### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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, J r. (“Chance”) is a prisoner currently incarcerated by the Tex a s D e partment of C riminal Justice (“TDCJ”). Chance filed suit under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) alleging that T DCJ has f a iled to accommodate several t enets of his U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 27, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41015 Document: 00512355295 Page: 1 Date Filed: 08/27/2013No. 12-41015

Native American religion, incl u di n g : ( 1 ) p e r s o n al p arti c ip ation in a p i pe-smoking ceremony, (2) participation in a minimu m n u m b er o f various ceremonies, (3) indoor s moke-wafting, and (4) p ers o n a l p o ssession of a lock of a d eceased relative’s h air. We agree with t h e district court that the summary judgment record d emonstrated that the prison policies associated with Chance’s first three

c o m p l aints are the least restrictive m eans of furthering TDCJ’s compellin g interests. However, we disagree with the di strict court that s ummary judgment

was appropriate on C hance’s claim t hat prohibiting the possession of a lock of a relative’s hair was not the least restrictive means of furthering T D C J ’ s compelling interests. W e th e r e f o r e AF F I RM th e di s tri ct court’s judgment in part, and VACATE and REMAND it in part. I. Chance i s a prisoner currently incarcerated in the T DCJ’s Michael Unit in Tennessee C olony, T exas. The Michael Unit is among s everal TDCJ inc a r c eration units specifically designated to house adherents of Native American faith groups. Chance traces his lineage to t he Cheyenne people, a recognized tri b e of i ndigenous Native Americans. Chance is also a practicing follower of a tr a ditional Native American faith. 1 According to Chance, an integral p a r t of his faith a nd worship is the requirement t hat he regularly participate in a number of traditional rituals and ceremonies, i n c l u d ing the “Sacred Pipe ceremony,” the “Smudging ritual,” t he “Teaching ceremony,” holy day c eremonies (“Wiping Away the Tears ceremonies”), and the “ Ke e p i n g of Souls” practice.

1 Accord ing to am ici Pan- Am erican Ind ian As s ociation et al. , the N ative Am erican f aith
w e a r e c o n c e r n ed w ith in the ins tant cas e is an inclus ive “Pan- Ind ian” belief s ys tem w hich broad ly incorp orates the p ractices and rituals com m on to the d if f erent Native Am erican tribal group s of the Am erican G reat Plains

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Arguing that TDCJ has failed to a dequately accommodate these practices, Chance filed this lawsuit in June 2011, asserting multiple violations of RLUIPA. 2 TDCJ moved for summary judgme n t , a r g uing t hat there was no genuine issue of material fact and that i t was entitled to judgment a s a matter of law. As is discussed i n greater detail below, the m agistrate judge agreed and issued a report r e c o m m e n d ing that TDCJ’s m otion be gr anted and all of Chance’s claims b e dismissed. The district court adopted the m agistrate judge’s report and recommendation, and Chance now appeals. A. The Sacred Pipe Ceremony Chance alleg e s t h a t a cornerstone of his N a tive American faith is participation in the Sacred Pipe ceremony . F o r a dherents of the Native American faith, it is only by personally smoking a m ixture of h erbs and tobacco from a special p ipe that they can offer their pr a y e rs to the Spirits. During the ceremony, the Sa c red 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 p risoners were allowed t o smoke a communal Sacred Pipe. From 2008 to 2010, Chance was even permitted to smoke a separate Sacred Pipe due t o his ch r o n i c infections with Hepatitis C and tuberculosis. It is unclear w hat happened t o Chance’s separate pipe, but it is undispute d 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 p ipe. In his grieva n c e , Chance specifically cited his own chronic i nf

e c ti o n s a s p r eventing him from using the communal pipe a nd entitling him to a separate pipe.

2 Chance als o as s erted violations of the Free E xercis e Claus e and the Equal Protection Claus e. B ecaus e Chance has only ap p ealed the d is trict court’s d ecis ion d is m is s ing his RLU I PA claim s , w e d o not reach thos e is sues in this ap p eal. 3 Case: 12-41015 Document: 00512355295 Page: 3 Date Filed: 08/27/2013No. 12-41015

In an effort to r e s o lve the prisoners’ concerns about disease, the grievances

were referred to Dr. Robert Williams, Deputy Director o f T D CJ’s Health Service Division. Dr. Williams subsequently issued a detailed opinion o n t he health implications o f u s i n g a communal pipe in the Sacred Pipe ceremony. Dr. Williams ultimately concluded: “There is no way t o s hare an object designed to be placed in one’s mouth outside of a clinical setting with enough c ertainty that diseases cannot be transmitted for Health Services t o advocate instituting this practice.” B ased o n 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 t he chaplain c onducting the service w ould be allowed to smoke the pipe and pray on behalf of t hose present. Chance subsequently filed this suit, a lleging t hat TDCJ’s new Sacred Pipe policy was an i nsufficient accommodation of his r e l i g ious exercise under RLUIPA, because his personal participation in t h e pipe ceremony is e s sential. In r esponse to TDCJ’s motion for summary judgment, t he distr i c t c o u r t found that although the p olicy substantially burdened Chance’s religious beliefs, it is nonetheless the leas t r estrictive means of furthering TDCJ’s compelling interests in prison h ealth, administration, and s ecurity. Accordingly, T D CJ’s Sacred Pipe policy did not violate RLUIPA. B. Frequency of Native American Ceremonies T h e second major grievance asserted by Chance is t he i nsuffic i e n t frequency of Native American ceremonies in the Michael Unit. According to Chance, Native American believers m u st regularly participate in Sacred Pipe ceremonies, as well as “Teaching ceremonies” and “Wiping Away the Tears

c e remonies.” A T eaching ceremony i s a S unday school-style ceremony w h e r e Native Americans receive teaching and p articipate in discussions concerning their beliefs. A Wipi n g 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 f

inding volunteers or chaplains to o versee any of the traditional Native American services in the Michael Unit. As a result, TDCJ could not offer all o f the services requested by Native Americans. Chance claims that his beliefs

r e qu ir e twice-monthly S a c r e d P i p e c e r e m o ni e s , w e e kly T e a c hi n g c e r e m o ni e s , a n d four annual Wiping Away the Tears ceremonie s o n c ertain 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 act i v i t i es twice each month and religious DVD presentations once a month. Chance, however, insists tha t t h ese are inadequate substitutes for the formal Sacred Pipe and Teaching ceremonies a nd the holy day r e c o gnition his faith requires. Chance’s complaint alleged that TDCJ’s failure t o provide more Sacred Pipe, Teaching, and holy day ceremonies unreasonably burdened h i s religious exercise under RLUIPA. H owever, the district c ourt reasoned that given the number of prisoners and faith groups represented in Texas prisons, TDCJ could not be expected to p rovide weekly services that catered to everyone. Accordingly, TDCJ’s failure to provide more Native American ceremonies did not v i o l a t e RLUIPA. C. The Smudging Ritual Like the Sacred Pipe c eremony, the Smudging r i t u a l is an elemental component o f the N ative American faith. Smudging is or d inarily done in conjun c t i o n w i t h other Native American rituals such as the Sacred P ipe and Teaching ceremonies. I t involves burning a small amount of h e rb s a nd then fan n ing the resulting smoke over the individual, a ny sacred object to be used,

3 D uring a Talk ing C ircle, N ative Am erican p articip ants are each giv e n the op p ortunity to voice w hat the “G reat Sp irit” has p laced on their heart, s im ilar to a Chris tian Bible s tud y. 5 Case: 12-41015 Document: 00512355295 Page: 5 Date Filed: 08/27/2013No. 12-41015

and the ceremonial site. For Chance and other adherents of the Native American faith, S m udging is necessary to purify ceremonial object s a n d p articipants in order to make contact with the Spirits. From 1998 to 2009, C hance and other Native American believ e r s were allowed to “Smudge” i ndoors just before their regular Sacred P ipe and T eaching ceremonies. Specifically, the ceremonies an d t he Smudging were conducted in the Michael Unit’s gymnasium, which is w here a l l s u ch group gatherings are held. However, sometime in 2 009, a new fire alarm system was installed in the gymnasium and TDCJ n o l o n ger permitted indoor Smudging. According to Chance, the only place where Smudging is n o w p e r mitted—and therefore the only place where the S a c red Pipe a nd Teaching ceremonies c a n be p roperly conducted—is outside. This is insufficient, Chance maintained, because without

an i ndoor Smudging o ption, 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 s u mmary judgment motion, the district court found that although the policy substantially burdened C h ance’s religious beliefs, it is nonetheless the least restrictive means of furtherin g T DCJ’s compelling interests in prison admin i s t r a t i on and safety. Accordingly, the prison’s indoor Smudging ban did not violate RLUIPA. D. The Keeping of Souls Ritual The Keeping of Souls R i t u a l i s the p rocess b y which Native American believers honor their d uty to mourn t h e death o f relatives. The ritual traditionally requires Native American bel i e v e r s t o keep a small lock of their deceased relative’s hair for at least a year. Without p ossessing the lock of hair, survivors cannot p roperly mourn the death of a loved one or reconnect with them in the afterlife.

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Accord i n g t o Chance, TDCJ has previously allowed a Native American prisoner to keep a lock o f a relative’s hair to observe the Keeping of Souls Ritual. However, w hen Chance requested that he be allowed t o k eep locks o f h i s dead parents’ hair, TDCJ denied his request. Because any item not received from an approved ven d o r c ould be used to smuggle i n drugs, all items from family members are considered contraband. Chance’s complaint asserted that TDCJ’s r efus a l to accommodate his request for a lock of hair unreasonably burdened his r eligious e x e r c i se under RLUIPA. However, the district court found that the prison’s po l i c y did not substantially b urden Chance’s religious beliefs, and e ven i f it did, that t he policy against contraband i s the l east restrictive means of furthering t h e state’s compelling interests. Therefore, the contraband policy did not violate R LUIPA. I I. We review the district court’s summary judgment d e n ovo , 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 a s a matter of law.” F E D

. R

. C I V

. P. 56(a). When reviewing

a grant of s u mmary 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 a n institution,

. .

. even if th a t burden results from a rule of general applicability,” unless the burden “is in f

urtherance of a compelling government interest” and “is the least restrictive means o f furthering that compelling government interest.” 42 U.S.C. § 2000cc-1(a). The p laintiff initially bears the bur d e n of showing that “the challenged govern m e nt action s ubstantially burdens the plaintiff’s religious

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exercise.” Ga r n e r v . Kennedy , 713 F.3d 237, 241 (5th Cir. 2013). Once the plaintiff makes that showing, the burden s hifts to t he government t o show that i t s action or p olicy is the least restrictive means o f furthering a compelli n g interest. Id

. at 241–42. Although RLUIPA’s s tandard places a heavy burden on the state, “‘context matt e r s ’ in the application of that standard.” Cutter v. Wilkinson , 5 44 U .S. 709, 723 ( 2005) (citation omi t t e d)

. We t herefore review RLUIPA claims with “ d u e d eference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good o rder, s e c urity and discipline, consistent with considerat i o n of costs and limited resources.” Id

. As a threshold matter, a common th r e a d t h r oughout Chance’s briefed RLUIPA claims is his argument t hat summary judgment on the issue of least restrictive means is inappropriate a s a m a t ter of law if TDCJ followed a more liberal policy in the past or if other prisons allow a practice that T DCJ forbids. Because Chance has offered evi d e n c e th at T D C J p r evi o u s ly a c c o mmodated—and other institutions still accommodate—the ceremonies and r i tuals in question, Chance insists that summary judgment was inappropriate. Nothing in the caselaw or the RLUIPA s t a t ute s u pports C hance’s brightline rule. Instead, th e w o r ding of the R LUIPA statute suggests a factspecific inquiry that takes into account the s p ecial circumstances of the individual prisoner and prison: A prison can substantia l l y b urden a prisoner’s religiou s exercise if “the burden on t hat person . . . is in furtherance of a compelling gover n m e nt i nt e r e s t [ ] and is the least restrictive m eans of furthering that compelling gov e rnmental interest.” 42 U.S.C. § 2000cc-1(a) (emphasis

a d d e d)

. Decisions of this court have accordingly conducted c ase-specific inqu iri e s

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into whether a prison’s p olicy is the least restrictive means o f furthering the state’s interests. 4 At least one other circuit has rejected the p er se rule offered by Chance, choosing instead to follow a case- s pecific approach when analyzing least restrictive means issues on summary judgment. As the Eighth Circuit explained in F owler v. Crawford , a c ategorical rule de f i n i n g 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 Fo w l e r c o urt considered a Native American prisoner’s RLUIPA demand f

or access to a sweat l odge. In asserting his claim, the plaintiff
p r i s o ner relied heavily on the f a ct that another prison nearby permitted b i

annual s weat lodge c eremonies. Id

. Rebuffing the prisoner’s a ssertion that “they did it at [another prison], they can do it at [my prison],” the court affirmed the dismissal of the claim on s u mmary judgment. I d

. The court explained, “Although prison p o li c i e s f

r o m o th e r j uri s dictions provide some evidence as to the f easibility of implementing a l ess restrictive means of achieving prison safety and security, it d oes not outweigh the deference owed to the expert judgment of prison officials

4 See, e. g. , G a rner , 713 F. 3d at 245–46 ( cond ucting d etailed inquiry into w hether ban on beard s w as leas t res trictive m eans ) ; M oussazadeh v . TD CJ

, 703 F. 3d 781, 795–96 ( 5th Cir. 2012) ( conclud ing that RLU IPA’s leas t res trictive m eans analys is is cond ucted ind ep end ently on record of each cas e) ; see a lso Cutter , 544 U

. S. at 720 ( “Prop erly ap p lying RLU IPA, courts m us t tak e ad equate account of the burd ens a reques ted accom m od ation m ay im p os e on nonbenef

iciaries

. ”)

. The f

act that Chance p rop os es this rule in the conte x t o f s um m ary jud gm ent d oes not change our conclus ion. Sum m ary j u d gm ent is ap p rop riate if “there is no genuine d is p ute as to any m aterial f act. ” F E D

. R. C IV

. P. 56( a)

. B ecaus e the relevant f acts are not in d is p ute or m us t be cons trued in one p arty’s f avor, “w e are lef

t w ith a p ure ques tion of law to decid e. ” See N

ew O rl ea ns D ep ot Serv s. , Inc. v . D O WCP, 718 F

. 3d 384, 387 ( 5th Cir. 2 0 1 3 ) ( en banc)

. Theref ore, cons truing all f

acts in f

avor of Chance, the ques tion of leas t res tri c t i v e m e ans is ap p rop riate f or s um m ary jud gm ent. See, e. g. , Ba ra now ski v . Ha rt , 486 F. 3d 112, 125 (5th Cir. 2007)

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who are infin i tely more familiar with their own institutions than outside observers.” Id . at 942. 5 In light of these principles a nd cases, we c o nclude that the m ere existence of a p rison policy that d i f fers from a past policy or a nother institution’s policy doe s n ot necessarily entitle a plaintiff to survive summary judgment on his RLUIPA claim. Not onl y d o e s our RLUIPA analysis r equire a careful consideration of each case’s s pecific facts, b ut there is al s o n o r e ason to avoid
summary judgment when the material facts are n ot in dispute. See F E D

. R. C I V

. P. 56(a). A. Chance first argues that the district c ourt erred by dismissing his Sacred Pipe ceremony RLUIPA claim. Specifically , C h a n c e c l aims that TDCJ’s c omplete ban on communal pipe-smoking is not the least r e strictive means o f furthering the s tate’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 t he health and s afety 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 i ts policy, TDCJ has offered expert testimony establishing that a “host of c o mmunicable di s eases [could] be easily shared via a[n object] like a communal pipe such as flu, s trep throat, norovirus, and m ononucleosis just to n ame a few.” G iven that 125 to 15 0 p r i soners routinely seek to participate in the Sacred Pipe ceremony, and that the rate of

5 See a lso M

a ys v . Sp ri ngborn , 575 F. 3d 643, 647 ( 7th Cir. 2009) ( af firm ing s um m ary jud gm ent d is m is s ing p ris oner’s Free Exercis e claim w here “the only evid ence he p rod uced w as that the [ f

orbid d en item s ] w ere allow ed at other p ris ons ”) ; see a lso S pra tt v . R. I. D ep ’t of Corr. , 482 F. 3d 33, 42 ( 1s t Cir. 2007) ( “[ E] vid ence of p olicies at one p ris on is not conclus ive p roof that the s am e p olicies w ould w ork at another ins titution. ”)

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infection for many diseases is often much higher in prison, TDCJ’s c oncerns about communal pipe-sharing are not unreasonable. 6 Disregardi n g th e f

ac t that a communal Sacred Pipe ceremony will promote the spread of disease, Chance nonetheless insists that TDC J ’ s p ast accommodation of the Sacred Pipe ceremony p r ecludes the prison from changing its position n ow. Also relevant, Chance contends, is the fact that other prisons in the United S t ates permit a form of Sacred Pipe c eremony. However, C hance’s dependence upon these a necdotal examples completely ignores TDCJ’s sensible

reason for banning communal pipe ceremonies. That T DCJ or other prisons have tolerated unsafe practices in the past is not a reason to permanently bind it to

a dangerous policy. T hough TDCJ may have a different policy t h a n s o m e prisons, it has provided evidentiary support for its decision that Chance h a s n o t e v en attempted t o rebut. “Evidence of the r ules in other prisons i s not, by itself, sufficient to c all into question the p rison’s explanation.” M ays , 575 F.3d at 647. Chance alternatively contends that T DCJ 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 th at 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 T D CJ. I mportantly, the record indicates that TDCJ considered and rejected a variety of alternatives to

an outright ban on personal pipe-smoking. As T DCJ’s Deputy Director of Health

6 Chance as s erts that to ban the practice of com m unal pip e- s m ok ing, T DCJ m us t p rove that its p revious p ractic e o f all o w ing com m unal pip e cerem onies actually res ulted in outbreak s of inf ectious d is eas es . H ow ever, no rule of evid ence requires the us e of anecd otal p roof w hen c o mp e t e nt t e sti mo ny , sc i e nt if i c kn ow led g e, and com m ons ens e ad equately su p p o rt a c o n c l u si o n . Se e , e . g
. , Fow ler , 534 F. 3d at 939 ( “Pris on of f icials need not end ure [ d angerous behaviors ] bef ore im p lem enting policies des igned to p revent s uch activities in an uneas y atm os phere. N or d o pris on of

f icials charged w ith managing s uch a volatile environm ent need p res ent evid ence of actual p roblem s to jus tif ys ecurity concerns .”)

.

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Services, Dr. Williams, explained, “[s]terilization would be e xpensive and would not a ccommodate sharing the pipe i n a meeting at t h e s a me t ime. If the sterilization process was not strictly adhered to, the p rocess would not eliminate the risk o f transmitting disease.” Chance has also s uggested that because of his serious illnesses, only he would n eed a s eparate pipe. However, this alternative does nothing to address the health risks still faced b y t h e rest of the c o mmunal pipe ceremony participants. As Dr. Williams concluded i n an opinion prepared before Chance ever filed his prison grievance or lawsuit:

There is no way to share an object designed to b e placed in one’s mouth outside of a cli n i c al setting w ith enough certainty that diseases c annot be transmitted for H ealth Services to advocate instituting this practice. If it is determined that [TDCJ’s] obligation to allow observance of this practice outweighs [TDCJ’s] o b ligation to prevent spread of infection in o ur instit u tionalized setting, [TDCJ] will have to take as effective measures a s are feasible, but it should be u n derstood that the repercussions o f this practice may extend beyond t h e participants since they would subsequently expose others with whom they have close c ontact to any disease t hey contracted from participating in the practice. Recognizing that another solution might be to allow every participant to smoke his own p ipe, TDCJ has provided detailed evidence demonstrating why that also would not b e f easible. According to t h e M i c hael U n it’s Regional Director, Robert Ea s o n , the amount of time i t would take to distribute, inventory, and t rack e very Native American believer’s pipe would substantially burden the prison’s limited resources and labo r d u r i n g every Sacred Pipe
ceremony. Additional log i stical problems are created by the necessity of cataloguing and storing several hundred p ipes. As Direc t or Eason explained,

even if w e assum e t h e a v a i lability of disposable pipes, they a re not a feasible alternative, either. Because tobacco is not p ermitted i n T e x a s prisons, it is valuab l e c o n t r aband, and TDCJ would have to devote extensive manpower to

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ensure that none of the 150 ceremo n y participants stole o r hid any. Director Eason additionally demonstrated that the e xtra security r equired for monthly Sacred Pipe ceremonies with individual p ipes would cost between $81,723 and $104,592 a year. According an appropriate amount o f d eference to TDCJ’s own expertise in prison admini s t r ation, we c onclude t hat it has established that its c o mmunal smoki n g p o l icy is the least restrictive means of advancing its compelling i nt e r e s t s . TDCJ h as provided extensive, uncontroverted evidenc e d e m o n s tr ati n g its consideration and reasoned rejection of a range of alternative policies. While it is true that Chance’s religious e xercise is burdened and that a chaplain smoki n g o n h is behalf is seemingly inadequate, “[w]e do not read RLUIPA to elevate accommodation of religious o bservances over an institution’s need to maintain order and safety.” Cutter , 544 U.S. at 722. B. Chance nex t a rgues that the district c o urt erred by di smissing his complaint about the infrequency o f Sacred Pipe, Teaching, and Wiping Away the Tears ceremonies in the M ichael U n it. Although TDCJ currently provides a monthly Sacred P ipe ceremony, a monthly Teaching c eremony, and four annual Wiping Away the Tears h oly day ceremonies, Chance contends that his beliefs

r e quire t wo m onthly Sacred Pipe ceremonies, two monthly Teaching c e r e m o ni e s , and Wiping Away the Tears cer e monies on holidays more specific to his faith. The district court rejected Chance’s assertion, concluding that the pri s on’s provision of less frequent or different ceremonies did not constitute a violation of RLUIPA. Assuming that Chance has demonstrated a substantial burd e n o n h is faith, T DCJ h as offered substantial evidence demonstrating that its s chedule of Native A m e r i can services is the least restrictive m eans of furthering its compelling interests in prison administration, resource allocation, and cost

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control. Billy Pierce (“Pierce”), TDCJ’s Manager o f Chaplaincy Opera t ions, explained that the primary reason more frequent services cannot be held is the dearth o f available people willing and ab l e t o oversee religious ceremonies. Pursuant to longstanding TDCJ p o l i c y, prisoners may only organize religious g atherings u nder the proper supervision of a c ontract chaplain or qualified

o u t s i d e volunteer. S i nce TDCJ is often unable to find chaplains to conduc t weekly services for each of the 230 i dentified faiths in TDCJ’s system, it relies heavily on outside r eligious volunteers t o conduct services. However, Pierce indicated that he has f aced great difficulty trying t o solicit volunteers to conduct Native American services. Despite efforts to hire Native American c h a p l ai n s a n d conti n uous requests to more than 60 Native American resource gr oups in the region from 2009–2012, P i e r c e was u nable to obtain anything but religious recordings and fleeting commitments to help. In addi t i o n to limited volunteer availability, P ierce noted: “Providing weekly o r even monthly religious services to all these [230] different f aith groups would be virtually impossible for numerous reasons, including, b ut n ot limited to, the large number of faiths, the number of offenders, security concer n s , staffing and space limitations, and the large g e ographi c al expanse t h at TDCJ covers.” Even with these concerns, TDCJ still manages to p r o v i d e monthly Sacred Pipe ceremonies, monthly T e a ching ceremonies, four a nnual Wiping Away the Tears ceremonies, and two monthly Native American “talking circles.” Our caselaw also forecloses Chance’s claim on this record. In Adk i n s v. Kaspar , we considered whether imprisoned members of the Yahweh E vangelical 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 pr i s o ner’s assertion that TDCJ’s volunteer r equirement unduly burdened h is faith, we reasoned that the r equirement was reasonable, especially in light of the accommodations TDCJ made when volunteers w ere available. I d

. 14 Case: 12-41015 Document: 00512355295 Page: 14 Date Filed: 08/27/2013No. 12-41015

at 571. Other decisions of this court c o nfirm that TDCJ’s volu n t e e r policy is a permissible attempt t o accommodate diverse r eligious exercises with limited

resources. 7 The instant case is indistinguishable from A d k i ns and our other cases

u p h o l di n g T D C J ’ s r e ligious volunteer policy. 8 B e c a u s e th e vo lu nt e e r r e qu ir e m e nt is reasonable and necessary, and Native Americans h a ve alternative opportunities to g ather and worship, we conclude that it i s t he least restrictive means of furthering TDCJ’s compelling interest in prison administration. However, this conclusion does not end our inquiry i n to TDCJ’s provision of Native American ceremonies. With r e gard to Chance’s complaint about the provision of Wiping Away the Tears ce remonies, he complains not about their infrequency, but about their provision on the w rong holy days. In other words, the Native American holy days recognized b y TDCJ d o not correspond to the holy days r evered by Chance. 9 If TDCJ provides ceremonies o n certain Christ i an,

7 Se e M a yf i el d v . TD CJ

, 529 F .3d 599, 614 ( 5th Cir. 2008) , (f ind ing that TD CJ’s volunteer requirem ent w as p erm is s ible w hen p ris o n ers were still p rovid ed w ith regular op p ortunities to congregate and w ors hip ) ; O dnea lv . Pi erce , 324 F. Ap p ’x 297, at *4 ( 5th Cir. 2009) (unp ublis hed) (rejecting N ative Am erican p ris oner’s RLU IPA com p l a i nt about the inf requency of s ervices w here the “record detail[ ed] the d ef end ants ’ f

ailed e f f o r ts to s ecure ad d itional volunteers and chap lains f or the Native Am erican services ”) ; Ba ra now ski , 486 F

. 3d at 125. While w e have held that A dki ns d id not lay d ow n “a p e r s e r u l e t h at the TD CJ’s volun t e e r r e quirem ent could never im p os e a subs tantial burd en on a p ris oner’s exercis e of
r e l i g i o n , ” M

a yf iel d , 529 F. 3d at 614, our cas es f ind ing a burd ens om e ap p lication of th a t requirem ent are eas ily dis tinguis hed

. See, e. g. , i d

. (f ind ing f actual d is p ute about w hether the TD CJ volunteer requirem ent is a s ubs tantial burd en on O d in i s t p r i s oners w hen evid ence ind icated that the only ap p roved volunteer v is ited les s than once a y ear) ; M cA l i ster v . Li v i ngston , 348 F. Ap p ’x 923, 937 ( 5th Cir. 2009) (f ind ing f actual d is p ute about w hether the TD CJ volunteer requirem ent is a s ubs t a n t i a l burd en on Wiccan p ris oners when evid ence ind icated it w as not enf orced neutrally)

.
8 T h o u gh our cas es of ten analyze the volunteer requirem ent und er the “s ubs tantial burd en” p rong of RLU IPA, w e f ind that the volunteer res triction is als o p rop er as th e leas t res trictive m eans of f

urthering TD CJ’s com p elling interes ts

.
9 Although the M ichael Unit us ed to recognize the f our N ative Am erican holy d ays now d es ignated by Chance, it d is continued that p ractice in 2008. I n ord er to com p ly w ith a court 15 Case: 12-41015 Document: 00512355295 Page: 15 Date Filed: 08/27/2013No. 12-41015

Islamic, and other Native American groups’ h oly days, Chance contends, it must also r e cognize and p rovide ceremonies on his holy days. Asw e h avealr e a dy recognized with respect to i ncreasing the frequency of Sacred Pipe ceremonies and Teaching c eremonies, TDCJ’s provision of holy day ceremonies is l i mited by the lack of space, person n e l , a n d av ailable volunteers. However, this is especially tr u e in light of TDCJ’s obligations to provide regular services f or other faith groups and to observe f o u r d i f f e rent Native American holy days. As t his court has recognized before, the standard prison practice of p roviding for the generic tenets of major faith gr oups is not only reasonable, b ut necessary in light of the prison’s limited resources. As we stated in Freeman v. TDCJ , 3 69 F.3d 854, 861 (5th Cir. 2004), [A p r i s on’s] decision to offer worship s ervices t o five broad faith sub-groups, augmented by supplemental r eli g i o u s services to t h e other groups,
. . . is eminently reasonable. Although some [individual] prisoners may not be able to attend a service perfectly suited to their f

aith, this limitation is dictated by th e demands of administering religious services to tens of thous a nds o f inmates representing widely divergent faiths.[ 1 0]
In another case, we re c ognized t hat the “generic structure of TDCJ [religious gr o u p ] services m aximizes inmates’ religi o u s lib e rty whil e a d dr e s s i n g c o m p e lli n g government inte r e s t s i n c l u di n g s e c u rity p r ob l e m s , s t af f i n g li m it ati o n s , a n d s pace constraints.” Jones v. Shabazz , 3 5 2 F

. Ap p’x 910, 9 15 (5th Cir. 2009) (unpublished). 1 1

ord er in another cas e, the M ichael U nit now ob s e rves the f our N ative Am erican holid ays revered in N ative Am erican Sham anis m

— another Native Am erican religious s ect.

1 0 Although this d ecis ion w as in the context of a Firs t Am end m ent Free Exercis e claim to w hich w e ap p ly les s exacting s crutiny of p ris on regulations , t h e s e cons id erations rem ain relevant in the RLU IPA context.

1 1 See a lso Sm i th v. Kyl er , 295 F. Ap p’x 479, 484 ( 3d Cir. 2008) (unp ublis hed) (f ind ing that hiring a C hap lain to p erf orm religious s ervices only f or the “larges t m ajor f aith group s ” but perm itting s m aller group s to w ors hip together w ith volunteer chap lains w as the leas t 16 Case: 12-41015 Document: 00512355295 Page: 16 Date Filed: 08/27/2013No. 12-41015

Just as it is a reasonable decision to provide generic Protestant services, Jewish services, o r Native A merican p i p e ceremonies, it is reasonable to limit the provision of special holiday s ervices t o g e n e ric Protestant, Jewish, and Native American holy days. Otherwise, as TDCJ points o ut, the p rison would be required to accommodate the d i v e r s e holidays of the hundreds of recognized Native American tribes, as well as the various sects of o ther faith groups. Although prisons cannot blindly assert that an exception for one person would require e xceptions for everyone, we have recognized the validity of such c oncerns where e xperience or eviden c e warrants that conclusion. See, e.g. , Baranowski , 486 F.3d at 118; Garner , 713 F .3d at 243. 1 2 When “inmate requests for religious

a c c o m modations become excessive, impose unjustified burdens on other i n s tit u ti o n ali z ed persons, or jeopardize the effective fu n c ti o ni n g o f a n i n s tit u ti o n , the facility [is] free to resist the imposition.” Cutter , 544 U.S. at 726. It is TDCJ that is most familiar with its own s taffing and space limitations and the administrative burden of providing services across multi ple faiths. Given the probl e m s i n h erent in providing holiday s ervices catered to every prisoner’s individual beliefs, we conclude that TDCJ has dem o n s trated that providing generic Native American f aith holiday services i s the least restrictive means of furthering TDCJ’s compelling interests. C. Chance n ext argue s th at th e di s tri c t court erred by dismissing his RLUIPA claim challenging TDCJ’s policy of restricting t he Smudging ritual to outdoor ceremonies. Specifically, C hance contends t hat Smudging should be done twice each m onth, in conjunction with the monthly Sacred Pipe and T eaching

res trictive m eans of f

urthering the p ris o n ’ s i n t e res ts ) ; Boxer X v . D ona l d , 169 F. Ap p ’x 555 ( 11th Cir. 2006) (unp ublis hed) (recognizing sam e concerns ); Bruton v . M cG i nni s , 110 F. 3d 63 ( 6th Cir. 1997) (unp ublis hed) ( s am e)

.

1 2 See also Thunderhorse v . Pi erce , 364 F. Ap p ’x 141, 144 ( 5th Cir. 2010) (unp ublis hed)

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ceremonies. However, because Teachi n g ceremonies are held i n doors and Sacred Pipe ceremonies can be forced indoors by rain, Native American believers sometimes must c onduct important ceremonies without Smudg i n g p roperly beforehand. Chance argues that this outright ban on indoor Smudging, which TDCJ concedes is a substantial b urden, is not th e l e a s t restrictive means of furthering TDCJ’s interests. As a n institution t asked with managing the de t a i l s of thousands of inmates’ lives u sing a limited budget, TDCJ undisput a b l y has a compelling interest i n both prison s afety and controlling c osts. See G arner , 713 F .3d at 244. TDCJ contends that the only way it can f ully p rotect its i nterests is by restricting the Smudging ritual exclusively to outdoor ceremonies. According to TDCJ, all large group a ctivities in the Michael U nit are conducted in the unit’s gymnasium, which has a smoke-activated fire alarm. M oreover, the Smudging ritual involves fanning the s moke of a burning bowl of herbs over each of up to 150 participants. As a r esult, TDCJ insists that it cannot permit Smudging without deactivating the fire alarm or risking false fire alarms, neither o f which

a r e permissible alternatives. To accommodate the Smudging ritual when it i s 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 h i s a rgument that if the prison used to permit an activity, then prohibiting that activity cannot be the least restrictive solution. Because the p rison allowed Smudging in t he gymnasium in the p a s t , h e a rgues, it must continue t o allow it. Third, Chance reasons that there are feasible, less-restrictive a l t ernatives to an o utright ban, including setting up a tent or shed outside.

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However, Chance’s arguments find n o support in the l aw or in the record. The fire alarm has not been triggered by the Smudging ritual in the past because the Smudging r itual was b anned from t h e gym a s soon as t he alarm was activate d

. Although TDCJ permitted indoor Smudging rituals i n the Michael Unit gymnasium for several years, it has adequately explained why a new fire alarm required it to change its p o l i cy. C hance’s additional assertion that the prison must w ait until s moke sets off t he fire alarm before safely concluding that smoke sets o ff fire alarms ignores common sense. See Cubero v. Burton , 96 F.3d 1450 at *2 (7th Cir. 1996 ) ( u n published) (applying R LUIPA precursor statute and u p h o lding prison’s ban on indoor Smudging); H odgson v. F

abian , 378 F. Ap p ’x 592, 593–94 ( 8th Cir. 2010) (unpublished) (applying R LUIPA 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 r esources to

c o n s t r uct a special outdoor structure merely because a religious group h a s demanded it. Our deference to prison administrators and t heir interests in s afety and cost control counsels i n favor of dismissing C h ance’s Smudging complaint. Because TDCJ still permits Smudging outdoors and has offered u ncontroverted 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, C hance argues that the district c ourt erred by d i s m i ssing his RLUIPA claim challenging TDCJ’s denial of his request to possess locks of his deceased parents’ hair in accordance with the Ke e p i n g o f S ouls practice. As Chance emphasizes, in the Native American faith, physical possession of a dead relative’s h air is necessary to connect with them after death. On this issue, the district court found that th e denial of Chance’s request did not constitute a
19 Case: 12-41015 Document: 00512355295 Page: 19 Date Filed: 08/27/2013No. 12-41015

substantial burden and held, alter natively, that even if Chance were substantially burdened, TDCJ’s denial was p u rsuant to a policy t h at is the least restricti v e m e a ns of furthering TDCJ’s interests in p rison s ecurity and administration. Although the district court found t hat denying Chance’s request to possess

a lock of hair did not substantially burden h is religious exercise, TDCJ has not briefed the issue on appeal. Conversely, Chance has consistently a sserted that the p o ssession of a lock o f hair is something which i s an i mportant part o f his fait h

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

are peculiarly “ill-suited” to test, especi a l l y o n summary j udgment, and especially where the belief system is admittedly unfamiliar. See Adkins , 393 F.3d at 5 70. 1 3 In light of Chance’s professed beliefs, the absolute denial of access to religiously-significant locks of hair i s certa i n ly a policy which “influences [Chance] to act i n a way that violates his religious b eliefs.” See id

. This satisfies the substantial burden requirement as we have described it. Proceeding to the question of whether denying Chance the l ock of hair is the least restrictive means of furthering TDC J ’ s c o mpelling interests, we recognize that TDCJ certainly has a compelling interest in promoting prison order a nd 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 f rom entering the prison. Citing TDCJ’s major contraband problems, D irector Eason testified t h at “[a]ny time we open the door for individuals to send item s i n , i t b reaches the s ecurity 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 w eapons or substances.

1 3 See also Sossa m on v . Lone Sta r Sta t e of Tex. , 560 F. 3d 316, 332–33 (5th C ir. 2009)

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Specifically, TDCJ argues that even locks of hair c o uld be dipped in a drug like P C P a n d later smoked. Moreover, TDCJ o ffered testimony concerning the problems posed by allowing o nly certain inmates to receive cont r ab and items from relatives. As Director Eas o n e x p l a ined, when one inmate is allowed the
p r i v i l e ge of receiving something other inmates are not a llowed—even hair—it could breed animosity and make that inmate a target. In respo n s e , Chance presented evidence that TDCJ once permitted the possession of locks of hair, and that o ther i nstitutions curre n t l y p e r mit the possession of locks of hair. As Chance also points out, a small l ock of hair is no

more capable of being soake d i n d r u g s than the letters in a prisoner’s mail. Although TDCJ insists that mail i s different because it is n ot 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 p e rmit the hair to be tested or inspected, and even pay f or the testing if required. Casting further doubt on TDCJ’s asserted policy is evidence that TDCJ permits Native American p r isoners t o 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 r e s t riction on requests for outside objects. 1 4 Rather than deferring to the prison’s general policy regarding

a matter, we have consistently tested the prison’s asserted interests with regard t o t h e risks and costs of the specific accommodation b eing sought. See Moussazadeh , 703 F.3d at 795–96. Maintaining this approach is consistent with

our observation that the availability of a less r e strictive means is “a s ubject that demands a fact-intensive inquiry.” See id

. O ther courts have s imilarly rejected

1 4 See, e. g
. , M

cFa ul v . V

a lenz uel a , 684 F. 3d 564, 572–73 (5th Cir. 2012) ; M a yf i el d , 529 F. 3d at 602; M

cA l i ster , 348 F. Ap p ’x at 936. 21 Case: 12-41015 Document: 00512355295 Page: 21 Date Filed: 08/27/2013No. 12-41015

generic appeals t o prison security a n d prisoner uniformity, taking an objectspecific approach to requests for religious items. 1 5 For example, in Mayfield v . TDCJ , we considered a n Odinist p r isoner’s request for religious runestones—small tiles made from antler, wood, or stone, and containin g r e l igious inscriptions. 529 F.3d at 602. Despite evidence presented by TDCJ that runestones could be used to gamb l e , pass secret messages, and i dentify gang m embers, we f ound that a ban on runestones might not be t he least r estrictive of effective alternative policies. Id

. at 616. Although Odinist p risoners w ere already allowed to access runestones when a n 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 o ther a ppointed times. Id

. a t 616–17. B ecause 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. 1 6 While we must give due deference t o TDCJ’s expertise i n prison administration and securi t y , Cutter, 544 U .S. at 723, t his deference does have limits. If TDCJ can absolutely prohibit s omething as benign as a lock of hair by
appe a l i ng t o i ts general approved-vendors-only policy, then TDCJ could conceivably prohibi t anything

. On this record, there is a dispute about the

1 5 See, e. g. , Cra ddi ck v . D uckw orth , 113 F. 3d 83, 85 ( 7th Cir. 1997) (f ind ing that p ris on had “not s how n that m ed icine bags p os e a genuine threat to p ris o n s ecurity. ” ( citation om itted ) ) ; Si ngson v. N orri s , 553 F. 3d 660, 662–63 ( 8th Cir. 2009) (f ind ing that unres tricted acces s to tarot card s w ould create m ultip le s ecurity problem s) ; see also H a m mons v . Sa

f f le , 348 F

. 3d 1250, 1255 ( 10th Cir. 2003) ; M orri son v . G a rra

ghty , 239 F. 3d 648, 660 ( 4th Cir. 2001) ; Sp ies v . V

oi nov i ch , 173 F. 3d 398, 405 ( 6th C ir. 1999)

. A notable excep tion to t h is trend is a Free Exercis e cas e f

rom the N inth Circuit, Fri end v . Kol odz iecz a k , 923 F. 2d 126, 128 ( 9th Cir. 1991)

. H ow ever, not onl y i s t h e F r i end cas e an outlier, but it als o d id not ap p ly the tougher leas t res trictive m eans s tand ard

.

1 6 See also M

cA l i ster , 348 F. Ap p ’x at 936 ( “If the d is trict court f

ind s on rem and that [ p laintif f] has m e t h i s burd en . . . then the d is trict court s hould als o d eterm ine ( 1) w hether TD CJ has a com pelling interes t in p rohibiting p os s es s ion of ea ch item

. . . . ”) ( em p has is ad d ed)

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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 t o an outright ban, including restricting the lock of hair to the cell, washing it, inspecting i t, or restricting its size. We therefore conclude that t here is a ge n u ine issue of material f act with regard to w hether 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 C hance has created a genuine issue of material fact only with regard t o whether he may possess a lock of h air i n prison. W e therefore VACATE the district c ourt’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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