United States Court of Appeals

For the First Circuit

No. 06-2038

WESLEY SPRATT,

Plaintiff, Appellant,

v.

RHODE ISLAND DEPARTMENT OF CORRECTIONS;

A.T. WALL, Director, Rhode Island Department of Corrections,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Torruella, Lynch, and Lipez,

Circuit Judges.

Lynette Labinger, with whom Roney & Labinger LLP Cooperating

Counsel, Rhode Island Affiliate, American Civil Liberties Union,

was on brief, for appellant.

Patricia A. Coyne-Fague, Chief Legal Counsel, Rhode Island

Department of Corrections, was on brief, for appellee.

April 6, 2007
 To be clear, we use the word "preach" to refer to the activity 1

of commenting or expounding upon some religious text. RIDOC

continues to allow Spratt to read scripture aloud during religious

services so long as he does not add any commentary.

 RIDOC suggests that the then-warden of the prison, Warden 2

Whitman, may not have been aware of Spratt's preaching. However,

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TORRUELLA, Circuit Judge. Wesley Spratt ("Spratt") is a

prisoner in the Adult Correctional Institution ("ACI") in Rhode

Island. After prison officials prohibited Spratt from preaching to

his fellow inmates, he filed suit against the Rhode Island

Department of Corrections and its director, A.T. Wall

(collectively, "RIDOC") under the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.

("RLUIPA"). The district court granted summary judgment to RIDOC.

After careful consideration, we reverse and remand for further

proceedings.

I. Background

Spratt is a prisoner in the maximum security unit and is

serving a life sentence for murder. See State v. Spratt, 742 A.2d

1194 (R.I. 1999). In 1995, Spratt underwent a religious awakening,

and began attending Christian services at the ACI. Impressed with

his commitment and devotion, the prison chaplains began allowing

Spratt to preach to inmates during weekly services. In 2000, 1

Spratt was ordained as a minister by the Universal Life Church.

From 1995 until 2003, no prison official interfered with Spratt's

religious activities. Spratt's preaching during this seven year 2
Spratt stated in an affidavit, uncontroverted by RIDOC, that his

preaching was openly known to other prison officials, and that he

proudly spoke about his preaching activities during his yearly

classification reviews.

 This policy, however, does not address the issue of whether 3

inmates may participate in religious services under the supervision

of approved clergy, as was the case with Spratt. We defer to

RIDOC's interpretation of this policy to prohibit an inmate from

expounding upon the scripture, but not to prohibit an inmate from

reading religious texts without commentary.

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period did not lead to any apparent disciplinary problems at the

ACI.

In 2003, then-Warden Whitman was replaced by Warden

Weeden, who remains the warden of the ACI. On October 15, 2003,

Spratt was told by a correctional officer that he was no longer

allowed to preach in the chapel. When Spratt approached Warden

Weeden about the matter, he was told that preaching by prisoners

was not allowed under prison regulations. Spratt formalized his

complaint in writing, and Warden Weeden responded that inmate

preaching was prohibited by RIDOC Policy # 26.01-2DOC, which states

that all religious services are scheduled, supervised, and directed

by institutional chaplains. Weeden also informed Spratt that if 3

he was found to be preaching, he would be subject to disciplinary

action. Spratt then filed a complaint with A.T. Wall, director of

RIDOC, stating the aforementioned facts, and asking that Wall allow

him to preach. Wall responded in a letter dated December 15, 2003,

which states:
 Spratt initially filed suit under RFRA. However, RFRA was found 4

to be unconstitutional as applied to purely state (as opposed to

federal) action in City of Boerne v. Flores, 521 U.S. 507 (1997).

In its response to Spratt's complaint, RIDOC noted that Spratt

would likely refile his complaint under RLUIPA. Since then, the

district court and the parties have treated Spratt's complaint as

arising out of RLUIPA. We do not disturb this decision.

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Mr. Spratt, you do have the right to practice

your religion under the constitution subject

to reasonable restrictions. Because you are

not an acknowledged member of the clergy, you

do not have the right to proselytize or preach

to the inmate population. Therefore, your

request for my intervention is denied.

Spratt proceeded to file a pro se complaint against Wall

and RIDOC in the United States District Court for the District of

Rhode Island, asking for relief under the First Amendment, the

Fourteenth Amendment, and the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb-1(C) ("RFRA"). Spratt's complaint stated that the 4

prison policy prohibiting inmate preaching did not satisfy the

"least restrictive means" test in RFRA, and asked for declaratory

relief, injunctive relief, and damages of $40.29 (the cost of legal

paper and copies). RIDOC filed an answer stating that they lacked

sufficient information to admit or deny Spratt's allegations, but

asserted various affirmative defenses. Spratt moved for summary

judgment, attaching various letters from prison clergy attesting to

his skill as a preacher, his minister's certificate, and the

aforementioned correspondence between himself and prison officials.

RIDOC responded with a cross-motion for summary judgment, asking

that the claims against Wall in his individual capacity be
 This argument was never addressed by the district court, and we 5

express no opinion as to its merit.

 Spratt filed an interlocutory appeal of this judgment, which we 6

denied on April 4, 2006. Spratt v. Walls, No. 05-1583 (1st Cir.

Apr. 4, 2006). Spratt does not appeal the grant of summary

judgment on these claims.

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dismissed, and arguing that RIDOC had satisfied the requirements 5

of RLUIPA because (a) Spratt's religious exercise was not

substantially burdened and (b) even if it was burdened, RIDOC had

a compelling state interest which was accomplished by the least

restrictive means. RIDOC attached to their motion for summary

judgment a "statement of undisputed facts," which acknowledged that

"no material facts are in dispute in this matter."

The case was referred to a magistrate judge, who filed a

report and recommendation granting RIDOC summary judgment on

Spratt's First and Fourteenth Amendment claims, and staying the 6

RLUIPA claim pending the Supreme Court's resolution of Cutter v.

Wilkinson, 544 U.S. 709, 722-24 (2005), which considered various

constitutional challenges to RLUIPA.

After Cutter rejected the constitutional challenges to

RLUIPA, the magistrate judge ordered the parties to submit

additional briefing as to whether RLUIPA was applicable to RIDOC,

and as to the merits of Spratt's RLUIPA claim. RIDOC submitted a

supplemental memorandum acknowledging that it was subject to RLUIPA

because it accepted federal funding, and attached an affidavit from

Jake Gadsden, Assistant Director of Operations for the Rhode Island
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Department of Corrections. The affidavit briefly reviews Gadsden's

professional experience, and states that inmates may not lead

religious services in RIDOC facilities. Gadsden explains in the

affidavit that inmate preaching could be dangerous because "placing

an inmate in a position of actual or perceived leadership before an

inmate group threatens security, as it provides the perceived

inmate leader with influence within the administration." Gadsden

further states in the affidavit that "there is no less restrictive

manner to accommodate Spratt's desire to preach to an inmate

congregation, other than an outright ban," because even an inmate

preaching under RIDOC supervision would be perceived as having

influence. Finally, the affidavit states that Gadsden was familiar

with a program in the Texas Correctional System which he identified

as the "trustee" program, in which inmates were given certain

leadership roles. Gadsden states that Texas abolished the program

because the inmate leaders abused their positions to garner favors

from fellow inmates.

Spratt filed an affidavit in response, which states that

he acknowledges Gadsden's "noteworthy" credentials, but that

Gadsden's conclusions are "exaggerat[ion] and speculation." Spratt

also stated in a memorandum of law that he would willingly submit

to further RIDOC supervision of his preaching activities. He also

suggested that RIDOC could retain their policy against inmate

preaching but grant limited exemptions when enforcement of the
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policy would result in a violation of RLUIPA. Spratt noted that

RIDOC allows inmates to congregate and talk freely about nonreligious topics during recreational time, and that this had not

been found to pose a threat to prison security.

The magistrate judge issued a report and recommendation

granting RIDOC summary judgment on Spratt's RLUIPA claim. The

report found that Spratt had satisfied the first two elements of

the RLUIPA test: that preaching was part of Spratt's religious

exercise and that the religious exercise had been substantially

burdened by the RIDOC prohibition. However, the magistrate judge

concluded that RIDOC had established that inmate security was a

compelling state interest, and that the total ban on inmate

preaching was the least restrictive means by which to accomplish

that goal.

Spratt objected to the magistrate judge's report and

recommendation, and the issue was referred to a district judge.

The court held a hearing on the objection on April 6, 2006. At the

hearing on Spratt's objection, Spratt was represented by counsel

from the ACLU of Rhode Island. During the hearing, the court

initially seemed skeptical of RIDOC's claim that the Gadsden

affidavit was sufficient to overcome summary judgment, stating,

"What evidence do I have? See, that's the problem here. What

evidence is in the record that says it's got to be a total ban.

There's just no other solution. I'm looking at this very high
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burden and very little evidence." Nevertheless, the court adopted

and affirmed the magistrate judge's report and recommendation,

noting that "while the issue is somewhat of a close call, the

Magistrate Judge's [report and recommendation] on balance

represents both a fair and reasonable interpretation of the RLUIPA

claim."

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo, viewing

the record in the light most favorable to the non-moving party.

Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).

Summary judgment is appropriate only if there are no material

disputes of fact, and if the moving party is entitled to judgment

as a matter of law. Id.

B. RLUIPA

RLUIPA was enacted in 2000 as a response to the Supreme

Court's decision in City of Boerne v. Flores, which partially

struck down the previously enacted Religious Freedom Restoration

Act on the grounds that it exceeded Congress' power to regulate the

states under the Fourteenth Amendment. 521 U.S. 507, 529-36 (1997)

(holding that RFRA may not be applied to purely state, as opposed

to federal, action). Whereas RFRA had applied to all action by

"Government," RLUIPA is substantially narrower in scope, and the

portion of that statute at issue in this case applies only to "a
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program or activity [in an institution] that receives Federal

financial assistance." 42 U.S.C. § 2000cc-1(b)(1). Substantively,

RLUIPA provides that

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution, as

defined in [42 U.S.C. § 1997], even if the

burden results from a rule of general

applicability, unless the government

demonstrates that imposition of the burden on

that person--

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling governmental

interest.

Id. § 2000cc-1(a). Thus, a claim under RLUIPA includes four

elements. On the first two elements, (1) that an institutionalized

person's religious exercise has been burdened and (2) that the

burden is substantial, the plaintiff bears the burden of proof.

Id. § 2000cc-2(b). Once a plaintiff has established that his

religious exercise has been substantially burdened, the onus shifts

to the government to show (3) that the burden furthers a compelling

governmental interest and (4) that the burden is the least

restrictive means of achieving that compelling interest. Id.

1. Spratt's Burden

For purposes of this appeal, the state does not seriously

dispute that Spratt's evidence on his prima facie case is

sufficient to survive summary judgment. As an inmate in a state

correctional facility, Spratt is an institutionalized person within
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the definition of RLUIPA. See id. § 1997(1) ("The term

'institution' means any facility or institution--(A) which is

owned, operated, or managed by, or provides services on behalf of

any State or political subdivision of a State; and (B) which

is--(ii) a jail, prison, or other correctional facility . . . .").

Furthermore, it is clear that preaching is a form of religious

exercise. See McDaniel v. Paty, 435 U.S. 618, 626 (1978) ("[T]he

right to the free exercise of religion unquestionably encompasses

the right to preach, proselyte, and perform other similar religious

functions.").

As to the second prong, RIDOC devotes a footnote in its

brief to suggesting that Spratt's "exercise of . . . religion in

general is not being substantially burdened." Appellees' Br. at 11

n.6. RIDOC points out that "Spratt may still attend and

participate in religious services. He may pray, sing, or recite

during such services just as every other inmate may." Id. We have

not yet had the opportunity to define what constitutes a

"substantial burden" under RLUIPA. The district court decided that

a "substantial burden" is one that "put[s] substantial pressure on

an adherent to modify his behavior and to violate his beliefs,"

citing Thomas v. Review Board of Indiana Employment Security

Division, 450 U.S. 707, 718 (1981); see also Lovelace v. Lee, 472

F.3d 174, 187 (4th Cir. 2006) (applying the Thomas standard in a

RLUIPA case). Assuming arguendo that Thomas applies, RIDOC has not
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on this appeal seriously contested the issue and Spratt has stated

that RIDOC will not allow him to preach anytime or anywhere,

threatening that if he does so, he will be subject to disciplinary

sanctions. As such, for the purposes of this appeal, Spratt has

made a prima facie showing that his religious exercise has been

substantially burdened.

2. RIDOC's Burden

The burden thus shifts to RIDOC to demonstrate that its

ban on inmate preaching, as applied to Spratt, furthers a

"compelling governmental interest" and is the least restrictive

means of achieving that interest. 42 U.S.C. § 2000cc-1. We are

mindful, however, that in passing RLUIPA, Congress stated that we

should continue to give "due deference to the experience and

expertise of prison and jail administrators" in determining prison

policy. Cutter, 544 U.S. at 717 (internal quotation marks

omitted)(quoting 146 Cong. Rec. S7774, S7775 (daily ed. July 27,

2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)).

However, as the Congressional sponsors of RLUIPA stated,

"inadequately formulated prison regulations and policies grounded

on mere speculation, exaggerated fears, or post-hoc

rationalizations will not suffice to meet the act's requirements."

146 Cong. Rec. at S7775 (internal quotation marks omitted).

RIDOC asserts that it has a compelling state interest in

maintaining prison security. We agree. See, e.g., Cutter, 544
 Spratt also objects that the Gadsden affidavit does not satisfy 7

the requirement that an expert affidavit "include the factual basis

and the process of reasoning which makes the conclusion viable."

Hayes v. Douglas Dynamics, 8 F.3d 88, 92 (1st Cir. 1993). Because

we find that the affidavit does not provide sufficient evidence to

sustain RIDOC's burden under RLUIPA, we need not address this issue

now. However, we suggest that on remand, the district court

determine whether the Gadsden affidavit satisfies the requirements

for the admissibility of an expert affidavit.

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U.S. at 725 n.13 ("It bears repetition . . . that prison security

is a compelling state interest, and that deference is due to

institutional officials' expertise in this area."). However,

merely stating a compelling interest does not fully satisfy RIDOC's

burden on this element of RLUIPA; RIDOC must also establish that

prison security is furthered by barring Wesley Spratt from engaging

in any preaching at any time.

RIDOC has offered just one piece of evidence to support

this assertion: the Gadsden affidavit. This affidavit, which 7

cites no studies and discusses no research in support of its

position, simply describes the equation thus: if Spratt is a

preacher, he is a leader; having leaders in prison (even those

sanctioned by the administration) is detrimental to prison

security; thus, Spratt's preaching activity is detrimental to

prison security. But to prevail on summary judgment, RIDOC "must

do more than merely assert a security concern." Murphy v. Mo.

Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004). The Gadsden

affidavit offers only one reference to another prison in support of

its assertion that inmate preaching is a security concern: the
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affidavit mentions a situation in Texas which was described as a

"trustee" system. We believe that Gadsden was referring to the

"building tender" system present in Texas prisons in the 1970s.

This situation, of course, is radically different: building tenders

were inmates who were armed, served as official guards within the

prison, and who were serving in supervisory capacities in the

prison system. See generally Ruiz v. Estelle, 503 F. Supp. 1265,

1294-98 (S.D. Tex. 1980). Whereas it is quite easy to see how

armed prisoners granted nearly indiscriminate authority to

brutalize fellow prisoners are a threat to institutional security,

the same cannot be said about a preacher who offers a weekly sermon

under the direction of the prison chaplain.

Beyond the Texas "trustee system," Gadsden cites no past

instances where having inmates in leadership positions endangered

security, nor does he explain why a person who expounds on the

scripture during a weekly religious service would be considered a

leader. Self-serving affidavits that do not "contain adequate

specific factual information based on personal knowledge" are

insufficient to defeat a motion for summary judgment, let alone to

sustain one. Quiñones v. Houser Buick, 436 F.3d 284, 290 (1st Cir.

2006); see also Hayes, 8 F.3d at 92 ("Although an expert affidavit

need not include details about all of the raw data used to produce

a conclusion, or about scientific or other specialized input which

might be confusing to a lay person, it must at least include the
 Spratt claims that in fact, the ban on preaching was enacted in 8

retribution for a dispute that he had with a guard. If this were

true, it would undercut the state's argument that the blanket ban

on preaching is essential to prison security.

 RIDOC offers a third explanation for its prohibition on inmate 9

preaching. RIDOC suggests that inmate-led religious activities

could foment terrorism-related activity. See Appellee's Br. at 18

n.8 (citing Frank Cilluffo et al., Geo. Wash. Univ. Homeland Sec.

Policy Inst. and Univ. of Va. Critical Incident Analysis Group, Out

of the Shadows: Getting Ahead of Prisoner Radicalization (2006),

available at http://www.gwumc.edu/hspi/reports/rad/Out%20of%20the%

20shadows.pdf). The report cited by RIDOC describes the formation

of terror cells in prisons by radicalized Muslim inmates. This

explanation for the blanket ban on inmate preaching further

demonstrates that RIDOC has not engaged in any individualized

consideration of Spratt's preaching whatsoever. Cf. Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.

Ct. 1211, 1221 (2006) (requiring that the government engage in

individualized consideration of the necessity of a burden on

religious exercise).

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factual basis and the process of reasoning which makes the

conclusion viable in order to defeat a motion for summary

judgment.").

In addition, RIDOC's initial explanation for the

preaching ban was that only ordained ministers were allowed to

preach, and that Spratt was not ordained. However, according to

materials submitted in connection with Spratt's motion for summary

judgment, he had been an ordained minister since 2000. RIDOC now 8

claims that its initial explanation was "incomplete," and that the

real reason is that no inmates are allowed to preach at all. At

the very least, the inconsistencies between RIDOC's various

explanations for its policy require further explanation.9
 In Lovelace, the Fourth Circuit suggested that its result would 10

have been different if "assumptions about the governmental

interests involved here had been included in an affidavit by the

warden or some other [prison] official." 472 F.3d at 191. We do

not think that an affidavit that contains only conclusory

statements about the need to protect inmate security is sufficient

to meet RIDOC's burden under RLIUPA.

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Finally, RIDOC claims that it was merely "lucky" that

institutional security was not threatened during Spratt's seven

year stint as a preacher, and that it need not wait for a dangerous

situation to occur before it takes steps to remedy the threat. See

Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993) (noting that

"failure to specify a past event" that threatened institutional

security "does not render irrational the adoption and

implementation of a . . . policy" to address future events that

might pose a threat). RIDOC also claims that its policy is longstanding, and that prison officials who permitted Spratt to preach

were in violation of it. However, Spratt's seven-year track record

as a preacher, which is apparently unblemished by any hint of

unsavory activity, at the very least casts doubt on the strength of

the link between his activities and institutional security. While

we recognize that prison officials are to be accorded substantial

deference in the way they run their prisons, this does not mean

that we will "rubber stamp or mechanically accept the judgments of

prison administrators." Lovelace, 472 F.3d at 190.10

Even if we assume that RIDOC has shown a link between

Spratt's preaching and institutional security, RIDOC still has not
 It is important to note that we do not construe RLUIPA to 11

"require prison administrators to refute every conceivable option

in order to satisfy the least restrictive means prong of RFRA."

Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996). However,

to meet the least restrictive means test, prison administrators

generally ought to explore at least some alternatives, and their

rejection should generally be accompanied by some measure of

explanation. A blanket statement that all alternatives have been

considered and rejected, such as the one here, will ordinarily be

insufficient.

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shown that the blanket ban on all inmate preaching is the "least

restrictive means" available to achieve its interest. A prison

"cannot meet its burden to prove least restrictive means unless it

demonstrates that it has actually considered and rejected the

efficacy of less restrictive measures before adopting the

challenged practice." Warsoldier v. Woodford, 418 F.3d 989, 999

(9th Cir. 2005); Murphy, 372 F.3d at 989 ("It is not clear that

MDOC seriously considered any other alternatives, nor were any

explored before the district court."); cf. Casey v. City of

Newport, 308 F.3d 106, 114 (1st Cir. 2002) ("[T]he narrow-tailoring

test requires the district court to consider whether the regulation

challenged on First Amendment grounds sweeps more broadly than

necessary to promote the government's interest. That consideration,

in turn, cannot be done without some evaluation of the alternative

measures put in issue by the parties."). Rather than considering 11

alternatives, RIDOC argues that inmate preaching is an "all or

nothing" issue: any amount of inmate preaching, it contends, is

dangerous to institutional security under any circumstances. As
 Past decisions have found that restricting inmate preaching 12

"reasonably" furthered institutional security. See, e.g., Anderson

v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997) ("Requiring an

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such, RIDOC argues, there are no "less restrictive alternatives."

However, it is not clear how RIDOC has come to this conclusion.

See Warsoldier, 418 F.3d at 999 (explaining that a California

prison had done "nothing to . . . discuss whether it has ever

considered a less restrictive approach" to a blanket ban on long

hair). RIDOC offers no explanation for why alternative policies

would be unfeasible, or why they would be less effective in

maintaining institutional security.

RIDOC responds by pointing to the Eighth Circuit's

decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996), in

which that court accepted prison administrators' contention that a

regulation requiring inmates to have short hair was the least

restrictive means of achieving prison security. However, the court

in Hamilton made this determination after considering lengthy

testimony by the prison administrators in the district court,

something which is notably absent here. Id. at 1555. In addition,

the Eighth Circuit relied on several district court decisions

upholding hair length regulations against RFRA challenges, at least

one of which appears to have considered and rejected alternatives

to the regulation. Id. at 1555 n.12. In contrast, RIDOC offers no

case finding that blanket bans on inmate preaching satisfy the

least restrictive means test, and none appear to exist. Finally, 12
outside minister to lead religious activity among inmates

undoubtedly contributes to prison security."); Hadi v. Horn, 830

F.2d 779, 785 n.9 (7th Cir. 1987). However, these cases were

decided under the pre-RLUIPA standard of Turner v. Safley, which

states that a "[prison] regulation is valid if it is reasonably

related to legitimate penological interests." 482 U.S. 78, 89

(1987). The RLUIPA standard, which requires that prison

administrators achieve a "compelling interest" by the "least

restrictive means," imposes a different burden on prison officials.

See Lovelace, 472 F.3d at 199-200 ("[T]he First Amendment affords

less protection to inmates' free exercise rights than does

RLUIPA.").

 This list of questions is offered by way of example, and is not 13

exhaustive. We leave it to the district court to determine whether

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the Eighth Circuit explicitly acknowledged that "prison authorities

must do more than offer conclusory statements and post hoc

rationalizations for their conduct." Id. at 1554 n.10. Thus,

Hamilton lends little support to RIDOC's argument here.

In fact, RIDOC's "all or nothing" argument raises many

questions. Why are inmates banned from preaching when they are

free to become leaders under other circumstances? Likewise, why is

Spratt still allowed to stand in front of his congregation and read

scripture if it is his appearance in the pulpit that is

problematic? If it is the "teaching" element of scripture that is

so troubling, why are inmates permitted to assist instructors in

educational programs at the prison? Why would allowing preaching

only under strict prison supervision be a less effective solution

to the purported "threat to institutional security"? These

questions, all unanswered, suggest that RIDOC has not given

consideration to possible alternatives.13
RIDOC has adequately shown that its policy is the least restrictive

means of achieving prison security.

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Furthermore, "[e]qually problematic . . . is that other

prison systems, including the Federal Bureau of Prisons, do not

have such . . . policies or, if they do, [they] provide . . .

exemptions." Warsoldier, 418 F.3d at 999. As Spratt points out,

the Federal Bureau of Prisons policy on religious practices appears

to contemplate inmate-led religious services in certain

circumstances. See Federal Bureau of Prisons, Program Statement:

Religious Beliefs and Practices, Statement P5360.09 (2004) ¶ 7(d)

("Inmate-led religious programs require constant staff

supervision."); id. ¶ 7(a) ("Inmates may recite formulaic prayers

in the language required by their religion. Sermons, original

oratory, teachings and admonitions must be delivered in English.").

We recognize that "prison officials . . . are infinitely more

familiar with their own institutions than outside observers,"

Hamilton, 74 F.3d at 1556 n.15, and that as such, evidence of

policies at one prison is not conclusive proof that the same

policies would work at another institution. However, in the

absence of any explanation by RIDOC of significant differences

between the ACI and a federal prison that would render the federal

policy unworkable, the Federal Bureau of Prisons policy suggests

that some form of inmate preaching could be permissible without

disturbing prison security.
 The level of deference to be accorded to prison administrators 14

under RLUIPA remains an open question. RLUIPA's statutory

requirement that we apply strict scrutiny to prison policies that

substantially burden religious exercise may be in tension with the

legislative history which suggests that courts should continue to

defer to the expertise of prison administrators. Obviously, courts

will need to find some balance between scrutiny of and deference to

prison regulations. We need not resolve that question now because

RIDOC has yet to present any reasoned judgment to justify the

policies at issue in this case.

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Simply put, RIDOC must "demonstrate, and not just assert,

that the rule at issue is the least restrictive means of achieving

a compelling governmental interest." O'Bryan v. Bureau of Prisons,

349 F.3d 399, 401 (7th Cir. 2003). This does not conflict with our

policy of deferring to the judgment of prison administrators.

Rather, before we can evaluate whether deference is due, we require

that prison administrators explain in some detail what their

judgment is. Here, RIDOC "offer[s] conclusory statements that a 14

limitation on religious freedom is required for security, health or

safety." Weaver v. Jago, 675 F.2d 116, 119 (6th Cir. 1982). To

prevail on summary judgment, RIDOC must do more.

C. Remedy

Spratt asks that we enter summary judgment in his favor.

Alternatively, Spratt asks that we reverse summary judgment and

remand the matter for discovery and trial on the merits. Summary

judgment is proper only when "there is no genuine issue as to any

material fact." Fed. R. Civ. P. 56(c). Denial of summary judgment

is also appropriate where factual records are "disturbingly thin,"
-21-

"contain gaps," and require judgment calls which depend on evidence

not in the record but readily obtainable. See Mandel v. The Boston

Phoenix, Inc., 456 F.3d 198, 205-07 (1st Cir. 2006).

Notwithstanding Spratt's protestations to the contrary, it is clear

that there are factual disputes, including whether a ban on inmate

preaching furthers prison security, and whether a blanket ban is

the least restrictive means necessary. The factual record on these

issues is quite thin. As such, it would also be improvident at

this point to grant summary judgment in favor of Spratt. We have

held that entry of summary judgment for defendant was not

warranted. Each side, on remand, may present further evidence and

argument.

III. Conclusion

For the foregoing reasons, we reverse the judgment of the

district court and remand for further disposition in accordance

herewith.

Reversed and Remanded.