FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD LEE JONES, JR.,

Plaintiff-Appellant,

v.

S. SLADE, South Unit Property

Officer COII #1777 at Arizona

Department of Corrections; D.

MILLER, Employee of Office of

Publication Review at Arizona

Department of Corrections Central

Office; DAVID SHINN, Director,

Defendants-Appellees,

and

CHARLES L. RYAN; CARSON

MCWILLIAMS; J. GUZMAN; LORI

STICKLEY,

Defendants.

No. 20-15642

D.C. No.

2:18-cv-02034-

MTL-JZB

OPINION

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

Argued and Submitted August 31, 2021

San Francisco, California
2 JONES V. SLADE

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 summary judgment

for prison officials in an action alleging that the confiscation

of plaintiff’s mail violated his rights under the Free Speech

and Free Exercise Clauses of the First Amendment and the

Religious Land Use and Institutionalized Persons Act.

Plaintiff, Edward Lee Jones, Jr., is incarcerated at the

Arizona State Prison Complex. In late 2017 and early 2018,

Jones ordered by mail six hip-hop, R&B CDs and two Nation

of Islam texts. All of the items were confiscated as

contraband pursuant to anArizonaDepartment ofCorrections

(ADC) Department Order 914 (“DO 914”), which regulates

the content of incoming mail. 

* The Honorable Kathleen Cardone, United States District Judge for

the Western District of Texas, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
JONES V. SLADE 3

The panel held that genuine issues of material fact existed

both as to whether 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 Islam texts

substantially burdened his religious exercise in violation of

the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) and the Free Exercise Clause. Addressing first

the claims pertaining to the confiscation of the CDs, the panel

held that, viewing the evidence in the light most favorable to

Jones, there was a material question of fact here—whether

ADC selectively enforces DO 914 against disfavored

expression, rap and R&B musical genres. Jones had

proffered sufficient evidence of inconsistent application of

DO 914 to preclude summary judgment. 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

legitimate interests in security, rehabilitation, and reducing

sexual harassment, the panel determined that it need not

address the remaining factors set forth in Turner v. Safley,

482 U.S. 78 (1987). The panel reversed the grant of summary

judgment with respect to the CDs ADC withheld from Jones

and remanded for further proceedings, expressing no views

on the merits of Jones’s claims.

Addressing the claims relating to the confiscation of two

religious texts, the panel determined that the district court

characterized Jones’s religious exercise too broadly as

observing Ramadan rather than reading Nation of Islam texts

during Ramadan. Having defined the scope of Jones’s

religious exercise—reading his Nation of Islam texts during

Ramadan—the panel next held that there was a genuine issue

of fact as to whether denying Jones essential religious texts

during Ramadan was a substantial burden on his religious

exercise. Accordingly, summary judgment was inappropriate
4 JONES V. SLADE

on Jones’s RLUIPA claim. The panel left it to the district

court on remand to assess whether ADC could demonstrate

that applying the challenged regulation to Jones served a

compelling interest and met the exceptionally demanding

least-restrictive-means standard. 

The panel further held that for the same reasons that the

district court’s analysis was flawed under RLUIPA, it did not

hold up under the Free Exercise Clause. Thus, it was

impermissible for the district court to focus on whether

reading Elijah Muhammad’s texts was required to observe

Ramadan, rather than whether Jones sincerely believes

reading these texts during Ramadan was consistent with his

faith. Because the district court did not reach the Turner

analysis, the panel left it to the district court on remand to

determine whether DO 914 was rationally related to a

legitimate penological interest.

COUNSEL

J. Matthew Rice (argued) and Ryan L. Giles, Williams &

Connolly LLP, Washington, D.C.; Easha Anand, Roderick &

Solange MacArthur Justice Center,San Francisco, California;

for Plaintiff-Appellant.

Patrick J. Boyle, Assistant Attorney General, Mark Brnovich,

Attorney General; Office of the Attorney General, Phoenix,

Arizona; for Defendants-Appellees.

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

Becket Fund for Religious Liberty, Washington, D.C., for

Amicus Curiae Becket Fund for Religious Liberty.
JONES V. SLADE 5

Corene Kendrick, American Civil Liberties Union

Foundation, San Francisco, California; Emerson Sykes and

Vera Eidelman, American Civil Liberties Union Foundation,

New York, New York; Daniel Mach and Heather L. Weaver,

American Civil Liberties Union Foundation, Washington,

D.C.; Victoria Lopez, American Civil Liberties Union

Foundation of Arizona, Phoenix, Arizona; for Amici Curiae

American Civil Liberties Union and American Civil Liberties

Union of Arizona.

OPINION

BYBEE, Circuit Judge:

Appellant Edward Lee Jones, Jr. is incarcerated at the

Arizona State Prison Complex—Eymen. In late 2017 and

early 2018, Jones ordered by mail six hip-hop, R&B CDs and

two Nation of Islam texts. All of the items were confiscated

as contraband pursuant to an Arizona Department of

Corrections (ADC) order, which dictates what publications

are allowed in ADC facilities. The issue before us is whether

these confiscations violated Jones’s rights under the Free

Speech and Free Exercise Clauses of the First Amendment,

as made applicable to Arizona by the Due Process Clause of

the Fourteenth Amendment, or the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc1 et seq. The district court granted summary judgment in

favor of the Arizona Defendants on Jones’s claims under

42 U.S.C. § 1983 and RLUIPA.

We conclude that genuine issues of material fact exist

both as to whether the Arizona Department of Corrections

applied its order inconsistently as to the CDs, in violation of
6 JONES V. SLADE

Jones’s free-speech rights, and whether the exclusion of

Jones’s Nation of Islam texts substantially burdened his

religious exercise in violation of RLUIPA and the Free

Exercise Clause. Because these questions preclude summary

judgment, we reverse and remand to the district court for

further proceedings.

I. BACKGROUND

A. ADC’s Inmate Mail Policy

The Arizona Department of Corrections regulates the

content of incoming mail pursuant to Department Order 914

(DO 914), Inmate Mail, effective April 7, 2017. DO 914’s

stated purpose is “maintaining the safety, security and orderly

operations of the institutions.” Under the policy, staff at each

ADC facility will “open, inspect and read incoming mail to

prevent criminal activity and prevent inmates from receiving

contraband or any other material that may be detrimental to

the safe and orderly operation of the institution.” DO 914.02

§ 1.5. Publications—which include CDs, books, and

magazines—are subject to additional procedures. First, they

must come directly from a publisher, distributor, or retailer. 

DO 914.03 § 1.3; DO 914.06 § 1.4. Second, ADC staff

inspect the content of each CD or publication that enters ADC

facilities “[i]n order to assist with rehabilitation and treatment

objectives, reduce sexual harassment and prevent a hostile

environment for inmates, staff and volunteers.” DO 914.07

§ 1.1. DO 914.07, titled “Unauthorized Content,” sets forth

twenty broad categories, including nudity, sexual activity,

street gangs, martial arts, the functioning of security devices,

drug use, weapons, computers, tattooing, ciphers or codes,

acts of violence, and canine search procedures. It also has a

catch-all provision for any publication deemed “detrimental
JONES V. SLADE 7

to the safe, secure, and orderly operation of the institution.” 

DO 914.07 § 1.2. As relevant here, DO 914.07 prohibits

inmates fromreceiving publications containing the following:

§ 1.2.2.3: Publications depicting in either

visual, audio, or written form: “[s]exual

intercourse, vaginal or anal, fellatio,

cunnilingus, bestiality, or sodomy.”

§ 1.2.4: “Depictions or descriptions of street

gangs and/or Security Threat Groups (STG),

and related gang/STG paraphernalia,

including, but not limited to, codes, signs,

symbols, photographs, drawings, training

material, and catalogs.”

§ 1.2.7: “Depictions or descriptions, or

promotion of drug paraphernalia or

instructions for the brewing of alcoholic

beverages or the manufacture or cultivation of

drugs, narcotics or poisons.”

§ 1.2.8: “Content that is oriented toward

and/or promotes racism and/or religious

oppression and the superiority of one

race/religion/political group over another,

and/or the degr ada tion of one

race/religion/political group by another.”

§ 1.2.16: “Pictures, depictions or illustrations

that promote acts of violence including, but

not limited to, murder, rape, sexual assault,

assault, amputation, decapitation,

dismemberment, mutilation, maiming,
8 JONES V. SLADE

disfigurement, crime scene/autopsy

photographs, or cruelty to animals.”

§ 1.2.17: “Content in publications,

photographs, drawings, or in any type of

image or text, that may, could reasonably be

anticipated to, could reasonably result in, is or

appears to be intended to cause or encourage

sexual excitement or arousal or hostile

behaviors, or that depicts sexually suggestive

settings, poses or attire, and/or depicts sexual

representations of inmates, correctional

personnel, law enforcement, military,

medical/mental health staff, programming

staff, teachers or clergy.”

§ 1.2.20: “Any publication or part of a

publication that, although not specifically set

forth herein, may otherwise be detrimental to

the safe, secure, and orderly operation of the

institution.”

In order to promote consistent application of its policy,

ADC maintains a statewide database of exclusion decisions. 

Publication 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 similarly

be excluded or allowed in other ADC facilities. Inmates and

publishers have thirty days to appeal the publication review

staff’s decision to the Office of Publication Review (OPR),

which handles appeals from all ADC complexes. DO 914.08

§ 1.2. OPR’s decisions, which are denominated “second-
JONES V. SLADE 9

level review” are final and exhaust an inmate’s administrative

remedies. DO 914.08 § 1.2.2.5.

B. Facts

The following facts are largely undisputed. Jones has

been in ADC’s custody since 2008. He is a member of the

Nation of Islam and a follower of the teachings of Elijah

Muhammad, who Jones considers to be the last prophet of

Allah. Jones believes that Elijah Muhammad’s writings are

essential religious texts that provide him with religious

instruction, including teachings on how to pray. Jones

considers Elijah Muhammad’s writings central to his belief

system and that reading Muhammad’s texts is one way he

may practice and express his religion. For adherents of the

Nation of Islam, Ramadan is a holy month of fasting, selfreflection, and service to humanity. Nation of Islammembers

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 music.

In late 2017 and early 2018, Jones ordered six CDs and

two books that ADC classified as contraband and confiscated. 

The CD’s excluded as violating DO 914.07 were:

(1) “untitled unmastered” (2016) by Kendrick

Lamar, a Grammy- and Pulitzer Prize-winning

artist, for violating the violence and sexual

excitement provisions, §§ 1.2.16, 17.

(2) “Tha Blue Carpet Treatment” (2006) by

Grammy-nominated artist Snoop Dogg for

violating the gangs, drugs, and violence

provisions, §§ 1.2.4, 7, 16.
10 JONES V. SLADE

(3) “Street Gospel” (1997), by Suga Free for

violating the sexual intercourse, gangs, drugs,

violence, and sexual excitement provisions,

§§ 1.2.2.3, 1.2.4, 7, 16, 17.

(4) “Trials & Tribulations” (2013), by Ace

Hood for violating the sexual intercourse,

violence, sexual excitement, 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 gangs, drugs, violence,

and catch-all provisions, §§ 1.2.4, 7, 16, 20.

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

by Grammy-winning artist The Weeknd, for

violating the drugs and sexual excitement

provisions, §§ 1.2.7, 17.

Jones requested second-level review of the CD exclusions. 

All exclusions were upheld by OPR.

Jones had also ordered two books by Elijah Muhammad:

Message to the Blackman in America (1965) and The Fall of

America (1973). Both were excluded under DO 914.07

§ 1.2.8 for promoting racism or the superiority of one group. 

ADC staff excluded the books without review because each

text had been previously excluded by an ADC facility. Jones

sought second-level review of the text exclusions, but OPR

informed Jones that the exclusions of Messages to the

Blackman and The Fall of America had been upheld

previously and that those second-level decisions would

remain final.
JONES V. SLADE 11

C. Procedural History

In June 2018, Jones lodged a pro se civil rights complaint

in district court under 42 U.S.C. § 1983, alleging on-its-face

and as-applied violations of the Free Speech and Free

Exercise Clauses of the First Amendment and Due Process

Clause of the Fourteenth Amendment as well as a violation of

RLUIPA. Jones sought injunctive and monetary relief,

including punitive damages, against seven defendants:

Charles Ryan, the Director of the ADC; Doe #1, Deputy

Director of ADC; Carson McWilliams, ADC’s Division

Director of Support Services; S. Slade, an ADC property

officer; D. Miller, an ADC employee at OPR; J. Guzman, an

ADC employee at OPR; and Lori Stickley, Deputy Warden. 

The district court screened the complaint as required by

28 U.S.C. § 1915(a) and dismissed Defendants Doe #1,

McWilliams, and Stickley, as well as several of Jones’s

claims. The court allowed Jones’s suit to proceed against

ADC Director Ryan in his official capacity and against

Defendants Slade, Miller, and Guzman in their individual

capacities.1 The court later dismissed defendant Guzman, and

it substituted newly appointed ADC Director David Shinn for

former Director Ryan.

1 Officer Slade informed Jones of the confiscation, but played no role

in reviewing the publications. Officer Miller personally reviewed

“untitled unmastered” by Kendrick Lamar and “Tha Blue Carpet

Treatment” by Snoop Dog as part of OPR’s second level review, and she

confirmed the publication staff’s decision to exclude the CDs. Miller also

responded to Jones’s request for second level review of Message to the

Blackman in America and The Fall of America. She informed Jones that

OPR had already reviewed the decisions to exclude the texts so no further

review would take place. Officer Guzman, who was dismissed because

Jones failed to serve him, made the decision to uphold the exclusion of the

remaining four CDs.
12 JONES V. SLADE

The district court granted summary judgment in favor of

the Defendants on all claims. Evaluating Jones’s facial

challenge to DO 914 under Turner v. Safley, 482 U.S. 78

(1987), the court rejected Jones’s free speech challenge,

holding that ADC’s interests—rehabilitation, reducing sexual

harassment, and preventing a hostile environment—were

legitimate and that there was a rational connection between

those interests and restricting inmates’ access to explicit

materials. The court found that inmates’ access to the radio

and non-explicit publications provided an adequate

alternative. The court credited ADC’s assertion that allowing

prohibited material would be detrimental to the prison

environment. And, the court found that Plaintiff’s suggestion

that existing disciplinary procedures are adequate to address

ADC’s concerns is not an obvious alternative to the policy. 

Because the court found that all four of the Turner factors

weighed in ADC’s favor, it concluded that DO 914.07 was

not unconstitutional on its face and granted summary

judgment for Defendant Shinn, who was sued in his official

capacity. With respect to Jones’s as-applied claim, the court

granted summary judgment for Defendants Slade and Miller,

finding that Jones failed to demonstrate a dispute as to

whether either defendant personally violated his First

Amendment 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 summary judgment with

respect to Jones’s RLUIPA and free-exercise claims because

the court held that the exclusion of 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 observe Ramadan for the 10 years priorto 2018,

or what has occurred to render him now unable to
JONES V. SLADE 13

successfully observe Ramadan without the books he

requested.”

II. STANDARD AND SCOPE OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. “We

review a district court’s grant of summary judgment de novo,

and may affirm on any basis supported by the record.” 

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.

2009). “Our review is governed by the same standard used

by the trial court under Federal Rule of Civil Procedure 56.” 

Id. “We determine, viewing the evidence in the light most

favorable to the nonmoving party, whether there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law.” Wallis v.

Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002).

Jones has narrowed the scope of our review of the district

court’s order. In the district court, Jones sought an injunction

ordering ADC not to destroy his property. The court denied

his request, and Jones has not challenged that determination

on appeal. Jones has not appealed the district court’s

judgment that DO 914 is constitutional on its face. Jones also

does not challenge the grant of summary judgment as to

Defendant Slade in her individual capacity with respect to his

free-speech claim. We 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 damages claim

against Miller, who was sued in her individual capacity. Both

of those claims relate to Jones’s free speech claim with

respect to the CDs. Jones also appeals the district court’s

judgment with respect to his RLUIPA and the Free Exercise

Clause claims; both of those claims relate to the books he

requested.
14 JONES V. SLADE

III. DISCUSSION

Jones has two principal complaints—that ADCprohibited

his receipt of six music CDs and two books by Elijah

Muhammad. His complaint concerning the CDs invokes the

Free Speech Clause, while his complaint 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 claims first and then

address the books and his RLUIPA and free-exercise claims.

A. CDs—Free Speech

Jones argues that the exclusion of his six CDs pursuant to

DO 914.07 violates his First Amendment free-speech rights

and that the district court erred in granting summary

judgment. Jones contends that there is a triable issue as to

whether ADC applies the regulation neutrally.

It is well established that “[p]rison walls do not form a

barrier separating prison inmates from the protections of the

Constitution.” Turner, 482 U.S. at 84. Inmates retain their

constitutional rights, and “[w]hen a prison regulation or

practice offends a fundamental constitutional guarantee,

federal courts will discharge their duty to protect

constitutional rights.” Id. (quoting Procunier v. Martinez,

416 U.S. 396, 405–06 (1974)).

Prisoners have a First Amendment right to receive

information while incarcerated. Clement v. Cal. Dep’t of

Corr., 364 F.3d 1148, 1151 (9th Cir. 2004). At the same

time, that principal must be balanced against the recognition

that “courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.” 
JONES V. SLADE 15

Turner, 482 U.S. at 84 (quoting Procunier, 416 U.S. at 405). 

We “apply a deferential standard of review to challenges

regarding prison regulations” derived from Turner. Mauro v.

Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc); see

also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)

(“[R]egulations affecting the sending of a ‘publication’ . . . to

a prisoner must be analyzed under the Turner reasonableness

standard.”). Under Turner, a “regulation is valid if it is

reasonably related to legitimate penological interests.” 

482 U.S. at 89.

Turnerrequires us to consider four factors in determining

whether DO 914 is reasonably related to legitimate

penological interests. 482 U.S. at 89–91; Mauro, 188 F.3d

at 1058–59. First, there must be a “‘valid, rational

connection’ between the prison regulation and the legitimate

government interest put forth to justify it.” Turner, 482 U.S.

at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586

(1984)). Second, we consider whether there are alternative

means of exercising the right left open to inmates. Id. at 90. 

Third, we weigh “the impact [that] accommodation of the

asserted constitutional right will have on guards and other

inmates, and on the allocation of prison resources generally.” 

Id. Finally, we look for ready alternatives to the policy which

would indicate that the policy may be an “‘exaggerated

response’ to prison concerns.” Id.

The first Turnerfactor is the most important. To evaluate

whether a valid, rational connection exists, we must

determine “whether the governmental objective underlying

the policy is (1) legitimate, (2) neutral, and (3) whether the

policy is ‘rationally related to that objective.’” Mauro,

188 F.3d at 1059 (quoting Abbott, 490 U.S. at 414).
16 JONES V. SLADE

The district court properly concluded that ADC offered

legitimate governmental objectives to justify DO 914. The

asserted goal of ADC’s mail policy is “maintaining the safety,

security and orderly operations of the institution[],” and the

goal of the provisions banning certain publications is

“assist[ing] with rehabilitation and treatment objectives,

reduc[ing] sexual harassment, and prevent[ing] a hostile

environment for inmates, staff and volunteers.” There is no

question that securing the safe and orderly operation of our

prisons and fostering rehabilitation of the inmates are

legitimate goals. See Pell v. Procunier, 417 U.S. 817, 823

(1974) (“[C]entral to all other corrections goals is the

institutional consideration of internal security . . . .”); Turner,

482 U.S. at 91 (prison security); Abbott, 490 U.S. at 415

(prison security); Mauro, 188 F.3d at 1059 (prison security,

rehabilitation, and reducing sexual harassment of guards).

In the district court, ADC provided affidavits from

administrators in Offender Operations and OPRto support the

connection between the DO 914 and their objectives. The

administrators explained that “[p]ublications with depictions

or descriptions, or promotion of drug paraphernalia . . . are

detrimental to the security of the prison because [they]

promote[] prohibited behavior,” “[p]ublications that contain

depictions that promote acts of violence . . . are detrimental

to institutional security and the goals of rehabilitation,” and

“[p]ublications that contain depictions or descriptions of

street gangs and/or Security Threat Groups (STG) . . . are

detrimental to the security of the prison because they promote

prohibited behavior.”

To show a rational relationship between the regulation

and the legitimate interest, prison officials “need not prove

that the banned material actually caused problems in the past,
JONES V. SLADE 17

or that the materials are ‘likely’ to cause problems in the

future” unless the inmate “presents evidence to refute a

common-sense connection between the regulation and the

government objective.” Ashker v. Cal. Dep’t of Corr.,

350 F.3d 917, 922–23 (9th Cir. 2003) (quoting Mauro,

188 F.3d at 1060). Nor must we agree with the prison

officials’ judgment on whether the policy in fact advances

their proffered penological interests. Mauro, 188 F.3d

at 1060. Because the Defendants could reasonably believe

that excluding publications that contain sexual content, drugs,

and violence would decrease prohibited behaviors among

inmates, the governmental objective underlying DO 914 is

legitimate and rationally related to ADC’s interests in prison

security, rehabilitation, and reducing sexual harassment. See

id. Further, Jones did not challenge the connection between

the regulation and the objective.

But that does not end the inquiry under the first Turner

factor. We must still determine whether the challenged

regulation is neutral. Turner’s neutrality requirement

requires some explanation. At issue in Turner was Missouri’s

restriction on inmate-to-inmate correspondence. Although

Missouri permitted an inmate to correspond with “immediate

family members” who were inmates at other institutions, it

severely restricted correspondence between unrelated

inmates; in fact, the district court found that the restriction

was effectively a prohibition on such correspondence. 

Turner, 482 U.S. at 81–82. Missouri explained that the

restriction deterred gang activity and prevented inmates from

communicating escape plans and planning assaults. Id. at 91. 

The Supreme Court held that the appropriate test was

“whether prison regulations restricting inmates’ First

Amendment rights operated in a neutral fashion, without

regard to the content of the expression.” Id. at 90. Although
18 JONES V. SLADE

Missouri’s regulation was broader than would have been

absolutely necessary, the Court held that the regulation was

“not an exaggerated response” because it would have been

“impossible to read every piece of inmate-to-inmate

correspondence” and there was “an appreciable risk of

missing dangerous messages.” Id. at 93.

In Abbott, the Court elaborated on Turner’s neutrality

requirement:

[T]he regulation or practice in question must

further an important or substantial

governmental interest unrelated to the

suppression of expression. Where . . . prison

administrators draw distinctions between

publications solely on the basis of their

potential implications for prison security, the

regulations are “neutral” in the technical sense

in which we meant and used that term in

Turner.

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

omitted). The Fifth Circuit has explained the importance of

the neutrality inquiry:

Requiring neutrality ensures that the prison’s

application of its policy is actually based on

the justifications it purports, and not

something more nefarious. Were we to ignore

Turner’s neutrality requirement, we would

allow prison regulators to justify a policy

based on a legitimate interest applicable to the

overall prison population, while applying the

policy in an arbitrary or discriminatory
JONES V. SLADE 19

manner in violation of a particular subgroup’s

First Amendment rights.

Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599, 609 (5th

Cir. 2008).

Turner neutrality is not the “content neutrality” we

demand in other areas of First Amendment jurisprudence. 

See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(“Government regulation of expressive activity is content

neutral so long as it is justified without reference to the

content of the regulated speech.” (internal quotations and

emphasis omitted)). Prison regulations of speech need not be

content neutral like time, place, and manner restrictions, see

Pell, 417 U.S. at 826–27; in fact, they may be content

intensive. See Turner, 482 U.S. at 88 (distinguishing contentbased prison regulations from true time, place, and manner

restrictions); Hanrahan v. Mohr, 905 F.3d 947, 955 (6th Cir.

2018) (“Appellants are incorrect that the ‘neutrality’

requirement of Turner’s first prong requires a prison

regulation to be completely content neutral.”). Prison

officials may restrict inmates’ access to materials dealing

with sex, violence, drugs, and gangs—censorship that we

would not permit in other contexts. Turner has made clear

that regulations that could not withstand constitutional

scrutiny outside of the prison context may be acceptable

inside an institution. See Beard v. Banks, 548 U.S. 521, 528

(2006) (plurality opinion) (“[T]he Constitution sometimes

permits greater 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) (“We analyze content neutrality in the

prison context differently than we do for non-inmates.”).
20 JONES V. SLADE

As in Turner, the Arizona procedure at issue here is not

content neutral in the traditional sense. DO 914 is contentfocused. But on appeal, Jones does not challenge the

regulation on its face. He does not argue that ADC may not

suppress music that has sexually explicit lyrics or lyrics that

promote violence or drugs. Rather, his claim is that Arizona

has been inconsistent in its application of its regulation in a

way that is not content neutral within the category of

suppressible media. He argues that certain genres of

music—particularly rap music—are censored, while other

music, TV shows, or movies are permitted, even though they

also have explicit sexual, drug, or violent content. 

Effectively, the question Jones raises is not whether ADC can

suppress certain kinds of content, but whether ADC has

applied the regulation in a neutral fashion. See Turner,

482 U.S. at 89–90. The Supreme Court has explained that in

considering the reasonableness of a prison regulation “it [is]

important to inquire whether prison regulations restricting

inmates’ First Amendment rights operated in a neutral

fashion.” Id. at 90.

When there is evidence that an otherwise legitimate

policy is being applied in a discriminatory manner, we inquire

whether the unequal application of the policy defeats the

rational relationship between the policy and the government’s

asserted justification. See id. Evidence of inconsistent

application of a regulation may be proof that the policy is not

neutral and may preclude summary judgment on an asapplied challenge. See Mayfield, 529 F.3d at 609 (“[U]nder

Turner, neutrality must be ensured, or its absence sufficiently

explained in light of a legitimate penological interest, for

summary judgment to be appropriate.”); Abu-Jamal, 154 F.3d

at 134 (explaining that because “the Department’s

enforcement of the [challenged rule], was motivated, at least
JONES V. SLADE 21

in part, by the content of [plaintiff’s] articles . . . the actions

were not content neutral”).

Jones has proffered sufficient evidence of inconsistent

application of DO 914 to preclude summary judgment. Jones

submitted three affidavits, his own and those of two other

ADC prisoners, Hawkins and Page, alleging that ADC’s

exclusions between 2015–2018 targeted black artists and that

ADC has not applied DO 914 consistently. ADC argues that

we should not credit Jones’s affidavits because they are

unsupported by factual data and “[n]either Jones nor the other

two inmates could possibly claimto have personal knowledge

of how the OPR applies DO 914.07 on a statewide basis.” 

But Jones is not required to provide a comprehensive study of

ADC’s statewide implementation of DO 914. That Jones and

the other two inmates are just three of “over 39,000 inmates

in the Arizona prison system” does not undermine their

personal experience with the policy. All three men have been

incarcerated in ADC’s facilities for periods spanning from

1998 to the present and have testified to their experience with

the implementation of DO 914 and the type of media that is

available in ADC facilities. Jones, Hawkins, and Page each

spoke to specific instances in which content that violates DO

914 was allowed.

Further, Jones submitted evidence that inmates at ADC

have access to a range of other media, including books and

television shows, that contain content clearly violating DO

914.07. We would expect some inconsistencies in any policy

that delegates exclusions to multiple decision makers. Even

the clearest of policies would not be immune from human

error. But the inconsistencies identified by Jones go beyond

the occasional explicit song being allowed or book being

excluded. Jones has supplied some evidence that ADC
22 JONES V. SLADE

affirmatively provides inmates access to books, music, and

television programs that plainly violate DO 914. For

example, Jones submitted evidence that inmates have access

to shows like L.A. Gang Wars; Moonshiners; Drugs, Inc.;

Nazi Underworld; Aryan Brotherhood; and Dexter. We

cannot determine merely by reading the titles whether these

materials violate ADC’s prohibitions on publications

containing “depictions or descriptions” of “street gangs” or

“drug paraphernalia” but we may draw a reasonable inference

that they do. See DO 914.07 § 1.2.4, 1.2.7. Jones also

provided excerpts from ADC’s library catalog and inmate

testimony showing that ADC provides inmates access to

books like James Patterson’s Kiss the Girls, a psychological

thriller about the serial killing of young women, and an entire

selection of romance novels, which “may . . . cause or

encourage sexual excitement.” Id. § 1.2.17. Providing

inmates access to the type of content ADC claims is

“detrimental to institutional security and the goals of

rehabilitation,” calls into question the rational relationship

between DO 914 and ADC’s legitimate penological interests

and the reasonableness of the policy. Cf. Pell, 417 U.S.

at 828 (“So long as this restriction operates in a neutral

fashion, without regard to the content of the expression, it . . .

does not abridge any First Amendment freedoms retained by

prison inmates.”).

We repeat: Variations in the enforcement of a policy will

not always rise to the level of inconsistent application. 

Turner does not require ADC to apply DO 914 without error

to the hundreds of magazines and publications that ADC’s

prison complexes receive each week. ADC candidly

admitted before the district court that “despite its best

efforts[, ADC] does not keep out all unauthorized material.” 

And we agree with ADC’s assertion that “[t]he test is not
JONES V. SLADE 23

whether all possible content that could be excluded is actually

excluded.” Indeed, the Supreme Court acknowledged in

Abbott that “seeming ‘inconsistencies’” produced by the

exercise of discretion in applying prison regulations “are not

necessarily signs of arbitrariness or irrationality.” Abbott,

490 U.S. at 417 n.15. But despite holding that the regulations

in Abbott were facially valid, the Court remanded for

consideration of the respondents’ claim that “variability in

enforcement of the regulations stems from the censors’

subjective views.” Id. at 417 n.15, 419. The Court explained

that whether exclusions are in fact based on the prison’s

asserted security interest “go[es] to the adequacy of the

regulations as applied.” Id. at 417 n.15.

The district court acknowledged Jones’s argument that “a

majority of [ADC’s] exclusions targeted black artists” and

that “OPR is not and has never been 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 914.07.” The district court

did not address Jones’s request for declaratory and injunctive

relief against Warden Shinn, which would necessarily require

a broader inquiry than Officer Miller’s decision.

We think the district court misconceived its responsibility

with respect to the as-applied challenge. At this stage of the

litigation, Jones does not contest that the CDs he ordered

might violate DO 914. Rather, he claims that they were

excluded, while other objectionable material was routinely

made accessible to inmates. His is a comparative claim. It

may well be that Officer Miller correctly applied DO 914;

Jones’s claim is that DO 914 was consistently applied to rap
24 JONES V. SLADE

music but inconsistently applied to other music genres and

media. And that calls into question the neutrality of DO 914

as it is applied and, thus, the legitimacy of ADC’s policy. 

Viewing the evidence in the light most favorable to Jones,

there is a material question of fact here—whether ADC

selectively enforces DO 914 against disfavored expression,

rap and R&B musical genres. The district court should not

have granted summary judgment on this record. See

Mayfield, 529 F.3d at 608–09 (holding that affidavits from

two other inmates that a prison’s policy was not imposed

against certain groups was sufficient to raise a material issue

of fact as to neutrality).

The first Turner factor is a sine qua non. See Shaw v.

Murphy, 532 U.S. 223, 229–30 (2001) (“If the connection

between the regulation and the asserted goal is ‘arbitrary or

irrational,’ then the regulation fails, irrespective of whether

the other factors tilt in its favor.” (citation omitted));

Morrison v. Hall, 261 F.3d 896, 907 (9th Cir. 2001); Prison

Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001)

(citing Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990)). 

Because a genuine issue of fact remains as to whether there

is a valid, rational connection between DO 914, as applied to

Jones, and ADC’s legitimate interests in security,

rehabilitation, and reducing sexual harassment, we need not

address the remaining Turner factors. We reverse the grant

of summary judgment with respect to the CD’s ADC

withheld from Jones and remand for further proceedings. We

express no views on the merits of Jones’s claims.2

2 We note that Jones cannot sustain his damages claim against Officer

Miller unless he can demonstrate that she personally applied DO 914

inconsistently. He may, however, be able to maintain his claim for

equitable relief against Warden Shinn if he can demonstrate systemic
JONES V. SLADE 25

B. Religious Texts

Jones’s remaining claims relate to the confiscation of two

religious texts, Message to the Blackman in America and The

Fall of America, both by Elijah Muhammad. The district

court held that Jones “failed to demonstrate that the exclusion

of his two requested books has substantially burdened his

religious practice,” defeating both his RLUIPA and Free

Exercise Clause claims. On appeal, Jones argues that the

district court misidentified the religious exercise at issue,

imposed a categorical forfeiture rule unsupported by

RLUIPA, and did not view the facts in the light most

favorable to Jones, as is required on summary judgment. We

agree.

1. RLUIPA

RLUIPA provides that “[n]o government shall impose a

substantial burden on the religious exercise of a person

residing in or confined to an institution,” unless the

government can demonstrate that the burden “is in

furtherance of a compelling governmental interest” and “the

least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1(a). Those

statutory standards, drawn from Sherbert v. Verner, 374 U.S.

398, 403, 406 (1963), and Wisconsin v. Yoder, 406 U.S. 205,

214–15, 221, 236 (1972), are more generous to the religiously

observant than the Free Exercise Clause. See Emp. Div. v.

Smith, 494 U.S. 872, 883–84 (1990) (limiting Sherbert to “the

unemployment compensation field”); see also Religious

Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb(b)(1)

(adopting a similar standard to RLUIPA and citing Sherbert

inconsistency by the many officers who enforce DO 914.
26 JONES V. SLADE

and Yoder). RLUIPA covers state-run institutions including

prisons, where “the government exerts a degree of control

unparalleled in civilian society and severely disabling to

private religious exercise.” Cutter v. Wilkinson, 544 U.S.

709, 720–21 (2005) (citing 146 Cong. Rec. 16698, 16699

(2000) (joint statement of Sen. Hatch and Sen. Kennedy on

RLUIPA)).3 RLUIPA reflects a congressional effort to

accord heightened protection to religious exercise. Id. at 714. 

As such, RLUIPA is to be “construed broadly in favor of

protecting an inmate’s right to exercise his religious beliefs.” 

Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)

(citing 42 U.S.C. § 2000cc-3(g)).4

Under RLUIPA, the plaintiff bears the initial burden of

demonstrating that an institution’s policy constitutes a

substantial burden on his exercise of religion. 42 U.S.C.

§ 2000cc-2(b). A policy may impose a substantial burden on

religious exercise in a number of ways. A regulation may

impact religious exercise directly, by forbidding conduct that

an inmate believes he is religiously compelled to do, see

O’Lone v. Est. of Shabazz, 482 U.S. 342, 344–45, 347 (1987)

3 RLUIPA applies to the States and their subdivisions and is an

exercise of congressional authority under the Spending and Commerce

Clauses. See 42 U.S.C. § 2000cc-1(b); Holt v. Hobbs, 574 U.S. 352, 357

(2015). ADC does not contest that it is subject to RLUIPA.

4 Monetary damages are not available against prison officials in their

individual capacities under RLUIPA. Sossamon v. Texas, 563 U.S. 277,

285 (2011) (holding RLUIPA’s authorization of “appropriate relief” did

not “clearly and unambiguously waive sovereign immunity to private suits

for damages”). A RLUIPA plaintiff may only sue defendants in their

official capacities for prospective injunctive relief. Woody v. Yordy,

753 F.3d 899, 904 (9th Cir. 2014) (“[RLUIPA] does not authorize suits

against a person in anything other than an official or governmental

capacity . . . .”).
JONES V. SLADE 27

(assigning Muslim prisoners to a work schedule that

prevented them from attending Friday prayer services

commanded by Qur’an), or by compelling an inmate to do

that which he believes he is religiously forbidden from doing,

see Holt, 574 U.S. at 355, 359 (requiring Muslim prisoner to

violate religious beliefs that forbade trimming his beard);

Warsoldier, 418 F.3d at 992, 995–96 (requiring Native

American prisoner to violate religious beliefs that forbade

cutting his hair). More subtly, a regulation may impact

religious exercise indirectly, by encouraging an inmate to do

that which he is religiously prohibited or discouraged from

doing, see Greenhill v. Clarke, 944 F.3d 243, 250–51 (4th

Cir. 2019) (withholding participation in religious services “as

an incentive to improve inmate conduct”), or by discouraging

an inmate from doing that which he is religiously compelled

or encouraged to do, see Jones v. Carter, 915 F.3d 1147,

1150–51 (7thCir. 2019) (discouraging inmates fromchoosing

halal meals by charging for halal meat); Shilling v. Crawford,

536 F. Supp. 2d 1227, 1233 (D. Nev. 2008) (offering Jewish

prisoner the choice between staying at a medium security

facility without kosher meals or transferring to a maximum

security facility with kosher meals), aff’d 377 F. App’x 702

(9th Cir. 2010). See also Sherbert, 374 U.S. at 404 (holding

that a state may not force a person “to choose between

following the precepts of her religion and forfeiting benefits

. . . . Governmental imposition of such a choice puts the same

kind of burden upon the free exercise of religion as would a

fine imposed against [a person] for her . . . worship”). The

difference between these categories may not always be clear,

but the framework may help us understand what is at stake.

Once an inmate makes a prima facie showing, the burden

shifts to the government to prove that the burden is the least

restrictive means of furthering a compelling governmental
28 JONES V. SLADE

interest. 42 U.S.C. §§ 2000cc-1(a), -2(b);see Fuqua v. Ryan,

890 F.3d 838, 848 (9th Cir. 2018). Although RLUIPA adopts

a compelling interest standard, context matters in the

application of the standard, and courts should act 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.” 

Cutter, 544 U.S. at 723 (quoting 146 Cong. Rec. at 16699).

a. Substantial burden on religious exercise

In assessing a RLUIPA claim, we must first identify the

religious exercise at issue. Greene v. Solano Cnty. Jail,

513 F.3d 982, 987 (9th Cir. 2008). Jones argues that his

religious exercise is “the reading of essential Nation of Islam

texts during Ramadan,” while ADC argues that the exercise

is “observing Ramadan,” which ADC claims Jones may do

without reading Elijah Muhammad’s books.

RLUIPA defines “religious exercise” to include “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). 

That means that RLUIPA protects not only practices deemed

orthodox by some recognized religious organization, but also

idiosyncratic practices—practices “not compelled by, or

central, to a [given] system of religious belief.” Id. It also

means that RLUIPA not only protects an inmate’s past

religious practices, but also changes in his religious practice

within a tradition or conversion from one tradition to another. 

We have read RLUIPA’s reference to “any exercise of

religion” literally (and thus broadly in favor of inmates) to

include not only “the belief and profession” of faith, but also

individual “physical acts [such as] assembling with others for
JONES V. SLADE 29

a worship service [or] participating in sacramental use of

bread and wine.” Greene, 513 F.3d at 987 (alteration in

original) (quoting Cutter, 544 U.S. at 720); see also Holt,

574 U.S. at 361–62 (religious exercise was “the growing of

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

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

v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)

(relevant exercise was a Christian school’s attempted

“conversion of real property for the purpose of religious

exercise” (quoting 42 U.S.C. § 2000cc-5(7)(B)); accord

Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007)

(relevant exercise was keeping kosher and observing the

Jewish Sabbath); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33,

38 (1st Cir. 2007) (relevant exercise was inmate’s ability to

preach to other inmates); Lovelace v. Lee, 472 F.3d 174,

187–88 (4th Cir. 2006) (religious exercise was observing

Ramadan and attending group prayer services).

The district court characterized Jones’s religious exercise

broadly as observing Ramadan rather than reading Nation of

Islam texts during Ramadan. Its treatment of Jones’s claim

was not entirely consistent. The district court first

characterized Jones’s RLUIPA claim during the statutory

screening of the initial complaint per 28 U.S.C.

§ 1915A(b)(1)–(2) as follows:

Plaintiff claims Defendant Miller’s decision

denied Plaintiff his due process right to his

property and his rights under RLUIPA

because he was denied his “right to read his

Nation of Islam text during Ramadan as he

normally does every year” and he was not

able to “freely practice [his] religious beliefs”

or “obtain religious instructions through his
30 JONES V. SLADE

religious literature during the holy month of

Ramadan.”

This was in line with Jones’s own declaration which stated

that “[t]he religious practice in question here, is not per se

Ramadan itself, but for Mr. Jones, to be able to purchase,

possess and read his choice of religious text, authored by the

(Prophet) and Honorable Elijah Muhammad . . . during

Ramadan and in General.” In its summary judgment

decision, however, the district court first repeated that the

religious exercise at issue was Jones’s “right to read his

Nation of Islam text during Ramadan, as he normally does

every year.” (Emphasis altered). But when the court reached

the substantial burden analysis, it only assessed whether

Jones was able to “successfully observe Ramadan without the

books he requested.” (Emphasis in original). Effectively, the

district court asked whether Jones could observe Ramadan

without reading Muhammad’s texts because it thought Jones

had done so before.

It was error for the district court to re-characterize Jones’s

religious obligations at a higher level of generality. In

Greene, we addressed the level of specificity we must

consider when addressing RLUIPA claims. 513 F.3d

at 987–88. Greene was an inmate housed in the maximum

security unit of the county jail, awaiting trial on charges of

making terrorist threats and false imprisonment. Id. at 985. 

Greene asked to attend religious services and attempted to

conduct group Bible studies and other communal meetings. 

Id. Instead, the county offered him a Bible, religious texts,

and a visit from the chaplain. Id. The county urged us to

consider Greene’s “religious exercise” as “the general

practice of one’s religion rather than any particular practice”

so that the county could “impose outright bans on particular
JONES V. SLADE 31

aspects of an inmate’s religious exercise, so long as, in the

aggregate, those bans do not amount to a substantial burden.” 

Id. at 987. We rejected the county’s reading of RLUIPA and

held that “the ‘religious exercise’ at issue in Greene’s lawsuit

is group worship, not Christianity.” Id. at 988. So 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 it had a

compelling interest and had imposed the least restrictive

means of securing that interest. Id. at 988–90.

Having defined the scope of Jones’s religious

exercise—reading his Nation of Islam texts during

Ramadan—we next consider whether excluding Jones’s texts

as contraband constitutes a substantial burden on his religious

exercise. A substantial burden exists when the state places

“substantial pressure on an adherent to modify his behavior

and to violate his 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 must impose “a significantly

great restriction or onus upon such exercise.” Id. (quoting

San Jose Christian Coll., 360 F.3d at 1034). The district

court found that withholding Muhammad’s texts imposed no

substantial burden on Jones’s religious exercise because

Jones did not “articulate[] why he was able to successfully

observe Ramadan for the 10 years prior to 2018, or what has

occurred to render him now unable to successfully observe

Ramadan without the books he requested.”5 Because

5 We are puzzled by the basis for the district court’s inference that

Jones had not previously read Muhammad’s texts in connection with

Ramadan. Jones’s complaint stated: “Plaintiff [was] denied [the] right to

read his Nation of Islam texts during Ramadan, as he normally does every

year.” At this stage, we are required to view the record evidence in the
32 JONES V. SLADE

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 Ramadan

is protected by RLUIPA whether he has read those texts

every year during Ramadan or only recently came to the

conclusion that he should do so. We do not “prescribe what

shall be orthodox in . . . religion, or other matters of opinion.” 

W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). 

Jones does not forfeit his claim because he may have

previously failed to adhere to the practice of reading the texts

during Ramadan. See Malik v. Brown, 16 F.3d 330, 333 (9th

Cir. 1994) (holding that plaintiff had a valid free exercise

claim based on his desire to use his Islamic name in prison,

even though he did not use that name at the time of his

conversion), supplemented, 65 F.3d 148 (9th Cir. 1995). The

Supreme Court has explained that the timing of the adoption

of a religious belief is “immaterial” to the determination of

whether a person’s religious exercise has been burdened. 

Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136,

144 (1987) (refusing to “single out the religious convert for

different, less favorable treatment than that given an

individual whose adherence to his or her faith [is less

recent]”); see also Callahan v. Woods, 658 F.2d 679, 687 (9th

light most favorable to Jones. Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970). That statement suggests to us that Jones had read Muhammad

during Ramadan, although it does not state how he had access to

Muhammad’s books. The record shows that Jones was transferred to a

new housing unit less than two months before he ordered the Elijah

Muhammad texts. One inference in Jones’s favor is that he had access to

the texts until the time of his transfer. Nevertheless, the district court

assumed that Jones “was able to successfully observe Ramadan for the

10 years prior to 2018 . . . without the books he requested.”
JONES V. SLADE 33

Cir. 1981) (“So long as one’s faith is religiously based at the

time it is asserted, it should not matter . . . whether that faith

derived fromrevelation,study, upbringing, gradual evolution,

or some source that appears entirely incomprehensible.”). 

There is no legal basis to fault Jones for not adding the study

of Elijah Muhammad’s texts during Ramadan to his religious

practice sooner; he did not waive his rights by not studying

these texts in the past.

Second, the district court’s inquiry into whether the

religious texts are required for Jones to observe Ramadan

misunderstood the RLUIPA analysis. RLUIPA explicitly

applies to “any exercise of religion, whether or not compelled

by . . . a system of religious belief.” 42 U.S.C. § 2000cc5(7)(A) (emphasis added); see Holt, 574 U.S. at 362

(“RLUIPA . . . applies to an exercise of religion regardless of

whether it is compelled.” (internal quotations and citation

omitted)). We have held that “RLUIPA ‘bars inquiry into

whether a particular belief or practice is central to a

prisoner’s religion.’” Greene, 513 F.3d at 986 (internal

quotations omitted) (quoting Cutter, 544 U.S. at 725 n.13). 

It is enough that reading Elijah Muhammad’s texts during

Ramdan is a sincere component of Jones’s religious practice,

without reference to whether Jones, or other members of the

Nation of Islam, consider the practice mandatory. See Holt,

574 U.S. at 362–63 (“RLUIPA . . . is ‘not limited to beliefs

which are shared by all of the members of a religious sect.’”

(quoting Thomas, 450 U.S. at 715–16)). Even so, Jones

offered evidence that the teachings of Elijah Muhammad, and

particularly his writings in Message to the Blackman in

America, inform the Nation of Islam’s celebration of

Ramadan and offered testimony that the writings of Elijah

Muhammad are central to his belief system. In Sutton v.

Rasheed, the Third Circuit held that the deprivation of Elijah
34 JONES V. SLADE

Muhammad’s texts was sufficient to make out a Free

Exercise claim and that the reading of these texts is “a

necessary element” of the exercise of the Nation of 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 Ramadan, a holy time of spiritual

reflection, constitutes a substantial burden.

By excluding Messages to the Blackman in America and

The Fall of America, the operation of DO 914 at least burdens

Jones’s general exercise of his Islamic beliefs. We have had

“little difficulty . . . concluding that an outright ban on a

particular religious exercise is a substantial burden on that

religious exercise.” Greene, 513 F.3d at 988. Because there

is a genuine issue of fact as to whether denying Jones

essential religious texts during Ramadan is a substantial

burden on his religious exercise, summary judgment was

inappropriate on Jones’s RLUIPA claim.

b. Least restrictive means of furthering a compelling

interest

Finding no substantial burden, the district court did not

assess whether ADC’s policy is the least restrictive means to

further a compelling interest. ADC argues its regulations are

narrowly tailored to the compelling government interest in

institutional security. To carry its burden under RLUIPA,

ADC must show “it has actually considered and rejected the

efficacy of less restrictive measures before adopting the

challenged practice.” Warsoldier, 418 F.3d at 999; see also

Holt, 574 U.S. at 362–63 (RLUIPA requires courts to

“scrutiniz[e] the asserted harm of granting specific

exemptions to particular religious claimants” (alteration in

original)). This is a fact-intensive inquiry on which the
JONES V. SLADE 35

record is not developed. We leave it to the district court on

remand to assess whether ADC can demonstrate that applying

the challenged regulation to Jones serves a compelling

interest and meets the “exceptionally demanding” leastrestrictive-means standard. Holt, 574 U.S. at 364 (quoting

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728

(2014)).

2. Free Exercise Clause

The Free Exercise Clause of the First Amendment, made

applicable to the States through the Fourteenth Amendment,

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof . . . .” U.S. Const. amend. I. The right to free

exercise is to be “jealously guarded.” Ward v. Walsh, 1 F.3d

873, 876 (9th Cir. 1993). But free exercise is necessarily

limited by the fact of incarceration and “may be curtailed in

order to achieve legitimate correctional goals or to maintain

prison security.” Id. (citing O’Lone, 482 U.S. at 348). To

merit protection under the Free Exercise Clause, Jones’s

belief must be “sincerely held” and religious in nature. 

Malik, 16 F.3d at 333. Once a claimant demonstrates that the

challenged regulation impinges on his sincerely held religious

exercise, the burden shifts to the government to show that the

regulation is “reasonably related to legitimate penological

interests.” Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir.

2015) (quoting Turner, 482 U.S. at 89). As we did with

respect to Jones’s Free Speech claim, we use the Turner

factors to evaluate whether a prison regulation implicating an

inmate’s free exercise right is valid. Shakur v. Schriro,

514 F.3d 878, 884 (9th Cir. 2008); Ward, 1 F.3d at 876–77.

We note that the Free Exercise Clause analysis differs from

RLUIPA’s analysis in at least two ways: (1) RLUIPA has an
36 JONES V. SLADE

expanded definition of religious exercise, and (2) RLUIPA

requires the government use the least restrictive means to

advance a compelling interest,while the Free Exercise Clause

only requires that the regulation be reasonably related to

legitimate penological interests. Greene, 513 F.3d at 986.

The district court concluded that Warden Shinn was

entitled to summary judgment under the Free Exercise Clause

because Jones “failed to demonstrate that Defendants’ [sic]

have substantially burdened the practice of his religion by

excluding his two requested books.” For the same reasons

that the district court’s analysis was flawed under RLUIPA,

it does not hold up under the Free Exercise Clause. The Free

Exercise Clause does not require plaintiffs to prove the

centrality or consistency of their religious practice: “It is not

within the judicial ken to question the centrality of particular

beliefs or practices to a faith.” Hernandez v. Comm’r,

490 U.S. 680, 699 (1989); see also Smith, 494 U.S. at 887

(“Repeatedly and in many different contexts, we have warned

that courts must not presume to determine the place of a

particular belief in a religion . . . .”); Callahan, 658 F.2d

at 685 (“In applying the free exercise clause of the First

Amendment, courts may not inquire into the truth, validity, or

reasonableness of a claimant’s religious beliefs.”). In Shakur,

we assessed whether a plaintiff bringing a free-exercise claim

is required to show that the defendant “burdened conduct

mandated by his faith.” 514 F.3d at 884 (internal quotations

omitted). Taking into account the Supreme Court’s prior

disapproval of a centrality test, we held that “the sincerity test

set forth in Malik and Callahan determines whether the Free

Exercise Clause applies.” Id. at 884–85. Here, just as in

Shakur, it was impermissible for the district court to focus on

whether reading Elijah Muhammad’s texts is required to

observe Ramadan, rather than whether Jones sincerely
JONES V. SLADE 37

believes reading these texts during Ramadan is consistent

with his faith. Id. at 885.

We have also explained that “religious claims that have

developed over time are protected to the same extent as those

that occur in a moment.” Malik, 16 F.3d at 333 (citing

Hobbie, 480 U.S. at 144 n.9). That Jones may have observed

Ramadan without access to Elijah Muhammad’s texts in the

past does not affect his free-exercise claim. See id. (“The

ten-year gap between when Malik legally changed his name

and when he began to use it exclusively does not attenuate

Malik’s free exercise claim.”).

The district court found that Jones’s religious beliefs are

sincerely held, and neither party contests this finding on

appeal. Because there is a material question as to whether

ADC’s exclusion of Jones’s religious texts pursuant to DO

914 infringes on his right to engage in his sincerely held

religious belief, summary judgment was inappropriate. 

Because the district court did not reach the Turner analysis,

we leave it to the district court on remand to determine

whether DO 914 is rationally related to a legitimate

penological interest. 

IV. CONCLUSION

The district court’s judgment granting the Defendants’

motion for summary judgment is reversed and this case is

remanded for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.