Baranowski v. Hart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 4, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-20646

THOMAS H BARANOWSKI

Plaintiff - Appellant

v.

CHAPLAIN LARRY HART; LAWRENCE N HODGES, Huntsville Unit Warden;
TED SANDERS, Rabbi TDCJ Chaplaincy Department; BILL PIERCE, TDCJ
Chaplaincy Department; DOUGLAS DRETKE, TDCJ-ID Director

Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas, Houston

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

In this appeal, a Texas prisoner contends that the

defendants-appellees violated his rights under the First

Amendment, the Fourteenth Amendment, and the Religious Land Use

and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 et seq.,

by failing to provide weekly Sabbath and other holy day services,

by failing to allow Jewish prisoners to use the chapel for their

religious services, and by failing to provide him with a kosher

diet. He also alleges that he was improperly denied appointment

-1-
of counsel, an evidentiary hearing, and his right to a jury

trial. For the reasons that follow, we AFFIRM the district

court’s order granting summary judgment in favor of the

defendants-appellees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Thomas H. Baranowski (“Baranowski”), an inmate incarcerated

in the Huntsville Unit of the Texas Department of Criminal

Justice (“TDCJ”), proceeding pro se and in forma pauperis, filed

a civil rights complaint in federal district court, pursuant to

42 U.S.C. § 1983, against employees and officials of the TDCJ:

Defendants-Appellees Larry Hart (“Hart”), Huntsville Unit

Chaplain; Lawrence Hodges, Huntsville Unit Warden; Ted Sanders,

Rabbi for the TDCJ; Bill Pierce (“Pierce”), Director of the TDCJ

Chaplaincy Department; and Douglas Dretke, former Director of the

TDCJ (collectively, “Defendants”).1 Baranowski’s complaint

sought declaratory and injunctive relief for alleged violations

of the First Amendment, the Fourteenth Amendment, and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

42 U.S.C. § 2000cc-1 et seq.2

1
Baranowski subsequently moved to dismiss Rabbi Ted
Sanders as a defendant, and the motion was granted.
2
Baranowski’s complaint also alleged violations of the
Fifth and Ninth Amendments, the Americans with Disability Act,
the Rehabilitation Act, and the Texas Religious Freedom Act, as
well as a § 1983 retaliation claim. Baranowski has not
challenged the district court’s ruling on these issues, and we
decline to consider these claims any further on appeal. See

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 Baranowski, a member of the Jewish faith, alleged that

Defendants “denied Jewish prisoners access to Sabbath services

while depriving them of worship and fellowship and holyday [sic]

services, meals and observances and finally discriminating

against Jewish prisoners and favoring other faith groups in

regard to chapel services, worship and rehabilitation.” More

specifically, Baranowski asserted that Defendants had deprived

him and other Jewish inmates of access to Friday Sabbath services

in September and October 2003 and High Holy Day services, had

deprived him and other Jewish inmates of access to the Huntsville

Unit chapel for their religious observances, and had failed to

provide kosher diets conforming with the dietary laws of Judaism.

Baranowski also claimed that prisoners of other religious faiths

were treated more favorably than Jewish prisoners, citing limited

religious services and chapel access for Jewish prisoners.3

Defendants moved for summary judgment, filing copies of

various prison policies and sworn affidavits in support. In his

affidavit, Pierce, the Director of the TDCJ Chaplaincy

Department, testified that “TDCJ allows all offenders to worship

according to their faith preference in their cell[s] using

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (stating
that pro se litigants must brief arguments to preserve them for
appellate review).
3
Although Baranowski listed other inmates as additional
plaintiffs, the district court concluded that Baranowski was the
only plaintiff in this lawsuit. Baranowski has not challenged
this ruling on appeal.

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allowed items such as sacred texts, devotional items, and

materials.” According to Pierce, TDCJ policy is to allow inmates

as much freedom and opportunity as possible for pursuing their

individual beliefs and practices, consistent with agency

security, safety, order, and rehabilitation concerns. Pierce

explained that religious services are provided based on demand,

need, and resources. He further testified that “[c]haplaincy

services are nondiscriminatory in the treatment of offenders’

religious beliefs, but TDCJ policy attempts to take space, time,

and staffing restraints into consideration.”

Pierce stated that of the 145,000 offenders currently

confined in TDCJ, only 900 are self described as Jewish. Of

those, only 70 to 75 are “recognized” as actually practicing

their faith, with 90 in the conversion process. According to

Pierce, these numbers are very small when compared to the number

of observant Protestants, Catholics, and Muslims.

Pierce also stated that although Jewish programs and

activities are not available at every unit, they are available at

the Huntsville Unit, which is one of seven Jewish “host” units

within the TDCJ. He explained that “[r]abbis, not offenders,

lead Jewish services to ensure that religious practices reflect

Jewish doctrines. There is no other way for TDCJ to accommodate

the demand for Jewish congregational services from practicing

Jews.” According to Pierce, “[b]ecause of the small number of

inmates who actually practice Judaism and attend Jewish services,

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as well as the limited availability of rabbis in certain

geographical areas of the state, TDCJ is unable to hold Jewish

services at every Jewish host unit on a weekly basis.” Pierce

testified that services are held at least monthly at each of the

Jewish host units. Pierce explained that in addition to monthly

services, however, the TDCJ recognizes twenty-one Jewish holy

days (compared with two for Christians), and that time off is

permitted for eight of those days.

Pierce also testified about the numerous requests that TDCJ

receives from inmates for special diets for religious reasons.

He explained that:

While TDCJ tries to accommodate inmates’ religious needs,
it must take into account the orderly administration of
the prison and its resources while not giving any single
inmate or group of inmates preferential treatment. If
TDCJ were to grant one inmate’s request for a special
diet or religious item, numerous inmates would request
similar special privileges.

. . . .

TDCJ has reviewed requests for kosher diets and has
studied the impact of complying with such a request, by
either providing a separate kosher kitchen or by bringing
in kosher food from the outside. TDCJ has determined
that it would be far too costly and would far exceed the
allotted budget to provide kosher food. No TDCJ unit is
currently set up to accommodate a kosher diet, which
requires food preparation under certain ritual
requirements and without contact with non-kosher food.
Given the small number of offenders identifying
themselves as Jewish (and the small number recognized as
practicing Jews by TDCJ Jewish authorities), and their
various classification and programmatic needs, at least
several units would have to remodel their kitchens and
substantially alter food preparation procedures. Kosher
meals also are very costly. The state of Florida has
reported that it costs them between 12 and 15 dollars per

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 day per offender to provide kosher meals compared with
$2.46 per day the State of Texas pays for offender meals.
Providing kosher meals for a very small subset of
offenders would place a tremendous burden on the ability
of TDCJ to provide a nutritionally appropriate meal to
all other offenders because of the budgetary impact
alone. Furthermore, due to budget deficits, the Texas
Legislature at the last legislative session specifically
targeted inmate food services for a mandatory reduction
in the biennial of more than $6 million. Providing
kosher meals would put a great strain on an already
strained system, and would raise resentment among other
inmates because payments for kosher meals would of
necessity come out of the general food budget for all
inmates. The problem would be compounded because inmates
of other faiths would seek similar privileges.

Pierce testified that as an alternative to kosher meals, “all

inmates may choose to be served a pork-free diet or a vegetarian

diet.” In addition, Jewish inmates may receive kosher items from

the Aleph Institute, a not-for-profit organization, at no cost to

the state of Texas.

Prison policy 3.01, which Defendants included with their

summary judgment motion, elaborates on TDCJ’s diet policy and

substantiates Pierce’s testimony. It declares that the

“[g]eneral population may select a regular tray, a meat-free

tray, or a pork-free tray from the food service line. Any type

of meal may be selected from meal to meal.” It goes on to state:

[t]o assure minimal nutritional needs are met, menu item
replacements using one of three options shall be made
when meat or pork is not served:

• Option 1 - 1 oz. of sliced cheese, additional 4 oz.
of beans and additional serving of bread.
• Option 2 - 1 hard-boiled egg and 1 peanut butter
and jelly sandwich.
• Option 3 - 1 peanut butter and jelly sandwich and
additional 4 oz. serving of beans.

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Finally, the policy adds that while chaplains may assist

offenders in understanding what the food preferences or

restrictions are for various religions, it is the offender’s

responsibility to follow dietary preferences or restrictions

based on his designated faith preference.

Defendants also introduced affidavit testimony of Hart, a

chaplain at the Huntsville Unit, in support of their summary

judgment motion. Hart testified that because rabbis or approved

outside volunteers lead Jewish services, “[s]cheduled events may

be delayed or canceled when qualified spiritual leaders are not

available.” The Huntsville Unit has a contract rabbi who works

with Hart to schedule Jewish services, order religious items, and

authorize time off for Jewish holy days. Hart explained that

Jewish services in September and October 2003 were canceled, as

complained of by Baranowski, because a rabbi or qualified

volunteer was not available.

Hart also testified about the use of the Huntsville Unit

chapel. He explained that Friday night Sabbath services for the

twelve Jewish inmates who routinely attend are held in the

Education Department and not the chapel because the chapel is

made available to the New Birth Bible Program, a group consisting

of approximately 175 participants. Hart pointed out that the

chapel is open to all offenders from 10:30 a.m. until 11:30 a.m.

on Monday through Thursday for religious study.

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 The district court granted summary judgment and entered a

judgment dismissing the complaint with prejudice. The district

court held that the summary judgment evidence showed that

restrictions on Baranowski’s religious observances were justified

by valid penological interests related to prison staffing, space

limitations, and the financial burden of accommodating

Baranowski’s requests. The district court concluded that

Baranowski had not shown that Defendants purposefully

discriminated against him or that similarly situated individuals

were treated differently. The district court also held that

Baranowski had failed to present prima facie evidence that

Defendants had “substantially burdened” his religious practices

under RLUIPA. The district court concluded that even assuming

Baranowski were to establish a substantial burden on his

religious observance, “defendants’ financial, safety, space, and

security concerns for the prison, its inmates, and employees, and

the goal of maintaining a neutral policy of religious

accommodation for all recognized religious faiths, are compelling

governmental interests.”

Baranowski now appeals. We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment de

novo. Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854,

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859 (5th Cir. 2004). Summary judgment is warranted “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c). If the movant satisfies its initial burden

of demonstrating the absence of a material fact issue, then “‘the

non-movant must identify specific evidence in the summary

judgment record demonstrating that there is a material fact issue

concerning the essential elements of its case for which it will

bear the burden of proof at trial.’” Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc)

(quoting Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)

(citations omitted)). “However, the nonmovant cannot satisfy

this burden with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence.” Freeman, 369 F.3d

at 860.

III. DISCUSSION

Baranowski’s appeal raises three challenges to the district

court’s summary judgment ruling: the dismissal of his free

exercise claim; the dismissal of his equal protection claim; and

the dismissal of his RLUIPA claim.4 Baranowski also contends

4
Two additional issues raised by Baranowski can be
disposed of here. First, Baranowski attempts to appeal the
district court’s denials of his motions for temporary restraining
orders, but it is well established in this circuit that the

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that he was wrongly denied appointment of counsel, an evidentiary

hearing, and the right to his day in court. We address each

issue in turn.

A. Free Exercise Claim

Baranowski argues that Defendants have impeded his free

exercise of religion under the First Amendment by denying him

access to Jewish Sabbath and other holy day services, by

depriving him of kosher meals required by his faith, and by

denying him access to the Huntsville Unit chapel for religious

observances. Defendants counter that valid penological

objectives, including security, staff and space limitations, and

financial burdens, justify TDCJ’s policies, and that Baranowski

has alternative means of practicing his religion.

This court reviews prison policies that impinge on

fundamental constitutional rights under the deferential standard

set forth in Turner v. Safley, 482 U.S. 78 (1987). Under Turner,

a prison regulation that impinges on an inmate’s constitutional

rights is valid if it is reasonably related to legitimate

penological interests. Id. at 89. Turner requires the court to

denial of an application for a temporary restraining order is not
appealable. See House the Homeless, Inc. v. Widnall, 94 F.3d
176, 180 n.8 (5th Cir. 1996). Second, Baranowski contends in his
reply brief that he has raised a claim of “denial of due process
rights to practice his Jewish faith.” However, he has done
nothing more than mention this as an issue, without any reference
to it in the argument section of his initial or reply brief or
any citation of legal authority. We decline to consider it
further on appeal. See Yohey, 985 F.2d at 224-25.

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consider four factors: (1) whether a valid and rational

connection exists between the prison regulation and the

legitimate governmental interest put forward to justify it; (2)

whether there are alternative means of exercising the right that

remain open to prison inmates; (3) the impact of the

accommodation on prison guards, other inmates, and the allocation

of prison resources generally; and (4) whether there are “ready

alternatives” to the regulation in question. Id. at 89-90. “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.’” Freeman,

369 F.3d at 860 (quoting Thornburgh v. Abbott, 490 U.S. 401, 414-

15 (1989)); see also Scott v. Miss. Dep’t of Corr., 961 F.2d 77,

80-81 (5th Cir. 1992) (explaining that a court need not “weigh

evenly, or even consider, each of these factors,” as rationality

is the controlling standard).

Turning to the Turner factors, we hold that the TDCJ

policies on the availability of religious services and use of the

chapel pass constitutional muster. In so holding, we are guided

by this circuit’s recent decision in Adkins v. Kaspar, 393 F.3d

559 (5th Cir. 2004).

In Adkins, the plaintiff argued that his free exercise

rights were denied when he and other members of the Yahweh

Evangelical Assembly (“YEA”) were not permitted to assemble on

every Sabbath day and on particular holy days because no

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volunteer deemed acceptable by the defendants was available to

supervise the meetings. 393 F.3d at 564. Applying the

Turner factors, the court in Adkins first recognized that this

court had recently held that the TDCJ’s religious accommodation

policy is rationally related to legitimate government objectives.

Id. (citing Freeman, 369 F.3d at 861); see also Freeman, 369 F.3d

at 861 (holding that TDCJ’s religious accommodation policy “is

neutral–-it ‘operate[s] . . . without regard to the content of

the expression’”) (quoting Turner, 482 U.S. at 90). The court

then looked to the second Turner factor, recognizing that “‘[t]he

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.’” Adkins, 393 F.3d at 564 (quoting Freeman, 369 F.3d at

861). The court concluded that YEA members had alternative means

of exercising their religion, given their access to religious

materials and their ability to hold and attend live services when

a spiritual leader was available. Id. Applying the third Turner

factor, the court reasoned:

The 20 to 25 active members of YEA constitute less than
one percent of the large inmate population at Coffield.
Requiring the defendants to accommodate every religious
holiday and requirement of the YEA, regardless of the
availability of volunteers, space, or time, could “spawn
a cottage industry of litigation and could have a
negative impact on prison staff, inmates and prison
resources.” Moreover, if Adkins were accommodated and
other similarly situated small religious groups were not,
the YEA could appear to be favored over the others, a
perception that could have a negative effect on prison

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 morale and discipline.

Id. at 565 (quoting Freeman, 369 F.3d at 862). Finally, under

the fourth Turner prong, the court determined that “no obvious,

easy alternatives would accommodate both Adkins and the TDCJ’s

administrative needs.” Id. (internal quotation marks and

citation omitted). The court concluded that in light of the

Turner factors, the dismissal of the plaintiff’s free exercise

claim was proper.

We reach the same result in the instant case pursuant to

Turner on facts that are not materially different from Adkins.

The record demonstrates that the prison policies at issue here

are logically connected to legitimate penological concerns of

security, staff and space limitations, and that there are no

obvious or easy alternatives. Baranowski’s main complaint is

that the prison could accommodate the need for weekly Jewish

services if inmates were permitted to lead the services without

the assistance of a rabbi or approved outside volunteer.

However, Adkins rejected this argument, and we do so again here.

The summary judgment evidence shows that despite being denied

weekly Sabbath services and other holy day services when a rabbi

or approved volunteer is not present, Baranowski retains the

ability to participate in alternative means of exercising his

religious beliefs, including the ability to worship in his cell

using religious materials and the ability to access the chapel

and lockers containing religious materials on certain days and

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times.5 See O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52

(1987) (upholding a regulation that prevented Muslim prisoners

from attending Friday Jumu’ah services, and recognizing that

although there were “no alternative means of attending Jumu’ah

[since] respondents’ religious beliefs insist that it occur at a

particular time,” inmates were “not deprived of all forms of

religious exercise, but instead freely observe a number of their

religious obligations”); see also Turner, 482 U.S. at 90 (“Where

other avenues remain available for the exercise of asserted

rights, courts should be particularly conscious of the measure of

judicial deference owed to corrections officials in gauging the

validity of the regulation.”) (internal quotation marks,

citations, and alterations omitted). Finally, the Jewish

population at the TDCJ constitutes less than one percent of the

total inmate population. If this court were to require the TDCJ

to accommodate every religious holiday and requirement of the

Jewish faith, regardless of the availability of qualified

volunteers and adequate space and security, we “would spawn a

cottage industry of litigation and could have a negative impact

on prison staff, inmates, and prison resources.” Freeman, 369

F.3d at 862. We decline to yield to Baranowski’s demands.

We reach the same result on TDCJ’s policy of not providing

5
Although Baranowski contends that some inmates could not
take advantage of the weekday religious study in the chapel
because of work assignments, he does not claim that he was not
able to do so himself.
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kosher meals. This circuit has already ruled that prisons need

not respond to particularized religious dietary requests to

comply with the First Amendment. See Kahey v. Jones, 836 F.2d

948 (5th Cir. 1988); Udey v. Kastner, 805 F.2d 1218 (5th Cir.

1986).

In Kahey, we held that the prison was not required to

accommodate a Muslim inmate’s request for a kosher diet, with

particularized requirements regarding the content and preparation

of food. 836 F.2d at 950-51. In applying the Turner factors,

the court concluded that there was a logical connection between

the prison policy on inmate diet and the “legitimate governmental

interest in running a simplified prison food service rather than

a full-scale restaurant.” Id. at 950. The court also determined

that the inmate’s practice of Islam was “not entirely

circumscribed in the prison, and that this factor, as the

[Supreme Court] found in O’Lone, compensates for the prison’s

failure to satisfy her dietary demand.” Id. at 951. The court

concluded that the impact of granting the inmate’s request would

be expensive, diverting resources from other penological goals,

and could result in the perception that certain inmates were

favored over others, which would have an adverse impact on prison

morale. Id. Finally, the court found that there were simply no

ready alternatives to satisfy the inmate’s dietary requirements

at a de minimis cost to the prison. Id.; see also Turner, 482

U.S. at 91.
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 Udey, decided before the Supreme Court’s decision in Turner,

also held that the First Amendment did not require a prison to

provide an inmate with a diet consistent with his religious

beliefs. 805 F.2d at 1221. The court reasoned that meeting the

inmate’s religious and dietary requirements would place undue

costs and administrative burdens on the prison system because of

the likelihood of proliferation of such requests and the

concomitant need to meet multiple distinct dietary requests. Id.

For the reasons stated by the courts in Kahey and Udey, we

conclude that denial of a kosher diet does not violate

Baranowski’s free exercise rights. Consequently, we affirm the

district court’s dismissal of Baranowski’s First Amendment claim.

B. Equal Protection Claim

Baranowski next alleges that Defendants violated his equal

protection rights by favoring other religions over Judaism.

Specifically, he contends Christian and Muslim services are

conducted more frequently than Jewish services, and that other

groups have greater access to the chapel. Defendants respond

that Baranowski has provided no summary judgment evidence of

purposeful discrimination regarding any of his allegations.

To succeed on his equal protection claim, Baranowski “‘must

prove purposeful discrimination resulting in a discriminatory

effect among persons similarly situated.’” Adkins, 393 F.3d at

566 (quoting Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir.

1992)). “However, the Fourteenth Amendment does not demand ‘that
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every religious sect or group within a prison–-however few in

numbers–-must have identical facilities or personnel.’” Freeman,

369 F.3d at 862-63 (quoting Cruz v. Beto, 405 U.S. 319, 322 n.2

(1972)). Rather, prison officials must afford prisoners

“reasonable opportunities . . . to exercise the religious freedom

guaranteed by the First and Fourteenth Amendment[s].” Cruz, 405

U.S. at 322 n.2. “Turner applies with corresponding force to

equal protection claims.” Freeman, 369 F.3d at 863.

Baranowski’s equal protection claim must fail. He has

offered no competent summary judgment evidence that similarly

situated faiths are afforded superior treatment, or that TDCJ’s

policies are the product of purposeful discrimination.6 Although

Baranowski claims that other religious groups have greater access

to the chapel, it is recognized that “[a] special chapel or place

of worship need not be provided for every faith regardless of

size; nor must a chaplain, priest, or minister be provided

without regard to the extent of the demand.” Cruz, 405 U.S. at

322 n.2. It is therefore not constitutionally impermissible for

Defendants to consider the demand and need of the group

requesting the chapel, along with space and staffing limitations,

when deciding where religious groups will conduct their services.

See id. (noting that the Constitution does not demand that every

6
To the extent Baranowski is raising an equal protection
claim regarding the denial of kosher meals, the uncontroverted
summary judgment evidence shows that the TDCJ does not serve
kosher meals to any inmate.
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religious group, regardless of size, have identical facilities).

In sum, Baranowski has failed to provide anything more than

bald and unsubstantiated allegations that Defendants purposefully

discriminated against him. This is not enough to succeed on an

equal protection claim. See Adkins, 393 F.3d at 566. We

therefore affirm the district court’s dismissal of this claim.

C. RLUIPA Claim

Baranowski next argues that his inability to observe Sabbath

and other holy day services and his inability to consume kosher

meals substantially burden his ability to practice Judaism, in

violation of RLUIPA. As a “Torah-observant Jew,” Baranowski

claims that he is compelled to observe the Sabbath and other holy

days and to consume kosher food. He contends that the

substantial burdens imposed by Defendants pressure him to modify

his behavior and to violate his sincerely held religious beliefs.

Defendants counter that Baranowski has failed to establish that

his religious practices are substantially burdened. In the

alternative, Defendants argue that their policies are the least

restrictive means of furthering their compelling interests of

security, safety, space, personnel, and financial concerns for

the prison and its inmates and employees.

RLUIPA mandates that

[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to
an institution . . . even if the burden results from a
rule of general applicability, unless the government
demonstrates that imposition of the burden on that
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 person--

(1) is in furtherance of a compelling governmental
interest; and
(2) is the least restrictive means of furthering that
compelling governmental interest.

42 U.S.C. § 2000cc-1(a). “RLUIPA thus protects institutionalized

persons who are unable freely to attend to their religious needs

and are therefore dependent on the government’s permission and

accommodation for exercise of their religion.” Cutter v.

Wilkinson, 544 U.S. 709, 721 (2005).

The threshold inquiry under RLUIPA is whether the challenged

governmental action substantially burdens the exercise of

religion. The burden of proving the existence of a substantial

interference with a religious exercise rests on the religious

adherent. 42 U.S.C. § 2000cc-2(b). If such a substantial burden

is proven, it is then up to the government to demonstrate that

the compelling interest test is satisfied. See id.

RLUIPA defines “religious exercise” to include “any exercise

of religion, whether or not compelled by, or central to, a system

of religious belief.” Id. § 2000cc-5(7)(A).7 “‘[T]he ‘exercise

of religion’ often involves not only belief and profession but

the performance of . . . physical acts [such as] assembling with

7
“Although RLUIPA bars inquiry into whether a particular
belief or practice is ‘central’ to a prisoner’s religion . . .
the Act does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.” Cutter, 544 U.S. at 725 n.13.
Here, however, Defendants have not argued that Baranowski is not
sincere in his beliefs, and the record gives us no reason to
question the sincerity of his religious beliefs.
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others for a worship service [or] participating in sacramental

use of bread and wine . . . .’” Cutter, 544 U.S. at 720 (quoting

Employment Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S.

872, 877 (1990)). There is no question that the activities

alleged to be burdened in this case–-Jewish Sabbath and holy day

services and keeping kosher–-qualify as “religious exercises” for

the practice of Judaism under RLUIPA’s generous definition. See

Adkins, 393 F.3d at 567-68 (stating that Sabbath and holy day

gatherings “easily qualify as ‘religious exercise’”); Guzzi v.

Thompson, 470 F. Supp. 2d 17, 25 (D. Mass. 2007) (stating that

the practice of “keeping kosher” constitutes a religious exercise

for the Jewish faith).

In Adkins, we considered the meaning of “substantial

burden,” which is not defined by the statute. We held that “for

purposes of applying the RLUIPA in this circuit, a government

action or regulation creates a ‘substantial burden’ on a

religious exercise if it truly pressures the adherent to

significantly modify his religious behavior and significantly

violate his religious beliefs.” 393 F.3d at 569-70. The court

cautioned, however, that “our test requires a case-by-case, fact-

specific inquiry to determine whether the government action or

regulation in question imposes a significant burden on an

adherent’s religious exercise . . . .” Id. at 571.

We first consider whether Baranowski’s religious exercise

was substantially burdened when he was prevented from

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congregating with other Jewish inmates on many Sabbath and Jewish

holy days. The uncontroverted summary judgment evidence shows

that on the days Baranowski claims that services were not

provided, no rabbi or approved religious volunteer was available

to lead the services. This court considered a similar claim

under RLUIPA in Adkins; the plaintiff in that case was prevented

from gathering with other YEA members for various religious

observances. We explained that the plaintiff and other YEA

members were not prevented from congregating by prison policy but

by the dearth of clergy and authorized volunteers. Id. We held

that the requirement of an outside volunteer did not place a

substantial burden on the plaintiff’s religious exercise under

RLUIPA. Id. In light of this court’s decision in Adkins and the

summary judgment evidence before us, we are convinced that the

acts of Defendants regarding religious services have not placed a

substantial burden on Baranowski’s free exercise of his Jewish

faith, within the contemplation of RLUIPA. See id.

We next consider whether the failure of Defendants to

provide Baranowski with a kosher diet constitutes a substantial

burden on his religious exercise. Baranowski argues that his

inability to consume kosher food has pressured him to modify his

behavior and to violate his sincerely held religious beliefs.

Cf. Ran-Dav’s County Kosher, Inc. v. New Jersey, 608 A.2d 1353,

1355-56 (N.J. 1992) (describing Jewish dietary laws and their

significance to Judaism). Given the strong significance of

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keeping kosher in the Jewish faith, the TDCJ’s policy of not

providing kosher food may be deemed to work a substantial burden

upon Baranowski’s practice of his faith.

Turning to the compelling interest test, Defendants must

show that their dietary policy of not providing kosher meals is

the least restrictive means of furthering a compelling

governmental interest. As the Supreme Court recently explained,

“‘[c]ontext matters’ in the application of that standard.”

Cutter, 544 U.S. at 723 (quoting Grutter v. Bollinger, 539 U.S.

306, 327 (2003)). Courts should apply the “compelling

governmental interest” standard with “‘due deference to the

experience and expertise of prison and jail administrators in

establishing necessary regulations and procedures to maintain

good order, security and discipline, consistent with

consideration of costs and limited resources.’” Id. (quoting S.

REP. NO. 103-111, at 10 (1993)). RLUIPA, in other words, is not

meant to elevate accommodation of religious observances over the

institutional need to maintain good order, security, and

discipline or to control costs. See Lovelace v. Lee, 472 F.3d

174, 190 (4th Cir. 2006).

The uncontroverted summary judgment evidence submitted by

Defendants establishes that TDCJ’s budget is not adequate to

cover the increased expense of either providing a separate kosher

kitchen or bringing in kosher food from the outside; that TDCJ’s

ability to provide a nutritionally appropriate meal to other

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offenders would be jeopardized (since the payments for kosher

meals would come out of the general food budget for all inmates);

that such a policy would breed resentment among other inmates;

and that there would be an increased demand by other religious

groups for similar diets.

Based on the record before us, we hold that this policy is

related to maintaining good order and controlling costs and, as

such, involves compelling governmental interests. Cf. Andreola

v. Wisconsin, No. 06-1491, 2006 WL 3724633, at *3 (7th Cir. Dec.

18, 2006) (unpublished) (finding no RLUIPA violation where the

defendant did not provide kosher meals based on the compelling

governmental interests of maintaining security and “abating the

costs of a prisoner’s keep”). Further, the administrative and

budgetary interests at stake cannot be achieved by any different

or lesser means. Cf. Cutter, 544 U.S. at 726 (“Should inmate

requests for religious accommodations become excessive, impose

unjustified burdens on other institutionalized persons, or

jeopardize the effective functioning of an institution, the

facility would be free to resist the imposition.”). Accordingly,

we conclude that the district court properly granted summary

judgment on Baranowski’s RLUIPA claim.

D. Other Claims

Lastly, Baranowski claims that the district court erred in

denying his request for appointment of counsel and by not giving

him an evidentiary hearing or his day in court. These claims are
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without merit.

Under 28 U.S.C. § 1915(e)(1), the court may appoint an

attorney to represent a litigant in federal court, but there is

no automatic right to appointment of counsel in a civil rights

case. See Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th

Cir. 2001). “In evaluating whether the appointment of counsel is

proper, the district court considers the type and complexity of

the case, the litigant’s ability to investigate and present the

case, and the level of skill required to present the evidence.”

Id. at 354. We review the district court’s denial of appointment

of counsel for an abuse of discretion. Id.

The district court held that Baranowski did not have a right

to court-appointed counsel because of his “demonstrated ability

to litigate his case” and “the elementary nature of [the] issues”

involved in the case. After reviewing the record, we conclude

that the district court did not abuse its discretion.

We also conclude that Baranowski has failed to show how his

claims would have been advanced by an evidentiary hearing. He

argues that he has not been given a chance to present “real

evidence to support his wholesome claims.” Baranowski has not

shown why a hearing is needed to bring forth such evidence or why

he did not present this evidence in his opposition to Defendants’

motion for summary judgment. Accordingly, we cannot hold that

the district erred in not conducting an evidentiary hearing.

Finally, Baranowski’s claim that he was denied a jury trial

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is frivolous. Federal Rule of Civil Procedure 56(c) requires the

court to render summary judgment if the appropriate materials on

file “show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter

of law.” As this court has explained, “[t]he function of the

jury is to try the material facts; where no such facts are in

dispute, there is no occasion for jury trial. Thus the right to

trial by jury does not prevent a court from granting summary

judgment.” Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir.

1988). When the district court properly entered summary judgment

dismissing Baranowski’s claims, his demand for a jury trial

became moot. See id.

IV. CONCLUSION

For the reasons stated above, we affirm the district court’s

grant of summary judgment.

AFFIRMED.

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