Case: 18-20832     Document: 00515632461          Page: 1    Date Filed: 11/10/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                   No. 18-20832
                                                                     November 10, 2020
                                                                       Lyle W. Cayce
   Noel Turner,                                                             Clerk


                                                            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   opinion should not be published and is not precedent except under the limited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.
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                                          No. 18-20832


   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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                                     No. 18-20832


          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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                                     No. 18-20832


   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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                                           No. 18-20832


   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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                                            No. 18-20832


                                                 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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                                   No. 18-20832


   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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