IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41015

WILLIAM E. CHANCE, JR.,

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in

his official capacity as Executive Director of the Texas Department of

Criminal Justice; CYNTHIA LOWERY, in her individual capacity; BILL

PIERCE, in his individual capacity; EDGAR BAKER, in his individual

capacity; WARDEN JOHN RUPERT; WARDEN TODD FOXWORTH,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:11-CV-435

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

Plaintiff-Appellant William Chance, Jr. (“Chance”) is a prisoner currently

incarcerated by the Texas Department of Criminal Justice (“TDCJ”). Chance

filed suit under the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) alleging that TDCJ has failed to accommodate several tenets of his

United States Court of Appeals

Fifth Circuit

F I L E D

August 27, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Native American religion, including:(1) personal participation in a pipe-smoking

ceremony, (2) participation in a minimum number of various ceremonies, (3)

indoor smoke-wafting, and (4) personal possession of a lock of a deceased

relative’s hair. We agree with the district court that the summary judgment

record demonstrated that the prison policies associated with Chance’s first three

complaints are the least restrictive means of furthering TDCJ’s compelling

interests. However, we disagree with the district court that summary judgment

was appropriate on Chance’s claim that prohibiting the possession of a lock of a

relative’s hair was not the least restrictive means of furthering TDCJ’s

compelling interests. We therefore AFFIRMthe district court’s judgment in part,

and VACATE and REMAND it in part.

I. 

Chance is a prisoner currently incarcerated in the TDCJ’s Michael Unit

in Tennessee Colony, Texas. The Michael Unit is among several TDCJ

incarceration units specifically designated to house adherents of Native

American faith groups. Chance traces his lineage to the Cheyenne people, a

recognized tribe of indigenous Native Americans. Chance is also a practicing

follower of a traditional Native American faith.1 According to Chance, an

integral part of his faith and worship is the requirement that he regularly

participate in a number of traditional rituals and ceremonies, including the

“Sacred Pipe ceremony,” the “Smudging ritual,” the “Teaching ceremony,” holy

day ceremonies (“Wiping Away the Tears ceremonies”), and the “Keeping of

Souls” practice. 

1 According to amici Pan-American Indian Association et al.,the Native American faith

we are concerned with in the instant case is an inclusive “Pan-Indian” belief system which

broadly incorporates the practices and rituals common to the different Native American tribal

groups of the American Great Plains.

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Arguing that TDCJ has failed to adequately accommodate these practices,

Chance filed this lawsuit in June 2011, asserting multiple violations of

RLUIPA.2 TDCJ moved for summary judgment, arguing that there was no

genuine issue of material fact and that it was entitled to judgment as a matter

of law. As is discussed in greater detail below, the magistrate judge agreed and

issued a report recommending that TDCJ’s motion be granted and all of

Chance’s claims be dismissed. The district court adopted the magistrate judge’s

report and recommendation, and Chance now appeals.

A. The Sacred Pipe Ceremony

Chance alleges that a cornerstone of his Native American faith is

participation in the Sacred Pipe ceremony. For adherents of the Native

American faith, it is only by personally smoking a mixture of herbs and tobacco

from a special pipe that they can offer their prayers to the Spirits. During the

ceremony, the Sacred Pipe is passed around the group, with each participant

smoking the pipe and offering his personal prayers as he exhales the smoke. 

For most of Chance’s incarceration, he and other prisoners were allowed

to smoke a communal Sacred Pipe. From 2008 to 2010, Chance was even

permitted to smoke a separate Sacred Pipe due to his chronic infections with

Hepatitis C and tuberculosis. It is unclear what happened to Chance’s separate

pipe, but it is undisputed that he no longer had access to it sometime in 2010.

Thereafter, Chance and several other prisoners filed administrative grievances

with TDCJ complaining about the risk of communicable disease transmission

from a communal pipe. In his grievance, Chance specifically cited his own

chronic infections as preventing him from using the communal pipe and entitling

him to a separate pipe. 

2 Chance also asserted violations of the Free Exercise Clause and the Equal Protection

Clause. Because Chance has only appealed the district court’s decision dismissing his RLUIPA

claims, we do not reach those issues in this appeal.

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In an effort to resolve the prisoners’ concerns about disease, the grievances

were referred to Dr. Robert Williams, Deputy Director of TDCJ’s Health Service

Division. Dr. Williams subsequently issued a detailed opinion on the health

implications of using a communal pipe in the Sacred Pipe ceremony. Dr.

Williams ultimately concluded: “There is no way to share an object designed to

be placed in one’s mouth outside of a clinical setting with enough certainty that

diseases cannot be transmitted for Health Services to advocate instituting this

practice.” Based on Dr. Williams’s recommendation, TDCJ determined that it

would no longer permit a communal Sacred Pipe ceremony. Although a form of

the Sacred Pipe ceremony would still be held, only the chaplain conducting the

service would be allowed to smoke the pipe and pray on behalf of those present. 

Chance subsequently filed this suit, alleging that TDCJ’s new Sacred Pipe

policy was an insufficient accommodation of his religious exercise under

RLUIPA, because his personal participation in the pipe ceremony is essential.

In response to TDCJ’s motion for summary judgment, the district court found

that although the policy substantially burdened Chance’s religious beliefs, it is

nonetheless the least restrictive means of furthering TDCJ’s compelling

interests in prison health, administration, and security. Accordingly, TDCJ’s

Sacred Pipe policy did not violate RLUIPA.

B. Frequency of Native American Ceremonies

The second major grievance asserted by Chance is the insufficient

frequency of Native American ceremonies in the Michael Unit. According to

Chance, Native American believers must regularly participate in Sacred Pipe

ceremonies, as well as “Teaching ceremonies” and “Wiping Away the Tears

ceremonies.” A Teaching ceremony is a Sunday school-style ceremony where

Native Americans receive teaching and participate in discussions concerning

their beliefs. A Wiping Away the Tears ceremony is a special Sacred Pipe

ceremony conducted in observance of a Native American holy day. 

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Around the same time that TDCJ modified its Sacred Pipe policy, it began

having difficulty finding volunteers or chaplains to oversee any of the traditional

Native American services in the Michael Unit. As a result, TDCJ could not offer

all of the services requested by Native Americans. Chance claims that his beliefs

require twice-monthlySacredPipe ceremonies, weeklyTeaching ceremonies, and

four annual Wiping Away the Tears ceremonies on certain holy days. Instead,

TDCJ provides Sacred Pipe ceremonies once a month, Teaching ceremonies once

a month, and Wiping Away the Tears ceremonies on four different Native

American holy days. In addition, TDCJ offers Native American “Talking Circle”3

activities twice each month and religious DVD presentations once a month. 

Chance, however, insists that these are inadequate substitutes for the formal

Sacred Pipe and Teaching ceremonies and the holy day recognition his faith

requires.

Chance’s complaint alleged that TDCJ’s failure to provide more Sacred

Pipe, Teaching, and holy day ceremonies unreasonably burdened his religious

exercise under RLUIPA. However, the district court reasoned that given the

number of prisoners and faith groups represented in Texas prisons, TDCJ could

not be expected to provide weekly services that catered to everyone. Accordingly,

TDCJ’s failure to provide more Native American ceremonies did not violate

RLUIPA.

C. The Smudging Ritual

Like the Sacred Pipe ceremony, the Smudging ritual is an elemental

component of the Native American faith. Smudging is ordinarily done in

conjunction with other Native American rituals such as the Sacred Pipe and

Teaching ceremonies. It involves burning a small amount of herbs and then

fanning the resulting smoke over the individual, any sacred object to be used,

3 During a Talking Circle, Native American participants are each given the opportunity

to voice what the “Great Spirit” has placed on their heart, similar to a Christian Bible study.

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and the ceremonial site. For Chance and other adherents of the Native American

faith, Smudging is necessary to purify ceremonial objects and participants in

order to make contact with the Spirits.

From 1998 to 2009, Chance and other Native American believers were

allowed to “Smudge” indoors just before their regular Sacred Pipe and Teaching

ceremonies. Specifically, the ceremonies and the Smudging were conducted in

the Michael Unit’s gymnasium, which is where all such group gatherings are

held. However, sometime in 2009, a new fire alarm system was installed in the

gymnasium and TDCJ no longer permitted indoor Smudging. According to

Chance, the only place where Smudging is now permitted—and therefore the

only place where the Sacred Pipe and Teaching ceremonies can be properly

conducted—is outside. This is insufficient, Chance maintained, because without

an indoor Smudging option, inclement weather now forces the cancellation of an

essential Native American ritual. Chance’s complaint alleged that the refusal to

accommodate indoor Smudging rituals unreasonably burdened his religious

exercise under RLUIPA. 

In response to TDCJ’s summary judgment motion, the district court found

that although the policy substantially burdened Chance’s religious beliefs, it is

nonetheless the least restrictive means of furthering TDCJ’s compelling

interests in prison administration and safety. Accordingly, the prison’s indoor

Smudging ban did not violate RLUIPA.

D. The Keeping of Souls Ritual

The Keeping of Souls Ritual is the process by which Native American

believers honor their duty to mourn the death of relatives. The ritual

traditionally requires Native American believers to keep a small lock of their

deceased relative’s hair for at least a year. Without possessing the lock of hair,

survivors cannot properly mourn the death of a loved one or reconnect with them

in the afterlife.

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According to Chance, TDCJ has previously allowed a Native American

prisoner to keep a lock of a relative’s hair to observe the Keeping of Souls Ritual.

However, when Chance requested that he be allowed to keep locks of his dead

parents’ hair, TDCJ denied his request. Because any item not received from an

approved vendor could be used to smuggle in drugs, all items from family

members are considered contraband.

Chance’s complaint asserted that TDCJ’s refusal to accommodate his

request for a lock of hair unreasonably burdened his religious exercise under

RLUIPA. However, the district court found that the prison’s policy did not

substantially burden Chance’s religious beliefs, and even if it did, that the policy

against contraband is the least restrictive means of furthering the state’s

compelling interests. Therefore, the contraband policy did not violate RLUIPA.

II.

We review the district court’s summary judgment de novo, applying the

same standards as the district court. Burge v. Parish of St. Tammany, 187 F.3d

452, 464 (5th Cir. 1999). Summary judgment is only appropriate if “the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a). When reviewing

a grant of summary judgment, we construe all facts and inferences in the light

most favorable to the non-moving party, here Chance.

III.

RLUIPA provides that “no government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an institution, . .

. even if that burden results from a rule of general applicability,” unless the

burden “is in furtherance of a compelling government interest” and “is the least

restrictive means of furthering that compelling government interest.” 42 U.S.C.

§ 2000cc-1(a). The plaintiff initially bears the burden of showing that “the

challenged government action substantially burdens the plaintiff’s religious

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exercise.” Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013). Once the

plaintiff makes that showing, the burden shifts to the government to show that

its action or policy is the least restrictive means of furthering a compelling

interest. Id. at 241–42. Although RLUIPA’s standard places a heavy burden on

the state, “‘context matters’ in the application of that standard.” Cutter v.

Wilkinson, 544 U.S. 709, 723 (2005) (citation omitted). We therefore review

RLUIPA claims with “due deference to the experience and expertise of prison

and jail administrators in establishing necessary regulations and procedures to

maintain good order, security and discipline, consistent with consideration of

costs and limited resources.” Id.

As a threshold matter, a common thread throughout Chance’s briefed

RLUIPA claims is his argument that summary judgment on the issue of least

restrictive means is inappropriate as a matter of law if TDCJ followed a more

liberal policy in the past or if other prisons allow a practice that TDCJ forbids.

Because Chance has offered evidence thatTDCJ previously accommodated—and

other institutions still accommodate—the ceremonies and rituals in question,

Chance insists that summary judgment was inappropriate.

Nothing in the caselaw or the RLUIPA statute supports Chance’s

brightline rule. Instead, the wording of the RLUIPA statute suggests a factspecific inquiry that takes into account the special circumstances of the

individual prisoner and prison: A prison can substantially burden a prisoner’s

religious exercise if “the burden on that person . . . is in furtherance of a

compelling governmentinterest[] and is the least restrictive means of furthering

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

added). Decisions of this court have accordingly conducted case-specific inquiries

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into whether a prison’s policy is the least restrictive means of furthering the

state’s interests.4

At least one other circuit has rejected the per se rule offered by Chance,

choosing instead to follow a case-specific approach when analyzing least

restrictive means issues on summary judgment. As the Eighth Circuit explained

in Fowler v. Crawford, a categorical rule defining the relevance of another

prison’s policy ignores the differences between institutions and all the other

factors that might be more relevant in a given case. 534 F.3d 931, 941 (8th Cir.

2008). Specifically, the Fowler court considered a Native American prisoner’s

RLUIPA demand for access to a sweat lodge. In asserting his claim, the plaintiff

prisoner relied heavily on the fact that another prison nearby permitted biannual sweat lodge ceremonies. Id. Rebuffing the prisoner’s assertion that “they

did it at [another prison], they can do it at [my prison],” the court affirmed the

dismissal of the claim on summary judgment. Id. The court explained, “Although

prison policies from other jurisdictions provide some evidence as to the feasibility

of implementing a less restrictive means of achieving prison safety and security,

it does not outweigh the deference owed to the expert judgment of prison officials

4 See, e.g., Garner, 713 F.3d at 245–46 (conducting detailed inquiry into whether ban

on beards was least restrictive means); Moussazadeh v. TDCJ, 703 F.3d 781, 795–96 (5th Cir.

2012) (concluding that RLUIPA’s least restrictive means analysis is conducted independently

on record of each case); see also Cutter, 544 U.S. at 720 (“Properly applying RLUIPA, courts

must take adequate account of the burdens a requested accommodation may impose on

nonbeneficiaries.”). The fact that Chance proposes this rule in the context of summary

judgment does not change our conclusion. Summary judgment is appropriate if “there is no

genuine dispute as to any material fact.” FED. R. CIV. P. 56(a). Because the relevant facts are

not in dispute or must be construed in one party’s favor, “we are left with a pure question of

law to decide.” See New Orleans Depot Servs., Inc. v. DOWCP, 718 F.3d 384, 387 (5th Cir.

2013) (en banc). Therefore, construing all facts in favor of Chance, the question of least

restrictive means is appropriate for summary judgment. See, e.g., Baranowski v. Hart, 486

F.3d 112, 125 (5th Cir. 2007).

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who are infinitely more familiar with their own institutions than outside

observers.” Id. at 942.5

In light of these principles and cases, we conclude that the mere existence

of a prison policy that differs from a past policy or another institution’s policy

does not necessarily entitle a plaintiff to survive summary judgment on his

RLUIPA claim. Not only does our RLUIPA analysis require a careful

consideration of each case’s specific facts, but there is also no reason to avoid

summary judgment when the material facts are not in dispute. See FED. R. CIV.

P. 56(a).

A.

Chance first argues that the district court erred by dismissing his Sacred

Pipe ceremony RLUIPA claim. Specifically, Chance claims that TDCJ’s complete

ban on communal pipe-smoking is not the least restrictive means of furthering

the state’s interests. Because TDCJ has conceded the existence of a substantial

burden, we proceed to the least-restrictive-means inquiry.

As an initial matter, TDCJ’s duty to protect the health and safety of its

prisoner population is indisputably an interest of the highest order. See Cutter,

544 U.S. at 717. TDCJ contends that its ban on communal pipe-smoking is

necessary to prevent the spread of infectious diseases, especially in the closed,

crowded population of a prison. To support its policy, TDCJ has offered expert

testimony establishing that a “host of communicable diseases [could] be easily

shared via a[n object] like a communal pipe such as flu, strep throat, norovirus,

and mononucleosis just to name a few.” Given that 125 to 150 prisoners

routinely seek to participate in the Sacred Pipe ceremony, and that the rate of

5 See also Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009) (affirming summary

judgment dismissing prisoner’s Free Exercise claim where “the only evidence he produced was

that the [forbidden items] were allowed at other prisons”); see also Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33, 42 (1st Cir. 2007) (“[E]vidence of policies at one prison is not conclusive proof that

the same policies would work at another institution.”).

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infection for many diseases is often much higher in prison, TDCJ’s concerns

about communal pipe-sharing are not unreasonable.6 

Disregarding the fact that a communal Sacred Pipe ceremony will promote

the spread of disease, Chance nonetheless insists that TDCJ’s past

accommodation of the Sacred Pipe ceremony precludes the prison from changing

its position now. Also relevant, Chance contends, is the fact that other prisons

in the United States permit a form of Sacred Pipe ceremony. However, Chance’s

dependence upon these anecdotal examples completely ignores TDCJ’s sensible

reason for banning communal pipe ceremonies. That TDCJ or other prisons have

tolerated unsafe practices in the past is not a reason to permanently bind it to

a dangerous policy. Though TDCJ may have a different policy than some prisons,

it has provided evidentiary support for its decision that Chance has not even

attempted to rebut. “Evidence of the rules in other prisons is not, by itself,

sufficient to call into question the prison’s explanation.” Mays, 575 F.3d at 647.

Chance alternatively contends that TDCJ could have achieved

substantially the same result with a less restrictive policy. For example, Chance

suggests that the pipe could be cleaned with sanitizing wipes between each

smoker, or that he could be allowed to use a separate pipe. However, Chance’s

proffered alternatives are not backed by any summary judgment evidence and

largely ignore the concerns and evidence provided by TDCJ. Importantly, the

record indicates that TDCJ considered and rejected a variety of alternatives to

an outright ban on personal pipe-smoking. As TDCJ’s Deputy Director of Health

6 Chance asserts that to ban the practice of communal pipe-smoking, TDCJ must prove

that its previous practice of allowing communal pipe ceremonies actually resulted in outbreaks

of infectious diseases. However, no rule of evidence requires the use of anecdotal proof when

competenttestimony, scientific knowledge, and commonsense adequately support a conclusion.

See, e.g., Fowler, 534 F.3d at 939 (“Prison officials need not endure [dangerous behaviors]

before implementing policies designed to prevent such activities in an uneasy atmosphere. Nor

do prison officials charged with managing such a volatile environment need present evidence

of actual problems to justify security concerns.”).

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Services, Dr. Williams, explained, “[s]terilization would be expensive and would

not accommodate sharing the pipe in a meeting at the same time. If the

sterilization process was not strictly adhered to, the process would not eliminate

the risk of transmitting disease.” Chance has also suggested that because of his

serious illnesses, only he would need a separate pipe. However, this alternative

does nothing to address the health risks still faced by the rest of the communal

pipe ceremony participants. As Dr. Williams concluded in an opinion prepared

before Chance ever filed his prison grievance or lawsuit:

There is no way to share an object designed to be placed in one’s

mouth outside of a clinical setting with enough certainty that

diseases cannot be transmitted for Health Services to advocate

instituting this practice. If it is determined that [TDCJ’s] obligation

to allow observance of this practice outweighs [TDCJ’s] obligation

to prevent spread of infection in our institutionalized setting,

[TDCJ] will have to take as effective measures as are feasible, but

it should be understood that the repercussions of this practice may

extend beyond the participants since they would subsequently

expose others with whom they have close contact to any disease they

contracted from participating in the practice.

Recognizing that another solution might be to allow every participant to

smoke his own pipe, TDCJ has provided detailed evidence demonstrating why

that also would not be feasible. According to the Michael Unit’s Regional

Director, Robert Eason, the amount of time it would take to distribute,

inventory, and track every Native American believer’s pipe would substantially

burden the prison’s limited resources and labor during every Sacred Pipe

ceremony. Additional logistical problems are created by the necessity of

cataloguing and storing several hundred pipes. As Director Eason explained,

even if we assume the availability of disposable pipes, they are not a feasible

alternative, either. Because tobacco is not permitted in Texas prisons, it is

valuable contraband, and TDCJ would have to devote extensive manpower to

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ensure that none of the 150 ceremony participants stole or hid any. Director

Eason additionally demonstrated that the extra security required for monthly

Sacred Pipe ceremonies with individual pipes would cost between $81,723 and

$104,592 a year.

According an appropriate amount of deference to TDCJ’s own expertise in

prison administration, we conclude that it has established that its communal

smoking policy is the least restrictive means of advancing its compelling

interests.TDCJ has provided extensive, uncontroverted evidence demonstrating

its consideration and reasoned rejection of a range of alternative policies. While

it is true that Chance’s religious exercise is burdened and that a chaplain

smoking on his behalf is seemingly inadequate, “[w]e do not read RLUIPA to

elevate accommodation of religious observances over an institution’s need to

maintain order and safety.” Cutter, 544 U.S. at 722. 

B.

Chance next argues that the district court erred by dismissing his

complaint about the infrequency of Sacred Pipe, Teaching, and Wiping Away the

Tears ceremonies in the Michael Unit. Although TDCJ currently provides a

monthly Sacred Pipe ceremony, a monthly Teaching ceremony, and four annual

Wiping Away the Tears holy day ceremonies, Chance contends that his beliefs

require two monthly Sacred Pipe ceremonies, two monthly Teaching ceremonies,

and Wiping Away the Tears ceremonies on holidays more specific to his faith.

The district court rejected Chance’s assertion, concluding that the prison’s

provision of less frequent or different ceremonies did not constitute a violation

of RLUIPA.

Assuming that Chance has demonstrated a substantial burden on his

faith, TDCJ has offered substantial evidence demonstrating that its schedule of

Native American services is the least restrictive means of furthering its

compelling interests in prison administration, resource allocation, and cost

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control. Billy Pierce (“Pierce”), TDCJ’s Manager of Chaplaincy Operations,

explained that the primary reason more frequent services cannot be held is the

dearth of available people willing and able to oversee religious ceremonies.

Pursuant to longstanding TDCJ policy, prisoners may only organize religious

gatherings under the proper supervision of a contract chaplain or qualified

outside volunteer. Since TDCJ is often unable to find chaplains to conduct

weekly services for each of the 230 identified faiths in TDCJ’s system, it relies

heavily on outside religious volunteers to conduct services. However, Pierce

indicated that he has faced great difficulty trying to solicit volunteers to conduct

Native American services. Despite efforts to hire Native American chaplains and

continuous requests to more than 60 Native American resource groups in the

region from 2009–2012, Pierce was unable to obtain anything but religious

recordings and fleeting commitments to help.

In addition to limited volunteer availability, Pierce noted: “Providing

weekly or even monthly religious services to all these [230] different faith groups

would be virtually impossible for numerous reasons, including, but not limited

to, the large number of faiths, the number of offenders, security concerns,

staffing and space limitations, and the large geographical expanse that TDCJ

covers.” Even with these concerns, TDCJ still manages to provide monthly

Sacred Pipe ceremonies, monthly Teaching ceremonies, four annual Wiping

Away the Tears ceremonies, and two monthly Native American “talking circles.”

Our caselaw also forecloses Chance’s claim on this record. In Adkins v.

Kaspar, we considered whether imprisoned members of the Yahweh Evangelical

Assembly had stated a RLUIPA claim when a shortage of volunteers prevented

the members from congregating weekly. 393 F.3d 559, 570 (5th Cir. 2004).

Rejecting the prisoner’s assertion that TDCJ’s volunteer requirement unduly

burdened his faith, we reasoned that the requirement was reasonable, especially

in light of the accommodations TDCJ made when volunteers were available. Id.

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at 571. Other decisions of this court confirm that TDCJ’s volunteer policy is a

permissible attempt to accommodate diverse religious exercises with limited

resources.7

The instant case is indistinguishable from Adkins and our other cases

upholdingTDCJ’s religious volunteer policy.8 Because the volunteer requirement

is reasonable and necessary, and Native Americans have alternative

opportunities to gather and worship, we conclude that it is the least restrictive

means of furthering TDCJ’s compelling interest in prison administration.

However, this conclusion does not end our inquiry into TDCJ’s provision

of Native American ceremonies. With regard to Chance’s complaint about the

provision of Wiping Away the Tears ceremonies, he complains not about their

infrequency, but about their provision on the wrong holy days. In other words,

the Native American holy days recognized by TDCJ do not correspond to the holy

days revered by Chance.9If TDCJ provides ceremonies on certain Christian,

7 See Mayfield v. TDCJ, 529 F.3d 599, 614 (5th Cir. 2008), (finding that TDCJ’s

volunteer requirement was permissible when prisoners were still provided with regular

opportunities to congregate and worship); Odneal v. Pierce, 324 F. App’x 297, at *4 (5th Cir.

2009) (unpublished) (rejecting Native American prisoner’s RLUIPA complaint about the

infrequency of services where the “record detail[ed] the defendants’ failed efforts to secure

additional volunteers and chaplains for the Native American services”); Baranowski, 486 F.3d

at 125.

While we have held that Adkins did not lay down “a per se rule that the TDCJ’s

volunteer requirement could never impose a substantial burden on a prisoner’s exercise of

religion,” Mayfield, 529 F.3d at 614, our cases finding a burdensome application of that

requirement are easily distinguished. See, e.g., id. (finding factual dispute about whether the

TDCJ volunteer requirement is a substantial burden on Odinist prisoners when evidence

indicated that the only approved volunteer visited less than once a year); McAlister v.

Livingston, 348 F. App’x 923, 937 (5th Cir. 2009) (finding factual dispute about whether the

TDCJ volunteer requirement is a substantial burden on Wiccan prisoners when evidence

indicated it was not enforced neutrally).

8 Though our cases often analyze the volunteer requirement under the “substantial

burden” prong of RLUIPA, we find that the volunteer restriction is also proper as the least

restrictive means of furthering TDCJ’s compelling interests.

9 Although the Michael Unit used to recognize the four Native American holy days now

designated by Chance, it discontinued that practice in 2008. In order to comply with a court

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Islamic, and other Native American groups’ holy days, Chance contends, it must

also recognize and provide ceremonies on his holy days. As we have already

recognized with respect to increasing the frequency of Sacred Pipe ceremonies

and Teaching ceremonies, TDCJ’s provision of holy day ceremonies is limited by

the lack of space, personnel, and available volunteers. However, this is especially

true in light of TDCJ’s obligations to provide regular services for other faith

groups and to observe four different Native American holy days. As this court

has recognized before, the standard prison practice of providing for the generic

tenets of major faith groups is not only reasonable, but necessary in light of the

prison’s limited resources. As we stated in Freeman v. TDCJ, 369 F.3d 854, 861

(5th Cir. 2004), 

[A prison’s] decision to offer worship services to five broad faith

sub-groups, augmented by supplemental religious services to the

other groups, . . . is eminently reasonable. Although some

[individual] prisoners may not be able to attend a service perfectly

suited to their faith, this limitation is dictated by the demands of

administering religious services to tens of thousands of inmates

representing widely divergent faiths.[10]

In another case, we recognized that the “generic structure of TDCJ [religious

group] services maximizes inmates’ religious libertywhile addressing compelling

government interests including security problems, staffing limitations, and space

constraints.” Jones v. Shabazz, 352 F. App’x 910, 915 (5th Cir. 2009)

(unpublished).11

order in another case, the Michael Unit now observes the four Native American holidays

revered in Native American Shamanism—another Native American religious sect.

10 Although this decision was in the context of a First Amendment Free Exercise claim

to which we apply less exacting scrutiny of prison regulations, these considerations remain

relevant in the RLUIPA context.

11 See also Smith v. Kyler, 295 F. App’x 479, 484 (3d Cir. 2008) (unpublished) (finding

that hiring a Chaplain to perform religious services only for the “largest major faith groups”

but permitting smaller groups to worship together with volunteer chaplains was the least

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Just as it is a reasonable decision to provide generic Protestant services,

Jewish services, or Native American pipe ceremonies, it is reasonable to limit

the provision of special holiday services to generic Protestant, Jewish, and

Native American holy days. Otherwise, as TDCJ points out, the prison would be

required to accommodate the diverse holidays of the hundreds of recognized

Native American tribes, as well as the various sects of other faith groups.

Although prisons cannot blindly assert that an exception for one person would

require exceptions for everyone, we have recognized the validity of such concerns

where experience or evidence warrants that conclusion. See, e.g., Baranowski,

486 F.3d at 118; Garner, 713 F.3d at 243.12 When “inmate requests for religious

accommodations become excessive, impose unjustified burdens on other

institutionalized persons, or jeopardize the effective functioning of an institution,

the facility [is] free to resist the imposition.” Cutter, 544 U.S. at 726.

It is TDCJ that is most familiar with its own staffing and space limitations

and the administrative burden of providing services across multiple faiths.

Given the problems inherent in providing holiday services catered to every

prisoner’s individual beliefs, we conclude that TDCJ has demonstrated that

providing generic Native American faith holiday services is the least restrictive

means of furthering TDCJ’s compelling interests.

C.

Chance next argues thatthe district court erred by dismissing his RLUIPA

claim challenging TDCJ’s policy of restricting the Smudging ritual to outdoor

ceremonies. Specifically, Chance contends that Smudging should be done twice

each month, in conjunction with the monthly Sacred Pipe and Teaching

restrictive means of furthering the prison’s interests); Boxer X v. Donald, 169 F. App’x 555

(11th Cir. 2006) (unpublished) (recognizing same concerns); Bruton v. McGinnis, 110 F.3d 63

(6th Cir. 1997) (unpublished) (same).

12 See also Thunderhorse v. Pierce, 364 F. App’x 141, 144 (5th Cir. 2010) (unpublished).

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ceremonies. However, because Teaching ceremonies are held indoors and Sacred

Pipe ceremonies can be forced indoors by rain, Native American believers

sometimes must conduct important ceremonies without Smudging properly

beforehand. Chance argues that this outright ban on indoor Smudging, which

TDCJ concedes is a substantial burden, is not the least restrictive means of

furthering TDCJ’s interests. 

As an institution tasked with managing the details of thousands of

inmates’ lives using a limited budget, TDCJ undisputably has a compelling

interest in both prison safety and controlling costs. See Garner, 713 F.3d at 244.

TDCJ contends that the only way it can fully protect its interests is by

restricting the Smudging ritual exclusively to outdoor ceremonies. According to

TDCJ, all large group activities in the Michael Unit are conducted in the unit’s

gymnasium, which has a smoke-activated fire alarm. Moreover, the Smudging

ritual involves fanning the smoke of a burning bowl of herbs over each of up to

150 participants. As a result, TDCJ insists that it cannot permit Smudging

without deactivating the fire alarm or risking false fire alarms, neither of which

are permissible alternatives. To accommodate the Smudging ritual when it is

forced indoors, TDCJ routinely permits “wet Smudging,” whereby the ritual is

conducted by handling wet herbs rather than burning dry herbs.

In response, Chance argues that the complete ban on indoor Smudging is

not truly the least restrictive solution. First, Chance contends that TDCJ’s

concerns about the fire alarm are overblown, as the fire alarm has never been

set off by Smudging. Second, Chance reiterates his argument that if the prison

used to permit an activity, then prohibiting that activity cannot be the least

restrictive solution. Because the prison allowed Smudging in the gymnasium in

the past, he argues, it must continue to allow it. Third, Chance reasons that

there are feasible, less-restrictive alternatives to an outright ban, including

setting up a tent or shed outside.

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However, Chance’s arguments find no support in the law or in the record.

The fire alarm has not been triggered by the Smudging ritual in the past because

the Smudging ritual was banned from the gym as soon as the alarm was

activated. Although TDCJ permitted indoor Smudging rituals in the Michael

Unit gymnasium for several years, it has adequately explained why a new fire

alarm required it to change its policy. Chance’s additional assertion that the

prison must wait until smoke sets off the fire alarm before safely concluding that

smoke sets off fire alarms ignores common sense. See Cubero v. Burton, 96 F.3d

1450 at *2 (7th Cir. 1996) (unpublished) (applying RLUIPA precursor statute

and upholding prison’s ban on indoor Smudging); Hodgson v. Fabian, 378 F.

App’x 592, 593–94 (8th Cir. 2010) (unpublished) (applying RLUIPA and

upholding prison’s ban on indoor Smudging). Finally, we are aware of no case in

which a court has compelled a prison to spend the time and resources to

construct a special outdoor structure merely because a religious group has

demanded it.

Our deference to prison administrators and their interests in safety and

cost control counsels in favor of dismissing Chance’s Smudging complaint.

Because TDCJ still permits Smudging outdoors and has offered uncontroverted

evidence demonstrating the reasonableness of its determination to ban indoor

Smudging, we conclude that its Smudging policy is the least restrictive means

of achieving its compelling interests.

D.

Finally, Chance argues that the district court erred by dismissing his

RLUIPA claim challenging TDCJ’s denial of his request to possess locks of his

deceased parents’ hair in accordance with the Keeping of Souls practice. As

Chance emphasizes, in the Native American faith, physical possession of a dead

relative’s hair is necessary to connect with them after death. On this issue, the

district court found that the denial of Chance’s request did not constitute a

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substantial burden and held, alternatively, that even if Chance were

substantially burdened, TDCJ’s denial was pursuant to a policy that is the least

restrictive means of furthering TDCJ’s interests in prison security and

administration.

Although the district court found that denying Chance’s request to possess

a lock of hair did not substantially burden his religious exercise, TDCJ has not

briefed the issue on appeal. Conversely, Chance has consistently asserted that

the possession of a lock of hair is something which is an important part of his

faith. “[T]he place of a particular belief in a religion” is an assertion which we

are peculiarly “ill-suited” to test, especially on summary judgment, and

especially where the belief system is admittedly unfamiliar. See Adkins, 393

F.3d at 570.13In light of Chance’s professed beliefs, the absolute denial of access

to religiously-significant locks of hair is certainly a policy which “influences

[Chance] to act in a way that violates his religious beliefs.” See id. This satisfies

the substantial burden requirement as we have described it.

Proceeding to the question of whether denying Chance the lock of hair is

the least restrictive means of furthering TDCJ’s compelling interests, we

recognize that TDCJ certainly has a compelling interest in promoting prison

order and preventing contraband from entering the prison. According to TDCJ,

the prohibition of all personal items from non-approved vendors is the only way

the prison can prevent contraband from entering the prison. Citing TDCJ’s

major contraband problems, Director Eason testified that “[a]ny time we open

the door for individuals to send items in, it breaches the security of our

institution, and that is our number one mission[, ] security and public safety. I

mean, that is what we do.” Unlike items from the prison’s authorized vendors,

items received from other persons might contain illegal weapons or substances.

13 See also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332–33 (5th Cir. 2009).

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Specifically, TDCJ argues that even locks of hair could be dipped in a drug like

PCP and later smoked. Moreover, TDCJ offered testimony concerning the

problems posed by allowing only certain inmates to receive contraband items

from relatives. As Director Eason explained, when one inmate is allowed the

privilege of receiving something other inmates are not allowed—even hair—it

could breed animosity and make that inmate a target.

In response, Chance presented evidence that TDCJ once permitted the

possession of locks of hair, and that other institutions currently permit the

possession of locks of hair. As Chance also points out, a small lock of hair is no

more capable of being soaked in drugs than the letters in a prisoner’s mail.

Although TDCJ insists that mail is different because it is not sacred and can be

handled and tested, these concerns are speculative and without record support.

Moreover, this explanation ignores Chance’s assertion that he would permit the

hair to be tested or inspected, and even pay for the testing if required. Casting

further doubt on TDCJ’s asserted policy is evidence that TDCJ permits Native

American prisoners to possess such objects as a bone or a tooth, which are

apparently not available for purchase from traditional vendors.

Also relevant to our consideration is the fact that we have never gone as

far as upholding an absolute, no-exceptions prison restriction on requests for

outside objects.14 Rather than deferring to the prison’s general policy regarding

a matter, we have consistently tested the prison’s asserted interests with regard

to the risks and costs of the specific accommodation being sought. See

Moussazadeh, 703 F.3d at 795–96. Maintaining this approach is consistent with

our observation that the availability of a less restrictive means is “a subject that

demands a fact-intensive inquiry.” See id. Other courts have similarly rejected

14 See, e.g., McFaul v. Valenzuela, 684 F.3d 564, 572–73 (5th Cir. 2012); Mayfield, 529

F.3d at 602; McAlister, 348 F. App’x at 936.

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generic appeals to prison security and prisoner uniformity, taking an objectspecific approach to requests for religious items.15

For example, in Mayfield v. TDCJ, we considered an Odinist prisoner’s

request for religious runestones—small tiles made from antler, wood, or stone,

and containing religious inscriptions. 529 F.3d at 602. Despite evidence

presented by TDCJ that runestones could be used to gamble, pass secret

messages, and identify gang members, we found that a ban on runestones might

not be the least restrictive of effective alternative policies. Id. at 616. Although

Odinist prisoners were already allowed to access runestones when an outside

volunteer was present, we reasoned that a less restrictive alternative might be

to allow the unit chaplain to store the runestones for use during other appointed

times. Id. at 616–17. Because an absolute ban on locks of hair appears to be no

more necessary than a partial ban on runestones, Mayfield militates strongly in

favor of denying summary judgment to TDCJ on this issue.16

While we must give due deference to TDCJ’s expertise in prison

administration and security, Cutter, 544 U.S. at 723, this deference does have

limits. If TDCJ can absolutely prohibit something as benign as a lock of hair by

appealing to its general approved-vendors-only policy, then TDCJ could

conceivably prohibit anything. On this record, there is a dispute about the

15 See, e.g., Craddick v. Duckworth, 113 F.3d 83, 85 (7th Cir. 1997) (finding that prison

had “not shown that medicine bags pose a genuine threat to prison security.” (citation

omitted)); Singson v. Norris, 553 F.3d 660, 662–63 (8th Cir. 2009) (finding that unrestricted

access to tarot cards would create multiple security problems); see also Hammons v.Saffle, 348

F.3d 1250, 1255 (10th Cir. 2003); Morrison v. Garraghty, 239 F.3d 648, 660 (4th Cir. 2001);

Spies v. Voinovich, 173 F.3d 398, 405 (6th Cir. 1999). A notable exception to this trend is a

Free Exercise case from the Ninth Circuit, Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th Cir.

1991). However, not only is the Friend case an outlier, but it also did not apply the tougher

least restrictive means standard.

16 See also McAlister, 348 F. App’x at 936 (“If the district court finds on remand that

[plaintiff] has met his burden . . . then the district court should also determine (1) whether

TDCJ has a compelling interest in prohibiting possession of each item . . . .”) (emphasis added).

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dangers posed by hair and the necessity of a no-exceptions policy, as well as the

potential viability of simply inspecting or testing the hair. It also appears that

there are a number of less restrictive alternatives to an outright ban, including

restricting the lock of hair to the cell, washing it, inspecting it, or restricting its

size. We therefore conclude that there is a genuine issue of material fact with

regard to whether TDCJ’s refusal to allow Chance to possess locks of relatives’

hair is the least restrictive means of furthering TDCJ’s compelling interests.

IV.

In sum, we hold that Chance has created a genuine issue of material fact

only with regard to whether he may possess a lock of hair in prison. We therefore

VACATE the district court’s dismissal of that claim and REMAND it for further

proceedings. The remainder of the district court’s judgment is AFFIRMED.

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