                      REVISED MAY 1, 2009
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 30, 2009
                                       No. 06-11233
                                                                       Charles R. Fulbruge III
                                                                               Clerk
ROBBIE LYNN NEWBY

                                                  Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BILL
PIERCE, Director of Chaplaincy TDCJ; E WILLIAMS, Warden; JOHN NINO,
Chaplain

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:05-CV-128


Before BARKSDALE, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
       Robbie Lynn Newby, Texas prisoner # 1238216, appeals the dismissal as
frivolous and for failure to state a claim of his pro se civil rights complaint,
which raises First and Fourteenth Amendment claims under 42 U.S.C. § 1983,
and claims under the Religious Land Use and Institutionalized Persons Act
(RLUIPA). Newby’s § 1983 and RLUIPA claims arise from his desire to practice

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11233

the Buddhist faith while incarcerated in the Texas Department of Criminal
Justice-Institutions Division’s (TDCJ-ID’s) Roach Unit.          For the following
reasons, we affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
                  I. Factual and Procedural Background
      Newby filed an amended complaint against Doug Dretke, the Director of
the TDCJ-ID;1 Bill Pierce, the Director of Chaplaincy at the TDCJ-ID; E.
Williams, the Warden at the Roach Unit; and John Nino, the Chaplain at the
Roach Unit, asserting violations of his First and Fourteenth Amendment rights
and his rights under RLUIPA.         Newby’s amended complaint contains the
following allegations: The defendants place impermissible burdens on Buddhist
adherents at the Roach Unit by denying Buddhists the right to (1) have meetings
under the same conditions as similarly situated religious groups; (2) have weekly
worship time without an approved volunteer; (3) equal consideration concerning
fair access to facilities for purposes of conducting religious activities; and (4)
wear Buddhist “malas,” or prayer beads, under the same conditions as
Christians are allowed to wear crucifixes.
      Newby alleges that outside volunteers are unavailable to hold Buddhist
meetings for the Roach Unit and, as a Buddhist, it is essential for him to meet
regularly with other Buddhists. He contends that outside volunteers have
applied to lead Buddhist meetings for the inmates; however, they “encountered
mysterious red-tape” and were never approved. Newby alleges that Buddhists
are not afforded the same privileges as similarly-situated adherents of other
religions, insofar as Christian activities are overseen by a state-sponsored
leader, Chaplain Nino, and Muslims are allowed to meet three times a week
without an outside volunteer. He further asserts that his Buddhist practices

      1
          On June 1, 2006, Nathaniel Quarterman succeeded Doug Dretke, the previously
named defendant, as Director of the Correctional Institutions Division of the Texas
Department of Criminal Justice. Quarterman is substituted as a party. FED. R. APP. P.
43(c)(2).

                                         2
                                       No. 06-11233

require that he have his prayer beads in contact with his body at all times;
however, prison policy requires that he not wear them outside of his cell. Newby
seeks declaratory and injunctive relief against the defendants in their official
capacity and punitive damages, or any other damages available, against the
defendants in their individual capacities.2
       After Newby filed his initial complaint, which did not include a claim
under RLUIPA, the district court ordered the State Attorney General to
investigate Newby’s claims and submit a report to the court pursuant to
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). The Martinez report related
the following: Of the 1,335 inmates on the Roach Unit, there were approximately
twenty Buddhists, and of this twenty, ten to fifteen regularly sought to be
excused from work and other activities to observe state-designated Buddhist
holidays. According to prison regulations, religious services must be conducted
“by either a chaplain or an approved religious volunteer.” “Because of security
and safety concerns, [inmates] may not lead religious services.                    There is
potential danger in sanctioning a system in which certain inmates hold
persuasive power over others.” Muslim inmates are exempt from the outside-
volunteer policy pursuant to a consent decree in Brown v. Beto. There is “a total
lack of approved Buddhist volunteers.”3 “If the Chaplaincy Department at the
Roach Unit was to be contacted by a volunteer that wished to lead Buddhist
education and worship, arrangements could be made to hold Buddhist religious
ceremonies.” “The lack of approved volunteers is the only reason that Buddhist
group ceremonies cannot currently be held.” Because of the lack of Buddhist
volunteers, Chaplain Nino arranged for Newby “to have a private, tape assisted,


       2
         We recently clarified the remedies available under RLUIPA and § 1983 in prisoner
religious exercise cases. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326-31, 335
(5th Cir. 2009).
       3
        According to TDCJ-ID policy, an “approved volunteer” is defined as “[a] person who
provides a service or who participates in volunteer activities on a regular basis and has been
approved through the application process.”

                                              3
                                     No. 06-11233

meditation session on a weekly basis.” Additionally, Buddhists are permitted to
have lay-in days, in-cell prayer and meditation, certain religious objects, and a
Buddhist book section in the spiritual library in the chapel.
      Newby responded to the Martinez report, raising several objections.
Newby contested the number of Buddhist inmates on the Roach Unit, stating
that there were twenty Buddhists in his building alone, and there were four
other buildings in his unit.4 He further disputed the report’s statement that the
prison library contained a Buddhist book section, stating that “there [was] no
and never ha[d] been any Buddhist section in the chapel library.” Newby also
disputed the “accommodations” he was purportedly provided, stating that his
weekly tape-assisted sessions were an academic pursuit, not devotional, for the
purpose of his obtaining a diploma as a Dharma teacher. Finally, he challenged
as discriminatory Chaplin Nino’s overseeing Christian basketball, volleyball,
band, and choir at the expense of his being able to supervise a Buddhist meeting,
specifically referencing Nino’s affidavit testimony that his duties of overseeing
the needs of the entire inmate population prevented him from personally being
able to lead a regular Buddhist ceremony.
      After reviewing the record, the magistrate judge (MJ) recommended that
Newby’s complaint be dismissed as frivolous and for failure to state a claim. See
28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c)(1). In regard to Newby’s
First Amendment Free Exercise claims, the MJ determined that (1) to the extent
Newby was challenging the application of certain prison regulations, those
regulations satisfied the requirements of Turner v. Safley, 482 U.S. 78 (1987),
and were reasonably related to a legitimate penological interest, and (2) Newby
failed to allege “that the defendants have denied or restricted his right to
practice Buddhism in his cell, that he has been denied alternative means of
exercising his religion, or that there is some obvious regulatory alternative that

      4
       In his brief, Newby contends that he personally knows thirty-eight Buddhists at the
Roach Unit, and “there could be a hundred Buddhists.”

                                            4
                                 No. 06-11233

would fully accommodate his claimed rights without imposing a greater than de
minimis cost to the prison’s valid penological goals of security, discipline, and
operating within space, budget and time restraints, all while executing a neutral
policy.”
      As for Newby’s Fourteenth Amendment claims, he claimed that Muslim
services were supervised by a single guard and that Buddhist services should be
allowed to take place under similar circumstances. The MJ stated that an
exception is made as to Muslims pursuant to a consent decree in Brown v. Beto,
and Newby had not shown how the consent decree conferred any rights to him
or “how an additional exception for Buddhists would be only a de minimis cost
to the valid penological interests underlying the regulations.” The MJ further
determined that Newby failed to show “purposeful discrimination resulting in
a discriminatory effect among persons similarly situated.” With regard to his
prayer beads, the MJ noted that prison policy allowed inmates to possess
rosaries; however, it mandated that they not be worn as necklaces.      The MJ
added that since rosaries were a species of prayer beads, the requirement that
they all be dyed black appeared to be a neutral regulation.
      Lastly, the MJ recommended the dismissal of Newby’s RLUIPA claim.
Newby claimed that he was prevented from worshiping with other Buddhists
unless an outside volunteer was available to conduct the meeting. The MJ
determined that “[t]he requirement of an outside volunteer, which is a uniform
requirement for congregate religious services except Muslims, did not place a
substantial burden on [Newby’s] religious exercise.”
      Newby filed objections to the MJ’s recommendations, which the district
court denied. The district court adopted the MJ’s report and dismissed Newby’s
complaint as frivolous and for failure to state a claim.    Newby then filed a
motion to alter the district court’s judgment, which the district court denied.
Newby filed a timely notice of appeal and a motion to proceed in forma pauperis



                                       5
                                    No. 06-11233

(IFP) on appeal. The district court granted Newby permission to proceed IFP on
appeal.
                                    II. Analysis
A.    Standard of Review
      An IFP complaint may be dismissed as frivolous if it has no arguable basis
in law or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); 28 U.S.C.
§ 1915(e)(2)(B)(i). The dismissal of a complaint as frivolous pursuant to §
1915(e)(2)(B)(i) is reviewed for abuse of discretion. See Harper v. Showers, 174
F.3d 716, 718 & n.3 (5th Cir. 1999). However, dismissals for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. § 1997e(c)(1) are
reviewed de novo, using the same standard of review applicable to Fed. R. Civ.
P. 12(b)(6) dismissals. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005);
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). Because the district court
dismissed Newby’s claims pursuant to both subsections, review should be de
novo. See Geiger, 404 F.3d at 373 (reviewing dismissal of complaint de novo
where both standards of review were applicable).
      To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id.
at 555-56 (internal quotation marks, citations, and footnote omitted).
B.    RLUIPA
      1.     Legal Standard
      Newby argues that the complete absence of Buddhist meetings, the ban on
carrying malas or wearing them under his clothes, and the requirement that his
malas be dyed black all place a substantial burden on his exercise of religion
because both communal meetings and wearing malas are essential to the
practice of Buddhism.

                                          6
                                   No. 06-11233

      Under RLUIPA,
      No 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(a). “The term ‘religious exercise’ includes any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.”
Id. § 2000cc-5(7)(A); see Adkins v. Kaspar, 393 F.3d 559, 567-68 & nn.33-34 (5th
Cir. 2004).    The plaintiff bears the burden to show that the challenged
government action imposes a “‘substantial burden’ on his religious exercise.”
Adkins, 393 F.3d at 567.       “[A] government action or regulation creates a
‘substantial burden’ on a religious exercise if it truly pressures the adherent to
significantly modify his religious behavior and significantly violate[s] his
religious beliefs.” Id. at 570. “[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.” Id. In applying this test, courts
conduct a “case by case, fact-specific inquiry.” Id. at 571.
      2.      Outside Volunteer Claim
              a.   Substantial Burden
      Newby argues that the district court erred in dismissing his RLUIPA
claim because the TDCJ-ID’s outside-volunteer policy imposes a substantial
burden on his right to practice Buddhism.          In Mayfield v. Texas Dep’t of
Criminal Justice, 529 F.3d 599, 614-15 (5th Cir. 2008), we held that the


                                         7
                                       No. 06-11233

availability of an outside volunteer only once every eighteen months provided a
reasonable basis for a factfinder to conclude that the application of the TDCJ-
ID’s outside-volunteer policy imposed a substantial burden on Mayfield’s right
to exercise his religion in violation of RLUIPA. In making this determination,
we noted the lack of evidence that a volunteer would become available in the
future to reduce the burden on Mayfield’s ability to worship. Id. Newby has
alleged that the TDCJ-ID’s outside-volunteer policy has precluded members of
the Buddhist faith on the Roach Unit from meeting, and the Martinez report
corroborates that there is a total lack of approved Buddhist volunteers to
conduct meetings. These facts suggest that the burden on Newby is greater than
that of the inmate in Mayfield.5
       In Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009), we
held that TDCJ-ID’s complete ban on worship in the Robertson Unit’s chapel
provided a reasonable basis for a factfinder to conclude that the application of
the TDCJ-ID’s chapel-use policy imposed a substantial burden on Sossamon’s
right to exercise his religion in violation of RLUIPA. Id. at 332-34. Sossamon
claimed that worship before an altar and cross in a chapel with Christian
symbols and furnishings was important to his free exercise.                     Id. at 321.
Similarly, Newby claims that it is essential for him to meet with other Buddhists
and participate in communal services. Although Chaplain Nino’s affidavit states
that “Buddhism does not rely heavily on services requiring worshipers to
congregate,” his understanding “is irrelevant except to the extent that it might
call into question [Newby’s] good faith, which it does not purport to do.” Id. at
332. Chaplain Nino states that he provides alternative accommodations for the

       5
         In Adkins, we held that TDCJ-ID’s outside-volunteer policy did not substantially
burden Adkins’s free exercise, see 393 F.3d at 571, but in that case, an outside volunteer was
available to oversee Sabbath observances for members of the Yahweh Evangelical Assembly
(YEA) once a month. See id. at 562; see also Sossamon, 560 F.3d at 334 (“It is primarily cases
in which the small number of available lay volunteers makes religious services less frequent
than an adherent would like (but still available on a somewhat regular basis) that a neutrally
applied policy does not substantially burden religious exercise.”).

                                              8
                                  No. 06-11233

Buddhist prisoners, but the existence and efficacy of these accommodations is
hotly contested. See Mayfield, 529 F.3d at 614-15 (“An inability to exercise other
means of Odinist worship increases the relative burden imposed by the TDCJ’s
policy preventing group meetings in the absence of an outside volunteer.”). For
purposes of the “substantial burden” prong of the RLUIPA inquiry, these
alternative accommodations do not alter “the fact that the rituals which [Newby]
claims are important to him—without apparent contradiction—are now
completely forbidden by Texas.” Sossamon, 560 F.3d at 333 (emphasis in
original). Based on Mayfield and Sossamon, there is a reasonable basis for a
factfinder to conclude that the outside-volunteer policy creates a substantial
burden on Newby’s free exercise.
            b.     Least Restrictive Means
      Having determined that there is a reasonable basis for a factfinder to
conclude that the outside-volunteer policy substantially burdens Newby’s free
exercise, we must still evaluate whether that policy is the least restrictive means
of furthering a compelling governmental interest. See 42 U.S.C. § 2000cc-1(a).
If it is, then Newby’s RLUIPA claim must fail. Chaplain Nino opines that an
outside volunteer is required for security and safety concerns. If inmates are
allowed to lead religious services, they might exert undue influence over other
adherents and might not have adequate knowledge of the religious tenets of a
particular faith. “Texas obviously has compelling governmental interests in the
security and reasonably economical operation of its prisons,” see Sossamon, 560
F.3d at 334, but there is a reasonable basis for a factfinder to conclude that
Texas has not furthered those interests through the least restrictive means
possible.
      If a policy of general applicability imposes a substantial burden on an
inmate’s free exercise, we evaluate whether the policy is the “least restrictive
means of furthering [a] compelling governmental interest” by examining the
particular facts of the case. The outside-volunteer policy provides that religious

                                        9
                                 No. 06-11233

services in the Roach Unit need to be conducted by either a chaplain or an
approved religious volunteer.     However, there are no approved religious
volunteers to conduct Buddhist ceremonies, and Chaplain Nino refuses to
conduct Buddhist ceremonies because he is unfamiliar with Buddhist religious
practices and is occupied by his other chaplaincy obligations. At a result,
Buddhists are completely unable to engage in communal worship.
      At this stage of the litigation, we cannot see “why many of the security
concerns voiced by Texas cannot be met by using less restrictive means, even
taking into account cost.” See Sossamon, 560 F.3d at 335. For instance,
Chaplain Nino or other prison staff could supervise, rather than conduct,
Buddhist ceremonies, thus ensuring that no inmate exerts undue influence over
his peers. See id. (identifying alternative arrangements that would address the
legitimate security concerns raised by the prison while imposing a lesser burden
on the inmate’s free exercise). Newby alleges that “numerous Buddhist clergy
[have] offered remote supervision, audio/video tapes, and consultation for
Chaplain Nino,” who through exercise of his supervisory authority could ensure
that any communal worship is consistent with the tenets of the Buddhist faith.
While Buddhists might not be entitled to the benefits of the consent decree in
Brown v. Beto, the fact that Muslims regularly engage in communal worship
without an approved religious volunteer is some evidence that the security and
safety concerns identified by Texas can be addressed through less restrictive
alternatives. The feasability of these alternatives and others can be explored on
remand.
      Newby also alleges that Chaplain Nino is targeting Buddhists through the
disparate application of TDCJ-ID’s outside-volunteer policy.       According to
Newby, (1) Muslims may hold services without an approved religious volunteer,
but Buddhists may not; and (2) Chaplain Nino conducts or supervises a variety
of Christian activities, but not Buddhist activities. Newby alleges that TDCJ-ID
does not allow him to meet with other Buddhists under the same conditions as

                                       10
                                        No. 06-11233

these “god-based groups.”6 These allegations of disparate application might
provide a reasonable basis for a factfinder to conclude that the outside-volunteer
policy is not the least restrictive means of furthering a compelling governmental
interest. See id. at 334 (noting that “the chapel can be and is safely used for
other kinds of prisoner gatherings, such as weekend-long marriage training
sessions (with outside visitors), sex education, and parties for GED graduates.”);
Mayfield, 529 F.3d at 615 (“The unresolved factual issues regarding the TDCJ’s
neutral application of the policy call into question whether the TDCJ’s
application of its policy to the Odinists is narrowly tailored to the TDCJ’s
asserted interests.”). Consequently, we vacate the dismissal of Newby’s RLUIPA
claim as to the outside-volunteer policy.
       3.      Prayer Beads Claim
       The district court did not evaluate under RLUIPA whether the TDCJ-ID’s
restrictions on wearing prayer beads imposed a substantial burden on Newby’s
religious practice; it addressed that issue with regard only to his First and
Fourteenth Amendment claims. “[T]he RLUIPA standard poses a far greater
challenge than does Turner to prison regulations that impinge on inmates’ free
exercise of religion.” Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854,
857 n.1 (5th Cir. 2004). Because the district court’s evaluation of the prayer
beads issue under the First and Fourteenth Amendments is not dispositive for
purposes of determining whether Newby has stated a RLUIPA claim, it should
address that issue on remand.
C.     Constitutional Claims
       1.      First Amendment Claims
               a.     Establishment Clause



       6
         Newby identifies these structured religious activities as “Christian band practice, choir
practice, Catholic band practice, praise and worship team practice, Catholic choir, Spanish
choir, Spanish bible study, musician practice, Taleem services, Jumah, Muslim coordinators
(and even basketball and volleyball tournaments).”

                                               11
                                   No. 06-11233

      With regard to his First Amendment issues, Newby first argues that the
district court failed to address his Establishment Clause claim. The record
discloses, however, that the district court did address that claim, and Newby has
not assigned error to or briefed the specific reason for its dismissal. He has
therefore forfeited its review. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). We affirm the dismissal of Newby’s
Establishment Clause claim.
             b.    Free Exercise Clause
      Newby also raises a First Amendment Free Exercise claim, and, on appeal,
argues that the TDCJ-ID failed to provide him with alternative means of
exercising his religious rights in spite of the outside-volunteer policy. In Turner,
482 U.S. at 90, the Supreme Court stated that one of several factors relevant to
determining the reasonableness of prison policy or actions by prison officials is
whether there are alternative means of exercising the rights that remain open
to the inmates. In assessing the availability of alternative means, “the pertinent
question is not whether the inmates have been denied specific religious
accommodations, but whether, more broadly, the prison affords the inmates
opportunities to exercise their faith.” Adkins, 393 F.3d at 564 (internal quotation
marks and citation omitted).
      Newby has alleged that Buddhist inmates on the Roach Unit have been
totally unable to congregate due to a lack of outside volunteers and have no
access to religious materials from the unit’s library. As such, the facts of his case
differ from previous cases in which we have held that the prisoner had access to
alternative means of worship. See Mayfield, 529 F.3d at 609-10; Adkins, 393
F.3d at 564. Newby has alleged facts that could lead a factfinder to conclude
that the TDCJ-ID has failed to provide him with alternative means of practicing
his Buddhist faith and, therefore, that the outside-volunteer policy violates his
First Amendment rights. The dismissal of his First Amendment Free Exercise
claim is therefore also vacated.

                                         12
                                    No. 06-11233

      2.    Fourteenth Amendment Claim
      Finally, Newby argues that the TDCJ-ID’s outside-volunteer policy
violates the Fourteenth Amendment’s Equal Protection Clause. Insofar as
Newby bases his equal protection claim on allegations that Muslim inmates are
unfairly exempt from the outside-volunteer policy by virtue of Brown v. Beto, we
have rejected a similar argument in Adkins. See 393 F.3d at 566. Newby has
therefore failed to state a claim on that basis. Nevertheless, Newby disputes the
number of Buddhists on the Roach Unit as represented in the Martinez report
and argues that Buddhists are denied equal consideration concerning fair access
to facilities to conduct religious activities, despite having numerous adherents
on the unit. To the extent that the district court found that any disparate
treatment of Buddhists could be overlooked because other religions had far more
adherents on the Roach Unit, the record contains no evidence supporting that
assumption. Cf. Mayfield, 529 F.3d at 609 (refusing to overlook the existence of
material issues of fact regarding whether Odinists and other religious groups
were similarly situated based on only unsupported assumptions about the
relative size of Odinists compared to other faith groups on the unit). A Martinez
report may not be used to resolve material disputed fact findings when they are
in conflict with the pleadings or affidavits. Shabazz v. Askins, 980 F.2d 1333,
1334-35 (10th Cir. 1992).     Consequently, the dismissal of Newby’s equal
protection claim is also vacated.
      AFFIRMED IN PART; VACATED IN PART; REMANDED.




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