FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

E D W AR D L E E J ONE S , J R .,

Plaintiff-Appellant
,

v

.

S. S LAD E , South Unit Property Officer COII #1777 at Arizona Departm ent of Corrections; D. M I L L E R , Em

ployee of Office of Publication Review at Arizona Departm ent of Corrections Central Office; D A

VI D S H I N N , Director, Defendants-Appellees
,
and

C HAR L E S L. R

Y A N ; C AR S ON M C W I L L I AM S ; J. G U

Z M A N ; L O R I S T I C K L EY , D efendants. No. 20-15642

D.C. No. 2:18-cv-02034- MTL-JZB

OPINION

Appeal from

the United States District Court f or the District of Arizona Michael T. Liburdi, District Judge, Presiding

Argued and Subm itted August 31, 2021 San Francisco, CaliforniaJ ONE S V

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Filed January 24, 2022

Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Kathleen Cardone, * District Judge.

Opinion by Judge Bybee

SUMMARY * *

Prisoner Civil Rights

The panel reversed the district court’s summ ary judgm ent for p rison officials in an action alleging that the confiscation of plaintiff’s m ail violated his rights under the Free Sp e e c h and Free E xercise Clauses of the F irst Amendm ent and the Religious Land Use and Institutionalized Persons Act.

Pl a i ntiff, Edward L ee Jones, Jr., is incarcerated at the Arizona State P rison Com plex. In late 2017 and early 2018, Jones ordered by m ail six h ip-hop, R&B CDs and two Nation of Islam texts. All of the item s w ere confiscated a s contraband pursuant to an Arizo n a D ep artm ent o f C o rrections (ADC) D epartm ent O rder 914 (“DO 914”), which regulates the content of incom ing m ail.

* T he Honorable Kathleen Cardone, United States District Judge f o r the W estern District of Texas, sitting by designation.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.J ONE S V

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The panel held that genuine issues of m aterial fact existed both as t o wh e ther the ADC applied its order inconsistently

as to the CDs, in violation of Jones’s free-speech rights, and whether the exclusion of Jones’s Nation of Is l a m texts substantially burdened h is religious exercise in violation o f the Religious Land Use and Institutionalized P ersons A ct (“RLUIPA”) and the Free Exercise Clause. Addressing first the claim s pertaining to the confiscation o f the CDs, the panel held that, viewing the evidence in the light m ost favorable to Jones, there was a m aterial question of fact here—whether ADC selectively enforces DO 9 14 a g ainst disfavored expression, r ap an d R &B m usical genres. Jones h ad proffered sufficient evidence of i n co nsistent application o f DO 914 to preclude summ ary judgm ent. Because a genuine issue of fact existed as to whether there was a valid, rational connection between DO 914, as applied to Jones, and ADC’s legitim ate interests in security, reh abilitation, and reducing sexual h arassm ent, the panel determ ined that it need not address the rem aining factors set forth in T urner v. S

a fley
, 482 U.S. 78 (1987). The p anel reversed the grant of summ ary judgm ent with respect to the CDs ADC withheld from Jones and rem anded for further p r oceedings, expressing no v iews on the m erits of Jones’s claim s.
Addressing the claim s relating to the confiscation of two religious t e x t s, the panel determ ined that the district court

c haracterized Jones’s religious exercise too broadly a s observing Ram adan rather than reading Nation o f Islam texts during Ram adan. Having defined th e scope of Jones’s religious exercise—reading his Nation of Islamtexts during Ram adan—the panel next held that there was a genuine issue of fact as to whether denying Jones essential religious texts during R am adan was a substantial burden on his re l ig i ous
ex ercise. Accordingly, summ ary judgm ent was in ap p r o p riateJ ONE S V

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on Jones’s RLUIPA claim

. T he panel left it to the distr i ct court on rem and to asse s s wh ether ADC could dem onstrate that applying the challenged regulation to J o nes served a
com pelling interest and m et the exceptional l y d em anding least-restrictive-m eans standard.

Th e panel further held that for the sam e reasons th at th e district court’s analysis was flawed under RLUIPA, it d id not hold up un d e r the Free Exercise Clause. Thus, it was im perm issible for the district court to focus on whether

rea d i n g Elijah Muhamm ad’s texts was required to observe Ram adan, rather than whether Jones s i ncerely believes reading these texts during Ram a dan was consistent w ith his faith. Because the di s tr ic t court d id n ot reach the Turner analysis, th e p anel left it to the district court on rem and to determ ine whether DO 914 w as rationally related to a legitim ate penological interest.

C OUNSEL

J. Matthew Rice (argued) and Ryan L. Giles
, William s & Connolly LLP, W ashington, D.C.; Easha Anand, Roderick & S o l an g e MacA

rth ur Ju s tice C e nt er, S an F ran cisco, California; for Plaintiff-Appellant.

Patrick J. B oyle, Assistant Attorney General, Mark Brnovich, Attorney G eneral ; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.

Nicholas R. Reaves, Eric C. Rassbach, and Daniel L

. Chen, Be c k e t Fund for Religious Liberty, W ashington, D.C., for Am icus Curiae Becket Fund for Religious Liberty.J ONE S V

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Co r en e Ke n dr i c k, Am erican Civil Libe rti e s Un i o n Foundation, San Francisco, Cali fo rn ia; Em erson Sykes and Vera E idelm an, Am erican Civil Liberties Union Foundation, New York, New York; Daniel Mach and Heather L. W eaver, Am erican Civil Liberties Union Foundation, W ashington, D.C.; Victoria Lopez, Am erican Civil Liberties Union Foundation of Arizona, Phoenix, Arizona; for Am ici Curiae Am erican Civil Liberties Union an d Am erican Civil Liberties Union of Arizona.

OPINION

BYBEE, Circuit Judge:

Appellant Edward Lee Jones, Jr. is incarcerated at the Arizona State Prison Com plex—Eym e n

. In late 2017 and early 2018, Jones ordered by m ail six hip-hop, R &B CDs and two Nation of Islam texts. All of the item s were confiscated

as contraband purs uant to an Arizona Departm ent o f Corrections (ADC) order, which dictates what publications

are allowed in ADC facilities. T h e issue before us is whether these confiscations violated Jones’s rights under the Free Speech and Free Exercise Clauses of the First Am endm ent,

as m ade applicable to Arizona by the Due Process Clause o f the Fo urteenth Am endm ent, or the Religious Land Use and In stitu tionalized Persons A ct (RLUIPA), 42 U.S.C. § 2 0 0 0 cc1 et seq. The district court granted summ ary judgme n t in favor o f the Arizona Defendants o n Jones’s claim s under 42 U.S.C. § 1983 and RLUIPA.

W e conclude that genu ine issues o f m aterial fact exist both as t o whether the Arizona Departm ent of Corrections applied its order inconsistently as to the CDs, in violation o fJ ONE S V

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Jones’s free-speech right s , and whether the exclusion o f Jones’s Nation of Islam texts s ub s tantially burdened his religious exercise in violation o f RLUIPA and the Free Exercise Clause. Because these questions preclude summ ary judgm ent, we reverse and rem and to the district c o urt for further proceedings.

I. BACKGROUND

A. ADC’s Inmate Mail Policy

The Arizona Departm ent of Corrections regulates the content of incom ing m ail p ursuant to Departm ent O rder 914 (DO 914)
, I

nma te Mail
, effective April 7, 2017. DO 914’s stated purpose is “m aintaining the safety, security and orderly operations of the institutions.” Under the policy, staff at each ADC facility will “open
, i n s pe ct and read incom ing m ail to prevent crim inal activity and prevent inm ates from receiving contraband or any o ther mat e r i a l that m ay b e detrim ental to the safe and o rderly operation of the institution.” DO 914.02 § 1.5. Publications—which includ e CDs, books, and

m agazines—are subject to additional procedures. First, they

m ust com e directly from a publisher, distributor, or r e ta i l er. DO 914.03 § 1.3; DO 9 14.06 § 1.4. Second, ADC staff inspect the content of each CD o r publication that enters ADC facilities “[i]n order to assist with rehabilitation and treatm ent obj ectives, reduce sexual harassm ent and prevent a hostile

e n v i ronm ent for inm ates, staff and volunteers.” DO 914.07 § 1.1. DO 914.07, titled “Unauthorized Content,” sets forth twenty broad cate g o ries, including nudity, sexual activity, street gangs, m artial arts, the functioning of security devices, drug use, weapons, com

puters, tattooing, ciphers or c o d e s, acts of violence, and canine search procedures. It also has a catch-all provision for any publication deem ed “detrim entalJ ONE S V

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to the safe, secure, and orderly operat i o n o f the institution.” DO 914.07 § 1.2. As re l e v an t here, DO 914.07 prohibits inm ates f rom receiving pub licatio n s co ntain in g th e f o llo w in g :
§ 1 .2.2.3: Publications depicting in eithe r visual, audio, or written form : “[s]exual i n t e r c o u r s e , v a g i n a l o r a n a l
, f e l l a t i o , cunnilingus, bestiality, or sodom y.”

§ 1 .2.4: “Depictions or descriptions of s treet gangs and/or Security Threat Groups (STG),

a n d r e l a t e d g a n g / S T G p a r a p h e r n a l i a , including, but n ot lim ited to, codes, signs, sym bols, photographs, drawings, training

m aterial, and catalogs.”

§ 1.2.7: “Depictions or descripti o n s , o r p r o m o t i o n o f d r u g p a r a p h e r n a l i a o r i nstructions for the brewing of alcohol ic beverages or the m anufacture or cultivation o f drugs, narcotics or poisons.”

§ 1.2.8: “Content that is orien ted toward and/or prom otes racism and/or religious oppres s i o n and the superiority of o ne race/religi o n/political group over another,

a n d / o r t h e d e g r a d a t i o n o f o n e race/religion/political group by another.”

§ 1 .2.16: “Pictures, depictions or illustrations that p rom ote acts of v iolence inc l u d i ng, but not lim ited to, m

urder, rape, sexual a s s ault,

a s s a u l t , a m p u t a t i o n , d e c a p i t a t i o n , d i s m e m b e r m e n t , m u t i l a t i o n , m a i m i n g ,J ONE S V

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d i s f

i g u r e m e n t , c r i m e s c e n e / a u t o p s y photographs, or cruelty to anim als.”

§ 1. 2

. 1 7 : “ Co nt e n t i n p ub li c a t io n s , photographs, drawings, or in any typ e o f im a g e o r text, that m ay, could reasonably be anticipated to, could reasonably result in, is o r appears to be intended t o c ause or encourage sexual excitem ent or arousal or hosti le behaviors, or that d epicts sexually suggestive settings, poses or attire, and/or depicts sexual rep r esentations of inm ates, correctional p e r s o n n e l
, l a w e n f

o r c e m e n t , m i l i t a r y , m edical/m ental health staff, programm ing staff, teachers or clergy.”

§ 1.2.20: “Any p ublication o r part of a publication that, although not specifically set forth herein, m ay otherwise be detrim ental to the safe, secure, and orderly operation of the institution.”

In o rder to prom ote consistent application of its policy, ADC m aintains a statewide database of exclusion decisions. Publica t io n review staff regularly cross-check to see if a publication under review has either been excluded or allowed by another ADC facility. Publications that have been previously excluded or allowed in one facility will sim ilarly be excluded or allowed in other ADC f acilities. Inm ates and publishers h ave thirty days to appeal the p ublication review staff’s dec i s ion to the Office of Publication Review (OPR), which h andles appeals from all ADC com plexes. DO 914.08 § 1.2. OPR’s decisions, which are denom inated “second-J ONE S V

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level review” are final and exhaust an inm ate’s adm inistrative

rem edies. DO 914.08 § 1.2.2.5.

B. Facts

The following facts are largely undisputed. Jones has been i n ADC’ s c ustody since 2008. He is a m em ber of the Na tion of Islam and a follower of the teachings of El i j ah Muhamm ad, who Jones considers to be th e l a s t prophet o f Allah. Jones believes that E lijah Muh amm ad’s writings are
es s e n t ial religious texts that provide him with religious instruction, i n cluding teachings on how to pray. Jones considers Elijah Muhamm ad’s writings central to his belief system and that reading Muhamm ad’s texts is one way he

m ay practice an d e xpress his religion. For adherents o f the Nation o f Islam
, Ram adan i s a holy m o nth of fasting, selfreflection, and service to hum anity. Nation of Islam m em bers in ADC facilities have access to the Qur’an and the ability to pray in their cells. Jones is also a fan of rap and R &B m usic.

In late 2017 an d e ar ly 2018, Jones o rdered six CDs and two b o o k s that ADC classified as contraband and confiscated. The CD’s excluded as violating DO 914.07 were:

(1) “untitled unm astered” (2016) by Kendrick L am ar, a Gram

m y - an d P u litzer P rize-winn in g artist, for v i o lating the violence and sexual excitem ent provisions, §§ 1.2.16, 17.

( 2) “Tha Blue Carpet Treatm ent” (2006) by Grammy-nom inate d artist S noop Dogg for vio l ating the gangs, drugs, and violence provisions, §§ 1.2.4, 7, 16.J ONE S V

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(3) “Street Go spel” (1997), by Suga Free for violating the sexual intercourse, gangs, drugs, violence, an d sexual excitem ent provisions, §§ 1.2.2.3, 1.2.4, 7, 16, 17.

(4) “Trials & Tr ibulations” (2013), by Ace Hoo d for violating the sexual intercourse, violence, sexual excite me nt, and catch-all provisions, §§ 1.1, 1.2.2.3, 1.2.16, 17, 20.

(5) “The D-Boy Diary Book 1” (2016) by E40 for violating the g angs, drugs, violence, and catch-all provisions, §§ 1.2.4, 7, 16, 20.

(6) “Trilogy” (2012), a triple-platinum album by Gr amm

y-winning artist The W eeknd, for violating the d

rugs and sexual e xcitem ent provisions, §§ 1.2.7, 17.

Jones requested seco n d

- level review of the CD exclusions. All exclusions were upheld by OPR.

Jones had also ordered two b ooks by Elijah Muhamm ad: Message to the Blackman in America (1965) and The Fall of Ame r ica (1973). Both were excluded under DO 914

. 0 7 § 1.2.8 for prom oting racism or the superiority of one group. ADC staff exc l u d ed the b ooks without review because each text h ad been previously excluded by an ADC facility. Jones sought second-level review of the text exclusions, but OPR inform ed Jones that the exclusions of Mes s ages to the Blackman and The Fall o f America had been upheld previ o us ly and that those second-level decisions would

rem ain final.J ONE S V

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C. Procedural History

In June 2018, Jones lodged a pro se civil rights com plaint in d istrict court under 42 U.S.C. § 1983, alleging on-its-face and as-applied violations of the Free Speech and Free Exercise C lauses of the First Am endm ent and Due Process Clause of the Fourteenth Am endm ent as well as a v iolation o f RLUIPA. Jones so ught injunctive and m onetary relief, including punitive dam ages, against seven defendants: Ch arles Ryan, the Director of the A DC; Doe #1, Deputy Director of ADC; Carson McW illiams
, ADC’s D ivision Director of Sup p ort Services; S. Slade, an ADC property officer; D. Miller, an ADC em ployee at OPR; J. Guzm an, an ADC em ployee at OPR; and Lori Stickley, Deputy W arden. The district court screened the com p laint as required by 28 U.S. C. § 1 915(a) and dism issed Defendants Doe #1, McW illiam s, and Stickley, as well as several of Jones’s claim s. The court al l owed Jones’s suit to proceed against ADC Director Ryan in his official capac i ty and against Defendants Slade, Miller, an d Guzm an in their individual capacities. 1 The court later dism issed d ef en d ant Gu zm an, and it substituted newly appointed A DC Director David Shinn for form er Director Ryan.

1 Officer Slade inform ed Jones of t he confiscation, but played no role i n reviewing the publications. Officer Miller personally review e d “un t itled unm astered” by Kendrick Lam ar and “Tha Blue Carp e t Treatm ent” by Snoop Dog as part o f OPR’s second level review, and she confirm ed the publication staff’s decision to exclude the CDs. Miller also responded to Jones’s request for second l e v e l review of Message to the Blackman in America and T he Fall of

America

. She inform ed Jones t hat OPR had already reviewed t he d ecisions t o exclude the texts so no further

re v i e w w ould take place. Officer Guzm an, who was dism issed because Jones failed to serve him
, m ade the decision t o uphold the exclusion o f the

rem aining four CDs.J ONE S V

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The district court granted summ ary judgm ent in favor o f the Defendants on all claim s. E valuating Jones’s facial challenge to DO 914 under Turner v

. Safley
, 482 U.S. 78 (1987), the court rejected Jones’s free speec h challenge, h o ld i n g th at A D C ’s i nterests—rehabilitation, reducing sexu al harassm ent, and preventing a hostile environm ent—were legitim ate and that there was a ratio nal connection between those interests and restricting inm ates’ access to explicit

m at e rials. The court f

ound that inm ates’ access to the radio and n o n-explicit publications provided an adequate alternative. The court credited ADC’s assertion that allowing prohibited m aterial would be detrim ental to the p r i s o n environm ent. And, the court found that Plaintiff’s suggestion that existing disciplinary procedures are adequate to address ADC’s concerns is n o t an obvious alternative to th e p olicy. Because the court found that all f our of th e Turner factors weighed in A DC’s favor, it concluded that DO 914.07 was not unconstitutional on its face and granted summ ary judgm ent f

or Defend an t Shinn, who was sued in his official capacity. W ith respect to Jones’s as-applied claim
, the court granted summ ary judgm ent for Defendants S lade and Miller, finding that Jones failed to dem onstrat e a dispute as to whether either defendant personally viola t ed h is First Am endm ent rights because Slade was not involved in the decisions to exclude his CDs and there was no evidence that Miller’s decisions on two of the CDs were incorrect.

The district court also granted summ ary judgm ent with respect to Jones’s RLUIPA and free-exercise claim s because the court held that the exclusion o f the two religious texts did not substantially burden Jones’s religious practice. The court concluded that Jones had “not articulated why he was able to successfully o bserve Ram adan for the 10 years p rior to 2018,

or what has o ccurred to render him now un ab le toJ ONE S V

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successfully observe Ram adan with out the b ooks he requested.”

II. STANDARD AND SCOPE OF REVIEW

W e have jurisdiction pursuant to 2 8 U.S.C. § 1291. “W e review a district court’s g rant of summ ary judgm ent de n ovo , and m ay affirm o n any basis supported by the record.” Go rd on v. Virtumundo, Inc.
, 575 F.3d 1 040, 1047 (9th Ci r. 2 00 9)

. “Our review is governed b y the sam e standard used by the trial court under Federal Rule o f Civil Procedure 56.” Id. “W e determ ine, viewing the e v i de n c e in the light m ost favorable to the nonm ov i n g party, whether there are any genuine issues of m aterial fact and whether the d istrict court correctly applied the relevant substantive law.” Wallis v. Princess Cruises, Inc. , 306 F.3d 827, 832 (9th Cir. 2002).

Jones has n arrowed the scope of our review of the district court’s order. In the district court, Jones sought an injunction ordering A DC not to destroy his property. The court denied his request, and Jones has not challenged that determ ination

on ap p e a l. Jones has not appealed the district court’s judgm ent that DO 914 is constitutional o n its face. Jones also d o es n ot challenge the grant of summ ary judgm ent as to Defendant Slade in h er individual capacity with respect to his free-speech claim

. W e are thus left with Jones’s request for declaratory and injunctive relief against ADC Director Shinn, who was sued in his official capacity, and his dam ages claim against Miller, who was sued in her individual capacity. Both of those claim s relate to Jones ’ s free speech claim with respect to the CDs. Jones also ap p ea l s the district court’s judgm ent with respect to h is RLUIPA and the Free E x ercise Clause claim s; both of those claim s relate to the bo o k s he requested.J ONE S V

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III. DISCUSSION

Jo n es h as two principal com p laint s— th at A D C p ro h ib ited his receipt o f six m

usic CDs and two books by Elijah Muhamm ad. His com

plaint concerning the CDs invokes the Free Speech Clause, wh i l e his com plaint concerning the books invokes RLUIPA and the Free Exercise Clause. As we have different considerations under these provisions, we will consider the CDs and his free-speech cl a im s first and then address the books and his RLUIPA and free-exercise claim s.

A. CDs—Free Speech

Jones argues that the exclusion of h is six CDs pursuant to DO 9 14.07 v io l a tes his First Am endm ent free-speech rights and that the district court erred in granting summ ary judgm ent. Jo n e s contends that there is a triable issue as to whether ADC applies the regulation neutrally.

It is well establish e d tha t “[p]rison walls do not form a barrier separating prison inm ates from the protections of the Cons t i tu t ion.” Turner
, 482 U.S. at 84. Inm ates retain their constitutional rights, and “[w]hen a prison regulation o r practice o ffends a f

undam ental constitutional guara n tee, fe deral courts will discharge their duty to prot e ct constitutional rights.” Id. (quoting Procunier v. Martinez
, 416 U.S. 396, 405–06 (1974)).

Prisoners have a First Am endm ent right to receive inform ation while incarcerated. Clement v. Cal. D ep’t of Corr.
, 364 F.3d 1148, 1151 (9th Cir. 2 0 0 4)

. At the sam e tim e, that principal m

ust b e balanced against the recognition that “courts are ill equipped to deal w ith the increasingly urgent p ro b lem s of prison adm inistration and reform

. ”J ONE S V

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Turner
, 482 U.S. at 8 4 (quoting Procunier
, 416 U.S. at 405). W e “apply a deferential standar d o f review to challenges regarding p rison regulations” derived from Turner

. Mauro v. Arpaio
, 188 F.3d 1054, 1058 (9th Cir. 1999) (en b an c ); see also T hornburgh v. Abbott
, 490 U.S. 40 1, 413 (1989) (“[R]egulations affecting the sending of a ‘publication’

. . . to

a prisoner m

u st be analyzed under the Turner reasonableness standard.”). Under T

urner , a “ r e g u lation is valid if it is reasonably relate d to legitim ate penological interests.” 482 U.S. at 89.

Turner requires us to consider f our factors in determ ining whether DO 914 is reasonably related to leg i t imate penological interests. 482 U. S. at 89–91; Mauro
, 188 F.3d at 1 0 58–59. First, there m ust be a “ ‘valid, rational connection’ between the prison regulation and the legitim ate governm ent interest put forth to justify it.” Turner
, 482 U.S. at 89 (quoting Block v. Rutherford
, 468 U.S. 576, 586 (1984)). S econd, we con si der whether there are alternative

m eans of exercising the right left open to inm ates. Id. at 90. Third, we weigh “the im pact [that] accomm odation of the assert ed c onstitutional right w ill have on guards and other inm ates, and on the allocation of prison resources generally.” Id. Finally, we look for ready alternatives to the policy which would indicate th a t the policy m ay be an “‘exaggerated response’ to prison concerns.” Id

.
The first Turner factor is the m ost im portant. To evaluate whether a valid, rational connect ion exists, we m ust determ ine “whether the governm en t al objective underlying the p olicy is (1) legitim ate, (2) neutral, and (3) whether the policy is ‘rationally related to that objective.’” M a u r o , 188 F.3d at 1059 (quoting Abbott , 490 U.S. at 414).J ONE S V

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The d i s trict court properly concluded that ADC offered legitim ate governm ental o bjectives to justify DO 914. Th e asserted g oal o f ADC’s m ail p olicy is “m a intaining the safety, security and o rderly operations of the institution[],” and the goal of the provisions banning certain publications is “assist[ing] with rehabilitation and treatm en t o bjectives, reduc [i ng] sexual harassm ent, and prevent[ing] a hostile environm ent for inm ates , s t a ff and volunteers.” There is no question that s ecuring the safe and orderly operation of our prisons and fostering rehabilitation of the inm a t e s are legitim ate go a l s

. S

e e Pell v. Procunier
, 417 U.S. 817, 823 (1974) (“[C]entral to all other corr ec t i ons goals is the institutional consideration of internal security

. . . .”); Turner
, 482 U.S. at 91 (prison security); Abbott
, 490 U.S. at 415 (prison secur ity ); Mauro
, 188 F.3d at 1 059 (prison security, rehabilitation, and reducing sexual harassm ent of guards).

In the district court, ADC provided affidavits from adm inistrators in Offender Operatio n s an d O P R to s u p p o rt the connection between the DO 9 1 4 and their objectives. The adm inistrators explained that “[p]ublications with depictions

or d e s c r iptions, or prom o tion of drug paraphernalia

. . . are detrim ental to the security of the prison bec au s e [they] prom ote[] prohibited behavior,” “[p]ublications that contain depictions that p r o mo te acts of violence

. . . are detrim ental to institutional security and the goals of rehabilitatio n , ” and “[p]ublications that contain depictions or descriptions o f street gangs and/or Security Threat Groups (STG)

. . . are detrim ental to the security of the prison b ecause they prom ote prohibited behavior.”

To sh o w a rational relationship between the regulation and the legitim ate interest, prison officials “need not prove that the banned m aterial actually caused problem s in the past,J ONE S V

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or that the m a terials are ‘likely’ to cause problem s in the future” unless the inm ate “pres e n ts evidence to refute a
comm on-sense connection between the regulation and the governm ent objective.” Ashker v. Cal. Dep’t o f Corr.
, 350 F.3d 9 17, 922–23 (9th Cir. 2 0 03) (quoting Mauro
, 188 F.3d at 1060). N or m ust we a g r e e with the prison officials’ judgm ent on whether the p olicy i n fa ct advances their proffered penological interests. Mauro
, 188 F.3d at 1060. Because the Defendants could reasonably belie v e that excluding publications th at co ntain sex u al co ntent, drugs, and v iolence would decrease prohibi t e d behaviors am ong inm ates, the governm ental objective underlying DO 914 is legitim ate and rationally related to ADC’s interests in prison security, rehabilitation, and reducing sexual harassm ent. See id. Further, Jones did not challenge the connection between the regulation and the objective.

But that does n o t end the inquiry under the first Turner factor. W e m

ust still determ i n e whether the challenged regulation is neutral. Turner ’s neutr a l i ty requirem ent requires som e explan ation. At issue in Turner was Missouri’s restriction on inm ate-to-inm ate correspondence. Although Missouri perm itted an inm ate to correspond with “imm ediate fam ily m e m

b e r s” who were inm ates at other institutions, it severely restricted correspondence between unrela t e d i nm ates; in fact, the district court found that the restr i c ti o n
was effectively a prohibition on such c o rr e spondence. Turner
, 4 8 2 U.S. at 81–82. Missouri explained that the restriction deterred g ang activity and prevented inm ates from

comm unicating escape plans and planning assaults. Id. at 91. The S uprem e Court held th at the appropriate test was “wheth e r prison regulations restricting inm ates’ First Am e n dme nt rights operated in a n eutral fashion, without regard to the content of the expression.” Id. at 90. AlthoughJ ONE S V

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Mis s o uri’s regulation was broader than would h ave been absolutely n ecessary, the Co urt held that the regulation was “not an exaggerated response” because it would have been “im possible to read every piece of inm ate-to-inm ate correspondence” and there was “an appreciable risk o f

m issing dangerous m essages.” Id. at 93.

In Abbott
, the Court elaborated on Turner ’s neu tr a lity requirem ent:
[T]he re gulation or practice in q u estion m ust f u r t h e r a n i m p o r t a n t o r s u b s t a n t i a l governm ental inte r est unrelated to the suppression of expression. W h ere . .

. prison adm inistrators draw distinctions between publi c a t i ons solely on the basis of their potential im

plications for prison security, the regulations are “neutral” in th e tech n ical sense in which we m eant and used that term i n Turner

.

49 0 U. S. at 415–16 (internal quotations and citations

om itted). The Fifth Circuit has explained the im portance o f the neutrality inquiry:

Requiring neutrality ensures that the prison’s application of its p o licy is actually based on the justifications it purports, and not

som ething m ore nefarious. W ere we to ignore Turner ’s neutrality requirem ent, we would allow prison regulators to justify a policy based o n a legitim ate interest applicable to the overall prison population, while applying the policy in an arbitrary o r discrim inatoryJ ONE S V

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m anner in violation of a p articular subgroup’s First Am endm ent rights.

Mayfield v. Tex. Dep’t of Crim. Just.
, 5 29 F.3d 599, 609 (5th Cir. 2008).

Turner neutrality is not the “content neutrality” we dem and in other areas of F ir st Am endm ent jurisprudence. See Ward v. Rock Against Racism
, 4 91 U.S. 781, 791 (1989) ( “Governm ent regulation of expressive activity is content neutral so lo ng as it is justified without reference to the content of the regulated speech.” ( i n ternal quotations and

em phasis om itted)). Prison regulations of speech need not be content neutral like tim e, place, and m anner restrictions, see Pell
, 417 U.S. at 826–27; in f act, th e y may be content intensive. See Turner
, 482 U .S. at 8 8 (distinguishing contentbased prison regulation s fr o m true tim e, place, and m anner restrictions); H

anrahan v. Mohr
, 905 F.3d 947, 955 (6th Cir. 2018) (“Appellants are incorrect that th e ‘neutrality’ requirem ent of Turn e r ’s f irst prong requires a prison regulation to be com

pletely content neutral.”). Pr i son offici als m ay restrict inm ates’ access to m aterials d ealing with sex, vio l e nce, d

rugs, and gangs—censorship that we would not perm it in other contexts. T urner has m ade clear th a t regulations that could n ot withstand constitutional scrutin y o u t s ide of the prison context m ay be acceptable inside an institution. See Beard v. B a nks
, 548 U.S. 521, 528 (2006) (plurality opinion) (“[T]he Constitution som etim es perm its g r e a ter restriction of such rights in a prison than it would allow elsewhere.”); Abu-Jamal v. Price
, 154 F .3d 128, 133–34 (3d Cir. 1998) (“W e analyze content neutrality in the prison context differently than we do for non-inm ates.”).J ONE S V

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As in Turner
, the Arizona p r ocedure at issue here is not content neutral in the traditional sense

. DO 914 is contentfocused. But on appeal, Jones d o e s not challenge the regulation on its face. He does not argue that ADC m ay not suppress m

usic that h as sexually explicit lyrics or lyrics that prom ote violence or drugs. Rather, his claim is that Arizona has been inconsistent in its appl i c a t i on of its regulation in a way that is not content neutral w ithin the category of suppressible media

. He argues th a t c e rtain genres o f

m usic—particularly rap m usic—are censored, while other

m usic, TV shows, or m ovies are p erm itted, even though they also have explicit sexu al
, drug, or violent content. Effectively, the question Jones raises is not whether ADC can suppress certain k inds o f co n tent, but whether ADC has applied th e r e g u l ation in a neutral fashion. See Turner
, 482 U.S. at 89–90. The Suprem e Court has explained that in considering the reasonableness of a prison regulation “it [is] im portant to inquire whether pr i son regulations restricting i n mates’ F irst Am endm ent rights operated in a neutral fashion.” Id. at 90.

When there is evidence that an otherwise legitim ate policy is being applied in a discrim inatory m anner, w e inquire whether the unequal applicat io n of the policy defeats the rational relationship b etw een th e p o l icy and the governm ent’s

asser ted justification. S ee id. Evidence of inconsistent application of a regulation m ay be proof that the p olicy is not neutral and m ay preclude sum m ary judgm ent on an asapplied challenge. See Mayfield
, 529 F.3d at 6 0 9 (“[U]nder Turner
, n eutrality m

ust be ensured, or its absence sufficiently explained in light of a legitim ate penological interest, for

sum m ary j u d gm ent to be appropriate.”); Abu-Jamal
, 1 5 4 F

. 3 d at 134 (explaining that because “the Departme nt’s enforcem ent of the [challenged rule], was m otivated, at leastJ ONE S V

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in part, by the conte n t of [plaintiff’s] articles

. . . the actions were not content neutral”).

Jones has proffered sufficient evidence of i nconsistent application of DO 914 to preclude summ ary judgm ent. Jones subm itted three affidavits, his own and those o f two other ADC prisoners, Hawk i n s and Page, alleging that ADC’s exclusions between 2 015–2018 targeted black artists and that ADC has not applied DO 914 consistently. ADC argues that

we should not credit Jo ne s ’ s affidavits because they are unsupported by factual data and “[n]either Jones n o r the other two inm ates co u ld possibly claim to h ave personal knowledge of how the OPR applies DO 9 14.07 o n a statewide b asis.” But Jones is not required to provide a com prehensive study o f ADC’s statewide im

plem entation of DO 914. That Jones and the other two inm ates are just three of “over 39,000 inm ates in the Ariz o n a prison system ” does not underm ine their personal experience with the policy. All three m en have been incarcerated in ADC’ s facilities for periods spanning from 1998 to the p resent and have testified to their experience with the im p lem entat i o n o f DO 914 and the type of m edia that is available in ADC f

acilities. Jones, Hawkins, and Page each spoke to specific instances in which content that violates D O 914 was allowed.

Further, Jones subm it t e d evidence that inm ates at ADC have access to a range of other m edia, including books and television shows, that contai n content clearly v iolating D O 914.07. W e would expect som e inconsistencies in any policy that delegates exclusions to m ultiple decision m akers. Even the clearest of policies would not b e imm une from hum an
error. But the inconsistencies identified by Jones go b eyond the occasional explicit song being allowed or boo k b e i ng excluded. Jones has supplied som e evid e n c e that ADCJ ONE S V

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affirmatively provides inm ates access to books, m usic, an d television pr ogram s that p lainly v iolate DO 914. For

exam p le, Jones subm itted evidence that inm ates have access to shows like L.A. Gang Wars ; Moonshiners ; Dr ug s, Inc. ; Nazi Underworld ; A ryan Brotherhood ; an d De x ter

. W e cannot determ ine m erely by reading the titl es whether these

m aterials violate ADC’s prohibitions on publications containing “depictions o r descriptions” of “street gangs” o r “drug paraphernalia” but we m ay draw a reasonable inference that they do. See DO 914.07 § 1.2.4, 1.2.7. Jones also pro v ided excerpts f

rom ADC’s library catalog and inm ate testim ony showing that ADC provide s inm ates access to books like Jam es Patterson’s Kiss the Girls
, a psychological thriller about the serial killing o f y oung wom en, and an entire selection of rom ance novels, which “may

. . . cause o r
e n c o urage sexual excitem ent.” Id. § 1.2.17. Providi n g inm ates access to the type o f content ADC cl a i ms i s “detrim ental to in s titutional security and the goals o f

r ehabilitation,” calls into question the rational relationship between DO 914 and ADC’s legitim ate p enological interests and the reasonableness o f the policy. Cf. Pell
, 4 17 U.S. at 828 (“So l ong as this restriction o perates in a neutral fashion, w ithout regard to the content of the expression, it

. . . does not abridge any First Am endm ent freedom s retained by prison inm ates.”).

W e repeat: Variations in the enforcem ent of a policy will not always rise to the level of inco n sistent application. Turner does not require ADC to apply DO 914 without error to the hundreds of m agazines an d p ub l ications that ADC’s prison com

plexes receiv e e a ch week. A DC candidly adm itted before the d istrict court that “des p i t e i ts best efforts[, ADC] does not keep out all unauthorized m aterial.” And w e agree with ADC’s assertion that “[t]he te s t is n otJ ONE S V

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whether all possible content that could be excluded is actually excluded.” I n d e ed, the Suprem e C ourt acknowledged in Abbott that “seem ing ‘inconsisten cies’” produced b y the exercise of discretion in applying p rison regulations “are not

neces sa rily signs of arbitrariness or irrationality.” Abbott
, 490 U.S. at 4 17 n.15. But d espite holding that the regulations in Abbott were facially valid, the Court rem anded fo r consideration of the re spondents’ claim that “variability in enforce m ent o f the regulations stem s from the censors’ subjective views.” Id. at 417 n.15, 419

. The Court explained th a t whether exclusions are in f act based on the prison’s

asse rt e d security interest “go[es] to the adequacy of the regulations as applied.” Id. at 417 n.15.

The district court acknowledged Jones’s argum ent that “a

m ajority of [ A DC’s] exclu s i o n s targeted black artists” and that “OPR is not and h as never b een consistent in publications decisions.” Nevertheless, with respect to Jones’s as-applied claim against Officer Miller, the district court concluded that Jones did “not allege that the CDs [Officer] Miller reviewed did not violate DO 914.07, nor [did] he present any evidence that Miller incorrectly applied DO 9 1 4.07.” The district court did not address Jones’s request for declaratory and injunctive relief against W arden Shinn, which w ould necessarily require a broader inquiry than Officer Miller’s decision.

W e think the district court m isconceived its responsibility with respect to the as-applied challenge. At this stage of the l i tigation, Jones does not contest that the CDs he ordere d

m ight violate DO 914. Rather, he claim s that they were excluded, while other objectionable m aterial was rout i n ely

m ade accessible to inm a t e s. His is a com parative claim

. It

m ay well be that O fficer Miller correctly appl i ed DO 914; Jones’s claim is that DO 914 w as consistently applied to rapJ ONE S V

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m usic b ut inconsistently applied to other m usic genres and

m edia. And that calls into question the n eutrality of DO 914

as it is applied and, thus, the legitim acy of ADC’s policy. Viewing the evidence in the light m ost favorable t o J ones, there is a m at e r ial question of fact here—whether ADC selectively enforces DO 914 against disfavore d expression, rap and R &B m

usical genres. The district c o urt s hould not have g ranted summ ary judgm ent on this recor d

. See Mayfield
, 5 29 F.3d at 608–09 (holding th a t affidavits from two o ther inm ates that a p rison’s policy was not im p osed against certain groups was sufficient to raise a m aterial issue of fact as to neutrality).

The f irst Turner factor is a sine qu a non. See Shaw v. Murphy
, 532 U.S. 223, 229–30 (2001) (“If th e c onnection between the regulation and th e asserted goal is ‘arbitrary o r irr a tional,’ then the regulation fails, irrespective o f whether the o ther factors til t i n its favor.” (citation om itted)); Morrison v. Hall
, 261 F.3d 896, 907 (9th Cir. 2001); Prison Legal News v. Cook
, 238 F.3d 1145, 115 1 (9th C ir. 2 001) (citing Walker v. S

umner , 917 F.2d 382, 385 (9th Cir. 1990)). Becaus e a g enuine issue of f act rem ains as to whether there is a valid, rational connection between D O 914, as applied to Jones, and ADC’s legiti m a t e interests in security, rehabilitation, and reducing sexual harassm ent, we need not address the rem aining T

urner factors. W e r everse the grant of summ ary ju dgm ent w ith respect to the C D’s ADC withheld from Jones and rem and for further proceedings. W e express no views on the m erits of Jones’s claim s. 2

2 We note that Jones cannot sustain his dam ages claim against Officer Miller unless h e can dem o nstrate that she p ersonally applied DO 9 1 4 inconsistently. He m ay, however, be able to m aintain his c laim f o r equitable relief against W arden Shinn if he can dem onstrate system icJ ONE S V

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B. Religious Texts

Jones’s rem aining claim s relate to the confiscation of two religious texts, Message to the Blackman in America and The Fa l l of America
, b oth by Elijah Muhamm ad. The distri ct court held that Jones “failed to d em onstrate that the exclusion of his two requested b ooks has substantially burden e d his religious practice,” defeating both his RLUIPA and Free Ex e rcise Clause claim s. O n appeal, Jones argues that th e district court m isidentified the religious exercise at issue, i mposed a categorical forfeiture rule unsupported by RLUIPA, and did not vie w th e fa cts in the light m ost favorable to Jones, as is required o n summ ary judgm ent. W e agree.

1. RLUIPA

RLUIPA provides that “[n]o governm ent shall im pose a substantial b urden on the religious exercise of a person

r e s i d i ng in or confined to an institution,” unless th e governm ent can dem onstrate that the burden “is in furtherance o f a com

p elling g overnm ental interest” and “the least restrictive m e an s of furthering that com pelling governm ental interest.” 4 2 U.S.C. § 2000cc-1(a). Those statutory standards, drawn from S herbert v. Verner
, 374 U.S. 398, 403, 406 (1963), and Wisconsin v. Y oder
, 4 06 U.S. 205, 214–15, 221, 236 (1972), are m ore generous to the religiously

o bs e rv an t than the Free Exercise Clause. See E mp. Div. v. Smith
, 494 U.S. 872, 883–84 (1990) (lim iting Sherbert to “the

unem ploym ent com

pensation field”); see a ls o Religious Freedom Restoration Act of 1993, 42 U .S.C. § 2000bb(b)(1) (adopting a sim ilar standard to RLUIPA and citing S h erbert

inconsistency by the m any officers who enforce DO 914.J ONE S V

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and Yoder)

. RLUIPA covers state-run institutions including prisons, where “the governm ent exerts a d e g r e e of control unparalleled in civilian society and severely disab l i n g to private religious exercise.” Cutter v. Wilkinson
, 544 U. S. 709, 7 20

– 2 1 (2005) (citing 146 Cong. Rec. 16698, 16699 (2000) (joint statem ent o f Sen. Hatch and Sen. Ke nn e dy on RLUIPA)). 3 RLUI PA r eflects a congressional effort to accord heightened protection to religious exercise. Id. at 714. As such, RLUIPA is to be “construed br oa d l y in favor o f protecting an inm ate’s right to exercise his religious beliefs.” Wa r s o ldier v. Woodford
, 418 F.3d 989, 995 (9th Cir. 2 005) (citing 42 U.S.C. § 2000cc-3(g)). 4

Under RLUIPA, the plaintiff bears the initial burden o f dem onstrating that an institution’s policy constitute s a substantial burden on his e xe r cise of religion. 42 U.S.C. § 2000cc-2(b). A policy m ay im pose a substantial burden on religious exerci s e in a num ber of ways. A regulation m ay im pact religious exercise directly, by forbidding conduct that

an inm ate believes h e i s religiously com pelled to do, see O’Lone v. Est. ofShabazz
, 482 U.S. 342, 344–45, 347 (1987)

3 R LU IPA applies to the S tates and t heir subdivisions and is an exercise of congressional au th o rity under the Spending and Comm erce Clauses. See 42 U.S.C. § 2000cc-1(b); Holt v. H obbs
, 574 U.S. 352, 3 5 7 (2015). ADC does not contest that it is subject to RLUIPA.

4 Monetary dam ages are not available against prison officials i n their individual capacities under RLUIPA. Sossamon v. Texas
, 563 U.S. 277, 285 (2011) (holding RLUIPA’s authorization o f “appropriate re l i ef” did not “clearly and unam

biguously waive sovereign im m unity to private su its for dam ages”). A RLUIPA plaintiff m ay only sue defendants in their officia l capacities for prospective injunctive relief. Woody v. Yordy
, 753 F.3d 899, 904 (9th Cir. 2014) (“[RLUIPA] does not au th o ri ze suits against a person in anything other than an o fficial or governm ental capacity . . . .”).J ONE S V

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(assigning Muslim prisoners to a work schedule that prevented th e m from attending F riday prayer services

comm anded by Qur’an), o r by com pelling an inm ate to do that which he believes he is religiously forbidden from doing,

see H olt
, 5 74 U.S. at 355, 359 (requiring Muslim prisoner to violate religious beliefs that forbade trimm ing his b eard); Warsoldier
, 418 F .3d at 992, 995–96 (requiring Native Am erican prisoner to violate re ligious beliefs that forbade cutting his h air)

. M o r e subtly, a regulation m ay im pact religious exercise indirectly, by encouraging an inm ate to do that which he i s religiously prohibited or d iscouraged from doin g, s e e Greenhill v. Clarke
, 944 F .3d 243, 2 5 0–51 (4th Cir. 2019) (withholding participation in religious services “as

an incentive to im

prove inm ate conduct”), or by discouraging

an inm ate from doing that which he is religiously com pelled

or e n co ur a g ed to do, see Jones v. C arter , 915 F.3d 1147, 1 1 5 0

– 5 1 (7 th C ir. 2 0 1 9 ) (discouragin g inm ates f r o m ch o o sin g halal m eals by charging for h alal m eat); Shilling v. Crawford
, 536 F. Supp. 2d 1227, 1233 (D. N ev. 2008) (offering Jewish prisoner the choice between s t ay i ng at a m edium security facility withou t kosher m eals or transferring to a m aximum
sec ur i ty facility with kosher m eals), a ff’d 377 F. App’x 702 (9th C ir. 2010). See also S herbert
, 374 U.S. at 404 (holding that a state m ay not force a person “to choose between following the p recepts of her religion and forfeiting benefits

. . . . Governm ental im

position of such a choice puts the sam e kind of burde n upon the f ree exercise of religion as would a fine im posed against [ a person] for her

. . . worship”). The difference between these categories m ay not always be clear, but the fram ework m ay help us understand what is at stake.

Once an inm ate m akes a p rim a facie showing, the burden shifts to the governm ent to prove that the burden is the least restrictive m eans of furthering a com p elling gov e rn mentalJ ONE S V

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interest. 4 2 U.S.C. §§ 2000cc-1(a), -2(b); see Fuqua v. Ryan
, 890 F.3d 838, 848 (9th C ir. 2018). Although RLUIPA adopts

a com pelling interest standard, context m atters in the app l ication of the standard, and courts should act with “due deference to the experience and expertise of prison an d j ail adm inistrators in establishing necessary regulations an d procedures to m aintain good order, se c ur ity and discipline, consistent with consideration of costs and lim ited resources.” Cutter , 544 U.S. at 723 (quoting 146 Cong. Rec. at 16699).

a. Substantial burden on religious exercise

In assessing a RLUIPA c l aim
, w e m ust first identify the religious exercise at issue. Gr e e ne v. Solano Cnty. Jail
, 513 F .3d 9 8 2, 9 8 7 (9th Cir. 2008). Jones argues that his religious exercise is “the reading of essential Nation of Islam texts during Ra ma d an,” while ADC argues that the exercise is “observing Ram adan,” which A DC cl a im s Jones m ay do without reading Elijah Muham m ad’s books.

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not com pelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). That m eans that RLUIPA protects not o nly practices deem ed orthodox by som e recognized religious organization, but also idiosyncratic practices—practices “not com p e l led by, o r central, to a [ given] system o f religious belief.” Id. It also

m eans that RLUIPA not only protects an inm ate’s past religious practices, but also changes in his religious practice within a tradition or conversion from one tradition to another. W e have read RLUIPA’s reference to “any exercise o f religion” literally (and thus b roadly in favor o f inm ates) to include not only “the belief and profession” of faith, but also individual “physical acts [such as] assem bling with others forJ ONE S V

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a worship service [or] participating in sacram ental u se o f bread and w ine.” Greene
, 513 F. 3d at 987 (alteration in

or iginal) (quoting Cutter
, 544 U.S. at 720); see also Holt
, 574 U.S. at 361–62 (religious exercise w as “the growing o f

a 1/2-inch beard”); Greene
, 513 F .3d at 988 (relevant exercise

was group worship not Christianity); San Jose Christian Coll.

v. C ity of Morgan Hill
, 360 F.3d 1024, 1034 (9th Cir. 2 004) (relevant exerc i s e w as a C hristian school’s attem pted “conversion of real property for the purpose of religio u s exercise” (quoting 42 U.S.C. § 2000cc-5(7)(B)); accord Baranowski v. Ha r t , 486 F.3d 112, 124 (5th C ir. 2 007) (relevant exe r c i se was k eeping kosher and observing the Jewish Sabbath); Spratt v. R.I. De p ’t o f Corr.
, 482 F.3d 33, 38 (1st Cir. 2 007) (relevant exercise w as inm ate’s abil ity to preach to other inm ates); Lovelace v. Lee
, 472 F.3d 1 7 4
, 187 –8 8 (4th C ir. 2006) (religious exercise was observing Ram adan and attending group prayer services).

The district court characterized Jones’s religious exercise broadly as observing Ram adan rather than reading Nation o f Islam texts dur i n g Ram adan. Its treatm ent of Jones’s claim

was not entirely consistent

. The district court first characterized Jones’s RLUIPA claim during the statutory screening of the initial com p laint per 28 U.S.C. § 1915A(b)(1)–(2) as follows:

Plaintiff claim s Defendant Miller’s decision denied Plaintiff h i s du e process right to his prope rty and his rights under RLUIPA because he was denied h is “ r i ght to read his Nation of Islam text during Ram adan as he

norma l l y does every year” and he was not able to “freely practice [his] religious beliefs”

or “ o btain religious instructions through hisJ ONE S V

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religious literatu re during the holy m onth o f Ram adan.”

This w as in line with Jones’s own declaration whi c h s ta ted that “ [t]he religious practice in question here, is not per se Ram adan itself, but for Mr. Jones, to be able t o pur c hase, possess and read his choice o f religious text, authored by the (Prophet) and Honorable Elijah Muhamm ad

. . . during Ram adan an d i n General.” In its summ ary judgm ent decision, h owever, the d istrict court first repeat e d that the religious exercise at issue was Jon es ’ s “ r ight to read his Nation of Islam text during R am adan
, as he normally does
every year .” (Em

phasis altered). B ut when the court reached the subs t antial burden analysis, it only assessed whether Jones was able to “successfully observe Ram adan without the books he requested.” (Em phasis in original). E ffectively, the district court asked whether Jones could observe Ram adan without reading Muhamm ad’s texts because it thought Jones had done so before.

It was error for the d istrict court to re-characterize Jones’s religious obl i ga tions at a higher level of generality. In Greene
, we addressed the level of specificity we m ust consider when addressing RLUIPA claim s. 513 F.3d at 987–88. Gre e n e wa s an inm ate housed in the m aximum
s ec ur i ty unit of the county jail, awaiting trial on charges of

m aking terrorist threats and false im p risonm ent. Id. at 9 8 5

. Gr eene asked to attend religious services and attem p ted to conduct g roup Bible studi es and other comm unal m eetings. Id. Instead, the county offered h im a Bible, relig io u s texts, and a visit fr o m the chaplain. Id. The county urged u s to consi d er Greene’s “religious exercise” as “the g eneral practice o f one’s religion rather than any particular practice” so that the county could “impose outright bans on particularJ ONE S V

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aspects o f an inm ate’s religious exercise, so long as, in the aggregate, those bans d o not am ount to a substantial burden.” Id. at 9 87. W e rejected the county’s reading of RLUIPA and held that “the ‘religious exercise’ at issue in Greene’s lawsuit is gr o up worship, not Christianity.” Id. at 988. S o defined,

we easily concluded that the county’s ban on group worship

was a substantial burden on Greene’s religious exercise, and the burden shifted to the county to show that i t h a d a
com pelling interest and had im posed the least restricti ve

m eans of securing that interest. Id. at 988–90.

Having defined the scope of Jones’s religious exercise—reading his Nation of Islam texts durin g Ram adan—we next consider whether excluding Jones’s texts

as contraband constitutes a substantial b urden on his religious exercise. A substantial burden exists when the state places “substantial pressure on an adherent t o m o dify h is behavior and to violate hi s beliefs.” Warsoldier
, 418 F.3d at 995 (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.
, 450 U.S. 707, 718 (1981)). The burden m ust im pose “a significantly great restric t i o n or onus upon such exercise.” Id. (quoting San Jose Christian C

oll.
, 360 F.3d at 1 034). The district court f o und that withholding Muhamm ad’s texts im posed no substantial burden o n Jones’s religious exercise be cause Jones d id not “articulate[] why h e was able to s u c cessfully observe Ram adan for the 1 0 years prior to 2018, or what has occurred to render him now unable t o s uccessfully observe Ram adan w itho ut the books h e requested.” 5 Because

5 W e are puzzled b y the bas i s fo r th e district court’s i nference t hat Jones had n ot previously read Muhamm a d ’s texts in connection with Ram adan. Jones’s com

plaint stated: “Plaintiff [was] denied [the] right to read his Nation of Islam texts d uring Ram adan, as he normally does every year .” At this st age, we are required to view the record evidence in theJ ONE S V

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RLUIPA does not require Jones to show his religious exercise

was either required by his faith or consistent with his past observance, we disagree.

First, Jones’s right to read religious texts during Ram adan is protected b y RLUI PA whether he has read those texts every year during Ram adan or only r ecently cam e to the conclusion that he should d o so. W e do not “prescribe what shall be orthodox in

. . . religion, or other m atters of opinion.” W. Va. State Bd. of

Ed. v. Barnette
, 3 19 U.S. 624, 642 (1943). J ones does not forfeit his claim because he m ay have previously f

ailed to adhere to the practice of reading the texts during R am adan. S

ee Malik v. Brown
, 16 F.3d 330, 333 (9th Cir. 1 994) (holding tha t p l a i ntiff had a valid f ree exercise claim based o n h i s d esire to use his Islam ic nam e in prison,

even though he did not use that nam e at the tim e of his conversion), supplemented
, 65 F.3d 148 (9th Cir. 1995). The Suprem e Court has explained that the tim ing of the adoption of a religious belief is “imm aterial” to the d e t e rmi n ation o f whether a person’s religious exercise has been burdened. Hobbie v. Une mp loyment Appeals C omm’n
, 4 8 0 U.S. 136, 144 ( 1 9 8 7) (refusing to “single out the religious convert for different, less favorable treatm ent than that given an individual whose adhere n ce to h is or her faith [is less recent]”); see a lso C

allahan v. Woods
, 658 F.2d 6 79, 687 (9th

light m ost favorable to Jones. Adickes v. S.H. Kress & Co.
, 398 U.S. 144, 157 ( 1970). That statem ent suggests to us that Jones had read Muhamm ad during Ram ad a n , a l though i t does not state how h e had access to Muhamm ad’s books. T he record s h o w s that Jones was transferred to a
new housing unit less t

han tw o m o nth s before he ordered the Elijah Muhamm ad texts. One inference in Jones’s favor is that he had access to the texts until the tim e of his t ransfer. Nevertheless, the district court

assum ed that Jones “was able to successfully o bserve Ram adan for the 10 years p rior to 2018 . . . without the books he requested.”J ONE S V

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Cir. 1 981) (“So long as one’s f aith is religiously based at the tim e it is asserted, it should not m atter

. . . whether that faith d eriv ed f ro m rev elatio n , study, upbringin g , g rad u al ev o lutio n , or som e source that appears entirely incom pre h e n sible.”). There is no legal b asis to fault Jones for not adding the study of E lijah Muhamm ad’s texts during R am adan to his religious practice sooner; he did not waive h i s ri g hts by not studying these texts in the past.

Se co nd, the district court’s inquiry into whether th e
re l i g ious texts are required f or Jones to observe Ram adan

m isunderstood the RLUIPA analysis. RLUIPA explicitly applies to “any exercise o f religion, whether or not compelled b y

. . . a system of religious b elief.” 42 U.S.C. § 20 0 0 c c

5(7)(A) (em

phasis added); see Holt
, 574 U.S. a t 362 (“RLUIPA

. . . applies to an exercise of religion regardless o f whether it is com

pelled.” (internal qu o t a tions and citation

om itted)). W e have h eld that “RLUIPA ‘bars inquiry into whether a particular belief o r p r a ctice is central to a prisoner’s religion. ’ ” Gr eene , 513 F.3d at 986 (internal quotations omi t t e d ) (quoting Cutter
, 544 U.S. at 725 n .13). It is enough that reading Elijah Muhamma d’s texts during Ram d an is a sincere com

p onent of Jones’s religious practice, without reference to whether Jones, or other m em b ers of the Nation of Islam , consider the practice m andatory. See Holt
, 574 U.S. at 362–63 (“RLUI PA

. . . is ‘not lim ited to beliefs which are shared by all of the m em bers of a religious sect.’” (qu o ti n g Thomas
, 450 U.S. at 715–16)). Even so, Jones offered evidence that the teachings o f Elijah Muhamm ad, and particularly his writings in Message to the Blackman in America
, inform the Natio n of Islam ’s celebration o f Ram adan and offered testim ony that the writi ng s o f Elijah Muhamm ad are central to his belief system

. In Su t t on v. Rasheed
, the Third Circuit h eld that the deprivation of ElijahJ ONE S V

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34

Muhamm ad’s texts was sufficient t o make out a Free Exercise claim and that the rea ding of these texts is “a necessary elem ent” of the exercise of the Na t i o n o f Islam faith. 323 F .3d 236, 256 (3d Cir. 2003). Surely, if these texts are essential to the religion, a reasonable jury could find the denial of these texts during Ram adan, a holy tim e of spiritual reflection, constitutes a substantial burden.

By excluding Messages to the Blackman in America and The Fall of

America
, the operation of D O 914 at least burdens Jones’s general exercise of h is Islam ic beliefs. W e have h ad “little difficulty

. . . c o n cluding that an outright ban on a particul ar r e ligious exercise is a substantial b urden on that religious exercise.” Greene
, 513 F.3d at 988. Because there is a genuine issue of fact as to wheth e r d e nying Jones essential re l i g i ous texts during Ram adan is a substantial burden o n h i s r eligious exercise, summ ary judgm ent was inappropriate on Jones’s RLUIPA claim

.
b. Least restrictive m eans of furthering a com pelling interest

Finding n o substantial bur de n , the d istrict court did not

assess whether ADC’s policy is the least restrictive m eans to further a com

pelling interest. ADC argues its regulations are
narro wl y t ailored to the com pelling g overnm ent interest in ins t i tu tional security. T o carry its burden under RLUIPA, ADC m ust show “it has actually considered and rejected the efficacy of less restrictive m easures b e fo r e adopting the challenged practice.” Warsoldier
, 418 F.3d at 999; see also Holt
, 5 74 U.S. at 362–63 (RLUIPA requires courts to “scrutiniz[e] the asserted harm of granting spe c ific

exem p tions to particular religious claim ants” (alteration in original)). This is a fact-intensive inquiry o n wh i c h theJ ONE S V

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record is not d e v e l o p ed. W e leave it to the district court on
rem and to assess whether ADC can dem onstrate that app ly in g the challenged regulation to Jo ne s s erves a com pelling interest and m eets the “exceptionally dem an d i n g” leastrestrictive-m eans standard. Holt
, 5 74 U.S. at 36 4 (quoting Burwell v. Hobby Lo b by Sto res, Inc.
, 573 U.S. 682, 728 (2014)).

2. Free Exercise Clause

The Free Exercise Clause o f the First Am endm ent, m ade applicable to the States through the Fourteenth Am endm ent, provides that “Congress s h a l l m ake no law respecting an establishm ent of religion, or prohibiting the free exercise thereof

. . . .” U.S. Cons t

. a me n d. I

. T he right to free exercise is to be “jealously guarded.” Ward v. Walsh
, 1 F.3d 873, 876 (9th Cir. 1 993). B ut f ree e x ercise is necessarily lim ited by the fact of incarceration and “m ay be curtailed in order to achieve legitim ate correctional goals or to m aintain prison security.” Id. (citing O’Lone
, 482 U.S. at 348). T o

m erit protection under the Free Ex e rcise Clause, Jones’s belief m ust be “sincerely held” and rel i g i o u s in nature. Malik
, 16 F.3d at 333. Once a claim ant dem onstrates that the ch allenged regulation im

pinges on h i s sin cerely h eld relig io u s exercise, the burden shifts to the governm ent to show that the regulation is “reasonably related to legi t im ate penological interests.” Walker v. Beard
, 789 F. 3 d 1125, 1138 (9th Cir. 2015) (qu ot i n g Turner
, 482 U.S. at 89). As we d id with respect to Jones’s F ree Speech claim
, we use the Turner factors to evaluate whether a p rison regulation im plicating an inm ate’s free exercise right is valid. Shakur v. Sch ri ro , 514 F.3d 878, 884 (9th Cir. 2008); Ward
, 1 F .3d at 8 7 6–77

. W e note that the Free Exercise Clause analysis d iffers fro m RLUIPA’s analysis in at least two ways: (1) RLUIPA has anJ ONE S V

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36
expanded definition of religious exerci se, and (2) RLUIPA requires the governm ent use the least restrictive m ean s t o advance a com

pelling interest, wh ile the Free E xercise Clause only requires that the regulation be reasonably related to legitim ate penological interests. Greene , 513 F.3d at 986.

The district c ourt concluded that W arden Shinn was entitled to summ ary judgm ent under the Free Exercise Clause because Jones “failed to dem onstrate that D efendants’ [sic] have substantially b ur d e n ed the practice of his religion by

ex cl u d i ng his two requested books.” For the sam e reasons that th e district court’s analysis was f lawed under RLUIPA, it does not hold up under the Free Exercise Clause. The Free Exercise Clause does not require plaintiffs to p rove the centrality or consistency of their religious practice: “It is not within the judicial ken to question the centrality of particular beliefs o r p ractices to a faith.” Hernandez v. Comm’r
, 490 U .S. 680, 69 9 ( 1 989); see also Smith
, 4 94 U.S. at 887 (“Repeatedly and in m any different contexts, we have w arned that courts m

ust not p resume t o d et erm ine the place of a particular belief i n a religion

. . . .”); Callahan
, 658 F.2d at 685 (“In app l y i n g the free exercise clause of the First Am endm ent, courts m ay not inquire into the truth, validity, o r reasonableness of a claim ant’s religious belief s. ”). In S hakur
, we assessed whether a plaintiff bringing a free-exercise claim is requ ired to show that the defendant “burdened conduct

m andated by his faith.” 514 F.3d at 8 84 (internal quotations

om itted). T aking into account the Suprem e Court’s p rior disapproval o f a centrality test, we held that “the sincerity test set forth in Malik and Callahan determ ines whether the Free Exercise Cl ause applies.” Id. at 884–85. Here, just as in Shakur
, it w as im

p erm issible for the district court to f ocus on whether reading Eli

j ah M uhamm ad’s texts is required to observe Ram adan, rather than whether Jo n es sincerelyJ ONE S V

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believes reading these texts during Rama d an is consistent with his faith. Id. at 885.

W e have also explained that “religious clai ms that have developed over tim e are protected to the sam e extent as those that occ ur in a m om ent.” Malik
, 16 F.3d at 333 (citing Hobbie
, 480 U.S. at 144 n.9). That Jones m ay have observed Ram adan without access to Elijah Muhamm ad’s texts in the past does n ot a ffect his f ree-exercise claim

. See id. (“The ten-year gap b etween when Malik legally changed his nam e and when he began to use it exclusi v e l y does not attenuate Malik’s free exercise claim .”).

The district court found that Jones’s religious beliefs are sincerely held, and neither p arty contests this finding on appeal. Because there is a m aterial quest io n as to whether ADC’s exclusio n o f Jones’s religious texts pursuant to D O 914 infringes on his r i ght to engage in his sincerely held religious belief, summ ary judgm ent was inappropriate. Because the district court did n o t r e a ch the Turner analysis,

we leave it to the district court o n r em and to determ ine whether DO 914 is rationally related to a legitim ate penological interest.

IV. CONCLUSION

The district court’s judgm ent granting the Defendants’

m otion for summ ary j u dgm ent is reversed and this case is

rem anded for further p r o ceedings consistent with this opinion.

REVERSED AND REMANDED.