Moussazadeh v. Texas Department of Criminal Justice

MOUSSAZADEH, Max Plaintiff-

Appellant,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE; Solely Livingston, Brad Capacity Di-

His Official as Executive Department

rector of Texas of Crimi- Justice,

nal Correctional Institutions

Division; Sweeten, Solely David Capacity

His Official as Warden of De- Eastham Unit of Texas Justice,

partment of Criminal Correc- Division,

tional Institutions Defen-

dants-Appellees.

No. 09-40400. States Appeals,

United Court of

Fifth Circuit.

Dec. 2012.

As Corrected Feb. Goodrich, Eric Rass-

Luke William C. bach, Liberty, Religious Becket Fund for Murchison, Wylde Anne Matthew Todd La- (argued), Songer, Michael J. Robinson DC, Watkins, L.L.P., Washington, tham & Plaintiff-Appellant. (argued), D’Andrea Arthur Cleveland Gen., Cunniff, the Sol. Celamaine Office of Gen., Atty. duty.” Law Enforcement De- Jewish, Asst. He asserted that he is Austin, TX, Div., fense for Defendants- [sic],” he jewish was “born and raised Appellees. family that his “kept a kosher house hold all his life. He [sic]” claims that his faith US, Hawley, Hogan

Joshua D. Lovells foods,” requires him to “eat kosher and not L.L.P., Mach, Program Daniel on Free- being able to do so “go[ forces him to ] Belief, ACLU, Religion dom of & Wash- against beliefs,” for which [his] DC, Martin ington, Siegel, Jonathan Law will punish believes God him. P.C., He noted in Office of Martin Siegel, J. Rebecca L. Robertson, Houston, TX, grievance his that he had Kelly Anne Lau- contacted the Wheeler, O’Donnell, denslager, Trigg prison chaplain & captain of the mess L.L.P., Sink, Coie, Michael Alex facility Perkins request Eastham to L.L.P., Denver, CO, Stern, Marc D. Amer- meals but that requests had been de- Committee, ican Jewish City, New York nied.

for Amici Curiae. July On TDCJ denied Moussazadeh’s

grievance and provide refused to him with provided kosher food. It no reason for doing only so and stated that as a matter KING, Before SMITH and of current policy, provide did not kosher BARKSDALE, Judges. Circuit meals. Appealing the outcome of his Step 1 grievance, July 29 Moussazadeh filed SMITH, JERRY E. Judge: Circuit Step grievance, a which was denied on Through years more than seven of liti- September 19. The Response Grievance gation, Max Moussazadeh sought ko- stated that TDCJ could “take no further sher meals while confined at the Texas action in this matter.” Department of Criminal Justice exhausted the grievance pro- Having (“TDCJ”). court, The district on motion cess, Moussazadeh sued TDCJ and for summary judgment, dismissed Mous- (collectively officials referred to as sazadeh’s claim on independent two “TDCJ”) in October alleging sub- grounds: failure to exhaust administrative stantially the same facts griev- as required by remedies as the Prison Liti- He argued ances. that he was a “sincere (“PLRA”) gation Reform Act and lack of adherent of the Jewish faith” and that a sincerity belief required as requires fundamental tenet that believers Religious under the Land Use and Insti- prepared “eat food and in a (“RLUIPA”). served kosher tutionalized Act Persons manner.” grievances He noted his Moussazadeh and appeals, and we reverse and requests remand. TDCJ’s denial of his for kosher food, and he asserted that TDCJ’s refusal I. Background. provide to kosher food awas violation of Religious RLUIPA and the Texas Free- A. History. Procedural dom Restoration Act. He in- requested (“Eastham”) While at the Eastham Unit junctive declaratory relief compelling serving a seventy-five-year sentence for provide him with nutritionally TDCJ murder, July Moussazadeh on sufficient kosher meals. properly Step filed a 1 administrative About six months after the suit was grievance complaining that he was “forced filed, the stayed discovery to eat district court requesting non kosher foods” and request parties that he “be allowed to receive of the to facilitate set- kosher part meals because it is negotiations. nearly year tlement After [his] manner, in a certain pared, ko- and served began offering negotiations, TDCJ String- they types hall at the certain of food. For dining food in the exclude sher which, in (“Stringfellow”), fellow nonkosher. Food example, pork per Unit se transferred; 2007, Moussazadeh was April becomes otherwise be kosher would kosher meals from began receiving he then if with nonkosher food or nonkosher mixed charge. parties free of the kitchen into contact with utensils brought however, settle, re- because TDCJ did of non- preparation have been used in the meet Moussazadeh’s demand for fused to reason, food. For certain kosher deny him guarantee that it would not ever served, not be and a types of food must later, years the district kosher food. Two cookware, utensils, separate set Mous- court dismissed the case as moot. be used. generally flatware must TDCJ, 2009 WL sazadeh suit, program Before this TDCJ had no (S.D.Tex. 2009). Mar. providing kosher food inmates. dismissal, appealed case, fact, of this during pendency he com appeal pending, and while his successfully litigated against anoth an infraction and was transferred mitted kosher prisoner requested er who had (“Stiles”), to the Stiles which did not Unit Hart, food. See Baranowski v. dining hall but provide kosher meals (5th Cir.2007). During settlement offer kosher food for at the did Moussazadeh, however, with negotiations remanded, con commissary. This court study logistics TDCJ undertook changed those circumstances cluding that food to obser providing and cost of kosher longer Moussazadeh’s claim no rendered It vant Jewish inmates. examined TDCJ, moot. Moussazadeh v. See programs prison systems, in other such as Cir.2010) (5th curiam). (per Fed.Appx. Colorado, Pennsylvania, in and the those remand, parties On the conducted fur- Prisons, Federal Bureau of offered discovery ther and filed cross-motions meals, entirely “cold” kosher prepackaged summary judgment. The district court site, prepared kosher meals on and the summary judgment granted for TDCJ the Bureau of program “common fare” First, grounds. two it held that Moussaza- Prisons. PLRA, by claim was barred the deh’s draw- TDCJ considered the benefits and their requires which inmates to exhaust system imple- and decided to backs of each seeking ju- before administrative remedies first, program. ment a two-tier The the alternative, In the dicially granted relief. Unit, Designated provided Basic Jewish court under based dismissed RLUIPA in purchased kosher meals that could be on its conclusion that Moussazadeh was prison commissary, marketplace a beliefs, in so there religious not sincere hy- can food and purchase where inmates was no substantial burden on his Basic were located at gienic items. Units timely appealed. exercise. Moussazadeh Terrell, Stiles, Wynne Darrington, and Background. B. Factual tier, facilities. The second the Enhanced Unit, provided kosher Designated Jewish party disputes Neither the fact charge meals free of to Jewish offenders laws, “kashrut,” dietary are funda- Jewish The-only hall. Enhanced prison dining as em- practice mental to the of Judaism Stringfellow. pro- located at To Unit was and laws. bodied Torah Rabbinic there, food TDCJ cordoned off vide kosher Food that satisfies the biblical and rabbinic already extant kitchen and a section of the requirements is deemed “kosher.” Those utensils, stored, refrig- items such as pre- purchased demand that food be laws erator, microwave, years and a burner for the fellow for consistently two ate meals, of kosher the kosher even preparation though they exclusive food. often establishing the kosher kitchen was consisted of food cost he characterized as $8,066.26. distasteful,” “highly such as tofu. He al- leged by that he was harassed prison offi- implement the two-tier TDCJ decided cials for his -beliefs and for his cost, program including based on factors attempt by to secure kosher food means of convenience, dynamics of the Jew- this suit. prison ish There are about population. prisoners Jewish out of self-identified Moussazadeh committed serious 140,000 than prisoners security more TDCJ cus- infractions that increased his level these, tody. only “recog- Of 70-75 are from to Stringfellow G4 G5. Because was Jewish, offenders, nized” as and another 90 are in the not designated to house G5 level process. conversion Because of the cost Moussazadeh was transferred to Stiles. establishing only associated with a kosher The Desig- had Basic Jewish Unit, kitchen and the low number of Jewish nated and so Moussazadeh did not decided to build prisoners, single its receive kosher meals from the dining hall. Stringfellow Enhanced Unit and move He was able to them in the com- prisoners all observant Jewish missary, there. which he did at during least Stringfellow holiday. was chosen because it is clas- Passover purchased He also food prisoners kosher, sified to house with a range wide that was not certified as such as levels, security everyone except coffee and sweets. He eventually became most violent offenders. also eligible Stringfellow, to transfer back to large population short-lived, is close to a Jewish eligibility but that because again TDCJ determined would facilitate kosher lost it after committing another certification and would volunteer disciplinary services infraction. At the time of oral provide religious argument materials. appeal, this re- Stiles, mains at where he does not receive start-up Aside from the costs free kosher meals. kitchen, Desig- TDCJ’s Enhanced nated program regu- Unit cost more than II. Standard of Review. 2009, lar In prison expen- meals. TDCJ’s Summary judgments are reviewed just ditures on food service were over Corp. de novo. See Meditrust Fin. Servs. million, per day, with per a cost $183.5 Chems., Inc., 211, Sterling v. 168 F.3d 213 inmate, $3.87; the cost food from the (5th Cir.1999). Summary judgment ap is Stringfellow kosher kitchen was $6.82. where, propriate taking the evidence The total extra cost based on TDCJ’s 2009 light nonmoving most favorable to the par $1,095 roughly per year, per data is in- ty, genuine dispute there is no of material Designated mate. The Basic Jewish moving party fact and the is entitled Units, hand, on the other impose do not judgment as a matter of law. Celotex those same costs on TDCJ. Inmates must Catrett, 317, 322, 477 Corp. v. U.S. 106 commissary kosher food at the (1986). 2548, S.Ct. 91 L.Ed.2d 265 See with money, they their own lest receive the 56(a). also Fed.R.Civ.P. general same nonkosher food as does the population. III. Discussion. establishing After the Enhanced Unit at A. PLRA Exhaustion. Stringfellow, TDCJ transferred observant inmates, Moussazadeh, PLRA, including Jewish Under the action “[n]o String- brought respect prison there. Moussazadeh remained at shall be with 788 983, 516, 525, 152 L.Ed.2d 12 122 S.Ct. confined in by prisoner ...

conditions (2002). fa- meets those stan- complaint other correctional If the any jail, prison, or remedies avenues dards, administrative there are no further cility until such and if resolution, 42 available are exhausted.” will find as are we for administrative 1997e(a). pre-fil- § PLRA “[T]he U.S.C. exhaustion. mandatory requirement

ing exhaustion complaint prisoner’s the Where Seal, non-discretionary.” Gonzalez v. and multiple or ongoing problem an addresses (5th Cir.2012) cu- (per harm, type prison of the same instances riam). the exhaustion re- purpose grievance each need not file a new ers v. is twofold. See quirement Woodford “As a quality for exhaustion. instance to Ngo, 548 U.S. matter,” cannot be prisoner practical (2006). First, “protects it L.Ed.2d new each grievance” to file a “expected authority” by al- agency administrative manner.1 harmed in the same time he is “correct its own lowing agency the Further, direct policies expressly TDCJ’s being immediately than mistakes” rather multiple grievances file prisoners not to (internal court.” Id. “haled into federal harm, they sanc repeating threaten omitted). Second, promotes citations filings.2 Where tions for excessive review efficiency insofar as administrative general of a original grievance complains faster and more generally are processes circumstances will prison policy, changed Even litigation. than Id. economical necessarily necessitate re-exhaustion.3 parties subsequently judi- seek where remedies, cial the administrative-review initially went record to produces often a useful process process through grievance entire TDCJ’s expedite proceedings. further ease Texas, filing prison this suit. In before Madigan, 503 McCarthy Id. See also two-step process. grievances involve a 140, 150-51, 112 S.Ct. Step grievance, The inmate first files a (1992). grievance which he must state the determining exhaustion under denied, If relief is proposed relief. PLRA, estab processes we look to grievance may Step inmate then file a use of by parties’ and the lished Moussazadeh filed appealing the denial. with the suffi processes, beginning these indeed, filing And before for both claims. “complaint.” We ciency of the inmate’s sought the assistance of grievances, mal according to “typically use a standard captain prison chaplain and the kitchen give prison offi grievance which a should In its denial of his resolving the issue. that will problem cials ‘fair notice’ of the told Moussazadeh Step grievance, TDCJ prisoner’s the basis of the suit.” form action could be taken re that no further (5th Johnson, v. F.3d Johnson garding request his for kosher food. Cir.2004). complaint must be suffi held that Moussaza- The district court “time and give cient in detail to officials There was a con- deh had not exhausted. complaints inter opportunity to address circumstances, vergence changed the initiation of a nally allowing before Nussle, found, him re-exhaust. required to Porter v. 534 U.S. federal case.” 1.Johnson, (holding that a 2. See id. 385 F.3d at 521 prisoner on who suffered similar harassment sufficiently multiple had exhausted occasions Litscher, F.Supp.2d (citing Id. Aiello grievances though he filed new even had not (W.D.Wis.2000)). harassment). at each instance Namely, put place a kosher meals er to dismiss under the PLRA. This case program and served Moussazadeh kosher ongoing has been for more than seven prison during meals from the kitchen his years. The process administrative yet has Thereafter, Stringfellow. time at Moussa- yield satisfactory result, to and the final Stiles, zadeh was transferred to which left grievance response stated that TDCJ position. him in a different The district would “take no further action.” Insofar as court him required held these facts to the purpose of exhaustion under grievances. disagree. submit new We PLRA provide is to notice of prisoner’s

Although can grievances ko- and a prison chance for the sher food Stiles and did receive kosher them, system to address these proceedings Stringfellow, food for a time at the claim have undoubtedly accomplished those ob- gave to initial grievances rise and jectives. fully TDCJ is aware of Moussa- suit unchanged. original remains His requests zadeh’s and complaints. Nothing grievance to “grant asked TDCJ ac- [him] that, in the record suggests were Moussa- cess to kosher meals in the dining zadeh to file an grievance, administrative hall.” In Requested the “Action to resolve any TDCJ would take Forcing action. re- field, your Complaint” Moussazadeh asked exhaustion would be fruitless and would to “receive kosher meals from the unit needlessly already prolonged extend litiga- kitchen dining grievance hall.”4 The tion. kosher, related to his ability to be fed a Finding the need for re-exhaustion here nutritionally diet in adequate dining would also allow poten- TDCJ and future hall as a substitute for the nonkosher tial improper defendants to take advantage meals he being was served. His claim is requirement. PLRA’s exhaustion for relief ongoing related to conduct—he is any To avoid future suit grounds of not currently being denied kosher food. Even diet, providing a kosher TDCJ would though he granted was the relief he re- merely have to transfer the complaining time, quested away for a it has been taken inmate to after a suit was from him. filed, then move for dismissal. Once the This analogous to the situation in dismissed, suit was TDCJ would have free Johnson, prisoner in which a being reign deny the inmate kosher food regular every assaulted on a basis but not again. assuming Even faith good on the Johnson, single day. See 385 F.3d at 521. TDCJ, part of system, such a which would We explained pattern that the of assault be under allowable the district court’s un- require multiple grievances. did not Id. PLRA, derstanding of the would be con- Johnson did not have to be assaulted each trary to the purposes the act. every day underlying for the conduct his grievance to be ongoing. considered Finally, the statute states that ac “[n]o Similarly, Moussazadeh’s claim relates brought tion shall be ... until” adminis conduct that continues occur. trative remedies have been exhausted. 42 1997e(a) added). § (emphasis U.S.C. Once

Further, even granting that Moussaza- exhausted, those are remedies the suit deh’s situation changed with his trans- may fer to be filed. All of previous Stiles and that he is now free to our cases food, improp- § kosher it would be upholding dismissals under 1997e have 4. TDCJ apply understanding complaint asks us to an even narrower does not com reading complaint. sug port language. of It Moussazadeh’s with its clear Moussazadeh gests grievance original only request explicitly that requested by his kosher meals served ed "access” to kosher food. That strained kitchen.

790 exercise” is “religious whether a at all are grievances to file involved a failure places a re the state action the administrative and whether a failure to see issue or to its conclusion.5 that exercise.6 through burden” on process view “substantial that, held once have never before We within the substantial-burden Subsumed remedies, available initially exhausted the inmate question whether inquiry is re-exhaust based inmate must an reli- requested in the sincerely believes The PLRA circumstances. changed 13, n. 125 id. at 725 gious exercises. See threshold; met, it a suit once is as a serves into sinc- (noting inquiries 2113 5.Ct. claims long so as the may not be dismissed RLUIPA). A under erity appropriate are litiga years In seven of remain the same. be substan- sincerely not held cannot belief tion, not amended Moussazadeh has tially burdened. fact, court the district complaint initial —in an not need to file that he did noted Exercise. Religious 1. complaint. amended by exercise” is defined “Religious exhausted his administra- “any religion, exercise of as RLUIPA properly when he remedies in 2005 tive to, by, or central compelled whether or not has been on notice grievances. filed 42 religious belief.” U.S.C. system a com- time of Moussazadeh’s since 2000cc-5(7)(A). do not dis- parties § The for food to request and his plaints faith of centrality to the Jewish pute the “Re-exhaus- dining hall. be served they dispute Nor do keeping kosher. Moussazadeh has required; tion” is not “religious eating kosher food constitutes law. as a matter of met the exhaustion properly held exercise.” The district court this to be so. B. RLUIPA. RLUIPA, government Under Sincerity. 2. may “im matter not general entities as burdened, substantially To be religious on the

pose a substantial burden sincerely belief must be held. religious person residing of a or confined exercise open ‘truth’ of a belief is not “[W]hile institution, ... even if the burden to an significant question, there remains general applicabili from a rule of results ” ‘truly whether held.’ question of 2000cc-l(a). § ty.” 42 RLUIPA U.S.C. 163, 185, Seeger, v. 380 U.S. United States persons who are “protects institutionalized (1965). 850, It 13 L.Ed.2d 733 85 S.Ct. freely attend to their unable matter whether a belief does not dependent on the needs and are therefore religion, only but itself is central to and accommoda government’s permission have an honest belief that “the adherent [ ] religion.” for exercise of their Cutter tion to his free practice important that the Wilkinson, 544 v. v. Lone (2005). religion.” Sossamon exercise 2113, 161 L.Ed.2d 1020 (5th 316, Tex., F.3d 332 Star State applying for RLUIPA questions threshold TDCJ, (5th Wheeler, See, Fed.Appx. Mayfield v. e.g., 6. Robinson v. (5th Cir.2009) Cir.2008) (upholding (stating inquiry dismissal that a RLUIPA assessments, prisoner where was for lack of exhaustion separate "normally requires two grievance before that he could re-file a told activity the burdened is 'reli- first whether initiated); Bridges, Simkins the suit exercise,’ gious whether that bur- and second (5th Cir.2009) (up- Fed.Appx. ”). den is ‘substantial’ holding lack exhaustion dismissal appeal prisoner denial of his where did required). grievance initial as 791 Cir.2009), v. who on the sincerity sub nom. Sossamon Tex issue of was Moussazadeh. aff'd —as, -, 1651, otex, 179 322, U.S. 131 S.Ct. Cel 477 at (2011). Sincerity of a belief is 2548. The determination of a substantial initial matter in a an essential RLUIPA general burden in “fact-specific and re claim. quires case-by-case analysis.”7 This is doubly regarding sincerity. true The dis few occasions to

We have “had conduct trict court improperly weighed the evi inquiry, sincerity as the part this dence proffered by heavily more challenged.” not often religious belief is than it did Moussazadeh’s. Livingston, 348 Fed.Appx. McAlister (5th Cir.2009). Sincerity gener matter, As an initial the court ally easily or established. presumed When incorrect say was that Moussazadeh however, inquired sincerity, we have as to bought nonkosher commissary. food at the we have looked to words and actions of The court concluded that items that were Sossamon, the inmate. See 560 F.3d at not certified as kosher were per se not important inquiry 332. was what “[T]he kosher, but, as Moussazadeh and amicus prisoner important claimed was relate, curiae a certificate does not render McAlister, Fed.Appx. him.” at 935. food kosher or nonkosher. See Brief for addressing In whether Moussazadeh’s Amicus Curiae American Jewish Commit sincere, religious beliefs were the district tee at 16-22. The items Moussazadeh correctly court looked to his words and soda, purchased, such as coffee and do not incorrectly actions but concluded that need a certificate to be “kosher.” Al Id. insincerity those factors established “as a though certain may adherents of Judaism matter of law.” The court decided that food, only consume certified kosher others Moussazadeh was insincere based on a per will consume food that is not se non- First, findings. combination of three may kosher. Id. practice Individuals purchased found that he “nonkosher” food fit, religion any way they their see cookies, drinks, including soft cof- items— fee, say “it is not for the Court to it is an tuna, candy at String- —while unreasonable one.” AA ex rel. Beten fellow, despite being served kosher food in Dist., baugh Indep. v. Needville Sch. Second, dining hall. the court found (5th Cir.2010). showing F.3d A that, Stiles, while at pur- sincerity necessarily require does not types chased the same of “nonkosher” food strict doctrinal adherence to standards commissary. Finally, from the the court by organized religious created hierarchies. noted that Moussazadeh had not filed a grievance requesting a transfer back to assuming, arguendo, Even Stringfellow from Stiles when he became purchased some of the food Moussazadeh eligible. nonkosher, necessarily that does not insincerity. A sinceri finding establish alone, however, findings

These do ty require perfect does not adherence to not indicate that Moussazadeh was insinc inmate, expressed by beliefs and even place, ere. the first because the court practitioner may stray the most sincere summary judgment, ruled on a motion for time to time. from sincere required “[A] it was to view the evidence in the non-movant, light religious rights most favorable to the believer doesn’t forfeit his McAlister, Fed.Appx. government action or 936. See also determine whether the (5th Kaspar, Adkins v. regulation question imposes a substantial Cir.2004) ("We recognize that our test re- exercise.”). an burden on adherent's quires case-by-case, fact-specific inquiry acknowledgment in his actions establish TDCJ’s merely scrupulous he is not because observance; religion sincerity. be for where would Moussazadeh’s of backsliders, penitents, and without its sincerity inquiry is Though the Schuler, Grayson sons?” prodigal light with a be handled important, must (7th Cir.2012). Though F.3d touch, rel. shyness.” A.A. ex “judicial or in his food may have erred Moussazadeh We limit Betenbaugh, 611 F.3d at 262. path the of strayed from purchases exclusively a credibili to “almost ourselves adherence, that alone does perfect sinceri determining when ty assessment” sincerity. claim of eviscerate his at 1219. To exam ty. Kay, See sincerity, of Mous- support his any deeply more religious ine convictions initial offered his statements his sazadeh religious realm of stray into the would that he was born grievances complaint an into which we are forbid inquiry, area always kept a raised Jewish and has den to tread.8 He offered evidence kosher household. evi- has offered sufficient from the he kosher meals requested sincerity as a matter of dence to establish staff, He chaplain, kitchen and TDCJ. his initial through law. He has shown that, String- at tendered evidence while claims, Stringfellow, his actions while fellow, provided he ate the kosher meals prosecution of this suit and his continued hall, though he dining him from the even impor- in the sincerely that he believes compared to found them to be “distasteful” laps- food. few eating tance of His the standard fare. perfect negate adherence do not his es he Moussazadeh also showed that sincerity. The overarching display of dis- religious harassed for his adherence to his improperly trict court eschewed the re- demands for kosher beliefs and for his “judicial shyness” determining quired instance, Stringfellow. while at For food otherwise. delayed there alleged guards he that the mail and searched his cell more often his Standard on Remand. C. prisoners, some- they than did so for other religious an inmate’s beliefs are Where seizing non-contraband items. times sincere and his exercise of those beliefs is pur- that he Moussazadeh offered evidence burdened, court must determine food in the Stiles com- chased some kosher has established that plaintiff whether missary, including kosher-for-Passover the burden is substantial. 42 U.S.C. attempted present meals. He also testi- 2000cc-l(a). is, § If it the state must mony supporting from authorities imposition bur- “demonstrate[ ] court re- sincerity, though the district (1) compel- ... of a that. den is in furtherance jected (2) interest; and is the ling governmental Further, during years litigation, seven furthering least restrictive means questioned TDCJ had never Moussaza- Id. compelling governmental interest.” sincerity. deh’s It created the two-tier the district questions There are thus three negotiations with him. program part as remand: whether court must address on It transferred him to so regulation substantially burdens reli- and transferred could receive kosher food conduct, government whether gious commissary of- him to Stiles because regulation, compelling Those has a interest purchase. fered kosher food for Ballard, They may put proof of their not be 8. See United States v. 322 U.S. 86-87, (1944) beliefs.”). 88 L.Ed. or doctrines ("Men may they prove. believe what cannot

793 regulation government and whether the is the least the effect of a action or achieving restrictive means of the interest. regulation significant when it either (1) the influences adherent act a 1. Substantial Burden. way beliefs, religious violates his or (2) Denying all access to kosher food forces the adherent to choose be- places practice a substantial burden on the tween, hand, on the one enjoying some Baranowski, of an faith. inmate’s 486 available, generally benefit, non-trivial F.3d at have not opined, howev We and, hand, on the other following his er, policy charging on the of inmates for religious beliefs. On the opposite end of kosher meals. however, spectrum, the government regulation action or does not rise to addressing

In substantial burdens on re Amendment, level of a ligion under the First substantial burden on religious Supreme provided guide merely Court has useful exercise if it prevents the adher- posts application for our of RLUIPA. ent from enjoying either some benefit Verner, Sherbert v. 374 U.S. that is not otherwise generally available 1790, (1963), S.Ct. L.Ed.2d 965 acting or in a way that is not otherwise that withholding unemployment Court held generally allowed. not, benefits from an individual who could Id. beliefs, based on her religious work on the argues TDCJ that what is at stake is not Sabbath would constitute a substantial pressure or forbidding religious practice burden on religion. Denying benefits Cutter, but “underwriting” it. TDCJ cites

would plaintiff] to choose be “force[ ] [the 8, 2113, 544 U.S. at 720 n. which following tween the precepts of her reli noted that “RLUIPA does not require a benefits, gion and forfeiting on the one pay State to for an inmate’s devotional hand, and abandoning precepts one of the reasons, But accessories.” for two Cutter work, religion of her in order to accept on distinguishable from the case at hand: type imposi other hand.” Id. This of First, it addressed an Establishment tion substantially religion burdens because challenge Clause to RLUIPA. The Court it would be the “a imposed same as fine was not focused on analyzing question against appellant her Saturday for wor Second, of a substantial burden. the bene- ship.” Similarly, Id. in Thomas v. Re fit requested provision Cutter was of view Board the Indiana Employment items, religious not food. Like the unem- Division, 707, 717-18, Security 450 U.S. ployment Sherbert, payments at issue in (1981), S.Ct. food is an given “essential” benefit to ev- Court held that conditioning receipt of “an ery prisoner, regardless religious belief. important benefit” upon religiously pro Sherbert, Adkins, Thomas, Based on conduct, scribed or denying a benefit be denial religiously sufficient food where by cause of “conduct mandated generally is a available benefit would con- belief,” impose would a substantial burden stitute substantial burden on the exercise religion. of religion. RLUIPA, Applying these standards to further cites Adkins, Patel v. Bureau

we held in 393 F.3d at that a Prisons, (8th Cir. government substantially action burdens 2008), persuasive support as its most truly pressures belief if “it position adherent that there is no substantial bur significantly modify his reli- gious behavior and den. Prisoner Patel significantly requested violate his had halal religious beliefs.” explained We food and was served food that did not Moussazadeh is charge. Only diet free of of Islamic di- conception with his

comport benefit, forced to that would have because he is Halal denied that etary law. meals practice him were This satisfied available his kosher meals. pay for Pa- commissary. Id. at 816. ability to exer- substantially burdens evidence that could offered no tel had religious cise his beliefs. the halal food. The purchase

not afford to not have did to prison court held that Compelling Interest. meals from the com- him free halal provide escape can entity governmental A imposing not and that it was a missary burdening substantially on prohibition religious exer- substantial burden on it establishes that religious practice where cise. doing interest in so. compelling it has a grounds. on two distinguishable Patel is it has two interests: alleges that TDCJ First, to Eighth appears define Circuit court security costs. This held differently from burden” how “substantial Baranowski, 125, that F.3d at these in According Eighth to the it. we define case, considerations, particular in that con Circuit, “signifi- must action government compelling a interest. stituted or ex- inhibit or conduct cantly constrain some central tenet that manifests pression produce to evi failed TDCJ has beliefs; person’s a individual pro related to security dence of concerns abili- person’s curtail a meaningfully must It offered at Stiles. viding kosher food faith; to his or her ty express to adherence at Stiles evidence that the offenders have opportu- reasonable deny person must a or convicted of more violent generally been in activities that are engage nities to those crimes, any it did not offer evidence but religion” in or- person’s to a fundamental would be more offenders those violent burden. constitute a Id. der to substantial safety or likely to violence more cause 988). F.3d at Murphy, 372 (quoting at 813 prisoners a of some as result disturbances Adkins, definition, in embodied Unlike our food. TDCJ relied on being served kosher definition of substan- Eighth Circuit’s more violent offenders bare assertions that no reference to denial of tial makes burden security if present greater a threat would generally available benefits. served, but this is different meals were Second, distinguishable because Patel is compelling inter insufficient establish already were food both kosher halal remand, On est related to facts. these charge dining being offered free of may present evidence substantiat TDCJ food, only halal requested not hall. Patel concerns, if security claims of such ing its already being served and satis- which was evidence exists. prison, fied all the other Muslims version halal particularly but a nuanced for has shown that costs kosher TDCJ twenty- Additionally, food. sixteen they double what food would be almost week in Patel each one meals received that is for the “loaf’ would be nonkosher dining hall met his standards. at Stiles. prisoners served to other Mous- deny those extra costs. sazadeh does inmate is denied a Where an compelling that it has a argument TDCJ’s because of his generally available benefit by denying minimizing costs interest beliefs, a substantial burden is food, however, Moussazadeh kosher Every prisoner him. imposed fact that it has been by the dampened nutritionally custody TDCJ’s receives prisoners offering kosher meals Every observant Jewish sufficient diet. them at years provides than two more receives prisoner pelling] demanding no cost to all observant Jewish inmates interest is the most accepted Stringfellow. a transfer test known to constitutional City law.” Flores, Boerne Further, of providing the increased cost 2157, 138 (1997). S.Ct. prisoners to all observant kosher food expensive pre- minimal—even if the more argues it has chosen the meals, distinguished as from the packaged least by allowing restrictive means Mous meals, provided kosher—kitchen were sazadeh to kosher meals at the day pris- three times a to each observant commissary. Stiles It relies on Baranow oner, $88,000 only the cost would be about suggest ski to that complete denial of ko per year. provide To those meals to sher among food is the least restrictive Moussazadeh alone would cost a fraction of achieving goal means for its minimizing of put perspective, this. To this amount in costs preventing security and risks and budget the total food TDCJ is $183.5 that therefore its chosen method is even million. This, however, less restrictive. improperly Suthers,

In Beerheide v. 286 F.3d broadens Baranowski. We there held (10th Cir.2002), the court held that that, us, ... on the record “[b]ased before $13,000 a excluding expenditure from a policy denying [TDCJ’s] inmates ko [of budget over million not did constitute $8 maintaining sher is related to good food] interest, compelling government a even and, such, controlling order and costs as review. minimal under rational-basis That involves compelling governmental inter was, percentage outlay, cost as a of total Baranowski, (em ests.” roughly higher three times than the expen- added). phasis if expensive diture TDCJ offered the most We did not in hold Baranowski that to all program pris- kosher meal observant there cannot be a less restrictive means of reduction, Although gen- oners. cost as a achieving the security interests of and cost matter, unquestionably compelling eral a reduction, only but that on the record TDCJ, skeptical interest of we are that case, that, that there was not. We note than saving budget less .05% the food subject that a demands fact-intensive compelling constitutes a interest. We rec- inquiry, the record in Baranowski was however, ognize, inquiry that the is fact- plaintiff thin —the pro present- se and intensive, bright- and we decline to draw a any ed no evidence to rebut of TDCJ’s Adkins, line rule. See 393 F.3d at 571. regarding claims the cost of a kosher food program. holding Our in that case does 3. Least Restrictive Means. finding not foreclose a that TDCJ’s cur- Assuming, arguendo, that TDCJ estab- program rent is not the least restrictive compelling security lishes a interest in and means available. minimization, cost its chosen means of since Circumstances Baranowski was achieving that interest be must the least changed, decided have as TDCJ and right restrictive of Moussazadeh’s to exer- district court out in discus- pointed their available, “among cise his beliefs sion of administrative exhaustion. TDCJ effective alternatives.” v. Am. Ashcroft now offered kosher meals the din- Union, Civil Liberties 542 ing years hall at for and has (2004) S.Ct. purchase. offered kosher meals for To (applying the least restrictive means test context). extent that TDCJ claimed its speech “Requiring State achieving least-restrictive means of cost adopted to demonstrate ... that it has denying prison- least means of achieving completely restrictive com- reduction was [a BARKSDALE, H. Circuit food, longer so. RHESA is no ers kosher dissenting part: but Baranowski Judge, therefore is instructive dispositive. about “in- adage akin to the Amazingly, contrary and running asylum”, mates factual remains the There thus Institution- Land Religious to the Use restrictive whether there is less question (RLUIPA), 42 Act U.S.C. alized Persons maintaining minimizing costs and means of 2000cc-2000cc-5, majority is §§ the able security forcing other than peniten- to run the this inmate permitting meals. He has pay for all his kosher with two other ad- tiary. combined When alternatives less restrictive suggested four unpunished” good goes deed ages every meal he forcing pay than him to —“no the forest for the sight and “don’t lose eats, he cannot afford. which he has stated action is true character of this trees” —the supple means include Less restrictive light, for the issues re- revealed. regular prepackaged diet with menting the the ma- meals; proceedings, for further establishing another kosher manded kosher kitchen; compel- jority’s application food to Stiles from of RLUIPA’s shipping kitchen; standard, § provid 2000cc- Stringfellow’s ling-interest U.S.C. through 1(a)(2), imper- contrary precedent kosher meals ing prepackaged remand, the commissary majority’s judg- for free. On dis missibly substitutes the any Along determine whether trict court must ment for that of officials. “alternative, means would allow line, available” Moussaza- majority ignores that the any compel to achieve established fault, disciplinary TDCJ through deh’s his serious being while less restrictive ling violations, depriva- interest bringing about the ability to exercise his reli Therefore, Moussazadeh’s complains. tion about which he alternative is gion. If a less restrictive majority’s denial of although join I the available, commands 9, RLUIPA reassignment, Maj. Opn. at 796 n. adopt it. dubitante, that Moussaza- join, holdings its has met his threshold exhaustion deh reasons, summary foregoing the For Maj. Opn. sincerity requirements, REVERSED, and this matter judgment is 792, 795-96, respectfully I must dissent proceedings. REMANDED for further is my colleagues’ vacating from esteemed the district court suggest We do not how remanding for judgment for TDCJ and or what should be proceed should decisions on: whether TDCJ proceedings further guidance set forth light reached in- compelling governmental has shown a decides, to opinion. in this If the court as terest; adopted and whether it has issue, any genuine that there are no dis- achieving means of least restrictive fact, summary judgment putes material issues). (remanded interest are fact may appropriate. be If there issues, may ready for trial on the case be I. sincerity, than exhaustion and issues other summary judgment granting In which are as matters of law. now decided TDCJ, comprehensive court’s hamper the court in the district We do not mean to opinion judgment based on any way any questions and detailed its resolution satisfy the exhaustion and sincer- failure to needing to be resolved.9 still (5th Cir.1997). reassignment Sawyer, F.3d request 9. Moussazadeh’s for judge has handled this matter judge remand DE- The district a different district on bias, we are confi- "extraordinary” capably and without Reassignment an NIED. dent will continue to do so. remedy "rarely invoked.” Johnson v. she that is issues, and, therefore, ity not reach any did without access to kosher food to this remanded issues. Moussazadeh Tex. day had attempted defendants not Justice, G-07-574, Dep’t Criminal No. dietary accommodate his beliefs. (S.D.Tex. Sept. WL 4376482 (citations omitted). Id. at *14-15 2011). authority No need be cited for our In light of these penetrating com- ability to affirm the summary judgment ments, Moussazadeh asserts here: “the based on the issues that are being instead district suggested court that Moussazadeh remanded. These issues were raised in brought all of this trouble by on himself district court. ‘voluntarily committing] major disciplin- line, Along opinion provides ary truth, violations’ ”. compelling support why Moussazadeh’s knows the district court has pinpointed claim fails for the remanded issues. The exactly what he is attempting. He even following paragraphs opin- two from that characterizes this correct statement of fact ion piercing light really shine a on what is expression as an of “remarkable hostility”, afoot: requesting unsuccessfully—this action’s — TDCJ-CID defendants also note that being reassigned to a new judge on re- request Moussazadeh did not a transfer words, mand. In other he was aware that [from Stiles back to the Unit] any hope depended of success pulling Unit for reasons eyes the wool over the judge; of a new a free kosher diet [where is available] extremely able district judge sees this when he eligible became for such trans- claim for what it is with vision. 20/20 fer and that he filed no grievances com- plaining that he was denied kosher II. any meals or religious practice on the affirming the summary judgment Stiles Unit which he had been trans- [to issues, on the remanded majority errs ferred disciplinary They for violations]. First, in ways. two it applies RLUIPA’s further note that Moussazadeh volun- compelling-interest standard as if Moussa- tarily major committed disciplinary vio- claim analyzed zadeh’s were to be in a lations resulted in a [at Stiles] RLUIPA, context other than such as un- classification, change of his custodial der the Fourteenth Amendment. In that thereby, depriving him opportuni- regard, require RLUIPA does not the ex- ty to transfer back to the acting review associated with Unit, court-created freely where he could obtain ko- contexts; scrutiny strict in such other in- sher food. deed, such a harsh standard contravenes Second, purpose. Act’s in refusing to conclusory Moussazadeh’s declaration recognize really what is in play, major- does professed not demonstrate that his ity ignores having already provid- TDCJ’s religious need for kosher diet moti- ed Moussazadeh the religious benefit he vates his actions or that he attempt- seeks, and having his lost access to it ways ed to reform his and return to through repeated, disciplinary his serious keeping kosher during two-year his in- infractions. Rather, carceration on the Stiles Unit. personal desire to harass defendants A.

with an unnecessary prece- lawsuit took dence, majority City and he cites Boerne v. willing to sacrifice his of Flores, 2157, religious dietary beliefs in 521 U.S. 117 favor of this S.Ct. Indeed, (1997), pursuit. secular support would be 138 L.Ed.2d 624 its con- 798 recently explained, Supreme Court of very demanding standard that a elusion “ of application TDCJ’s matters’ in the analyzing in appropriate ‘[c]ontext

review is Wilkinson], at 795. Maj. Opn. policy. [v. kosher-food that standard.” Cutter constitu- There, 723, 2113, addressed the [709, the Court 161 544 U.S. predecessor, tionality (2005)], RLUIPA’s of (quoting Grutter L.Ed.2d 1020 Act Restoration Freedom Religious 306, 327, 123 S.Ct. Bollinger, 539 U.S. Boeme, 511, (RFRA). at 521 U.S. City (2003)). 2325, Courts 156 of notes, majority As the 117 2157. S.Ct. “compelling govern- apply should “ the test for the Boeme stated: City with ‘due of interest” standard mental achieving [a means of “least restrictive exper- and experience to the deference rigorous is the most interest” compelling] in jail and administrators tise 534, Id. at law. in all of constitutional establishing necessary regulations often re- This standard is S.Ct. order, se- good to maintain procedures fact”, in because it often as “fatal ferred to consistent with curity discipline, poli- challenged government leads to the and limited re- consideration of costs Bernal v. E.g., down. ” cy’s being struck S.Rep. No. 103- (quoting sources.’ Id. 6, Fainter, 216, 219 n. S.Ct. U.S. (1993) 111, at 10 U.S.C.C.A.N. (1984). 2312, 81 L.Ed.2d 175 1899). words, RLUIPA, in other into con majority fails to take What the elevate accommodation is not meant to in RFRA Congress’ is that use sideration over the institu- observances standard, constituting a “considera of this order, good need to maintain secu- tional into the States’ congressional ble intrusion or to control costs. rity, discipline regulate ... prerogatives traditional Lee, Lovelace v. See citizens”, welfare of their the health and (4th Cir.2006). Boerne, why, City part of the reason consistent, holding was Id. at 125. This RFRA was held unconstitutional. course, opinion Supreme with the Court’s Therefore, 117 S.Ct. 2157. Cutter, which held: context, the stan subsequent RLUIPA elevate not read RLUIPA to its We do necessarily stringent less than dard is observances accommodation of Precedent from the language suggests. court, Court, cir need to maintain our and other over an institution’s Supreme safety. Our decisions indicate cuits bears this out. order and an accommodation must be meas- already applied RLUIPA Our court override other ured so that it does not prisons. in to kosher food vel non In v.] interests. significant [Thornton (5th Hart, F.3d 112 Baranowski v. 486 2914, Caldor, 703, 105 S.Ct. 86 U.S. [472 Cir.2007). Baranowski, inmate (1985)] struck 557 the Court L.Ed.2d of complete of denial complained TDCJ’s law that “arm[ed] down Connecticut Id. at 116-19. Our court kosher food. with an absolute and Sabbath observers although provide failure to such food held: on whatev- right not to work unqualified on the in- work a substantial burden did their Sab- day they designate^] as er religious practice, TDCJ could mate’s 709, 2914. at 105 S.Ct. bath.” its menu: to add kosher food to be forced the Es- the law invalid under We held test, interest Turning compelling to the “unyield- because tablishment Clause dietary must show that their Defendants the interests of Sab- ingly] weighted]” kosher meals is providing of not policy Id., all other interests.” batarians “over furthering means of the least restrictive 2914, 710, 86 L.Ed.2d 557. at 105 S.Ct. interest. As compelling governmental We have no cause example, to believe that RLUI that the increased provid- cost of PA not be in an applied appropri would ing free kosher meals outside ately way, with particular balanced sen relatively would be Maj. minimal. at Opn. security to sitivity concerns. While the correct, 794-95. if prison Even is for adopts Act a “compelling governmental officials, court, not our to add to mix standard, 2118, supra, interest” see at for their decision in this instance. in application “[c]ontext matters” of Other have similarly courts determined that standard. See v. Bollinger, Grutter RLUIPA’s compelling-interest standard is 2325, 539 U.S. more forgiving prison to systems than the (2003). sup Lawmakers court-created, strict-scrutiny nor- standard porting were RLUIPA mindful of the mally is to government policies. For ex- order, urgency discipline, safety, and ample, in Hoevenaar v. Lazaroff, in- See, security penal e.g., institutions. mate grow wanted to a “kouplock”, a small (1993) (remarks Cong. Rec. 26190 section of hair at the base of the skull Hatch). Sen. They anticipated that grown longer than the per- rest of the apply courts would the Act’s standard hair, son’s to conform with his with “due deference to the experience (6th practice. Cir.2005). and expertise jail adminis The Ohio prison warden sys- defended his in establishing necessary trators regula hair, tem’s long absolute ban on noting its procedures tions and to good maintain (cid:127) order, security security preventing interests discipline, inmates consistent with hiding consideration of costs from and limited contraband in their hair and resources.” Joint Statement 16699 eliminating easy way an for recently-es- 103-111, (quoting S.Rep. No. caped quickly inmates to change ap- their Cong. & U.S.Code Admin.News (ie. hair). pearance by cutting their Id. at 1892, 1899, 1900). pp. Cutter, 722-23, 544 U.S. at 125 S.Ct. 2113. The district court ruled: because Baranowski thus established that main- only inmate was classified as “medium se- taining good order and controlling costs curity” health, kouplock in bad were included in such “compelling inter- threat; unlikely pose security and the ests”, and policy held TDCJ’s of providing have warden should taken that into ac- no food whatsoever was “the least count applying hair-length rule restrictive means of furthering” those in- him. Id. at 368. The Sixth Circuit re- Baranowski, 125-26; terests. 486 F.3d at versed because the district court “did not § 2000cc-l. Despite majori- U.S.C. give proper opinions deference to the ty’s attempt distinguish the cases on ... prison system”. veterans of the Id. at facts, 795-96, their Maj. Opn. at Baranow- claim, 371. a analyzing When RLUIPA ski’s admonition that RLUIPA does not courts must “requisite accord to deference allow accommodation to overrun expertise the and experience prison offi- prison considerations of administration is approach cials” in prison sys- their to the general scope. discussed, in As Baranow- compelling tem’s interests and the appro- ski held TDCJ did not violate RLUIPA’s priate achieving means of them. Id. compelling-interest standard it pro- when This more deferential standard is a far vided no options. kosher-food According- cry from scrutiny, court-created strict ly, how by can violate that standard now which the point free whole is for the providing kosher meals at one court unit making and them apply judgment available for its own at determine several majority others? The posits, government for whether a policy sufficiently is privi- seek similar of other faiths would truly compelling a

narrowly tailored to Baranowski, F.3d at 118 California, leges”. See v. interest. Johnson official). 499, 512-13, testimony of TDCJ (quoting U.S. context, (2005). In this of the examples but a few These are record demonstrates summary judgment burdens TDCJ security and cost legitimate dispute of material fact genuine there is no have majority The should has resolved. issues. the remanded that necessitates prison officials judgment to the deferred Nevertheless, majority imper- and, accordingly, af- questions on these for that missibly judgment its substituted judgment. summary firmed the TDCJ, including at professionals B. an inmate’s assess- implicitly accepting poses his wishes granting ment of whether Moreover, whether to af- assessing Moussazadeh con- security problem. the re- summary judgment firm reason to believe what tends there is no issues, majority refuses to manded would not work at Stringfellow worked at at Moussa- recognize truly what issue. Stiles, having despite TDCJ’s shown have caused disciplinary zadeh’s violations at Stiles tend to be far inmates housed They litigation drag on. should be this String- at dangerous more than those affirming factor in the sum- important an majority dismisses this clear fellow. mary judgment. security as a “bare difference situations Stringfellow, at Moussaza- When housed ]”, 794, and Maj. Opn. adopts at assertion! what he seeks now: given exactly deh was analysis, despite obvi- Moussazadeh’s charge free of provided kosher food view of what prisoner’s ous fact that “a dining longer hall. He is no housed prison security hardly objec- promotes prison chose at because TDCJ —not Frank, 388, 391 Borzych tive”. away him the kosher kitchen to move from J.). (7th Cir.2006) (Easterbrook, there, because officials found but alternative solution—that Moussazadeh’s iPod, cash, an hand- phone parts, cellular be other Orthodox Jewish inmates and lighter, marijuana cigarettes, rolled they will never be transferred guaranteed infrac- major disciplinary in his cell. This away Stringfellow presents from a simi — over, tion, glosses Maj. majority which the security String- larly obvious concern. 785-86, 787, Opn. downgraded at Moussa- designed fellow is not to house TDCJ’s result, status; security as a he was zadeh’s inmates, introducing dangerous most String- at eligible housing no longer Stringfellow’s some of those offenders into Therefore, because he was moved fellow. facility’s change environment would of his refusal to follow well-known character. Pursuant to the Su entire contraband; against necessary prison rules Cutter, admonition in Mous preme Court’s effort to continue yet special TDCJ made religious diet cannot be elevated sazadeh’s keep his claimed desire to accommodating security concerns. legitimate above these Stiles, by transferring him to 723, 125 S.Ct. buy he could kosher food. where Moreover, presented legiti- TDCJ has there, not reform Moussazadeh did Once granting mate concerns that improve in to his securi- his behavior order there. For treatment will not end special to ty and earn a transfer back status security concerns example, the cost wife contrary, Stringfellow. On him free providing with associated him phone parts to smuggled more cellular dangerous most meals at one of TDCJ’s Further, even during a visit to Stiles. likely multiply, as “inmates prisons would eligible been though for transfer R.P., by C.P., next friend R.P. and Stringfellow during part

back to of his Stiles, Plaintiff-Appellant, argument time at as of oral for this appeal requested he had never the trans- base, demanding fer. At Moussazadeh is ALAMO HEIGHTS INDEPENDENT what he had not even tried to obtain for DISTRICT, SCHOOL Defendant- Worse, himself. he is seeking to under- Appellee. prison system’s disciplinary pro- mine the recognized cess. The district court this No. 11-50956. part. majori-

fault on the inmate’s Yet the United Appeals, States Court of ty, in refusing summary judgment to Fifth Circuit. TDCJ, does not consider the conduct a factor in its decision. Dec. 2012. prison system Texas should not be

required to choose between: giving up its transfer, reasons,

right disciplinary kosher; keep

inmates who or incurring security

financial hardships in order to

accommodate, robustly even more than it does,

already they such inmates when com- disciplinary precedent

mit violations. Our unequivocal holding RLUIPA is not

meant impose hardships such ability perform

officials’ their difficult Baranowski, dangerous jobs.

F.3d

III. RLUIPA, proper

Consistent with defer-

ence by prison must be accorded decisions And,

officials. Moussazadeh’s conduct

prison should result even more defer-

ence being Unfortunately, accorded.

majority just opposite. does There-

fore, respectfully I must dissent from the

summary judgment’s being affirmed.

Case Details

Case Name: Moussazadeh v. Texas Department of Criminal Justice

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 21, 2012

Citation: 703 F.3d 781

Docket Number: 09-40400

Court Abbreviation: 5th Cir.