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

                                                 FILED
                                                                         November 5, 2009

                                     No. 08-20697                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



SAMUEL LEE JONES, JR., also known as Samuel Hakeem Muhammad,

                                                   Plaintiff-Appellant
v.

AKBAR SHABAZZ, Director of Islamic Chaplains; CHARLES KISER, Prison
Chaplain; BILL PIERCE, Director of Chaplaincy Department; RICHARD
LOPEZ, Regional Program Administrator; DOUGLAS DRETKE, Director,
TDCJ-CID,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-cv-01119


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Samuel Lee Jones (“Jones”) appeals the district court’s grant of summary
judgment as to ten of Jones’s thirty-three Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), First Amendment, and Equal
Protection claims against various Texas Department of Criminal Justice


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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(“TDCJ”) chaplains and administrators.          After carefully addressing each
allegation, the district court concluded that Jones failed to raise a genuine issue
of material fact as to any of his asserted claims. Additionally, the district court
declined to allow Jones to amend his complaint to add a request for monetary
damages. We AFFIRM.
                        I. FACTUAL BACKGROUND
      Jones, also known as Samuel Hakeem Muhammad, is an inmate confined
to the TDCJ at the Michael Unit in Tennessee Colony, Texas. Jones is a member
of the Nation of Islam (“NOI”). Jones alleges he was subjected to a variety of
acts and events he claims violated his Free Exercise rights, RLUIPA protections,
and Fourteenth Amendment Equal Protection rights.              Specifically, Jones’s
appeal raises the following examples of TDCJ’s alleged conduct as grounds for
his various claims: 1) “theft” of his “religious property” and “religious videotapes”
by several different TDCJ administrators; 2) TDCJ’s refusal to allow NOI
adherents to perform certain acts at their weekly services and preach NOI
doctrine to non-NOI Muslim inmates; 3) TDCJ’s refusal to acknowledge or
accommodate unique NOI religious holidays; and 4) TDCJ’s failure to provide
NOI adherents with a specific diet conforming to their religious preferences
rather than a diet that simply avoids prohibited foods.
      On March 6, 2006, Jones brought suit against five TDCJ chaplains and
administrators: Akbar Shabazz, Director of Islamic Chaplains; Charles Kiser,
Prison Chaplain at the Beto Unit; Bill Pierce, Director of the Chaplaincy
Department; Richard Lopez, Regional Program Administrator; and Douglas
Dretke, Former Director TDCJ-Correctional Institutions Division.             Jones’s
complaint alleged thirty-three claims arising under RLUIPA, the First
Amendment, and the Fourteenth Amendment. Jones included dozens of exhibits
that eventually grew to hundreds of pages of documentation as the case
progressed. Over the next eighteen months, the defendants filed three separate

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motions for summary judgment. The district court ruled on the first and second
motions on September 28, 2007. In a 60-page ruling considering each and every
count in detail, the district court granted summary judgment on thirty-one of
thirty-three claims. The court withheld a final determination of Jones’s claims
regarding whether he should be permitted to retain prayer oil in the prison and
whether TDCJ shower procedures violated NOI modesty rules.
       The defendants filed their third summary judgment motion on November
20, 2007. In granting defendants’ motion, the district court found that the TDCJ
had changed its policy with respect to prayer oil in order to accommodate NOI
requirements. The modesty issue, at least insofar as Jones was concerned, has
been resolved by placing Jones in a unit that provided a more suitable shower
arrangement. Jones appealed on October 20, 2008 alleging eleven grounds of
error.1
                            II. STANDARD OF REVIEW
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th
Cir. 2006). Our inquiry “is limited to the summary judgment record before the
trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992). We
must view the evidence in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and
the movant has the burden of showing this court that summary judgment is
appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary

       1
          This court previously denied Jones’s motion to file an oversized brief. Jones states in
his briefs that he would have appealed the district court’s grant of summary judgment
regarding the remaining twenty-three claims had he been permitted to file an oversized brief.
In lieu of such a filing, Jones lists the other issues he would have appealed in a “Notice To The
Court.” Even under the liberal construction afforded pro se briefs, a litigant must still attempt
to advance an argument in order to preserve it. Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir.
2007). Jones’s listing of possible other grounds of error does not meet this very minimal
standard. As such, any claim of error as to the district court’s ruling on the remaining twenty-
three claims has been waived.

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judgment is appropriate where the competent summary judgment evidence
demonstrates that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see
Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable jury
could enter a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). However, to avoid summary judgment, the non-
movant must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448
F.3d 744, 752 (5th Cir. 2006). We may “affirm a grant of summary judgment on
any grounds supported by the record and presented to the court below.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
                                   III. DISCUSSION
       On appeal, Jones has reduced his thirty-three allegations to eleven alleged
errors relating to his claims under RLUIPA and the First Amendment.2 These
eleven alleged errors can be grouped into five categories: 1) issues regarding the
“theft” of Jones’s videotapes; 2) issues regarding the generic nature of TDCJ
Muslim services; 3) issues regarding TDCJ’s recognition of religious holidays; 4)
issues regarding TDCJ’s alternative diet offerings; and 5) the propriety of the
district court’s order refusing Jones’s request to amend his complaint to add a
request for monetary relief. We address each category in turn.




       2
        Jones does not advance his Fourteenth Amendment claims on appeal. Instead, Jones
repeatedly asserts that his claims arise “under the RLUIPA, FIRST, and FOURTEENTH
Amendments” at the beginning of each section with no additional argument. He does not
make any arguments related to Equal Protection under the Fourteenth Amendment or any
arguments that can be liberally construed as reaching that point. Accordingly, the Fourteenth
Amendment arguments have been waived. Longoria, 507 F.3d at 901. Even if he had not
waived these arguments, however, Jones has failed to advance any evidence at all suggesting
NOI adherents were subjected to discrimination relative to other faiths on any of his eleven
claims of error.

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A. Jones’s “Religious Videotapes”
       Jones contends that the defendants engaged in a systematic conspiracy to
deny NOI adherents access to videotaped religious lectures necessary to the
practice of their faith. More specifically, Jones alleges that the defendants
conspired on three separate occasions 3 to steal religious videotapes that he
claims were his property. We agree with the district court that–however these
incidents are construed–Jones has failed to raise a genuine issue of material fact
as to whether the denial of these videotapes constitutes a substantial burden on
Jones’s religious exercise and whether TDCJ policies governing inmate access
to videotapes are logically related to legitimate penological interests.
       RLUIPA provides that 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 is in furtherance of
a compelling governmental interest and is the least restrictive means of
furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). To
fall under RLUIPA, however, an inmate must first demonstrate that a
government practice imposes a “substantial burden” on his religious exercise.
This inquiry requires this court to determine (1) whether the burdened activity
was in fact a “religious exercise” and, if so, (2) whether the burden was
“substantial.”     Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).                       A
government action or regulation only creates a “substantial burden” on a
religious exercise if it truly pressures an adherent to significantly modify his
religious behavior and significantly violate his religious beliefs. Id. at 570.



       3
          Jones’s arguments regarding the religious videotapes tends to conflate the various
incidents he alleges. Nonetheless, a careful review of the record demonstrates that the district
court’s characterization of the videotape issue as involving three discrete incidents of alleged
theft is correct.

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“[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, nontrivial benefit, and, on the other hand, following his religious
beliefs.” Id.
      Jones has not raised an issue of material fact as to the substantial burden
prong of RLUIPA analysis on any of his videotape-related claims. Other than
a self-serving affidavit claiming he regards viewing the videotapes as a
mandatory part of his NOI faith, Jones has provided no evidence that TDCJ
content restrictions and screening processes “truly [pressure] [him] to
significantly modify his religious behavior and significantly violates his religious
beliefs.” See Adkins, 393 F.3d at 569-70. As such, we need not address in detail
each of the three instances of alleged misconduct or whether the videotapes were
“stolen” as Jones repeatedly alleges. Even assuming all of Jones’s allegations
against the TDCJ were true and were supported by sufficient evidence, he
simply cannot make out a genuine issue of fact as to substantial burden under
Adkins.
      Similarly, Jones failed to create a genuine issue of material fact as to
whether the TDCJ’s video review policy and rules against inmate possession of
videotapes violates the First Amendment. When a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interest. Scott v. Miss. Dep't of Corrections, 961
F.2d 77, 80 (5th Cir. 1992).     The TDCJ’s stated justification for reviewing
religious materials is to intercept, among other things, videotapes containing
dangerous or racist messages. The TDCJ’s stated justification for prohibiting
inmate possession (as opposed to viewing) of videotapes in general is that such
tapes can be used as weapons.        These security concerns clearly constitute
legitimate government interests logically related to both policies. Jones has

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failed to produce any evidence suggesting that these justifications are not the
true motivation for the TDCJ policies. Accordingly, Jones’s claims with respect
to the videotapes also fail under the First Amendment.
B. TDCJ’s Generic Muslim Services
      Jones next asserts that the TDCJ violated his religious liberties by: 1)
refusing to allow him and other NOI adherents to undertake certain rituals at
the weekly Muslim service; 2) refusing to permit Jones or other NOI adherents
to give sermons and lectures at all Muslim services; 3) refusing to authorize NOI
adherents to form religious study groups; and 4) refusing to allow Jones and
other NOI adherents to pray separately at the weekly Muslim services. None of
these claims have merit. Instead, we again agree with the district court that
Jones cannot make out a genuine issue of material fact as to any of his
allegations regarding the TDCJ’s religious services policy.
      First, Jones cannot make out a RLUIPA claim because the defendants’
summary judgment evidence conclusively establishes that the structure of TDCJ
Muslim services constitutes the least restrictive means to advance a compelling
government interest, and Jones has no competent contrary evidence.
Specifically, the defendants clearly demonstrate, as noted by the district court,
that the generic structure of TDCJ Muslim services maximizes inmates’ religious
liberty while addressing compelling government interests including security
problems, staffing limitations, and space constraints.
      Similarly, Jones cannot make out a First Amendment claim. We defer to
the policy decisions of prison regulators where limitations on religious liberties
are reasonably related to legitimate penological interests. Baranowski v. Hart,
486 F.3d 112, 120 (5th Cir. 2007). Under Baranowski, we ask: (1) whether there
is a rational relationship between the regulation and the legitimate government
interest advanced; (2) whether the inmates have available alternative means of
exercising the right; (3) the impact of the accommodation on prison staff, other

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inmates, and the allocation of prison resources generally; and (4) whether there
are “ready alternatives” to the regulation.            Id.   Here, the defendants have
provided ample evidence demonstrating that its decision to refuse specialized
services for NOI Muslims was based upon both security concerns and resource
limitations. NOI inmates may still exercise their religious rights through the
weekly group worship meetings. Moreover, as noted with respect to RLUIPA,
TDCJ’s plan represents the least restrictive means of advancing multiple
compelling government interests.            As such, Jones cannot make out a First
Amendment claim under Baranowski with the evidence he advanced in support
of his claim below.
C. NOI Religious Holidays
       Jones contends that the TDCJ has refused to acknowledge two NOI
observance days. As the district court notes, plaintiff’s own exhibits show that
his request has been referred to the Religious Practice Committee (“RPC”) for
discussion and approval.         Jones did not submit evidence showing that his
request was denied.        Jones did not submit evidence showing that he filed
additional grievances to determine the status of the RPC’s review. Jones did not
submit evidence that the TDCJ interferes with his observance of the NOI
holidays. In fact, Jones did not provide any evidence that observing these
“holidays” constitutes a religious exercise before filing his appellate brief and
then only did so by conclusory allegation and a non-specific citation to Jet
Magazine.4 Without more, Jones simply cannot raise a genuine issue of material
fact as to whether the TDCJ has infringed on his Free Exercise rights or as to




       4
         Jones also cites Exhibits 81-91 in support of his religious holiday argument. Exhibits
81-84 make no mention of either holiday and appear to be internet homilies issued by the NOI
leadership. Jones’s Exhibits then skip from Exhibit 84 to Exhibit 108. No Exhibit 85, 86, 87,
88, 89, 90, or 91 appears in the record.

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whether the TDCJ has created a substantial burden on his ability to practice his
faith.
D. NOI Dietary Requirements
         Jones raises one claim with respect to the TDCJ pork-free menu option for
NOI adherents. He asserts that, while the TDCJ does in fact provide alternative
options, his religious beliefs prohibit the consumption of any of the alternatives
provided. Instead, he claims his religious beliefs require the TDCJ to serve him
nothing but fresh fruits, vegetables, chicken, and fish. Yet Jones has provided
absolutely no evidence that the alternative foods offered to NOI inmates are
prohibited by his faith. Instead, he simply contends that he personally believes
that he may not eat those foods. This lack of evidence, alone, is sufficient for us
to find that he has not created a genuine issue of material fact. Jones’s claims
also fail because requiring the TDCJ to specially accommodate NOI adherents
and every one of the other 140 religious sects in the TDCJ would create undue
burdens on prison administration and the TDCJ policy represents the least
restrictive means available for handling religious dietary issues.               See
Baranowski, 486 F.3d at 122 (upholding TDCJ’s refusal to provide kosher meals
to Jewish inmates under First Amendment and RLUIPA).
E. Jones’s Motion to Amend
         Finally, Jones appeals the district courts denial of his motion to amend his
complaint to add a request for monetary damages in connection with his
RLUIPA claim. As our decision today affirms summary judgment on all of
Jones’s thirty-three claims, we need not reach this issue.
                                 IV. CONCLUSION
         After reviewing the record, we agree with the district court that Jones
simply has not raised a genuine issue of material fact on any of the claims he has
appealed to this court. Accordingly, the district court’s judgment is AFFIRMED.
Additionally, Jones’s motion for appointment of counsel is DENIED.

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