                 REVISED MARCH 10, 2009
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                        Fifth Circuit

                                                                     FILED
                                                                   February 17, 2009
                                   No. 07-50632
                                                                Charles R. Fulbruge III
                                                                        Clerk
HARVEY LEROY SOSSAMON, III

                                             Plaintiff-Appellant
v.

THE LONE STAR STATE OF TEXAS; CHRISTINA MELTON CRAIN;
CATHY CLEMENT; BRAD LIVINGSTON; DOUG DRETKE; R.G. MURPHY;
ROBERT EASON; STACY L. JACKSON; PAUL J. KLIEN; NATHANIEL
QUARTERMAN

                                             Defendants-Appellees



                 Appeal from the United States District Court
                      for the Western District of Texas


Before WIENER, GARZA, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge.
      We are asked today to resolve a number of questions concerning the extent
to which, based on the special considerations we afford the government in its
role as jail-keeper, we will excuse the intrusion of a state, here Texas, on the free
exercise of religion by prisoners.       We must also address several issues
surrounding the remedies available when such an intrusion proves too great to
excuse. Convinced that the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”) demands less intrusion than Texas exercised in one area, we
                                       No. 07-50632

reverse and remand in part; but, discerning no error otherwise, and taking note
of the accommodations that Texas has offered the Plaintiff-Appellant Harvey
Leroy Sossamon, III during the pendency of this appeal, we also affirm in part
and dismiss some of his claims as moot with instructions to vacate.
                         I. FACTS AND PROCEEDINGS
       Sossamon is an inmate of the Robertson Unit of the Texas Department of
Criminal Justice (the “TDCJ”) — Correctional Institutions Division. He alleges
that (1) he has been deprived of access to Robertson’s chapel for purposes of his
Christian worship (the “chapel-use” claim or policy) and (2) while on cell
restriction, he was forbidden to attend any worship services at all (the “cell-
restriction” claim or policy).
       Concerning the chapel-use claim, Sossamon provided competent summary
judgment evidence that he is denied access to Robertson’s chapel for Christian
worship and that the venues for such worship offered as alternatives to the
chapel do not have Christian symbols or furnishings, such as an altar and cross,
which “have special significance and meaning to Christians.” This, he insists,
prevents him from “kneeling at the alter [sic] in view of the Cross, to pray, or
receive holy communion in obedience to Christ Jesus[’s] command, to observe the
Lord’s Supper, by Christian ceremony, in remembrance of the divine sacrifice the
Lord God made, for the atonement of plaintiff’s sins at Calvary.” Sossamon
contends that even if this were not so, services and Bible study at the alternative
venues are frequently interrupted by security personnel or noise from the prison
yard. He alleges that if worshipers refuse to end their prayer or devotion and
return to work when ordered, they are subjected to harassment and retaliation
by prison guards, such as by strip searches.1 He surmises that the prison has


       1
        Sossamon does not allege that he has been subjected to a strip search and did not file
an administrative grievance of this matter to the prison, as required by the Prison Litigation
Reform Act (“the PLRA”).

                                              2
                                       No. 07-50632

“evict[ed] and throw[n] God[] out of his house.” According to Sossamon, this is
not so for Muslim prisoners, whom he claims are provided special
accommodations for worship, along with special meals, that Christians are not.
       Concerning the cell-restriction claim, Sossamon has provided competent
summary judgment evidence that inmates on cell restriction for disciplinary
infractions were not permitted to attend religious services at all, even though
they were permitted to attend work, to eat, to shower, to have medical lay-ins,
to attend educational classes, to use the law library, and to participate in other
secular activities. On September 15, 2005, Sossamon, who had been found guilty
of a minor rule infraction, was placed on cell restriction for fifteen days. During
that time, he was twice denied permission to attend religious services.
       Based on these allegations, Sossamon proceeded pro se against the “Lone
Star State of Texas” and a number of individuals involved in the TDCJ2
(collectively referred to as “Texas”) under: (1) 42 U.S.C. § 1983, for violations of




       2
          They are: Christina Melton Crain (Chair of the Texas Board of Criminal Justice),
Cathy Clement (Assistant Regional Director for Region VI of the TDCJ), Brad Livingston
(Executive Director of the TDCJ), Doug Dretke (former Director of the TDCJ - Correctional
Institutions Division; Nathaniel Quarterman, the current Director, automatically replaced
Dretke as the defendant against whom the official-capacity claims are brought, see FED. R. APP.
P. 43(c)(2)), Reverend R.G. Muphy (Region V Program Administrator for the Chaplaincy
Department, Rehabilitation, and Reentry Programs Director of the TDCJ), Robert Eason
(Senior Warden of Robertson), Stacy Jackson (Assistant Warden of Robertson), and Paul Klein
(a volunteer chaplain at Robertson). All were sued in their personal and official capacities.
Sossamon subsequently moved to dismiss all of his TRFRA individual-capacity claims against
all defendants and to dismiss all claims against Murphy, Jackson, and Klein. Those motions
were granted. The notice of appeal erroneously listed those defendants as parties, so they
appear in our caption, but we note that they are now non-parties over whom we have no
jurisdiction. See Castillo v. Cameron County, Tex., 238 F.3d 339, 349-50 (5th Cir. 2001).

                                              3
                                         No. 07-50632

his First, Eighth,3 and Fourteenth Amendment rights; (2) RLUIPA;4 and (3) the
Texas Religious Freedom Restoration Act (“TRFRA”).5 He sought declaratory
and injunctive relief against the defendants in their official capacities, along
with compensatory and punitive damages from them in their official and
individual capacities.
       The parties cross-moved for summary judgment. On the cell-restriction
policy, Texas noted that after Sossamon filed a grievance on this issue, the
warden at Robertson amended the local cell-restriction policy by allowing
prisoners at Sossamon’s custody level (G-3) to attend worship services while on
cell restriction. The Director of the Correctional Institutions Division of the
TDCJ, Nathaniel Quarterman, submitted an affidavit during the pendency of
this appeal advising that the TDCJ has adopted Robertson’s relaxation of the
cell-restriction policy for all Texas correctional facilities.
       On the chapel-use claim, Texas concedes that Sossamon — like all other
prisoners — has been denied access to the Robertson chapel for congregational
religious services during the entirety of his incarceration at Robertson. In fact,
all religious worship is now prohibited at the chapel. The Senior Warden of



       3
         The Eighth Amendment claim is completely abandoned on appeal. Mindful of our
responsibility to construe pro se filings liberally, see Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir.
1995), we nevertheless point out that the claim fails under the test announced in Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Sossamon has not demonstrated that the chapel-use policy
and the cell-restriction policy deprive him of “the minimal civilized measure of life’s
necessities.” Id.
       4
           42 U.S.C. §§ 2000cc to 2000cc-5 (2006).
       5
         TEX. CIV. PRAC. & REM. CODE ch. 110 (Vernon 2007). This claim has been abandoned
on appeal. Again mindful of our duty to construe his briefs liberally, we point out that state
law cannot be the basis on which a federal court either enters an injunction or an award of
monetary relief against a state. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
117 (1984) (“The reasoning of our recent decisions on sovereign immunity thus leads to the
conclusion that a federal suit against state officials on the basis of state law contravenes the
Eleventh Amendment.”). As Sossamon dismissed all of his individual-capacity claims under
TRFRA, we have no need to further discuss them.

                                                 4
                                       No. 07-50632

Robertson, Robert Eason, submitted an affidavit justifying this restriction on
safety and security grounds.           He averred that Robertson has a policy of
physically segregating prisoners in different buildings based on a number of
factors. In addition to assignment based on custody level, the prison attempts
to suppress gang activity by assignments to different buildings based on gang
affiliations. Warden Eason contends that allowing prisoners to gather in one
location would undercut his policy of segregating hostile gang members. Also,
moving prisoners from building to building taxes the staff and creates security
risks, problems that are exacerbated by Robertson’s security-personnel staffing
levels, which are typically below authorized strength because the work is
difficult and the pay is low. By providing religious services at alternative
locations6 — such as in Building 4 of Robertson, where Sossamon is currently
housed — prisoners need not be moved from one building to another, thereby
relaxing the demands on security personnel and reducing the amount of
interaction among segregated prisoners.
       Warden Eason also averred that the chapel poses special security
concerns. Chaplains and religious volunteers would have to walk through
groups of prisoners to lead services from the front of the room. If an incident
were to occur, the religious personnel could be trapped. The location of the
chapel in the main administrative building also exposes the non-security
personnel of the prison (such as secretaries and support staff) to the risk of an
incident. Further, the main administrative building has storage spaces that
could be used for hiding weapons and contraband. Warden Eason based his
concerns in part on his personal experience: While serving as a captain at a



       6
         Texas offered competent summary judgment evidence that “numerous hours of
religious services and instruction [other than at the chapel] are provided to inmates sharing
[Sossamon’s] faith.” The district court also found that “it is clear . . . [that prisoners have]
access to religious books and materials . . . for the practice of their faith.”

                                               5
                                   No. 07-50632

correctional facility, a difficult-to-control riot broke out in a chapel with a design
similar to that of the Robertson chapel.
      Finally, Warden Eason noted that the Robertson chapel can hold only
around 75 people at a time, which makes it too small to hold the number of
prisoners who routinely attend non-Roman Catholic Christian services. Instead,
according to Warden Eason, the prison uses the chapel as a library for religious
books, a meeting place for staff, and a facility for teleconferencing. Regarding
the merits of Sossamon’s claimed need for access to the chapel, the prison
chaplain averred that “it is not a basic tenant [sic] of the Christian faith that
services must be held in particular locations.”
      Sossamon replied to Warden Eason’s assertions. In an affidavit, he
contended that a number of the non-religious purposes for which the chapel is
used present the same security risks as would religious services. For example,
he contends that the chapel is used for “teaching convicted sexual predators and
child molesters how to practice safe sex at TDCJ-sponsored ‘Peer Education’
classes.” These classes are taught by a “small petite” female security officer who
is “left alone with a group of men, and groups of men attending these classes are
some times [sic] left unsupervised in the chapel.”          He also contends that
prisoners “can enter the chapel for marriage seminars that begin on Friday
afternoon and last until Sunday. During these seminars[,] prisoners[’] wives are
allowed to spend up to twelve (12) hours inside the chapel with them.” Prisoners
who obtain a GED are given a celebration inside the chapel, “including contact
visits with free world members of their family and with friends.” Finally, he
alleges that prisoners are permitted to use the chaplain’s office to make phone
calls at night, but not to enter the chapel and pray at the cross.
      The district court granted summary judgment to the defendants, reasoning
that (1) Eleventh Amendment sovereign immunity bars Sossamon’s claims for
monetary relief from Texas and the defendants in their official capacities, (2) the


                                          6
                                        No. 07-50632

defendants are entitled to qualified immunity from suit for damages in their
individual capacities because no violation of Sossamon’s rights occurred, and (3)
Sossamon did not demonstrate that injunctive relief under TRFRA or his federal
claims is proper. The district court also refused to appoint counsel. This timely
appeal followed, and we appointed appellate counsel.


                                       II. ANALYSIS
1.     Mootness
       a.       Standard of Review
       We review de novo matters of justiciability, such as mootness, that affect
our jurisdiction to hear a case.7
       b.       Merits
       Texas contends that Sossamon’s claims for injunctive relief based on
Robertson’s cell-restriction policy are moot because Director Quarterman has
certified that Texas has ended the policy of preventing general-population
prisoners on cell restriction from attending religious services. We were apprised
of the change in policy and Texas’s argument that Sossamon’s injunctive-relief
claims are now moot in a Federal Rule of Appellate Procedure 28(j) letter
accompanied by an affidavit from Director Quarterman. As support for the
conclusion that its voluntary cessation of the challenged conduct moots the case,
Texas cites Staley v. Harris County, Texas, in which we held that an appeal
raising First Amendment challenges to a New Testament Bible monument
became moot after the defendant, Harris County, Texas, removed the
monument.8 We further held in Staley that any concern about a possible


       7
           United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (per curiam).
       8
         485 F.3d 305, 309 (5th Cir. 2007) (en banc) (citing Harris v. City of Houston, 151 F.3d
186, 189 (5th Cir. 1998) (“[W]e find it beyond dispute that a request for injunctive relief
generally becomes moot upon the happening of the event sought to be enjoined.”)).

                                               7
                                          No. 07-50632

redisplay of the monument in the future was not yet ripe because “there are no
facts before us to determine whether such a redisplay might violate the
Establishment Clause.”9
          If the controversy between Sossamon and Texas has resolved to the point
that they no longer qualify as “adverse parties with sufficient legal interests to
maintain the litigation,” we are without power to entertain the case.10 This
general rule is subject to several important exceptions however. For example,
the voluntary cessation of a complained-of activity by a defendant ordinarily
does not moot a case: If defendants could eject plaintiffs from court on the eve of
judgment, then resume the complained-of activity without fear of flouting the
mandate of a court, plaintiffs would face the hassle, expense, and injustice of
constantly relitigating their claims without the possibility of obtaining lasting
relief.
          The Supreme Court has recently addressed this exception to mootness. In
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., the Court
said that “[i]t is well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the
legality of the practice.”11          Further, “the standard we have announced for
determining whether a case has been mooted by the defendant’s voluntary
conduct is stringent: A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be




          9
               Id.
          10
               Lares-Meraz, 452 F.3d at 354 (internal quotation marks omitted).
          11
               528 U.S. 167, 189 (2000) (internal quotation marks omitted).

                                                 8
                                        No. 07-50632

expected to recur.”12 This is a “heavy burden,” which must be born by the party
asserting mootness.13
       On the other hand, courts are justified in treating a voluntary
governmental cessation of possibly wrongful conduct with some solicitude,
mooting cases that might have been allowed to proceed had the defendant not
been a public entity14 — a practice that is reconcilable with Laidlaw. Although
Laidlaw establishes that a defendant has a heavy burden to prove that the
challenged conduct will not recur once the suit is dismissed as moot, government
actors in their sovereign capacity and in the exercise of their official duties are
accorded a presumption of good faith because they are public servants, not self-
interested private parties. Without evidence to the contrary, we assume that
formally announced changes to official governmental policy are not mere
litigation posturing.
       Under this lighter burden to make “absolutely clear” that the cell-
restriction condition cannot “reasonably be expected to recur,” Director
Quarterman’s affidavit is sufficient. In it, he swears that the he is the party
responsible for enforcing administrative directives of the TDCJ, that the
Executive Director of the TDCJ revised the relevant administrative directive,
and that prisoners on cell restriction will now be permitted to attend religious
services.         Any claim that Sossamon might be removed from the general
population is too speculative to avoid mooting the case; we cannot foresee how

       12
            Id.
       13
            Id.
       14
         See, e.g., Zepeda v. Boerne Indep. Sch. Dist., 294 F. App’x 834, 840 n.9 (5th Cir. 2008)
(unpublished) (citing McCrary v. Poythress, 638 F.2d 1308, 1310 & n.1 (5th Cir. 1981);
Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988); 13A WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3533.7 n.6 (West 2008)). Our case that Zepeda cites pre-
dates Laidlaw and only cites to a Supreme Court case that dealt with the “capable of
repetition, yet evading review” exception, not the voluntary-cessation exception to mootness.
The Seventh Circuit case Zepeda cited is on point.

                                               9
                                      No. 07-50632

a claim made by a prisoner presenting special security concerns may differ.
Further, the fact that the change in policy is now state-wide obviates any
concern that local prison officials might change their minds on a whim or that
Sossamon might be transferred to a facility with different rules.
       We will not require some physical or logical impossibility that the
challenged policy will be reenacted absent evidence that the voluntary cessation
is a sham for continuing possibly unlawful conduct. The good faith nature of
Texas’s cessation is buttressed by the fact that Sossamon did not obtain relief
below. Had the trial court granted the injunction, we might view any attempt
to force a vacatur of such a determination (particularly in favor of a pro se
prisoner) with a jaundiced eye. As things stand, Texas has given Sossamon that
which he did not obtain in the district court and that which there at least existed
a possibility he might not have obtained here. We therefore dismiss as moot
those parts of the appeal that relate to Sossamon’s claims for injunctive and
declaratory relief from the erstwhile cell-restriction policy (but not his claims for
damages based on the September 2005 enforcement of that restriction) with
instructions that the district court vacate these portions of its opinion as well.15
2.     RLUIPA
       a.     Standard of Review
       We review a district court’s grant of summary judgment (and a district
court’s statutory interpretation) de novo, using the same standards as the




       15
          The rule of automatic vacatur after a finding of mootness on appeal, best expressed
in United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), was rejected by the Supreme
Court in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23-24 (1994).
Instead, a vacatur, which is an “extraordinary” and equitable remedy, is to be granted only
after a fact-specific balancing of the equities between the parties. Bancorp, 513 U.S. at 26.
When, however, a party who prevailed below makes the case moot by his unilateral action, a
“vacatur must be granted.” Id. at 23.

                                             10
                                          No. 07-50632

district court.16 “Summary judgment [should be granted] when the pleadings
and evidence demonstrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law.”17 The movant’s initial
burden is “to demonstrate that no genuine issue of material fact exists.”18 If the
movant satisfies that initial burden by establishing the “absence of evidence to
support an essential element of the non-movant’s case, the burden shifts to the
party opponent to establish that there is a genuine issue of material fact.”19
         “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.”20 “A fact is ‘material’ if its resolution
in favor of one party might affect the outcome of the lawsuit under governing
law.”21 At summary judgment, we construe facts in the light most favorable to
the non-moving party.22
         b.         Merits
         Sossamon seeks damages and equitable relief under RLUIPA from Texas
and from the defendants in their individual and official capacities for the
enforcement of the cell-restriction and the chapel-use policy against him. To
address these claims, we must confront several issues that we have previously
left unresolved. We must now determine (1) what, if any, private rights of action
does RLUIPA create, (2) what are the limits on any such private rights of action


         16
              FED. R. CIV. P. 56(c); Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.
2005).
         17
              Condrey, 429 F.3d at 562 (internal quotation marks omitted).
         18
              Id.
         19
              Id.
         20
              Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam).
         21
              Id.
         22
              Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

                                                 11
                                         No. 07-50632

in light of the sovereign immunity enjoyed by states, and (3) what is the
interaction between the PLRA and the rights created by RLUIPA.
       We begin with a preliminary observation: RLUIPA unambiguously creates
a private right of action for injunctive and declaratory relief. In 42 U.S.C. §
2000cc-2(a), Congress granted prisoners permission to “assert a violation of this
chapter as a claim or defense in a judicial proceeding and obtain appropriate
relief against a government.” No decision cited by the parties and none of which
we are aware holds that RLUIPA’s “appropriate relief” language fails to confer
an individual right to pursue declaratory and injunctive relief. We therefore
address whether RLUIPA also authorizes suits for damages against (1) RLUIPA
defendants in their individual capacities or (2) the state and its officers in their
official capacities, or both. We address each damages question in turn before
addressing Sossamon’s claims for injunctive and declaratory relief.
       A number of circuits appear to have assumed that an individual-capacity
cause of action for damages exists because the courts have conducted, or on
remand have required that the district court conduct, a qualified immunity
analysis.23 Some circuits have also reached the PLRA issue and held that,
because it bars compensatory damages absent physical injury, the question
about RLUIPA’s remedial scope is irrelevant.24 Of course, if no private right of


       23
          The Ninth Circuit appears to have assumed that a cause of action for monetary relief
against state actors in their individual capacities exists, but its cases contain no analysis and
are unpublished. See Campbell v. Alameida, 295 F. App’x 130, 131 (9th Cir. 2008) (mem.)
(unpublished); Von Staich v. Hamlet, Nos. 04-16011 & 06-17026, 2007 WL 3001726, at *2 (9th
Cir. Oct. 16, 2007) (mem.) (unpublished). The Third Circuit has declined to address the issue.
 Brown v. Dep’t of Corr., 265 F. App’x 107, 111 n.3 (3d Cir. 2008) (per curiam) (unpublished)
(“We also find it unnecessary to reach the questions whether individuals may be liable for
monetary damages under the RLUIPA and whether qualified immunity applies here.”). The
Fourth Circuit noted a split in the district courts over the issue, but did not resolve it. Madison
v. Virginia, 474 F.3d 118, 130 n.3 (4th Cir. 2006).
       24
         See cases cited supra note 23. This is not true as a general proposition, although it
appears to have been accurate for the case that held as much, i.e., the plaintiffs did not request
nominal or punitive damages, which are the only damages absent physical injury that the

                                               12
                                        No. 07-50632

action exists against the defendants in their individual capacities, then a
qualified immunity or PLRA analysis would be unnecessary. In Mayfield v.
Texas Department of Criminal Justice, the only case in which we have examined
this issue, we appeared to countenance the idea that a cause of action exists, but
then expressly declined to resolve the issue.25 We will assume that if RLUIPA
creates an action against defendants in their individual capacities, then it
provides for damages.26 For the reasons that we explain below, we decline to
find any authority for individual-capacity actions in the statute.
       The Eleventh Circuit is the only circuit that has resolved this issue. After
acknowledging a split in the district courts, Smith v. Allen held that RLUIPA
does not provide for damages from individuals.27 The plain language of RLUIPA,
however, seems to contemplate such relief. Despite providing a cause of action
for suits against “a government,” the definition of government provided by the
statute is expansive.28 The term “government” means:
       (i) a State county, municipality, or other governmental entity
       created under the authority of a State; (ii) a branch, department,
       agency, instrumentality, or official of an entity listed in [that] clause
       . . . ; and (iii) any other person acting under color of state law . . . .29



PLRA does not bar. See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 605-06 (5th
Cir. 2008).
       25
            529 F.3d 599 at 605-06 & n.8.
       26
          See Smith v. Allen, 502 F.3d 1255, 1272 (11th Cir. 2007). For example, the Smith
court noted that the Supreme Court has instructed us to “presume the availability of all
appropriate remedies unless Congress has expressly indicated otherwise” or given guidance
by a “clear indication of its purpose with respect to remedies.” Id. at 1270 (internal quotation
marks omitted). There is no clear or express indication in RLUIPA that damages are
unrecoverable.
       27
            Id.
       28
            42 U.S.C. § 2000cc-2(a) (2006).
       29
            Id. § 2000cc-5 (emphases added).

                                               13
                                          No. 07-50632

Smith acknowledged that this language appears to create a right against state
actors in their individual capacities.            It even mirrors the “under color of”
language in § 1983, which we know creates an individual-capacity cause of
action for damages.30
       In holding that individuals may nevertheless not be sued for damages
under RLUIPA, the Eleventh Circuit added an important gloss to a plain-
language interpretation of the statute: RLUIPA was enacted pursuant to
Congress’s Spending Clause power, not pursuant to the Section 5 power of the
Fourteenth Amendment.31 Accordingly, only the grant recipient — the state —
may be liable for its violation.32 Spending Clause legislation is not legislation in
its operation; instead, it operates like a contract,33 and individual RLUIPA
defendants are not parties to the contract in their individual capacities.
       We too conclude that RLUIPA, at least as Sossamon asserts a claim under
it, was passed pursuant to the Spending Clause,34 and we too follow the same


       30
          See, e.g., Monroe v. Pape, 365 U.S. 167, 172 (1961), overruled on other grounds by
Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978).
       31
       See Cutter v. Wilkinson, 544 U.S. 709, 715-16 (2005) (mentioning the Spending and
Commerce Clauses); Smith, 502 F.3d at 1274 n.9 (Spending Clause only).
       32
            Smith, 502 F.3d at 1272-73.
       33
            See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
       34
           Every circuit to consider whether RLUIPA is Spending Clause legislation has
concluded that it is constitutional under at least that power. See Madison v. Virginia, 474 F.3d
118, 124 (4th Cir. 2006) (approving of enactment under the Spending Clause, but not passing
on a Commerce Clause authority); Cutter v. Wilkinson, 423 F.3d 579, 584-90 (6th Cir. 2005)
(same); Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004) (same); Charles v. Verhagen,
348 F.3d 601, 606-11 (7th Cir. 2003) (same); Mayweathers v. Newland, 314 F.3d 1062, 1066-70
(9th Cir. 2002) (same). Only the Eleventh Circuit has explicitly held that RLUIPA is Spending,
not Commerce, Clause legislation. Smith, 503 F.3d at 1274 n.9. In light of the Supreme
Court’s rationale for striking down the prior incarnation of RLUIPA as applied to the states,
see Cutter, 544 U.S. at 715 (characterizing City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997),
the case that struck down the Religious Freedom Restoration Act (“RFRA”), as focusing on the
absence of a Commerce Clause underpinning or Spending Clause limitation), we agree with
the Eleventh Circuit’s conclusion (and the implicit conclusion of the other circuits by their

                                               14
                                       No. 07-50632

rule for such legislation.35 The legislation/contract distinction makes good sense
— if a congressional enactment could provide the basis for an individual’s
liability based only on the agreement of (but not corresponding enactment of
legislation by) a state, then important representation interests protected by
federalism would be undermined. After passively acquiescing in the regulation
of its citizens under a federal standard to receive needed funding from Congress,
a state legislature could point its finger at the federal government for tying
needed funds to an undesired liability — the regulation or law responsible for
such liability not having been enacted by the state. Congress could reciprocate
by pointing its finger at the state legislature for accepting the funds and visiting
liability on its citizens by the state’s own choice, even though the state itself did
not enact the law or regulation in question. Such an approach blurs the lines of
decisional responsibility; that, in turn, undermines the popular check on both
state and federal legislatures. We therefore make explicit that which was
implicit in our earlier cases:          Congressional enactments pursuant to the
Spending Clause do not themselves impose direct liability on a non-party to the
contract between the state and the federal government.36 Cases like South



uniform choice to select the Spending Clause as the most natural source of congressional
authority to pass RLUIPA) when there is no evidence concerning the effect of the substantial
burden on “commerce with foreign nations, among the several States, or with Indian tribes.”
42 U.S.C. § 2000cc-1(b)(2).
       35
          See Pederson v. LSU, 213 F.3d 858, 876 (5th Cir. 2000) (“Title IX is Spending Clause
legislation, and as a statute enacted under the Spending Clause, Title IX generates liability
when the recipient of federal funds agrees to assume liability.” (emphasis added) (citing Rosa
H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 654 (5th Cir. 1997))). In fact, Smith cited
Rosa H. as support for its conclusion. 502 F.3d at 1274.
       36
          Cf. Pennhurst, 451 U.S. at 17 (“The legitimacy of Congress’ power to legislate under
the spending power . . . rests on whether the State voluntarily and knowingly accept[ed] the
terms of the ‘contract.’” (emphasis added)). Perhaps there is an argument to be made that by
accepting employment in a federally funded state enterprise, a state official becomes a third-
party beneficiary to the contract, or knowingly and voluntarily subjects himself to liability.
Sossamon does not make this argument.

                                              15
                                  No. 07-50632

Dakota v. Dole, despite its lax approach to indirect legislation (such as requiring
that a state itself pass a particular law) under the Spending Clause, were clearly
intended to prevent — in spirit, if not by doctrine — this type of end-run around
the limited powers of Congress to directly affect individual rights.37 To decide
otherwise would create liability on the basis of a law never enacted by a
sovereign with the power to affect the individual rights at issue. For this reason,
as a matter of statutory interpretation and to avoid the constitutional concerns
that an alternative reading would entail, we decline to read Congress’s
permission to seek “appropriate relief against a government” as permitting suits
against RLUIPA defendants in their individual capacities.
      Having concluded that an action under RLUIPA does not exist for
individual-capacity claims, we will assume arguendo that an official-capacity
damages action exists. Whether or not RLUIPA creates such a cause of action,
it is barred by Texas’s sovereign immunity. As we noted above, RLUIPA was
passed pursuant to the Spending Clause. It is therefore not an attempt by
Congress to abrogate Texas’s sovereign immunity, but to goad Texas to waive its
sovereign immunity by accepting federal funds conditioned on accepting




      37
           483 U.S. 203 (1987).

                                        16
                                          No. 07-50632

liability.38 We recently declined to address this issue,39 and there is a circuit
split on the question. In Benning v. Georgia, the Eleventh Circuit concluded that
a state waives its sovereign immunity by participating in RLUIPA’s quid pro
quo.40        In Madison v. Virginia, the Fourth Circuit reached the opposite
conclusion.41
         When deciding the validity of a putative waiver of sovereign immunity
through a state’s participation in a Spending Clause “contract,” we ask whether
Congress spoke with sufficient clarity to put the state on notice that, to accept
federal funds, the state must also accept liability for monetary damages.42 The
Eleventh Circuit did not dwell long on whether the phrase “appropriate relief”
unambiguously notified Georgia that its acceptance of federal funds was
conditioned on a waiver of immunity from suit, holding that it did.43 Against a

         38
          Sossamon’s supplemental brief, prepared by the counsel we appointed him, contends
that Texas waived its sovereign immunity for this case by requesting attorneys’ fees in its
answer to the original complaint. For this proposition, the brief cites Powell v. Texas
Department of Criminal Justice, 251 S.W.3d 783, 791 (Tex. App.–Corpus Christi 2008, pet.
filed). Our waiver inquiry is limited by the Supreme Court to determining whether the state
(1) expressly consented to suit in federal court, see Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 241 (1985), superseded by statute on other grounds as stated in Pace v. Bogalusa City Sch.
Bd., 403 F.3d 272, 280 n.29 (5th Cir. 2005) (en banc), or (2) waived its sovereign immunity
through litigation conduct, for example, by voluntarily invoking a federal court’s subject matter
jurisdiction, see Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002).
Sossamon makes no claim that a request for attorneys’ fees in an answer is a voluntary
invocation of our subject matter jurisdiction like removal, so his Lapides waiver argument fails.
         39
         Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 605 n.8 (5th Cir. 2008)
(“However, circuit courts are currently split on whether RLUIPA provides for a waiver of state
sovereign immunity. . . . We need not reach [that] issue[] to decide this appeal.”).
         40
              391 F.3d 1299, 1305 (11th Cir. 2004).
         41
              474 F.3d 118, 131 (4th Cir. 2006).
         42
          See Pennhurst, 451 U.S. at 17 (“There can, of course, be no knowing acceptance if a
State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly,
if Congress intends to impose a condition on the grant of federal moneys, it must do so
unambiguously.” (footnote omitted)).
         43
              Benning, 391 F.3d at 1305-06.

                                                   17
                                        No. 07-50632

challenge that Pennhurst State School & Hospital v. Halderman44 required more
specificity than the quoted language, the Benning court held that “[t]he federal
law in Pennhurst was unclear as to whether the states incurred any obligations
at all by accepting federal funds, but RLUIPA is clear that states incur an
obligation when they accept federal funds.”45
      The Fourth Circuit, we believe properly, continued the analysis where the
Eleventh left off, observing that RLUIPA clearly apprises states that they incur
an obligation, to wit, amenability to some sort of suit seeking to enforce the
rights RLUIPA creates; however, the question then becomes, “Which kind?” To
choose between deciding whether Virginia knew that the cause of action
envisioned by Congress permitted damages (which is what we read Pennhurst
to require) or only knew that it was subjecting itself to equitable remedies, the
Madison court turned to the rules of construction found in the Supreme Court’s
waiver jurisprudence. The court pointed out that any alleged waiver must be
strictly construed in favor of the sovereign. Further, the waiver may not be
enlarged “beyond what the language requires,” and ambiguities must be resolved
in favor of immunity.46 With those principles in mind, the opinion concluded
that “appropriate relief” is “subject to more than one interpretation,” making the
language “open-ended and equivocal.”47 This fell short of the requirement that
a textual waiver of immunity must “extend unambiguously to such monetary
claims.”48 For the Fourth Circuit, this meant that RLUIPA could not satisfy
Dole’s requirement that the spending condition be unambiguous. We find the


      44
           451 U.S. at 13-14.
      45
           Benning, 391 F.3d at 1307.
      46
           Madison, 474 F.3d at 131 (citing Lane v. Pena, 518 U.S. 187, 192, 196 (1996)).
      47
           Id. at 131-32 (internal quotation marks omitted).
      48
           Id. at 131.

                                             18
                                         No. 07-50632

Fourth Circuit’s reasoning persuasive, although we conclude that the spending
provision is not sufficiently clear in light of the Court’s sovereign-immunity
jurisprudence, rather than, strictly speaking, under Dole.
       The rules of construction that the Eleventh Circuit applied to resolve the
ambiguities in “appropriate relief” for purposes of the cause-of-action inquiry in
Smith disappear when we must interpret an ambiguous provision against the
backdrop of a state’s sovereign immunity. That is, we must presume that
Congress intended to afford all ordinary remedies not expressly disclaimed when
we interpret the ambiguous language it uses to create a cause of action.49 We
may not presume the same when we ask whether a state knowingly waived its
immunity from damages when damages are not expressly provided. RLUIPA is
clear enough to create a right for damages on the cause-of-action analysis, but
not clear enough to do so in a manner that abrogates state sovereign immunity
from suits for monetary relief.50 Accordingly, Sossamon’s claims for monetary
relief from Texas and its officers in their official capacities are barred.
       To briefly recap, we hold that whether or not RLUIPA creates a cause of
action for damages against Texas and the defendants in their official capacities,
any award of damages is barred by Texas’s sovereign immunity. We also hold
that RLUIPA does not create a cause of action against defendants in their
individual capacities. Accordingly, we need not address Texas’s PLRA argument
for the RLUIPA claims.51

       49
            See Smith v. Allen, 502 F.3d 1255, 1272 (11th Cir. 2007).
       50
            Cf. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-67 (1989) (“This does not mean
. . . that we think that the scope of the Eleventh Amendment and the scope of § 1983 are not
separate issues. Certainly they are. But in deciphering congressional intent as to the scope of
§ 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a
reading of § 1983 that disregards it.”).
       51
         We have conducted the predicate cause-of-action and sovereign immunity inquiries
because it is unclear whether or not Sossamon abandoned on appeal his request for punitive
damages. The PLRA does not bar punitive damages, so we would have been required to

                                               19
                                        No. 07-50632

       Even though Sossamon may not recover monetary damages, there are
genuine issues of material fact about his entitlement to declaratory and
injunctive relief from Texas’s chapel-use policy.52 RLUIPA requires that prison
officials refrain from (1) substantially burdening an inmate’s free exercise of his
religion unless, when strictly scrutinized, (2) the burden “is in furtherance of a
compelling governmental interest” and “is the least restrictive means of
furthering that compelling interest.”53 The initial burden is on the plaintiff “to
demonstrate that the government practice complained of imposes a ‘substantial
burden’ on his religious exercise.”54           Bearing that initial burden requires
answering two questions in the affirmative:                “(1) Is the burdened activity
‘religious exercise,’ and if so (2) is the burden ‘substantial?’”55
       Religious exercise under RLUIPA is defined very broadly to include “any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief.”56 A burden is substantial if “it truly pressures the adherent to
significantly modify his religious behavior and significantly violate his religious
beliefs.”57 A burden is not substantial if “it merely prevents the adherent from




address these questions at least for punitive damages in any event. See Mayfield v. Tex. Dep’t
of Criminal Justice, 529 F.3d 599, 605-06 (5th Cir. 2008). That we reached the above
conclusions for compensatory damages only strengthens the conclusion that punitive damages
are (1) unavailable against RLUIPA defendants in their individual capacities and (2) barred
by a state’s sovereign immunity even if RLUIPA intended to permit them.
       52
         As discussed above, any claims for prospective relief based on the old cell-restriction
policy are moot.
       53
            42 U.S.C. § 2000cc-1(a) (2006).
       54
            Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).
       55
            Id.
       56
            Id.
       57
            Id. at 570.

                                              20
                                        No. 07-50632

either enjoying some benefit that is not otherwise generally available or acting
in a way that is not otherwise generally allowed.”58
       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.59 Even though the statute by its terms does not exempt
rules or regulations simply because they are generally applicable,60 we observed
in Adkins v. Kaspar that the uniformity of a burden is nevertheless relevant.61
The inquiry is a “case-by-case, fact-specific inquiry,” and we have also considered
whether the “rule or regulation . . . directly prohibits” the practice.62
       The compelling-governmental-interest issue is not in significant dispute
in this case.       Effective and affordable prison security at the chapel is a
compelling governmental interest.63 The phrase “least restrictive means” has its
plain meaning.
       Concerning the first question in our RLUIPA inquiry, viz., whether the
claim involves “religious activity,” there can be no serious dispute that
Sossamon’s claimed need for access to the chapel and its symbols relates to the
exercise of his religion. As for the second question, we perceive a genuine issue
of material fact whether the chapel-use policy creates a substantial burden on
Sossamon’s free exercise.

       58
            Id.
       59
            Id.
       60
            42 U.S.C. § 2000cc-1(a) (2006).
       61
            Adkins, 393 F.3d at 571.
       62
            Id. (emphasis added).
       63
          See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (“Courts should apply the
compelling governmental interest standard with due deference to the experience and expertise
of prison and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs and limited
resources.” (internal quotation marks omitted)).

                                              21
                                        No. 07-50632

       There seems to be no question about the genuineness of Sossamon’s
claimed desire to appear in front of the cross and altar in a room designated for
Christian worship. One of the clerical affidavits submitted by TDCJ points out
that Christianity, on the chaplain’s understanding of it, does not consider these
acts basic tenets of the faith. But, the chaplain’s understanding is irrelevant
except to the extent that it might call into question Sossamon’s good faith, which
it does not purport to do. Adkins was quite clear that a practice need not be
central to an adherent’s religion, simply important. No summary judgement
evidence contradicts Sossamon’s claim that these religious practices are
important to his practice of Christianity. Prison chaplains are not arbiters of the
measure of religious devotion that prisoners may enjoy or the discrete way that
they may practice their religion.
       Texas nevertheless contends that by making alternative venues available
to Sossamon, he cannot claim that denying him access to the chapel and its
Christian symbols substantially burdens his religious exercise. This ignores the
fact that the rituals which Sossamon claims are important to him — without
apparent contradiction — are now completely forbidden by Texas.64 He may go
to Christian services, but none of those services satisfy his need to perform what



       64
           See Greene v. Solano County Jail, 513 F.3d 982, 987-88 (9th Cir. 2008) (clarifying
that specific practices of a religion fall within the definition of “any exercise of religion” in
RLUIPA); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (“[A] substantial
burden to free exercise rights may exist when a prisoner’s sole opportunity for group worship
arises under the guidance of someone whose beliefs are significantly different from his own.”
(internal quotation marks omitted)). Smith v. Allen, 502 F.3d 1255, 1277 (11th Cir. 2007), is
not to the contrary. There, after a very extensive review of the prisoner’s many requests for
religious items, the prison denied the adherent a quartz crystal, but only after the prison
granted the adherent “a Thor’s hammer necklace; a candle in his cell; a fern tree; a number of
religious ‘runes’ . . . as well as permission to have a designated day of the week to practice his
Odinism; and permission to recognize four Odinist holidays.” Id. at 1277 n.13 The denial of
the quartz crystal, after a back and forth on supporting documentation, is markedly different
from a wholesale denial of what Sossamon claims is core to the practice of his Christianity, at
least for summary judgment purposes.

                                               22
                                        No. 07-50632

are apparently important aspects of his free exercise of Christianity, to wit:
“[K]neeling at the alter [sic] in view of the Cross, to pray . . . .” and the like.
       In Mayfield, we held that denying runestones to an Odinist created a
genuine issue of material fact whether the adherent’s religious exercise was
substantially burdened.65 Faced with a claim that all prisoners were barred
from having similar items for security reasons, the court held that “TDCJ cannot
use what is effectively a compelling interest argument to answer the preceding
question of whether Mayfield’s religious exercise is substantially burdened.”66 So
too in this case: The fact that the chapel is off limits to all congregational
worship does not answer whether Sossamon’s religious exercise has been
substantially burdened. Mayfield is even stronger support for Sossamon because
the Mayfield plaintiff was permitted to possess runestones whenever a lay
volunteer was available.67 Here, Sossamon is never permitted to engage in
religious worship in the chapel, at least according to the summary-judgment
evidence.
       Perhaps the best argument in Texas’s favor is that Sossamon is simply
asking to enjoy some “benefit” or to act in some way “not otherwise allowed.” In
debunking Texas’s prison-security argument, Sossamon alleges that other
prisoners are allowed to use the chapel for secular purposes. Thus, when viewed
in the light most favorable to Sossamon, chapel access is clearly not something
that is generally disallowed or a benefit not generally possessed by prisoners at


       65
            529 F.3d 599, 615-16 (5th Cir. 2008).
       66
            Id. at 616.
       67
          We also found that genuine issues of material fact existed as to the lay-volunteer
policy, which precluded Mayfield from forming a group in which to worship without a volunteer
present (volunteers came very irregularly). Id. at 613-15, 617. Texas responded that Mayfield
could worship in his cell, but could not possess all of the worship items he contended were
necessary. Id. We found that this alternative — solo worship — was inadequate to remedy
the burden. Id.

                                              23
                                       No. 07-50632

Robertson. Congregational worship is not generally allowed in the chapel, but
the key security factor — physical presence in the chapel of a group of prisoners
engaged in communal activity — is allowed. The fact that the policy directly
responsible for this burden bars all such religious worship (a fact that we noted
was not present in Adkins) hardly makes a stronger case for finding no
substantial burden when substantial secular use is made of the facility at issue.
      Other RLUIPA cases in this circuit have recognized that a genuine issue
of material fact exists in determining whether refusing to allow a Native
American to let his hair grow out creates a substantial burden on religious
exercise.68 Failure to provide kosher food may also constitute a substantial
burden.69 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.70 In Sossamon’s case, the
religious practice that he claims is important to him is denied to him at all
times, whether or not volunteers are present. Accordingly, genuine issues of
material fact exist on the “substantial burden” question of RLUIPA.
      If there is (or could be) a substantial burden, the second RLUIPA question
requires us to answer whether the substantial burden is nevertheless justified
by a compelling governmental interest achieved through the least restrictive
means. Texas obviously has compelling governmental interests in the security
and reasonably economical operation of its prisons, but there are genuine issues
of material fact as to whether vis-à-vis the chapel it has furthered those interests
through the least restrictive means possible. Sossamon produced competent


      68
           Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir. 2007) (per curiam).
      69
           Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007).
      70
           See id. at 124-25; Adkins, 393 F.3d at 571.

                                              24
                                       No. 07-50632

summary-judgment evidence which, when viewed in the light most favorable to
him, reveals 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. Texas contends that
because Sossamon is allowed to attend religious services elsewhere, it has
adopted the least restrictive means of accommodating his religious beliefs
because Texas has not banned Christian worship entirely.71
       This misses the point. Odinist worship was not banned in Mayfield either;
the prison simply made inadequate accommodations for it. Yet we found a
genuine issue of material fact existed as to whether the prison had furthered a
compelling governmental interest by the least restrictive means. In contrast,
Texas has banned the kind of Christian worship Sossamon contends is
indispensable to the exercise of his Christianity — kneeling in front of the cross
and such. Yet in its brief, Texas does not even engage the issue of other groups
of prisoners using the chapel. We cannot say that there are no genuine issues
of material fact about how prison security might be furthered by the chapel-use
policy when Texas essentially asks us to accept the conclusional assertion that
a worship service presents significantly more danger than a sex-ed class.
       Neither can we see why many of the security concerns voiced by Texas
cannot be met by using less restrictive means, even taking into account cost. For
instance, shifts of prisoners, segregated by building, could be permitted to
worship in the chapel, which would obviate concerns about the mixing of rival
gangs and seating capacity. Services might be limited to days when fewer



       71
           Even this argument fails. For example, Texas could provide a portable altar and a
portable set of Christian furnishings that could be used for worship in one of the rooms where
congregational services are held. Whether that would satisfy Sossamon is uncertain; he does
seem to contend that services in the chapel itself, which to him is God’s house, are necessary.
Still, providing a portable altar and Christian symbols at the alternative worship venues would
restrict his religious exercise less.

                                              25
                                        No. 07-50632

administrative personnel are in the main building (say, on Sundays), which
should lessen the risk to non-security personnel of a riot and the strain of
frequent prisoner movements. Some of these options might not prove feasible,
and there might be as-yet-unarticulated reasons why Texas must ban worship
services in the chapel while nevertheless using it for other prisoner gatherings
(or that it in fact does not).72 Those issues may be further developed on remand.
       Concluding that there are genuine issues of material fact in both steps of
the strict-scrutiny analysis that RLUIPA instructs us to apply, we reverse the
grant of summary judgment in favor of Texas on this claim and remand for
further proceedings consistent with this opinion.
3.     Section 1983 Claims
       a.       Standard of Review
       As with the RLUIPA claims, we review the district court’s grant of
summary judgment on these claims de novo, applying the same standards as the
district court and construing the evidence in the light most favorable to the non-
moving party.73
       b.       Merits
       Sossamon’s First Amendment claim is, as a practical matter, only relevant
in this appeal to his individual-capacity-damages claims under § 1983.74
RLUIPA, by directing that we apply strict scrutiny, makes injunctive relief
easier for Sossamon to obtain than it would be under the First Amendment. In
Turner v. Safley, which provides the standard for establishing a First


       72
         Perhaps only prisoners unlikely to create a security concern are permitted in these
other gatherings, if the other gatherings in fact happen. This would be no excuse for failing
to permit such low-risk prisoners from using the chapel for worship as well.
       73
            Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005).
       74
           Section 1983 does not provide a cause of action against states or state employees in
their official capacities for damages. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-67
(1989).

                                               26
                                       No. 07-50632

Amendment violation in the prison context, the Supreme Court held that so long
as actions are “reasonably related to legitimate penological interests,”75 they are
constitutional. That is an easier showing for Texas to make than that its actions
pass strict scrutiny. We also perceive no remedial differences between RLUIPA
and the Constitution for purposes of an injunction. But, for the same reasons
that summary judgment was improper on Sossamon’s claims for injunctive and
declaratory relief under RLUIPA, we perceive that there are genuine issues of
material fact going to the reasonableness of Texas’s conduct under even the laxer
First Amendment standard. Should the distinction between the two causes of
action become important going forward, the district court is free in the first
instance to assess anew, after further proceedings, whether the chapel-use policy
states a First Amendment violation.
       As for the individual-capacity claims for damages under the First
Amendment, we note that the defendants who Sossamon sued enjoy qualified
immunity as government actors.76 Whether Sossamon could establish a violation
of the First Amendment in addition to RLUIPA is not a question that we resolve
today. Instead, we simply note that Sossamon has pointed to no cases that
render the defendants’ actions — under either the cell-restriction policy or the
chapel-use policy — unreasonable in light of clearly established federal law. We
therefore affirm on that basis the grant of summary judgment in favor of the
individual defendants for the First Amendment claims.
       Although barely briefed on appeal, Sossamon also claims that the
provision of special food and religious accommodations to Muslim prisoners
violates the Equal Protection Clause. But, for such a claim to succeed, Sossamon

       75
            482 U.S. 78, 89 (1987).
       76
          See Behrens v. Pelletier, 516 U.S. 299, 205-06 (1996) (“[T]he qualified immunity
defense shield[s] [government agents] from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” (internal quotation marks omitted) (alterations in original)).

                                              27
                                        No. 07-50632

must prove “purposeful discrimination resulting in a discriminatory effect among
persons similarly situated.”77 Turner applies in the equal protection context, and
not “every religious sect or group within a prison — however few in numbers —
must have identical facilities or personnel.”78
       Other than alleging that Muslim prisoners receive special meals and
religious accommodations (requests for which are handled under a consent
decree entered into for past discrimination against them),79 Sossamon has
marshaled absolutely no evidence in support of his equal protection claim. Even
without the consent decree as an explanation, he fails to allege anything but the
“bald, unsupported, conclusional allegations that defendants purposefully
discriminated against him” that we found inadequate in Adkins.80 These claims
are without merit, so summary judgment in favor of the defendants was proper.
                                   III. CONCLUSION
       For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment to Texas and the other defendants on Sossamon’s RLUIPA
and First Amendment claims for declaratory and injunctive relief arising out of
the chapel-use policy and REMAND for further proceedings consistent with this
opinion. We DISMISS AS MOOT so much of the appeal as relates to Sossamon’s
claims for injunctive and declaratory relief based on the cell-restriction policy
with instructions that the district court VACATE those portions of its opinion as
well. Otherwise, we AFFIRM the grant of summary judgment in favor of Texas
and the defendants in their official and individual capacities on all (1) claims



       77
            Adkins v. Kaspar, 393 F.3d 559, 566 (5th Cir. 2004) (internal quotation marks
omitted).
       78
            Id.
       79
            See Brown v. Beto, No. 4:74-CV-069 (S.D. Tex. 1977).
       80
            393 F.3d at 566.

                                              28
                               No. 07-50632

under TRFRA, the Eighth Amendment, and the Fourteenth Amendment; (2) all
claims for damages under the First Amendment; (3) and all claims for damages
under RLUIPA.
     DISMISSED AS MOOT IN PART; REVERSED IN PART; AFFIRMED IN
PART; REMANDED




                                    29
