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

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

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41015

Summary Calendar

WILLIE LEE GARNER, also known as Willi Free I Gar’ner

Plaintiff-Appellant

v.

PAUL MORALES, Individually and in his official capacity; ROBERT CRITES,

Individually and in his official capacity; BRYAN GORDY, Individually and in his

official capacity; EILEEN KENNEDY; MARTHA WEAR; ET AL.; JUAN M.

GARCIA; LOUIS ROCHA; GINA K. CURRIE; SYLVIA VILLARREAL;

RACHELLE RAMON

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CV-218

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Willie Lee Garner, Texas prisoner # 606635, appeals the district court’s

adverse summary judgment on his free exercise, equal protection, and retaliation

claims under 42 U.S.C. § 1983 as well as his claims under the Religious Land

Use and Institutionalized Persons Act (RLUIPA or Act), 42 U.S.C. §§ 2000ccUnited States Court of Appeals

Fifth Circuit

F I L E D

March 6, 2009

Charles R. Fulbruge III

Clerk
No. 07-41015

 The grooming policy permits inmates with an objectively verifiable medical condition 1

to obtain a clipper-shave pass, which allows them to maintain a quarter-inch beard.

2

2000cc-5. He also appeals the district court’s denial of his request for appointed

counsel. For the following reasons, we affirm in part and vacate in part and

remand.

I. FACTS

Garner, a prisoner incarcerated in the Texas Department of Criminal

Justice (TDCJ), adheres to Islam. He contends that the tenants of his Islamic

faith require him to wear at all times a beard and a white head covering known

as a Kufi. Impeding Garner’s ability to adhere to these tenants of his faith are

the TDCJ’s no-facial-hair grooming policy, which requires all inmates to

maintain a clean shave absent an objectively verifiable medical condition, and 1

the TDCJ’s head-covering policy, which restricts Garner from wearing his Kufi

to and from religious services. In 2004, Garner began refusing to comply with

the TDCJ’s grooming policy by not shaving; he was disciplined several times as

a result. Garner admitted that he was not exempt from the policy due to a

medical condition; instead, he argued that the TDCJ’s inflexible grooming policy

should yield to his religious beliefs.

Garner brought this suit against Lieutenant Juan Garcia, Sergeant Louis

Rocha, Officer Rachelle Ramon, Commissary Manager Gina Currie, and

Commissary Coordinator Sylvia Villarreal in their individual and official

capacities. His suit alleges that the defendants violated his constitutional rights

by refusing to allow him to maintain a quarter-inch beard and wear a Kufi to

and from religious services. Specifically, Garner brought suit under § 1983,

alleging violation of his First Amendment right to free exercise of religion, his

Fourteenth Amendment right to equal protection of the law, and retaliation

under the Eighth Amendment. Garner also claims that the TDCJ’s policies

violate the RLUIPA, which protects the religious practices of institutionalized

persons.
No. 07-41015

3

The district court granted summary judgment in favor of the defendants

on all of Garner’s claims. The court provided a number of grounds for its

judgment. First, the court concluded that sovereign immunity barred Garner

from suing the defendants in their official capacities for money damages.

Second, the court held that the defendants were entitled to judgment as a matter

of law because Garner had not sufficiently shown a violation of either the

RLUIPA or the First, Eighth, or Fourteenth Amendments. Finally, the court

concluded that the defendants were entitled to qualified immunity. In a

separate order, the district court denied Garner’s request for appointed counsel.

Garner’s claims are now before this Court.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo

applying the same standard as the district court. See Baranowski v. Hart, 486

F.3d 112, 119 (5th Cir. 2007). Summary judgment is appropriate “if the

pleadings, depositions, 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 a matter of law.” FED. CIV. P. 56(c). The

movant bears the burden of demonstrating the absence of a genuine issue of

material fact. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc) (per curium). In making our determination, all doubts and reasonable

inferences must be resolved in favor of the non-movant, here Garner. Id.

A. Sovereign immunity

Garner contends that the district court improperly held that sovereign

immunity barred him from suing the defendants in their official capacities for

money damages. We disagree. A suit against a government official in his or her

official capacity is a suit against the entity that the individual represents, here

the TDCJ. Kentucky v. Graham, 473 U.S. 158, 166 (1985). We have previously

recognized that the TDCJ is an agency of the state, and is thus “shielded from

suits by individuals absent its consent.” Mayfield v. Tex. Dep’t of Criminal
No. 07-41015

4

Justice, 529 F.3d 599, 604 (5th Cir. 2008) (citation and internal quotations

marks omitted). Moreover, we recently held that the RLUIPA does not

constitute a waiver of a state’s sovereign immunity. Sossamon v. Lone Star

State of Texas, No. 07-50632, 2009 U.S. App. LEXIS 3701, at *28 (5th Cir. Feb.

17, 2009). Thus, the only potentially viable claims that Garner has brought

against the TDCJ (through its officials) are those for declaratory and injunctive

relief. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 417 (5th Cir. 2004)

(recognizing that declaratory and injunctive relief are exceptions to the doctrine

of sovereign immunity); see also Sossamon, 2009 U.S. App. LEXIS 3701 at *19

(“[The] RLUIPA unambiguously creates a private right of action for injunctive

and declaratory relief.”). Accordingly, we affirm the portion of the judgment

concluding that Garner is barred from seeking money damages from the

defendants in their official capacities.

B. Free exercise claims

Garner also challenges the district court’s dismissal of his free exercise

claims. He contends that the TDCJ policies that forbid him from wearing a

quarter-inch beard and a Kufi to and from religious services violate his First

Amendment rights. Garner’s claims are foreclosed by this circuit’s precedent.

In Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000), an inmate contended that a

TDCJ policy that forbid him from wearing a quarter-inch beard in accordance

with his Muslim faith, yet allowed prisoners with certain medical conditions to

wear three-quarter-inch beards, violated the Free Exercise Clause of the First

Amendment. Id. at 488. We disagreed and held that the grooming policy was

reasonably related to the TDCJ’s legitimate penological interests. Id. at 490.

Similarly, in Muhammad v. Lynaugh, 966 F.2d 901 (5th Cir. 1992), we rejected

a free exercise challenge to a TDCJ policy restricting the use of Kufi caps,

concluding that the policy bore a reasonable relationship to the legitimate

penological interests of prison security. Id. at 902-03. Given these precedents,
No. 07-41015

5

the district court did not err in concluding that no fact issue exists on Garner’s

free exercise claims.

C. Equal protection claim

Garner further contends that the TDCJ’s grooming and head-covering

policies violate the Equal Protection Clause of the Fourteenth Amendment

because the policy forbids Muslims from wearing a quarter-inch beard in

accordance with their religion, yet does not impose a similar restriction on

inmates with certain medical conditions. He also notes that adherents of other

religions are permitted to wear medallions, crosses, amulets, and medical bags,

and also permitted to perform ceremonial rites like smoking a tobacco pipe and

participating in sweat lodges.

To maintain his equal protection claim independent of his free exercise

claim, Garner “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). Discriminatory intent “implies that the decisionmaker singled

out a particular group for disparate treatment and selected his course of action

at least in part for the purpose of causing its adverse effect on an identifiable

group.” Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988) (internal

quotation marks omitted).

The district court correctly concluded that Garner has failed to raise a fact

issue on his equal protection claim. Garner has not established that the TDCJ

enacted its grooming or head-covering policy for the purpose of adversely

impacting the ability of Muslim inmates to practice their faith; rather, the TDCJ

enacted the policies to forward its legitimate penological interests in prison

security. Nor has Garner shown that the TDCJ applies its facially-neutral

grooming and head-covering policies differently among Muslims or those of other

faiths. Individuals receiving an exemption from the grooming policy due to an

objectively verifiable medical condition are, by definition, not similarly situated
No. 07-41015

6

to Garner. Finally, Garner has not offered any facts demonstrating that the

TDCJ intended to discriminate against him as a member of an identifiable

group. Because Garner has failed to raise a fact issue on any potentially

actionable theory of equal protection, the district court properly granted

summary judgment on this claim. Moreover, because Garner has failed to

establish that the TDCJ’s grooming and head-covering policies violate his

constitutional rights, he cannot establish an Eighth Amendment retaliation

claim based on penalties incurred as a result of his refusal to comply with that

policy. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (noting that

an Eighth Amendment retaliation claim must be predicated on the violation of

a specific constitutional right).

D. Appointment of counsel and the RLUIPA

Garner requested appointment of counsel in the district court; his request

was denied. There is no automatic right to appointment of counsel in a civil

case. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). A federal

court may, however, appoint counsel for an indigent if doing so would advance

the proper administration of justice. 28 U.S.C. § 1915(e); Ulmer v. Chancellor,

691 F.2d 209, 213 (5th Cir. 1982). Appointment of counsel in a civil rights case

is generally reserved for cases presenting “exceptional circumstances.” Id.

While no precise formulation of such circumstances can be stated, courts

generally look at the following:

[i] the type and complexity of the case; [ii] the petitioner’s ability

adequately to present and investigate his case; [iii] the presence of

evidence which largely consists of conflicting testimony so as to

require skill in presentation of evidence and in cross-examination;

and [iv] the likelihood that appointment will benefit the petitioner,

the court, and the defendants by shortening the trial and assisting

in just determination.

Murphy v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992) (citation and internal

quotations omitted).
No. 07-41015

We recently appointed appellate counsel in another RLUIPA case presenting issues

2

of first impression. See Sossamon, 2009 U.S. App. LEXIS 3701, at *11.

7

The district court concluded that this was not a novel or complex case and

that Garner could adequately present the issues to the court. With respect to

the matters already discussed, we find no abuse of discretion in this conclusion.

However, our review of the relevant case law and statutory developments causes

us to conclude that this is a case of first impression under the RLUIPA. As such,

it may be a case in which appointment of counsel is appropriate.2

Garner claims that the TDCJ’s grooming and head-coverings policies

violate the RLUIPA. The RLUIPA mandates 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 demonstrates that imposition of the burden on that

person--

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

(2) is the least restrictive means of furthering that compelling

governmental interest.

42 U.S.C. § 2000cc-1(a). “[The] RLUIPA thus protects institutionalized persons

who are unable freely to attend to their religious needs and are therefore

dependent on the government’s permission and accommodation for exercise of

their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). We have

recognized that “the RLUIPA standard poses a far greater challenge than does

[traditional free exercise analysis] to prison regulations that impinge on inmates’

free exercise of religion.” Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d

854, 858 n.1 (5th Cir. 2004). Moreover, Congress has mandated that courts

construe the Act “in favor of a broad protection of religious exercise,” to the

maximum extent permitted by law. 42 U.S.C. § 2000cc-3(g).

Initially, the burden rests on the religious adherent to demonstrate that

the challenged governmental policy substantially burdens the adherent’s
No. 07-41015

8

exercise of religion. See 42 U.S.C. § 2000cc-2(b). This requires courts to answer

two questions: (1) Is the burdened activity “religious exercise,” and if so (2) is

the “burden substantial”?

The RLUIPA defines “religious exercise” to include “any exercise of

religion, whether or not compelled by, or central to, a system of religious belief.”

42 U.S.C. § 2000cc-7(A). The activities alleged to be burdened in this case – the

wearing of a quarter-inch beard and a Kufi – easily satisfy this broad definition

of “religious exercise.” Thus, this case presents the question of whether the

TDCJ’s grooming and head-coverings policies “substantially burden” Garner’s

exercise of religion.

Although not defined by statute, this circuit has held that a government

regulation substantially burdens a “religious exercise” for the purposes of the

RLUIPA if it “truly pressures the adherent to significantly modify his religious

behavior and significantly violate his beliefs.” Adkins v. Kaspar, 393 F.3d 559,

570 (5th Cir. 2004). This test requires a “case-by-case, fact-specific inquiry to

determine whether the government action or regulation in question imposes a

significant burden on an adherent’s religious exercise.” Id. at 571. In

conducting this inquiry, courts are forbidden from asking whether the practice

at issue is central to the adherent’s religious-belief system. Id. at 570. This

limitation, however, “does not relieve a complaining adherent of the burden of

demonstrating the honesty and accuracy of his contention that the religious

practice at issue is important to the free exercise of his religion.” Id. 

If the TDCJ’s policies impose a substantial burden on Garner’s religious

exercise, the defendants must then establish that the policies further a

compelling government interest and are the least restrictive means of furthering

that interest. 42 U.S.C. § 2000cc-1(a); 42 U.S.C. § 2000cc-2(b). In conducting

this inquiry, courts are guided by the Supreme Court’s recognition that the

RLUIPA does not “elevate accommodation of religious observances over an

institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722.
No. 07-41015

9

Indeed, “prison security is a compelling state interest, and [ ] deference is due

to institutional officials’ expertise in this area.” Id. at 725 n.13. Nevertheless,

we do not believe that the Supreme Court intended these pronouncements to

relieve prisons from the express mandate placed on them by Congress: that

policies which substantially burden the religious practice of inmates be

predicated on a compelling interest, that they further that interest, and that

they do so in the least restrictive manner possible. See 42 U.S.C. § 2000cc-1(a);

42 U.S.C. § 2000cc-2(b). 

Our circuit has never addressed the question of whether a religion-based

request to have a quarter-inch beard is a significant burden on the adherent’s

religious exercise of the Islamic religion or whether the clean-shaven policy is

the least restrictive manner of furthering a compelling interest. Green, 229 F.3d

486, is not dispositive as it was decided based upon law from a time when

RLUIPA’s predecessor statute, the Religious Freedoms Restoration Act (RFRA),

had been found unconstitutional and the RLUIPA had not yet been passed. We

have upheld a TDCJ policy banning long hair under the RFRA, based on some

of the same interests asserted by the TDCJ here. See Diaz v. Collins, 114 F.3d

69, 73 (5th Cir. 1997). Although the RFRA has since been held unconstitutional,

the RLUIPA adopts the same heightened standard of scrutiny as the RFRA. See

Cutter, 544 U.S. at 715-16. In a recent unpublished opinion, however, we noted

that Diaz’s reasoning concerning long hair is not dispositive of the issue

presented by quarter-inch beards. Gooden v. Crain, 255 Fed. App’x 858, 861 n.1

(5th Cir. 2007) (unpublished) (reversing summary judgment because the issues

involving the quarter-inch beard policy were contested fact questions). The

district court did not have the benefit of our decision in Gooden when it denied

relief.

Our circuit has expressed the view that a case of first impression might

present an “exceptional circumstance” justifying appointment of counsel.

Santana v. Chandler, 961 F.2d 514 (5th Cir. 1992) (concluding, however, that the
No. 07-41015

10

presence of law in other circuits lessened the need for counsel); see also Duran

v. Reno, 193 F.3d 82 (2d Cir. 1999) (counsel appointed on appeal because the

case presented an issue of first impression). The district court viewed this case

as one presenting a well-settled issue – citing Diaz and the since-reversed

district court opinion in Gooden – rather than a case of first impression. The

court stated: “plaintiff’s claims do not present any complexities that are unusual

in prisoner actions.” 

 Thus, the court’s analysis of the need to appoint counsel failed to take into

account the particular complexity and legal novelty of this case. As noted above,

we conclude that this case is not the usual one. Because appointment of counsel

in the district court is a question of discretion – albeit discretion exercised under

the proper analysis of the situation – we conclude that the appropriate course of

action is to vacate the district court’s rulings on the RLUIPA claims and the

appointment of counsel motion and remand for reconsideration of the latter first

followed by the former in light of the opinion here stated. 

III. CONCLUSION

We VACATE the district court’s adverse summary judgment on Garner’s

RLUIPA claims and the district court’s order denying appointment of counsel

and REMAND. We note that our recent decision in Sossamon held, as a matter

of statutory interpretation and to avoid certain constitutional concerns, that the

RLUIPA does not permit suits against defendants in their individual capacities.

Sossamon, 2009 U.S. App. LEXIS 3701, at *28. Accordingly, on remand,

Garner’s RLUIPA claims are limited to declaratory and injunctive relief. In all

other respects, we AFFIRM the district court’s judgment.