United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 7, 2004
______________________________ Charles R. Fulbruge III
Clerk
No. 03-10443
______________________________
WILLIAM R. FREEMAN, Individually and on behalf of all others
similarly situated; CARLOS PATTERSON, Class Representative
Individually and on behalf of all others similarly situated;
SIDNEY MONTGOMERY, Individually and on behalf of all others
similarly situated; ELISELLO DE LA’O, Individually and on behalf
of all others similarly situated; TRAVIS SMITH, Individually and
on behalf of all others similarly situated; MICHAEL CUEVAS,
Individually and on behalf of all others similarly situated;
RAY MASON, Individually and on behalf of all others similarly
situated; DAVID F. VELA, Individually and on behalf of all others
similarly situated; OSCAR FORTZ, Individually and on behalf of
all others similarly situated; DE’SHONA WILLIAMS, Individually
and on behalf of all others similarly situated,
Plaintiffs-Appellants,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; WAYNE SCOTT, Texas
Department of Criminal Justice Executive Director; GARY L.
JOHNSON, Texas Department of Criminal Justice, Institutional
Division Director; JERRY GROOM, Texas Department of Criminal
Justice, Former Administrator of Chaplaincy Program; T.J. MEDERT,
Texas Department of Criminal Justice, Institutional Division
Former Warden, Price Daniel Unit; RICHARD LOPEZ, Texas Department
of Criminal Justice, Institutional Division Administrator of
Chaplaincy Program; DAVID SWEETIN, Texas Department of Criminal
Justice, Institutional Division Former Assistant Warden, Price
Daniel Unit; WAYNE HORTON, Texas Department of Criminal Justice,
Institutional Division Former Chaplain, Price Daniel Unit; KEITH
PRICE, Texas Department of Criminal Justice, Institutional
Division Warden, Bill Clements Unit; ROY MURPHY, Texas Department
of Criminal Justice, Institutional Division Chaplain, Bill
Clements Unit; J.D. SMITH,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas,
___________________________________________________________________
Before JONES, MAGILL,* and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This lawsuit arises from a longstanding dispute regarding
the adequacy of Church of Christ religious services afforded Texas
prisoners. A class of disaffected inmates (“the class”) filed a
civil rights suit alleging that the Texas Department of Criminal
Justice (“TDCJ”) religious accommodations policy violates the Free
Exercise Clause of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment.1 Also, William R. Freeman, a
member of the class, alleges that he was transferred to another
unit in retaliation for exercising his First Amendment right to
free speech. The district court granted the defendants’ motion for
summary judgment and dismissed the suit. We AFFIRM.
*
Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
1
Surprisingly, the class chose not to bring a cause of action under
the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).
Under RLUIPA, TDCJ would have been required to show that its regulation: “(1) is
in furtherance of a compelling government interest; and (2) is the least
restrictive means of furthering that compelling government interest.” 42 U.S.C.
§ 2000cc-1(a)(2000). Hence, the RLUIPA standard poses a far greater challenge
than does Turner to prison regulations that impinge on inmates’ free exercise of
religion. See Turner v. Safley, 482 U.S. 78, 90, 107 S. Ct. 2254, 2262 (1987)
(explicitly rejecting the application of the “least restrictive means” standard
to inmates’ First Amendment free exercise claims); but see Madison v. Riter, 355
F.3d 310, 315 n.1 (4th Cir. 2003) (recognizing that “[t]he deferential test that
courts customarily apply to prison regulations, however, does not operate to
prevent legislative bodies from adopting a more searching standard”).
I. BACKGROUND
Freeman, a former law enforcement officer, began serving
a life sentence for murder in 1987 and was eventually placed in the
Price Daniel Unit in Snyder, Texas, where he joined the local 37th
Street Church of Christ.2 TDCJ assigned Chaplain Wayne Horton, a
Church of Christ member, to the Price Daniel Unit. However,
according to Freeman, Chaplain Horton’s teachings were “too
ecumenical” and departed from established Church of Christ
doctrine.
On February 3, 1998, Freeman filed an administrative
grievance criticizing Chaplain Horton’s performance of the Church
of Christ services and TDCJ’s decision to reduce the Church of
Christ’s two-hour service by one half-hour. In his grievance,
Freeman requested, inter alia, that the elders from the 37th Street
Church of Christ oversee the inmates’ religious services, that
Church of Christ members be permitted to conduct their services
free from Chaplain Horton’s interference, and that TDCJ restore
their worship time to two hours. TDCJ rejected the grievance and
Freeman’s administrative appeal.
Freeman later circulated a statement to fellow inmates
and non-incarcerated Church of Christ leaders in which he denounced
Chaplain Horton as having “departed from the faith” and requested
that Chaplain Horton be removed from his leadership position over
2
In 1997, Freeman was transferred to the Neal Unit, but was returned
to the Price Daniel Unit in 1998, apparently at the behest of a Texas state
legislator.
Church of Christ members in the prison. In his statement, Freeman
announced that he, and other inmates, were withdrawing “spiritual
fellowship” from Chaplain Horton.3
Freeman asked for, and received, permission to read the
statement during a Church of Christ service in the prison.4
Sometime after Freeman began reading the statement, Chaplain Horton
ordered him to stop. Freeman complied and was escorted out of the
chapel, followed by approximately 50 inmates. The incident was
written up as a major disciplinary infraction for causing a
disturbance, but was later reduced to a minor disciplinary case.
Shortly afterward, Freeman was transferred to the high-security
Allred Unit.
Freeman and Carlos Patterson filed this class action suit
on behalf of themselves and others against TDCJ.5 A class was
certified, comprising TDCJ inmates who subscribe to the Church of
Christ faith. In the complaint, the class alleges that TDCJ’s
failure to provide them an adequate opportunity to practice the
Church of Christ faith violates the Free Exercise and Equal
Protection clauses of the Constitution. The class seeks, inter
alia, a permanent injunction requiring TDCJ to provide additional
3
According to the class’s complaint, “‘[w]ithdrawing fellowship’ is
making a congregational denunciation of an individual’s transgression after
having gone first one-on-one in an attempt to resolve the issue[.]” The class
draws this biblical explanation from Matthew 18:15-17.
4
The record is uncertain whether Chaplain Horton was aware of the
statement’s content when he granted Freeman permission to read the letter.
5
Patterson was designated as the class representative. TDCJ is not
challenging the propriety of the class.
religious accommodations.6 Additionally, Freeman filed a personal
42 U.S.C. § 1983 claim alleging that he was transferred in
retaliation for exercising his First Amendment right to criticize
Chaplain Horton publicly.
TDCJ provides weekly religious services for what it
considers to be the five “major faith sub-groups” in its prisons:
Roman Catholic; Christian/non-Roman Catholic; Jewish; Muslim; and
Native American.7 Under the TDCJ policy, the Church of Christ
falls within the Christian/non-Roman Catholic sub-group. TDCJ
offered evidence that it attempts to place each individual
worshiper with the designated sub-group he would choose on his own,
while recognizing that not all elements of the individual faiths
will be accommodated.
TDCJ also offers a variety of supplemental devotional
opportunities for Church of Christ members. In 41 TDCJ units,
worship services are conducted by Church of Christ volunteers, who
6
Specifically, the requested injunction would: (1) order TDCJ to
recognize the Church of Christ as a Christian religion separate and apart from
other faiths; (2) enjoin TDCJ prison officials from violating Church of Christ
members’ right to worship; (3) order prison officials to allow Church of Christ
members to have one hour of separate worship time each Sunday according to tenets
“essential to their salvation,” i.e., a service that offers communion and
a cappella singing; (4) order TDCJ prison officials to list Church of Christ on
the schedule of available religious services; (5) order TDCJ prison officials to
allow Church of Christ ministers and teachers, from outside the prison, to
conduct individual Bible studies and/or assist with religious services; and
(6) order TDCJ prison officials to allow these outside Church of Christ ministers
and teachers to perform baptism by full immersion at an inmate’s request.
7
These “major faith sub-groups” are selected on the basis of a survey
of prisoners indicating their faith preferences (140 were indicated), and an
analysis of the commonality among those faiths. The survey revealed that there
are about 1,743 Church of Christ members in the Texas prison population,
comprising roughly one percent of the total. In contrast, there are about 47,318
Baptists, 31,211 Roman Catholics, and 8,370 Muslims.
are often able to tailor the services to include communion and
a cappella singing. Immersion baptism may be arranged for and
performed by a Church of Christ minister at the inmate’s request.
Finally, TDCJ permits inmates to meet with an approved spiritual
advisor twice a month.
The district court denied the class’s request for a
permanent injunction, finding that TDCJ policy does not violate the
Supreme Court’s interpretation of inmate free exercise rights.8
The district court also held that the prison officials were
entitled to qualified immunity on Freeman’s § 1983 retaliation
claim.9 The district court granted the defendants’ motion for
summary judgment, and this appeal followed.
II. STANDARD OF REVIEW
We review the district court’s summary judgment decision
de novo. Chriceol v. Phillips, 169 F.3d 313, 315 (5th Cir. 1999).
Summary judgment is warranted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
any affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
The moving party bears the burden of showing that there is an
8
The district court rejected the equal protection claim without
elaboration. However, the district court did conclude, without directly
addressing the equal protection claim, that similarly situated faiths were
treated alike.
9
The district court further determined that Freeman’s retaliation
claim against the prison officials, in their official capacity, was barred by the
Eleventh Amendment and that Freeman could not sue TDCJ, a state agency, under §
1983. Freeman has not appealed these adverse rulings.
absence of evidence to support the nonmoving party’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party
meets this initial burden, the nonmoving party is required to set
forth specific facts showing a genuine issue for trial. FED. R.
CIV. P. 56(e). However, the nonmovant cannot satisfy this burden
with conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc).
III. DISCUSSION
This appeal raises three challenges to the district
court’s summary judgment ruling: the dismissal of the class’s free
exercise claim; the dismissal of the class’s equal protection
claim; and the dismissal of Freeman’s retaliation claim. We
address each in turn.
A. Free Exercise Claim
The class alleges that TDCJ’s religious accommodation
policy unconstitutionally impinges on the free exercise of their
chosen faith. TDCJ counters that its policy is the product of
legitimate penological concerns: (1) staff supervision require-
ments; (2) unit and individual security concerns; (3) the
availability of TDCJ-approved religious volunteers to provide
assistance; (4) limited meeting time and space; and (5) the
percentage of the offender population that the requesting faith
group represents. Thus, TDCJ argues that its decision to designate
five major religious sub-groups, while providing supplemental
Church of Christ services when feasible, should be sustained.
Prison regulations that impinge on fundamental constitu-
tional rights are reviewed under the deferential standard set forth
in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987). Under
Turner, “a prison regulation that impinges on inmates’ consti-
tutional rights . . . is valid if it is reasonably related to
legitimate penological interests.” Id. at 89. Turner employs a
four-factor test to resolve this inquiry: (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 inmates, and the allo-
cation of prison resources generally; and (4) whether there are
“ready alternatives” to the regulation. Id. at 89-91; see also
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S. Ct. 2400,
2405 (1987). A court “must determine whether the government
objective underlying the regulation at issue is legitimate and
neutral, and that the regulations are rationally related to that
objective.” Thornburgh v. Abbott, 490 U.S. 401, 414-15, 109 S.
Ct. 1874, 1882 (1989); see also Scott v. Miss. Dept. of Corr., 961
F.2d 77, 81 (5th Cir. 1992) (a court need not “weigh evenly, or
even consider, each of these factors,” as rationality is the
controlling standard).
The undisputed summary judgment evidence shows that
TDCJ’s policy satisfies Turner and passes constitutional muster.
Foremost, TDCJ’s regulation is neutral — it “operate[s] . . .
without regard to the content of the expression.” Turner, 482 U.S.
at 90, 107 S. Ct. at 2262; Green v. Polunsky, 229 F.3d 486, 490
(5th Cir. 2000) (beard prohibition neutral because it affected “all
inmates, regardless of their religious beliefs”). There is no
evidence that TDCJ’s policy is targeted toward the Church of Christ
or favors one religious group over another.
TDCJ’s policy is rationally related to legitimate govern-
ment objectives. The policy may be struck down, on this basis,
only if its relationship to the government objective is “so remote
as to render the policy arbitrary or irrational.” Turner, 482 U.S.
at 89-90, 107 S. Ct. at 2262.
First, we agree with TDCJ that staff and space
limitations, as well as financial burdens, are valid penological
interests. See Ganther v. Inge, 75 F.3d 207, 211 (5th Cir. 1996).
“Prison administrators, like most government officials, have
limited resources to provide the services they are called upon to
administer.” Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.
1991).10
10
The class disputes TDCJ’s reliance on financial considerations,
arguing that under Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977),
inadequate resources can never be a justification for depriving an inmate of his
constitutional rights. Smith, however, primarily concerned an Eighth Amendment
challenge to prison confinement conditions. 553 F.2d at 375. The court held
that financial considerations are not a vehicle for circumventing the dictates
of the Eighth Amendment, especially those embodied in prior court orders. But,
such a conclusion in no way detracts from the legitimate place financial
resources, or the lack thereof, hold in the Turner First Amendment equation.
Additionally, the decision to offer worship services to
five broad faith sub-groups, augmented by supplemental religious
services to the other groups, including the Church of Christ, is
eminently reasonable. Although some Church of Christ prisoners may
not be able to attend a service perfectly suited to their faith,
this limitation is dictated by the demands of administering
religious services to tens of thousands of inmates representing
widely divergent faiths. TDCJ’s policy provides the flexibility
needed to accommodate the religious needs, to some degree, of the
entire prison population. Thus, it satisfies the “rational
relationship” test — the paramount inquiry under Turner.
The TDCJ policy also fulfills the remaining Turner
elements. Many of the Church of Christ inmates are given
“alternative means” of exercising their religious beliefs. Turner,
482 U.S. at 90, 107 S. Ct. at 2262. The class argues that the
policy effectively bars the exercise by many Church of Christ
inmates of their constitutional right to attend a Sunday service
that includes communion, singing without instruments, teaching, and
an opportunity for baptism by full immersion. Their evidence
suggests that these elements represent tenets of their faith. In
their view, the imposition on some of the class of participating in
a “generic ‘Protestant’ service” is not a reasonable accommodation.
Moreover, the class contends that if TDCJ is able to offer a
distinctive Church of Christ service in 41 units, then it must do
so in all of them.
This argument is without merit. The pertinent question
is not whether the inmates have been denied specific religious
accommodations, but whether, more broadly, the prison affords the
inmates opportunities to exercise their faith. See Goff v. Graves,
362 F.3d 543, 549 (8th Cir. 2004) (“The critical question for
Turner purposes is whether the prison officials’ actions deny
prisoners their free-exercise rights without leaving open
sufficient alternative avenues for religious exercise.”). The
quintessential rebuttal of the class’s position rests in O’Lone,
where the Supreme Court upheld a regulation that prohibited Muslim
prisoners from attending Friday afternoon services. 482 U.S. at
346-48, 107 S. Ct. at 2403-05. Given the availability of a number
of other Muslim practices in the prison, the Court upheld the
policy. Id.
Likewise, many of the inmates in the instant case reside
in units that schedule supplemental worship services conducted by
Church of Christ volunteers and structured like free-world Church
of Christ assemblies to frequently include communion and a cappella
singing. TDCJ permits Church of Christ members to arrange for
immersion baptism services, permits the possession of religious
literature, and allows inmates to meet with an approved spiritual
advisor. Such supplemental programs, offered in addition to the
weekly Christian/non-Roman Catholic worship services, furnish the
inmates with “alternative means” of exercising their religion. See
Id. at 351-53.
TDCJ persuasively contends that yielding to the class’s
expansive demands would spawn a cottage industry of litigation and
could have a negative impact on prison staff, inmates, and prison
resources. Turner, 482 U.S. at 90, 107 S. Ct. at 2262 (“When
accommodation of an asserted right will have a significant ‘ripple
effect’ on fellow inmates or on prison staff, courts should be
particularly deferential to the informed discretion of correctional
officials.”). Moreover, no obvious, easy alternatives would
accommodate both the class’s requests and TDCJ’s administrative
needs. Turner, 482 U.S. at 90, 107 S. Ct. at 2262. Despite the
class’s arguments to the contrary, prison officials do not “have to
set up and then shoot down every conceivable alternative method of
accommodating the claimant’s constitutional complaint.” Id. at
90-91. The class has not offered an alternate solution that would
expose TDCJ’s policy as an “exaggerated response to prison
concerns.” Id. at 90. In particular, the fact that TDCJ already
allows distinctive Church of Christ worship services in some units
does not demonstrate the feasibility, much less constitutional
imperative, of offering them in all 100+ units. Demands imposed by
security, architecture, number of religious adherents, and schedule
conflicts all potentially limit the grant of further specific
accommodations in every unit. There is no factual basis for our
disregarding TCDJ’s policy choice in these units.
In the end, TDCJ has not abused the substantial
discretion Turner and its progeny afford prison administrators.
“Subjecting the day-to-day judgments of prison officials to an
inflexible strict scrutiny analysis would seriously hamper their
ability to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration.”
Id. at 89. TDCJ’s policy offers reasonable accommodations to
permit Church of Christ members to exercise their religion.
Therefore, we affirm the district court’s dismissal of the class’s
First Amendment free exercise claim.
B. Equal Protection Claim
Next, the class alleges that TDCJ violated the Fourteenth
Amendment’s equal protection guarantee by favoring other religions
over the Church of Christ. “To succeed on their equal protection
claim [the class] must prove purposeful discrimination resulting in
a discriminatory effect among persons similarly situated.”
Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (citing
McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987)). However,
the Fourteenth Amendment does not demand “that every religious sect
or group within a prison — however few in numbers — must have
identical facilities or personnel.” Cruz v. Beto, 405 U.S. 319,
322, 92 S. Ct. 1079, 1082 n.2 (1972). Instead, prison adminis-
trators must provide inmates with “reasonable opportunities . . .
to exercise the religious freedoms guaranteed by the First and
Fourteenth Amendments.” Id. Turner applies with corresponding
force to equal protection claims. Williams v. Morton, 343 F.3d
212, 221 (3d Cir. 2003). For the reasons discussed above, TDCJ’s
policy satisfies Turner’s neutrality requirement. The class
offered little or no evidence that similarly situated faiths are
afforded superior treatment, or that TDCJ’s policy was the product
of purposeful discrimination. Accordingly, the class’s equal
protection claim also fails.
C. Freeman’s Retaliation Claim
Freeman challenges the dismissal of his retaliatory
transfer claim on qualified immunity grounds. Federal courts
employ a two-step inquiry to determine whether the individual
defendants are entitled to qualified immunity: First, whether the
facts alleged, taken in the light most favorable to the plaintiff,
establish that the officers’ conduct violated a constitutional
right; second, if a violation of a constitutional right occurred,
whether the right was “clearly established” at that time. See
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001). The district
court found, under the first stage of this inquiry, that Freeman’s
constitutional right to free speech was not violated. We agree.11
To sustain a § 1983 retaliation claim, Freeman must
establish: (1) the existence of a specific constitutional right;
(2) the defendant’s intent to retaliate for the exercise of that
right; (3) a retaliatory adverse act; and (4) causation. See Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The key question, in
11
The district court held, in the alternative, that even if the prison
officials had violated Freeman’s right to free speech, the officers’ actions were
objectively reasonable in light of the law as it existed at the time. Because
we conclude that the prison officials did not violate the First Amendment, we
need not reach the district court’s alternative holding. See Siegert v. Gilley,
500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991).
the instant appeal, is whether Freeman’s public criticism of
Chaplain Horton was protected by the First Amendment. “If the
inmate is unable to point to a specific constitutional right that
has been violated, the claim will fail.” Jones v. Greninger, 188
F.3d 322, 325 (5th Cir. 1999) (citing Tighe v. Wall, 100 F.3d 41,
43 (5th Cir. 1996)).
The Supreme Court has admonished that inmates do not
forfeit all constitutional rights when they pass through the
prison’s gates. Jones v. N.C. Prisoner’s Labor Union, 433 U.S.
119, 137, 97 S. Ct. 2532, 2544 (1977) (Burger, C.J., concurring));
Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877 (1979).
However, the Court is equally cognizant of the inherent demands of
institutional correction, the deference owed to prison
administrators, and the subjugation of individual liberty that
lawful incarceration necessarily entails. See Jones, 433 U.S. at
132, 97 S. Ct. at 2541 (recognizing that prison administrators may
curtail an inmate’s ability to exercise constitutional rights to
prevent “disruption of prison order,” ensure stability, or to
advance other “legitimate penological objectives of the prison
environment”). As a result, “a prison inmate retains those First
Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system.” Pell, 417 U.S. at 822, 94 S. Ct. at 2804; see
also Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (“A
prison inmate is entitled to his First Amendment right to freedom
of expression so long as it is not inconsistent with his status as
a prisoner and does not adversely affect a legitimate state
interest.”) (citations omitted).
Freeman contends that the defendants violated his First
Amendment right to criticize Chaplain Horton publicly. Freeman
does retain, in a general sense, a right to criticize prison
officials. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995);
Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986) (quoting Ruiz v.
Estelle, 679 F.2d 1115, 1153 (5th Cir.), opinion amended in part
and vacated in part, 688 F.2d 266 (5th Cir. 1982)) (“[P]rison offi-
cials [are] prohibited from ‘retaliation against inmates who com-
plain of prison conditions or official misconduct.’”). But, to
succeed, Freeman must do more than point to the existence of a
generic First Amendment right. He must also establish that he
exercised that right in a manner consistent with his status as a
prisoner.
In Adams v. Gunnell, 729 F.2d 362, 367-68 (5th Cir.
1984), a prison disciplined inmates for collaborating in a prison-
wide petition. While recognizing that prisoners may exercise a
variety of First Amendment rights, the court reasoned,
nevertheless, that where internal grievance procedures are
available, a prison may proscribe the use of internally circulated
petitions if it believes they contain the potential for inciting
violence. Id. at 368 (citing Jones, 433 U.S. at 128, 97 S. Ct. at
2539). Adams thus confirmed the prison’s authority to circumscribe
the manner in which a grievance or criticism right is exercised.
The present case is no different. Prison officials may
legitimately punish inmates who verbally confront institutional
authority without running afoul of the First Amendment. See Goff
v. Dailey, 991 F.2d 1437, 1439 (8th Cir. 1993) (recognizing that a
“prison has a legitimate penological interest in punishing inmates
for mocking and challenging correctional officers by making crude
personal statements about them in a recreation room full of other
inmates”). As in Adams, internal grievance procedures remained
open to Freeman, and in fact, Freeman availed himself of this
process to express his theological disagreements with Chaplain
Horton. Freeman chose, however, to go further and publicly remon-
strate concerning Horton’s “departure from the faith,” theological
errors, and leading of the prisoners into views contrary to Church
of Christ doctrine. His conduct amounted to a public rebuke of
Chaplain Horton, a member of the prison administration’s staff, and
was intended to, and did, incite about 50 other prisoners in a
walkout from the church service. Therefore, the manner of
Freeman’s statement was inconsistent with his status as a prisoner
and is not afforded First Amendment protection.12
12
We note, however, that the situation presented here is fundamentally
different from that in Clarke v. Stalder, 121 F.3d 222 (5th Cir. 1997), vacated
en banc by, 154 F.3d 186 (5th Cir. 1998). In Clarke, the panel rejected a
Louisiana prison rule that prohibited inmates from verbally challenging “the
legality of an official’s actions.” 121 F.3d at 229. First, the panel opinion
was vacated by the grant of en banc rehearing and is not precedential. Second,
this case concerns the much narrower issue of a penalty imposed on a prisoner for
a public verbal challenge to a prison administrator that incited other prisoners’
conduct.
Because Freeman has not demonstrated a violation of his
constitutional rights, summary judgment was properly awarded to the
defendants.
IV. CONCLUSION
For these reasons, the district court’s grant of summary
judgment is AFFIRMED.