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

                                                 FILED
                                                                            March 5, 2009
                                     No. 07-10274
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT N SMITHBACK

                                                   Plaintiff-Appellant

v.

CHRISTINA MELTON CRAIN; SUSIE CHILES

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:05-CV-578


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Robert N. Smithback, Texas prisoner # 1080109, appeals an adverse
summary judgment on his challenge to Texas Board of Criminal Justice Policy
03.91, or BP-03.91, which prohibits prisoners from drawing illustrations or
messages on envelopes in which they send outgoing mail. Although Smithback
was appointed counsel in the district court, he is not proceeding in forma



       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5
                                  No. 07-10274

pauperis on appeal. Therefore, the three-strikes bar in 28 U.S.C. § 1915(g) does
not apply.
      Smithback attempted to mail a letter from a Texas corrections facility in
an envelope on which he had drawn a cross and printed “Jesus”, “LORD!” and
“In God We Trust”. Smithback decorates his envelopes in this manner to share
his religious faith with those who come in contact with the correspondence.
      Prison authorities refused to mail Smithback’s letter and returned it to
him with a notice explaining that the letter was “[n]on-mailable correspondence”
because it “[c]ontains illustrations or written messages on [the] envelope”.
Smithback filed a grievance with prison authorities, but officials refused to alter
Board Policy 03.91, which states:
      Offenders may not embellish their outgoing envelopes with
      illustrations or written messages other than the return address, the
      name and address of the intended recipient, and a notation that the
      envelope contains legal, special, or media mail.
      Smithback sued Christina Melton Crain, the chair of the Texas Board of
Criminal Justice, and Susie Chiles, the Texas Department of Criminal Justice
(TDCJ) mail-system coordinator, in their official capacities, challenging Board
Policy 03.91 under 42 U.S.C. § 1983. Smithback contended the policy infringed
his religious freedom and freedom of speech under the First and Fourteenth
Amendments of the United States Constitution and his rights under the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc. Smithback’s amended complaint also included supplemental state-law
claims under the Texas Constitution, T EX. C ONST. art. I, § 6, and the Texas
Religious Freedom Restoration Act (TRFRA), T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 110.003.
      After the parties consented to have a magistrate judge rule on all
dispositive motions in the case pursuant to 28 U.S.C. § 636(c), a magistrate
judge granted the defendants’ summary-judgment motion and dismissed the



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action. Smithback v. Texas, No. 3-05-CV-0578-BD, 2007 WL 241376 (N.D. Tex.
29 Jan. 2007).
      Smithback seeks review only for his RLUIPA and TRFRA claims.
Accordingly, his other claims are abandoned.
      Regarding the TRFRA claim, defendants contend, as they did in district
court, that subject-matter jurisdiction is lacking. A question of subject-matter
jurisdiction is reviewed de novo. E.g., In re Grand Jury Proceedings, 115 F.3d
1240, 1243 (5th Cir. 1997). The State of Texas is the real party in interest, and
the Eleventh Amendment barred the district court from exercising subject-
matter jurisdiction over Smithback’s TRFRA claim. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101-02, 120-21 (1984).
      Regarding the dismissal of the RLUIPA claim, a summary judgment is
reviewed de novo. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292
(5th Cir. 1998).   Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law”. F ED. R. C IV. P. 56(c).
      To the extent Smithback seeks compensatory damages under RLUIPA, his
claim is foreclosed by our very recent decision in Sossamon v. Lone Star State of
Texas, 2009 WL 382260, at *8 (5th Cir. 2009) (holding that, regardless of
whether RLUIPA creates a claim for damages against Texas and the defendants
in their official capacities, an award of damages is barred by state sovereign
immunity).
      Our court recently held the Eleventh Amendment does not bar a prisoner’s
RLUIPA claims for declaratory and injunctive relief against state prison officials
sued in their official capacity. See Mayfield v. Tex. Dep’t of Criminal Justice, 529
F.3d 599, 604-05 (5th Cir. 2008); see also Sossamon, at *5 (affirming that
RLUIPA “unambiguously creates” a private right of action for injunctive and
declaratory relief). RLUIPA states:

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      No government shall impose a substantial burden on the religious
      exercise of a person residing in or confined to an institution . . . even
      if the burden results from a rule of general applicability, unless the
      government demonstrates that imposition of the burden on that
      person—
             (1) is in furtherance of a compelling governmental interest;
             and
             (2) is the least restrictive means of furthering that compelling
             governmental interest.
42 U.S.C. § 2000cc-1(a).     A “religious exercise” is “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief”. 42 U.S.C.
§ 2000cc-5(7)(A).
      Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004), held: “[A] government
action or regulation creates a ‘substantial burden’ on a religious exercise if it
truly pressures the adherent to significantly modify his religious behavior and
significantly violate his religious beliefs”. Id. at 570. Adkins also explained:
“[T]he effect of a government action or regulation is significant when it either (1)
influences the adherent to act in a way that violates his religious beliefs, or (2)
forces the adherent to choose between, on the one hand, enjoying some generally
available, non-trivial benefit, and, on the other hand, following his religious
beliefs”.   Id.   Conversely, a governmental regulation or action does not
substantially burden religious exercise “if it merely prevents the adherent from
either enjoying some benefit that is not otherwise generally available or acting
in a way that is not otherwise generally allowed”. Id.
      Although Board Policy 03.91 prohibits prisoners from decorating the
outside of their mail envelopes, Smithback does not contend that the TDCJ
restricts in any way his religious exercise within an envelope. Communicating
with those who handle a piece of prison mail—as opposed to an addressee—is a
“benefit that is not generally available” and involves “acting in a way that is not
otherwise generally allowed”.       Id.   Because Board Policy 03.91 does not
substantially burden Smithback’s religious exercise, RLUIPA does not require


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that the policy be narrowly tailored to further a compelling governmental
interest. See § 2000cc-1(a).
            AFFIRMED.




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