Mayfield v. Texas Department of Criminal Justice

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 30, 2008

No. 06-50490 Charles R. Fulbruge III
Clerk

DARREN L MAYFIELD

Plaintiff - Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; GARY L JOHNSON,
EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION, sued in individual and official
capacity; BILL PIERCE, Director of Chaplaincy, sued in individual and
official capacity

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Darren L. Mayfield (“Mayfield”), Texas prisoner #571949, appeals the
district court’s grant of summary judgment in favor of the defendants on his
claims alleging First Amendment violations under 42 U.S.C. § 1983 as well as
violations of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. §§ 2000cc-2000cc-5. For the following reasons we affirm
in part, vacate in part, and reverse in part the district court’s judgment and
remand.
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 No. 06-50490

Mayfield, a prisoner incarcerated in the Texas Department of Criminal
Justice (“TDCJ”) Hughes Unit, practices the Odinist/Asatru faith. He describes
Odinism as the ancestral folk religion of Northern Europe and a polytheistic,
nature-based faith that worships a variety of gods and goddesses. The practice
of Odinism involves group worship meetings known as Blotar. A Blotar
ceremony requires the use of certain religious paraphernalia including
runestones, a blessing bowl, a non-alcoholic beverage, a drinking horn, an altar
cloth, a symbolic Thor’s hammer made of material such as cardboard, and a
leafed evergreen branch. Runestones are small tiles made from pieces of antler,
wood, or stone that have been carved with characters of the ancient runic
alphabet inscribed on them. Aside from having runestones for the Blotar
ceremony, Odinism also involves the individual study of runestones. The
individual study of runestones is an essential component of the Odinist faith
because the stones serve as meditation tools to reveal wisdom and truth to the
practitioner. Hughes Unit inmates designating their faith preference as
Odinism are relatively few. Just 41 out of the 2,869 inmates confined in the
Hughes Unit designated their faith preference as Odinist/Asatru. Only 21 of the
designated Odinists regularly participate in the Odinist religious ceremonies.
According to the affidavits of various Odinist leaders outside the prison,
Blotar should be conducted, at a minimum, on a monthly basis. Odinists in the
Hughes Unit are unable to conduct their Blotar on a regular basis because the
TDCJ requires that they have a security-trained, religious volunteer present for
their group meetings.1 The only approved outside volunteer lives in Arkansas
and could not come to the Hughes Unit as frequently as Mayfield and the other

1
TDCJ policy states that some form of security is required for religious group meetings, either
in the form of a trained volunteer from outside the prison, a prison chaplain, or other TDCJ security
personnel.

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Odinists desired.2 Mayfield asked prison authorities for permission to hold
Odinist group meetings with prison security present rather than an outside
volunteer. The TDCJ denied this request on a number of occasions, noting that
security and space considerations prevented the Odinists from meeting without
an outside volunteer. Also, despite repeated requests to personally possess
runestones, the TDCJ did not allow the Odinists access to runestones except for
when the trained volunteer brought them into the prison.3 The TDCJ
determined that runestones presented distinct security issues because they could
be used for gambling, as gang identifiers, or for secret communication between
inmates.
After exhausting his administrative remedies, Mayfield brought this suit
against the TDCJ and against Gary Johnson (“Johnson”) and Bill Pierce
(“Pierce”) in their individual and official capacities.4 His suit claims that the
defendants placed impermissible burdens on the Odinist adherents at the
Hughes Unit by allowing them to meet only when an approved outside volunteer
could visit the prison, by prohibiting the Odinist adherents from personally
possessing runestones, and by prohibiting access to literature on the runes.
Mayfield brought suit under § 1983, alleging a violation of his First Amendment
right to free exercise of religion. Mayfield also claimed that the TDCJ’s practices
violated RLUIPA, which protects the religious practices of institutionalized
persons.

2
The summary judgment record does not clearly reflect how often the Odinist volunteer could
come to the prison. See Part II.D.1, infra.

3
TDCJ has, since the filing of Mayfield’s suit, stated its intention to institute a pilot program
that would allow prisoners to purchase their own set of approved runestones. Under the pilot program
the runestones are to be kept in the custody of the unit chaplain and checked out to inmates for use
during approved time slots. However, according to the evidence submitted, the pilot program has not
yet been implemented.

4
When necessary, we distinguish between the TDCJ and the individual defendants in this case.
See Part II.A, infra. However, because Mayfield brings the same claims against all of the defendants,
for simplicity’s sake the opinion often refers to the defendants collectively as “TDCJ.”

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 No. 06-50490

The district court granted summary judgment in favor of the defendants
on all of Mayfield’s claims. The court provided a number of grounds for its
summary judgment dismissal. First, the district court concluded that the
defendants were entitled to judgment as a matter of law because Mayfield had
not sufficiently shown a violation of either RLUIPA or the First Amendment.
However, the district court also proceeded to consider the impact of sovereign
and qualified immunity on Mayfield’s claims. The district court held that both
sovereign and qualified immunity prevented Mayfield from pursuing his claims.
Finally, the district court determined that Mayfield had failed to state claim for
relief))because he was a prisoner proceeding pro se and in forma pauperis the
district court imposed a strike against him under the three-strikes provision
found in 28 U.S.C. § 1915(g).5 Mayfield filed a timely notice of appeal and
counsel was eventually appointed on appeal.
II
We review the district court’s grant of summary judgment de novo,
applying the same standard as did the district court. See Baranowski v. Hart,
486 F.3d 112, 119 (5th Cir. 2007). Summary judgment is appropriate “if the
pleadings, depositions, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
The moving party bears the burden to “demonstrate the absence of a genuine
issue of material fact.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (per curiam) (internal quotation marks and citation omitted).

5
28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.

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In making our determination, we must resolve disputed facts in favor of the
nonmoving party, in this case Mayfield. See id.
In reviewing the district court’s grant of summary judgment, we address
each of its grounds for granting the summary judgment dismissal. First, we
consider the district court’s conclusions as to sovereign and qualified immunity.
Concluding that complete dismissal of Mayfield’s claims was improper on
immunity grounds alone, we then proceed to analyze whether issues of fact
remain.
A
In reaching its conclusion as to the application of sovereign immunity, the
district court held that all of Mayfield’s claims against the TDCJ and the
employees of the TDCJ charged in their official capacities were barred by the
Eleventh Amendment. As to Mayfield’s claims for damages against Johnson and
Pierce in their individual capacities, the district court held that the two
defendants were entitled to qualified immunity.
The district court dismissed all claims against the TDCJ on sovereign
immunity grounds. The TDCJ is an agency of the state, and as such is normally
shielded from “suits by individuals absent [its] consent.” Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004). Mayfield does not challenge the district
court’s dismissal of his claims against the TDCJ, and therefore has waived any
contention that these claims should survive the district court’s judgment.6 See
Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (holding that prisoner waived
First Amendment claim because he failed to brief arguments on appeal).

6
We note that some circuit courts have addressed the question of whether RLUIPA constitutes
a waiver of sovereign immunity, thus making states amenable to suit. See note 8, infra. However, the
district court does not appear to have considered the argument and it was not briefed before us.
Therefore, we do not address it. See In re Dearborn Marine Service, Inc., 499 F.2d 263, 270 n. 12 (5th
Cir. 1974) (refusing to consider an argument that presented an issue of law novel in the circuit because
it was not briefed by the parties).

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Still, sovereign immunity is subject to an established exception when it
comes to the ability of state officers to invoke its protections. “Under Ex Parte
Young, a federal court, consistent with the Eleventh Amendment, may enjoin
state officials to conform their future conduct to the requirements of federal law.”
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); see also
Frew, 540 U.S. at 437 (noting that Eleventh Amendment permits suits for
prospective injunctive relief against state officials acting in violation of federal
law). Construing Mayfield’s pro se complaint liberally, we find that it seeks
declaratory relief as well as a permanent injunction against Johnson and Pierce
in their official capacities. See Nerren v. Livingston Police Dep’t, 86 F.3d 469,
473 (5th Cir. 1996) (recognizing that we construe pro se complaints liberally);
Aguilar v. Tx. Dep’t Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998)
(explaining that the application of Ex Parte Young requires the complaint to
include claims against individual persons in their official capacities as agents of
the state, and the “relief sought must be declaratory or injunctive in nature and
prospective in effect”). Mayfield’s amended complaint and attached
memorandum state that he seeks for the court to “declare the acts and omissions
described herein violated the Plaintiff’s . . . rights under the Constitution and
laws of the United States,” and also that he “seeks a permanent injunction. . . as
to his claims.” Both § 1983 and RLUIPA allow for declaratory and injunctive
relief.7 As such, the district court erred in concluding that “Plaintiff’s claims are
all covered with immunity from the Eleventh Amendment.” Mayfield’s claims
for declaratory and injunctive relief against Johnson and Pierce in their official
capacity are not barred by sovereign immunity.

7
See 42 U.S.C. § 1983 (stating that a defendant may be liable “in an action at law, suit in
equity, or other proper proceeding for redress”). RLUIPA also provides for such relief against state
government officials. See 42 U.S.C. § 2000cc-2 (noting that RLUIPA provides for “appropriate relief
against a government”); 42 U.S.C. § 2000cc-5 (defining “government” to include an “official” of “a
State . . . or other governmental entity created under the authority of a State”).

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To the extent that Mayfield seeks damages against Johnson and Pierce,
we need not address the district court’s conclusions that sovereign and qualified
immunity prevent Mayfield’s recovery.8 Instead, we affirm the grant of
summary judgment to the extent that Mayfield seeks damages because his
damage claims are barred by the Prison Litigation Reform Act of 1995 (“PLRA”),
42 U.S.C. § 1997e(e). See Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993)
(noting that in affirming a district court’s grant of summary judgment, we are
not bound by the reasons articulated by the district court). The PLRA provides
that “[n]o Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.” 42 U.S.C. §
1997e(e). We have held that the application of this provision turns on the relief
sought by a prisoner, and that it prevents prisoners from seeking compensatory
damages for violations of federal law where no physical injury is alleged. See
Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005) (per curiam). Despite the
limitations imposed by § 1997e(e), we have recognized that a prisoner can,
absent a showing of physical injury, pursue punitive or nominal damages based
upon a violation of his constitutional rights. See Hutchins v. McDaniels, 512
F.3d 193, 197-98 (5th Cir. 2007) (per curiam). However, Mayfield has not

8
Mayfield seeks compensatory damages from the TDCJ, as well as Johnson and Pierce in both
their official and individual capacities. The rule is commonly stated that, “[f]ederal courts may not
award retrospective relief, for instance, money damages or its equivalent, if the State invokes its
immunity.” Frew, 540 U.S. at 437. This rule normally applies to states, as well as state officers acting
in their official capacity, and would prevent Mayfield from seeking such damages under § 1983. See
Quern v. Jordan, 440 U.S. 332, 345 (1979) (recognizing that § 1983 does not indicate “an intent [by
Congress] to sweep away the immunity of the States”). However, circuit courts are currently split on
whether RLUIPA provides for a waiver of state sovereign immunity. See Madison v. Virginia, 474 F.3d
118, 131 (4th Cir. 2006) (finding that RLUIPA does not constitute a waiver of immunity allowing for
damages actions); Benning v. Georgia, 391 F.3d 1299, 1305-06 (11th Cir. 2004) (finding that § 3 of
RLUIPA constitutes a waiver of state sovereign immunity); see also Smith v. Allen, 502 F.3d 1255,
1269-76, and 1276 n. 12 (11th Cir. 2007) (holding that a prisoner can, under RLUIPA, pursue nominal
damages against a state officer in her official capacity). Whether RLUIPA contemplates damages
actions against officers in their individual capacity has also created disagreements amongst courts. See
Madison, 474 F.3d at 130 n. 3 (listing cases). We need not reach these issues to decide this appeal.

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alleged any physical injury and his complaint seeks only compensatory damages.
As such, Mayfield’s claims for damages are barred by § 1997e(e). See Geiger 404
F.3d at 375 (applying §1997e(e) to bar prisoner’s claim for damages brought
under § 1983 alleging a First Amendment violation); RLUIPA, 42 U.S.C. §
2000cc-2(e) (“Nothing in this chapter shall be construed to amend or repeal the
Prison Litigation Reform Act of 1995 (including provisions of law amended by
that Act).”); Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (noting that RLUIPA
claims are subject to the exhaustion requirement of § 1997e(a)); see also Smith
v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) (recognizing that damage claims
under RLUIPA are limited by § 1997e(e)).
Neither sovereign nor qualified immunity prevent Mayfield from pursuing
declaratory and injunctive relief against the state officials in this case. The
district court’s grant of summary judgment cannot rest on immunity grounds
alone. Therefore, we proceed to consider the district court’s conclusion that
summary judgment was proper because no issues of fact existed as to Mayfield’s
claims under § 1983 and RLUIPA.
B
Mayfield submitted a number of affidavits from Odinist leaders along with
his motions and responses filed in the district court. The affidavits explain the
basic tenets of Odinism, expressing the affiants’ understandings of the
importance of certain ritual items and practices to the Odinist faith. Some of the
affiants draw conclusions as to the likely security threat posed by the Odinists’s
group meetings or possession of runestones. The defendants moved to strike the
affidavits in their entirety, arguing that none of the affiants have sufficient
knowledge, skill, experience, training, or education to qualify as experts in
prison security under FED. R. EVID. 702. The district court did not rule on the
motion at that time. However, in its order dismissing Mayfield’s claims on
summary judgment, the district court made an ambiguous ruling as to the

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admissibility of these affidavits. After quoting heavily from the affidavits of
TDCJ personnel, the district court turned to the affidavits from Odinist leaders
submitted by Mayfield. The district court agreed with the defendants’
arguments from its prior motion and found that the affiants were unqualified to
testify as experts in the area of prison security. As to this particular ruling,
which we review for an abuse of discretion, we do not disagree. See Boyd v. State
Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (noting the broad discretion
afforded to district courts in ruling on the admissibility of expert testimony in
the summary judgment context). Mayfield submitted no evidence that would
establish any of his affiants as experts in the field of prison security measures.
However, some question remains as to the district court’s ruling
concerning the remaining portions of the affidavits: those that do not draw
conclusions as to security but instead explain certain Odinist practices. In its
fiat, the district court noted that all outstanding motions not previously ruled
upon were denied. On appeal, the defendants repeat the argument raised below
that Mayfield’s affiants are not qualified to testify as to the wisdom of prison
security policy. The district court agreed with this argument and so do we.
However, because the district court’s reasons for excluding testimony of
Mayfield’s affiants apply only to the affiants’ opinions regarding prison security,
and because the court through its fiat denied the defendants’ motion to strike the
affidavits in their entirety, we treat those portions of the affidavits not related
to prison security as part of the summary judgment record. See Akin v. Q-L
Investments, Inc., 959 F.2d 521, 531 (5th Cir. 1992) (“On a motion for summary
judgment the district court should disregard only those portions of an affidavit
that are inadequate and consider the rest.”); 10B CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE
§ 2738, 375-76 (3d Ed. 1998) (collecting cases in support of this proposition).
C

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First, we consider Mayfield’s § 1983 claim that the TDCJ violated his First
Amendment right to free exercise. We review prison regulations that encroach
on fundamental constitutional rights under the standard set forth by the
Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), to determine whether the
regulation is “reasonably related to legitimate penological interests.” Id. at 89;
see O’Lone v. Estate of Shabazz, 482 U.S. 342, 349-53 (1987) (applying Turner’s
standard to free exercise claim brought by prisoner under § 1983). In evaluating
the reasonableness of a prison regulation, Turner instructs us to consider four
factors: (1) whether there is a “valid, rational connection 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 accommodation . . . will have on guards
and other inmates, and on the allocation of prison resources generally”; (4)
whether there are “ready alternatives that could fully accommodate[] the
prisoner’s rights at de minimis cost to valid penological interests.” Turner 482
U.S. at 89-91 (internal citations and quotation marks omitted). Turner’s
standard also includes a neutrality requirement))“the government objective
must be a legitimate and neutral one . . . [and] [w]e have found it important to
inquire whether prison regulations restricting inmates’ First Amendment rights
operated in a neutral fashion.” Id. at 90; see Freeman v. Texas Dep’t of Criminal
Justice, 369 F.3d 854, 860-61 (5th Cir. 2004) (“Foremost, TDCJ’s regulation is
neutral. . . . There is no evidence that TDCJ’s policy is targeted toward the
Church of Christ, or favors one religious group over another.” (internal quotation
marks and citations omitted)). While Turner’s standard encompasses four
factors, we have noted that rationality is the controlling factor, and a court need
not weigh each factor equally. See Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 81
(5th Cir. 1992).

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Mayfield claims that his free exercise rights were improperly limited in
two ways: (1) the TDCJ’s not allowing the Odinist group to assemble for religious
services in the absence of an outside volunteer (the “volunteer policy”); and (2)
the TDCJ’s preventing the Odinists from personally possessing runestones and
accessing rune literature (the “runestones policy”).9 The district court concluded
that no material issues of fact remained as to either claim. We consider each
claim under Turner’s standard, analyzing whether the record, when interpreted
in a light most favorable to Mayfield, reveals a genuine issue of material fact
that precludes summary judgment.
1
We have analyzed the TDCJ’s volunteer policy under Turner’s standard
in the past and upheld the policy on each occasion. See Baranowski, 486 F.3d
at 121-22; Adkins v. Kaspar, 393 F.3d 559, 565 (5th Cir. 2004). Applying
Turner’s four factors to the TDCJ’s outside-volunteer policy in this case, we first
note that the policy itself is reasonably related to a legitimate penological
interest. The TDCJ’s asserted justifications for the volunteer requirement
involve prison security concerns, as well as staff and space limitations. These
are valid penological interests. We have recognized in previous cases that the
TDCJ’s volunteer requirement is rationally related to these legitimate concerns.
See Baranowski, 486 F.3d at 121 (affirming a district court’s grant of summary
judgment, in part, because “[t]he record demonstrates that the prison policies at
issue here are logically connected to legitimate penological concerns of security,

9
Mayfield also complains that the TDCJ does not allow the Odinists to store at the prison the
religious paraphernalia associated with the Blotar, whereas TDCJ allows other faiths to store religious
items in the chapel. The TDCJ determined that the Odinist volunteer must bring and take away the
Blotar items with each visit. We do not see this claim as distinct from Mayfield’s claim to hold religious
meetings without a volunteer present. The absence of the Blotar items in the chapel does not impose
a distinct burden on Mayfield’s religious practice unless the Odinists can meet without a volunteer.
Until the TDCJ’s denial of group meetings is deemed unlawful, a decision that we do not make here,
the TDCJ’s decision not to store the Blotar items in the prison chapel need not be evaluated separately.

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staff and space limitations”). However, in this case, the summary judgment
record reveals a factual dispute as to the neutrality of the policy’s application.
In prior cases where we have affirmed summary judgment on similar § 1983
claims, we have relied on the neutrality of the prison’s policy in doing so. See
Adkins 393 F.3d at 571 (noting that, “[t]he requirement of an outside
volunteer . . . is a uniform requirement. . . .”); Freeman, 369 F.3d at 860
(“Foremost, TDCJ’s regulation is neutral . . . .”); Green v. Polunsky, 229 F.3d 486,
490 (5th Cir. 2000) (finding that a prison policy requiring short hair and clean-
shaven faces does not violate inmates’ right to free exercise, in part because the
“the policy is neutral, affecting all inmates, regardless of their religious beliefs”);
Mumin v. Phelps, 857 F.2d 1055, 1057 (5th Cir. 1988) (noting that, “there is not
a shred of evidence that the appellants are being denied any rights because they
are Muslims”). The TDCJ submitted evidence that its volunteer requirement is
imposed uniformly, with an exception for Muslims based on an earlier court
order. Mayfield submitted affidavit testimony from two prisoners, one a Muslim
and one a practitioner of Native American religion. Both averred that their
religious groups are allowed to hold regular meetings without an outside
volunteer. The Native American affiant stated that such meetings were held on
a near-weekly basis. Mayfield contends that the TDCJ is intentionally targeting
the Odinists through the disparate application of its volunteer policy. While the
TDCJ states in its appellate brief that “Native Americans are also required to
have a volunteer present,” no record evidence supports this statement. In an
attempt to resolve this dispute, the district court reached a factual conclusion
unsupported by the summary judgment record. The district court concluded that
Mayfield’s evidence of the policy’s disparate application could be overlooked
because, “Muslim, Christian, and Native American groups are not similarly
situated [to Odinists] in that they have a far greater number of adherents both
inside and outside the prison.” While the summary judgment record supports

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the conclusion that Odinists are a small percentage of the Hughes Unit’s
population, the record does not identify the number of inmates that have
designated their faith group as Islam, Christian, or Native American. We cannot
overlook material issues of fact concerning the neutrality of the volunteer
policy’s application based on assumptions about the relative size of the Odinists
compared to other faith groups within the Hughes Unit (e.g., the potentially
small number of Native American religious adherents).
That issues of fact remain as to the neutrality of the application of TDCJ’s
volunteer policy differentiates this case from those we have previously
considered. Requiring neutrality ensures that the prison’s application of its
policy is actually based on the justifications it purports, and not something more
nefarious. Were we to ignore Turner’s neutrality requirement, we would allow
prison regulators to justify a policy based on a legitimate interest applicable to
the overall prison population, while applying the policy in an arbitrary or
discriminatory manner in violation of a particular subgroup’s First Amendment
rights. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 534 (1993) (“Facial neutrality is not determinative. . . . The [Free Exercise]
Clause forbids subtle departures from neutrality and covert suppression of
particular religious beliefs.” (internal quotation marks and citations omitted)).
In reaching this conclusion we do not suggest that “every religious sect or group
within a prison - however few in number - must have identical facilities or
personnel.” Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). But under Turner,
neutrality must be ensured, or its absence sufficiently explained in light of a
legitimate penologoical interest, for summary judgment to be appropriate. See
Thornburgh v. Abbot, 490 U.S. 401, 415-16 (1989) (holding that Turner’s
neutrality requirement allows a prison policy to draw distinctions so long as
those distinctions flow from the government’s legitimate penological interest);
see also Hammer v. Ashcroft, 512 F.3d 961, 968-69 (7th Cir. 2008) (holding that

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issue of material fact as to neutrality in application of prison regulation required
reversal of district court’s grant of summary judgment); Dingle v. Zorn, 189 F.
App’x 8, 10 (2d. Cir. 2006) (unpublished) (reversing summary judgment because
issue of facts existed as to neutrality in prison’s application of religious volunteer
policy).
Turner’s second element requires consideration of the alternative means
of worship available in spite of the prison regulation. “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.” Freeman, 369 F.3d at 861. In other words, we ask
“whether the regulation entirely stifles the prisoner’s religious expression.”
Scott, 961 F.2d at 81. The TDCJ notes that Mayfield may gather for group
worship when an outside volunteer is present, and may worship individually in
his cell with items approved for personal possession. The TDCJ’s policy also
allows Mayfield the opportunity to meet individually with an approved spiritual
advisor twice monthly. The TDCJ submitted evidence that Mayfield has access
to Odinist religious materials in the unit’s spiritual library. Klaus Adams, the
Hughes Unit chaplain, averred that he banned a single book related to Odinism,
but that many Odinist prisoners use the spiritual library. Mayfield responds
that personal worship in his cell is made impossible because the TDCJ does not
provide any of the necessary items for Odinist religious practice, and that
Odinism is, by its nature, a religion of communal worship. Mayfield also
submits evidence showing that the Hughes Unit refused to approve a number of
books on Odinism, specifically books related to runes. While the record presents
minor unresolved issues of fact regarding alternative means available to
Mayfield, these issues of fact are not material and the record sufficiently
establishes that Mayfield has access to alternative means of worship.

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As to Taylor’s third prong, we recognize the heavy burden on guards, other
inmates, and prison resources that could result from requiring the TDCJ to
accommodate the Odinists’ request. Allowing the Odinists to meet without a
volunteer would require the TDCJ to pull an officer from other necessary
security duty in order to monitor the religious service. The Odinists are a small
group, a mere 1.4% of the Hughes Unit’s inmate population. If all 140 religious
groups in the TDCJ requested the ability to meet without an outside volunteer,
prison security could be seriously compromised by the need to remove personnel
from their usual security posts.
Finally, other than the request to allow the Odinists to meet without an
outside volunteer, Mayfield presents no other alternative means of
accommodation. The above paragraph indicates the strain that this particular
accommodation could impose on prison security. This potential strain represents
more than a de minimis cost to TDCJ’s valid penological interest in maintaining
security. However, the record leaves us to question why the Native American
religious group can meet without imposing more than a de minimis cost to
TDCJ’s interests, but the Odinists cannot.
We note again that the religious accommodation policy is facially neutral.
We also recognize the burden that the TDCJ may face if it is required to
accommodate every request from religious groups of equivalent size to the
Hughes Unit’s Odinist population. And while Turner provides a deferential
standard, see O’Lone, 482 U.S. at 350 (noting the respect and deference that the
Constitution provides for the judgment of prison administrators), it does not
mandate summary judgment in favor of prison regulators in all cases. See
Thornburgh, 490 U.S. at 414 (stating that Turner’s “reasonableness standard is
not toothless.”). Because of the importance of neutrality to our First Amendment
analysis, and because the record reveals disputed issues of fact concerning the
neutrality of TDCJ’s application of its volunteer policy, summary judgment was

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inappropriate on Mayfield’s First Amendment claim concerning the volunteer
policy.
2
Mayfield also contends that the TDCJ violates his free-exercise rights by
preventing his personal possession of runestones, and barring access to
literature about runes. Again, we consider the TDCJ’s action under Taylor’s
four-pronged analysis. First, we consider whether the regulation is rationally
related to a legitimate penological interest, also considering the neutrality of the
regulation. As noted above, the TDCJ determined that personal possession of
the small tiles would not be allowed for a number of reasons. The TDCJ does not
allow personal possession of any type of playing card, dice, or tarot cards, as
these items can be used for gambling, trafficking and trading. Gambling creates
a debtor-type relationship among inmates that could then lead to violence when
prisoners are unable to repay debts. Thus, items with a specific connection to
gambling pose a unique security risk. Because of similarities between the
runestones and these gambling-related items, the TDCJ refused to allow the
Odinists to personally possess the stones. Further, the TDCJ determined that
the runestones, because of their ancient script and small size, provide an
opportunity for inmates to secretly pass information. The TDCJ also found that
the runestones could be used to identify gang members, circumventing TDCJ’s
attempts to monitor and control gang activity.
Mayfield argues that the TDCJ’s reasons for prohibiting runestones are
not rational because the TDCJ is incorrect in its identification of the potential
dangers associated with runestones))Mayfield claims that runestones are more
like scrabble tiles or checkers which the TDCJ allows inmates to possess in
certain circumstances. However, issues of prison security are “peculiarly within
the province and professional expertise of corrections officials, and, in the
absence of substantial evidence. . . that the officials have exaggerated their

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response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827 (1974).
Recognizing the deference owed to the judgment of prison officials, we find that
the TDCJ’s fears regarding security represent legitimate penological interests
and that the TDCJ’s preventing personal possession of runestones is rationally
related to that interest.
Mayfield also claims that Odinist inmates are treated differently because
other faiths have access to religious scripts and other religious paraphernalia.
In contrast to the volunteer policy, Mayfield submits no evidence to call into
question the neutrality of the TDCJ’s decision as to runestones. There is no
neutrality problem because Mayfield presents no evidence that other religious
groups in the Hughes Unit have access to religious paraphernalia presenting
similar security risks. Mayfield submitted evidence that Islamic inmates can
personally possess a prayer rug, a Kufi cap, and prayer beads. However,
Mayfield has not shown that these items present the distinct problems posed by
personal possession of runestones.
As to the second element of Turner’s rationality analysis, undisputed
portions of the summary judgment record show that Mayfield has sufficient
alternative means of worship available. See Scott, 961 F.2d at 81 (asking
whether the regulation “entirely stifles” the inmate’s religious exercise). Any
disputed issues of fact regarding Mayfield’s access to alternative means of
worship do not rise to the level of materiality, as they do not provide a trier of
fact with a basis for finding that the TDCJ’s stance on possession of runestones
is not rationally related to the TDCJ’s legitimate penological interest in
maintaining security. See Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th
Cir. 2002) (noting that an issue of fact is material only “if its resolution could
affect the outcome of the action”).

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Considering prongs three and four of Turner’s standard, we recognize that
accommodating Mayfield’s request for runestones would impose a burden on the
TDCJ’s security personnel. Based on the security problems identified by the
TDCJ, the Hughes Unit’s security personnel would face new risks from potential
gambling and gang-related dangers. Also, allowing the Odinists to possess items
similar to those disallowed to other inmates “could have a negative effect on
prison morale and discipline.” Adkins, 393 F.3d at 565. Again, there is no
evidence of ready alternatives that would fully accommodate Mayfield’s request
at a de minimis cost to the TDCJ’s interest in preserving security. Based on the
foregoing analysis, we agree with the district court’s conclusion that the TDCJ
is entitled to summary judgment on Mayfield’s § 1983 claim concerning personal
possession of runestones.
The district court, treating all of Mayfield’s claims together under the
First Amendment, stated that “the summary judgment evidence clearly shows
that the restrictions experienced by Plaintiff are based upon staffing, as well as
safety, security, and operational concerns, all of which are valid penological
interests.” However, none of the penological interests provided by the TDCJ
necessarily support limiting access to rune literature in the prison library. The
TDCJ’s summary judgment evidence focuses on the dangers associated with
allowing inmates to possess runestones. Specifically, TDCJ relies on the dangers
created by the stones’ small size, ancient script, and similarity to gambling
paraphernalia. These dangers associated with possession of runestones are not
necessarily present when an inmate simply seeks to study books on runes in the
prison library. As noted above, the record does not clearly present what Odinist
literature is available in the prison library, or whether literature on runes is
available at all. In his affidavit, Klaus Adams testified that Odinist literature
is available and that he removes books from the library which he deems to be
“inappropriate,” including “pornography and material which defames other

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faiths.” Mayfield averred that rune literature is banned and submitted evidence
showing a number of rune-related books denied by the library. Based on the
summary judgment record, we cannot determine the extent to which the TDCJ
allows or disallows the Odinists to access rune-related literature. Moreover,
the record does not include reference to a penological interest that would justify
limiting access to rune literature in the prison library. The district court’s
general First Amendment conclusion does not address this lack of evidence. See
Turner, 482 U.S. at 89 (stating that defendants must “put forward” a legitimate
penological interest). Because the record does not provide the necessary support
for the district court’s conclusion as to rune literature, which it reached as a
matter of law, the district court improperly resolved this issue on summary
judgment. On remand, the district court should examine the extent to which any
actual limitation on rune literature constitutes a violation Mayfield’s free-
exercise rights.
D
Mayfield relies on the same factual predicate underlying his § 1983 claims
to bring RLUIPA claims. RLUIPA imposes a higher burden than does the First
Amendment in that the statute requires prison regulators to put forth a stronger
justification for regulations that impinge on the religious practices of prison
inmates. Under RLUIPA:
No 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
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). Under RLUIPA we first ask whether the challenged
government action “substantially burdens” the plaintiff’s “religious exercise.”

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This normally requires two separate assessments, first whether the burdened
activity is “religious exercise,” and second whether that burden is “substantial.”
See Adkins, 393 F.3d at 567. The defendants have not raised any challenge as
to whether the actions Mayfield claims are burdened qualify as “religious
exercise” under RLUIPA. Therefore, we begin our analysis with the substantial
burden question. The prisoner bears the burden to establish the existence of a
substantial burden. 42 U.S.C. § 2000cc-2(b). RLUIPA does not define what
constitutes a “substantial burden.” In Adkins, we defined the term as follows:
[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 . . . . [T]he effect of a government action or
regulation is significant when it either (1) influences the adherent
to act in a way that violates his religious beliefs, or (2) forces the
adherent to choose between, on the one hand, enjoying some
generally available, non-trivial benefit, and, on the other hand,
following his religious beliefs.
Adkins, 393 F.3d at 570. We noted that the definition, “requires a case-by-case,
fact-specific inquiry to determine whether the government action or regulation
in question imposes a substantial burden.” Id. at 571. If the prisoner presents
prima facie evidence of a substantial burden, the government is required to
demonstrate that its action was supported by a compelling interest and that the
regulation is the least restrictive means of carrying out that interest. See 42
U.S.C. § 2000cc-2(b). Again, we consider both (1) the prison’s limitation on
Odinist group assembly and (2) the prison’s limitation on Mayfield’s possession
of runestones and access to rune literature.

1
As to Mayfield’s claim concerning TDCJ’s outside volunteer requirement,
the district court concluded that Mayfield failed to show a substantial burden

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upon the exercise of his faith and therefore failed to state a claim under
RLUIPA. The district court also found the prison’s application of its policy based
upon a compelling governmental interest in maintaining a safe, secure, and
efficient prison.
The district court relied heavily on our Adkins decision to dismiss
Mayfield’s claim under RLUIPA. Adkins dealt with members of the Yahweh
Evangelical Assembly (“YEA”) who brought claims under RLUIPA based on their
inability to congregate on regular Sabbath and YEA holy days. Adkins, 393 F.3d
at 571. Adkins complained of the same policy at issue here, the TDCJ’s policy
requiring an outside volunteer’s presence for group religious meetings. Id. In
Adkins, an outside volunteer was able to come to the prison once a month to
conduct services. Id. at 562. Aside from group meetings, Adkins had access to
religious materials, such as books, as well as video and audiotapes related to
YEA religious practices. In ruling on Adkins’ RLUIPA claim, we noted that the
TDCJ’s policy requiring an outside volunteer’s presence “is a uniform
requirement for all religious assemblies at Coffield [i.e., Adkins’ prison],” and
that the defendants could not be blamed for the “dearth of qualified outside
volunteers available to go to Coffield.” Id. at 571. We concluded that summary
judgment was proper as to Adkins’ RLUIPA claim because he had not
established that the volunteer policy imposed a substantial burden on his
exercise of religion.10
Because Adkins counsels a fact-specific, case-by-case review, we do not
believe that Adkins laid down a per se rule that the TDCJ’s volunteer
requirement could never impose a substantial burden on a prisoner’s exercise of
religion. Looking to the summary judgment record in this case, we conclude that

10
A panel of this court recently reached a similar holding in Baranowski, 486 F.3d at 125
(holding that the TDCJ’s volunteer requirement did not impose a substantial burden on Jewish inmates
who wanted to meet on more Sabbath and Jewish holy days than their volunteer could attend).

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material issues of fact remain. Thus, the district court erred in concluding that,
as a matter of law, the Hughes Unit’s implementation of the policy did not result
in a substantial burden on Mayfield’s religious exercise.
The summary judgment record reflects a number of disputed facts
pertinent to a substantial burden inquiry. First, the record is unclear as to how
often the Odinists’ outside volunteer could come to the prison. Mayfield and
other Odinist prisoners averred that she came, at most, twice a year, but had
only come twice in the last three years. Klaus Adams, the Hughes Unit
Chaplain, averred that the volunteer came once every three or four months. The
district court adopted Adams’ contention of every three or four months, but
provided no justification for its adoption of the TDCJ’s evidence over Mayfield’s.
This fact is central to an analysis of the burden placed on Mayfield and the other
Odinists who seek to gather for group worship. In Adkins, the volunteer was
available for monthly meetings with anticipation that new volunteers would
soon make more frequent meetings possible. See id. at 571 (noting that the
court’s concerns were alleviated by the likely presence of new volunteers). At
the summary judgment stage we must resolve disputed facts in favor of
Mayfield. Resolving the factual dispute in Mayfield’s favor, the volunteer is
available once every 18 months. Unlike the situation in Adkins, there is no
evidence in this case that new volunteers will likely soon be available to reduce
the burden on Mayfield’s ability to worship in a group.
Secondly, as noted above with regard to Mayfield’s § 1983 claim, a factual
dispute exists as to the circumstances under which the Hughes Unit and the
TDCJ allow prisoners to conduct religious services without an outside volunteer.
In Adkins, we noted the uniformity of the policy’s implementation at Coffield as
one reason why the policy did not impose a substantial burden. See id. Because
the volunteer policy was implemented uniformly in the Adkins case, it was not
the policy imposing the burden on Adkins’ religious practice, but instead the lack

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of qualified volunteers. Id. While we recognize that Mayfield’s ability to gather
for group worship appears to suffer from a similar lack of volunteers, Mayfield
has presented evidence which calls into question the uniformity of the policy’s
application at the Hughes Unit, suggesting that the burden is at least partially
imposed by the TDCJ’s disparate application.
Finally, we note again the disputed evidence concerning the alternatives
available to the Odinists to practice their faith. In Adkins, we recognized that
the YEA had access to religious literature, as well as video and audio tapes
related to YEA religious practices. Id. at 564. Affidavits from Mayfield and
other Odinist prisoners suggest that the Hughes Unit’s Odinists do not have
similar access to alternative means of worship. An inability to exercise other
means of Odinist worship increases the relative burden imposed by the TDCJ’s
policy preventing group meetings in the absence of an outside volunteer.
We hold that these factual disputes, when resolved in Mayfield’s favor,
provide a reasonable basis for a finder of fact to conclude that the application of
TDCJ’s volunteer policy imposes a substantial burden on Mayfield’s right to
exercise his religion. Even assuming the district court correctly concluded that
the TDCJ’s policy is supported by a compelling interest in prison security and
space considerations, the district court’s grant of summary judgment cannot
stand. The district court reached no conclusion as to RLUIPA’s necessary third
step: whether the TDCJ has shown the application of its policy to be narrowly
tailored as a matter of law.11 The unresolved factual issues regarding the

11
In Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam), we affirmed a district court’s
dismissal of a prisoner’s claim under RLUIPA despite the fact that the district court did not reach a
conclusion as to whether the prison’s regulation was narrowly tailored to achieve a compelling
governmental interest. However, in Longoria we recognized that the TDCJ’s religious grooming policy
had already been evaluated under RLUIPA’s predecessor statute, the Religious Freedom Restoration
Act (“RFRA”). Id. at 901 (citing Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997)). In Diaz, we held that the
grooming policy was supported by a compelling interest and that it was narrowly tailored to achieve
that interest. Diaz, 114 F.3d at 72-73. Because RLUIPA and RFRA both contain the same test
requiring narrow tailoring and a compelling interest, we concluded in Longoria that the district court
was not required to reexamine the TDCJ’s religious grooming policy to reach a conclusion that Longoria

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TDCJ’s neutral application of the policy call into question whether the TDCJ’s
application of its policy to the Odinists is narrowly tailored to the TDCJ’s
asserted interests. Accordingly, the district court improperly granted summary
judgment as to Mayfield’s RLUIPA claim concerning limitations on the Odinists’
ability to congregate for religious meetings.
2
Mayfield also contends that the TDCJ violated RLUIPA through its policy
concerning runestones))specifically by preventing personal possession of
runestones and banning rune-related literature from the prison library. The
district court concluded that Mayfield failed to show a substantial burden on his
religious exercise, and also found the TDCJ’s runestone policy supported by a
compelling governmental interest in maintaining a safe, secure, and efficient
prison. Again, the district court reached no conclusion as to whether the
runestone policy is the least restrictive means of achieving the TDCJ’s asserted
interest.
Taking the facts in the light most favorable to Mayfield, we find that the
summary judgment record could support a finding that his religious exercise is
substantially burdened by the TDCJ’s policy preventing possession of
runestones. Undisputed evidence shows that TDCJ only allows Mayfield access
to runestones when the outside volunteer comes to the prison. Mayfield has
submitted evidence that runestones are part of Odinist religious practice, and
no questions have been raised as to the “honesty and accuracy of his contention
that the religious practice at issue is important to the free exercise of his
religion.” Adkins, 393 F.3d at 570. Because Mayfield’s religion advocates
regular, personal study of the runestones in addition to their being used in group

failed to state a claim. Longoria, 507 F.3d at 904. We are not presented with the same situation in this
case))no prior opinion of this court has fully evaluated the TDCJ’s volunteer requirement to reach a
holding that the policy is both supported by a compelling interest and is narrowly tailored.

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ceremonies, the TDCJ’s policy could be seen as substantially burdening
Mayfield’s exercise of religion because the policy “influences [Mayfield] to act in
a way that violates his religious beliefs.” Id.
The TDCJ argues that Mayfield simply seeks to act in a way that is not
otherwise generally allowed in the prison, and therefore, the policy denying
access to runestones cannot be said to cause a substantial burden. See id.
(stating that “a government action or regulation does not rise to the level of a
substantial burden on religious exercise if it merely prevents the adherent from
either enjoying some benefit that is not otherwise generally available or acting
in a way that is not otherwise generally allowed.”). According to the TDCJ no
inmates are allowed to personally possess items posing security risks equal to
those posed by runestones. Because he seeks access to items that could be used
to gamble, pass secret messages, and identify gang members, the TDCJ argues
that Mayfield seeks to act in a way not otherwise generally allowed.12 However,
the TDCJ’s argument compresses the steps to our RLUIPA analysis. One can
only accept the TDCJ’s argument if one first accepts the TDCJ’s argument that
runestones are in fact like dice, tarot cards, etc. The TDCJ cannot use what is
effectively a compelling interest argument to answer the preceding question of
whether Mayfield’s religious exercise is substantially burdened. Adkins
recognizes that an inmate cannot meet RLUIPA’s substantial burden
requirement by requesting treatment “not otherwise generally allowed.” But
runestones were not generally disallowed prior to Mayfield’s request. Adkins
does not allow prison regulators to undermine a policy’s substantial burden by
comparing a “religious exercise,” not previously disallowed, to another
disallowed behavior. RLUIPA’s standard provides space for these arguments by

12
We note again, as with the § 1983 claim, that these arguments do not address Mayfield’s
evidence of the TDCJ’s limiting access to rune-related literature, as distinct from actual possession of
runestones.

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allowing the government to show that its policy is narrowly tailored to serve a
compelling governmental interest.
For the foregoing reasons, the district court erred in concluding that
Mayfield failed, as a matter of law, to establish that the TDCJ’s runestones
policy imposed a substantial burden on his religious exercise. We find that
Mayfield has submitted evidence that could allow a reasonable trier of fact to
conclude that the TDCJ’s runestones policy substantially burdens his religious
exercise. And while the district court found the runestones policy supported by
a compelling interest, it did not determine whether the policy was narrowly
tailored to serve that interest. Even if we agreed with the district court’s
compelling interest finding, we could not affirm the district court’s grant of
summary judgment, as questions remain regarding whether the policy is
narrowly tailored.
Since the district court’s decision in this case, the TDCJ submitted
evidence which expresses its intent to begin a pilot program allowing limited
access to runestones. According to TDCJ, the pilot program would allow
prisoners to purchase their own set of approved runestones. Under the pilot
program the runestones are to be kept in the custody of the unit chaplain and
checked out to inmates for use during approved time slots. But according to the
evidence submitted, the pilot program has not yet been implemented. Upon
remand, the district court should request new evidence concerning the pilot
program. The pilot program, if implemented, would alter the TDCJ’s runestones
policy such that it imposes a lessened burden on Mayfield’s religious exercise.
Further, the pilot program, as described, would seemingly represent a less
restrictive means for carrying out the TDCJ’s penological interests in limiting
access to runestones. However, according to the evidence before us, the
program has not yet been implemented and therefore does not impact our
analysis of whether issues of fact currently exist as to Mayfield’s RLUIPA claim.

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III
We AFFIRM the district court’s summary judgment dismissal to the extent
that Mayfield seeks compensatory damages, as those claims are barred by 42
U.S.C. § 1997e(e).
We AFFIRM the district court’s dismissal of non-damage claims against
the TDCJ.
Because no material issues of fact remain, we AFFIRM the district court’s
grant of summary judgment as to Mayfield’s § 1983 claims against Johnson and
Pierce concerning the possession of runestones.
We VACATE the district court’s grant of summary judgment as to the
following claims: Mayfield’s § 1983 claims for declaratory and injunctive relief
against Johnson and Pierce, in their official capacities, based on TDCJ’s
application of the outside-volunteer requirement for religious group meetings
and based on the TDCJ’s denial of rune-related literature; Mayfield’s RLUIPA
claims concerning the volunteer policy and the overall runestones policy to the
extent they seek declaratory and injunctive relief against Johnson and Pierce,
in their official capacities.
Finally, when we reverse a district court’s decision to dismiss under the
PLRA for failure to state a claim, it nullifies the strike imposed against a
prisoner under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387 (5th Cir. 1996). Because summary judgment was inappropriate as to some
of Mayfield’s claims, the district court erred in concluding that Mayfield failed
to state a claim under 28 U.S.C. § 1915(e). See Praylor v. Tex. Dep’t of Criminal
Justice, 430 F.3d 1208, 1209 (5th Cir. 2005) (stating that we review dismissals
for failure to state a claim under the PLRA under the same standard as
dismissals under FED. R. CIV. P. 12(b)(6)). Therefore, we also REVERSE the
district court’s decision to impose a strike against Mayfield for failure to state
a claim upon which relief could be granted.

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We REMAND for further proceedings consistent with this opinion.

28