Fernando Nunez, Jr. v. Tom W. Wolf

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 22-3076
________________
FERNANDO NUNEZ, JR.,
Appellant
v.
TOM W. WOLF; GEORGE LITTLE; TABB BICKELL,
Regional Secretary of DOC
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-15-cv-01573)
District Judge: Honorable Jennifer P. Wilson
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Argued on November 1, 2023
Before: KRAUSE, FREEMAN, and MONTGOMERY-
REEVES, Circuit Judges
(Opinion filed: August 27, 2024)

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Ellen Crisham-Pellegrini
Dino L. LaVerghetta [ARGUED]
Cody L. Reaves
Gordon D. Todd
Sidley Austin
1501 K Street NW
Washington, DC 20005
Counsel for Appellant
Abby N. Trovinger [ARGUED]
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellees
________________
OPINION OF THE COURT
________________
KRAUSE, Circuit Judge.
The freedom to exercise one’s religion, a right
enshrined in the very first amendment to our Constitution,
extends to all citizens of this nation, whether they are at liberty
or behind bars. Cruz v. Beto, 405 U.S. 319 (1972) (per curiam).
Building on that constitutional safeguard, the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§§ 2000cc et seq., provides heightened protection to inmates to

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ensure that they are not denied religious freedoms without a
compelling reason. Here, Appellant Fernando Nunez, Jr.
brought suit against a number of officials associated with the
Pennsylvania Department of Corrections (the “DOC”) and
claimed that the Pennsylvania state prisons in which he has
been housed violated RLUIPA by denying him religious
accommodations to consummate his marriage and have
ongoing conjugal visits, to engage in congregate prayer with
visitors, and to be circumcised. Concluding that the DOC had
established compelling interests to deny those requests and that
there were no less restrictive alternatives available, the District
Court granted summary judgment in its favor. We conclude,
however, that the District Court did not put the DOC to its
burden, so we will vacate that judgment and remand for the
DOC to have the opportunity to supplement the record in view
of this opinion.
I. Background
Since his incarceration and conversion to Islam in the
early 2000s, Nunez has been a “devout and practicing
Muslim,” JA 5, who endeavors “to live by the principles of his
faith,” JA 41. In 2013, Nunez married his now-spouse, Jenny
E. Nunez, but although DOC policies allowed him to lawfully
marry while incarcerated, they did not allow him to
consummate his marriage in accordance with his religious
beliefs. They also prevented him from engaging in group
prayer with visitors or becoming circumcised—other
important tenets of his faith. So, two years after his marriage,
while housed at SCI-Huntingdon, Nunez requested a series of
religious accommodations.

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A. Nunez’s Requested Accommodations
Three of those accommodations are the subjects of this
appeal. First, Nunez sought a conjugal visit to consummate his
marriage, as well as ongoing conjugal visits to satisfy his
religious obligations as a husband. To consummate his
marriage, Nunez would need to “lead a congregational prayer
with his spouse” and then “spend three consecutive nights with
[her].” JA 42. And to fulfill his continuing spousal duties,
Nunez asked for “weekend conjugal visits (Saturday and
Sunday) twice a month.” JA 45. These visits, he proposed,
would involve “touching, caressing, kissing, fondling, and
sexual intercourse” and, for obvious reasons, would need to
“take place privately, behind closed doors.” JA 42.
Second, Nunez requested an accommodation to engage
in congregate prayer with his family during contact visits. That
prayer would have fourteen steps and would involve standing,
bowing, “rising from bowing, [and] prostrating on all seven
limbs.” JA 49. It could take place either in a private room, or
“in a secured area of the visiting room where non-contact or
legal visits are held when those rooms are unoccupied and
available.” JA 50.
Third, Nunez sought a religious circumcision.
According to his complaint, circumcision is one of five
mandatory “characteristics of fitrah,” JA 53, that Muslims
must practice, and “anyone who converts to [Islam] is
commanded to get circumcised as early as possible,” JA 54.
Because Nunez remains uncircumcised, he lives in “constant
fear that his acts of worship . . . will not be accepted.” JA 322.

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While it remains unclear whether Nunez would be willing to
cover the costs of the surgery itself, he did offer to sign an
“informed consent waiver” to assume the expense of any post-
surgical complications. JA 56.
B. The DOC Denies Accommodation
The DOC rejected all of Nunez’s proposed
accommodations, consistent with its pre-existing policies.
In denying his request for conjugal visits, the DOC cited
safety, security, and health concerns. It pointed out that its
existing policies permitted, at most, a brief kiss after marriage,
as well as a kiss and short embrace during visitation. And
while it acknowledged that some states have developed
conjugal visit programs, it noted that most states, including
Pennsylvania, have not.
Nunez’s request for congregate prayer with visitors was
also denied. The DOC expressed concern that group prayer in
the visiting room could create safety issues and distract other
inmates visiting with loved ones. It also pointed to resource
constraints, in that it lacked the capacity to provide all inmates
with private visiting rooms for group worship. As an
alternative, it suggested that Nunez and his visitors participate
in “a seated, quiet prayer” that does not distract others. JA 248.
Nunez’s request for a circumcision fared no better. The
DOC denied this request because the procedure is deemed
“elective” and “not medically necessary” under its religious
activities and health care policies. JA 263. And, again, the

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DOC pointed to resource constraints—in this instance the
burden of “assum[ing] the costs of elective surgery for all
inmates, including the medical expenses which it would
incur if medical complications ensued following elective
surgery.” Id.
C. Nunez Files Suit
In 2015, Nunez filed a complaint in the Middle District
of Pennsylvania against several DOC employees and state
officials, claiming they violated his civil rights under 42 U.S.C.
§ 1983 and RLUIPA. Nunez amended his complaint in 2019,
voluntarily dismissing two prison officials from the action, and
a third, Governor Tom Wolf, was dismissed by the District
Court. Following discovery, the remaining two DOC
defendants, John Wetzel, Secretary of the DOC, and Tabb
Bickell, the DOC’s Regional Deputy Secretary, moved for
summary judgment.1
D. The District Court’s Ruling on Summary
Judgment
The District Court granted summary judgment to the
DOC defendants on all counts.
1 In May 2022, the District Court replaced DOC defendant
John Wetzel with George Little, the current Secretary of the
DOC, with respect to the aspects of the complaint concerning
prospective and injunctive relief.

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Regarding conjugal visits, the District Court concluded
that Nunez failed to disprove that the DOC’s ban was the least
restrictive means of furthering the prison’s compelling
interests in safety, security, health, and resource allocation.2
To reach this conclusion, the District Court relied on an
affidavit from the DOC’s Chief of Security, Major Scott
Woodring, which asserted—albeit without discussion of
existing or potential inspection procedures—that visiting
rooms are the primary avenue to introduce contraband into
Pennsylvania prisons and that, per department policy, all
contact visits need to take place under official supervision. The
DOC offered no data concerning the costs, personnel, or
logistical burdens involved in establishing a conjugal visit
program. Nonetheless, the District Court hypothesized that
such a program would be costly. And although the Court
acknowledged that other states had successfully developed
such programs, it did not inquire into the feasibility of the
DOC’s doing so because it concluded that “application of the
compelling interest standard is context-specific and deferential
2 The prison’s compelling interests and related justifications
are primarily sourced from two affidavits it prepared for
summary judgment: one from Major Scott Woodring, the
DOC’s Chief of Security, and one from Dr. Arlene Seid, the
Chief of Clinical Services at the DOC. With regard to Nunez’s
conjugal visits claim, the District Court focused primarily on
the interests asserted in Woodring’s affidavit, including
security and resource constraints. Below, we address those
interests, as well as the health and safety interests raised in Dr.
Seid’s affidavit.

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to the prison authorities’ decisions about how to run their
institution.”3 JA 11-12.
In denying Nunez’s claim regarding his request for
congregate prayer with visitors, the District Court likewise
deferred to the general safety and security concerns asserted in
Woodring’s affidavit. Specifically, it found that Nunez “failed
to refute” the DOC’s assertion that visitors are the main
channel of contraband into the prison, or to disprove that the
DOC’s existing policy allowing quiet, seated prayer in the
public visiting room was the least restrictive means to further
its interests.4 JA 13-14.
Finally, as to Nunez’s religious circumcision claim, the
District Court reasoned that the DOC is “not precluding
[Nunez] from fulfilling this religious obligation when it is
possible for him to do so, but is merely asserting that it [is] not
possible for him to have the procedure while he is incarcerated
and at the public’s expense.” JA 15-16. Because it agreed with
the DOC that it would be unreasonable to allocate taxpayer
3 The District Court also stated that Nunez did not challenge
whether the DOC’s interests in safety, security, and health
were, in fact, compelling, and that the DOC did not challenge
whether Nunez established a prima facie claim under RLUIPA.
Because the record reflects otherwise, we will address those
arguments below.
4 The District Court was also mistaken in stating that the DOC
defendants did not challenge whether Nunez established a
prima facie case for this claim under RLUIPA. In any event,
the Court ultimately resolved the claim in their favor.

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money to elective surgeries for incarcerated persons, the Court
held that the DOC’s policy prohibition of such surgeries was
the least restrictive means of avoiding that expense. This
appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction under 28 U.S.C. §
1291. We exercise plenary review over a grant of summary
judgment, Rush v. City of Philadelphia, 78 F.4th 610, 619 (3d
Cir. 2023), viewing the facts, and all reasonable inferences
drawn from them, in the light most favorable to the non-
movant, Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121, 125
(3d Cir. 2022). Summary judgment is only appropriate when
“there is no genuine dispute as to any material fact and [] the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
III. Discussion
On appeal, Nunez contends the District Court erred
when it granted summary judgment to the DOC on each of his
RLUIPA claims. We agree the DOC failed to demonstrate that
its denial of Nunez’s requests furthered its asserted compelling
interests, or that its outright denials were the least restrictive
means of doing so. We proceed by outlining RLUIPA’s strict
scrutiny test, applying that test to each of Nunez’s claims, and
then providing guidance for remand as to the showing needed
to satisfy RLUIPA’s exacting standard.

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A. RLUIPA’s Strict Scrutiny Standard
RLUIPA, as the Supreme Court has described it, “is the
latest of long-running congressional efforts to accord religious
exercise heightened protection from government-imposed
burdens, consistent with [the Court’s] precedents.” Cutter v.
Wilkinson, 544 U.S. 709, 714 (2005). Because “[t]he whole
point of . . . RLUIPA is to make exceptions for those sincerely
seeking to exercise religion,” Yellowbear v. Lampert, 741 F.3d
48, 62 (10th Cir. 2014) (Gorsuch, J.) (emphasis omitted),
Congress defined “religious exercise” expansively to include
“any exercise of religion, whether or not compelled by, or
central to, a system of religious belief,” 42 U.S.C. § 2000cc-
5(7)(A), and stipulated that the statute “shall be construed in
favor of a broad protection of religious exercise, to the
maximum extent permitted by . . . the Constitution,” id. §
2000cc-3(g).
RLUIPA thus affords inmates even “greater protection”
than that provided by the First Amendment. Holt v. Hobbs,
574 U.S. 352, 357 (2015). Under the latter, a prison regulation
that substantially burdens religious exercise is subject to
intermediate scrutiny and thus must be “reasonably related to
legitimate penological interests,” Turner v. Safley, 482 U.S. 79,
89 (1987); under RLUIPA, however, that regulation is subject
to strict scrutiny, requiring the government to prove that it “is
the least restrictive means of furthering [a] compelling
governmental interest,” 42 U.S.C. § 2000cc-1(a)(2). As
explained below, that burden is a heavy one and carries unique
implications in the prison context for both the interests

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recognized as compelling and the acceptable means to
accomplish them.
1. The Government’s Burden is a Heavy
One
Congress made explicit in RLUIPA that, while the
plaintiff “shall bear the burden of persuasion on whether the
[challenged policy] substantially burdens the plaintiff’s
exercise of religion,” the government bears the burden in all
other respects. Id. § 2000cc-2(b). Thus, in practice, once the
plaintiff shows that his religious exercise has been
substantially burdened, “the burden flips and the government
must demonstrate that the imposition of the burden on that
person is the least restrictive means of furthering a compelling
governmental interest.” Ramirez v. Collier, 595 U.S. 411, 425
(2022) (cleaned up).
As for the government’s burden, “[w]e do not read
RLUIPA to elevate accommodation of religious observances
over an institution’s need to maintain order and safety,” Cutter,
544 U.S. at 722, and it remains the case that RLUIPA “affords
prison officials ample ability to maintain security,” Holt, 574
U.S. at 369; see Washington v. Klem, 497 F.3d 272, 283 (3d
Cir. 2007) (“Interests of safety and health play a particularly
important role in the institutional setting.”). Still, the
government’s “mere say-so” is not enough to carry its burden,
Holt, 574 U.S. at 369, and, where, as here, the government is
required to demonstrate that its policy furthers a “compelling
governmental interest” and is the “least restrictive means” to
further that interest, Cutter, 544 U.S. at 717, the meaningful

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deference that traditionally attends prison’s policy decisions is
not unlimited.
While the prison need not await the occurrence of a
substantial disruption or other harm, it still bears the burden of
demonstrating through “experience,” or other sources, that “the
accommodation brings with it genuine [] problems that can’t
be addressed at a reasonable price.” Yellowbear, 741 F.3d at
58. Thus, a prison cannot rely on bare “supposition,” Mast v.
Fillmore County, 141 S. Ct. 2430 (Mem), 2433 (2021)
(Gorsuch, J., concurring), “conclusory” statements, or
“speculation,” Ramirez, 595 U.S. at 429-30, to support its
policy choices. Instead, as in the First Amendment context,
where a “rigorous and fact-intensive” inquiry is required, Bruni
v. City of Pittsburgh, 941 F.3d 73, 89 (3d Cir. 2019) (citation
omitted), RLUIPA demands that the government “prove with
evidence that its rules are narrowly tailored to advance a
compelling state interest with respect to the specific persons it
seeks to regulate,” Mast, 141 S. Ct. at 2433 (Gorsuch, J.
concurring).
2. The Compelling Interest Must Be
Examined Case-By-Case
To satisfy RLUIPA’s compelling interest prong, the
government may not rest on only “broadly formulated
[institutional] interests,” Ramirez, 595 U.S. at 427 (quoting
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726
(2014)); it instead must identify its policy objectives with
respect to “the particular claimant whose sincere exercise of

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religion is being substantially burdened,”5 Holt, 574 U.S. at
363 (quoting Burwell, 573 U.S. at 726). But at the same time
it requires courts to evaluate the interests proffered on a “case-
by-case” basis, Ramirez, 595 U.S. at 430, RLUIPA must be
applied “consistent with consideration of costs and limited
resources,” Cutter, 544 U.S. at 723 (citation omitted). Thus,
although there is arguably some tension between requiring that
courts take RLUIPA cases “one at a time” considering only
“the particular claimant,” Ramirez, 595 U.S. at 432-33
(quoting Holt, 574 U.S. at 363), and that they account for
institutional burdens deserving of deference, we reject the
notion that courts may not consider the cumulative effect that
multiple accommodations would have on prison resources. To
the contrary, as we read Ramirez, it remains the case that
compelling interests can exist in “cost control or program
administration,” Holt, 574 U.S. at 368, and that RLUIPA does
5 See, e.g., Washington, 497 F.3d at 283 (“[T]he mere assertion
of security or health reasons is not, by itself, enough . . . . [T]he
particular policy must further this interest.”); Fox v.
Washington, 71 F.4th 533, 537 (6th Cir. 2023) (“[S]peculation
cannot carry the Department’s burden because RLUIPA
requires a case-by-case inquiry.”); Tucker v. Collier, 906 F.3d
295, 301 (5th Cir. 2018) (“For both prongs of its strict scrutiny
test, RLUIPA mandates an individualized inquiry.”);
Rodriguez v. Burnside, 38 F.4th 1324, 1332-33 (11th Cir.
2022) (“[A] prison may also need to justify its denial of
specific exemptions to particular religious claimants under
RLUIPA’s focused inquiry.” (citations omitted)); Smith v.
Owens, 13 F.4th 1319, 1328-29 (11th Cir. 2021) (same).

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not require prisons “to impose unjustified burdens on other
institutionalized persons[] or jeopardize the effective
functioning of an institution,” Cutter, 544 U.S. at 726; see also
Holt, 574 U.S. at 369 (“[C]ourts should not blind themselves
to the fact that the [RLUIPA] analysis is conducted in the
prison setting”).
Together, these cases teach that a prison’s bare interest
in “avoiding other and additional accommodations—a slippery
slope—is usually insufficient,” Ackerman v. Washington, 16
F.4th 170, 187-88 (6th Cir. 2021), as “is a bureaucratic desire
to follow the prison system’s rules” or “[s]aving a few dollars,”
Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015). Indeed,
RLUIPA expressly contemplates that its strictures may
“require a government to incur expense” to avoid burdening
religious exercise. 42 U.S.C. § 2000cc-3(c). But on the other
hand, “slippery-slope arguments might be persuasive when
there is a ‘compelling interest in cost control or program
administration,’” Ackerman, 16 F.4th at 188 (quoting Holt, 574
U.S. at 368)), so if the government can demonstrate—with
evidence, not just say-so—that an accommodation would be
too costly on its own or would snowball in a way that would
meaningfully impede prison functions, it may still satisfy the
compelling interest test.
3. Least Restrictive Means
To satisfy RLUIPA’s “least restrictive means” test, a
prison must “sho[w] that it lacks other means of achieving its
desired goal without imposing a substantial burden on the
exercise of religion by the objecting part[y].” Holt, 574 U.S.

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at 364-65 (quoting Burwell, 573 U.S. at 728). This “standard
is exceptionally demanding,” Burwell, 573 U.S. at 728, and
requires the government, proactively, to identify and rebut less
restrictive policy alternatives,6 Ramirez, 595 U.S. at 432
6 Before Ramirez, some courts interpreted Holt to suggest that
prisons need only address the particular alternatives raised by
the inmate. See Faver v. Clarke, 24 F.4th 954, 960 (4th Cir.
2022) (requiring a prison to “demonstrate that it considered and
rejected the alternatives brought to [its] attention” (internal
quotation marks and citation omitted)); Williams v. Annucci,
895 F.3d 180, 193 (2d Cir. 2018) (“To establish that its chosen
policy is the least restrictive means, the DOC must prove that
each of the inmate’s proffered alternatives is too burdensome.”
(citing Holt, 574 U.S. at 367)). While Ramirez does not
address the breadth of alternatives they must consider, it does
make clear that it is the prison’s burden to identify and consider
at least some less restrictive means and that to place that burden
on the inmate “gets things backward.” Ramirez, 595 U.S. at
432. Accord Al Saud v. Days, 50 F.4th 705, 713 (9th Cir. 2022)
(“[T]he government cannot disclaim its burden to show that its
policy is narrowly tailored by putting the onus on the plaintiff
. . . .”); Couch v. Jabe, 679 F.3d 197, 203 (4th Cir. 2012)
(“[T]he government, in the RLUIPA context, cannot meet its
burden to prove least restrictive means unless it demonstrates
that it has actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice.”
(citations omitted)); Jehovah v. Clarke, 798 F.3d 169, 177 (4th
Cir. 2015) (requiring a prison to explain why an absolute ban
is the least restrictive measure available).

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(noting that it is the government’s obligation to “rebut . . .
obvious alternatives” and demonstrate that there are no “less
restrictive means,” and that to conclude otherwise “gets things
backward” (citation omitted)). Cf. Bruni v. City of Pittsburgh,
824 F.3d 353, 367 (3d Cir. 2016) (holding that to satisfy its
“narrow-tailoring burden” in the First Amendment context, the
government had to “back up [its] assertion [that other
approaches have not worked] with evidence of past efforts and
the failures of those efforts . . . or otherwise demonstrate its
serious consideration of, and reasonable decision to forego,
alternative measures that would burden substantially less
[protected activity].”).
By way of example, if other institutions accommodate
a particular religious practice, “the prison must, at a minimum,
offer persuasive reasons why it believes that it must take a
different course.” Holt, 574 U.S. at 369; Washington, 497 F.3d
at 285 (“[T]he failure of a defendant to explain why another
institution with the same compelling interests was able to
accommodate the same religious practices may constitute a
failure to establish that the defendant was using the least
restrictive means.”). Similarly, if the prison accommodates
secular activities that implicate its allegedly “compelling
interests,” it must explain “why the same flexibility extended
to others cannot be extended to [the claimant].” Mast, 141 S.
Ct. 2430 at 2432 (Gorsuch, J., concurring); see Fulton v. City
of Philadelphia, 593 U.S. 522, 542 (2021) (The defendant
“offers no compelling reason why it has a particular interest in
denying an exception to [plaintiff] while making them
available to others.”); Burwell, 573 U.S. at 730 (noting that the

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government “itself has demonstrated that it has at its disposal
an approach that is less restrictive” because it “has already
established an accommodation” for others).7
The bottom line is: If a less restrictive means that
satisfies the government’s compelling interest is reasonably
available, the prison “must use it.” Holt, 574 U.S. at 365
(quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803,
815 (2000)).
B. RLUIPA’s Application to this Case
We next consider how the DOC’s policies in this case
fare under the standards now explicated. The DOC does not
challenge the sincerity of Nunez’s beliefs, and its policies
precluding the religious practices necessarily constitute a
7 See also Sabir v. Williams, 52 F.4th 51, 62-63 (2d Cir. 2023)
(“[I]t seems highly unlikely that [the policy restricting group
prayer] is narrowly tailored considering the fact that . . .
comparable secular activities—including inmate-led fitness
classes and card games—do not face similar restrictions.”);
Williams, 895 F.3d at 193 (“[U]nexplained disparate treatment
of ‘analogous nonreligious conduct’ leads us to suspect that a
narrower policy that burdens [plaintiffs] to a lesser degree is in
fact possible.”).

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substantial burden.8 The only issue on appeal, therefore, is
whether the government on this record has met its burden to
show, with more than its “bare say-so,” Yellowbear, 741 F.3d
at 59; cf. Bruni, 941 F.3d at 89, that its proffered interests in
denying Nunez’s accommodations are compelling and that the
DOC’s existing policies are the least restrictive means to
further those interests. While the DOC may very well be able
to make this showing with additional evidence, thus far, it has
not, as we discuss separately for each of the three
accommodations requested.
1. Conjugal Visits
According to the DOC, its denial of religiously required
conjugal visits does not violate RLUIPA because the DOC has
“several legitimate penological interests in preventing Nunez”
from engaging in sex acts with his wife, Answering Br. 23, and
“total prohibition is the least restrictive means” to fulfill those
interests, id. at 25. As a threshold matter, that misstates the
test, as RLUIPA raised the bar from “legitimate penological
interest” to a “compelling government interest.” And applying
the proper test, the DOC has not even attempted to put forward
8 The DOC disputes whether Nunez’s religious exercise is
substantially burdened with regard to his requests for conjugal
visits and congregate prayer. But the DOC’s denials have
forced him to “substantially modify his behavior and to violate
his beliefs,” so Nunez easily satisfies this requirement.
Washington, 497 F.3d at 280.

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actual evidence that denying Nunez’s request furthers its
interests, or that there are no less restrictive means available.
While it describes generally four interests that allegedly
cannot be satisfied by anything less than a total ban on
marriage consummation and ensuing conjugal visits, i.e.,
without exception for religious mandates, the DOC’s
arguments are not supported by more than its “bare say-so.”
Yellowbear, 741 F.3d at 59.
First, the DOC asserts that, as the body “responsible for
the safety and security of all inmates,” it has a duty to prevent
the introduction of contraband into prisons; passage of
contraband during intimacy would be “difficult to monitor”9;
and that Nunez, in particular, poses “a direct threat regarding
introduction of contraband into the Department.” Answering
Br. 23. No doubt, prisons have a compelling interest in
“staunch[ing] the flow of contraband into . . . [their] facilities,”
Holt, 574 U.S. at 363, but, here, the DOC failed to provide
more than conclusory assertions that Nunez himself presents a
particular risk. And it turns out, as the government conceded
at oral argument, the reason it failed to identify any disciplinary
infractions, warnings, or investigations of Nunez is that there
9 We recognize the potential for overlap between RLUIPA’s
“compelling interest” and “least restrictive means” tests, and
that an institution’s compelling interests for denying an
accommodation could be viewed, for example, as rebuttals to
an inmate’s proposed less restrictive alternatives. Here, and in
the discussions to follow, we analyze the DOC’s arguments in
the “compelling interest” context in which it raised them.

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are none. Oral Arg. Tr. 36:5-14. Nor does the DOC address
why granting Nunez’s request would “pose a meaningful
increase in security risk,” id. at 368, beyond that posed by other
types of contact visits that are permitted, or why Nunez’s
proposed alternatives, like “post[ing] extra security outside the
private visitation space,” or “regulat[ing] the types of clothing
and accessories that his partner could wear,” Opening Br. 50,
would be inadequate to mitigate any increased risk. Ramirez,
595 U.S. at 432 (requiring the government to consider
“obvious alternatives” if its compelling interest can be
“reasonably addressed by means short of banning all” religious
exercise).
The DOC’s second argument likewise falls short. The
DOC argues that “denying Nunez’s request for conjugal visits
serves the legitimate penological interest of preventing
sexually transmittable infections from entering and spreading
around the prison population.” Answering Br. 24. Applying
the proper “compelling interest” test, it is certainly the case that
inmate health “play[s] a particularly important role in the
institutional setting.” Washington, 497 F.3d at 283. But,
again, the DOC has failed to explain why the denial of an
accommodation for Nunez is the least restrictive means to
satisfy this interest or even how this interest is compelling with
regard to Nunez: At no point does it contend that Nunez
presents a particular risk for STDs or acknowledge his
assertion that he and his wife are STD free. Holt, 574 U.S. at
363 (prisons must “demonstrate that the compelling interest
test is satisfied through application of the challenged law to . . .
the particular claimant” (citation omitted)). Nor does it explain

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why it cannot provide Nunez and his spouse with protection or,
as Nunez himself proposes, require them to take “a medical
screening test as a pre-condition to being approved for a
conjugal visit.” JA 313-14; Washington, 497 F.3d at 284
(holding that RLUIPA requires a prison to “consider and reject
other means before it can conclude that the policy chosen is the
least restrictive means”).10
The DOC also raises safety concerns, asserting that it
“would have no way of ensuring that the sexual encounters
were consensual at any given moment, which could result in a
crime being committed at the prison.” Answering Br. 24-25.
10 Relatedly, the DOC objects that security officers overseeing
Nunez’s conjugal visits would be put in a “very precarious
situation” because all contact visits are required “to take place
under official supervision.” JA 237 (citing 37 Pa. Code §
93.3(h)(6)). On appeal, however, the DOC has not
meaningfully developed this argument or even discussed what
is required for “official supervision” under § 93.3(h)(6). On
remand, the DOC may be able to distinguish other visitation
polices that contemplate an individualized determination as to
the level of staffing and supervision required, but on this
record, it has not done so. For example, for deathbed visits, the
manner in which visits are carried out depends on “the degree
of supervision that is required for each individual inmate,” and,
while those visits take place in locations that “allow” for
“visual supervision” with officers within “close proximity for
intervention if necessary,” the officers are “typically not posted
inside [the] room.” ECF No. 55 at 1 (emphasis added).

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22
Yet again, the DOC has not tied this particular interest to
Nunez,11 nor has it addressed the less restrictive alternatives he
proposes,12 which include “regulat[ing] the types of clothing
and accessories that his partner could wear,” “post[ing] extra
11 Notwithstanding its assertion that Nunez himself presents a
particular risk, the DOC has not identified any disciplinary
infractions by Nunez while in prison, any circumstances of his
offense, or any other aspect of his background suggesting
Nunez poses a safety threat. It may attempt to remedy those
omissions on remand, but because it “fail[ed] to conduct an
individualized inquiry,” we are compelled to conclude, at this
point, that “the Department’s decision-making process was
deficient.” Fox, 71 F.4th at 539; Tucker, 906 F.3d at 302
(finding individual inmate’s security risk to be an important
consideration under RLUIPA).
12 Nunez offered additional alternatives in his opposition to the
DOC’s motion for summary judgment, including that his wife
undergoes heightened security checks prior to conjugal visits,
and that he and his spouse meet in non-contact booths, which
“are not monitored or recorded by surveillance cameras.” JA
311.

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23
security outside the private visitation space,” or “giv[ing] the
visitor [an] emergency alert device.”13 Opening Br. 50.
Finally, the DOC contends that if it granted Nunez’s
request for conjugal visits, “all inmates would expect the
same,” straining prison resources. Answering Br. 23-24. This
argument potentially has force, for without state legislation to
structure and fund a conjugal visit program, the cost of granting
13 Indeed, the DOC neglects to address a single one of Nunez’s
proposed alternatives and, without more, asks us to adopt a
Pennsylvania Commonwealth Court’s reasoning in an
unreported decision denying claimant conjugal visits, Thomas
v. Corbett, No. 458 M.D. 2013, 2019 WL 1312873 (Pa.
Commw. Ct. Mar. 22, 2019). We decline to do so. As Nunez
argues, the DOC defendants cannot satisfy their burden
“simply by pointing to a different case from a different court,
involving a different plaintiff with a different request.”
Opening Br. 50 (emphasis omitted). “For both prongs of its
strict scrutiny test, RLUIPA mandates an individualized
inquiry.” Tucker, 906 F.3d at 301 (emphasis added). And,
without taking a position on whether the defendants in Thomas
properly discharged their burden, it is apparent from the
decision that claimant’s specific request—conjugal visits with
multiple wives, arguably in violation of state law against
bigamy—and claimant’s criminal history informed the court’s
decision. Thomas, 2019 WL 1312873, at *3. Here, the DOC
does not discuss Nunez’s criminal history. See supra note 13.
Nor does it contend that permitting conjugal visits will always
result in crime.

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24
an onslaught of exceptions might well overwhelm prison
resources, and, as a matter of common sense given the
accommodation at issue, it is not hard to imagine “untold
numbers of . . . prisoners lined up waiting to join [Nunez].”
Yellowbear, 741 F.3d at 62. But imagination cannot stand in
for data, and when it comes to RLUIPA, we cannot rely on
“milquetoast musing that granting one request might lead to
others,” id., or the “classic rejoinder of bureaucrats throughout
history: If I make an exception for you, I’ll have to make one
for everybody, so no exceptions,” Holt, 574 U.S. at 368
(quoting Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 436 (2006)). Moreover, as Nunez
points out, other states, like California and New York, have
successfully developed conjugal visit programs. See Mast, 141
S. Ct. at 2433 (Gorsuch, J., concurring) (noting that other
jurisdictions’ policies may be instructive as to the least-
restrictive-means inquiry). Yet the DOC “does not even
attempt to quantify the costs it faces, let alone try to explain
how these costs impinge on prison budgets or administration.”
Yellowbear, 741 F.3d at 59; cf. Bruni, 941 F.3d at 89 (requiring
a “rigorous and fact-intensive inquiry” where protected rights
are “significant[ly] burden[ed]” (internal quotation marks
omitted)).
At bottom, the DOC has not made any evidentiary
showing to move this interest from “broadly formulated” and
“speculat[ive]” to compelling, for example, by even
identifying the number of married inmates or estimating the
costs of procuring additional space and staff. Ramirez, 595
U.S. at 427, 429-30; Washington, 497 F.3d at 283 (“[a]

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25
conclusory statement is not enough” to satisfy RLUIPA’s
compelling interest test). While RLUIPA does not require
prisons “to grant a particular religious exemption as soon as a
few other jurisdictions do so . . . [c]ourts must hold prisons to
their statutory burden” and cannot simply “assume a plausible,
less restrictive alternative would be ineffective.”14 Holt, 574
U.S. at 369 (emphasis added) (citing Playboy, 529 U.S. at 824).
2. Congregate Prayer with Visitors
The DOC contends that denying Nunez’s request for
congregate prayer furthers several compelling interests and
summarily concludes that its existing policy, which permits
Nunez to engage in quiet, seated prayer, is the least restrictive
alternative. Again, the DOC satisfies neither prong of strict
scrutiny.
14 The DOC separately argues that “[p]risoners have no
constitutional rights while incarcerated to contact or conjugal
visits.” Answering Br. 19. But Nunez does not claim a general
right to conjugal visits for all prisoners under the Constitution;
he claims a religious exception to the general ban on conjugal
visits for himself under RLUIPA. And the cases cited by the
DOC in support of its position do not deal with exceptions
under RLUIPA, and that statute “mandat[es] a more searching
standard of review of free exercise burdens than the standard
used in parallel constitutional claims.” Lovelace v. Lee, 472
F.3d 174, 186 (4th Cir. 2006) (internal quotation marks
omitted).

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26
The DOC points to two compelling interests, but neither
passes muster as applied to Nunez. First, it raises the familiar
specter of contraband, this time asserting that it would be
difficult for staff to see whether contraband is being exchanged
while Nunez and his visitors move together in prayer in a
private room. But, as already noted, the DOC fails to show that
Nunez himself poses a risk concerning contraband, and it
neglects to explain why Nunez’s alternative—spacing out him
and visitors during prayer—is inadequate. In addition, Nunez
points to several other DOC policies that “undermine the
compelling nature” of the DOC’s concerns about contraband,
Opening Br. 33 (emphasis omitted), including Section 1 of the
DOC’s Inmate Visiting Procedures Manual, which states that
“[i]f space permits, a children’s play area will be provided with
toys and books,” JA 195. Toys, books—and even children—
could feasibly be used to obscure the transfer of contraband,
regardless of whether the playroom is under supervision, and
the DOC does not explain why its playroom policy could not
apply just as well to congregate prayer.15
Next, the DOC points to resource constraints, arguing
that granting Nunez’s request will prompt such requests from
15 Cf. Mast, 141 S. Ct. at 2432 (Gorsuch, J., concurring) (“[T]he
[state] must offer a compelling explanation why the same
flexibility extended to others cannot be extended to [the
claimant].”); Washington, 497 F.3d at 283-84 (noting that an
“educational purposes” exception to a ten-book limitation
policy “undermine[d] the compelling nature of the ten-book
limitation.”).

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27
other inmates, “result[ing] in the need to supply a virtually
limitless number of [private] rooms at or near the same time,
and to staff each one with security personnel.” Answering Br.
17. As the DOC would ultimately be required to “choose
[which inmates] get[] to use” the available space, it argues this
could generate “feelings of resentment” between inmates that
could “manifest into assaults[.]” Id. at 6. The DOC also argues
that inmates would demand prayer-related “accoutrements,”
like prayer rugs or books, which would be “simply
unworkable.”16 Id. at 17.
Again, however, the DOC is obligated to consider
requests on a “case-by-case” basis, see Ramirez, 595 U.S. at
430, or show how denial of any such request serves a
compelling interest in “cost control or program
16 The DOC relatedly argues that permitting Nunez to pray in
the public visiting room will reduce available visiting times and
“convert[] a currently neutral meeting space” into a religious
one, “given the noise and distraction.” Answering Br. 16. But
Nunez does not seek to pray out in the open, in front of other
inmates and visitors. He seeks “a designated area for prayer in
each facility visiting room to allow the Plaintiff and his visitors
to congregate in prayer . . . [a]way from other inmates and their
visitors,” or, in the alternative, to “congregate in prayer . . . in
a secured area of the visiting room where non-contact or legal
visits are held when those rooms are unoccupied and
available.” JA 50 (emphasis added). We cannot accept the
DOC’s position without more information to support it,
especially when it is untethered to Nunez’s actual request.

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28
administration,” Holt, 574 U.S. at 368, and here, it has done
neither. To this point the record neither contains actual
evidence that granting Nunez’s individual request for
congregate prayer with visitors will strain prison resources,
Holt, 574 U.S. at 363, nor suggests that doing so would
reasonably “forecast” an onslaught of requests from similarly
situated inmates, Tinker, 393 U.S. at 514; Yellowbear, 741 F.3d
at 62.
The DOC also neglects to discuss why Nunez’s less
restrictive alternatives are deficient,17 instead arguing that
Nunez’s request is not feasible and that it has already “afforded
him a least restrictive alternative”—“pray[ing] with [visitors]
sitting down quietly in the visiting room.” Answering Br. 17.
That retort ignores the substance of Nunez’s request—for
Nunez, “[s]tanding in prayer is mandatory.” JA 318. Again,
the government’s “mere say-so,” Holt, 574 U.S. at 369, is
insufficient to meet RLUIPA’s “exceptionally demanding”
standard, Burwell, 573 U.S. at 728.
17 Nunez suggests, among other things, that he be permitted to
use non-contact visitation rooms to pray when they are empty,
and that the DOC “exercise its considerable latitude to
schedule Nunez’s visits in a way that is both conducive to good
prison administration and reduces the likelihood that feelings
of ‘resentment and hatred’ could arise and ‘manifest into
assaults.’” Opening Br. 39 (quoting JA 239-40).

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29
3. Circumcision
Turning to Nunez’s final accommodation request, a
religious circumcision, the DOC again has failed to carry its
burden as to compelling interests or narrow tailoring.18
According to the DOC, it is only authorized by the
Department’s Access to Health Care policy to pay for
“medically necessary” surgeries. Answering Br. 9. Prison
resources are finite, it contends, so the DOC must draw the line
somewhere—here, at “cosmetic surgery or services,” JA 264
(listing “Non-Provided Medical Services”), including
circumcision.19 But this argument fails to distinguish between
cosmetic circumcision and religious circumcision, and the
DOC has not shown how its interest in conserving resources is
advanced by denying Nunez a lone religious exemption from
the policy. It hardly seems a reasonable forecast that granting
18 The DOC does not dispute the sincerity of Nunez’s religious
beliefs or whether his religious exercise is substantially
burdened concerning his circumcision claim, so, it is not clear
why the DOC asserts that “[p]roper hygiene techniques allow
for clean genital areas without the need to be circumcised,”
Answering Br. 28, given the distinction between cleanliness
for purposes of personal hygiene and spiritual cleanliness.
19 The DOC provides no evidence to substantiate why it
categorizes a religious circumcision as “elective,” “cosmetic,”
or “medically unnecessary.” Its Access to Health Care policy
states that “[m]edical services not provided by the Department
include . . . cosmetic surgery or services.” JA 264. But the
policy does not define the terms “cosmetic” or “elective.”

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30
him an accommodation would prompt a multitude of other
prisoners to request religious circumcision. Cf. Tinker, 393
U.S. at 514. And as to Nunez, the DOC estimates that
circumcision would cost the prison $3,500 but does not explain
why this figure is cost prohibitive. Yellowbear, 741 F.3d at 59
(“[T]he prison does not even attempt . . . to explain how [the]
costs impinge on prison budgets or administration.”);
Ackerman, 16 F.4th at 187-88 (“[S]lippery-slope arguments
might be persuasive when there is a ‘compelling interest in cost
control or program administration.’” (quoting Holt, 574 U.S. at
368)).
The DOC also fails to rebut obvious alternatives to
reduce its cost, like offering to split costs with Nunez or
proposing a payment plan, see Ramirez, 595 U.S. at 432, or to
explain why Nunez’s offer “to assume any medical or liability
risks that may occur after the surgery” would not sufficiently

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31
mitigate expenses,20 Opening Br. 58; Mast, 141 S. Ct. at 2433
(Gorsuch, J., concurring) (“It is the government’s burden to
show [the] alternative won’t work; not the [plaintiff’s] to show
it will.”).
Nor did the DOC acknowledge, much less address,
Nunez’s evidence that at least one other jurisdiction has
permitted this procedure “without compromising [its] interests
in areas such as cost and health.”21 Opening Br. 63. While
20 As Nunez points out, the DOC’s Access to Health Care
policy indicates that inmates may receive other “elective”
surgeries, like elective termination of pregnancy. Opening Br.
10 n.2 (citing JA 270). That procedure “will be provided at the
inmate’s request” on the condition that the inmate covers costs,
including those resulting from “medical complications.” JA
270. The DOC does not explain why imposing that condition
here could not suffice to mitigate its cost concerns in Nunez’s
case. Cf. Mast, 141 S. Ct. at 2432 (Gorsuch, J., concurring)
(“[T]he [state] must offer a compelling explanation why the
same flexibility extended to others cannot be extended to [the
claimant].”). Though the policies might be distinguishable, it
is the prison’s burden to make that showing, and it has not yet
done so. Williams, 895 F.3d at 193 (“[U]nexplained disparate
treatment of analogous nonreligious conduct leads us to
suspect that a narrower policy that burdens [plaintiff] to a lesser
degree is in fact possible.” (internal quotation marks omitted)).
21 Inmate Gets First Circumcision in A Florida Prison,
Stanford Law School (Oct. 16, 2013), https://perma.cc/78SR-
LZB9.

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32
RLUIPA does not automatically require a prison to grant an
exception simply because others have done so, Holt, 574 U.S.
at 369, it must at least explain “why another institution with the
same compelling interests was able to accommodate the same
religious practices,”22 Washington, 497 F.3d at 285 (quoting
Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005)).
* * *
In sum, this record as it currently stands does not
support the District Court’s entry of summary judgment in the
DOC’s favor as it is lacking, for example, any reports,
statistics, testimony, or affidavits concerning the estimated cost
of granting Nunez’s accommodations or the amount of
additional supervision, staffing, or space those
accommodations would require; evidence concerning the
DOC’s ability—whether financial or otherwise—to procure
additional staffing or space; a basis to believe that Nunez
himself poses particular risks, such as his criminal history,
mental health status, or disciplinary record while incarcerated;
22 The DOC’s briefing makes a passing reference to compelling
interests in inmate health and safety. See Answering Br. 29
(“Appellees have several compelling health and safety interests
in denying Nunez’s request for a circumcision . . . .”). But the
DOC does not develop this argument, and to the extent it is
concerned about post-surgery complications, the crux of this
concern lies in DOC’s interest in controlling costs. Id. at 28
(“If Nunez were able to get the procedure done, he would then
come back into the prison with the potential for further
complications, which the Department would have to pay for.”).

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33
information concerning the number of similarly-situated
inmates who can be reasonably forecast to seek the same
exceptions; or data to justify denying an inmate religious
accommodations when the DOC accommodates secular
activities that implicate the same compelling interests, see
Mast, 141 S. Ct. 2432 (Gorsuch, J., concurring), or when
similarly-situated prisons have offered analogous
accommodations, see Holt, 574 U.S. at 369.
To be clear, we are not holding that the DOC’s denials
of Nunez’s requests cannot satisfy strict scrutiny if properly
supported on remand. What we do hold is that this
determination cannot be made on the current record and that,
as we have now clarified the nature of its burden, the DOC
should have the opportunity to supplement the record before
renewing its motion for summary judgment. We remand for
that purpose, and to avoid additional delay in the resolution of
this case, we encourage the District Court to expedite those
proceedings.
IV. Conclusion
For the foregoing reasons, we will vacate the District
Court’s grant of summary judgment and remand for further
proceedings consistent with this opinion.

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