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Tucker v. Collier

United States Court of Appeals, Fifth Circuit

October 3, 2018

GEORGE LEE TUCKER, II, Plaintiff - Appellant,
BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JOHN A. RUPERT, Senior Warden; BILL PIERCE, Director of Chaplaincy Operations; DON LACY, Region II Regional Chaplain; AKBAR N. SHABAZZ, Region II Regional Chaplain; PATRICK COOPER, Assistant Warden; DANIAL ROSE, Staff Chaplain; BENNIE J. COLEMAN, JR., Grievance Investigator II; DOVIE C. TURNER, Grievance Investigator II; ALBERT TAYLOR, Islamic Coordinator; STEVE GADDIS, Defendants - Appellees.

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

          Before KING, ELROD, and HAYNES, Circuit Judges. [*]

          JENNIFER WALKER ELROD, Circuit Judge

         Officials of the Texas Department of Criminal Justice banned incarcerated adherents of the Nation of Gods and Earth, including plaintiff-appellant George Lee Tucker II, from congregating together as their religion requires. Tucker sued under the Religious Land Use and Institutionalized Persons Act, and the district court granted summary judgment to the defendants, which Tucker now appeals. The district court also held that Tucker's other requests-for certain resources to be used in the congregation services-had not been properly exhausted. On the RLUIPA claim, we VACATE the district court's judgment and REMAND for further proceedings. On the district court's judgment that Tucker failed to exhaust his other requests, we AFFIRM.

         For almost twenty years, George Lee Tucker II-an inmate at the Texas Department of Criminal Justice's (TDCJ) Coffield Unit-has been an adherent of the Nation of Gods and Earths (the "Nation"). The Nation is a religious belief system that started as an offshoot of the Nation of Islam in 1964 and has operated independently ever since. Though often identified with traditional Islam, some of the Nation's principles bear resemblance to those of other religions, including Buddhism and Christianity. The Nation's founder taught adherents to be "pro-righteousness," "prolong[ing] in unity and advocat[ing] peace." Adherents ultimately strive to achieve "[p]eace in [them]selves, in our nation and in the world."

         The Nation's beliefs are centered on several foundational texts: The Supreme Mathematics is a numerology in which the ten Arabic numerals correspond to principles that "provide a reference point and ruler" for daily life. The Supreme Alphabet is a hermeneutic device that adherents use to draw meaning from their everyday experiences. Nation adherents also look to the Bible, the Qur'an, a set of principles called the Twelve Jewels, and a Nation of Islam text called the 120 Degrees. Nation adherents must teach others about the knowledge of God, study the Nation's texts, observe certain honor days, attend classes, and meet with fellow adherents to study the Nation's doctrines. Nation adherents pass their teachings through oral tradition, and an adherent's advancement depends on memorizing, reciting, comprehending, and practically applying the Supreme Mathematics, the Supreme Alphabet, and the 120 Degrees.[1]

         Nation adherents also believe in the inner divinity of African-Americans: male adherents are "Gods," and female adherents are "Earths."[2] The prison officials in the instant case used this belief, as well as certain passages from some of the Nation's foundational texts, to portray the Nation as a racially supremacist organization.[3] Tucker strongly rejects this characterization, explaining, "we do not hate white people, we are not pro-black, nor anti-white; the [Nation] prolong[s] in unity and advocate[s] peace." The Nation's founder taught that adherents should not be "pro-black" or "anti-white," but that they should be "pro-righteousness and anti-devilshment [sic]."

         Texas governs the religious exercise of inmates through a policy that tiers opportunities for communal religious exercise. Adherents of ten enumerated religious categories[4] get one hour every week of "primary" communal services, and the state provides a chaplain. These adherents may also participate in additional services led by an approved volunteer. By contrast, religions that the state considers nontraditional-including the Nation-receive no guaranteed programming. Instead, they may congregate only with the assistance of a volunteer and with the approval of the Religious Practices Committee.

         Tucker tried to exercise his beliefs at traditional Muslim services, but those services gave him no meaningful opportunity for Nation-specific practice and led to tension between him and the traditionally-Muslim community in the Coffield Unit. Accordingly, for over a decade, he has submitted requests for Nation assembly to prison officials through various channels. The officials continually denied all accommodations. Other Nation adherents have also pressed for opportunities to congregate. In June 2013, inmate Sonny Baker submitted a request for Nation assembly. After interviewing Mr. Baker and an outside Nation representative, the Unit Chaplain and the Unit Warden found no "[u]nit safety/security issue" and recommended approving the request. The Religious Practices Committee then sought the expertise of the prison's Strategic Threat Group Management Office, which concluded that the Nation did not qualify as a security threat group. Despite these two conclusions, the Chaplaincy Department prepared its own report that the Religious Practices Committee considered in evaluating the request.

         That report includes an array of informal sources: rap lyrics, anonymous webpages summarizing Nation beliefs, and forum posts. The report also includes correspondence with officials at prisons in other states, some of which allow Nation assembly and some of which do not. Based on this report, the Committee denied Mr. Baker's request, explaining that "[b]ased on results of investigations within other state's [sic] correctional facilities, this group uses teachings of racial supremacy. As the agency has denied other groups the opportunity to meet, based on teachings of racial supremacy[, ] this request was denied." When Tucker later submitted his own request, the committee simply said, "request is denied," relying on the denial of Mr. Baker's request and the prior report.

         In response to this denial, Tucker filed a lawsuit alleging that prison officials violated RLUIPA and other laws. He sought declaratory and injunctive relief, including space and time to congregate with other Nation adherents. He also made several subsidiary requests for certain resources to be used in the congregation services: a crown, a flag, a cultural representative, and the right to carry his lesson to the services. The state first moved for partial summary judgment, arguing that these subsidiary requests had not been properly exhausted, and the district court agreed. The state then moved for summary judgment on Tucker's RLUIPA claims, arguing that the Nation is not a religion and that banning Nation adherents from congregating is the least restrictive means of advancing the state's interest in prison safety. The magistrate judge recommended summary judgment on the basis that this was the least restrictive means of securing prison safety, and the district court adopted this conclusion over Tucker's objection. The district court then dismissed the case with prejudice and entered judgment. Tucker filed a timely notice of appeal.


         Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to provide "expansive protection for [inmates'] religious liberty" after that protection had receded in the wake of two U.S. Supreme Court decisions. Holt v. Hobbs, 135 S.Ct. 853, 860 (2015); see also id. at 859-60, 862; Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 289 (5th Cir. 2012); Merced v. Kasson, 577 F.3d 578, 587 (5th Cir. 2009). The first was Employment Division v. Smith, in which the Supreme Court held that neutral, generally applicable laws that incidentally burden religious exercise usually do not violate the First Amendment's Free Exercise Clause. 494 U.S. 872, 878-82 (1990). Smith marked a sea change in Free Exercise Clause analysis. The previously prevailing precedents-Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963)-gave far less leeway to government, allowing the state to substantially burden religious exercise only when necessary to further a compelling interest. See Yoder, 406 U.S. at 214, 219; Sherbert, 374 U.S. at 403, 406.

         Seeking to salvage this pre-Smith standard, Congress enacted the Religious Freedom Restoration Act (RFRA). 42 U.S.C. § 2000bb(b)(1) ("The purposes of this chapter are . . . to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder." (internal citations omitted)); Opulent Life, 697 F.3d at 289; Merced, 577 F.3d at 587. RFRA provides that "[g]overnment shall not substantially burden a person's exercise of religion"-even by using generally applicable rules-unless the government "demonstrates that application of the burden to the 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. § 2000bb-1(a), (b).

         The second of the RLUIPA-triggering decisions came in 1997, when the Supreme Court decided City of Boerne v. Flores, 521 U.S. 507 (1997). Congress had relied on Section 5 of the Fourteenth Amendment as the basis for applying RFRA to the states, but the Supreme Court held in City of Boerne that this exceeded Congress's powers under that provision. Id. at 536. Congress responded with RLUIPA, which applies to the states by invoking congressional authority under the Spending and Commerce Clauses. 42 U.S.C. § 2000cc-1; Holt, 135 S.Ct. at 860; Opulent Life, 697 F.3d at 289; Merced, 577 F.3d at 587. RLUIPA protects religious liberty in two policy domains: land-use regulation and, as relevant here, the religious exercise of institutionalized persons. 42 U.S.C. §§ 2000cc, 2000cc-1. RLUIPA's text mirrors that of RFRA, providing that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that 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. Thus, RLUIPA allows prisoners "to seek religious accommodations pursuant to the same standard as set forth in RFRA." Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 436 (2006).

         For both prongs of its strict scrutiny test, RLUIPA mandates an individualized inquiry. The compelling-interest prong requires the government to "demonstrate that the compelling interest test is satisfied through application of the challenged law to . . . the particular claimant whose sincere exercise of religion is being substantially burdened." Holt, 135 S.Ct. at 863 (emphasis added) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2779 (2014)); see also Merced, 577 F.3d at 592. The interest cannot be "broadly formulated," Holt, 135 S.Ct. at 863, or "grounded on mere speculation, exaggerated fears, or post-hoc rationalizations." Ware v. La. Dep't of Corr., 866 F.3d 263, 268 (5th Cir. 2017). The least-restrictive-means prong is similarly context-specific. When, for example, a particular claimant shows enough trustworthiness, such that he will not likely exploit his religious-based exemption to ...

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