FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 21, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14943

Non-Argument Calendar

________________________

D. C. Docket No. 05-00193-CV-4-WS-WCS

AKEEM MUHAMMAD,

Plaintiff-Appellant,

versus

GEORGE SAPP,

FRANCHETTA BARBER,

WALTER MCNEIL,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(July 21, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:
Akeem Muhammad, a Florida state prisoner and an Orthodox Sunni Muslim,

appeals the district court’s grant of summary judgment in favor of the defendants

on his pro se complaint filed under 42 U.S.C. § 1983 and the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1.

I.

Muhammad is serving a life sentence in the Florida Department of

Corrections. He brought a § 1983 action against FDOC officials, in both their

individual and official capacities, alleging that the defendants violated his First and

Fourteenth Amendment rights by failing to provide him with certain religious

accommodations in prison. Muhammad also asserted claims against the

defendants under the Religious Land Use and Institutionalized Persons Act. The

district court granted summary judgment in favor of the defendants on all of

Muhammad’s claims, and he now appeals.

Muhammad contends: (1) that the district court erred in granting summary

judgment on his RLUIPA claims; (2) that the district court erred in concluding that

the defendants were entitled to qualified immunity on his First and Fourteenth

Amendment individual capacity claims; (3) that the district court erred in finding

that his request for injunctive relief on his Fourteenth Amendment official capacity

claim was moot; (4) that the district court abused its discretion in denying his

2
motion requesting that the court interview a dentist on his behalf; and (5) that the

district court abused its discretion in denying his motion for recusal of the

magistrate judge assigned to his case.

II.

In his third amended complaint, Muhammad alleged that the defendants

violated his rights under the Religious Land Use and Institutionalized Persons Act

by (1) requiring him to wear a uniform consisting of a close fitting shirt and pant

instead of a quamees or saraawell; (2) requiring him to tuck in his shirt; (3)

refusing to let him have a Qibla compass; (4) requiring him to shower outside of

his cell in stalls where he could be seen by other inmates and prison officials; (5)

refusing to allow him to have 16 gold crowns removed from his teeth at his

expense; and (6) refusing to provide him with a requested diet. The district court

granted summary judgment in favor of the defendants on all six RLUIPA claims.

Muhammad contends that was error.

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

the same legal standard used by the district court.” Smith v. Allen, 502 F.3d 1255,

1265 (11th Cir. 2007). Summary judgment is appropriate if “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as

3
a matter of law.” Fed. R. Civ. P. 56(c)(2). “[T]he plain language of Rule 56(c)

mandates the entry of summary judgment against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Smith, 502

F.3d at 1265 (quotation marks and ellipsis omitted). The non-moving party cannot

oppose a “properly made and supported” summary judgment motion by relying

“merely on allegations or denials in its own pleading.” Fed. R. Civ. P. 56(e)(2).

Moreover, while “[a]ll reasonable inferences arising from the evidence must be

resolved in favor of the non-movant, [ ] inferences based upon speculation are not

reasonable.” Marshall v. City of Cape Coral, Fla., 797 F.2d 1555, 1559 (11th Cir.

1986). “[W]e may affirm the district court’s decision on any adequate ground,

even if it is other than the one on which the court actually relied.” Smith, 502 F.3d

at 1265 (quotation marks omitted).

Section 3 of RLUIPA provides that “[n]o government shall impose a

substantial burden on the religious exercise of a person residing in or confined to

an institution . . . even if the burden results from a rule of general applicability,”

unless the government can show that the burden “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000cc-1(a); see also Smith, 502

4
F.3d at 1266 (“[S]ection 3 affords confined persons ‘greater protection of religious

exercise than what the Constitution . . . affords’” because the Constitution requires

only a showing of a legitimate governmental interest.).

To establish a prima facie case under Section 3, a plaintiff must show: (1)

that he engaged in a religious exercise, and (2) that the religious exercise was

substantially burdened by a government practice. See id. at 1276. “The plaintiff

bears the burden of persuasion on whether the government practice that is

challenged by the claim substantially burdens the exercise of religion.” See id.

(quotation marks, alteration, and ellipsis omitted). If the plaintiff establishes a

prima facie case, the government must show that the challenged government

practice is “in furtherance of a compelling governmental interest” and “is the least

restrictive means of furthering that compelling governmental interest.” Id.

(quoting 42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b)). Context matters in the

application of the compelling governmental interest standard. Cutter v. Wilkinson,

544 U.S. 709, 723, 125 S.Ct. 2113, 2123 (2005). The standard is applied 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.

A.

5
The Florida Department of Corrections requires inmates to wear, both inside

and outside of their cell, a uniform that consists of a close fitting shirt and pant.

Inmates are also required to tuck in their shirt. The clothing restrictions further the

compelling governmental interest of maintaining prison security. The FDOC

submitted an affidavit establishing that the uniform and requirement that an inmate

tuck in his shirt enables correctional officers to detect whether an inmate is

concealing weapons, contraband, or other prohibited items on his person. The

FDOC’s interest in maintaining prison security is not lessened when a inmate is

inside his cell. The prison’s policy is the least restrictive means of furthering that

compelling governmental interest because permitting inmates to wear clothing of

their choosing inside their cells would undermine the safety of prison officials and

other inmates. See Fegans v. Norris, 537 F.3d 897, 906 (8th Cir. 2008) (policy

prohibiting inmates from wearing beards did not violate RLUIPA because safety

and security concerns were a compelling governmental interest and the policy was

the least restrictive means available to further that interest). The district court did

not err in granting the defendants’ summary judgment motion on Muhammad’s

claims relating to his clothing.

B.

As for the Qibla compass, in opposition to defendants’ summary judgment

6
motion, Muhammad submitted an affidavit establishing that the compass was not

“mandatory” for a Muslim inmate but rather was “permissible and a useful item to

have.” “[T]o constitute a ‘substantial burden’ on religious practice, the

government’s action must be ‘more than . . . incidental’ and ‘must place more than

an inconvenience on religious exercise.’” Smith, 502 F.3d at 1277. Muhammad

offered no evidence establishing that a Qibla compass was fundamental to his

practice of Islam or would cause any more than a “inconvenience on [his] religious

exercise.” See id. Because he failed to show that the deprivation of a Qibla

compass substantially burdened the exercise of his religion, the district court did

not err in granting summary judgment on that claim. See id. at 1276 (“[I]f the

1

plaintiff fails to present evidence to support a prima facie case under RLUIPA, the

court need not inquire into whether the governmental interest at state was

compelling.”).

C.

The defendants were also entitled to summary judgment on Muhammad’s

claim challenging the FDOC’s policy requiring inmates to shower outside of their

The district court granted summary judgment in favor of the defendants on the grounds 1

that the FDOC had a compelling interest in restricting the items in a prisoner’s cell so that the

cell could be quickly searched. “[W]e may affirm the district court’s decision on any adequate

ground, even if it is other than the one on which the court actually relied.” Smith, 502 F.3d at

1265 (quotation marks omitted).

7
cells in view of other inmates and prison officials. The FDOC has a compelling

governmental interest in promoting sanitary conditions inside its prisons. The

defendants’ established that requiring inmates to take “complete showers” in stalls

was the least restrictive means of furthering that interest. The FDOC’s policy of

requiring inmates to shower in view of prison officials promotes its compelling

governmental interest in maintaining prison security. Accordingly, Muhammad’s

shower claim fails.

D.

Summary judgment was also appropriate on Muhammad’s claim regarding

the removal of his 16 gold crowns. The FDOC’s policy of limiting inmates’ dental

procedures to those that are medically necessary furthers the compelling

governmental interest of cost containment. The defendants’ submitted an affidavit

establishing that removing the crowns would require at least 10 dentist visits and

would involve a “full mouth rehabilitation.” See Abdulhaseeb v. Calbone, 600

F.3d 1301, 1320 (10th Cir. 2010) (noting that “RLUIPA requires governments to

refrain from substantially burdening religion, not to affirmatively subsidize

religion”). Although Muhammad asserted that his friends and family would pay

for the procedures, he offered no evidence in support of that assertion other than

his own conclusory affidavit. See Marshall, 797 F.2d at 1559 (“All reasonable

8
inferences arising from the evidence must be resolved in favor of the non-movant,

but inferences based upon speculation are not reasonable.”). Summary judgment

on that claim was proper.

E.

The FDOC was also entitled to summary judgment on Muhammad’s

RLUIPA claim regarding his diet. He asked for an alcohol-free lacto-vegetarian

diet “prepared with and served on non-disposable utensils” that had never come

into contact with meat or alcohol products or byproducts. He also asked that his

meals not be prepared near meals containing meat or alcohol because of the

contamination risk. The expense of complying with Muhammad’s dietary requests

justified the FDOC’s denial of them. The FDOC submitted affidavits establishing

that its policy of providing alternative entree meals and vegan meals was the least

restrictive means of furthering its compelling governmental interest in cost

containment. See Jova v. Smith, 582 F.3d 410, 417 (2d Cir. 2009) (concluding that

the administrative burden justified prison officials’ refusal to provide the plaintiff

with specific foods, on specific days of the week, that were prepared by members

of the plaintiff’s faith); Baranowski v. Hart, 486 F.3d 112, 125–26 (5th Cir. 2007)

(holding that budgetary and security concerns were a compelling governmental

interest justifying the failure to provide kosher meals to a Jewish inmate).

9
Muhammad also challenges the district court’s denial of his cross motion for

summary judgment and requests for nominal and punitive damages. Because the

defendants were entitled to summary judgment on his RLUIPA claims, those

challenges are moot.

II.

Muhammad asserted individual capacity claims against the defendants,

alleging violations of his First and Fourteenth Amendments rights. The district

court granted summary judgment for the defendants on those claims, concluding

that they were entitled to qualified immunity. Muhammad contends that was error.

We review de novo a district court’s grant of a summary judgment motion based

on qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

“[I]n so doing, we resolve all issues of material fact in favor of the plaintiff.”

Oliver v. Fiorino, 586 F.3d 898, 901 (11th Cir. 2009). And, we view the facts in

the light most favorable to the plaintiff because “the issues appealed here concern

not which facts the parties might be able to prove, but, rather, whether or not

certain facts showed a violation of clearly established law.” Id. (quotation marks

omitted).

“Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct does not violate clearly

10
established statutory or constitutional rights of which a reasonable person would

have known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004)

(quotations marks omitted). “To receive qualified immunity, an official must first

establish that he was acting within the scope of his discretionary authority when

the alleged wrongful acts occurred.” Oliver, 586 F.3d at 905 (quotation marks and

alteration omitted). “If the official was acting within the scope of his discretionary

authority”–and it is undisputed that the defendants in this case were—“the burden

shifts to the plaintiff to show that the grant of qualified immunity is inappropriate.

Id.

We must grant qualified immunity to the government official unless the

plaintiff can show “that the facts when viewed in the light most favorable to the

plaintiff establish a constitutional violation” and “that the illegality of the

[government official’s] actions was ‘clearly established’ at the time of the

incident.” Id. After Pearson v. Callahan, __ U.S.__, 129 S.Ct. 808, 818 (2009), we

are no longer required to conduct the qualified immunity analysis in the sequence

specified in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001). See Oliver, 586

F.3d at 905. Instead, we may now exercise our sound discretion to decide which

prong of the inquiry to address first. See Pearson, __U.S. at __, 129 S.Ct. at 818.

A.

11
Muhammad contends that the defendants violated the Free Exercise Clause

of the First Amendment by failing to provide him with his requested Islamic

dietary accommodations. We begin our qualified immunity analysis by addressing

the second prong—whether the defendants violated a clearly established

constitutional right. See Oliver, 586 F.3d at 905. “In order to determine whether a

right is clearly established, we look to the precedent of the Supreme Court of the

United States, this Court’s precedent, and the pertinent state’s supreme court

precedent, interpreting and applying the law in similar circumstances.” Id., 586

F.3d at 907. If there is no precedent on point, a right is clearly established only if

the law has “earlier been developed in such [a] concrete and factually defined

context to make it obvious to all reasonable government actors, in the defendant’s

place, that what he is doing violates federal law.” Crawford v. Carroll, 529 F.3d

961, 977–78 (11th Cir. 2008) (quotation marks omitted). “Qualified immunity

affords protection to all but the plainly incompetent or those who knowingly

violate the law.” Id. at 978 (quotation marks omitted). “We have noted that ‘[i]f

the law does not put the [official] on notice that his conduct would be clearly

unlawful, summary judgment based on qualified immunity is appropriate.’ ” See

Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting Saucier v. Katz,

533 U.S. 194, 202, 121 S.Ct. 2151, 2156–57 (2001)).

12
We addressed a prisoner’s First Amendment challenge to a prison’s dietary

regulations in Martinelli v. Dugger, 817 F.2d 1499 (11th Cir. 1986), abrogation

recognized by Harris v. Chapman, 97 F.3d 499, 503 (11th Cir. 1996). In that case,

an inmate brought a § 1983 action against corrections officials. He argued that the

prison’s refusal to honor his request for a full kosher diet infringed upon his First

Amendment rights. Id. at 1501. Applying the “least restrictive means” test, we

concluded that the prison’s dietary regulations were “rationally related to the goal

of avoiding excessive administrative expense” because the defendants presented

evidence that providing full kosher meals would be too costly. Id. at 1506–07 &

1506 n.25. After this Court decided Martinelli, the Supreme Court held that

“prison regulations alleged to infringe constitutional rights are judged under a

‘reasonableness’ test”—not the more stringent least restrictive means test that we

had applied. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400,

2404 (1987). (explaining that the reasonableness test was necessary “[t]o ensure

that courts afford appropriate deference to prison officials”).

The FDOC submitted an affidavit establishing that complying with

Muhammad’s dietary requests was too costly because it would require the

operation of special kitchens or food preparation facilities. Under those

circumstances and in light of Martinelli, we cannot say that it would be it obvious

13
to all reasonable correctional officials that denying Muhammad’s dietary request

violated federal law. See Crawford, 529 F.3d at 977–78. Accordingly, we

conclude that the defendants were entitled to qualified immunity on that claim.

B.

Muhammad also asserted a claim against the defendants in their individual

capacities, alleging that they violated the Equal Protection Clause of the Fourteenth

Amendment by providing Jewish inmates with a kosher diet and not providing

Muslim inmates with a Halal diet. The district court concluded that the defendants

were entitled to qualified immunity. On this claim, we begin with the first

prong—whether viewing the facts in the light most favorable to Muhammad, he

established a constitutional violation. See Oliver, 586 F.3d at 905.

To establish an equal protection claim, “a prisoner must demonstrate that (1)

he is similarly situated to other prisoners who received more favorable treatment;

and [that] (2) the state engaged in invidious discrimination against him based on

race, religion, national origin, or some other constitutionally protected basis.”

Sweet v. Sec’y Dep’t of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006); see also

Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008)

(noting that “the equal protection clause prohibits only intentional

discrimination.”). Muhammad alleged only that the defendants provided kosher

14
meals to Jewish inmates but did not provide halal meals to Muslim inmates. That

allegation only goes to the first equal protection requirement. Because the facts

viewed in the light most favorable to Muhammad do not establish that the prison’s

decision to serve kosher meals but not halal meals was the product of intentional

discrimination, the district court did not err in finding that the defendants were

entitled to qualified immunity. See Patel v. U.S. Bureau of Prison, 515 F.3d 807,

815–16 (8th Cir. 2008) (concluding that prisoner’s equal protection claim failed

because he had not shown that the prison’s decision to serve kosher entrees and not

halal entrees was motivated by intentional or purposeful discrimination).

On his equal protection claim, Muhammad also sued the defendants in their

official capacities and sought declaratory, injunctive, and monetary relief. The

district court granted summary judgment for the defendants, concluding that the

claim was moot because the prison no longer served kosher meals to Jewish

inmates. We do not need to address the mootness issue because Muhammad failed

to establish an equal protection violation.

IV.

Muhammad also contends that the district court erred in denying his request

for the court to interview Dr. Courten, a dentist. We review that decision only for

an abuse of discretion. See Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d

15
1274, 1286 (11th Cir. 2003) (“[W]e will not overturn discovery rulings ‘unless it is

shown that the District Court’s ruling resulted in substantial harm to the appellants

case.” ); Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1055 (11th Cir. 2008)

(“A clear error of judgment or application of an incorrect legal standard is an abuse

of discretion.”).

Muhammad asserts that Dr. Courten would have told the court that the gold

crowns on his teeth could be removed in 8 hours and without a full mouth

rehabilitation. He argues that he suffered substantial harm from the district court’s

denial of his motion since the court granted summary judgment on his gold crown

RLUIPA claim because the FDOC’s evidence was not refuted. The district court’s

denial of Muhammad’s motion was not an abuse of discretion. Even if Dr. Courten

had testified as Muhammad says that he would have, Muhammad still presented no

evidence that the procedure was medically necessary and offered no evidence

beyond his own conclusory statements that anyone would give him money to pay

for the procedure.

V.

Finally, Muhammad contends that the district court erred in denying his

motion for recusal of the magistrate judge. We review a denial of a motion for

recusal for abuse of discretion. In re Walker, 532 F.3d 1304, 1308 (11th Cir.

16
2008). A magistrate judge is required to disqualify himself if “his impartiality

might reasonably be questioned” or “he has a personal bias or prejudice concerning

a party.” 28 U.S.C. § 455(a), (b)(1). “The standard is whether an objective, fully

informed lay observer would entertain significant doubt about the judge’s

impartiality.” Walker, 532 F.3d at 1310 (quotation marks omitted). The

magistrate judge’s direction to the defendants “to be prepared to explain to [the

district court] why [Muhammad’s case] was litigated differently on summary

judgment” from an earlier case that the magistrate judge had handled did not raise

significant doubt about his impartiality. The fact that the magistrate judge

informed both parties that factually similar case law existed does not indicate bias.

Muhammad has presented no evidence at all of bias, and the district court did not

abuse its discretion in denying his recusal motion.

AFFIRMED.

17