Reported in F.Supp.3d, 2014 WL 897928
2

1

Movant apparently believes that Plaintiff’s transfer resulted directly from the Fifth Circuit’s remand of this case for further

proceedings, but, the Fifth Circuit did not expressly mandate Moussazadeh’s transfer. Defendants have not offered any

explanation for Plaintiff’s transfer but do state that Plaintiff was previously housed in the Stringfellow Enhanced Jewish Unit

before being transferred to the Stiles Unit in 2009, following a major disciplinary conviction. Defendants also state that Plaintiff

became eligible for parole review in November 2013, although it is unclear whether this had any bearing on his transfer. (Docket

No. 240.)

2

Movant does not state how or when he first became aware of this litigation, but he does state that despite his “Safekeeping”

classification he has extensive interaction with general population inmates in the Stiles Unit “in the walkways, chow hall,

education department, general library, law library, chapel, infirmary and job assignments.” (Docket No. 241 at 7.)

3

Movant’s argument that being forced to file a new case will deprive him of the benefit of the Fifth Circuit’s rulings here is

mistaken. Nothing prohibits Plaintiff from asserting the precedential effect, if any, that the Fifth Circuit’s rulings here might have

on a new case.

3

 
 709 F.3d 487 (2013)
Max MOUSSAZADEH, Plaintiff-Appellant, v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Brad Livingston, Solely in His Official Capacity as Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; David Sweeten, Solely in His Official Capacity as Warden of the Eastham Unit of the Texas Department of Criminal Justice, Correctional Institutions Division,
Defendants-Appellees.
No. 09-40400.
United States Court of Appeals, Fifth Circuit.
February 20, 2013.
488*488 Luke William Goodrich, Eric C. Rassbach, Becket Fund for Religious Liberty, Matthew Todd Murchison, Anne Wylde Robinson, Michael J. Songer, Latham & Watkins, L.L.P., Washington, DC, for Plaintiff-Appellant.
Arthur Cleveland D'Andrea, Office of the Attorney General, Office of the Solicitor General, Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendants-Appellees.
Joshua D. Hawley, Hogan Lovells US, L.L.P., Washington, DC, for Aleph Institute, Jewish Prisoner Services International, National Prison Project of the ACLU, Amici Curiae.
Martin Jonathan Siegel, Law Office of Martin J. Siegel, P.C., Houston, TX, for American Jewish Committee, American Jewish Congress, Amici Curiae.
Kelly Anne Laudenslager, Wheeler, Trigg & O'Donnell, L.L.P., Denver, CO, for American Civil Liberties Union, American Civil Liberties Union of Texas, Amici Curiae.
Daniel Mach, American Civil Liberties Union, Program on Freedom of Religion & Belief, Washington, DC, for American Civil Liberties Union, Amicus Curiae.
Rebecca L. Robertson, Houston, TX, for American Civil Liberties Union of Texas, Amicus Curiae.

Michael Alex Sink, Perkins Coie, L.L.P., Denver, CO, for American Islamic Congress, American Jewish Congress, Sikh American Legal Defense and Education Fund, United Sikhs, Amici Curiae.
Marc D. Stern, American Jewish Committee, New York, NY, for American Jewish Congress, Amicus Curiae.
Before KING, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:
The court having polled at the request of a member of the court (see Internal Operating Procedure accompanying 5TH CIR. R. 35, "Requesting a Poll on Court's Own Motion"), and a majority of the judges who are in regular active service and not disqualified not having voted in favor (see FED. R.APP. P. 35(a) and 5TH CIR. R. 35.6), rehearing en banc is DENIED.[*]
In the en banc poll, 7 judges voted in favor of rehearing (Judges Jolly, Jones, Clement, Prado, Owen, Southwick, and Higginson), and 8 judges voted against rehearing (Chief Judge Stewart and Judges King, Davis, Smith, Dennis, Elrod, Haynes, and Graves).
E. GRADY JOLLY, Circuit Judge, dissenting from denial of rehearing en banc:
On remand, the district court should, as I know it will, recognize that Baranowski v. Hart is the earlier precedent and to the 489*489 extent that the panel opinion is deemed to conflict with Baranowski, Baranowski controls. 486 F.3d 112 (5th Cir.2007). Failing to begin and end its analysis with Baranowski, the panel opinion appears to have sidestepped the rule that one panel cannot overrule another. The panel opinion, however, also contains other grave errors.
To set the stage, this appeal involves the Texas Department of Criminal Justice's ("TDCJ") efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ's establishment of a "Jewish prison unit" with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions — committed by Moussazadeh — that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison's commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison.
The case further presents a panel decision that ignores this context, avoids precedent, attempts to establish new requirements for Texas prisons, and gives a deaf ear to the concerns of the Texas prison officials, all notwithstanding a strong dissent by Judge Barksdale. At issue is an important federal statute, The Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., and the question of the extent to which TDCJ is required to address the religious dietary requests of prisoners.

The panel, however, in deciding the application of the statute, appears to have been blind to the principle that "[c]ontext matters." Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (internal quotation marks omitted). I elaborate on the importance of context in deciding the case, among other matters, in what follows.
I.
A few basic facts are necessary to recount. While serving a seventy-five year sentence for murder, inmate Max Moussazadeh filed a series of grievances with the TDCJ complaining that, while incarcerated, he was not provided kosher food in violation of the tenets of Jewish kashrut (dietary laws). TDCJ denied his grievances.[1] In response, Moussazadeh sued TDCJ in federal court, alleging substantially the same facts as in his grievances. He argued that he was a sincere adherent of the Jewish faith and that a fundamental tenet of his religion requires that believers eat food prepared and served in a kosher manner. He based his federal claims on RLUIPA, which generally forbids governmental entities from "impos[ing] 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." 42 U.S.C. § 2000cc-1(a). Of relevance, however, is Moussazadeh's frequent purchase and consumption of food items like coffee and soda from his prison's commissary. Such items were not certified as kosher, and certain adherents of Judaism would 490*490 consider consuming them to be a violation of kashrut.
Nevertheless, TDCJ elected to try to settle outside of court. In settlement negotiations, Moussazadeh's demands were accommodated.[2] TDCJ began offering kosher food, free of charge, in the dining hall at the Stringfellow Unit, the jail facility where Moussazadeh resided.[3] But somehow settlement attempts were still unsuccessful, and Moussazadeh failed to abandon his claim. Later, Moussazadeh was transferred to a separate facility, the Stiles Unit, after committing a major infraction.[4] The Stiles Unit offered kosher food for purchase at the inmates' commissary but did not offer free kosher food like at Stringfellow. Meanwhile, Moussazadeh's suit proceeded.
The district court granted summary judgment for TDCJ on two grounds: Moussazadeh's claim was barred by the Prison Litigation Reform Act ("PLRA"), which requires inmates to exhaust their administrative remedies before seeking judicially granted relief, and, under RLUIPA, Moussazadeh could not proceed because he was not sincere in his religious beliefs, so there was no substantial burden on his religious exercise. On appeal, the panel majority reversed the grant of summary judgment and remanded the case for further proceedings; Judge Barksdale, disagreeing, submitted a compelling dissent, which I draw on extensively.
II.
In Baranowski v. Hart, this court decided the question presented in Moussazadeh.486 F.3d 112. Baranowski expressly held that RLUIPA did not require TDCJ to furnish kosher food. The majority's attempt to neutralize Baranowski, therefore, is unfaithful to its holding that a prison's failure to provide kosher food is "related to maintaining good order and controlling costs and, as such, involves compelling governmental interests." Id. at 125. The majority

attempts to cabin Baranowski by referring to the latter case's "thin record," see Moussazadeh v. Tex. Dep't. of Criminal Justice, 703 F.3d 781, 795 (5th Cir.2012), but this is a collateral attack on the opinion of the prior court, since Moussazadeh addresses the identical question: whether RLUIPA requires TDCJ to provide Jewish prisoners with free kosher food. Also important for our purposes is the testimony of the Director of the TDCJ Chaplaincy Department, who in Baranowski stated 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 a single inmate or group of inmates preferential 491*491 treatment." 486 F.3d at 117. The majority opinion in Moussazadeh asserts that "[c]ircumstances since Baranowski have changed," see 703 F.3d at 795, but fails to explain (1) if and why the Director's concerns are now illegitimate, (2) why the TDCJ's changed kosher policy requires us to overrule Baranowski, or (3) why providing kosher meals would not "put a great strain on an already strained system, and would [not] raise resentment among other inmates because payments for kosher meals would of necessity come out of the general food budget for all inmates." Baranowski, 486 F.3d at 118.
III.
As mentioned above, the majority has flown by the Supreme Court's directive that "[c]ontext matters" in RLUIPA cases. Cutter, 544 U.S. at 723, 125 S.Ct. 2113(internal citations omitted). Here, it is imperative for us to see that the "context matters" when the right claimed arises inside particular and different prison circumstances; the "context matters" when federal courts have no expertise in handling the logistics and safety concerns of prisons; the "context matters" when Texas expended considerable sums to accommodate this inmate — and all Jewish inmates — by constructing a kitchen that cooked kosher food and effectively establishing a Jewish prison — even when, under this court's precedent, it was not required to do so, Baranowski, 486 F.3d at 125; the "context matters" when, to make this accommodation, which apparently now is demanded for a second prison, Texas had to find space in an already crowded facility, install new utilities, acquire sources of kosher food through state bidding, develop new serving systems, and locate and hire new staff; the "context matters" when Moussazadeh, at significant expense to the state, had the benefit of free kosher kitchen-prepared food until he committed a serious infraction that increased the danger he posed and required his transfer to a more secure facility; the "context matters" when, even after this transfer to the more secure facility, kosher food remained available to the inmate, and vegetarian and non-pork options were also available in the general cafeteria; the "context matters" when, despite these options, the inmate did not consistently keep kosher, indicating the practice was not adhered to in his personal religious rite; the "context matters" when the prisoner, once he proved himself, was eligible for re-transfer back to the Jewish facility with its kosher kitchen and that, when he became eligible, did not avail himself of the transfer option.
IV.
As we will see, the majority errs in its analysis of each of the three factors of the RLUIPA substantial burden test. Those factors are the identity of the substantial burden on

Moussazadeh's religious exercise, the compelling interest of the state, and the least restrictive means of meeting that interest. 42 U.S.C. § 2000cc-1(a).
A.
The majority begins its substantial burden analysis by citing First Amendment case law that concerns religious exercise by a Seventh Day Adventist and a Jehovah's Witness, who were never incarcerated and whose religious objections concerned unemployment benefits, not the conditions of confinement. Moussazadeh, 703 F.3d at 793 (citing Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Thomas v. Review Bd. of the Ind. Emp't. Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)). Although it is true that this court has before looked to such cases when considering RLUIPA, see Adkins v. Kaspar, 492*492 393 F.3d 559, 569 (5th Cir.2004), citing to these cases in Moussazadeh's context can be misleading. If this court wants to search for a First Amendment beacon for RLUIPA cases, it should look to precedent within the circuit which speaks to the precise matter at issue, the obligation — or lack thereof — of a prison to respond to inmates' particularized religious dietary requests. In this regard, pre-RLUIPA cases like Kahey v. Jones and Udey v. Kastner serve as better starting points and should be considered as background relevant to the application of RLUIPA within our circuit. 836 F.2d 948 (5th Cir. 1988) (holding prison was not required to accommodate inmate's request for kosher diet); 805 F.2d 1218 (5th Cir.1986) (holding the First Amendment not to require providing an inmate with a diet consistent with his religious beliefs). This First Amendment precedent relating to the prison context is the more appropriate guide to our application of RLUIPA in this case.
After relying on inappropriate authority for support, the majority opinion inappropriately analogizes Sherbert to the furnishing of kosher food in Moussazadeh's case, practically comparing it to the denial of sustenance itself: "Like the unemployment payments at issue in Sherbert, food is an `essential' benefit given to every prisoner, regardless of religious belief," Moussazadeh, 703 F.3d at 793; and, later the majority continues by saying that "Where an inmate is denied a generally available benefit [i.e. food] because of his religious beliefs, a substantial burden is imposed on him." Id. at 794. Of course, no one is denying food to a prisoner because of his religious beliefs. These statements, then, are puzzling; it is unclear what precisely the majority is suggesting. No one disputes that Moussazadeh is given food on a daily basis, that a non-pork or vegetarian option is always available for free in the prisons' dining halls, and that, even at the high-security Stiles prison, kosher products have always been available in the commissary. Kosher kitchen food, or such food to satisfy each religious group, contrary to the majority's opinion, is not "generally" available (rather, it is only available in one out of roughly 50 state prison facilities), so its denial is not necessarily a substantial burden, even under the Adkins definition. 393 F.3d at 570.[5] It is certainly not a denial of sustenance, as the majority at times appears to suggest. Furthermore, the majority's view ignores the consequences of its language: each prisoner's religious diet must be fully satisfied at each prison, even if there is only one such prisoner, and collateral attacks on the quality of the food itself will surely follow. Indeed, Moussazadeh has asserted that the kosher food, even the kind from the prison kitchen, is not of acceptable quality.

B.
The majority's "compelling interest" analysis is misguided for at least three reasons.
1.
In addressing the remedy, the costs and the consequences of accommodating inmates, we should not be blind to the misuse 493*493 of RLUIPA in the prison setting. Recent commentators have noted that RLUIPA imposes significant costs on prisons and that "[t]hese burdens are more onerous than Congress intended when passing the statute and more severe than federal courts initially appreciated." Taylor G. Stout, The Costs of Religious Accommodation in Prisons, 96 VA. L.REV. 1201 (2010). For example, with regard to burdens on security, "inmates' claims of religious status for their groups and religious motivations for their activities [are] significantly hinder[ing] prison officials' efforts to crack down on gang activity," id. at 1210, as gangs are adopting religious postures to mask their illegal doings. Prisons also assert that RLUIPA accommodations "permit inmates to enter sensitive areas of prison facilities," "threaten security by requiring potentially dangerous religious paraphernalia," and "send[] a message of favoritism when religious inmates obtain benefits unavailable to their secular peers." Id. at 1211, 1214; see also, Andreola v. Wisconsin, 211 Fed. Appx. 495 (7th Cir.2006); Fowler v. Crawford, 534 F.3d 931 (8th Cir.2008); Hoevenaar v. Lazaroff, 422 F.3d 366 (6th Cir. 2005). Security, however, is not the only source of concern. As footnote 2, supra, implies, RLUIPA can be an "administrative morass" that unnecessarily deprives prison officials of valuable time and effort. Cf. Lovelace v. Lee, 472 F.3d 174, 215 (Wilkinson, J., concurring in part and dissenting in part) (4th Cir.2006) ("[T]o require policies to accommodate every set of individual circumstances ... creates an administrative morass...."). Finally, the financial cost of accommodations and the concomitant litigation that inevitably ensues from the denial of a select few are substantial. See Stout, 96 VA. L.REV. at 1218-24.
The majority steps around these legitimate state concerns in Moussazadeh's case, saying that TDCJ has not provided enough evidence of security concerns, Moussazadeh, 703 F.3d at 794, and calling the cost of providing, supposedly for each Jewish prisoner, kosher kitchen food "minimal." Id. at 795. But it is difficult to imagine what additional evidence the state could put forth to demonstrate the legitimacy of its security concern. After all, the state's interest is in preventingviolence, and a prison's firsthand experience of inmate behavior may lead to a subjective determination regarding the threat of future violence over food that defies "proof" in the form of studies or documentation of any sort. Arguably, then, by requiring a higher evidentiary showing, the majority is requiring empirical evidence such as an actual outbreak of violence before it will cede that a prison's security concern is "legitimate." This is troubling, notwithstanding the fact that such outbreaks have and are occurring, and thus should not escape judicial notice. "Mississippi Prison on Lockdown After Guard Dies," THE NEW YORK TIMES, May 22, 2012; "The Pecos Insurrection," THE TEXAS OBSERVER, October 8, 2009 (noting that food served at the prison was one of the causes of the uprising).
With regard to the potential financial burden on TDCJ, the majority focuses on Moussazadeh's individual case rather than the aggregate expenditures of the future

resulting from the rights and complaints relating to food. This failure is no less troubling than the majority's handling of the security concern: "Exempting a solitary prisoner from a general prison policy by itself might be a manageable [financial] burden. In the aggregate, however, implementing a large number of accommodations may prove overwhelming...." Stout, 96 VA. L.REV. at 1222.
2.
Cutter v. Wilkinson should guide our compelling interest analysis. 544 U.S. at 494*494709, 125 S.Ct. 2113. In that case, state prisoners sued prison officials for failing to accommodate their religious exercise of "non-traditional" sects like the Satanist, Wicca, and Asatru religions. Specifically, the inmates alleged that Ohio prison officials violated RLUIPA by "retaliating and discriminating against them for exercising their non-traditional faiths, denying them access to religious literature, [and] denying them the same opportunities for group worship that are granted to adherents of mainstream religions...." Id. at 713, 125 S.Ct. 2113. On its way to ultimately rejecting the inmates' claims, the Supreme Court stated that "We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate than an accommodation must be measured so that it does not override other significant interests." Id. at 721, 125 S.Ct. 2113 (emphasis added). Importantly, the Court further stated explicitly that "prison security is a compelling state interest, and [] deference is due to institutional officials' expertise in this area." Id. at 725 n. 13, 125 S.Ct. 2113; see also, id. at 723, 125 S.Ct. 2113 (RLUIPA's Senate sponsors expressed their belief that courts would apply RLUIPA 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."). Finally, in Cutter, the Supreme Court noted its expectation that lower courts would apply RLUIPA with "particular sensitivity" to security concerns. Id. at 722, 125 S.Ct. 2113 (emphasis added). As Judge Barksdale's thorough dissent points out, the majority seems to have cast Cutter to the wind. Moussazadeh, 703 F.3d at 798-99 (Barksdale, J. dissenting). Its attempt to distinguish Cutter rests on an unsupported assumption that the Supreme Court was "only" concerned with the Establishment Clause and a specific type of religious accommodation, but not with the broad implications of cases like Moussazadeh's.
Since Cutter, various other circuits have found, in non-binding but nonetheless persuasive opinions, that the administrative and financial burdens imposed on prisons by RLUIPA outweigh the substantial burdens on inmates' religious exercise in certain circumstances. See Smith v. Kyler, 295 Fed.Appx. 479 (3d Cir.2008)(prison's not being able to afford to hire a chaplain for every religion that might be represented in the prison population is not a violation of RLUIPA); Andreola, 211 Fed. Appx. 495 (under RLUIPA, prison is not required to permit an inmate to supervise the preparation of his meals or to spend additional money to provide him with prepackaged kosher meals); Fowler, 534 F.3d at 942 (prison is not required to construct sweat lodge to accommodate a Native American inmate's religious ceremony); Linehan v. Crosby, 346 Fed.Appx. 471 (11th Cir.2009) (controlling costs is a compelling government interest and serving vegan, rather than kosher, was the least restrictive means). These opinions merit our consideration.

3.
As noted above, Baranowski explicitly held the following: a prison's failure to provide kosher food is "related to maintaining good order and controlling costs and, as such, involves compelling governmental interests." 486 F.3d at 125. That holding regarding "compelling interest" should have decided Moussazadeh's case.
C.
Judge Barksdale's dissent points out that the least restrictive means standard is 495*495 referred to as "fatal in fact" because it leads to the challenged government policy being struck down. There is nothing to suggest that here, when the majority declined to follow the Baranowski least restrictive means approach (which expressly incorporated Cutter's deference to prisons, see 486 F.3d at 125-26), the post-remand result will be any different. Indeed, the "majority's remand must be seen for precisely what it is: an invitation to [further] finetune prison policy from the judicial perch." Lovelace, 472 F.3d at 205 (Wilkinson, J., concurring in part and dissenting in part). It seems a hollow truth with which the opinion concludes: "We do not suggest how the district court should proceed or what decisions should be reached in light of the guidance set forth in this opinion." Moussazadeh, 703 F.3d at 796. Nevertheless, the panel is entitled to have its intentions respected: the district court must feel free to decide the case as it determines is appropriate under the controlling law; and the controlling law is Baranowski.
V.
For the reasons stated above, I feel the panel majority in this case has ignored the directive that "context matters" in religious accommodation cases, disregarded Baranowski, and misapplied the three prongs of the RLUIPA substantial burden test. Because these represent grave errors that merit reconsideration, I respectfully dissent from the court's denial of rehearing en banc.
[*] The panel hereby corrects a typographical error. In the opinion, 703 F.3d at 795, the phrase "less than .005% of the food budget" should read "less than .05% of the food budget."
[1] At all times, Moussazadeh was allowed to select a "non-pork" option at the prison's dining facility, which, according to TDCJ, "satisf[ies] the religious requirements of 85% of the Jewish population that is not orthodox."
[2] The challenges TDCJ faced in accommodating Moussazadeh included: (1) finding kitchen space and adequate dry and cold food storage to be koshered; (2) installing the necessary utility hookups for cooking, ventilation, and cleaning, (3) acquiring sources of kosher food through the competitive bid process of the State of Texas, (4) acquiring equipment and all cooking implements to be koshered and remain kosher, (5) developing a serving system that maintains the kosher purity of the food from the kitchen to the participating inmate, (6) locating Jewish inmate workers who were (i) medically able, (ii) met the requirements to perform the necessary functions of working in the kitchen, (iii) willing to work in the kitchen in order to maintain the kosher purity of the food, and, (7) finding and hiring a mashgiachwho lived near a Texas prison.
[3] At oral argument, however, TDCJ indicated that, while at Stringfellow, Moussazadeh only used the "kosher food line" in the cafeteria about half the time; the other half of the time, he ate normal food from the normal line.

[4] Moussazadeh was found to be in possession of contraband, including cell phone parts and marijuana.
[5] I recognize that Baranowski v. Hart, which I address infra herein, observed that not providing kosher food "may be deemed to work a substantial burden" on an inmate's faith. 486 F.3d 112, 125 (5th Cir.2007) (emphasis added). The majority in Moussazadeh, however, chose not to adopt such language in its discussion of substantial burden and, instead said the substantial burden inquiry was one of first impression since it involved charging inmates for kosher meals. By not adhering to Baranowski's substantial burden language, the majority opinion raised the questions I outline above.

 
 Case 3:07-cv-00574 Document 236 Filed in TXSD on 03/05/13 Page 1 of 31

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UnitedStatesCourtofAppeals Fifth Circuit

FILED

No. 09-40400

December 21,2012

Lyle W. Cayce Clerk

MAX MOUSSAZADEH, versus

Uafted State~ Coeg Southern District of Taas
PiLEB
Plaintiff-Appellant, MAR 0 5 2013
David J. Bradley, Clerk of Court

TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
BRAD LIVINGSTON, Solely in His Official Capacity as Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; DAVID SWEETEN, Solely in His Official Capacity as Warden of the Eastham Unit of the Texas Department of Criminal Justice, Correctional Institutions Division,

Defendants-Appellees.

Appeals from the United States District Court for the Southern District of Texas

Before KING, SMITH, and BARKSDALE, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Through more than seven years of litigation, Max Moussazadeh has

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sought kosher meals while confined at the Texas Department of Criminal Justice ("TDCJ"). The district court, on motion for summary judgment, dismissed Moussazadeh's claim on two independent grounds: failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA") and lack of sincerity of religious belief as required under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Moussazadeh appeals, and we reverse and remand.
I. Background. A. Procedural History. While at the Eastham Unit ("Eastham") serving a seventy-five-year sentence for murder, Moussazadeh on July 15, 2005, properly filed a Step 1 administrative grievance complaining that he was "forced to eat non kosher foods" and requesting that he "be allowed to receive kosher meals because it is part of [his] religious duty." He asserted that he is Jewish, that he was "born and raised jewish [sic]," and that his family "kept a kosher house hold [sic]" all his life. He claims that his faith requires him to "eat kosher foods," and not being able to do so forces him to "goO against [his] religious beliefs," for which he believes God will punish him. He noted in his grievance that he had contacted the prison chaplain and captain ofthe mess facility at Eastham to request kosher meals but that his requests had been denied. On July 21, TDCJ denied Moussazadeh's grievance and refused to provide him with kosher food. It provided no reason for doing so and stated only that as a matter of current policy, it did not provide kosher meals. Appealing the outcome of his Step 1 grievance, on July 29 Moussazadeh filed a Step 2 grievance, which was denied on September 19. The Grievance Response stated that TDCJ could "take no further action in this matter." Having exhausted the grievance process, Moussazadeh sued TDCJ and
2

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prison officials (collectively referred to as "TDCJ") in October 2005, alleging substantially the same facts as in his grievances. He argued that he was a "sincere adherent ofthe Jewish faith" and that a fundamental tenet requires that believers "eat food prepared and served in a kosher manner." He noted his grievances and TDCJ's denial of his requests for kosher food, and he asserted that TDCJ's refusal to provide kosher food was a violation ofRLUIPA and the Texas Religious Freedom Restoration Act. He requested injunctive and declaratory relief compelling TDCJ to provide him with nutritionally sufficient kosher meals.
About six months after the suit was filed, the district court stayed discovery at the request of the parties to facilitate settlement negotiations. After nearly a year of negotiations, TDCJ began offering kosher food in the dining hall at the Stringfellow Unit ("Stringfellow"), to which, in April2007, Moussazadeh was transferred; he then began receiving kosher meals from the kitchen free of charge. The parties did not settle, however, because TDCJ refused to meet Moussazadeh's demand for a guarantee that it would not ever deny him kosher food. Two years later, the district court dismissed the case as moot. Moussaza-
deh v. TDCJ, 2009 WL 819497 (S.D. Tex. Mar. 26, 2009).
Moussazadeh appealed the dismissal, and while his appeal was pending, he committed an infraction and was transferred to the Stiles Unit ("Stiles"), which did not provide kosher meals in the dining hall but did offer kosher food for purchase at the commissary. This court remanded, concluding that those changed circumstances rendered Moussazadeh's claim no longer moot. See
Moussazadeh v. TDCJ, 364 F. App'x 110 (5th Cir. 2010) (per curiam).
On remand, the parties conducted further discovery and filed crossmotions for summary judgment. The district court granted summary judgment for TDCJ on two grounds. First, it held that Moussazadeh's claim was barred by the PLRA, which requires inmates to exhaust their administrative remedies before seeking judicially granted relief. In the alternative, the court dismissed
3

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under RLUIPA based on its conclusion that Moussazadeh was not sincere in his religious beliefs, so there was no substantial burden on his religious exercise. Moussazadeh timely appealed.
B. Factual Background. Neither party disputes the fact that Jewish dietary laws, "kashrut," are fundamental to the practice of Judaism as embodied in the Torah and Rabbinic laws. Food that satisfies the biblical and rabbinic requirements is deemed "kosher." Those laws demand that food be stored, prepared, and served in a certain manner, and they exclude certain types of food. For example, pork is per se nonkosher. Food that would otherwise be kosher becomes nonkosher if mixed with nonkosher food or brought into contact with utensils that have been used in the preparation of nonkosher food. For that reason, certain types offood must not be served, and a separate set ofcookware, utensils, and flatware must generally be used. Before this suit, TDCJ had no program for providing kosher food to inmates. In fact, during the pendency of this case, TDCJ successfully litigated against another prisoner who had requested kosher food. See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). During settlement negotiations with Moussazadeh, however, TDCJ undertook a study ofthe logistics and cost ofproviding kosher food to observant Jewish inmates. It examined kosher programs in other prison systems, such as those in Pennsylvania, Colorado, and the Federal Bureau of Prisons, that offered entirely prepackaged "cold" kosher meals, kosher meals prepared on site, and the "common fare" program of the Bureau of Prisons. TDCJ considered the benefits and drawbacks of each system and decided to implement a two-tier program. The first, the Basic Designated Jewish Unit, provided kosher meals that could be purchased in the prison commissary, a mar-
4

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ketplace where inmates can purchase food and hygienic items. Basic Units were located at the Darrington, Terrell, Stiles, and Wynne facilities. The second tier, the Enhanced Designated Jewish Unit, provided kosher meals free of charge to Jewish offenders in the prison dining hall. The only Enhanced Unit was located at Stringfellow. To provide kosher food there, TDCJ cordoned off a section ofthe already extant kitchen and purchased items such as utensils, a refrigerator, a microwave, and a burner for the exclusive preparation of kosher food. The cost of establishing the kosher kitchen was $8,066.26.
TDCJ decided to implement the two-tier program based on factors including cost, convenience, and the dynamics of the Jewish prison population. There are about 900 self-identified Jewish prisoners out ofmore than 140,000 prisoners in TDCJ custody. Of these, only 70-75 are "recognized" as Jewish, and another 90 are in the conversion process. Because of the cost associated with establishing a kosher kitchen and the low number of Jewish prisoners, TDCJ decided to build its single Enhanced Unit at Stringfellow and move all observant Jewish prisoners there. Stringfellow was chosen because it is classified to house prisoners with a wide range of security levels, everyone except the most violent offenders. Stringfellow also is close to a large Jewish population that TDCJ determined would facilitate kosher certification and would volunteer services and provide religious materials.
Aside from the start-up costs ofthe kosher kitchen, TDCJ's Enhanced Designated Unit program cost more than regular prison meals. In 2009, TDCJ's expenditures on food service were just over $183.5 million, with a cost per day, per inmate, of $3.87; the cost of food from the Stringfellow kosher kitchen was $6.82. The total extra cost based on TDCJ's 2009 data is roughly $1,095 per year, per inmate. The Basic Jewish Designated Units, on the other hand, do not impose those same costs on TDCJ. Inmates must purchase kosher food at the commissary with their own money, lest they receive the same nonkosher food as
5

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does the general population. After establishing the Enhanced Unit at Stringfellow, TDCJ transferred
observant Jewish inmates, including Moussazadeh, there. Moussazadeh remained at Stringfellow for two years and consistently ate the kosher meals, even though they often consisted of food he characterized as "highly distasteful," such as tofu. He alleged that he was harassed by prison officials for his religious beliefs and for his attempt to secure kosher food by means of this suit.
In 2009, Moussazadeh committed serious infractions that increased his security level from G4 to G5. Because Stringfellow was not designated to house G5 level offenders, Moussazadeh was transferred to Stiles. The prison had only a Basic Jewish Designated Unit, and so Moussazadeh did not receive kosher meals from the dining hall. He was able to purchase them in the commissary, which he did at least during the Passover holiday. He also purchased food that was not certified as kosher, such as coffee and sweets. He eventually became eligible to transfer back to Stringfellow, but that eligibility was short-lived, because he again lost it after committing another disciplinary infraction. At the time of oral argument in this appeal, Moussazadeh remains at Stiles, where he does not receive free kosher meals.
II. Standard of Review. Summary judgments are reviewed de novo. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999). Summary judgment is appropriate where, taking the evidence in the light most favorable to the nonmoving party, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also FED. R. CIV. P. 56(a).
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III. Discussion. A. PLRA Exhaustion. Under the PLRA, "[n]o action shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA pre-filing exhaustion requirement is mandatory and non-discretionary." Gonzalez v. Seal, No. 11-31068, 2012 U.S. App. LEXIS 25371, at *3 (5th Cir. Dec. 12, 2012) (per curiam). The purpose of the exhaustion requirement is twofold. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). First, it "protects administrative agency authority" by allowing the agency to "correct its own mistakes" rather than being immediately "haled into federal court." ld. (internal citations omitted). Second, it promotes efficiency insofar as administrative review processes are generally faster and more economical than is litigation. ld. Even where the parties subsequently seek judicial remedies, the administrative-review process often produces a useful record to ease and expedite further proceedings. ld. See also McCarthy v. Madigan, 503 U.S. 140, 150-51 (1992). In determining exhaustion under the PLRA, we look to the processes established by the prison and the parties' use ofthese processes, beginning with the sufficiency ofthe inmate's "complaint." We "typically use a standard according to which a grievance should give prison officials 'fair notice' of the problem that will form the basis of the prisoner's suit." Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004). The complaint must be sufficient in detail to give officials "time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 525 (2002). If the complaint meets those standards, and ifthere are no further avenues for administrative resolution, we will find exhaustion. Where the prisoner's complaint addresses an ongoing problem or multiple
7

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instances of the same type of harm, prisoners need not file a new grievance in each instance to quality for exhaustion. "As a practical matter," a prisoner cannot be "expected to file a new grievance" each time he is harmed in the same manner. 1 Further, TDCJ's policies expressly direct prisoners not to file multiple grievances for a repeating harm, and they threaten sanctions for excessive filings.2 Where the original grievance complains of a general prison policy, changed circumstances will not necessarily necessitate re-exhaustion.3
Moussazadeh initially went through TDCJ's entire grievance process before filing this suit. In Texas, prison grievances involve a two-step process. The inmate first files a Step 1 grievance, in which he must state the grievance and his proposed relief. If relief is denied, the inmate may then file a Step 2 grievance appealing the denial. Moussazadeh filed both claims. And indeed, before filing formal grievances, he sought the assistance of the prison chaplain and the kitchen captain in resolving the issue. In its denial of his Step 2 grievance, TDCJ told Moussazadeh that no further action could be taken regarding his request for kosher food.
The district court held that Moussazadeh had not exhausted. There was a convergence of changed circumstances, it found, that required him to reexhaust. Namely, TDCJ put in place a kosher meals program and served Moussazadeh kosher meals from the prison kitchen during his time at Stringfellow. Thereafter, Moussazadeh was transferred to Stiles, which left him in a different position. The district court held that these facts required him to submit new grievances. We disagree.
1 Johnson, 385 F.3d at 521 (holding that a prisoner who suffered similar harassment on multiple occasions had sufficiently exhausted even though he had not filed new grievances at each instance of harassment).
2 See id.
3 Id. (citing Aiello v. Litscher, 104 F. Supp. 2d 1068, 1074 (W.D. Wis. 2000)).
8

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Although Moussazadeh can purchase kosher food at Stiles and did receive kosher food for a time at Stringfellow, the claim that gave rise to his initial grievances and suit remains unchanged. His original grievance asked TDCJ to "grant [him] access to kosher meals in the prison dining hall." In the "Action Requested to resolve your Complaint" field, Moussazadeh asked to "receive kosher meals from the unit kitchen and dining hall."4 The grievance related to his ability to be fed a kosher, nutritionally adequate diet in the dining hall as a substitute for the nonkosher meals he was being served. His claim is for relief related to ongoing conduct-he is currently being denied kosher food. Even though he was granted the relief he requested for a time, it has been taken away from him.
This is analogous to the situation in Johnson, in which a prisoner was being assaulted on a regular basis but not every single day. See Johnson, 385 F.3d at 521. We explained that the pattern of assault did not require multiple grievances. Jd. Johnson did not have to be assaulted each and every day for the conduct underlying his grievance to be considered ongoing. Similarly, Moussazadeh's claim relates to conduct that continues to occur.
Further, even granting that Moussazadeh's situation has changed with his transfer to Stiles and that he is now free to purchase kosher food, it would be improper to dismiss under the PLRA. This case has been ongoing for more than seven years. The administrative process has yet to yield a satisfactory result, and the final grievance response stated that TDCJ would "take no further action." Insofar as the purpose of exhaustion under the PLRA is to provide notice of the prisoner's grievances and a chance for the prison system to address
4 TDCJ asks us to apply an even narrower reading of Moussazadeh's complaint. It suggests that his original grievance only requested "access" to kosher food. That strained understanding of the complaint does not comport with its clear language. Moussazadeh explicitly requested kosher meals served by the prison kitchen.
9

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them, these proceedings have undoubtedly accomplished those objectives. TDCJ is fully aware ofMoussazadeh's requests and complaints. Nothing in the record suggests that, were Moussazadeh to file an administrative grievance, TDCJ would take any action. Forcing re-exhaustion would be fruitless and would needlessly extend already prolonged litigation.
Finding the need for re-exhaustion here would also allow TDCJ and future potential defendants to take improper advantage of the PLRA's exhaustion requirement. To avoid any future suit on grounds ofnot providing a kosher diet, TDCJ would merely have to transfer the complaining inmate to Stringfellow after a suit was filed, then move for dismissal. Once the suit was dismissed, TDCJ would have free reign to deny the inmate kosher food again. Even assuming good faith on the part of TDCJ, such a system, which would be allowable under the district court's understanding of the PLRA, would be contrary to the purposes of the act.
Finally, the statute states that "[n]o action shall be brought ... until" administrative remedies have been exhausted. 42 U.S.C. § 1997e(a) (emphasis added). Once those remedies are exhausted, the suit may be filed. All of our previous cases upholding dismissals under§ 1997e have involved a failure to file grievances at all or a failure to see the administrative review process through to its conclusion.5 We have never before held that, once he has initially exhausted available remedies, an inmate must re-exhaust based on changed circumstances. The PLRA serves as a threshold; once it is met, a suit may not be dismissed so long as the claims remain the same. In seven years of litigation, Moussazadeh has not amended his initial complaint-in fact, the district court noted that he
5 See, e.g., Robinson v. Wheeler, 338 F. App'x 437, 438 (5th Cir. 2009) (upholding dismissal for lack of exhaustion where prisoner was told that he could re-flle a grievance before the suit was initiated); Simkins v. Bridges, 350 F. App'x 952, 953 (5th Cir. 2009) (upholding dismissal for lack of exhaustion where prisoner did not appeal denial of his initial grievance as required).
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did not need to file an amended complaint. Moussazadeh exhausted his administrative remedies in 2005 when he
properly filed grievances. TDCJ has been on notice since that time ofMoussazadeh's complaints and his request for kosher food to be served in the dining hall. "Re-exhaustion" is not required; Moussazadeh has met the exhaustion as a matter of law.
B. RLUIPA. Under RLUIPA, government entities as a general matter may not "impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even ifthe burden results from a rule of general applicability." 42 U.S.C. § 2000cc-l(a). RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). The threshold questions for applying RLUIPA are whether a "religious exercise" is at issue and whether the state action places a "substantial burden" on that exercise.6 Subsumed within the substantial-burden inquiry is the question whether the inmate sincerely believes in the requested religious exercises. See id. at 725 n.13 (noting that inquiries into sincerity are appropriate under RLUIPA). A belief not sincerely held cannot be substantially burdened.
1. Religious Exercise. "Religious exercise" is defined by RLUIPA as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42
6 Mayfield v. TDCJ, 529 F.3d 599, 613 (5th Cir. 2008) (stating that a RLUIPA inquiry "normally requires two separate assessments, first whether the burdened activity is 'religious exercise,' and second whether that burden is 'substantial"').
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U.S.C. § 2000cc-5(7)(A). The parties do not dispute the centrality to the Jewish faith of keeping kosher. Nor do they dispute that eating kosher food constitutes a "religious exercise." The district court properly held this to be so.
2. Sincerity. To be substantially burdened, a religious belief must be sincerely held. "[W]hile the 'truth' of a belief is not open to question, there remains the significant question ofwhether it is 'truly held."' United States v. Seeger, 380 U.S. 163, 185 (1965). It does not matter whether a religious belief itself is central to the religion, but only that "the adherent [ ] have an honest belief that the practice is important to his free exercise of religion." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332 (5th Cir. 2009), aff'd sub nom. Sossamon v. Texas, 131 S. Ct. 1651 (2011). Sincerity of a belief is an essential initial matter in a RLUIPA claim. We have "had few occasions to conduct this part of the inquiry, as the sincerity of a religious belief is not often challenged." McAlister v. Livingston, 348 F. App'x 923, 935 (5th Cir. 2009). Sincerity is generally presumed or easily established. When we have inquired as to sincerity, however, we have looked to the words and actions of the inmate. See Sossamon, 560 F.3d at 332. "[T]he important inquiry was what the prisoner claimed was important to him." McAlister, 348 F. App'x at 935. In addressing whether Moussazadeh's religious beliefs were sincere, the district court correctly looked to his words and actions but incorrectly concluded that those factors established insincerity "as a matter oflaw ." The court decided that Moussazadeh was insincere based on a combination ofthree findings. First, it found that he purchased "nonkosher" food items-including cookies, soft drinks, coffee, tuna, and candy-while at Stringfellow, despite being served kosher food in the dining hall. Second, the court found that, while at Stiles,
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Moussazadeh purchased the same types of "nonkosher" food from the commissary. Finally, the court noted that Moussazadeh had not filed a grievance requesting a transfer back to Stringfellow from Stiles when he became eligible.
These findings alone, however, do not indicate that Moussazadeh was insincere. In the first place, because the court ruled on a motion for summary judgment, it was required to view the evidence in the light most favorable to the non-movant, who on the issue of sincerity was Moussazadeh. Celotex, 477 U.S. at 322. The determination ofa substantial burden in general is "fact-specific and requires a case-by-case analysis."7 This is doubly true regarding sincerity. The district court improperly weighed the evidence proffered by TDCJ more heavily than it did Moussazadeh's.
As an initial matter, the court was incorrect to say that Moussazadeh bought nonkosher food at the commissary. The court concluded that items that were not certified as kosher were per se not kosher, but, as Moussazadeh and amicus curiae relate, a certificate does not render food kosher or nonkosher. See Brief for Amicus Curiae American Jewish Committee at 16-22. The items that Moussazadeh purchased, such as coffee and soda, do not need a certificate to be "kosher." ld. Although certain adherents of Judaism may consume only certified kosher food, others will consume food that is not per se nonkosher. ld. Individuals may practice their religion in any way they see fit, and "it is not for the Court to say it is an unreasonable one." A.A. ex rel. Betenbaugh u. Needville lndep. Sch. Dist., 611 F.3d 248, 261 (5th Cir. 2010). A showing of sincerity does not necessarily require strict doctrinal adherence to standards created by organized religious hierarchies.
7 McAlister, 348 F. App'x at 936. See also Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004) ("We recognize that our test requires a case-by-case, fact-specific inquiry to determine whether the government action or regulation in question imposes a substantial burden on an adherent's religious exercise.").
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Even assuming, arguendo, that some of the food Moussazadeh purchased was nonkosher, that does not necessarily establish insincerity. A finding of sincerity does not require perfect adherence to beliefs expressed by the inmate, and even the most sincere practitioner may stray from time to time. "[A] sincere religious believer doesn't forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?" Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012). Though Moussazadeh may have erred in his food purchases and strayed from the path of perfect adherence, that alone does not eviscerate his claim of sincerity.
In support of his sincerity, Moussazadeh offered his statements in his initial grievances and complaint that he was born and raised Jewish and has always kept a kosher household. He offered evidence that he requested kosher meals from the chaplain, kitchen staff, and TDCJ. He tendered evidence that, while at Stringfellow, he ate the kosher meals provided to him from the dining hall, even though he found them to be "distasteful" compared to the standard prison fare.
Moussazadeh also showed that he was harassed for his adherence to his religious beliefs and for his demands for kosher food while at Stringfellow. For instance, he alleged that the guards there delayed his mail and searched his cell more often than they did so for other prisoners, sometimes seizing noncontraband items. Moussazadeh offered evidence that he purchased some kosher food in the Stiles commissary, including kosher-for-Passover meals. He also attempted to present testimony from religious authorities supporting his sincerity, though the district court rejected that.
Further, during seven years of litigation, TDCJ had never questioned Moussazadeh's sincerity. It created the two-tier program as part of negotiations with him. It transferred him to Stringfellow so he could receive kosher food and
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No. 09-40400 transferred him to Stiles because the commissary offered kosher food for purchase. Those actions establish TDCJ's acknowledgment of Moussazadeh's sincerity.
Though the sincerity inquiry is important, it must be handled with a light touch, or "judicial shyness." A.A. ex rel. Betenbaugh, 611 F.3d at 262. We limit ourselves to "almost exclusively a credibility assessment" when determining sincerity. See Kay, 500 F.3d at 1219. To examine religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.8
Moussazadeh has offered sufficient evidence to establish sincerity as a matter of law. He has shown through his initial claims, his actions while at Stringfellow, and his continued prosecution ofthis suit that he sincerely believes in the importance of eating kosher food. His few lapses in perfect adherence do not negate his overarching display of sincerity. The district court improperly eschewed the required "judicial shyness" in determining otherwise.
C. Standard on Remand. Where an inmate's religious beliefs are sincere and his exercise of those beliefs is burdened, the court must determine whether the plaintiff has established that the burden is substantial. 42 U.S.C. § 2000cc-1(a). If it is, the state must "demonstrate[] that imposition of the burden ... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Id. There are thus three questions the district court must address on remand: whether the regulation substantially burdens religious conduct, whether the government has a compelling interest in the regulation, and whether the regulation is the least restrictive
8 See United States u. Ballard, 322 U.S. 78, 86-87 (1944) ("Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.").
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means of achieving the interest.
1. Substantial Burden. Denying all access to kosher food places a substantial burden on the practice of an inmate's faith. Baranowski, 486 F.3d at 125. We have not. opined, however, on the policy of charging inmates for kosher meals. In addressing substantial burdens on religion under the First Amendment, the Supreme Court has provided useful guideposts for our application of RLUIPA. In Sherbert v. Verner, 374 U.S. 398, 404 (1963), the Court held that withholding unemployment benefits from an individual who could not, based on her religious beliefs, work on the Sabbath would constitute a substantial burden on religion. Denying benefits would "force[] [the plaintiff] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." ld. This type of imposition substantially burdens religion because it would be the same as "a fine imposed against appellant for her Saturday worship." Id. Similarly, in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 717-18 (1981), the Court held that conditioning receipt of"an important benefit" upon religiously proscribed conduct, or denying a benefit because of"conduct mandated by religious belief," would impose a substantial burden on religion. Applying these standards to RLUIPA, we held in Adkins, 393 F.3d at 570, that a government action substantially burdens a religious beliefif"it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs." We explained that the effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit,
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and, on the other hand, following his religious beliefs. On the opposite end of the spectrum, however, a government action or regulation does not rise to the level of a substantial burden on religious exercise 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. I d. TDCJ argues that what is at stake is not pressure or forbidding religious practice but "underwriting" it. TDCJ cites Cutter, 544 U.S. at 720 n.8, which noted that "RLUIPA does not require a State to pay for an inmate's devotional accessories." But for two reasons, Cutter is distinguishable from the case at hand: First, it addressed an Establishment Clause challenge to RLUIPA. The Court was not focused on analyzing the question of a substantial burden. Second, the benefit requested in Cutter was provision of religious items, not food. Like the unemployment payments at issue in Sherbert, food is an "essential" benefit given to every prisoner, regardless ofreligious belief. Based on Sherbert, Thomas, and Adkins, denial of religiously sufficient food where it is a generally available benefit would constitute a substantial burden on the exercise of religion. TDCJ further cites Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008), as its most persuasive support of the position that there is no substantial burden. Prisoner Patel had requested halal food and was served food that did not comport with his conception of Islamic dietary law. Halal meals that would have satisfied him were available for purchase in the prison commissary. ld. at 816. Patel had offered no evidence that he could not afford to purchase the halal food. The court held that the prison did not have to provide him free halal meals from the commissary and that it was not imposing a substantial burden on his religious exercise. Patel is distinguishable on two grounds. First, the Eighth Circuit appears
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to define "substantial burden" differently from how we define it. According to the Eighth Circuit, government action must "significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion" in order to constitute a substantial burden. ld. at 813 (quoting Murphy, 372 F.3d at 988). Unlike our definition, embodied in Adkins, the Eighth Circuit's definition ofsubstantial burden makes no reference to denial of generally available benefits.
Second, Patel is distinguishable because both kosher and halal food were already being offered free of charge in the dining hall. Patel requested not only halal food, which was already being served and satisfied all the other Muslims in the prison, but a particularly nuanced version ofhalal food. Additionally, sixteen ofthe twenty-one meals Patel received each week in the dining hall met his standards.
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 ofcharge. 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.
2. Compelling Interest. A governmental entity can escape the prohibition on substantially burdening religious practice where it establishes that it has a compelling interest in doing so. TDCJ alleges that it has two interests: prison security and costs. This court held in Baranowski, 486 F.3d at 125, that these considerations, in that particular case, constituted a compelling interest.
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TDCJ has failed to produce evidence of security concerns related to providing kosher food at Stiles. It offered evidence that the offenders at Stiles have generally been convicted of more violent crimes, but it did not offer any evidence that those more violent offenders would be more likely to cause violence or safety disturbances as a result of some prisoners being served kosher food. TDCJ relied on bare assertions that more violent offenders would present a greater security threat if different meals were served, but this is insufficient to establish a compelling interest related to these facts. On remand, TDCJ may present evidence substantiating its claims of security concerns, if such evidence exists.
TDCJ has shown that costs for kosher food would be almost double what they would be for the nonkosher "loaf' that is served to other prisoners at Stiles. Moussazadeh does not deny those extra costs. TDCJ's argument that it has a compelling interest in minimizing costs by denying Moussazadeh kosher food, however, is dampened by the fact that it has been offering kosher meals to prisoners for more than two years and provides them at no cost to all observant Jewish inmates that accepted a transfer to Stringfellow.
Further, the increased cost of providing kosher food to all observant prisoners is minimal-even if the more expensive prepackaged meals, as distinguished from the kosher-kitchen meals, were provided three times a day to each observant prisoner, the cost would only be about $88,000 per year. To provide those meals to Moussazadeh alone would cost a fraction of this. To put this amount in perspective, the total food budget ofTDCJ is $183.5 million.
In Beerheide v. Suthers, 286 F.3d 1179, 1191 (lOth Cir. 2002), the court held that excluding a $13,000 expenditure from a budget of over $8 million did not constitute a compelling government interest, even under rational-basis review. That minimal cost was, as a percentage of total outlay, roughly three times higher than the expenditure if TDCJ offered the most expensive kosher meal program to all observant prisoners. Although cost reduction, as a general
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matter, is unquestionably a compelling interest ofTDCJ, we are skeptical that saving less than .005% of the food budget constitutes a compelling interest. We recognize, however, that the inquiry is fact-intensive, and we decline to draw a bright-line rule. See Adkins, 393 F.3d at 571.
3. Least Restrictive Means. Assuming, arguendo, that TDCJ establishes a compelling interest in security and cost minimization, its chosen means of achieving that interest must be the least restrictive of Moussazadeh's right to exercise his religious beliefs "among available, effective alternatives." Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004) (applying the least restrictive means test in the speech context). "Requiring a State to demonstrate ... that it has adopted the least restrictive means of achieving [a compelling] interest is the most demanding test known to constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534 (1997). TDCJ argues that it has chosen the least restrictive means by allowing Moussazadeh to purchase kosher meals at the Stiles commissary. It relies on Baranowski to suggest that complete denial of kosher food is among the least restrictive means for achieving its goal ofminimizing costs and preventing security risks and that therefore its chosen method is even less restrictive. This, however, improperly broadens Baranowski. We there held that, "[b}ased on the record before us, ... [TDCJ's] policy [of denying inmates kosher food] is related to maintaining good order and controlling costs and, as such, involves compelling governmental interests." Baranowski, 486 F.3d at 125 (emphasis added). We did not hold in Baranowski that there cannot be a less restrictive means of achieving the interests of security and cost reduction, but only that on the record in that case, there was not. We note that, on a subject that demands a fact-intensive inquiry, the record in Baranowski was thin-the plaintiffwas pro se and presented no evidence to rebut any of TDCJ's claims regarding the cost
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of a kosher food program. Our holding in that case does not foreclose a finding that TDCJ's current program is not the least restrictive means available.
Circumstances since Baranowski was decided have changed, as TDCJ and the district court pointed out in their discussion of administrative exhaustion. TDCJ has now offered kosher meals in the dining hall at Stringfellow for years and has offered kosher meals for purchase. To the extent that TDCJ claimed that its least-restrictive means of achieving cost reduction was completely denying prisoners kosher food, that is no longer so. Baranowski therefore is instructive but not dispositive.
There thus remains the factual question whether there is a less restrictive means ofminimizing costs and maintaining security other than forcing Moussazadeh to pay for all his kosher meals. He has suggested four alternatives less restrictive than forcing him to pay for every meal he eats, which he has stated he cannot afford. Less restrictive means include supplementing the regular diet with prepackaged kosher meals; establishing another kosher kitchen; shipping food to Stiles from Stringfellow's kosher kitchen; and providing prepackaged kosher meals through the commissary for free. On remand, the district court must determine whether any "alternative, available" means would allow TDCJ to achieve any established compelling interest while being less restrictive of Moussazadeh's ability to exercise his religion. Ifa less restrictive alternative is available, RLUIPA commands that TDCJ adopt it.
For the foregoing reasons, the summary judgment is REVERSED, and this matter is REMANDED for further proceedings. We do not suggest how the district court should proceed or what decisions should be reached in light of the guidance set forth in this opinion. If the court decides, as to any issue, that there are no genuine disputes of material fact, summary judgment may be appropriate. If there are fact issues, the case may be ready for trial on issues other than exhaustion and sincerity, which are now decided as matters of law.
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We do not mean to hamper the court in any way in its resolution of any questions still needing to be resolved.9
9 Moussazadeh's request for reassignment to a different district judge on remand is DENIED. Reassignment is an "extraordinary" remedy that is "rarely invoked." Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997). The district judge has handled this matter capably and without bias, and we are confident she will continue to do so.
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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part: Amazingly, akin to the adage about "inmates running the asylum", and
contrary to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5, the able majority is permitting this inmate to run the penitentiary. When combined with two other adages-"no good deed goes unpunished" and "don't lose sight of the forest for the trees"-the true character of this action is revealed. In that light, for the issues remanded for further proceedings, the majority's application of RLUIPA's compelling-interest standard, 42 U .S.C.§ 2000cc-1(a)(2), is contrary to precedent and impermissibly substitutes the majority's judgment for that of prison officials. Along that line, the majority ignores Moussazadeh's fault, through his serious disciplinary violations, in bringing about the d~privation about which he complains. Therefore, although I join the majority's denial ofreassignment, Maj. Opn. at 22 n.9, and join, dubitante, its holdings that Moussazadeh has met his threshold exhaustion and sincerity requirements, Maj. Opn. at 11, 15, 21, I must respectfully dissent from my esteemed colleagues' vacating judgment for TDCJ and remanding for further proceedings on: whether TDCJ has shown a compelling governmental interest; and whether it has adopted the least restrictive means of achieving that interest (remanded issues).
I. In granting summary judgment to TDCJ, the district court's comprehensive and detailed opinion based judgment on failure to satisfy the exhaustion and sincerity issues, and, therefore, did not reach the remanded issues. Moussazadeh v. Tex. Dep't of Criminal Justice, No. G-07-574, 2011 WL 4376482 (S.D. Tex. Sept. 20, 2011). No authority need be cited for our ability to affirm the summary judgment based on the issues that are instead being remanded. These issues were raised in district court. Along that line, the opinion provides compelling support for why
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Case 3:07-cv-00574 Document 236 Filed in TXSD on 03/05/13 Page 24 of 31 No. 09-40400
Moussazadeh's claim fails for the remanded Issues. The following two
paragraphs from that opinion shine a piercing light on what is really afoot:
TDCJ-CID defendants also note that Moussazadeh did not request a transfer [from the Stiles Unit] back to the Stringfellow Unit for religious reasons [where a free kosher diet is available] when he became eligible for such transfer and that he filed no grievances complaining that he was denied kosher meals or any religious practice on the Stiles Unit [to which he had been transferred for disciplinary violations]. They further note that Moussazadeh voluntarily committed major disciplinary violations [at Stiles] that resulted in a change ofhis custodial classification, thereby, depriving him of the opportunity to transfer back to the Stringfellow Unit, where he could freely obtain kosher food.
***
Moussazadeh's conclusory declaration does not demonstrate that his professed religious need for a kosher diet motivates his actions or that he has attempted to reform his ways and return to keeping kosher during his two-year incarceration on the Stiles Unit. Rather, his personal desire to harass defendants with an unnecessary lawsuit took precedence, and he was willing to sacrifice his religious dietary beliefs in favor ofthis secular pursuit. Indeed, he would be without any access to kosher food to this day had defendants not attempted to accommodate his dietary beliefs.
Id. at *14-15 (citations omitted).
In the light of these penetrating comments, Moussazadeh asserts here:
"the district court suggested that Moussazadeh brought all of this trouble on
himself by 'voluntarily committ[ing] major disciplinary violations"'. In truth,
Moussazadeh knows the district court has pinpointed exactly what he is
attempting. He even characterizes this correct statement of fact as an
expression of "remarkable hostility", requesting-unsuccessfully-this action's
being reassigned to a new judge on remand. In other words, he was aware that
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any hope of success depended on pulling the wool over the eyes of a new judge; the extremely able district judge sees this claim for what it is with 20/20 vision.
II.
In not affirming the summary judgment on the remanded issues, the majority errs in two ways. First, it applies RLUIPA's compelling-interest standard as if Moussazadeh's claim were to be analyzed in a context other than RLUIPA, such as under the Fourteenth Amendment. In that regard, RLUIPA does not require the exacting review associated with court-created strict scrutiny in such other contexts; indeed, such a harsh standard contravenes the Act's purpose. Second, in refusing to recognize what is really in play, the majority ignores TDCJ's having already provided Moussazadeh the religious benefit he seeks, and his having lost access to it through his repeated, serious disciplinary infractions.
A.
The majority cites City of Boerne v. Flores, 521 U.S. 507, 534 (1997), to support its conclusion that a very demanding standard of review is appropriate in analyzing TDCJ's kosher-food policy. Maj. Opn. at 20. There, the Court addressed the constitutionality ofRLUIPA's predecessor, the Religious Freedom Restoration Act (RFRA). City ofBoerne, 521 U.S. at 511. As the majority notes, City of Boerne stated: the test for the "least restrictive means of achieving [a compelling] interest" is the most rigorous in all of constitutional law. Id. at 534. This standard is often referred to as "fatal in fact", because it often leads to the challenged government policy's being struck down. E.g., Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984).
What the majority fails to take into consideration is that Congress' use in RFRA ofthis standard, constituting a "considerable congressional intrusion into the States' traditional prerogatives ... to regulate for the health and welfare of their citizens", is part of the reason why, in City of Boerne, RFRA was held
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unconstitutionaL 521 U.S. at 534. Therefore, In the subsequent RLUIPA
context, the standard is necessarily less stringent than its language suggests.
Precedent from the Supreme Court, our court, and other circuits bears this out.
Our court has already applied RLUIPA to kosher food vel non in TDCJ
prisons. Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007). In Baranowski, the
inmate complained ofTDCJ's complete denial of kosher food. Id. at 116-19. Our
court held: although failure to provide such food did work a substantial burden
on the inmate's religious practice, TDCJ could not be forced to add kosher food
to its menu:
Turning to the compelling interest test, Defendants must show that their dietary policy of not providing kosher meals is the least restrictive means offurthering a compelling governmental interest. As the Supreme Court recently explained, "'[c]ontext matters' in the application of that standard." Cutter [v. Wilkinson}, 544 U.S. [709, 723 (2005)], 125 S.Ct. 2113 (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)). Courts should apply the "compelling governmental interest" 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."' Id. (quoting S.Rep. No. 103-111, at 10 (1993) 1993 U.S.C.C.A.N. 1892, 1899). RLUIPA, in other words, is not meant to elevate accommodation of religious observances over the institutional need to maintain good order, security, and discipline or to control costs. See Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir.2006).
Id. at 125. This holding was consistent, of course, with the Supreme Court's
opinion in Cutter, which held:
We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not
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override other significant interests. In [Thornton v.] Caldor, [472 U.S. 703, 105 S.Ct. 2914 (1985)] the Court struck down a Connecticut law that "arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath." 472 U.S., at 709, 105 S.Ct. 2914. We held the law invalid under the Establishment Clause because it "unyielding[ly] weigh [ted]" the interests of Sabbatarians "over all other interests." Id., at 710, 105 S.Ct. 2914.
We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a "compelling governmental interest" standard, see supra, at 2118, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Gong. Rec. 26190 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act's 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." Joint Statement 16699 (quoting S.Rep. No. 103-111, at 10, U.S.Code Cong. & Admin.News 1993, pp. 1892, 1899, 1900).
Cutter, 544 U.S. at 722-23.
Baranowksi thus established that maintaining good order and controlling
costs were included in such "compelling interests", and held TDCJ's policy of
providing no kosher food whatsoever was "the least restrictive means of
furthering" those interests. Baranowski, 486 F.3d at 125-26; 44 U.S.C. § 2000cc-
1. Despite the majority's attempt to distinguish the cases on their facts, Maj.
Opn. at 20-21, Baranowski's admonition that RLUIPA does not allow religious
accommodation to overrun considerations of prison administration is general in
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Case 3:07-cv-00574 Document N23o6. 09F-il4e0d4in00TXSD on 03/05/13 Page 28 of 31 scope. As discussed, Baranowski held TDCJ did not violate RLUIPA's compelling-interest standard when it provided no kosher-food options. Accordingly, how can it violate that standard now by providing free kosher meals at one unit and making them available for purchase at several others? The majority posits, for example, that the increased cost of providing free kosher meals outside Stringfellow would be relatively minimal. Maj. Opn. at 19-20. Even if correct, that is for prison officials, not our court, to add to the mix for their decision in this instance.
Other courts have similarly determined RLUIPA's compelling-interest standard is more forgiving to prison systems than the court-created, strictscrutiny standard normally is to government policies. For example, in Hoevenaar v. Lazaroff, the inmate wanted to grow a "kouplock", a small section of hair at the base of the skull that is grown longer than the rest of the person's hair, to conform with his religious practice. 422 F.3d 366, 367 (6th Cir. 2005). The Ohio prison warden defended his system's absolute ban on long hair, noting its security interests in preventing inmates from hiding contraband in their hair and eliminating an easy way for recently-escaped inmates to quickly change their appearance (i.e. by cutting their hair). Id. at 369.
The district court ruled: because the inmate was classified only as "medium security" and in bad health, his kouplock was unlikely to pose a security threat; and the warden should have taken that into account in applying the hair-length rule to him. Id. at 368. The Sixth Circuit reversed because the district court "did not give proper deference to the opinions of ... veterans ofthe prison system". Jd. at 371. When analyzing a RLUIPA claim, courts must accord "requisite deference to the expertise and experience of prison officials" in their approach to the prison system's compelling interests and the appropriate means of achieving them. Jd.
This more deferential standard IS a far cry from court-created strict
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scrutiny, in which the whole point is for the court to apply its own judgment to determine whether a government policy is sufficiently narrowly tailored to a truly compelling interest. See Johnson v. California, 543 U.S. 499, 512-13 (2005). In this context, the summary judgment record demonstrates there is no genuine dispute of material fact that necessitates the remanded issues.
Nevertheless, the majority has impermissibly substituted its judgment for that of the professionals at TDCJ, including implicitly accepting an inmate's assessment of whether granting his wishes poses a security problem. Moussazadeh contends there is no reason to believe what worked at Stringfellow would not work at Stiles, despite TDCJ's having shown the inmates housed at Stiles tend to be far more dangerous than those at Stringfellow. The majority dismisses this clear difference in security situations as a "bare assertionO", Maj. Opn. at 19, and adopts Moussazadeh's analysis, despite the obvious fact that "a prisoner's view of what promotes prison security is hardly objective". Borzych v. Frank, 439 F.3d 388, 391 (7th Cir. 2006) (Easterbrook, J.).
Moussazadeh's alternative solution-that he and other Orthodox Jewish inmates be guaranteed they will never be transferred away from Stringfellow-presents a similarly obvious security concern. Stringfellow is not designed to house TDCJ's most dangerous inmates, and introducing some of those offenders into Stringfellow's environment would change the facility's entire character. Pursuant to the Supreme Court's admonition in Cutter, Moussazadeh's religious diet cannot be elevated above these legitimate security concerns. 544 U.S. at 723.
Moreover, TDCJ has presented legitimate concerns that granting Moussazadeh special treatment will not end there. For example, the cost and security concerns associated with providing him free kosher meals at one of TDCJ's most dangerous prisons would likely multiply, as "inmates ofother faiths would seek similar privileges". Baranowksi, 486 F.3d at 118 (quoting testimony
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of TDCJ official). These are but a few examples of the legitimate security and cost burdens
TDCJ has resolved. The majority should have deferred to the judgment ofprison officials on these questions and, accordingly, affirmed the summary judgment.
B. Moreover, in assessing whether to affirm the summary judgment on the remanded issues, the majority refuses to recognize what truly is at issue. Moussazadeh's disciplinary violations have caused this litigation to drag on. They should be an important factor in affirming the summary judgment. When housed at Stringfellow, Moussazadeh was given exactly what he seeks now: kosher food provided free of charge in the prison dining hall. He is no longer housed at Stringfellow-not because TDCJ chose to move him away from the kosher kitchen there, but because prison officials found cellular phone parts, cash, an iPod, hand-rolled cigarettes, a lighter, and marijuana in his cell. This major disciplinary infraction, which the majority glosses over, Maj. Opn. at 3, 6, downgraded Moussazadeh's security status; as a result, he was no longer eligible for housing at Stringfellow. Therefore, he was moved because of his refusal to follow well-known and necessary prison rules against contraband; yet TDCJ made a special effort to continue accommodating his claimed desire to keep kosher by transferring him to Stiles, where he could buy kosher food. Once there, Moussazadeh did not reform his behavior in order to improve his security status and earn a transfer back to Stringfellow. On the contrary, his wife smuggled more cellular phone parts to him during a visit to Stiles. Further, even though he has been eligible for transfer back to Stringfellow during part of his time at Stiles, as of oral argument for this appeal he had never requested the transfer. At base, Moussazadeh is demanding what he had not even tried to obtain for himself. Worse, he is seeking to undermine the prison system's disciplinary process. The district court recognized this fault on the inmate's
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part. Yet the majority, in refusing summary judgment to TDCJ, does not consider the conduct a factor in its decision.
The Texas prison system should not be required to choose between: giving up its right to transfer, for disciplinary reasons, inmates who keep kosher; or incurring financial and security hardships in order to accommodate, even more robustly than it already does, such inmates when they commit disciplinary violations. Our precedent is unequivocal in holding RLUIPA is not meant to impose such hardships on prison officials' ability to perform their difficult and dangerous jobs. Baranowski, 486 F.3d at 125.
III.
Consistent with RLUIPA, proper deference must be accorded decisions by prison officials. And, Moussazadeh's conduct in prison should result in even more deference being accorded. Unfortunately, the majority does just the opposite. Therefore, I must respectfully dissent from the summary judgment's not being affirmed.
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