                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3874
                                  ___________

Michael Dunham Murphy,               *
                                     *
            Appellant,               *
                                     * Appeal from the United States
       v.                            * District Court for the
                                     * Western District of Missouri.
Missouri Department of Corrections;  *
Winfrey Dickerson; Dora B. Schriro;  *
Elijah Nagbe; Steve Long; Michael    *
Kemna,                               *
                                     *
            Appellees.               *
                                ___________

                            Submitted: January 12, 2004
                               Filed: June 22, 2004
                                ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

      Michael Murphy appeals from the district court’s adverse grant of summary
judgment in favor of appellees on his claims brought under 42 U.S.C. § 1983 and
under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc.
We affirm in part and reverse in part.
                                          I.
      Murphy is incarcerated at the Crossroads Correctional Center in Cameron,
Missouri. He is a practicing member of the Christian Separatist Church Society
(CSC), a religious group that holds as a central tenet the belief that its members must
all be Caucasian because they are uniquely blessed by God and must separate
themselves from all non-Caucasian persons. Murphy seeks formal recognition and
group worship accommodation for CSC within the Missouri Department of
Corrections (MDOC) and contends that MDOC has discriminated against him
because of his religious beliefs.

       Murphy pursued recognition and accommodation for CSC by following MDOC
procedure and filling out a “Request for Accommodation of Religious Practices” in
July 2000. MDOC granted members of CSC solitary practitioner accommodation, but
denied group worship as an accommodation. MDOC contends that its decision was
necessary to preserve security and to reduce the likelihood of racial violence, which,
according to prison officials, can be easily fueled by racial separation and
inflammatory rhetoric. Solitary practitioner accommodation entitles a prisoner to
practice his religion privately in his cell, to keep a sacred religious text, to receive
other literature, subject to correctional center procedures and censorship guidelines,
to have access to clergy visits, to adjust activities in order to observe holy days, and
to wear a religious symbol, subject to certain guidelines. In support of its decision
to limit CSC to solitary practitioner status, MDOC emphasizes the need for flexibility
when it comes to prison security concerns and notes that it acted in a manner
consistent with MDOC’s policy of not allowing exclusion from religious services
based on race. Policy IS17-1.1 § III.G.1.

      Murphy filed a pro se complaint requesting injunctive and monetary relief. He
claims that he was improperly denied privileges that have been given to other
separatist groups, including communal worship, religious funding and institutional



                                          -2-
TV air time for religious videos. He also argues that a certain piece of mail, Issue 36
of a religious publication called The Way, was improperly censored.

                                           II.
        We review de novo a grant of summary judgment. Evergreen Invs., LLC v.
FCL Graphics, Inc., 334 F.3d 750, 753 (8th Cir. 2003). Summary judgment is proper
if, after viewing the evidence and construing it in a light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). If the moving party
has presented evidence establishing that there is no genuine issue of material fact, the
burden shifts to the non-moving party to provide evidence demonstrating that a
genuine issue of material fact does in fact exist. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). We consider only admissible evidence
and disregard portions of various affidavits and depositions that were made without
personal knowledge, consisted of hearsay, or purported to state legal conclusions as
fact. See Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th Cir. 2003); Fed.
R. Civ. P. 56(e).

        Although prisoners retain their constitutional rights, limitations may be placed
on the exercise of those rights in light of the needs of the penal system.
Constitutional claims that would otherwise receive strict scrutiny analysis if raised
by a member of the general population are evaluated under a lesser standard of
scrutiny in the context of a prison setting. Turner v. Safley, 482 U.S. 78, 81 (1987).
A prison regulation or action is valid, therefore, even if it restricts a prisoner’s
constitutional rights if it is “reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89. Turner sets forth four factors that courts should consider in
making that determination. First, we ask whether there is a “valid rational
connection” between the prison regulation and the government interest justifying it.
Id. at 89-90. Second, we consider whether there is an alternative means available to
the prison inmates to exercise the right. Id. at 90. Third, we examine whether an

                                          -3-
accommodation would have “a significant ‘ripple effect’” on the guards, other
inmates, and prison resources. Id. Fourth, we evaluate whether there is an alternative
that fully accommodates the prisoner “at de minimis cost to valid penological
interests.” Id. at 90-91.

       Murphy raises four constitutional claims in his section 1983 action: A free
exercise of religion claim, an establishment clause claim, an equal protection claim,
and a free speech claim. He raises an independent statutory claim under RLUIPA, 42
U.S.C. § 2000cc-1, which is subject to review under a different standard.

                                           A.
       Murphy contends that MDOC violated his First Amendment free-exercise right
when it refused to grant CSC the accommodation of group worship rights.1 In
analyzing this claim, we consider first the threshold issue of whether the challenged
governmental action “infringes upon a sincerely held religious belief,” Hamilton v.
Schriro, 74 F.3d 1545, 1550 (8th Cir. 1996), and then apply the Turner factors to
determine if the regulation restricting the religious practice is “reasonably related to
legitimate penological objectives.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 353
(1987). We accord great deference to the judgment and expertise of prison officials,
“particularly with respect to decisions that implicate institutional security.” Goff v.
Graves, 362 F.3d 543, 549 (8th Cir. 2004).

      Whether or not group worship is a sincerely held religious belief is a factual
determination, so we must not quickly dismiss such claims on summary judgment by
concluding that those beliefs are not genuine. See Ochs v. Thalacker, 90 F.3d 293,


      1
       Because this free exercise claim is raised directly under the First Amendment,
we apply the Turner factors to analyze the reasonableness of the restriction. See
Hamilton, 74 F.3d at 1550-51. Murphy’s separate statutory free exercise claim is
discussed below. See Infra, Part II.E.

                                          -4-
296 (8th Cir. 1996). For purposes of summary judgment, then, we assume that
Murphy’s belief that group worship is necessary to his faith is genuine.

       Applying the first factor of the Turner reasonableness test, we find that the
decision not to grant CSC group worship rights was rationally connected to MDOC’s
legitimate interest in safety and security. MDOC stated that its decision about CSC
was based on security concerns because racial segregation will spark violence.
Institutional security is “the most compelling government interest in a prison setting,”
Goff, 362 F.3d at 549 (citing Ochs, 90 F.3d at 296), and security is particularly
important in dealing with group activities because of the potential for riots and the
extensive damage resulting therefrom.

       Applying the second Turner factor, we conclude that there are sufficient
alternative means for a member of the CSC faith to practice his faith without group
worship. A prisoner need not be afforded his preferred means of practicing his
religion as long as he is afforded sufficient means to do so. See Hammons v. Saffle,
348 F.3d 1250, 1256 (10th Cir. 2003). In O’Lone, the Supreme Court concluded that
Muslim prisoners had alternative means of exercising their religion, even though a
regulation made it impossible to practice a particular Muslim ritual. O’Lone, 482
U.S. at 352. Here, although he cannot participate in group worship, as a solitary
practitioner Murphy can still study the scriptures and CSC materials, pray,
occasionally meet with CSC clergy, observe holy days, and worship in other ways.
He can also communicate with individual fellow CSC members through permitted
inmate interactions, though not in a formalized group study.

       The other two Turner factors also support the conclusion that MDOC’s
restriction on group worship was reasonable. A decision by MDOC to accommodate
CSC and grant group worship rights would place increased demands on correctional
staff and could lead to even greater division and violence among all the prisoners.
In addition, there are no obvious, easy alternatives to solitary practitioner status that

                                          -5-
would further both CSC members’ interest in group worship and MDOC’s interest
in preventing escalated security concerns and costs. Accordingly, in light of the
deferential standard of review established by Turner, we conclude that the district
court did not err in granting summary judgment to appellees on Murphy’s free
exercise claim.

                                         B.
       Murphy argues that MDOC has violated his equal protection rights as a CSC
member because it has not applied in an equal manner its policy of refusing
segregated groups group worship privileges. He argues that MDOC discriminatorily
treated CSC member requests differently from the requests of other separatist
religious groups that have been recognized and accommodated with group worship
time. Appellees respond that they have treated Murphy and CSC members differently
because CSC is not in fact similarly situated to other racially polarized groups for
whom separatism is not central to their faith. The different treatment is therefore
based on security concerns, not discrimination, they say.

       The Fourteenth Amendment requires that the government “treat similarly
situated people alike,” a protection that applies to prison inmates. Rouse v. Benson,
193 F.3d 936, 942 (8th Cir. 1999) (citing City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985)). To succeed on an equal protection claim, Murphy
must show that he is treated differently than a similarly situated class of inmates, that
the different treatment burdens one of his fundamental rights, and that the different
treatment bears no rational relation to any legitimate penal interest. Weiler v. Purkett,
137 F.3d 1047, 1051 (8th Cir. 1998) (en banc) (analyzing equal protection in the
context of asserted qualified immunity).

      We ask first whether Murphy is in fact similarly situated to the other groups of
individuals he claims were accommodated. Rouse, 193 F.3d at 942. To survive
summary judgment, he must identify the characteristics of the class he claims to be

                                          -6-
similarly situated to and present some evidence that other groups within the class
were not also restricted in similar ways. See Id. at 942-43. If there is no evidence to
support the claim that valid prison restrictions were applied unequally, then summary
judgment is appropriate. Id. at 943.

       The parties disagree over whether there are any religious groups similarly
situated to CSC. Murphy alleges that two other religious groups in the prison, the
Nation of Islam and the Moorish Science Temple of America, are similarly situated
to CSC because they are also segregated in practice. Murphy provided numerous
affidavits from his fellow Separatist believers stating that the Moorish Science
Temple of America and the Nation of Islam do not allow Caucasians at their services.
Murphy provided no evidence, however, that separatism is a central religious tenet
of either the Nation of Islam or the Moorish Science Temple of America.

        MDOC’s supervisor of religious/spiritual programming, Winfrey Dickerson,
testified that no other religion given group worship privileges at MDOC “espouse[s]
racial separatism as a tenant [sic] of their religion or maintain[s] that worship services
must be limited to one particular race.” Appellees also maintain that because CSC’s
espousal of racial separatism as a central and mandatory tenet is more likely to incite
violence, a legitimate penological reason exists for treating CSC differently.
Accordingly, they argue that their regulations, some of which reflect their focus on
major religious tenets,2 were not applied discriminatorily.



      2
       MDOC policy IS17-1.1 § III.G.7.c. provides that it will accommodate a
prisoner’s request regarding religious practices when:
      (1) the request clearly reflects a sincerely held belief in regard to the
      major religious tenets, and
      (2) the request is based on clearly established major religious tenets, and
      (3) the request does not compromise the safety and security of the
      institution.

                                           -7-
        We conclude that no material issue of fact exists as to whether the groups are
similarly situated. Once again, giving due deference to the expertise of prison
officials, we conclude that the distinction MDOC has proffered is legitimately related
to its penological interests. Racial separatism may certainly be more inflammatory
and a greater security concern when it is mandated by the dogma of a particular
religion than when it is a factual result of a particular ideology. Summary judgment
was therefore appropriately entered in favor of appellees on this claim.

                                         C.
       Murphy also raises an establishment clause claim, arguing that MDOC favored
other religions by allowing them to present programs on the religious channel of the
prison television network and refusing to show CSC programs.3 We apply the test set
forth in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), which provides that the
government action does not violate the Establishment Clause if it has a secular
purpose, does not have a primary effect of advancing or inhibiting religion, and does
not result in excessive entanglement with religion. Id. at 612-13.

        MDOC’s purpose in providing the religious channel was to create a forum in
which a large range of religious messages could air, subject only to MDOC’s
economic and security concerns, policed by its censorship committee. The
programming on the religious channel promotes freedom of religion and a broad
spectrum of religious ideas within the prison. MDOC occasionally shows videos
about the Nation of Islam and the Moorish Science Temple, but there is no evidence
that MDOC exclusively promotes or favors any one particular religion in its
programming. The primary effect of MDOC’s religious programming choices, then,
is not to inhibit Murphy’s religion but to promote religious exercise within the limits


      3
        As evidence, Murphy provided the affidavit of his roommate, who testified
that the religious channel frequently shows Nation of Islam and Moorish Science
Temple programs.

                                         -8-
of institutional security needs. Accordingly, the district court did not err in granting
summary judgment to appellees on this claim.

                                       D.
     Murphy argues that appellees violated his First Amendment right to free speech
when they refused to deliver a publication he had received in the mail based on
MDOC’s censorship policy, a claim that is also subject to analysis under Turner.

       Regulations involving the review of incoming mail in prisons need only be
“reasonably related to legitimate penological interests.” Thornburgh v. Abbott, 490
U.S. 401, 413-14 (1989) (citing Turner, 482 U.S. at 89). A regulation that allows for
censorship of incoming items that are likely to incite violence is related to the
institutional needs of maintaining a controlled and secure environment among the
prison population. See Ortiz v. Fort Dodge Corr. Facility, No. 03-1868, 2004 WL
1151931, at *2 (8th Cir. May 25, 2004). A regulation valid and neutral in other
respects may be invalid if it is applied to the particular items in such a way that
negates the legitimate concerns. See Thornburgh, 490 U.S. at 419. We therefore ask
“whether a ban on these particular items is reasonably related to a legitimate
penological objective.” Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997).
We have previously held that a total ban on publications that espouse white
supremacy is overly broad and does not closely conform to the purpose of upholding
the security of the prison. Murphy v. Missouri Dep’t of Corr., 814 F.2d 1252, 1256
(8th Cir. 1987). Before the prison authorities censor materials, they must review the
content of each particular item received. Williams, 116 F.3d at 354. We conduct an
“independent review of the evidence” to determine if there has been “an exaggerated
response to prison concerns” in relation to this particular item. Williams, 116 F.3d
at 354 (citation omitted).

       MDOC has an established procedure for reviewing inmate mail. Questionable
items received in the mail are reviewed by a three-person censorship committee and

                                          -9-
then, if necessary, by a litigation coordinator. MDOC followed its procedure in
reviewing Issue 36 of The Way, but documented its conclusion only with the
statement that the issue was “so racially inflammatory as to be reasonably likely to
cause violence.” Although MDOC’s procedure is reasonably related to legitimate
penological interests, we conclude, based on our independent review of the evidence,
that a material issue of fact remains as to whether MDOC’s choice to censor Issue 36
satisfies the Turner factors. As we read it, Issue 36 does not appear to counsel
violence, and MDOC’s documented reason for censoring the item is too conclusory
to support a judgment in its favor on this issue. We recognize and defer to the
expertise of prison officials on what is likely to be inflammatory in the prison
environment, but summary judgment would be appropriate only if MDOC presented
some specific evidence of why this particular item implicates prison concerns.

       Accordingly, we reverse and remand on this issue. In doing so, we note that
if MDOC has additional evidence to support its decision to withhold Issue 36 of The
Way, it may again move for summary judgment, for an initial denial of summary
judgment does not establish “the law of the case” such that the ruling may not be
revisited. Curran v. Kwon, 153 F.3d 481, 487 (7th Cir. 1998); see also Breeland v.
Southern Pac. Co., 231 F.2d 576, 579 (9th Cir. 1955).

                                           E.
       In addition to his constitutional claims, Murphy has raised a claim under the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc
et seq. By enacting RLUIPA, Congress established a statutory free exercise claim
encompassing a higher standard of review than that which applies to constitutional
free exercise claims. The statute provides:

      No government shall impose a substantial burden on the religious
      exercise of a person residing in or confined to an institution, as defined
      in section 2 of the Civil Rights of Institutionalized Persons Act (42


                                        -10-
      U.S.C. § 1997), 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).4

       RLUIPA was enacted in 2000 and contains language similar to that contained
in the Religious Freedom Restoration Act of 1993 (RFRA), the predecessor statute
that the Supreme Court held to be unconstitutional as applied to states and localities
in City of Boerne v. Flores, 521 U.S. 507 (1997) (holding that Congress had exceeded
its authority by using its section five power under the Fourteenth Amendment to enact
the statute). In RLUIPA, Congress resurrected RFRA’s language, but narrowed the
scope of the act, limiting it to laws and regulations concerning institutionalized
persons or land use. See 42 U.S.C. §§ 2000cc & 2000cc-1.

       We applied RFRA’s strict scrutiny test in several prisoner free exercise cases,
and we now look to those cases for guidance. See Weir v. Nix, 114 F.3d 817 (8th Cir.
1997); Ochs, 90 F.3d 293; Hamilton, 74 F.3d 1545. Although we required the
government to meet a higher burden than the rational relation test applicable in
constitutional claim cases, we nevertheless accorded a significant degree of deference
to the expertise of prison officials in evaluating whether they met that burden.
Hamilton, 74 F.3d at 1554; Weir, 114 F.3d at 820 n.6; Ochs, 90 F.3d at 296. That


      4
        We are not called upon to address the constitutionality of this section, so we
consider only the application of its language. Of those courts that have considered
its constitutionality, several have found it constitutional. See Madison v. Riter, 355
F.3d 310 (4th Cir. 2003); Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003);
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2003). But see Cutter v.
Wilkinson, 349 F.3d 257 (6th Cir. 2003).

                                        -11-
deference was grounded on the fact that RFRA’s test should be adjusted for the
different contexts in which free exercise claims arise, the prison context being one
with special needs. Hamilton, 74 F.3d at 1554. We noted that RFRA’s legislative
history established that Congress intended such contextualization. Id., at 1553-54.

       Because RLUIPA’s scope is narrower, with language that applies solely to the
prison context, the question remains whether the statute requires us to accord the
same deference to the expertise of prison officials as that which we accorded in cases
arising under RFRA. Congress used the same strict scrutiny language from RFRA
in the RLUIPA section that applies only to prisoners, 42 U.S.C. § 2000cc-1(a), but
did not specifically codify the contextualized treatment that many courts had given
the test in the prison context.

        Although the legislative history is brief, several factors cause us to conclude
that Congress intended that the language of the act is to be applied just as it was under
RFRA. Congress did not intend to overly burden prison operations, but rather
intended to provide as much protection as possible to prisoners’ religious rights
without undermining the security, discipline, and order of those institutions. See 146
Cong. Rec. S6687 (July 13, 2000) (statement of Sen. Hatch, introducing the bill).
The bill was presented as an attempt to re-institute some of the protections of RFRA
after it had been found unconstitutional by the Supreme Court. A joint statement of
Senator Orrin Hatch and Senator Edward Kennedy, co-sponsors of the bill, stated:

      The compelling interest test is a standard that responds to facts and
      context. What the Judiciary Committee said about that standard in its
      report on RFRA is equally applicable to This Act:

             [T]he committee expects that courts will continue the
             tradition of giving due deference to the experience and
             expertise of prison and jail administrators in establishing
             necessary regulations and procedures to maintain good


                                          -12-
             order, security and discipline, consistent with consideration
             of costs and limited resources.

             At the same time, however, inadequately formulated prison
             regulations and policies grounded on mere speculation,
             exaggerated fears, or post-hoc rationalizations will not
             suffice to meet the act’s requirements.

      Senate Report 103-111 at 10 (1993).

146 Cong. Rec. S7775 (July 27, 2000). Both houses quickly passed identical bills
with no amendments. See Bill Summary and Status Report, 106th Congress, S.2869
and H.R.4862, available at http://thomas.loc.gov. In light of this legislative
background, then, we conclude that the standard applied under RFRA should likewise
be applied to cases arising under RLUIPA.

      RLUIPA requires that Murphy show, as a threshold matter, that there is a
substantial burden on his ability to exercise his religion. 42 U.S.C. § 2000cc-2(b).
To constitute a substantial burden, the government policy or actions:

      must ‘significantly inhibit or constrain conduct or expression that
      manifests some central tenet of a [person’s] individual [religious]
      beliefs; must meaningfully curtail a [person’s] ability to express
      adherence to his or her faith; or must deny a [person] reasonable
      opportunities to engage in those activities that are fundamental to a
      [person’s] religion.’

Weir, 114 F.3d at 820 (alteration in original) (citation omitted). As we indicated in
our analysis of Murphy’s constitutional free exercise claim, we hesitate to make
judgments about whether a religious belief is sincere or not. See Ochs, 90 F.3d at
296. Thus, we conclude that the district court improperly concluded on summary
judgment that Murphy’s religion was not substantially burdened and that “group


                                         -13-
worship and group discussion and study, cannot be said to be tenets or beliefs central
to his religion.” D. Ct. Opinion of Sept. 27, 2002, at 7. We have stated that 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.” Weir, 114 F.3d at 821. Murphy has
asserted numerous beliefs and aspects of his faith that are incompatible with
Protestant Christian beliefs. He has also asserted that communal worship is an
important part of his religion. Whether Murphy can establish the truth of these
allegations and the existence of a substantial burden on the exercise of his religion
is a matter to be determined by the district court in the first instance following a trial
on the merits on this issue.

       Assuming that Murphy’s religious practice has been substantially burdened,
MDOC can still prevail if it establishes that its choice to give Murphy only solitary
practitioner status was the least restrictive means to further a compelling interest.
We conclude that although its actions were justified under the Turner reasonableness
analysis, there is insufficient evidence to conclude that appellees have satisfied the
heavier burden imposed upon them under RLUIPA.

       We acknowledge that MDOC has a compelling interest in institutional security.
Ochs, 90 F.3d at 296. Nevertheless, it must do more than merely assert a security
concern. Although we give prison officials “wide latitude within which to make
appropriate limitations,” they “must do more than offer conclusory statements and
post hoc rationalizations for their conduct.” Hamilton, 74 F.3d at 1554 (citation
omitted). The threat of racial violence is of course a valid security concern, but to
satisfy RLUIPA’s higher standard of review, prison authorities must provide some
basis for their concern that racial violence will result from any accommodation of
CSC’s request. See Ochs, 90 F.3d at 296-97 (indicating that the court considered the
prior racial violence a relevant part of its decision to defer to prison authorities’
security concerns).

                                          -14-
        We do not require evidence that racial violence has in fact occurred in the form
of a riot, but we do require some evidence that MDOC’s decision was the least
restrictive means necessary to preserve its security interest. 42 U.S.C. § 2000cc-
1(a)(2). There exists a question of fact as to whether there are means available to
MDOC less restrictive than the total preclusion of group worship for CSC members.
It is not clear that MDOC seriously considered any other alternatives, nor were any
explored before the district court. The only evidence MDOC submitted to support its
claim of security concern was testimony suggesting that Murphy is a racist and that
his religion requires that only Anglo-Saxon individuals may participate. We cannot
conclude from this limited evidence that MDOC has met its burden of establishing
that its limitation on Murphy’s religious practices constituted the least restrictive
means necessary to ensure the prevention of racial violence within the prison.
Accordingly, we remand for further fact finding on this issue.

       The judgment is affirmed in part and reversed in part, and the case is remanded
to the district court for further proceedings consistent with the views expressed in this
opinion.
                           ______________________________




                                          -15-
