IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10218

ANSON MCFAUL,

Plaintiff-Appellant,

versus

DANIEL VALENZUELA, Chaplain-Preston Smith Unit, 

in His Individual and Official Capacity;

BILL PIERCE, Director of Chaplaincy Department, 

in His Individual and Official Capacity;

GARY GRIGGS, Assistant Warden-Preston Smith Unit, 

in His Individual and Official Capacity;

RICHARD D. VOGELGESANG, Warden-Preston Smith Unit, 

in His Individual and Official Capacity; 

BRAD LIVINGSTON, Director of the Texas Department of Criminal Justice,

in His Individual and Official Capacity,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2012

Lyle W. Cayce

Clerk

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Anson McFaul, a Texas prisoner, filed this pro se civil rights complaint

against Daniel Valenzuela, the chaplain of the Preston Smith Unit (“Smith

Unit”); Bill Pierce,the Director of the Chaplain Department; Richard D. Vogelgesang, the Smith Unit warden; Gary L. Griggs, the Smith Unit assistant warden;

and Brad Livingston, the Director of the Texas Department of Criminal Justice

(“TDCJ”). McFaul alleges that on May 22, 2009, he was denied religious devotional items that Valenzuela had given him permission to order. McFaul alleged

violations of his rights to free exercise of religion under the First Amendment,

constitutional rights under the Equal Protection Clause of the Fourteenth

Amendment, and statutory rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and theTexas ReligiousFreedom Restoration Act

(“TRFRA”). The district court granted summary judgment in favor of the defendants. McFaul appeals pro se, and we affirm. 

I.

Because we are evaluating a summary judgment, we present the facts in

the light most favorable to McFaul. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.

2010). McFaul claims that he showed Valenzuela a picture of prayer beads and

a medallion and told him the price when he originally requested permission to

make the purchase, but Valenzuela refused to give him the items once they were

delivered. McFaul also claims that he obtained permission to order a mirrored

pentagram costing $61.95, but when it was delivered on July 2, 2009, Valenzuela

refused to release it to him because it was too costly. Valenzuela told McFaul in

front of witnesses that he would “never get anything” if he continued to file

grievances; McFaul had filed grievances against Valenzuela regarding his free

exercise of religion. 

McFaul asserts that other prisoners engaged in mainstream religions were

permitted to purchase devotional items, but he was not allowed to do so, in viola2

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tion of his religious rights. He maintains that all defendants were aware of the

complained-of constitutional violations, because he had written letters and filed

grievances. McFaul contends that denying devotional items as “too expensive”

or “inappropriate” did not constitute the least restrictive means to protect a governmental interest, particularly because inmates working in prison craft shops

created jewelry costing more than the devotional items in question. 

II.

McFaul requested a declaratory judgment that the defendants had violated his rights, an injunction permitting him to purchase his devotional items,

compensatory damages of $99.85 for the denied religious items, and punitive

damages of $150. He also sought appointment of counsel. The district court

denied counsel but granted McFaul leave to proceed in forma pauperis. 

A.

The district court directed a magistrate judge (“MJ”) to hold a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). At the hearing,

McFaul asserted that he was a Celtic Druid. He stated that he had learned rituals and magic through word of mouth from other Celtic Druids and that his

religion involved periodic “ritual salutations to the sun” at specific times of day. 

He also stated that he needed a medallion and prayer beads to practice his faith,

but Valenzuela told him that the requested items were inappropriate and that

he needed to get a Wiccan star or a pentagram. 

McFaul described the first medallion he ordered as a triskele, which represents the “three forces of nature,” which could mean water, air, and earth or “any

groups of three you might think of” that occur in nature. He explained that the

prayer beads would “help [him] concentrate when [he is] praying on each bead”

and that the triskele medallion is “integral to [his] religion” because it symbo3

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lizes “all the threes in nature.” According to McFaul, the triskele medallion can

be worn at all times for protection, but it is necessary to wear it only while practicing his religion. 

After his first order was rejected, McFaul ordered a pentagram medallion

to be more compliant with Valenzuela’s instructions. He explained that the pentagram he ordered could be used in the same way as the triskele, because it contained a black onyx gemstone that would “allow [him] to connect with Mother

Earth a little better” and because he used a pentagram during religious rites. He

was unaware of a prison policy forbidding possession of a medallion exceeding

$25 until he received the response to his grievance about the pentagram. He

stated that another prisoner was allowed to have a “14k gold inverted pentagram,” which cost more than McFaul’s desired medallion. He also noted that the

craft shop at another prison unit made rosaries costing more than his medallion;

he believed that prisoners were permitted to make and possess such devotional

items. 

McFaul currently has a Wiccan medallion. He no longer practices that

faith, however, and he does not use the Wiccan medallion in the practice of his

current religion. He searched the prison catalog to find an appropriate medallion but has been unable to do so, because “the black onyx gemstone . . . really

connects me to the Earth, and . . . also connects to the moon and the moon is

important in [Celtic Druid] ritual.” McFaul explains that he is “in grave danger”

by practicing his magic without the “bare minimum” protection of the medallion. 

He admits that he was performing the basic rites, but he is unable to “do the full

invoking ritual of the pentagram,” because he lacks protection. 

McFaul claims that on one occasion when he asked about his medallion,

Valenzuela told him that he “was gonna burn in Hell and all pagans were going

to burn in Hell.” When McFaul told Valenzuela that he was going to file a grievance based on the denial of his medallion, Valenzuela told him that he would

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“never get anything” if he kept filing grievances. McFaul had filed grievances

against Valenzuela in 2005 for denying him a medicine pouch. 

B.

Following the Spears hearing, the defendants were served and filed an

answer generally asserting that McFaul was not entitled to relief. McFaul again

requested appointment of counsel, asserting that his incarcerated status would

prevent him from conducting the intensive research needed to prevail on his

claims and that an attorney would be better able to present evidence and crossexamine witnesses. The court denied the motion, concluding that McFaul had

failed to show extraordinary circumstances. 

McFaul also moved for leave to engage in discovery, requesting that the

court hold a conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and that the court compel the defendants to comply with his requests for

documents. The defendants asserted that much of McFaul’s requested documentation was irrelevant and that they had provided copies of relevant requested

information. McFaul responded that all requested documents were relevant to

his case, that all defendants were responsible for creating a policy or custom of

encouraging the violation of prisoners’ right to exercise their religion, and that

the majority of the documents sent to him were items already within his

possession. 

McFaul sought to compel Griggs to respond to his interrogatories. The

defendants asserted that the responses had been provided, and they repeated

that all relevant documents had been produced. McFaul maintained that the

answers to queries that the defendants found irrelevant could assist him by

revealing additional witnesses or establishing the defendants’ intent to deprive

prisoners of their rights to exercise their religion. The defendants moved for

protection from discovery, asserting an intent to raise a defense of qualified

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immunity. The court ultimately denied the motions to compel. It granted the

protective order in part but ordered the defendants to provide responses to a limited number of McFaul’s interrogatories. 

The defendants moved for summary judgment, asserting that McFaul’s

allegations were insufficient to warrant relief and that there was no genuine

issue of material fact. McFaul responded, arguing that the items approved by

TDCJ and the Smith Unit for Neo-Pagan religions were not appropriate for Celtic Druidism, that his requested items were necessary to the practice of his religion, and that the defendants had placed a substantial burden on the free exercise

of his religion. 

C.

The MJ issued a report recommending that summary judgment be granted

and that McFaul be denied relief on his civil rights claims. According to the

report, McFaul did not show that the failure of prison officials to give him the

bone skull necklace, the triskele pendant, and the mirrored black pendant placed

a substantial burden on his exercise of religion under RLUIPA or TRFRA,

because McFaul had not explained his need for the items and instead had presented evidence that adherents to Celtic Druidism could not reveal the secrets

of the religion. The report also found that McFaul had failed to state a First

Amendment claim, because the prison rules were neutral and reasonably related

to penological interests, that he could obtain other medallions in support of his

faith, and that he had failed to present evidence of alternatives. Finally, the MJ

found that McFaul had failed to establish a denial of equal protection, because

he did not show purposeful discrimination among similarly situated offenders. 

McFaul submitted objections to the report, asserting that he had presented

evidence at his Spears hearing and through documentation from his religious

teacher explaining why the items were necessary to his faith, that the defen6

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dants’ reasons for denying the items were not legitimate, and that another

inmate had obtained a medallion costing over $50. He also argued that the

defendants should not have been granted a protective order from discovery,

because they could have obtained more information about the prisoner who

obtained a medallion costing over $50. Finally, McFaul objected to the MJ’s jurisdiction on account of the defendants’ never having consented to it.

The district court conducted an independent review of the record, overruled McFaul’s objections, adopted the report, and granted summary judgment.

On appeal, McFaul challenges the summary judgment and various procedural

aspects of the case, including the denial of discovery and counsel and the jurisdiction of the MJ. 

III.

A.

This court reviews a summary judgment de novo, using the same standard

as that employed by the district court. Carnaby v. City of Hous., 636 F.3d 183,

187 (5th Cir. 2011). Summary judgment is appropriate “if the movant shows

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

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

summary judgment, this court construes “all facts and inferences in the light

most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th

Cir. 2010) (internal citation and quotation marks omitted). Summary judgment

may not be thwarted by conclusional allegations, unsupported assertions, or

presentation of only a scintilla of evidence. Hathaway v. Bazany, 507 F.3d 312,

319 (5th Cir. 2007).

B.

McFaul contends that he presented sufficient evidence showing a genuine

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dispute of material facts related to his First Amendment claims. During the

Spears hearing, he alleged that he needs his devotional items to practice his

faith, and similar allegations were made by his spiritual advisor in affidavits.

Because of the “oral tradition” of Celtic Druidism, McFaul argues that the court

should give more weight to “[o]ral evidence than to doctrinal justification.”

Accordingly, his inability to possess the medallions stifles his ability to practice

Celtic Druidism. 

“[I]nmates retain their First Amendment right to exercise religion; however, this right is subject to reasonable restrictions and limitations necessitated

by penological goals.” Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (footnotes

omitted). A restriction “impinging on an inmate’s constitutional rights must be

upheld ‘if it is reasonably related to legitimate penological interests.’” To evalu- 1

ate the reasonableness of a prison restriction, this court considers (1) whether

the regulation or action has a logical connection to the legitimate governmental

interests invoked to justify it; (2) whether the inmate has an available alternative means of exercising the rights; (3) the impact of accommodation on other

inmates, guards, and prison resources; and (4) the presence or absence of ready

alternatives that fully accommodate the prisoner’s “rights at de minimis cost to

valid penological interests.” “A court must determine whether the government 2

objective underlying the regulation at issue is legitimate and neutral, and that

the regulations are rationally related to that objective.” Freeman v. TDCJ, 369

F.3d 854, 860 (5th Cir. 2004) (internal quotation marks and citation omitted). 

Due regard also must be given to the decisions of prison officials, because

Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132 S. Ct. 1510, 1515 1

(2012) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Mitchell v. Quarterman, 2012 U.S.

App. LEXIS 9788, at *6 (5th Cir. May 15, 2012) (per curiam) (unpublished).

Safley, 482 U.S. at 89-91; see Mitchell, 2012 U.S. App. LEXIS 9788, at *6; Baranowski 2

v. Hart, 486 F.3d 112, 120-22 (5th Cir. 2007).

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“‘prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.’”3

1.

The district court concluded that the TDCJ policy limiting religious medallions to $25 is reasonably related to penological interests, including safety,

security, and discipline. It accepted the affidavit of Robert Eason, a TDCJ

Regional Director, who stated that McFaul could grind his pentagram into

shards to hurt others, that uniform sizes of medallions make it easier for guards

to identify contraband, and that McFaul could trade unique items such as the

skull necklace and the triskele medallion for contraband. The court decided that

these interests are rationally related to the $25 limitation and that McFaul had

presented no evidence to show that the policy was not applied neutrally. It also

found that McFaul was provided an opportunity to exercise his faith, because the

prison offered two medallions approved for Neo-Pagan faiths, that accommodating McFaul and other prisoners would cause guards to spend more time trying

to ascertain whether inmates possessed contraband, and that the strength of the

first three Safley factors outweighed any alternative accommodations that could

be presented by McFaul. 

There is no dispute that the items sought by McFaul did not conform to the

prison requirements. Although a pentagram is approved for neo-Pagan religions, the black background of McFaul’s mirrored pentagram distinguished it

from the approved medallion, and it cost more than the $25 limit. The issue is

whether the prohibitions on nonconforming medallions and medallions costing

more than the prescribed amount violate the Free Exercise Clause.

The penological interests offered by the defendantsSSsafety and discipline

Safley, 482 U.S. at 89 (omission and alteration in original) (citing Jones v. N.C. Pris- 3

oners’ Union, 433 U.S. 119, 128 (1977)).

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SShave been found to be legitimate in other Free Exercise cases. McFaul 4

argues, however, that the $25 limitation that prevented him from obtaining his

black onyx pentagram was not neutral, because the prison had a procedure in

place that permitted it to approve more expensive religious items. He contends

that such exceptions may be used to “covertly suppress particular religious

beliefs that are not mainstream.” 

Although the existence of exceptions may give rise to concern under

another set of facts, McFaul has presented no evidence demonstrating such discrimination. The only example he offers of the prison’s granting such an exception was for a Satanist. Because he does not appear to be asserting that Satanism is a “mainstream” religion, his single example indicates that the price limitations are not used to repress the practice of nontraditional religions.

McFaul also argues that the prison’s claims of uniformity and security concerns are irrational. He maintains that any considerations about uniformity are

frivolous in light of the variety of approved religious items available. Although

McFaul is correct that prison officials have approved a number of different

medallions for different religions, he has not shown that the desire for uniformity is not a valid penological concern. As Eason stated in his affidavit, prison

guards can more easily become familiar with a limited number of approved

medallions, and requiring them to determine whether any non-conforming

medallion is worn for religious purposes or constituted contraband would be

impracticable.5

See, e.g., Green v. Polunsky, 229 F.3d 486, 490 (5th Cir. 2000) (stating that prison

4

grooming policies requiring short hair and no beards allow for rapid identification, prevent

concealment of contraband and weapons, and limit signals of gang affiliations); Mitchell, 2012

U.S. App. LEXIS 9788, at *7 (stating that safety is a legitimate reason to overcome religious

objection to being seen naked by a guard of the opposite sex).

See Green, 229 F.3d at 491 (concluding that allowing exceptions of short beards for 5

religious purposes would be impractical based on the number of inmates who would likely

(continued...)

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With respect to the prison’s concerns that glass-like substances in the pentagram could be broken into shards and used as weapons, McFaul notes that

equally dangerous nonreligious items are available for prisoners to purchase in

the commissary. In particular, he notes that they may buy light bulbs, which

may also be broken and made into weapons. He attempts to analogize his case

to Mayfield v. TDCJ, 529 F.3d 599, 610-11 (5th Cir. 2008), in which this court

considered a prison policy prohibiting the possession of rune stones by Odinists.

In Mayfield, the plaintiff argued that the prohibition against rune stones was

irrational, because they were similar to Scrabble tiles or other game pieces that

prisoners could possess. See id. at 611. We ruled for the state for First Amendment purposes, however, concluding that“issues of prison security are peculiarly

within the province and professional expertise of corrections officials” and deferring to the expert judgment of such officials in concluding that the security concerns constituted a legitimate penologicalinterest. Id. (internal quotation marks

and citation omitted). 

Furthermore, the prison does not wantonly hand out light bulbs but

requires each prisoner to turn in his expired bulb before he may obtain a new

one. Because it is fairly easy to tell which prison cells do not have a light bulb,

the opportunities to grind it into a weapon are limited. 

McFaul also contends that prisoners on other units are allowed to possess

medallions with semiprecious stones, but he has provided no evidence of that.

During the Spears hearing, McFaul noted that prisoners could work in a craft

shop that made rosaries from semiprecious stones and other valuable items. He

presented his belief that prisoners could possess such religious items, apparently

because a prisoner was required to have $100 to start up a craft shop. 

 (...continued)

5

request such an exception from the grooming rules and the need for administrators to determine the legitimacy of stated beliefs).

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In his appellate brief, McFaul relies on a newspaper article presented in

the district court to support his assertion that “on the Stevenson Unit, piddlers

are allowed to possess and make rosary beads (a Religious Devotional Item)

made out of semi-precious natural stones.” The front page of the article, which

is the only part submitted to the court, reflects that prisoners do make rosaries

out of semiprecious materials, but there is no indication that they may possess

the materials outside the craft shop or that they are allowed to purchase completed rosaries. McFaul’s unsupported assertion that other prisoners are

allowed generally to possess such items is insufficient to establish that officials

do not have a legitimate penological interest in preventing the general possession of such valuable materials. 

2.

To determine whether there is an alternative way for the prisoner to exercise his right to practice his religion, courts consider “whether the regulation

entirely stifles the prisoner’s religious expression.” Scott v. Miss. Dep’t of Corr.,

961 F.2d 77, 81 (5th Cir. 1992). McFaul testified at his Spears hearing that he

was able to do daily rituals at morning, noon, sunset, and midnight despite the

deprivation of his medallions and his necklace. He contended, however, that he

was unable to engage in ritualistic magic ceremonies because he lacked a medallion to protect him. Where an inmate is unable to engage in a particular religious practice, courts consider “whether under these regulations [prisoners] retain

the ability to participate in other . . . religious ceremonies.” O’Lone v. Estate of

Shabazz, 482 U.S. 342, 352 (1987). The Supreme Court concluded that rules

requiring prisoners to stay at work all day and prohibiting Muslim prisoners

from attending Jumu’ah could be upheld, even though there was no alternative

to attending Jumu’ah, because Muslim prisoners had other avenues to practice

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their religion.6

The only Celtic Druid rituals specifically testified to by McFaul were the

ritual salutations occurring four times daily, which he was still able to perform.

Although he also asserted he needed the medallions to protect him during magic

rituals, he did not explain what these rituals entailed or whether and why they

were necessary, other than his assertion that “the full invoking ritual of the pentagram” was “required by [his] faith.” Although McFaul provided a sworn statement and a letter from Byron Holmes, his “spiritual teacher,” Holmes provided

no explanation of the rituals’ importance to Celtic Druidism or why the medallions were necessary; instead, he asserted that practitioners “are sworn to silence

in certain mysteries of [the] religion.” 

Thus, McFaul has provided nothing for this court to credit. Given his

admission that he was able to engage in some of the observances necessary to his

religion, his inability to participate in other “required” rituals does not show an

absence of alternatives. See id. at 351-52. 

3.

The third Safley factor is the impact of accommodation on other inmates,

guards, and prison resources. Safley, 482 U.S. at 91. As noted above, permitting

prisoners to possess medallions that do not conform to the approved standard

would cause prison guards extra effort in determining whether items are permitted religious medallions or contraband items. In addition, there is a danger

that prisoners could fight over or steal medallions that are perceived as more

valuable than the standard items offered. Such increases in costs weigh in favor

Estate of Shabazz, 482 U.S. at 351-52; see also Green, 229 F.3d at 491 (“Neither does

6

the TDCJ grooming policy deprive Muslim inmates of ‘all means of expression’ of their religious beliefs. It merely removes or reduces one of many avenues by which they may manifest

their faith.”) (internal footnote and citation omitted).

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of the prison’s policies. See Green, 229 F.3d at 491.

4.

The final Safley factor is the presence or absence of ready alternatives that

fully accommodate the prisoner’s “rights at de minimis cost to valid penological

interests.” Safley, 482 U.S. at 91. The court noted that McFaul had not posited

any alternatives. It also concluded that “even if he had, the weight of the other

three factors shows that the regulation is valid.” McFaul maintains that the

court erred by not considering the reasonable alternative oflimiting the religious

items available to prisoners in a neutral manner. 

McFaul failed to offer any evidence, however, that the prison’s application

of the policy was not applied neutrally. As noted above, he alleges only one

instance of the prison’s granting an exception to the policy, and it was for a

Satanist. Under the circumstances, McFaul has not established the existence

of a genuine issue of material fact regarding whether defendants violated his

First Amendment free-exercise rights. 

IV.

McFaul appeals the dismissal of his claim that the defendants violated his

statutory rights under RLUIPA, 42 U.S.C. § 2000cc, and TRFRA, TEX.CIV.PRAC.

& REM. CODE § 110. Those statutes prevent governments from imposing a substantial burden on religious exercises by inmates without a compelling governmental interest. Because McFaul fails to offer evidence beyond a mere assertion

that the prison’s policies substantially burden the exercise of his religion, we

affirm the dismissal of his statutory claims. 

“RLUIPA imposes a higher burden than does the First Amendment in that

the statute requires prison regulators to put forth a stronger justification for regulations that impinge on the religious practices of prison inmates.” Mayfield,

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529 F.3d 599, 612 (5th Cir. 2008). Under RLUIPA, “[n]o government shall

impose a substantial burden on the religious exercise of [an inmate] . . . unless

the government demonstrates that imposition of the burden on that personSS

(1) is in furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental interest.” 42

U.S.C. § 2000cc-1(a). “[T]he plaintiff bears the initial burden of proving that the

challenged government action substantially burdens the plaintiff’s religious

exercise.” DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011) (internal quotation

marks and citation omitted). 

To establish a “substantial burden,” the prisoner must show that “it truly

pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th

Cir. 2004). Such a burden is shown if the prisoner is influenced to act in violation of his religious beliefs or is forced to choose between enjoying a generally

available benefit and following his religious beliefs. Id. “If the plaintiff meets

this burden of proof, the burden shifts to the government to demonstrate that its

action was supported by a compelling interest and that the regulation is the

least restrictive means of carrying out that interest.” DeMoss, 636 F.3d at 150

(internal quotation marks and citation omitted). Claims under TRFRA may be

resolved by consideration of case law applying RLUIPA and its predecessor, the

Religious Freedom Restoration Act of 1993. A.A. ex rel. Betenbaugh v. Needville

Indep. Sch. Dist., 611 F.3d 248, 258-59 (5th Cir. 2010). McFaul is not entitled

to monetary damages under RLUIPA. Accordingly, we analyze only his claims 7

for declaratory and injunctive relief under RLUIPA.

The district court concluded that McFaul failed to satisfy his initial burden

because he did not show how the TDCJ policies acted as a substantial burden on

See Mitchell, 2012 U.S. App. LEXIS 9788, at *9 (citing Sossamon v. Lone Star State 7

of Tex., 560 F.3d 316, 321-22 (5th Cir. 2009), aff’d, 131 S. Ct. 1651, 1663 (2011)).

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his ability to practice his religion. The court based its conclusion on the affidavit

fromMcFaul’s “spiritual advisor” indicating that practitioners of Celtic Druidism

may not talk about the practices of the religion. A review of the record indicates

that McFaul did provide some explanation of the rituals during his Spears hearing. Nevertheless, his silence regarding the doctrines of the religion prevents

him from showing that the burdens on his religious exercise are substantial. 

During the Spears hearing, McFaul asserted that he needed the prayer

beads to help him concentrate during his prayers. He also claimed that if he

wore the triskele pendant while he was practicing magic, he would “put all [his]

energy” or “charge the medallion” and it would protect him during his rituals.

He acknowledged, however, that the pentagram amulet would perform the same

function, that the black onyx in it would help him “connect with Mother Earth

a little better,” and that the pentagram could be used in rituals, although “the

Triskele would [have] better fit [his] practice.” He maintained that a pentagram

without the black onyx would be less effective, because the shape was only “a

symbol in a gateway into whatever element like the Earth through the moon”

that the practitioner is attempting to enter. Although McFaul admitted that he

was able to practice his daily observances, he was unable to conduct “the full

invoking ritual of the pentagram,” because he lacked an amulet to protect himself while performing the necessary spells. Thus, he has provided evidence that

the lack of an onyx on his pentagram somewhat interferes with the exercise of

his religion, but he has not met his burden to show that the interference is

substantial. 

In Smith v. Allen, 502 F.3d 1255, 1277-79 (11th Cir. 2007), abrogated on

other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011), the court confronted

the issue of whether the substantiality of a burden can be demonstrated by the

mere assertion of an inmate. Smith considered a claim by an Odinist that his

inability to obtain a quartz crystal constituted a substantial burden on the prac16

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tice of his religion. Smith asserted that the crystal was necessary to his religion

because it permitted him to communicate with the netherworld, and he presented general sources that reflected that quartz crystals are used in many prehistoric religions, although they did not list Odinism. Id. at 1278. He maintained that he had established a RLUIPA violation because he asked for the

crystal, and he said that he needed it to follow his sincerely held religious beliefs. 

Id. The court rejected that assertion, stating that “[s]uch an expansive reading

. . . would require [courts] to find a substantial burden whenever any request in

connection with a sincere religious belief was denied by a state prison.” Id. at

1278. The court concluded that “Smith’s own assertion and his scant sources”

were insufficient to establish that he had suffered more than an inconvenience

rather than a substantial burden. Id. at 1278-79.

In Sossamon, 560 F.3d at 333, however, this court concluded that a prison’s prohibition of an inmate’s access to a chapel to pray before a cross and altar

could constitute a substantial burden on religious exercise, even though a cleric

swore that such activities were not a necessary practice of Christianity. We

noted that Smith did not contradict this conclusion, observing that Smith had

received numerous devotional items related to his religion and was still able to

practice Odinism. Id. at 332-33 n.64. We reasoned that “[t]he denial of the

quartz crystal . . . is markedly different from a wholesale denial of what Sossamon claims is core to the practice of his Christianity, at least for summary judgment purposes.” Id. 

Thus, Sossamon established a factual dispute regarding whether the prison’s actions interfered with a practice he considered core to his Christian beliefs. 

McFaul, in contrast, has at best provided mixed evidence regarding the centrality of the onyx and prayer beads. Furthermore, by stating that he will not discuss the doctrines of his religion, he has provided evidence that proceeding

beyond summary judgment would be especially fruitless.

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Without some religious framework, claims such as McFaul’s would open

the door to finding that any inmate’s assertion constitutes a sincerely held religious belief and that any limitation on that belief constitutes a substantial burden

on the practice of his religion. See Smith, 502 F.3d at 1278. Accordingly, we

affirm the dismissal of the RLUIPA and TRFRA claims.

V.

McFaul contends that defendants violated his equal protection rights. He

claims that inmates in other prison units were allowed to have expensive religious medallions that were not sold in the commissary. And he points to the

Satanist who was able to obtain a gold inverted pentagram that cost more than

the $25 prison limit. Because those facts, even if true, would not prove discriminatory intent, we affirm the dismissal of the equal protection claim. 

To establish a Fourteenth Amendment equal-protection claim, McFaul

“must allege and prove that he received treatment different from that received

by similarly situated individuals and that the unequal treatment stemmed from

a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001).

The Equal Protection Clause does not require “that every religious sect or group

within a prisonSShowever few in numbersSSmust have identical facilities or personnel”; it requires only that prison officials afford inmates “reasonable opportunities . . . to exercise the religious freedom guaranteed by the First and Fourteenth Amendment[s].” Baranowski, 486 F.3d at 123 (internal quotation marks

and citation omitted).

Even if we assume the truth of McFaul’s allegations that a Satanist prisoner was granted an exception to the medallion policy, he has not shown the

existence of “a genuine dispute as to any material fact.” FED. R.CIV.P. 56(a). He

relies on the fact that the Satanist obtained a medallion costing $61.95, the same

price as his black onyx pentagram. He asserts that this differential treatment

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resulted from discriminatory intent, as indicated by Valenzuela’s statement that

McFaul was going to burn in hell. 

The full quotation reflected, however, that Valenzuela believed that “all

pagans were going to burn in Hell.” McFaul’s only evidence of discriminatory

treatment involves the provision of a medallion exceeding the price limit to a

Satanist, presumably also considered by Valenzuela as a “pagan.” McFall pro- 8

vides no evidence that the price-limit rule does not exist or that individuals

belonging to standardized religions or Christian denominations were able to

obtain religious relics exceeding the price limit. 

McFaul’s own assertions undercut his argument that he was denied his

religious medallions and treated differently from the Satanist based on Valenzuela’s animosity to non-Christian or non-mainstream religions. McFaul thus

has not established a question of material fact regarding the discriminatory

intent required under the Equal Protection Clause. See Taylor, 257 F.3d at 473.

McFaul also appears to be arguing that the denial of his medallions constituted retaliation for his filing of grievances. Although the district court did not

address such an argument, liberal constructions of McFaul’s complaint and

statements at the Spears hearing reflect that he tried to raise such an allegation.

His claim is unavailing. 

To state a retaliation claim, “a prisoner must allege (1) a specific constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or

her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones

v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). McFaul relies on the fact that

Valenzuela told him that he was going to burn in Hell and that if McFaul continued to file grievances, “he would never get anything.” Valenzuela purportedly

SeeWEBSTER’SIINEW RIVERSIDEUNIVERSITY DICTIONARY 844 (1984) (defining pagans

8

and individuals who are non-Christian or do not belong to a Christian, Jewish, or Muslim

denomination).

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made the “hell” statement on June 24, 2009, when he first told McFaul that he

was not going to receive his black onyx pentagram medallion and the “grievance”

statement when he advised McFaul of the warden’s denial of the request on

July 2. McFaul asserts that the “hell” statement shows that Valenzuela had

already intended to deny the request for the medallion. But given that the price

of the medallion provided a valid basis for Valenzuela to withhold it from

McFaul, McFaul has not established the requisite intent. 

9

Additionally, prison policies show that the warden rules on whether to

allow a prisoner to obtain a nonconforming medallion. McFaul provides no evidence that any of the wardens was aware of Valenzuela’s statement, so he has

not shown the necessary causation. See Jones, 188 F.3d at 324-25. As for the

“grievance” statement, McFaul does not allege that he has been deprived of any

requested religious items after the statement was made. Therefore, he has not

presented an adverse action taken against him for a retaliatory purpose. Id.

McFaul also appears to contend that he was denied due process because

the defendants failed to follow prison policy for denying requests for religious

items. To the extent that he presented such a claim in the district court, he has

not shown a genuine dispute of material fact. An assertion that prison officials

failed to follow prison rules or policies does not set forth a constitutional claim.

See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989). To the extent that

McFaul is alleging a freestanding due-process claim because the prison failed to

follow its own procedures for reviewing requests for religious items, “[p]rocess

is not an end in itself.” District Attorney’s Office for Third Judicial Dist. v.

Osborne, 129 S. Ct. 2308, 2319 (2009). “Its constitutional purpose is to protect

a substantive interest to which the individual has a legitimate claim of entitleSee McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (finding no evidence of 9

retaliatory intent or causation if a violation of a reasonable prison regulation supported the

adverse action).

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ment.” United States v. Crouch, 84 F.3d 1497, 1516 (5th Cir. 1996) (internal

quotation marks omitted). Because McFaul has not shown that the defendants

violated a constitutionally protected interest, he has not established a due-process violation. See Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 557 (5th

Cir. 1988).

VI.

McFaul argues that the MJ lacked jurisdiction to rule on his motions

because the defendants never consented to her jurisdiction. He maintains that

he was prejudiced by the MJ’s rulings but that his consent to her authority

deprived him of the ability to object to the rulings and that the defendants

retained the right to object by failing to give consent. McFaul’s assertioins are

meritless. 

Parties may consent in writing to having a MJ conduct proceedings and

enter final judgment in a civil matter. Even if the parties do not consent, how- 10

ever, the district court may designate a MJ “to hear and determine any pretrial

matter pending before the court” even where a motion for summary judgment

is excepted from such rulings. § 636(b)(1)(A). An aggrieved party may appeal

such a ruling to the district court if the MJ’s ruling was legally or factually incorrect. Id. Moreover, under § 636(b)(1)(B), the court may authorize the MJ “to

conduct hearings . . . and to submit to a judge of the court proposed findings of

fact and recommendations for the disposition” of motions excepted under § 636-

(b)(1)(A). After such a recommendation, the parties may submit written objections within fourteen days after receiving a copy of the recommendation and may

have their objections reviewed de novo by the district court. § 636(b)(1)(C); FED.

 28 U.S.C. § 636(c)(1); Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 10

F.3d 156, 171-72 (5th Cir. 2011); Archie v. Christian, 808 F.2d 1132, 1135 n.3 (5th Cir. 1987)

(en banc).

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R. CIV. P. 72(b). 

That procedure was followed here. Thus, the MJ properly ruled on

McFaul’s motions and entered a recommendation on the motion for summary

judgment despite the defendants’ failure to consent to her consideration of the

motions.

VII.

McFaul maintains that the district court prejudiced him by granting

defendants’ request for a discovery protective order. He contends that any

absence of a factual dispute was the result of the limitations on his ability to

conduct discovery. He argues that as a result of the protective order, he was

unable to obtain evidence that TDCJ was applying prison policies in a nonneutral manner. He also asserts that Pierce provided nonresponsive answers to

his interrogatories and that the defendant was “supposed to seek the answer to

the question if he [does not] know the answer,” such as by “call[ing] other Unit

Wardens and ask[ing] them what was the most expensive medallion that has

been approved for an Offender to have within the last five years, the last two

years, and within the last year.” 

A district court may exercise its “sound discretion” with respect to discovery matters. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (internal quotation marks and citation omitted). A party opposing summary judgment “must

show how the additional discovery will defeat the summary judgment motion.”

Id. Although motions to conduct discovery are generally favored and should be

liberally granted, Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir.

2001), the movant “may not simply rely on vague assertions that additional discovery will produce needed, but unspecified facts,” but instead must show why

he needs additional discovery and how that discovery will create a genuine issue

of material fact, id. (internal quotation marks and citation omitted). 

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In granting the defendants’ request in part, the court did order responses

to some discovery requests relating to the value of religious medallions that had

been approved. McFaul does not offer any description of the evidence that would

have been revealed if the court had permitted him additional discovery, so he

cannot meet his burden to show how the discovery would have created a genuine

issue of material fact. Id. 

McFaul further contends that the defendants did not give “proper

responses” to the interrogatories that the court ordered answered. The only

inadequate response he discusses is one given by Pierce. Because he has not

briefed any challenge to the other answers, any such claims are deemed abandoned. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987).

With respect to Pierce’s interrogatories, McFaul asked him “[p]lease state

the most expensive medallion that has been approved for an offender to have

within the last five years, the last two years[,] and within the last year.” Pierce

replied,

To my knowledge, the most expensive religious medallion available

for sale in the unit commissaries at any time during the last five

years has been the Wiccan medallion priced at $25.75. I have been

director of Chaplaincy since 2002. In this position, I am not

involved in the unit requests for medallions. Additionally, according

to policy, medallions over the amount of $25.00 require the warden’s

approval.

McFaul complains that this is unresponsive and evasive and that Pierce had an

obligation to obtain the requested information from TDCJ unit wardens. Courts

may not consider the responses to interrogatories that are not within the personal knowledge of the individual answering them. Pierce provided McFaul 11

See BMG Music v. Martinez, 74 F.3d 87, 90 n.18 (5th Cir. 1996); see also FED. R. CIV.

11

P. 56(c)(4) (stating that affidavits or declarations supporting a motion for summary judgment

(continued...)

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with the information within his personal knowledge about the pricing of religious medallions. Any information he had obtained from unit wardens would not

have been within his personal knowledge and thus would not constitute a proper

interrogatory response. Therefore, McFaul has failed to show that the desired

answer would have created a genuine dispute of material fact. See Beattie, 254

F.3d at 606.

VIII.

McFaul asserts that the district court erred in denying his motions for

appointment of counsel. He maintains that because his adherence to a religion

relying solely on an oral tradition for First Amendment protections is an issue

of first impression, extraordinary circumstances exist warranting the assistance

of an attorney. There is no general right to counsel in civil rights actions. Cupit

v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). An attorney should be appointed only

if exceptional circumstances exist. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th

Cir. 1982). The factual issues surrounding McFaul’s claims are relatively simple. Although he asserts that his case is “extraordinary” because his religion is

based on an oral tradition, his claims are not unique or unusual. See, e.g.,

Adkins, 393 F.3d at 567. Because McFaul has not shown exceptional circumstances, the court did not abuse its discretion in denying counsel. See Jackson

v. Dall. Police Dep’t, 811 F.2d 260, 260-61 (5th Cir. 1986).

The summary judgment is AFFIRMED.

 (...continued)

11

must be based on personal knowledge).

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