April 11, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Pipkins v. Stewart, 22-30687, appeal from W.D. La.
    • per curiam (Clement, Haynes, Oldham), Equal Protection Clause
    • Affirming summary judgment dismissal of plaintiff’s Equal Protection Clause claims arising from being struck during jury voir dire.
    • Based on the summary judgment evidence, the Court held that the plaintiffs “cannot show the Caddo Parish prosecutors dismissed them solely by reason of their race.”
  • Lozano v. Collier, 22-40116, appeal from S.D. Tex.
    • per curiam (Clement, Haynes, Oldham), Oldham, J., concurring; prisoner suit, religious freedom
    • Reversing summary judgment dismissal of two claims by Texas state prisoner and practicing Sunni Muslim under the Religious Land Use and Institutionalized Persons Act, vacating summary judgment on third RLUIPA claim and Establishment Clause claim, and remanding for further proceedings.
    • The Court held that the plaintiff established a genuine issue of material fact regarding his first RLUIPA claim that the failure of the prison to provide a time for Muslim inmates to shower away from the general prison population for purposes of physical and spiritual cleansing prior to their weekly Jumah service imposed a substantial burden on his ability to practice Islam. The state argued that they had allowed the plaintiff to wear boxer shorts while in the shower to satisfy a modesty requirement, but the Court held, “Wearing boxer shorts does not address Lozano’s concern that showering with other inmates who are, inter alia, ‘naked, cussing, [and] speaking idol talk’ makes it impossible for him to meet his ‘holy obligation’ for physical and spiritual ‘cleanliness in prayer for Jumah.’ So, Lozano’s lack of evidence to refute these points does not warrant summary judgment on his Jumah-shower claim.” The Court also held that the state failed to meet its burden of “explaining why specifically it is not possible to restrict weekly Jumah showers to only Muslim inmates for some relatively short period of time.” The Court reversed summary judgment on this claim.
    • Regarding the plaintiff’s RLUIPA claim that he is not afforded adequate prayer space for his five-times-daily prayer, where his bunk is too small and where other cellmates and inmates are antagonistic to his using any other space in his cell, the Court held that a genuine issue of material fact exists as to whether the plaintiff has adequate space to pray. While the state argued that the problem of other inmates invading the plaintiff’s prayer space and attempting to start a fight is not the state’s problem, the Court disagreed: “The TDCJ Defendants are directly responsible for Lozano’s housing conditions, including where he is housed, with whom he shares a cell, and even if he shares a cell.” The Court also observed that the evidence that Orthodox Jewish inmates are allowed to use the prison chapel for prayers, unsupervised, six days a week, shows that the state has a burden to show whether its religious-exercise policies are underinclusive. The Court reversed summary judgment on this claim.
    • Regarding plaintiff’s RLUIPA and Establishment Clause claims regarding the failure of the prison system to provide space and time weekly for Taleem and Quranic studies, a religious instruction component of the plaintiff’s practice, the Court held that the district court failed to adequately consider the plaintiff’s summary judgment evidence that the lack of outside volunteers to coordinate such instruction was actually due to the prison’s discouraging and deterring treatment of potential volunteers. The Court held that the district court was wrong to hold that Brown v. Collier necessarily foreclosed this claim as a matter of law. The Court again turned to the prison’s accommodation of Orthodox Jewish prayer times to observe that there is not a per se bar to the claims of accommodations for more-than-once-weekly religious exercise, such that the plaintiff’s summary judgment evidence on substantial burden should be examined. The Court vacated the summary judgment dismissal of these claims.
    • Judge Oldham concurred. He observed, “[O]ur law protects religious liberty differently inside and outside prisons. This might seem obvious. But I worry it is not obvious to some prison officials.” He noted that, while outside the prison religious exercise is based on not interfering with individual choice, “[i]nside a prison, everything is different. The baseline is not voluntary choice but involuntary coercion. … So in prison, the government often burdens religious exercise and violates the RLUIPA by not doing something—by not providing kosher food, United States v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1341 (11th Cir. 2016), or not providing a space for group religious services, Greene v. Solano Cnty. Jail, 513 F.3d 982 (9th Cir. 2008), or not providing access to a sweat lodge, Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) (Gorsuch, J.).” Judge Oldham summed up the problem: “The litigation position adopted by the TDCJ in this case misses this point. A hostile, anti-Muslim cellmate is making it hard for Lozano to pray? TDCJ says that’s not the prison’s problem, even though TDCJ controls exactly where and with whom Lozano lives. Lozano must shower before Jumah services with other non-Muslims who are cussing and blaspheming? Again, TDCJ says that’s not the prison’s problem, even though TDCJ controls when and with whom Lozano showers. Lozano cannot receive religious instruction in Taleem and Quranic Studies? You guessed it: Not the prison’s problem, even though TDCJ controls prisoner schedules, classroom schedules, and volunteer requirements. Of course, these are the prison’s problems because Congress required the prison to take affirmative steps to protect Lozano’s religious exercise. ‘Not my problem’ might be a good government defense under RFRA outside prison, but it does not cut it under RLUIPA inside prison.” Judge Oldham also expressed hope that the en banc Court would take up the reins of cleaning up older Circuit precedent that was creating a lack of clarity for district courts in the Circuit.
  • Perez v. City of San Antonio, 23-50746, appeal from W.D. Tex.
    • Stewart, J. (Richman, Stewart, Higginson), Higginson, J., dissenting in part; Free Exercise Clause, freedom of religion, mootness
    • Dismissing as moot the appeal of the district court’s preliminary injunction order allowing the plaintiffs access to a city park for religious ceremonies, and affirming the denial of the plaintiffs’ request to enjoin the City’s planned tree removal and management of cormorant rookeries in the park. Plaintiffs are members of the Lipan-Apache Native American Church, whose sincerely held religious beliefs centered around the Church’s creation beliefs requires (1) ceremonies in the particular place occupied by the park, (2) respectful treatment of the natural elements in the park, including the trees, and (3) non-interference specifically with cormorants and their nesting and rookery areas. “In this litigation, Appellants refer to this area as the ‘Sacred Area’ and the City refers to it as the ‘Project Area.’ Appellants define the Sacred Area as the twenty-foot by thirty-foot area between two cypress trees on the southern riverbank of the Lambert Beach area. Within the Project Area, the City developed plans to repair the retaining walls along the San Antonio River, repair the historic Pump House, and construct a handicap-accessible ramp.” The City’s park improvement project would require the removal of dozens of trees and the institution of bird-deterrent techniques to keep migratory birds (including cormorants) from using the trees, in order to prevent triggering protections under the Migratory Bird Treaty Act.
    • The Court held that the plaintiffs’ appeal from aspects of the district court’s ruling as to their access of the Sacred Area had become moot on appeal, as the City had provided access in the wake of the injunction ruling.
    • Under strict scrutiny, the Court upheld the denial of injunctive relief on the plaintiffs’ claims with regard to tree-removal and rookery management. The Court held that the plaintiffs had forfeited arguments regarding substantial burden on their religious exercise by failing to adequately brief that issue on appeal (focusing instead almost exclusively on the second element of the claim, whether the City’s actions are narrowly tailored to advance a compelling government interest). “Nevertheless, even if we were to consider their arguments, Appellants did not sufficiently establish a substantial burden.” The Court held that, while the burden imposed by tree-removal is “real,” it was “not significant. … [T]he City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere.” The Court then held that the City had a compelling interest in bird-deterrent measures, citing evidence that the resulting feces from nesting migratory birds renders portions of the Park nearly unusable for ten months of the year and results in damage to various infrastructure of the Park.
    • Judge Higginson dissented in part. He would hold that the district court erred in denying preliminary injunction on the tree-removal and rookery-management claims, that the plaintiffs had shown a reasonable likelihood of success on the merits of their claims that the City had not sufficiently accommodated their religious practices.

Unpublished

  • Perkins v. United Surgical Partners International, Inc., 23-10375, appeal from N.D. Tex.
    • Jones, J. (Jones, Barksdale, Elrod), ERISA
    • Reversing 12(b)(6) dismissal of plaintiffs’ claims that administrators of a defined contribution plan had mismanaged the plan’s investments and costs, in violation of ERISA, and remanding for further proceedings.
  • U.S. v. Brooks, 23-10942, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Blanco, 23-20459, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ross v. Ceres Gulf, Inc., 23-30657, appeal from E.D. La.
    • per curiam (Dennis, Wilson, Ramirez), employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s employment discrimination claims.
  • Castro v. Kory, 23-50268, appeal from W.D. Tex.
    • per curiam (Jolly, Engelhardt, Oldham), qualified immunity
    • Reversing denial of qualified immunity dismissal on unlawful prolonged arrest claim, but affirming denial of qualified immunity on all other claims, and remanding for further proceedings.
  • U.S. v. Ramos, 23-50835, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.