Noel Turner v. TDCJ

United States Court of Appeals
for the Fifth Circuit

No. 18-20832

Noel Turner,

Plaintiff—Appellant,

versus

Texas Department of Criminal Justice,

Defendant—Appellee.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-297

Before Graves, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Texas Department of Criminal Justice inmate Noel Turner sued
TDCJ claiming that its policies, which at the time prevented him from always
wearing a religious beard and yarmulke, violated the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), the Equal Protection Clause, the
Due Process Clause, and the First Amendment. See 42 U.S.C. § 1983; 42

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 10, 2020

Lyle W. Cayce
Clerk
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No. 18-20832
2
U.S.C. § 2000cc-1(a). Turner seeks declaratory and injunctive relief, asking
that he always be allowed to grow and keep a four-inch beard and always be
allowed to wear a yarmulke.
TDCJ changed its policies during the pendency of his lawsuit. Inmates
can now wear religious beards and approved religious headgear at all times.
Because Turner has received what he wanted, we affirm the district court’s
denial of his discovery requests, affirm its grant of summary judgment in
TDCJ’s favor, and deny his motions for a preliminary injunction and his
request for costs.
1

I.
The affidavit of TDCJ Region I Director Tony O’Hare states that
prisoners can now wear four-inch religious beards and never have to shave
them for ID photographs. Although voluntary cessation of a challenged
activity does not ordinarily deprive a federal court of its power to determine
its legality, courts are justified in treating a voluntary governmental cessation
of potentially wrongful conduct with solicitude. Sossamon v. Lone Star State
of Tex., 560 F.3d 316, 325 (5th Cir. 2009). Such self-correction provides a
secure foundation for a dismissal based on mootness so long as it appears
genuine. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988).
Government actors in the exercise of their official duties are accorded a
presumption of good faith because they are public servants, and without
evidence to the contrary, courts assume that formally announced changes to
official policy are not mere litigation posturing. Sossamon, 560 F.3d at 325.

1
We review the summary judgment decision de novo and the denial of the discovery
requests for abuse of discretion. JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 936
F.3d 251, 255–56 (5th Cir. 2019); Milton v. Tex. Dep’t of Crim. Just., 707 F.3d 570, 572 (5th
Cir. 2013).
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Turner cannot controvert O’Hare’s affidavit and has put forth no
evidence to overcome the presumption of good faith to which government
actors are entitled. Since nothing suggests Turner will be subjected to the
same allegedly defective grooming policies again or that TDCJ will reverse
the new policies, Turner’s religious beard claim is moot.
II.
After Turner filed suit, TDCJ twice changed its religious headgear
policy to accommodate a Jewish inmate’s need to always wear a yarmulke.
Initially, inmates were always allowed to wear yarmulkes purchased (or
obtained via donation) from the commissary. But according to exhibits
attached to Turner’s motions for a preliminary injunction, TDCJ altered the
policy again in January 2020 to expressly allow inmates to wear yarmulkes
obtained from sources other than the commissary so long as they are white
with holes. Those with religious headgear that does not comply with the two
policy changes can still wear it in their cells and at religious programs, but it
must be carried, and not worn, to and from religious programs.
Turner cannot deny that the current policy allows him to always wear
a yarmulke. The question now becomes whether the policy’s mandate that
the yarmulke either be one that is white with holes or be one obtained from
the commissary, which an inmate can purchase for $1.25 or receive via
donation, imposes a substantial burden upon Turner’s ability to exercise his
religious beliefs.
RLUIPA provides that the government shall not impose a substantial
burden on the religious exercise of a person residing in or confined to an
institution unless the burden furthers a compelling governmental interest and
does so by the least restrictive means. 42 U.S.C. § 2000cc-1(a)(1)-(2)(2000).
A governmental action creates a substantial burden on a religious exercise if
it truly pressures the offender to significantly modify his religious behavior
and significantly violates his religious beliefs. Adkins v. Kaspar, 393 F.3d 559,
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570 (5th Cir. 2004). The effect of a government action is significant when it
either influences the adherent to act in a way that violates his religious beliefs
or forces the adherent to choose between enjoying a generally available, non-
trivial benefit, and following his religious beliefs. Id. The fact-specific
substantial burden inquiry demands a case-by-case analysis. Id. at 571.
RLUIPA does not give prisoners an unfettered right to religious
accommodations. See Cutter v. Wilkinson, 544 U.S. 709, 723–26 (2005). And
Turner does not suffer a substantial burden just because the prison fails to
provide all the religious accommodations that he desires. See Sefeldeen v.
Alameida, 238 F. App’x 204, 206 (9th Cir. 2007). For example, prisoners do
not have a right to the religious advisor of their choice. Blair-Bey v. Nix, 963
F.2d 162, 163–64 (8th Cir. 1992).
Similarly, Turner does not have a right to wear a particular yarmulke
of his choosing at all times. A satisfactory accommodation is the touchstone.
Davis v. Powell, 901 F. Supp. 2d 1196, 1232 (S.D. Cal. 2012). And
requirements that devotional accessories such as religious headgear be
obtained through the commissary or meet prescribed standards do not
impose a substantial burden upon an inmate’s exercise of religious belief
because such policies do not prohibit a religious practice but only limit an
inmate’s preferences. See Jihad v. Fabian, No. 09-CV-1604, 2011 WL
1641767, at *1, *8 (D. Minn. May 2, 2011) (finding no substantial burden
where inmates could only wear state-approved religious headgear purchased
from the commissary); Thomas v. Little, No. 07-1117-BRE/EGB, 2009 WL
1938973, at *5 (W.D. Tenn. July 6, 2009) (finding no substantial burden on
religious exercise where inmate was required to purchase prayer oils from
one supplier).
Turner claims that he cannot afford to purchase a yarmulke from the
commissary. But prisons are not required to provide inmates with devotional
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accessories. Cutter, 544 U.S. at 720 n.8. While Turner claims that he is
indigent, the district court pointed out that his inmate account balance
totaled $33.81 and $21.56 during the first two months the new religious
headgear policy was in effect. Turner does not contend that the purchase
requirement itself violates his religious beliefs or that the yarmulke sold in
the commissary is deficient. Moreover, the headgear policy as of January
2020 allows inmates to wear yarmulkes obtained from sources besides the
commissary, and Turner does not contend that yarmulkes that are white with
holes are inadequate for religious reasons.
Though the headgear policy might impose an expense or burden upon
prisoners, it neither pressures them to significantly modify their religious
beliefs nor violates them. Unlike, for example, requiring inmates to purchase
kosher food,
2
the purchase or donation of a yarmulke is neither a frequently
reoccurring expense nor a substantial burden on Turner’s religious practice.
Again, a reasonable accommodation that provides for the generic
tenets of an inmate’s faith is all that is necessary considering a prison’s
limited resources. See Chance v. Tex. Dep’t of Crim. Just., 730 F.3d 404, 415–
16 (5th Cir. 2013). Turner’s primary concern was being able to always cover
his head in public, and TDCJ policy now allows him to do so.

2
This claim differs from the claim in Moussazadeh v. Texas Department of Criminal
Justice, 703 F.3d 781 (5th Cir. 2012), where a prison policy forced inmates who wanted to
eat kosher food to purchase those meals. Id. at 786. In Moussazadeh, the question concerned
not the provision of religious items but the provision of food. There we found that denying
religiously appropriate food constituted a substantial burden on the exercise of religion
because it denied a generally available benefit. Id. at 793–94. Food, after all, is an essential
benefit given to every inmate regardless of religious belief. Id. Thus, the panel in
Moussazadeh addressed a different question and factual situation.
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III.
Turner first raised his claim that the headgear policy violates the
Equal Protection Clause in a response to TDCJ’s policy advisory and not in
the complaint or in a motion to amend the complaint. The district court did
not review the claim, most likely because it was raised in a response and was
never properly before the court. Similarly, Turner mentions a potential due
process claim for the first time on appeal. “Typically, we will not consider on
appeal matters not presented to the trial court. Rather, the litigant must raise
his argument[s] to such a degree that the district court may rule on [them].”
Harris Cnty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 326 (5th Cir.
1999) (internal citations omitted). Turner presents no reason for us to make
an exception to our usual practice.
Regardless, the Eleventh Amendment bars Turner from subjecting an
agency like TDCJ to suit in federal court absent a waiver. Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004); Aguilar v. Tex. Dep’t of Crim. Just., 160
F.3d 1052, 1054 (5th Cir. 1998). Section 1983 does not waive sovereign
immunity, and there is no indication that TDCJ has waived its immunity. See
Quern v. Jordan, 440 U.S. 332, 338 n.7 (1979). For the reasons above, we do
not consider Turner’s potential constitutional claims.
3

IV.
Turner also disputes the district court’s denial of his discovery
requests for documents that he contends would show that the challenged
policies remain in effect. A district court may exercise its “sound discretion”
with respect to discovery matters. King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994). Turner, as a party opposing summary judgment, must show that the
requested discovery would defeat TDCJ’s motion by creating a genuine issue

3
Turner agrees that the district court correctly dismissed his First Amendment
claims.
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of material fact. McFaul v. Valenzuela, 684 F.3d 564, 580 (5th Cir. 2012). He
may not rest his argument on vague assertions. Id.
The record suggests that Turner either possessed the documents he
wanted or had been alerted to their content when he filed his discovery
requests. The documents add nothing new as they either detail the updated
grooming policy or address a policy that was superseded by it. Most
importantly, nothing shows that Turner, or any other inmate, has been
required to shave or been barred from wearing a complying yarmulke since
TDCJ implemented its new policies. Because Turner failed to show that
these records would defeat TDCJ’s motion for summary judgment, the
district court did not abuse its discretion in denying them.
V.
We deny Turner’s request for costs. TDCJ’s policy changes alone do
not render him a prevailing party, and he has not prevailed on any of his
claims. 42 U.S.C. § 1988(b); Dearmore v. City of Garland, 519 F.3d 517, 521
(5th Cir. 2008).
AFFIRMED and motions for a preliminary injunction DENIED.
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