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

                                                 FILED
                                                                           October 6, 2009

                                       No. 08-20297                    Charles R. Fulbruge III
                                                                               Clerk

THOMAS R MCALISTER,

                                                   Plaintiff - Appellant
v.

BRAD LIVINGSTON, Executive Director Texas Department of Criminal
Justice - Institutional Division; BILL PIERCE, Director of Chaplaincy, Texas
Department of Criminal Justice - Institutional Division; LEONARD LEE,
Religious Program, Director Region IV, Texas Department of Criminal
Justice - Institutional Division; BRENDA CHANEY, Warden II; BILLY J
JOHNSTON, Chaplain I; RICHARD LEAL, Assistant Warden,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                                  No. H-05-3228


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Thomas McAlister, Texas prisoner # 1040901, filed this 42 U.S.C. § 1983
civil rights action against numerous employees of the Texas Department of
Criminal Justice—Correctional Institutions Division, alleging violations of the



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-20297

First Amendment, the Fourteenth Amendment, and the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc–1. McAlister appeals the
district court’s grant of summary judgment for the defendants. For the following
reasons, we VACATE the judgment and REMAND for further proceedings
consistent with this opinion.
             I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
      Thomas McAlister, prisoner # 1040901, is incarcerated at the Jester III
unit of the Texas Department of Criminal Justice—Correctional Institutions
Division (“TDCJ—CID” or “TDCJ”). McAlister is a practitioner of Wicca, a
lunar-based sub-set of Paganism. The practice of Wicca generally has a “direct
relationship with the cycles of birth, growth, death and regeneration in nature
and in human lives.” Wicca has a “strong association with ‘good magic,’” and
self-identified practitioners generally have an “optimistic outlook.”
      The TDCJ Chaplaincy Department provides religious services to 160,641
offenders in the TDCJ—CID system, and those offenders follow 140 different
religions.   Of those offenders, only 613 have designated Wicca as their
faith—constituting 0.38% of the total offender population. At the Jester III unit
in particular, only eight offenders are designated as Wiccans, out of 1,086 total
offenders—making up 0.74% of the offenders on the unit. In order to make the
most efficient use of limited resources, TDCJ provides generic religious services
on a regular basis to the five major faith groups: Christian non-Roman Catholic,
Roman Catholic, Judaism, Islam, and Native American.
      1. Possession of Religious Items
      Under TDCJ Administrative Directive 7.30, “[o]ffenders may possess
religious items which are consistent with their religious orientation and that do
not otherwise violate safety and security standards of operation.” The TDCJ
Chaplaincy Department maintains a list of approved items that Pagan

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(including Wiccan) offenders may possess in their cells for solitary practice: (1)
a picture of a god or goddess; (2) black prayer beads on a cotton cord, no more
than 3/8 inches in size; (3) a medicine pouch, maximum size two square inches
of animal skin (may contain natural objects such as feathers or pebbles); (4) a
picture of the medicine wheel (also referred to as the wheel of the year); (5) a
Book of Shadows (a diary or blank book in which practitioner makes entries
describing spiritual experiences); (6) a headband of natural leather or white
cloth (may be worn in cell and to and from religious ceremonies). These six
items must be kept in the offender’s locker box and may only be used in the
offender’s cell or in designated worship areas. Wiccan offenders may also wear
a Wiccan medallion, or pentacle.
      In addition to the devotional items for in-cell use, TDCJ also allows
certified volunteers to bring approved items into the facilities for religious
meetings and ceremonies. These items must be inspected and inventoried before
they enter the unit and again when they are removed. These approved items for
chapel use include: (1) representations of deities, including statuettes and
pictures; (2) ceramic wands with quartz crystal points, up to 12 inches long; (3)
an altar pentacle; (4) an altar cloth the size of a large handkerchief; (5) up to five
candles; (6) a besom, or ritual broom, up to 24 inches long; (7) a chalice (wooden,
plastic, or ceramic); (8) a cast iron cauldron, up to 5.5 inches in diameter; (9)
metal or ceramic bowls to mix salt and water; (10) a bell; (11) a Book of Shadows;
(12) incense; (13) oil to be used for anointing; and (14) ritual cookies.
      TDCJ policy specifically prohibits several items for in-cell use by
individual Wiccan offenders: (1) rune stones; (2) tarot cards and books explaining
their use; (3) altar (a box the size of a cigar box); (4) wand; (5) candles; (6) oils;
(7) herbs; (8) incense; and (9) salt. The policy only explains the prohibition on
salt: Wiccan practitioners use salt to draw circles on the floor for meditation
purposes, and this might cause people to slip and fall, posing a safety hazard.

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      Joseph Gunn, an assistant professor of Communication Studies at the
University of Texas at Austin, submitted a sworn affidavit on behalf of the TDCJ
officials describing the practice of Wicca. Gunn is not a practitioner of Wicca
himself, but he has extensively studied non-mainstream religions, including
Wicca. According to Gunn, “Wicca is, quite literally, what you make of it.” Gunn
describes the most common tools used in Wiccan rituals and ceremonies: “the
wand; the broom; the chalice; the pentacle (flat disk with pentagram on it); the
athame (sword); the bolline (a knife); an incense burner; and the cauldron. Some
traditions use less tools, while others use more tools, such as bells, beads,
baskets, amulets, alter [sic] cloths, and so on.” However, Gunn also posits that
“none of the tools are necessary,” and states that “tools can be used
interchangeably,” as “the most important aspect of ritual and ceremonial work
is the human imagination.”
      In a sworn affidavit submitted on behalf of McAlister, Cheryll
Landis–Gerber, one of the TDCJ-approved Wiccan volunteers, describes the
items needed for a meaningful practice of Wicca. In her opinion, the basic
requisites include: “a means of divination,” either through runes or tarot cards;
“a means of purifying and consecrating [one]self . . . most commonly by the use
of salt water, incense smoke, or anointing oils”; “some means of casting a []
circle, i.e., a wand”;   “a representation of the God and the Goddess”; and
“something to represent the [four] Quarters or Elements[,] most commonly [four]
candles.”
      In addition to the TDCJ list of approved Pagan devotional items, McAlister
argues that a number of other items are required for a meaningful practice of
Wicca; his requests for these items have been denied. In an August 2005 letter
to Chaplain Bill Pierce, McAlister requested: (1) an altar cloth, up to 24 by 24
inches; (2) a meditation or prayer rug, 24 by 36 inches; (3) incense and incense
holder; (4) small white candles; (5) a smudge wand or regular wand, blunt tip,

                                       4
                                  No. 08-20297

about one foot in length; (6) special showers for ritual cleansing before
ceremonies; (7) runes and Theban script; (8) a pendulum on cord or chain; (9)
tarot cards; (10) an altar in cell; (11) neutral-colored robes; (12) a chalice or
ritual cup; (13) a salt dish and libation dish; and (14) Wicca lesson plans. From
McAlister’s letter, it is unclear whether he requested these items for group
practice or for in-cell use. These requests were denied, and McAlister wrote a
second letter, requesting that six items be added to the TDCJ’s approved list: an
altar cloth, salt, a feather, a homemade altar, meditation stones, and a wand.
Presumably, the second letter dealt with the list of items approved for in-cell
use, as TDCJ already allows an altar cloth and a wand to be brought in for group
services in the chapel.
      In his complaint, McAlister requested access to 22 items, some of which he
did not request in either of the two letters. McAlister added: (1) a brass candle
holder; (2) a small altar bell; (3) incense or scented oils with a diffuser; (4) a
white robe without a hood; (5) a waist cord nine feet long to close robe; (6) rune
stones; (7) meditation media (including tapes for meditation, videos on ritual
techniques and practices, and books on Wicca); (8) a pentacle to be displayed on
altar; (9) statues of God and Goddess to be displayed on altar; (10) a four-inch
cauldron; (11) a prayer rug (sized between 24 by 36 inches and 36 by 42 inches);
and (12) a small altar with altar cloth for living area. The small altar with altar
cloth is the only item from the complaint that McAlister requested for in-cell use.
      2. Worship Services, Religious Activities, and Volunteer Policy
      TDCJ provides regular worship services to the five main faith groups
present within the facilities (Christian non-Roman Catholic, Roman Catholic,
Judaism, Islam, and Native American). Where TDCJ employees do not have the
requisite expertise or familiarity with a certain religion to provide ministry,
certified outside volunteers may meet with offenders, either on a one-on-one
basis or in a group setting. Offenders may meet with a certified volunteer for a

                                        5
                                      No. 08-20297

one-on-one pastoral or instructional visit for up to two hours, twice a month. For
group ministry, TDCJ policy allows unit chaplains to schedule “services of
worship, religious activities, and meetings of a religious nature” with
“reasonable frequency.” In scheduling these group religious events, chaplains
shall consider: “[s]taff supervision requirements,” “[u]nit and individual security
concerns as set forth in other Agency policies, or as identified by Wardens,” and
“availability of TDCJ approved religious volunteers to assist in religious
activities.”   After initial schedules are drawn up based on these factors,
additional services or meetings may be scheduled based “on an equitable pro
rata formula to all scheduled religious groups,” based on “[t]he percentage of the
offender population that the requesting group represents, and . . . the amount
of time and space available for religious programming.” In the event that an
approved religious volunteer is not available to supervise an activity, unit
personnel may substitute for the volunteers, “as consistent with sound,
legitimate prison management.”
       In sworn affidavits, both Warden Vernon Pittman and Chaplain Pierce
state that this policy is applied neutrally at the Jester III unit and throughout
TDCJ—CID.         However, McAlister presents sworn affidavits from inmates
Robert Tuft, the chapel musician for the Jester III unit, and Gerald Armstrong,
the Card Clerk for the Jester III unit, both stating that on numerous occasions,
groups of Muslim 1 and Jewish offenders have congregated for religious meetings
without direct supervision by TDCJ employees or outside volunteers.
       McAlister also submitted sworn affidavits on his behalf from Cheryll
Landis–Gerber and Howard Gerber (the “Gerber affidavits”), the two approved
Wiccan volunteers for the Jester III unit. Prior to the Gerbers’ certification as


       1
          Muslim offenders are allowed to congregate for religious meetings without
supervision under a court order from an earlier lawsuit. See Brown v. Beto, 4:74-cv-069 (S.D.
Tex. 1977).

                                             6
                                       No. 08-20297

approved volunteers on November 29, 2005, Wiccan offenders were not allowed
to meet as a group, because the Chaplaincy Department does not employ any
chaplains who follow or who are knowledgeable about Wicca. Chaplain Billy
Johnston stated in a May 21, 2005, letter to Warden Richard Leal that this was
due to a lack of infrastructure and organization within the Wiccan community.
Chaplain Johnston stated that, at the time of the letter, he had tried and failed
to locate any Wiccan volunteers in the vicinity of the Jester III unit. Since the
Gerbers’ certification, they have visited the unit on a number of occasions to lead
religious activities for the Wiccan offenders.               Most of their visits have
corresponded with the eight Wiccan holy days.2
       The importance of group ceremonies to a meaningful practice of Wicca is
disputed: McAlister recognizes strides have been made by certifying the Gerbers
as volunteers, yet he contends the inability of Wiccans to meet for group
interaction without the supervision of volunteers or TDCJ employees violates his
rights. In his affidavit, Gunn states that “group services are obviously an
appropriate and preferable means of practice for the majority of Wiccans,” but
he also notes that the solitary practice of Wicca is also “an appropriate and
acceptable means of religious practice for many Wiccans.” Landis–Gerber states
that “Wicca is predominately a group religion; one that encourages group rituals
with solitary meditation and practices outside of the . . . group observances.”
McAlister himself describes group practice as “an integral, and central practice
to the free exercise of the Faerie Tradition of Wicca.” McAlister states that he
“values the coven as a way of life,” and he finds it “hard to imagine a more
valuable and central or meaningful part of [his] practice.”



       2
         The Wiccan holy days are: Imboic (February 1), Ostara (March 21), Beltane (April 30),
Litha (June 21), Lugnasad (August 1), Mabon (September 21), Samhain (October 31), and Yule
(December 21). The calendar dates for these holy days vary slightly from year to year, as they
coincide with the equinoxes and the solstices.

                                              7
                                       No. 08-20297

B. Procedural Background
       Proceeding pro se, McAlister 3 brought suit under 42 U.S.C. § 1983 in 2006
in the United States District Court for the Southern District of Texas against
several TDCJ—CID employees: Brad Livingston (Executive Director), Bill Pierce
(Director of Chaplaincy), Leonard Lee (Religious Programs Director, Region IV),
Brenda Chaney (Warden II), Billy Johnston (Chaplain I) and Richard Leal
(Assistant Warden) (collectively, “TDCJ officials”). McAlister alleged that he
cannot freely exercise his religion, as guaranteed by the First Amendment, and
he has been subject to religious discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment. McAlister also complained of
violations of his statutory rights under the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc–1.
McAlister sought declaratory and injunctive relief, as well as punitive damages.
McAlister relied mainly on two alleged factual predicates to support these
claims: (1) some religious items required for a meaningful practice of Wicca are
not allowed to be kept in individual cells or brought in by volunteers for use in
group meetings; and (2) Wiccans are allowed to congregate for their religious
ceremonies only with an outside volunteer present, while other religious groups
can meet without supervision.
       During the discovery period, McAlister sought to depose Warden
Pittman—a TDCJ employee but not a party to this suit—on written questions;
however, the district court did not allow the deposition and denied McAlister’s
motion to compel the deposition. The district court also denied McAlister’s




       3
           The other inmates were dismissed from this appeal for want of prosecution.
Therefore, we refer only to McAlister. In addition, while McAlister challenges in his brief the
district court’s determination that several of the other inmates did not exhaust their
administrative remedies, the other inmates’ failure to prosecute this appeal renders this issue
moot.

                                              8
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motion for appointment of counsel. The district court did not give reasons for
either denial.
      The TDCJ officials moved for, and were granted, summary judgment
dismissal of all of McAlister’s claims. The district court found that McAlister
failed to raise a genuine issue of material fact on any of the three claims. On the
First Amendment claim, the district court found that McAlister had not shown
(1) a substantial burden on his religious beliefs or practices, or (2) that the TDCJ
officials’ conduct was not reasonably related to legitimate penological interests.
As to the RLUIPA claim, the district court found that McAlister failed to show
that the TDCJ policy was not the least restrictive means of furthering a
compelling government interest in prison security. Finally, on the Equal
Protection claim, the district court found that McAlister did not show any
intentional discrimination against Wiccans by TDCJ officials.
      McAlister timely appealed to this court, challenging the dismissal of his
three claims on the grounds that the district court failed to consider all of the
summary judgment evidence offered by the plaintiffs and that, in light of that
evidence, genuine issues of material fact exist. McAlister also argues that the
district court abused its discretion in failing to grant his discovery requests and
in refusing to appoint counsel. We have jurisdiction under 28 U.S.C. § 1291.
                               II. DISCUSSION
A. The Claims Dismissed on Summary Judgment
      “We review the district court’s grant of summary judgment de novo,
applying the same standard as did the district court.” Mayfield v. Tex. Dep’t of
Criminal Justice, 529 F.3d 599, 603–04 (5th Cir. 2008). Summary judgment is
appropriate where “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(c); accord Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.

                                         9
                                     No. 08-20297

2009). “A genuine issue of material fact exists if a reasonable jury could enter
a verdict for the non-moving party.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th
Cir. 2008). The moving party has the burden to show “‘the absence of a genuine
issue of material fact.’” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc; per curiam) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).   This court must take all the facts and evidence in the light most
favorable to the non-moving party. Breaux, 562 F.3d at 364. Furthermore, when
considering summary judgment’s severe consequences in the context of pro se
prisoner litigation, “‘we must always guard against premature truncation of
legitimate lawsuits merely because of unskilled presentations.’” Jackson v.
Cain, 864 F.2d 1235, 1241 (5th Cir. 1989) (quoting Murrell v. Bennett, 615 F.2d
306, 311 (5th Cir. 1980)).
      1. First Amendment Claim
      McAlister argues that summary judgment was improper on his First
Amendment claims because he raised genuine issues of material fact as to
whether TDCJ officials violated his right to free exercise of his Wicca religion.
Specifically, he complains that TDCJ officials have denied his requests for
devotional items for in-cell and group use and that Wiccan inmates are not
allowed to meet to celebrate the eight Wiccan holy days or for group worship
without the supervision of an approved volunteer.4 In its grant of summary
judgment, the district court did not specifically address McAlister’s argument
that he was denied religious items and focused on his challenge to the TDCJ
volunteer policy. The district court found that the TDCJ volunteer policy did not



      4
         McAlister also argues that the district court erred by applying the framework from
Turner v. Safley, 482 U.S. 78 (1987), to his First Amendment claim, rather than the more
recent RLUIPA framework. However, RLUIPA creates a separate method of recovery and
does not affect the analysis of an independent First Amendment claim; the two are not
conflated, as McAlister repeatedly argues. See Mayfield, 529 F.3d at 607–17 (analyzing
separately a First Amendment claim—applying Turner—and a RLUIPA claim).

                                            10
                                  No. 08-20297

place a substantial burden on McAlister’s religious exercise and was rationally
related to a legitimate interest in prison security. The district court also held
that the Wiccans’ ability to practice independently in their cells, to possess
approved devotional items, and to meet periodically with approved volunteers
constitutes an adequate alternative opportunity to practice their religion.
            a. Applicable Law
      The First Amendment, as applied to the states by the Fourteenth
Amendment, guarantees the right to free exercise of religion. U.S. C ONST.
amend. I; U.S. C ONST. amend. XIV. The constitutional rights of inmates are not
absolute: while “[p]rison walls do not form a barrier separating prison inmates
from the protections of the Constitution,” Turner, 482 U.S. at 84, “‘lawful
incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our
penal system,’” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (quoting
Price v. Johnston, 334 U.S. 266, 285 (1948)) (internal modification omitted).
Judicial restraint is even more appropriate where a federal court reviews the
policies of a state penal system. Turner, 482 U.S. at 85 (“Where a state penal
system is involved, federal courts have . . . additional reason to accord deference
to the appropriate prison authorities.” (internal citation omitted)).
      As a threshold matter, the First Amendment protects McAlister’s sincerely
held religious beliefs and practices. Wisconsin v. Yoder, 406 U.S. 205, 215–16
(1972) (drawing distinction between unprotected “matter of personal preference”
and protected “deep religious conviction”); see also Ford v. McGinnis, 352 F.3d
582, 593–94 (2d Cir. 2003) (holding that where prisoner testified to his belief
that the Eid ul Fitr feast was “critical to his observance as a practicing Muslim,”
his First Amendment claim was not precluded by testimony of Muslim clerics
that “participation in the Eid ul Fitr is not religiously required” and inquiring



                                        11
                                  No. 08-20297

into what the prisoner “considered central or important to [his] practice of
Islam”).
       If the requested practices constitute sincerely held religious practices or
beliefs, the standard to apply to McAlister’s claims comes from Turner v. Safley.
There, the Supreme Court laid out the standard to apply when incarcerated
individuals claim constitutional violations: “when a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” 482 U.S. at 89. The Court laid out
four relevant factors. Id. at 89–90. First, the state must show a “valid, rational
connection between the prison regulation and the legitimate governmental
interest put forward to justify it.” Id. at 89 (internal quotation marks omitted).
The second factor is “whether there are alternative means of exercising the right
that remain open to prison inmates.” Id. at 90. The third factor inquires into
“the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally.”
Id.   Where accommodation will have a “significant ‘ripple effect’ on fellow
inmates or on prison staff, courts should be particularly deferential to the
informed discretion of corrections officials.” Id. “Finally, the absence of ready
alternatives is evidence of the reasonableness of a prison regulation.” Id. This
final factor does not require prison officials to “set up and then shoot down every
conceivable alternative method of accommodating the claimant’s constitutional
complaint.” Id. at 90–91.
       Later cases applying the four Turner factors have noted that “rationality
is the controlling factor, and a court need not weigh each factor equally.”
Mayfield, 529 F.3d at 607. Where a regulation restricts First Amendment rights
in a neutral fashion, it is more likely to withstand judicial scrutiny.        See
Thornburgh v. Abbott, 490 U.S. 401, 415 (1989); Mayfield, 529 F.3d at 609
(“Requiring neutrality ensures that the prison’s application of its policy is

                                        12
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actually based on the justifications it purports, and not something more
nefarious.”).   Furthermore, where a regulation restricts one aspect of an
offender’s belief system but the offender retains the “ability . . . to participate in
other religious observances of [his] faith,” courts often reach “the conclusion that
the restriction[] at issue . . . [was] reasonable.” O’Lone, 482 U.S. at 352; see, e.g.,
Baranowski v. Hart, 486 F.3d 112, 121–23 (5th Cir. 2007) (upholding regulation
requiring volunteer supervision of group religious activity where policy was
neutrally implemented and prisoner retained ability “to participate in
alternative means of exercising his religious beliefs”).
      b. Analysis
             1. Possession of Religious Items
      McAlister alleges that a genuine fact dispute remains as to whether
TDCJ’s rejections of his requests for in-cell and group use of religious items are
reasonably related to a legitimate penological interest, as TDCJ has failed to
offer specific penological reasons—either at the district court level or on
appeal—why McAlister’s requested items were denied. TDCJ offered a specific
explanation for denying McAlister’s request for salt, but did not explain its
denial of any of the other items. The record is also unclear about which items
McAlister requests for in-cell possession and which he requests for group use.
      While the district court recognized this factual predicate and spent two
pages of its opinion discussing the items TDCJ allowed and the items McAlister
requested, the district court did not specifically rule on this aspect of TDCJ’s
motion for summary judgment. The district court noted that “[t]he religious
items that McAlister requested were not on the list of approved items for in-cell
use,” but did not address group use and did not apply the Turner analysis to
McAlister’s denied requests for the items, either for in-cell or group use. We
leave it to the district court to resolve this issue in the first instance.



                                          13
                                       No. 08-20297

       The district court should first analyze whether the summary judgment
evidence furnished by McAlister is adequate to establish that McAlister
sincerely believes that the in-cell possession or group use of these items
constitutes a religious practice or belief.                TDCJ questions McAlister’s
sincerity—not as to his practice of Wicca generally, but as to his religious need
for each individual item—noting that McAlister has submitted several different
lists of items at different points in the litigation. McAlister’s sworn affidavit
states that “the lack of necessary tools, central to the practice of Wicca,” imposed
a “substantial burden” on “the free exercise of my religious practice. The record
contains conflicting evidence about which items are important to the practice of
Wicca. The Gerber affidavits state that a wand, rune stones and tarot cards
with books explaining their meaning, a method of purification, and at least four
candles are necessary for a basic practice of Wicca. However, Gunn questions
if any physical tools or objects are truly required for Wiccan practice.
       If, on remand, the district court finds that the summary judgment
evidence supports the conclusion that the possession or use of any of these items
is a sincerely held religious practice or belief protected by the First Amendment,
the district court should also consider (1) whether TDCJ’s reasons for denying
McAlister access to the items are legitimate penological interests rationally
related to the restriction on McAlister’s religious exercise;5 (2) whether McAlister


       5
           On remand, even if the district court finds that the possession or use of these 29
items constitute a sincerely held religious belief or practice, legitimate penological interests
likely justify TDCJ’s restrictions on many of them—particularly for the items requested for
in-cell use. The court should assess, however, whether the TDCJ’s summary judgment
evidence supports its restrictions. TDCJ policy specifically warns that salt, when placed on
the floor as required by Wiccan rituals, poses a safety hazard and may cause slipping. A wand
or a brass candle holder could easily be used as a weapon. A nine-foot cord could be used to
hang oneself. Candles, oils, herbs, and incense pose fire dangers and could help escape efforts.
See Hammons v. Saffle, 348 F.3d 1250, 1255 (10th Cir. 2003) (holding that prison policy
prohibiting possession of oil in cells rationally related to legitimate penological interest of
prison safety because inmates could use oils “to mask the odor of drugs or to slip out of
handcuffs”); Dettmer v. Landon, 799 F.2d 929, 933 (4th Cir. 1986) (finding that prisoner had

                                              14
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has adequate alternative means of exercising his religion; (3) the impact that
accommodation might have on TDCJ resources; and (4) if any alternative
methods of accommodation are possible.
              2. Volunteer Policy
       McAlister alleges that a genuine issue of material fact exists on the
neutrality of TDCJ’s volunteer policy requiring supervision of group religious
meetings. We have reviewed and upheld the TDCJ’s volunteer policy under the
Turner factors on several previous occasions. See, e.g., Baranowski, 486 F.3d at
121–22 (rejecting argument that inmates should be allowed to lead services
without supervision); Adkins v. Kaspar, 393 F.3d 559, 565 (5th Cir. 2004)
(upholding volunteer policy where neutrally applied).
       On the first Turner factor, TDCJ’s policy is reasonably related to
legitimate penological interests—security concerns and restrictions on resources.
However, where we have previously upheld this policy under a Turner analysis,
we have specifically noted and relied upon its neutral application. See Mayfield,
529 F.3d at 608 (citing four Fifth Circuit cases upholding the policy based on its
uniformity and neutrality). “[U]nder Turner, neutrality must be ensured . . . for
summary judgment to be appropriate.” Id. at 609. McAlister has submitted two
sworn affidavits from Gerald Armstrong and Robert Tuft, inmates who have
worked in the chapel during their incarceration. Both aver that they have
repeatedly witnessed Jewish offenders conducting religious ceremonies without
the direct supervision of either an outside volunteer or a TDCJ employee. These


no right to unsupervised use of candles and incense where candles could be “used as timing
devices and to make impressions of keys,” and incense could be used to cover smell of illegal
drugs). Meditation stones could be used as weapons. See Young v. Saunders, 169 F. Supp. 2d.
553, 557 (W.D. Va. 2001), aff’d in part, vacated in part on other grounds, 34 F. App’x 925 (4th
Cir. 2001) (“[R]ocks and stones may be used to harm prison staff and cause security problems
if used to jam locks.”). We have previously recognized that prohibitions on in-cell possession
of rune stones and tarot cards withstand scrutiny under Turner. See Mayfield, 529 F.3d at
610–11 (finding that rune stones and tarot cards could be used for “gambling, trafficking, and
trading,” as well as “secretly pass[ing] information”).

                                              15
                                  No. 08-20297

affidavits raise a genuine issue of material fact as to the neutral application of
the TDCJ policy. See id. (finding genuine, material fact issue on neutrality of
volunteer policy where Native American inmate testified his religious group met
without supervision on a near-weekly basis, and stating that Turner requires
neutrality to support summary judgment). While the district court found that
the volunteer policy was supported by the compelling penological interest of
security, this interest would be undercut by the non-uniform application of the
policy.
      As to the second Turner prong, alternative means of worship are available
to Wiccan inmates despite the TDCJ volunteer policy. The Wiccan inmates are
allowed to worship and meditate independently, in their cells, with the religious
items that TDCJ has approved. The Gerbers are now approved volunteers, and
they have visited the Jester III unit on numerous occasions since their
certification in November 2005. Wiccan offenders now may engage in group
worship when the Gerbers visit, and they may engage in independent in-cell
worship with the list of TDCJ-approved items; therefore, the volunteer policy
does not “entirely stifle[] the prisoner[s’] religious expression.” Scott v. Miss.
Dep’t of Corr., 961 F.2d 77, 81 (5th Cir. 1992).
      Under the third Turner factor, the accommodation of the Wiccan offenders
would have a great impact on TDCJ—CID’s already limited time and resources.
As we noted in Mayfield, “[i]f all 140 religious groups in the TDCJ requested the
ability to meet without an outside volunteer, prison security could be seriously
compromised by the need to remove personnel from their usual security posts.”
529 F.3d at 610. As to the fourth Turner factor, McAlister has not proposed an
alternative means of accommodation.
      While Turner factors two, three, and four weigh in favor of TDCJ, factor
one is dispositive for today. See id. at 608–10 (analyzing volunteer policy under
Turner and finding summary judgment inappropriate where policy was not

                                       16
                                   No. 08-20297

neutrally applied, even though factors two through four supported TDCJ).
Although the TDCJ volunteer policy is facially neutral, McAlister has raised a
genuine issue of material fact regarding its neutrality in application. Given “the
importance of neutrality to our First Amendment analysis,” id. at 610, summary
judgment was inappropriate on the First Amendment claim on this record.
      2. RLUIPA Claim
      McAlister contends that summary judgment was improper on his RLUIPA
claim because he raised a genuine issue of material fact as to whether TDCJ
policies impose a substantial burden on his religious exercise. He relies on the
same factual predicates that he cited in support of his First Amendment claim:
TDCJ’s repeated denials of his requests for religious items, and TDCJ’s refusal
to permit him to meet with other Wiccan inmates to celebrate the eight Wiccan
holy days or for group worship without an approved volunteer to supervise.
Again, the district court did not specifically address McAlister’s argument that
he was denied religious items and focused on his challenge to the TDCJ
volunteer policy. The district court granted summary judgment for TDCJ on the
grounds that McAlister was not substantially burdened in his religious exercise
because (1) he can worship independently, in his cell, with an approved list of
devotional items; (2) he can meet with approved Wiccan volunteers for two hours
each month and gather for group ceremonies when approved volunteers are
available; and (3) TDCJ policy allows for observance (but not lay-in) of the eight
Wiccan holy days. The district court also found that the TDCJ policy of refusing
to allow inmates to meet without volunteers was motivated by a compelling
interest in prison security.
            a. Applicable Law
      RLUIPA requires that:
      No government shall impose a substantial burden on the religious
      exercise of a person residing in or confined to an institution . . . even


                                         17
                                    No. 08-20297

      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 interests;
               and
               (2) is the least restrictive means of furthering that compelling
               governmental interest.
42 U.S.C. § 2000cc–1(a). “RLUIPA imposes a higher burden than does the First
Amendment in that the statute requires prison regulators to put forth a stronger
justification for regulations that impinge on the religious practices of prison
inmates.” Mayfield, 529 F.3d at 612. Yet balancing this higher burden is a
legislative expectation that “courts entertaining complaints under [RLUIPA]
would accord due deference to the experience and expertise of prison and jail
administrators.” Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (finding that
RLUIPA does not conflict with the Establishment Clause) (internal quotation
marks and citation omitted). The Supreme Court has indicated that RLUIPA
must be applied “with particular sensitivity to security concerns,” and a
consideration of the need to maintain “good order, security and discipline.” Id.
at 722, 723.
      The RLUIPA framework requires that a court ask two initial questions:
(1) is the burdened activity religious exercise? and (2) is that burden substantial?
See Mayfield, 529 F.3d at 613. “Religious exercise” is defined broadly as: “any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc–5(7)(A). Under the first question, we must
determine whether the practices McAlister requests permission to engage in are
religious exercise—that is, whether “the religious practice[s] at issue [are]
important to the free exercise of his religion.” Adkins, 393 F.3d at 570 (stating
that RLUIPA complainant bears burden of proving religious practice is
important to free exercise of religion); see also Cutter, 544 U.S. at 725, n.13


                                          18
                                   No. 08-20297

(“RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to
a prisoner’s religion [but] does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.”); Sossamon v. Lone Star State of Tex., 560 F.3d
316, 332 (5th Cir. 2009) (“The practice burdened need not be central to the
adherent’s belief system, but the adherent must have an honest belief that the
practice is important to his free exercise of religion.” (citing Adkins, 393 F.3d at
567)).
         In this first inquiry, we must consider the importance of the practice to
McAlister himself. The Fifth Circuit has had few occasions to conduct this part
of the inquiry, as the sincerity of a religious belief is not often challenged.
However, we did address this issue in Sossamon v. Lone Star State of Texas,
where a prisoner asserted that “kneeling at the alter [sic] in view of the Cross,
to pray” was “important to his practice of Christianity.” 560 F.3d at 333. In
response, TDCJ submitted a clerical affidavit pointing out that “Christianity .
. . does not consider [the act of kneeling at the altar in view of the Cross a] basic
tenet[] of the faith.” Id. at 332. We held that this affidavit was irrelevant and
that the important inquiry was what the prisoner claimed was important to him.
Id. at 333.     In other circuits, “clergy opinion has generally been deemed
insufficient to override a prisoner’s sincerely held religious belief.” See, e.g.,
Koger v. Bryan, 523 F.3d 789, 797, 800 (7th Cir. 2008) (holding that where
Thelema religion had no general dietary requirements but where individual
Thelemites often included dietary restrictions as part of “personal regimen of
spiritual discipline,” prisoner’s request for special diet was “desire . . . based on
his religious beliefs and practices” and protected by RLUIPA).
         Turning to the second question, RLUIPA does not define “substantial
burden,” but in Adkins v. Kaspar, we supplied the following definition:
         [A] government action or regulation creates a “substantial burden”
         on a religious exercise if it truly pressures the adherent to


                                         19
                                  No. 08-20297

      significantly modify his religious behavior and significantly violate
      his religious beliefs. . . . [T]he effect of a government action or
      regulation is significant when it either (1) influences the adherent
      to act in a way that violates his religious beliefs, or (2) forces the
      adherent to choose between, on the one hand, enjoying some
      generally available, non-trivial benefit, and, on the other hand,
      following his religious beliefs.
393 F.3d at 570. We emphasized in Adkins that this test does not “require that
the religious exercise that is claimed to be thus burdened be central to the
adherent’s religious belief system.” Id. McAlister bears the burden of showing
that a substantial burden exists. See 42 U.S.C. § 2000cc–2(b). The substantial
burden inquiry is fact-specific and requires a case-by-case analysis. Adkins, 393
F.3d at 571.
      If McAlister successfully shows a substantial burden on his religious
exercise, then the burden shifts to the TDCJ officials to demonstrate that the
policies are the least restrictive means of furthering a compelling governmental
interest. See Mayfield, 529 F.3d at 613 (citing 42 U.S.C. § 2000cc–2(b)). The
neutrality of the challenged policy informs this analysis. See id. at 614 (noting
that non-uniform application of policy suggested “burden is at least partially
imposed by the TDCJ’s disparate application”).
               b. Analysis
                    1. Possession of Religious Items
      McAlister asserts that he has raised a genuine issue of material fact on his
RLUIPA claim. TDCJ questions whether McAlister sincerely believes these
items are important to a meaningful practice of Wicca, pointing to his
inconsistent requests.
      We note again that while the district court recognized this factual
predicate for McAlister’s claim and mentioned the items McAlister requested
and the items TDCJ allowed, the district court did not rule on this aspect of
TDCJ’s motion for summary judgment. We again leave this issue to the district

                                       20
                                        No. 08-20297

court to resolve in the first instance. The inquiry should then turn to whether
TDCJ’s policy imposes a substantial burden; that is, whether it truly pressures
McAlister to significantly modify his religious behavior and significantly violate
his religious beliefs. See Adkins, 393 F.3d at 570.
       If the district court finds on remand that McAlister has successfully met
his burden of showing both that he sincerely believes the items are important to
the practice of Wicca and that TDCJ policies impose a substantial burden on his
religious exercise, then the district court should also determine (1) whether
TDCJ has a compelling interest in prohibiting possession of each item; and (2)
whether the TDCJ policy is narrowly tailored to its interests.6
                      2. Volunteer Policy
       McAlister argues that fact issues regarding the neutrality of TDCJ’s
volunteer policy preclude summary judgment on his RLUIPA claim.7 We have
reviewed the TDCJ volunteer policy under RLUIPA on numerous occasions. See
Mayfield, 529 F.3d at 613–14 (discussing previous Fifth Circuit cases examining
TDCJ volunteer policy under RLUIPA and First Amendment). In the RLUIPA
context, we have held that “the requirement of an outside volunteer d[oes] not
place a substantial burden on . . . religious exercise.” Baranowski, 486 F.3d at
125 (citing Adkins, 393 F.3d at 571). However, we arrived at this holding
through a “fact-specific, case-by-case review,” and it was based upon a finding
that the volunteer policy was uniformly applied to all religions within the prison.
Mayfield, 529 F.3d at 614. As discussed above, a factual dispute exists on this



       6
        As discussed above in the First Amendment section, even if McAlister establishes his
sincere belief that these items are required for his meaningful practice, TDCJ likely has
compelling penological interests (specifically, security and safety) in prohibiting many of these
items.
       7
        As mentioned previously, TDCJ contests whether group practice is central to Wicca.
However, we cannot inquire into centrality, and TDCJ apparently does not question
McAlister’s sincerity as to his requests for group worship.

                                               21
                                  No. 08-20297

record regarding the neutrality of the policy’s application.       McAlister has
presented two sworn affidavits stating that Jewish offenders are allowed to meet
without supervision from TDCJ staff or outside volunteers. Nothing in the
record explains this lack of evenhandedness or resolves this disputed fact issue.
See id. As the Mayfield court specifically noted when reviewing the volunteer
policy under RLUIPA:
      Because the volunteer policy was implemented uniformly in the
      Adkins case, it was not the policy imposing the burden on Adkins’
      religious practice, but instead the lack of qualified volunteers.
      [Where] Mayfield . . . presented evidence [calling] into question the
      uniformity of the policy’s application . . . , [it suggested] that the
      burden [wa]s at least partially imposed by the TDCJ’s disparate
      application.
Id. (internal citations omitted). The same reasoning applies here.
      Although the district court found, and we agree, that the policy as written
is supported by compelling interests in prison security, the factual dispute as to
whether the policy is neutrally applied “call[s] into question whether the TDCJ’s
application of its policy to the [Wiccans] is narrowly tailored to the TDCJ’s
asserted interests.” See id. at 615. As a result, the district court improperly
granted summary judgment on this part of McAlister’s RLUIPA claim.
      3. Equal Protection Claim
      McAlister argues that summary judgment was improper on his equal
protection claim, as he raised evidence of non-uniform application of the TDCJ
volunteer policy. The district court found that McAlister failed to put forth any
evidence to support allegations of intentional discrimination in the supervision
of religious ceremonies or in the volunteer program.
            a. Applicable Law
      The Fourteenth Amendment’s Equal Protection Clause commands that “all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216

                                       22
                                  No. 08-20297

(1982)).   In the context of prisoner litigation, the Supreme Court has not
required that each religious denomination receive “identical facilities or
personnel,” but rather that “reasonable opportunities . . . be afforded to all
prisoners to exercise the religious freedom guaranteed by the First and
Fourteenth Amendment without fear of penalty.” Cruz v. Beto, 405 U.S. 319,
322 n.2 (1972). To survive summary judgment on his equal protection claim,
McAlister needs to “allege and prove that he received treatment different from
that received by similarly situated individuals.” Taylor v. Johnson, 257 F.3d
470, 473 (5th Cir. 2001) (per curiam). In addition, he must also “demonstrate
that prison officials acted with a discriminatory purpose” in treating him
differently from other similarly situated prisoners. Woods v. Edwards, 51 F.3d
577, 580 (5th Cir. 1995) (per curiam). “‘Discriminatory purpose in an equal
protection context implies that the decisionmaker selected a particular course
of action at least in part because of, and not simply in spite of, the adverse
impact it would have on an identifiable group.’” Id. (quoting United States v.
Galloway, 951 F.2d 64, 65 (5th Cir. 1992) (per curiam)); see also Freeman v. Tex.
Dep’t of Criminal Justice, 369 F.3d 854, 862–63 (5th Cir. 2004) (affirming
summary judgment dismissal of prisoner’s equal protection claim where prisoner
“offered little or no evidence that similarly situated faiths [we]re afforded
superior treatment, or that TDCJ’s policy was the product of purposeful
discrimination”). A prisoner must allege either a specific act of discrimination
or offer proof of discriminatory intent by prison officials; he may not rest an
equal protection claim “on only his personal belief that discrimination played a
part” in the complained-of act. Woods, 51 F.3d at 580.
             b. Analysis
      McAlister claims that two genuine issues of material fact exist regarding
whether the TDCJ volunteer policy is uniformly applied at the Jester III unit.
First, he argues that a fact issue exists as to whether other religious groups are

                                       23
                                        No. 08-20297

allowed to meet without supervision. TDCJ policy states that offenders may not
congregate or meet for religious ceremonies without the supervision of an
approved volunteer or a TDCJ employee. However, McAlister provides affidavits
from inmates Tuft and Armstrong averring that this policy is not applied
uniformly to all offenders and that Jewish offenders regularly meet without
supervision.
       McAlister relies on a recent Fifth Circuit case, Mayfield v. Texas
Department of Criminal Justice, to support his equal protection claim. But
Mayfield dealt solely with First Amendment and RLUIPA claims, not equal
protection.8 In the equal protection context, to survive summary judgment
McAlister must create a fact issue as to whether any unequal treatment was the
result of discriminatory intent—intent to cause an adverse effect on the Wiccans
or a preferential effect on the Jewish offenders. Here, McAlister has raised a
fact issue as to unequal treatment; however, to prevail McAlister must show that
TDCJ chose its course of action “at least in part because of, and not simply in
spite of, the adverse impact it would have on” the Wiccans. See Woods, 51 F.3d
at 580. Here, TDCJ has entered evidence of its facially neutral policy and
provided affidavit testimony from Warden Pittman and Chaplain Pierce that the
policy is applied evenly to all religious groups, except for Muslims (who are
governed by a separate court order). McAlister asks us to infer discriminatory


       8
           In Mayfield, we relied on an offender affidavit reporting unequal application of the
volunteer policy to reverse summary judgment for TDCJ on a RLUIPA claim brought by a
member of the Yahweh Evangelical Assembly (YEA). 529 F.3d at 608–10. There, in a sworn
affidavit submitted on behalf of the YEA offender, a Native American offender reported that
“[his] religious group[] [was] allowed to hold regular meetings without an outside volunteer . . .
on a near-weekly basis.” Id. at 608. We found that a fact issue existed because the record did
not support TDCJ’s bald assertion in its appellate brief that “Native Americans are also
required to have a volunteer present.” Id. In the context of the RLUIPA claim, the Mayfield
court was primarily concerned with the neutrality of the application of the policy—not with
whether the Native American’s affidavit constituted evidence of intentional discrimination by
prison officials.


                                               24
                                 No. 08-20297

intent on the part of TDCJ from his evidence of unequal treatment; this we
decline to do. A fact issue regarding whether TDCJ neutrally applies its policy
does not constitute proof of discriminatory intent. See Sossamon, 560 F.3d at
336 (holding that bare allegation that Muslim prisoners received religious
accommodations where other members of other religions did not was no more
than “bald, unsupported, conclusional allegations that defendants purposefully
discriminated” and inadequate to support equal protection claim).         While
McAlister has created a fact issue as to unequal treatment, his evidence does not
show that this unequal treatment was the result of intentional discrimination
on the part of TDCJ officials.
      Second, McAlister claims that he has raised a genuine issue of material
fact about the neutrality of the TDCJ process of approving religious volunteers.
He points to the Gerber affidavits, which both describe the volunteer approval
process. The Gerber affidavits relate that Chaplain Johnston required the
Gerbers to submit all religious items and scripts for religious services for pre-
approval before they could receive their certification. The affidavits state that
Johnston warned the Gerbers that if they ever deviated from the approved
scripts, their status as approved volunteers would be terminated. Later, the
Gerbers learned in a conversation with Chaplain Pierce that his office never
received the scripts or the items for pre-approval. McAlister alleges that the
Gerbers were forced to undergo “unnecessary and unapproved methods of
security checks.” However, McAlister has not raised any evidence showing how
prospective volunteers for other religious faiths are treated. He also has not
shown any evidence of intentional discrimination on the part of the TDCJ
officials who reviewed the Gerbers’ applications.       McAlister has neither
demonstrated unequal treatment nor shown discriminatory intent by TDCJ
officials on this point.



                                       25
                                       No. 08-20297

      McAlister has failed to raise a genuine issue of material fact on his equal
protection claim, and the district court properly granted TDCJ’s motion for
summary judgment on this claim.
B. McAlister’s Discovery Request
      McAlister contends that the district court abused its discretion by denying
his motion for a deposition on written question of Warden Pittman and by
denying his motion to compel the discovery request. The district court relied
upon Pittman’s initial affidavit in its opinion granting summary judgment as
providing justification for the TDCJ policy of requiring a volunteer or chaplain
to be present at all religious ceremonies.9 McAlister argues that Pittman’s
statements about prison security interests were conclusory and not based on
sound evidence. He avers that his discovery motions would have shown a lack
of documentary evidence backing up Pittman’s assertions. McAlister posits that
because the district court could not consider this additional evidence, the court
gave undue deference to Pittman’s unsubstantiated assertions. The district
court denied McAlister’s discovery motions without explanation.
      “Discovery matters are entrusted to the ‘sound discretion’ of the district
court,” and therefore are reviewed for abuse of discretion. King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (per curiam) (quoting Richardson v. Henry, 902


      9
          The relevant portion of Pittman’s affidavit states:

      Offenders are not allowed to lead their own services, as this would have a negative
      impact on security. It would allow offenders to assume leadership positions among
      other offenders, and allow offenders assuming those leadership positions to take
      advantage of others. Also, offenders would be able to use these types of meetings for
      such non-religious purposes as conducting illegal activity, planning an escape, gang
      activity, riot or numerous other type [sic] of actions which would threaten the safety
      and security of employees, offenders and the public. Based upon my experience, I am
      aware that offenders have used and attempted to use religious meetings as a guise for
      illegal activity. Because there are over 140 different faith groups that offenders have
      designated as their faith, allowing an offender to lead religious services would have a
      serious impact on any unit.


                                              26
                                       No. 08-20297

F.2d 414, 417 (5th Cir. 1990)). The district court’s “discovery rulings will be
reversed only where they are arbitrary or clearly unreasonable.” Mayo v. Tri-
Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). After a party files a
motion for summary judgment, the “nonmoving party may seek a continuance
if []he believes that additional discovery is necessary to respond to the motion.”
King, 31 F.3d at 346 (citing F ED. R. C IV. P. 56(f); Int’l Shortstop, Inc. v. Rally’s,
Inc., 939 F.2d 1257, 1266 (5th Cir. 1991)). To attain additional discovery, the
“nonmoving party must show how the additional discovery will defeat the
summary judgment motion.” Id. This showing “‘may not simply rely on vague
assertions that additional discovery will produce needed, but unspecified[,]
facts.’” Int’l Shortstop, 939 F.2d at 1267 (quoting Sec. & Exch. Comm’n v. Spence
& Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Where the non-moving
party “fail[s] to show that discovery [i]s necessary to establish any issue of
material fact that would preclude summary judgment,” the district court’s
discovery ruling will not be disturbed. King, 31 F.3d at 346.
       McAlister has not demonstrated how additional discovery would defeat
TDCJ’s summary judgment motion. He contends that his proposed deposition
on written questions would require Pittman to provide support for his
“speculative premises.” McAlister’s proposed deposition questions would have
delved into Pittman’s personal knowledge of specific incidents of illegal activity
stemming from religious activities;10 however, the relevant inquiry for the
purposes of the summary judgment motion was whether the TDCJ’s volunteer
policy was supported by either compelling government interests (for the RLUIPA
claim) or legitimate penological interests (for the First Amendment claim). The


       10
           For example, one of McAlister’s proposed deposition questions reads: “From your
personal knowledge or experience, state when; where; how; and by who [sic] a riot erupted or
was planned during a religious service.” This question is not relevant to the inquiries of
whether the TDCJ policy is rationally related to a legitimate penological interest or narrowly
tailored to a compelling government interest.

                                             27
                                   No. 08-20297

district court did not need to rely on Pittman’s personal experience with illegal
activity within the TDCJ system to find that compelling security concerns or
legitimate preservation-of-resource interests justified the TDCJ volunteer policy.
Pittman’s affidavit described generally the security concerns and limitations on
TDCJ resources that motivated the policy. The district court also considered
Chaplain Pierce’s affidavit, which described serious limitations on resources at
TDCJ. Therefore, Pittman’s personal experience was only one factor of several
that the district court considered in reaching its decision on this issue.
Summary judgment would have been appropriate even had the district court not
considered the challenged portion of Pittman’s affidavit.
      McAlister does not argue that further discovery would undercut the other
compelling justifications that both Pittman’s and Pierce’s affidavits offer for the
volunteer policy; therefore, any additional evidence produced by the deposition
on written question would not have affected the result—the affidavit went only
to compelling justifications for the TDCJ volunteer policy, not to the neutrality
of its application. This is particularly true in light of the Supreme Court’s
admonishment in Turner that “[w]here other avenues remain available for the
exercise of the asserted right, courts should be particularly conscious of the
measure of judicial deference owed to corrections officials in gauging the validity
of the regulation.”     482 U.S. at 90 (internal quotation marks, ellipsis, and
citation omitted). Here, McAlister has alternative avenues for religious exercise
through in-cell worship and through group worship with volunteer supervision.
The district court did not abuse its discretion in denying McAlister’s request for
additional discovery.
C. Appointment of Counsel
      McAlister contends that the district court abused its discretion in denying
his request for the appointment of counsel. He recognizes that the right to
counsel is not automatic in civil rights cases, but he argues that this case

                                        28
                                  No. 08-20297

presents exceptional circumstances justifying appointment of counsel. McAlister
complains that RLUIPA claims are more complex than § 1983 claims, justifying
the aid of counsel. Additionally, McAlister argues he was not able to adequately
present his case himself and appointed counsel would have helped him
investigate and present his claims. He also argues that appointed counsel would
have advised him to pursue additional claims, including state law claims such
as a claim under the Texas Religious Freedom Restoration Act. See T EX. C IV.
P RAC. & R EM. C ODE A NN. §§ 110.001–110.012 (Vernon 2005). The district court
denied his request for appointed counsel without explanation.
      We review a district court’s decision on whether to appoint counsel in civil
cases for abuse of discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987)
(“We will overturn a decision of the district court on the appointment of counsel
only if a clear abuse of discretion is shown.”). “A civil rights complainant has no
right to the automatic appointment of counsel.” Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). A district court may appoint counsel “if doing so would
advance the proper administration of justice,” Jackson v. Cain, 864 F.2d 1235,
1242 (5th Cir. 1989), but appointment of counsel is not required “unless the case
presents exceptional circumstances,” Ulmer, 691 F.2d at 212. “Although ‘no
comprehensive definition of exceptional circumstances is practical,’ a number of
factors should be considered in ruling on requests for appointed counsel.” Id. at
213 (quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982) (per curiam))
(internal citation and modification omitted). These factors include:
      (1) the type and complexity of the case;
      (2) whether the indigent is capable of adequately presenting his
      case;
      (3) whether the indigent is in a position to investigate adequately
      the case; and




                                        29
                                   No. 08-20297

      (4) whether the evidence will consist in large part of conflicting
      testimony so as to require skill in the presentation of evidence and
      in cross examination.
Jackson v. Dallas Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986) (per curiam).
      Generally, the Fifth Circuit will vacate a district court’s denial of a request
for counsel where the district court does not “present specific findings explaining
why counsel was denied.” Id. Yet, if the record shows with sufficient clarity the
facts underlying the district court’s decision, the record alone may suffice. See
id. (instructing lower courts to “make specific findings on each of the Ulmer
factors rather than deciding [motions to appoint counsel] in a conclusory
manner,” yet finding “the clarity of the record” sufficient to support district
court’s decision).
      The clarity of the voluminous record in this case sufficiently supports the
district court’s decision in this case.    The record, 997 pages long, contains
numerous pleadings, briefs, and motions that McAlister has drafted and
affidavits he has gathered from various individuals. These documents are all
relevant and on-point. Turning to the Ulmer factors, a RLUIPA case is not so
complex as to require appointment of counsel.          McAlister has sufficiently
investigated his case, and his presentation of his claims and the relevant legal
issues to both the district court and to this court for review has been adequate.
On this record, no exceptional circumstances exist that would justify the
appointment of counsel.     The district court did not abuse its discretion in
refusing to appoint counsel for McAlister.
                              III. CONCLUSION
      For the foregoing reasons, we VACATE the judgment of the district court
and REMAND for further proceedings consistent with this opinion.




                                          30
