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. 08-20697

Summary Calendar

SAMUEL LEE JONES, JR., also known as Samuel Hakeem Muhammad,

Plaintiff-Appellant

v.

AKBAR SHABAZZ, Director of Islamic Chaplains; CHARLES KISER, Prison

Chaplain; BILL PIERCE, Director of Chaplaincy Department; RICHARD

LOPEZ, Regional Program Administrator; DOUGLAS DRETKE, Director,

TDCJ-CID,

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:06-cv-01119

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Samuel Lee Jones (“Jones”) appeals the district court’s grant of summary

judgment as to ten of Jones’s thirty-three Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), First Amendment, and Equal

Protection claims against various Texas Department of Criminal Justice

United States Court of Appeals

Fifth Circuit

F I L E D

November 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-20697

2

(“TDCJ”) chaplains and administrators. After carefully addressing each

allegation, the district court concluded that Jones failed to raise a genuine issue

of material fact as to any of his asserted claims. Additionally, the district court

declined to allow Jones to amend his complaint to add a request for monetary

damages. We AFFIRM.

I. FACTUAL BACKGROUND

Jones, also known as Samuel Hakeem Muhammad, is an inmate confined

to the TDCJ at the Michael Unit in Tennessee Colony, Texas. Jones is a member

of the Nation of Islam (“NOI”). Jones alleges he was subjected to a variety of

acts and events he claims violated his Free Exercise rights, RLUIPA protections,

and Fourteenth Amendment Equal Protection rights. Specifically, Jones’s

appeal raises the following examples of TDCJ’s alleged conduct as grounds for

his various claims: 1) “theft” of his “religious property” and “religious videotapes”

by several different TDCJ administrators; 2) TDCJ’s refusal to allow NOI

adherents to perform certain acts at their weekly services and preach NOI

doctrine to non-NOI Muslim inmates; 3) TDCJ’s refusal to acknowledge or

accommodate unique NOI religious holidays; and 4) TDCJ’s failure to provide

NOI adherents with a specific diet conforming to their religious preferences

rather than a diet that simply avoids prohibited foods.

On March 6, 2006, Jones brought suit against five TDCJ chaplains and

administrators: Akbar Shabazz, Director of Islamic Chaplains; Charles Kiser,

Prison Chaplain at the Beto Unit; Bill Pierce, Director of the Chaplaincy

Department; Richard Lopez, Regional Program Administrator; and Douglas

Dretke, Former Director TDCJ-Correctional Institutions Division. Jones’s

complaint alleged thirty-three claims arising under RLUIPA, the First

Amendment, and the Fourteenth Amendment. Jones included dozens of exhibits

that eventually grew to hundreds of pages of documentation as the case

progressed. Over the next eighteen months, the defendants filed three separate
No. 08-20697

 This court previously denied Jones’s motion to file an oversized brief. Jones states in 1

his briefs that he would have appealed the district court’s grant of summary judgment

regarding the remaining twenty-three claims had he been permitted to file an oversized brief.

In lieu of such a filing, Jones lists the other issues he would have appealed in a “Notice To The

Court.” Even under the liberal construction afforded pro se briefs, a litigant must still attempt

to advance an argument in order to preserve it. Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir.

2007). Jones’s listing of possible other grounds of error does not meet this very minimal

standard. As such, any claim of error as to the district court’s ruling on the remaining twentythree claims has been waived.

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motions for summary judgment. The district court ruled on the first and second

motions on September 28, 2007. In a 60-page ruling considering each and every

count in detail, the district court granted summary judgment on thirty-one of

thirty-three claims. The court withheld a final determination of Jones’s claims

regarding whether he should be permitted to retain prayer oil in the prison and

whether TDCJ shower procedures violated NOI modesty rules. 

The defendants filed their third summary judgment motion on November

20, 2007. In granting defendants’ motion, the district court found that the TDCJ

had changed its policy with respect to prayer oil in order to accommodate NOI

requirements. The modesty issue, at least insofar as Jones was concerned, has

been resolved by placing Jones in a unit that provided a more suitable shower

arrangement. Jones appealed on October 20, 2008 alleging eleven grounds of

error.

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II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same

standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th

Cir. 2006). Our inquiry “is limited to the summary judgment record before the

trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992). We

must view the evidence in the light most favorable to the non-moving party,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and

the movant has the burden of showing this court that summary judgment is

appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary
No. 08-20697

 Jones does not advance his Fourteenth Amendment claims on appeal. Instead, Jones 2

repeatedly asserts that his claims arise “under the RLUIPA, FIRST, and FOURTEENTH

Amendments” at the beginning of each section with no additional argument. He does not

make any arguments related to Equal Protection under the Fourteenth Amendment or any

arguments that can be liberally construed as reaching that point. Accordingly, the Fourteenth

Amendment arguments have been waived. Longoria, 507 F.3d at 901. Even if he had not

waived these arguments, however, Jones has failed to advance any evidence at all suggesting

NOI adherents were subjected to discrimination relative to other faiths on any of his eleven

claims of error.

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judgment is appropriate where the competent summary judgment evidence

demonstrates that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see

Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable jury

could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986). However, to avoid summary judgment, the nonmovant must go beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448

F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment on

any grounds supported by the record and presented to the court below.”

Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). 

III. DISCUSSION

On appeal, Jones has reduced his thirty-three allegations to eleven alleged

errors relating to his claims under RLUIPA and the First Amendment. These 2

eleven alleged errors can be grouped into five categories: 1) issues regarding the

“theft” of Jones’s videotapes; 2) issues regarding the generic nature of TDCJ

Muslim services; 3) issues regarding TDCJ’s recognition of religious holidays; 4)

issues regarding TDCJ’s alternative diet offerings; and 5) the propriety of the

district court’s order refusing Jones’s request to amend his complaint to add a

request for monetary relief. We address each category in turn.
No. 08-20697

 Jones’s arguments regarding the religious videotapes tends to conflate the various

3

incidents he alleges. Nonetheless, a careful review of the record demonstrates that the district

court’s characterization of the videotape issue as involving three discrete incidents of alleged

theft is correct.

5

A. Jones’s “Religious Videotapes”

Jones contends that the defendants engaged in a systematic conspiracy to

deny NOI adherents access to videotaped religious lectures necessary to the

practice of their faith. More specifically, Jones alleges that the defendants

conspired on three separate occasions to steal religious videotapes that he 3

claims were his property. We agree with the district court that–however these

incidents are construed–Jones has failed to raise a genuine issue of material fact

as to whether the denial of these videotapes constitutes a substantial burden on

Jones’s religious exercise and whether TDCJ policies governing inmate access

to videotapes are logically related to legitimate penological interests.

RLUIPA provides that no government shall impose a substantial burden

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

if the burden results from a rule of general applicability, unless the government

demonstrates that imposition of the burden on that person 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). To

fall under RLUIPA, however, an inmate must first demonstrate that a

government practice imposes a “substantial burden” on his religious exercise.

This inquiry requires this court to determine (1) whether the burdened activity

was in fact a “religious exercise” and, if so, (2) whether the burden was

“substantial.” Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004). A

government action or regulation only creates a “substantial burden” on a

religious exercise if it truly pressures an adherent to significantly modify his

religious behavior and significantly violate his religious beliefs. Id. at 570.
No. 08-20697

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“[T]he effect of a government action or regulation is significant when it either (1)

influences the adherent to act in a way that violates his religious beliefs, or (2)

forces the adherent to choose between, on the one hand, enjoying some generally

available, nontrivial benefit, and, on the other hand, following his religious

beliefs.” Id.

Jones has not raised an issue of material fact as to the substantial burden

prong of RLUIPA analysis on any of his videotape-related claims. Other than

a self-serving affidavit claiming he regards viewing the videotapes as a

mandatory part of his NOI faith, Jones has provided no evidence that TDCJ

content restrictions and screening processes “truly [pressure] [him] to

significantly modify his religious behavior and significantly violates his religious

beliefs.” See Adkins, 393 F.3d at 569-70. As such, we need not address in detail

each of the three instances of alleged misconduct or whether the videotapes were

“stolen” as Jones repeatedly alleges. Even assuming all of Jones’s allegations

against the TDCJ were true and were supported by sufficient evidence, he

simply cannot make out a genuine issue of fact as to substantial burden under

Adkins.

Similarly, Jones failed to create a genuine issue of material fact as to

whether the TDCJ’s video review policy and rules against inmate possession of

videotapes violates the First Amendment. When a prison regulation impinges

on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interest. Scott v. Miss. Dep't of Corrections, 961

F.2d 77, 80 (5th Cir. 1992). The TDCJ’s stated justification for reviewing

religious materials is to intercept, among other things, videotapes containing

dangerous or racist messages. The TDCJ’s stated justification for prohibiting

inmate possession (as opposed to viewing) of videotapes in general is that such

tapes can be used as weapons. These security concerns clearly constitute

legitimate government interests logically related to both policies. Jones has
No. 08-20697

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failed to produce any evidence suggesting that these justifications are not the

true motivation for the TDCJ policies. Accordingly, Jones’s claims with respect

to the videotapes also fail under the First Amendment. 

B. TDCJ’s Generic Muslim Services

Jones next asserts that the TDCJ violated his religious liberties by: 1)

refusing to allow him and other NOI adherents to undertake certain rituals at

the weekly Muslim service; 2) refusing to permit Jones or other NOI adherents

to give sermons and lectures at all Muslim services; 3) refusing to authorize NOI

adherents to form religious study groups; and 4) refusing to allow Jones and

other NOI adherents to pray separately at the weekly Muslim services. None of

these claims have merit. Instead, we again agree with the district court that

Jones cannot make out a genuine issue of material fact as to any of his

allegations regarding the TDCJ’s religious services policy.

First, Jones cannot make out a RLUIPA claim because the defendants’

summary judgment evidence conclusively establishes that the structure of TDCJ

Muslim services constitutes the least restrictive means to advance a compelling

government interest, and Jones has no competent contrary evidence.

Specifically, the defendants clearly demonstrate, as noted by the district court,

that the generic structure of TDCJ Muslim services maximizes inmates’ religious

liberty while addressing compelling government interests including security

problems, staffing limitations, and space constraints. 

Similarly, Jones cannot make out a First Amendment claim. We defer to

the policy decisions of prison regulators where limitations on religious liberties

are reasonably related to legitimate penological interests. Baranowski v. Hart,

486 F.3d 112, 120 (5th Cir. 2007). Under Baranowski, we ask: (1) whether there

is a rational relationship between the regulation and the legitimate government

interest advanced; (2) whether the inmates have available alternative means of

exercising the right; (3) the impact of the accommodation on prison staff, other
No. 08-20697

 Jones also cites Exhibits 81-91 in support of his religious holiday argument. Exhibits 4

81-84 make no mention of either holiday and appear to be internet homilies issued by the NOI

leadership. Jones’s Exhibits then skip from Exhibit 84 to Exhibit 108. No Exhibit 85, 86, 87,

88, 89, 90, or 91 appears in the record. 

8

inmates, and the allocation of prison resources generally; and (4) whether there

are “ready alternatives” to the regulation. Id. Here, the defendants have

provided ample evidence demonstrating that its decision to refuse specialized

services for NOI Muslims was based upon both security concerns and resource

limitations. NOI inmates may still exercise their religious rights through the

weekly group worship meetings. Moreover, as noted with respect to RLUIPA,

TDCJ’s plan represents the least restrictive means of advancing multiple

compelling government interests. As such, Jones cannot make out a First

Amendment claim under Baranowski with the evidence he advanced in support

of his claim below. 

C. NOI Religious Holidays

Jones contends that the TDCJ has refused to acknowledge two NOI

observance days. As the district court notes, plaintiff’s own exhibits show that

his request has been referred to the Religious Practice Committee (“RPC”) for

discussion and approval. Jones did not submit evidence showing that his

request was denied. Jones did not submit evidence showing that he filed

additional grievances to determine the status of the RPC’s review. Jones did not

submit evidence that the TDCJ interferes with his observance of the NOI

holidays. In fact, Jones did not provide any evidence that observing these

“holidays” constitutes a religious exercise before filing his appellate brief and

then only did so by conclusory allegation and a non-specific citation to Jet

Magazine. Without more, Jones simply cannot raise a genuine issue of material 4

fact as to whether the TDCJ has infringed on his Free Exercise rights or as to
No. 08-20697

9

whether the TDCJ has created a substantial burden on his ability to practice his

faith.

D. NOI Dietary Requirements

Jones raises one claim with respect to the TDCJ pork-free menu option for

NOI adherents. He asserts that, while the TDCJ does in fact provide alternative

options, his religious beliefs prohibit the consumption of any of the alternatives

provided. Instead, he claims his religious beliefs require the TDCJ to serve him

nothing but fresh fruits, vegetables, chicken, and fish. Yet Jones has provided

absolutely no evidence that the alternative foods offered to NOI inmates are

prohibited by his faith. Instead, he simply contends that he personally believes

that he may not eat those foods. This lack of evidence, alone, is sufficient for us

to find that he has not created a genuine issue of material fact. Jones’s claims

also fail because requiring the TDCJ to specially accommodate NOI adherents

and every one of the other 140 religious sects in the TDCJ would create undue

burdens on prison administration and the TDCJ policy represents the least

restrictive means available for handling religious dietary issues. See

Baranowski, 486 F.3d at 122 (upholding TDCJ’s refusal to provide kosher meals

to Jewish inmates under First Amendment and RLUIPA). 

E. Jones’s Motion to Amend

Finally, Jones appeals the district courts denial of his motion to amend his

complaint to add a request for monetary damages in connection with his

RLUIPA claim. As our decision today affirms summary judgment on all of

Jones’s thirty-three claims, we need not reach this issue.

IV. CONCLUSION

After reviewing the record, we agree with the district court that Jones

simply has not raised a genuine issue of material fact on any of the claims he has

appealed to this court. Accordingly, the district court’s judgment is AFFIRMED.

Additionally, Jones’s motion for appointment of counsel is DENIED.
No. 08-20697

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