     Case: 15-41643       Document: 00514667452      Page: 1   Date Filed: 10/03/2018




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

                                                                             FILED
                                      No. 15-41643                     October 3, 2018
                                                                        Lyle W. Cayce
GEORGE LEE TUCKER, II,                                                       Clerk


                Plaintiff – Appellant,

v.

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


      ∗
          Judge King concurs in the judgment only.
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                                  No. 15-41643
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,
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                                      No. 15-41643
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


       1 Some refer to the Nation as the Five-Percent Nation because it believes that the
world consists of three groups: 85 percent of people who are blind to the knowledge of
themselves, 10 percent of people who know the truth but teach a lie for personal gain, and 5
percent of people—the “Poor Righteous Teachers”—who do not subscribe to the teachings of
the 10 percent.

       According to the Nation, Allah stands for “Arm, Leg, Leg, Arm, Head,” signifying the
       2

adherents’ belief in their own divinity.

       3  “Supremacist” is defined as “an advocate or adherent of some concept of group
supremacy.” Webster’s Third New International Dictionary 2299 (2002). Though this
definition includes supremacism based on traits other than race—for example, age, ethnicity,
religion, sex, or socioeconomic class—we use the word in this opinion to describe only racial
supremacists. The prison believes that this kind of supremacy, an alleged belief in the
supremacy of African-Americans, causes security concerns.

       4Those religious categories consist of Catholicism, Non-Roman-Catholic Christianity,
Islam, Sabbatarianism, Judaism, Native American religions, Neo-Paganism, Eastern
Religion, Jehovah’s Witnesses, and Mormonism.
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                                  No. 15-41643
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
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                                  No. 15-41643
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.
                                        I.
      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–
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                                 No. 15-41643
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
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                                 No. 15-41643
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 undermine prison security, withholding that exemption is
unlikely to be the least restrictive means. Davis v. Davis, 826 F.3d 258, 272
(5th Cir. 2016) (citing Ali v. Stephens, 822 F.3d 776, 785–94 (5th Cir. 2016)).
      There are good reasons for this individualized inquiry.         First, the
statute’s text allows a substantial burden on religious exercise only if the
government “demonstrates that imposition of the burden on [the] person”
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furthers a compelling interest through the least restrictive means.
42 U.S.C. § 2000cc-1 (emphasis added); see also Gonzales, 546 U.S. at 430–31;
Merced, 577 F.3d at 592. Second, Congress instructed that the statute “shall
be construed in favor of a broad protection of religious exercise, to the
maximum extent permitted by the terms of this chapter and the Constitution.”
42 U.S.C. § 2000cc-3(g). When, as here, an individualized inquiry results in a
wider swath of religious-liberty protection, this interpretive instruction gives
us even more reason to use the individualized approach. Moreover, Congress
passed RFRA and RLUIPA to reclaim the compelling-interest test of Yoder and
Sherbert that was lost in Smith. See Gonzales, 546 U.S. at 431; Opulent Life
Church, 697 F.3d at 289. That test required an individualized inquiry: In
Yoder, the Supreme Court exempted Amish children from compulsory school
attendance because the state needed to demonstrate with “more particularity”
how “recognizing the claimed Amish exemption” in particular would undermine
the state’s interests. Yoder, 406 U.S. at 221, 236 (emphasis added); see also
Gonzales, 546 U.S. at 431.      Similarly, in Sherbert, the Supreme Court
emphasized that its invalidation of a state law that denied unemployment
benefits to those who would not work on Saturdays did not establish a
universal constitutional right to unemployment benefits for “all persons whose
religious convictions are the cause of their unemployment.” Sherbert, 374 U.S.
at 410; see also Gonzales, 546 U.S. at 431.      The right was more context-
specific—it did not extend to someone whose “religious convictions serve to
make him a nonproductive member of society.” Sherbert, 374 U.S. at 410.
      RLUIPA revived this individualized inquiry in the prison and land-use
contexts. In Holt v. Hobbs, the Court held that while the state has a compelling
interest in thwarting the flow of contraband, it did not demonstrate that the
particular exemption at issue—allowing an inmate to grow a half-inch beard—
would undermine that interest or that denying that exemption was the least
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                                  No. 15-41643
restrictive means of ensuring prison security.          135 S. Ct. at 863–64.
Illustrative examples from our own circuit abound. In Ali v. Stephens, we
applied Holt to allow a Muslim inmate to grow a four-inch beard. 822 F.3d at
780. We held that banning this particular inmate from wearing this particular
beard was not the least restrictive means of furthering various interests, partly
because the plaintiff was a “trusty” inmate, the prison’s lowest classification of
a threat to security. Ali, 822 F.3d at 780, 787–88, 791; see also Davis, 826 F.3d
at 271 n 8 (emphasizing that an important fact in Ali was the prisoner’s low
security risk). In another case, we remanded because the district court did not
evaluate the prison’s “interests in preventing the wearing of long hair or
kouplocks . . . in light of the specific characteristics of each [p]laintiff as
purportedly low security risk . . . inmates.” Davis, 826 F.3d at 272 (emphasis
added). This individualized inquiry is a core component of both prongs of
RLUIPA analysis and directs our decision of the dispute before us.
                                       II.
       We review de novo a district court’s grant of summary judgment. Hills v.
Entergy Operations, Inc., 866 F.3d 610, 613 (5th Cir. 2017).           Summary
judgment is appropriate only when the movant demonstrates no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Id. In conducting this inquiry, the court views all facts and
evidence in the light most favorable to the nonmoving party, which is Tucker.
Id.
       The state makes no argument that its ban on Nation assembly does not
substantially burden Mr. Tucker’s exercise of his sincere religious belief. Thus,
this case rises and falls on whether the state’s ban: (1) advances a compelling
interest (2) through the least restrictive means.      We hold that there are
genuine disputes of material fact on both prongs.


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                                 No. 15-41643
                                       A.
      The state asserts that it must ban Nation assembly in the interest of
defending prison security from the threat of the Nation’s supremacist beliefs.
This interest falls short of compelling for two independent reasons. First, the
interest fails under the individualized inquiry that RLUIPA requires: the state
has not shown that Tucker himself—or any of his fellow Nation adherents—
holds supremacist beliefs or that allowing Nation adherents at the prison to
privately congregate will jeopardize prison security. Second, the state’s policy
is underinclusive, undermining the alleged importance of the interest.
      RLUIPA consists of a “focused inquiry” that requires the government to
demonstrate that its policy “actually furthers” a compelling interest when
applied to “the particular claimant whose sincere exercise of religion is being
substantially burdened.” Holt, 135 S. Ct. at 863, 864; see also Davis, 826 F.3d
at 270–72; Merced, 577 F.3d at 594 (“[A] government’s asserted interest must
be particularly directed to the conduct at issue.”). This means that a state’s
“asserted compelling interests must be examined in light of the particular
characteristics of each [p]laintiff, including their alleged low security risk
status and the particular risks of the specific exemption requested.” Davis,
826 F.3d at 271–72.
      The justification for the government’s interest rests on the thin ice of two
assumptions with little support in the record: (1) that Tucker and his fellow
would-be congregants hold supremacist beliefs; and (2) that allowing this
supremacist group to privately congregate threatens prison security.          The
record shows little evidence that Tucker himself, any other Nation adherent in
the Coffield Unit, or even any other inmate in Texas, holds supremacist beliefs.
In fact, much of the evidence points to the contrary, showing that Tucker and
his fellow Nation adherents advocate racial inclusion and nonviolence. Tucker


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                                       No. 15-41643
has emphasized that “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 government rests its conclusion that Tucker and his friends hold
supremacist views on haphazard research about Nation beliefs generally. That
research took various forms. First, the state’s report relies heavily on an
untidy anthology of Wikipedia pages, internet forum posts, rap group fan
pages, and rap lyrics. None of these sources shed light on Tucker’s beliefs or
the beliefs of any other Nation adherent at the Coffield Unit.
       Second, the state relied on general Nation doctrines about the inner
divinity of African-Americans and on passages from the 120 Degrees. But this
evidence also fails to show that Tucker and his friends are supremacists. As a
starting matter, the doctrines and texts themselves do not necessarily entail
beliefs about racial supremacy. 5 But even if they did, the state fails to show
that Tucker himself or any of his fellow Nation adherents sign on to those
racial-supremacy beliefs. Intrafaith disagreements “are not uncommon among
followers of a particular creed, and . . . the judicial process is singularly ill
equipped to resolve such differences.” A.A. ex rel. Betenbaugh v. Needville
Indep. Sch. Dist., 611 F.3d 248, 261 (5th Cir. 2010) (quoting Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715–16 (1981)); cf. Sossamon v. Lone
Star State of Texas, 560 F.3d 316, 333 (5th Cir. 2009) (“Prison chaplains are
not arbiters of the measure of religious devotion that prisoners may enjoy or
the discrete way that they may practice their religion [under RLUIPA].”).




       5  A belief about one’s own inner divinity, when held by a person who advocates for
racial unity and nonviolence, might reflect nothing more than an esoteric, ontological position
of self-affirmation rather than one of racial supremacism. Many religions have scriptures or
doctrines that could be interpreted as espousing beliefs about the superiority of certain people
or endorsing violence. But the state does not forbid all of these groups from congregating on
account of these scriptures and doctrines. The state, like the courts, is ill-equipped to parse
religious texts or pluck verses from their context.
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         Third, the state relied on other jurisdictions’ policies regarding the
Nation. The state notes that several jurisdictions have designated the Nation
as a security threat or prison gang, and prohibited the Nation from
congregating. But this evidence also fails to shed light on the actual beliefs of
Tucker and his friends at the Coffield Unit and says little about whether they
present a legitimate threat to prison security. Many jurisdictions have reached
the opposite conclusion about the Nation, and the officials in the instant case
undertook no research on the risk level of the Nation adherents in their own
prisons. On this record, consisting exclusively of research on beliefs held by
some Nation adherents somewhere in the world, there is, at a minimum, a
genuine dispute of material fact as to whether Tucker and his friends hold
supremacist beliefs.
         Even if the state had shown that Tucker and his fellow Nation adherents
themselves held supremacist beliefs, it further failed to conduct an
individualized inquiry establishing the second assumption underlying the
importance of its interest: that the private assembly of those particular
inmates would threaten security in its particular prisons. The state never
claims that the Nation’s teachings have ever caused or threatened racially
motivated tensions in any of its prisons—even though Texas, in some
instances, has allowed inmates to possess Nation literature. 6
         The government’s only argument under an individualized inquiry is that
Tucker’s “disruptive behavior” during an Islamic service in 2011 justifies the
ban on Nation assembly. But the government never points to where in the
record it states that this incident was the reason why the government denied
Nation adherents the opportunity to congregate in the first place. This court



         6   See Haynes v. Yancy, No. 6:13-cv-848, 2015 WL 5913174, at *3 (E.D. Tex. Sept. 22,
2015).
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has rejected “post-hoc rationalizations” as insufficient to justify an interest as
compelling. Ware, 866 F.3d at 268 (quoting Davis, 826 F.3d at 265). In denying
Tucker’s request, the state pointed to the report created in response to Mr.
Baker’s request. The denial said nothing about Tucker’s dispute with the
prison’s traditionally-Muslim community. In the absence of evidence that this
incident was the driving force behind the state’s decision—or any other
individualized evidence showing that these particular Nation adherents
present a threat to security—there is at least a genuine dispute of material
fact on whether the government’s interest is compelling. 7
                                            B.
       Beyond its failure to pass muster under RLUIPA’s individualized
analysis, the state’s asserted interest fails for another reason: the policy is
underinclusive. “A policy is underinclusive if it ‘fail[s] to cover significant
tracts of conduct implicating [its] animating and putatively compelling
interest.’” Ware, 866 F.3d at 268–69 (alterations in original) (quoting Ali, 822
F.3d at 785). An underinclusive policy “can raise . . . the inference that the
government’s claimed interest isn’t actually so compelling after all.” Id. at 269;
see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 547 (1993) (“[A] law cannot be regarded as protecting an interest ‘of the
highest order’ . . . when it leaves appreciable damage to that supposedly vital
interest unprohibited.” (quoting The Fla. Star v. B.J.F., 491 U.S. 524, 541–42
(1989) (Scalia, J., concurring in part and concurring in the judgment)). If a




       7Even if the state showed that Tucker’s inflammation of Muslim–Nation tensions was
the driving force of its decision, it would have to demonstrate that his disruption was so
severe that preventing it from happening again is a compelling interest. It would also need
to explain why categorically banning Nation congregation is the least restrictive means of
advancing this newly characterized interest. If the interest is all about minimizing Muslim–
Nation tensions, then why not allow the two groups to meet separately? The state supplies
no answer.
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                                       No. 15-41643
policy is underinclusive, the state must provide an “‘adequate explanation for
its differential treatment’ in order to avoid the conclusion that the policy does
not serve a compelling interest.” Ware, 866 F.3d at 268 (quoting Ali, 822 F.3d
at 787).
       Tucker’s brief points out that the TDCJ allows Odinists to congregate
and recognizes a total of 27 Odinist Asatru adherents. Around the same time
that the state banned Nation assembly, the state accommodated a variety of
communal Odinist practices—congregation, worship, meals, a blot (“a ritual
sacrifice”), and a “libation toast”—even though Odinism and its variants have
purportedly long been associated with white supremacy, gangs, and religious
violence. The state knows of the purported link between Odinism and white
supremacy in its prisons, and its prison officials admit this point openly. 8 Still,
those groups are allowed to meet.              Because the state fails to offer any
explanation for this differential treatment, it fails to present sufficient
evidence for summary judgment that its interest is compelling. 9
                                             III.
       The state also failed to show that a categorical ban on Nation assembly
is the least restrictive means of advancing its interest.                  To satisfy this
“exceptionally demanding” burden, the state must show “that it lacks other
means of achieving its desired goal without imposing a substantial burden on
the exercise of religion by the objecting part[y].”             Holt, 135 S. Ct. at 864
(alteration in original) (quoting Hobby Lobby, 134 S. Ct. at 2780). “[I]f a less



       8 See Trial Transcript at 93, 98–104, Mayfield v. Tex. Dep’t of Criminal Justice, No.
6:04-cv-181 (W.D. Tex. 2008), ECF No. 102.

       9 The government contends that Tucker forfeited this argument by failing to raise it
in the district court. But Tucker argued at several points that the state’s compelling interest
was undermined by its different treatment of similarly situated religious groups. Under the
“liberal construction” that we afford to pro se pleadings, Johnson v. Quarterman, 479 F.3d
358, 359 (5th Cir. 2007), these invocations of this argument are more than enough.
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                                     No. 15-41643
restrictive means is available for the Government to achieve its goals, the
[g]overnment must use it.” Holt, 135 S. Ct. at 864 (quoting United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)); see also Merced, 577 F.3d
at 594–95. And when “many prisons offer an accommodation, a prison must,
at a minimum, offer persuasive reasons why it believes that it must take a
different course.” Holt, 135 S. Ct. at 866.
      Under RLUIPA’s individualized analysis, the state makes no showing
why less restrictive means would not work as applied to Tucker and his friends.
The state need not look far for options: It could turn to its neighboring state,
Oklahoma, which allows the Nation to congregate but monitors the adherents
and prohibits them from “using derogatory language when referring to other
groups of people or advocating any form of religious, racial or national hatred.”
The TDCJ could also look to its own treatment of Odinists, who are permitted
to congregate despite their association with supremacist beliefs. Instead of
barring their congregation altogether, the state bars the participation of gang
members, monitors adherents on an individual basis, and pre-approves the
content of services. 10 The state also could have considered supervising Nation
assembly, censoring certain topics, prohibiting the advocacy of violence, or
withdrawing privileges on an inmate-by-inmate basis.                  The state’s own
Administrative Directive on Religious Programming already includes two tools
to prevent race-based violence: allowing removal of any inmate from religious
programming who “creates a threat to the safe and secure operation of the
facility or the safety of others” and requiring that there “be no restrictions on
attendance based on race.” The state has not proven why banning Nation
assembly is “the least restrictive means of furthering a compelling



       10See State’s Reply at 8–10, Colbaugh v. Stephens, No. 6:16-cv-67 (W.D. Tex. Mar. 28
2017), ECF No. 54.
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                                       No. 15-41643
governmental interest.” Holt, 135 S. Ct. at 864. It has made no indication why
these measures will not work in preventing Tucker and his fellow Nation
adherents from undermining prison security.
       We have held that factual disputes preclude summary judgment in cases
challenging restrictions on congregation that were far less drastic than the
complete ban in the instant case. In Mayfield v. Texas Department of Criminal
Justice, we held that there were genuine disputes of material fact as to whether
Texas’s policy of merely requiring a volunteer to be present for Odinist
meetings was the least restrictive means of ensuring prison security. 529 F.3d
599, 613–15 (5th Cir. 2008). We have also held that summary judgment was
not possible when a congregant who, despite having access to religious services
at several locations, was unable to access the chapel, which was the only place
the prisoner could kneel in front of an altar in view of a cross. Sossamon, 560
F.3d at 333. These partial restrictions did not overcome the hurdle of the
“exceptionally demanding” least-restrictive-means test, and neither does the
much broader categorical ban implemented by the state in the instant case. 11
                                              IV.
       While we reverse the district court’s summary judgment on Tucker’s
RLUIPA claims, we affirm its holding that Tucker failed to exhaust the
requests ancillary to Nation assembly: requests to wear a crown, to display a
flag, to have the TDCJ help him find a cultural representative, and to carry his



       11 Other courts have shown similar skepticism of complete bans on religious
congregation. See Wilkinson v. Sec’y, Fla. Dep’t of Corr., 622 F. App’x 805, 815 (11th Cir.
2015) (denying summary judgment because the state did not establish that an “outright
denial of [the prisoner’s] requests to celebrate two holy days in the company” of fellow
adherents was the least restrictive means); Yellowbear v. Lampert, 741 F.3d 48, 62 (10th Cir.
2014) (Gorsuch, J.) (holding that the state failed to show that its “policy of no access, ever,”
to a sweat lodge was the least restrictive means); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979,
989 (8th Cir. 2004) (holding that it was not clear that a “total preclusion of group worship for
[an alleged supremacist group]” was the least restrictive means).
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                                 No. 15-41643
lesson with him to services.    A prisoner cannot file a lawsuit “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Tucker never argues that he fully grieved these specific ancillary requests
through the TDCJ’s two-step grievance process, but instead that TDCJ officials
had “fair notice” of them. A prisoner must exhaust his grievances through the
state’s formal processes. See, e.g., Jones v. Bock, 549 U.S. 199, 217–18 (2007)
(explaining that exhaustion is determined by referencing the state’s grievance
procedures); Gonzales v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (“District
courts have no discretion to excuse a prisoner’s failure to properly exhaust the
prison grievance process before filing their complaint.”); Dillon v. Rogers, 596
F.3d 260, 272–73 (5th Cir. 2010). Nothing in the grievances that Tucker filed
mentions these specific ancillary claims. Accordingly, these requests were not
properly exhausted.
                                     ***
      For these reasons, we VACATE the district court’s judgment on Tucker’s
RLUIPA claim and REMAND for further proceedings.              We AFFIRM the
district court’s judgment on the issue of exhaustion of his other claims.




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