     Case: 08-40821     Document: 00511023468          Page: 1    Date Filed: 02/09/2010




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

                                                  FILED
                                                                          February 9, 2010

                                       No. 08-40821                    Charles R. Fulbruge III
                                                                               Clerk

IRON THUNDERHORSE,

                                                   Plaintiff-Appellant,
v.

BILL PIERCE, Individually and in his Official Capacity as Chaplaincy Director;
RON TEEL, Individually and in his Official Capacity as Coordinator of Native
American Religious Programs; UNIDENTIFIED DOES; and BRAD
LIVINGSTON,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                 for the Eastern District of Texas, Lufkin Division
                              USDC No. 9:04-CV-222


Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        This appeal arises from a bench trial involving claims brought pursuant
to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. §§ 2000cc-2000cc-5, and 42 U.S.C. § 1983, against Defendants-Appellees
who are officials or employees of the Texas Department of Criminal Justice-
Institutional Division (“TDCJ”). Pro se Plaintiff-Appellant Iron Thunderhorse,

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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a prisoner in the custody of the TDCJ, contends that the magistrate judge
improperly dismissed his claims that Defendants violated his free-exercise rights
under RLUIPA by (1) denying him permission to grow his hair, (2) prohibiting
him from performing pipe ceremonies in his cell, and (3) denying him access to
a colored headband. Thunderhorse also argues that the TDCJ’s failure to
explicitly recognize Native Americans as a racial category (as opposed to
“Other”) denies him certain prison benefits. With respect to the bench trial, he
alleges that the magistrate judge inappropriately denied both his request to
subpoena two witnesses and his motion for a jury trial. He further claims that
the magistrate judge was biased against him and the attorneys for Defendants
committed discovery abuse. For the reasons set forth below, we AFFIRM.
             I. PROCEDURAL AND FACTUAL BACKGROUND
      Thunderhorse filed this action in October 2004, and this is the second time
that this case has come before us. The magistrate judge had previously granted
summary judgment for Defendants on the RLUIPA claims now before us. See
Thunderhorse v. Pierce, 418 F. Supp. 2d 875, 899 (E.D. Tex. 2006), rev’d 232 F.
App’x 425 (5th Cir. 2007). On appeal, we found that the magistrate judge did not
give Thunderhorse sufficient notice so that he could properly respond to
Defendants’ motions, and the lack of notice resulted in Thunderhorse’s failure
to file a “large amount of evidence.” Thunderhorse, 232 F. App’x at 427.
Accordingly, we vacated the grant of summary judgment and remanded the case
for the magistrate judge to consider the motions in light of the previously unfiled
evidence. See id. Instead of reconsidering the summary-judgment motions, the
magistrate judge held a bench trial on April 1, 2008. At the pre-trial conference
and again at trial, Thunderhorse objected to the magistrate judge’s denial of his
request for a jury trial and his motion to subpoena Debra Liles and Chaplain Al
O’Brien, former employees of the TDCJ, as trial witnesses.



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          On July 20, 2008, the magistrate judge issued an opinion granting the
following injunctive relief: (1) the TDCJ shall recognize Native American
Shamanism as a valid faith with its own “faith code”; (2) “Thunderhorse shall be
permitted to request the designation of a reasonable number of holy days and to
request traditional foods for feast days, in conformity with TDCJ regulations”;
and (3) if Thunderhorse is released from administrative segregation, the TDCJ
shall not unreasonably deny him access to pipe ceremonies, a medicine bundle,
a clay flute, and a small drum. She denied all other relief that Thunderhorse
sought. The facts set forth below were developed at the bench trial.
          Thunderhorse claims that he is the “Grand Sachem” (Chief) of the
Quinnipiac Indians, a part of the Algonquian Confederacy. His faith is Native
American Shamanism. Although Thunderhorse has submitted an application for
federal recognition of the Quinnipiac, it is not a federally recognized tribe.
          Thunderhorse first entered the TDCJ in 1967. He has been released and
re-incarcerated at least three times, and he has remained incarcerated since
2002. His current problems with the TDCJ began when he transferred from the
Stiles Unit of the TDCJ to the Polunsky Unit in August 2004. Before arriving at
the Polunsky Unit, Thunderhorse claims that he was able to maintain long hair
(with braids that fell to his lower back),1 wear a colored headband, perform pipe
ceremonies, and possess other religious items. According to Thunderhorse, the
TDCJ provided these accommodations while he was in the general population
and when he was confined to administrative segregation.
          When he first arrived at the Polunsky Unit, he was in the general
population. He alleges that the staff there harassed him about his religion and
ethnicity, and the guards confiscated his medicine bag, religious medallion, and
quartz crystal. According to Thunderhorse, this harassment resulted in an


          1
              Indeed, these severed braids, which we have inspected, were part of the appellate
record.

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altercation with a guard in June 2006. As a result, the TDCJ assigned him to
administrative segregation. While there, he is not allowed to attend pipe
ceremonies, conduct a personal pipe ceremony in his cell, or possess a flute or
drum. In addition, the TDCJ prohibits him from wearing a colored headband,
and the TDCJ refuses to grant him an exemption to its hair-length restriction.
However, the TDCJ does allow him to wear a white headband. All inmates at the
Polunsky Unit must abide by the headband and hair-length policies.
                          II. STANDARD OF REVIEW
      We review the magistrate judge’s legal conclusions at a bench trial de novo
and her findings of fact for clear error. Adkins v. Kaspar, 393 F.3d 559, 563 (5th
Cir. 2004) (citation omitted). Because Thunderhorse is a pro se litigant, we
construe his briefs liberally and “apply less stringent standards” than to parties
represented by counsel. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
                                III. DISCUSSION
      A.    The RLUIPA Free-Exercise Claims
      The core of this appeal is Thunderhorse’s contention that certain policies
of the TDCJ violate his rights, under RLUIPA, to freely exercise Native
American Shamanism. Specifically, he complains that the TDCJ prohibits him
from growing his hair and from performing religious pipe ceremonies in his cell.
He also complains that the TDCJ prohibits him from wearing a colored
headband.
            1.      Legal Standards
      RLUIPA mandates that
      [n]o 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


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      (2) is the least restrictive means of furthering that compelling
      governmental interest.
42 U.S.C. § 2000cc-1(a). “RLUIPA thus protects institutionalized persons who
are unable freely to attend to their religious needs and are therefore dependent
on the government’s permission and accommodation for exercise of their
religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
      An inmate-plaintiff seeking relief under RLUIPA bears the initial burden
of demonstrating that the challenged prison policy substantially burdens his
exercise of religion. See 42 U.S.C. §§ 2000cc-1(a)-2000cc-2(b). To meet this
burden, the plaintiff must show (1) that the burdened activity is a “religious
exercise,” and (2) that the burden is substantial. RLUIPA defines “religious
exercise” as “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). In Adkins v. Kaspar, we
defined “substantial burden” as follows:
      [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 . . . . [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.
393 F.3d 559, 570 (5th Cir. 2004) (citations omitted). This inquiry “requires a
case-by-case, fact-specific inquiry to determine whether the government action
or regulation in question imposes a substantial burden.” Id. at 571.
      If the plaintiff satisfies this threshold requirement, the burden shifts to
the defendant to demonstrate that the challenged policies are the least
restrictive means of furthering a compelling governmental interest. Baranowski
v. Hart, 486 F.3d 112, 124 (5th Cir. 2007) (citation omitted). In making this
determination, the court must give due deference “to the experience and

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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.” Cutter v. Wilkinson, 544 U.S. 709,
723 (2005) (citation omitted). RLUIPA “is not meant to elevate accommodation
of religious observances over the institutional need to maintain good order,
security, and discipline or to control costs.” Baranowski, 486 F.3d at 125 (citation
omitted).
      Thunderhorse’s primary contention here is that the magistrate judge
failed to analyze his claims under RLUIPA’s compelling-interest, least-
restrictive-means standard of review.
            2.      The TDCJ’s Hair-Length Policy
      The magistrate judge properly found that Diaz v. Collins, 114 F.3d 69 (5th
Cir. 1997), and Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007), foreclosed
Thunderhorse’s RLUIPA claim against the TDCJ’s hair-length policy. In both
cases, the plaintiffs, like Thunderhorse, were prisoners who, for religious
reasons, sought permission not to cut their hair. Diaz, 114 F.3d at 70 (following
the religious practices of the Aztecs); Longoria, 507 F.3d at 900-01 (practicing his
religion as a Mexica Nahua Native American). In both cases, we found that the
policy substantially burdened (or the plaintiff had sufficiently pleaded that the
policy substantially burdened) a religious exercise. See Longoria, 507 F.3d at
903; Diaz, 114 F.3d at 72-73. But we upheld the policy as the least restrictive
way to serve a compelling governmental interest—prison security.
      In Diaz, which arose under RLUIPA’s predecessor statute, the Religious
Freedom Restoration Act (“RFRA”), we explained that prisoners may hide
weapons and other contraband in their hair. 114 F.3d at 73 In addition,
requiring short hair makes it more difficult for an escaped prisoner to alter his
appearance from the photographs that the TDCJ periodically takes of each



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inmate. Id.2 In light of these concerns, we held that “the security interest at
stake cannot meaningfully be achieved appropriately by any different or lesser
means than hair length standards.” Id.
       In Longoria, 507 F.3d at 904, we affirmed the district court’s dismissal of
Longoria’s RLUIPA claim even though the district court did not determine
whether the policy was narrowly tailored to achieve a compelling governmental
interest. We explained that such a determination was unnecessary because we
had previously evaluated the same policy under RFRA. Id. at 901, 904 (citing
Diaz, 114 F.3d at 73). Because RLUIPA and RFRA shared the least-restrictive-
means, compelling-interest test, we held that the district court was not required
to reexamine the TDCJ’s hair-length policy to conclude that Longoria had failed
to state a claim under RLUIPA. See id. at 904. Consistent with these decisions,
we affirm the dismissal of this RLUIPA claim.3
              3.     Colored Headband
       To establish that the TDCJ’s prohibition against colored headbands
violates RLUIPA, Thunderhorse must first show that the prohibition
substantially burdens his religious exercise. See 42 U.S.C. §§ 2000cc-1(a)-


       2
         Defendants introduced similar evidence in this case. Furthermore, the Regional
Director of the TDCJ explained that, because altercations between inmates occur with some
frequency, the policy prevents inmates from “grab[bing] that handful of hair, [which] becomes
a heck of a leverage issue . . . .”
       3
          Thunderhorse argues that the policy cannot be the least restrictive way to maintain
prison security because the TDCJ enforces it in an arbitrary manner and other prison systems,
including the Federal Bureau of Prisons, permit long hair. He cites examples of how the TDCJ
had previously permitted him and other inmates to have long hair. These contentions find
support in Warsoldier v. Woodford, in which the Ninth Circuit issued a preliminary injunction,
pursuant to RLUIPA, that prevented the California Department of Corrections from enforcing
its hair-length restriction against a Native American inmate. See 418 F.3d 989, 999-1001 (9th
Cir. 2005). The Ninth Circuit found that the restriction was not the least restrictive means to
maintain prison security, in part, because the prisons run by the federal government, Oregon,
Colorado, and Nevada all permit long hair or provide religious exemptions to their hair-length
restrictions. See id. at 999 (citations omitted). This court, however, is bound by Diaz and
Longoria.

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2000cc-2(b). The magistrate judge found that Thunderhorse failed to establish
that wearing a white cloth headband, which the TDCJ allows, as opposed to a
colored headband, which the TDCJ prohibits, substantially burdens his religious
exercise. We agree.
       Thunderhorse’s sole complaint on appeal is that he is unable to purchase
the white headbands through the approved vendors or at the TDCJ’s
commissaries. He contends that this inability to purchase the white headbands,
rather than the policy itself, is the substantial burden. At trial, he admitted that
he cannot purchase the white headbands because the only remaining approved
vendor mishandles his orders. In response, the Regional Director of the TDCJ
promised to attempt to secure more vendors. Based on this evidence, the only
fault that the magistrate judge could have attributed to the TDCJ is that it
should have selected more competent vendors—an oversight that does not rise
to the level of a RLUIPA violation. In sum, Thunderhorse has not shown that the
TDCJ’s headband policy substantially burdens his rights under RLUIPA.4
              4.      Performing Personal Pipe Ceremonies in His Cell
       The TDCJ’s ban on pipe use within the cell does not violate RLUIPA.
Thunderhorse seeks to perform personal pipe ceremonies inside of his cell.5
According to Thunderhorse, Native American Shamans use the pipe to pray. It


       4
          Thunderhorse does dispute the TDCJ’s justification for the restriction against colored
headbands, which the magistrate judge credited. According to the TDCJ, the restriction is the
least restrictive way to prevent inmates from using colored accessories to promote gang
affiliations. Thunderhorse, however, is in administrative segregation where he spends most
of his time alone and in his cell. Neither the magistrate judge nor the TDCJ has explained how
allowing him to wear a colored headband while he is alone and in his cell could promote gang
violence. But we do not reach this question because Thunderhorse has failed to satisfy his
threshold burden of establishing that the white-headband-only policy substantially burdens
his religious exercise.
       5
        The TDCJ allows those in the general population (but not those in administrative
segregation such as Thunderhorse) to participate in group pipe ceremonies outdoors. At trial,
Thunderhorse made clear that he did not seek to attend those ceremonies. Instead, he only
sought to perform personal pipe ceremonies inside of his cell.

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is undisputed that the pipe ceremony is a religious exercise and that the
prohibition on it is a substantial burden. Therefore, the issue is whether
Defendants have shown that the prohibition on personal pipe use within the cell
is the least restrictive method to achieve a compelling interest.
      Defendants argue that the compelling interest here is prison security: no
inmate may have materials inside of his cell that could be used to start a fire or
create an explosive. The magistrate judge properly ruled for Defendants on this
basis, stating that “[b]ecause Thunderhorse is in administrative segregation, he
does not have access to pipe ceremonies for security reasons, which reasons
represent compelling governmental interests.”
      Maintaining prison security is a compelling interest. Sossamon v. Lone
Star State of Texas, 560 F.3d 316, 334 (5th Cir. 2009) (“Texas obviously has
compelling governmental interests in the security . . . of its prisons . . . .”). We
find no reason to question the TDCJ’s position that the prohibition on incendiary
items within the cell is the least restrictive way to prevent inmates from starting
fires in their cells. Hence, the TDCJ’s prohibition on pipe use within the cell does
not violate RLUIPA.
      B.    Request for a Jury Trial
      Thunderhorse was not entitled to a jury trial because he sought only
injunctive and declaratory relief. See Baum v. Blue Moon Ventures, LLC, 513
F.3d 181, 193 (5th Cir. 2008) (“[U]nless Congress has expressly provided to the
contrary, an injunction is an equitable remedy that does not invoke a
constitutional right to a jury trial.” (citations omitted)); Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 423 n.19 (5th Cir. 1998) (citations omitted). At
trial, when Thunderhorse raised this issue, the magistrate judge explained that
“the reason it was a bench trial was because you were seeking injunctive relief
and declaratory relief. That’s equitable relief.” Thunderhorse conceded, “Okay.
I misunderstood.” He did not claim that he sought any relief other than equitable

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relief. Under these circumstances, the magistrate judge properly denied
Thunderhorse’s request for a jury trial.
      Thunderhorse apparently recognizes that he was not entitled to a jury
trial, so he argues that, under Federal Rule of Civil Procedure 39(c), the court
should have ordered one. Rule 39(c) is inapplicable. It states that “[i]n an action
not triable of right by jury, the court, on motion or on its own: (1) may try an
issue with an advisory jury; or (2) may, with the parties’ consent, try an issue by
a jury whose verdict has the same effect as if a jury trial had been a matter of
right . . . .” Fed. R. Civ. P. 39(c). Thunderhorse did not seek an advisory jury nor
has he argued or pointed to any portion of the record showing that Defendants
consented to a jury trial.
      Thunderhorse also claims that he was entitled to a jury trial because, in
his Complaints, he “left open the issue of damages depending on what verdict
was returned by a jury.” His Amended Complaint, however, does not seek, or
reserve the right to seek, monetary damages. Instead, the “Prayer for Relief”
only includes the following five requested remedies: (1) declaratory judgment,
(2) injunctive relief, (3) costs of the suit, (4) attorney fees, and (5) other relief
deemed proper by the court.
      C.     Request to Subpoena Witnesses
      The magistrate judge did not err by denying Thunderhorse’s request to
subpoena two witnesses, Debra Liles and Chaplain Al O’Brien, to testify at trial.
We review such decisions for an abuse of discretion. Adkins v. Kaspar, 393 F.3d
559, 571 (5th Cir. 2004). “Before we will hold that the district court abused its
discretion by refusing to issue a subpoena, the proponent of the subpoena must
show that relevant testimony was excluded, or that a substantial need for a
witness’s trial testimony existed.” Id. (footnote omitted). Thunderhorse argues
that the magistrate judge should have compelled the attendance of Liles and
O’Brien because he considered them unnamed John and Jane Doe Defendants,

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and his Amended Complaint identified “all others similarly situated” as
Defendants.
      It appears that he raised this argument for the first time on the day of
trial, and the record does not show that Thunderhorse has ever served or asked
the court to serve Liles and O’Brien with the Summons and Complaint, cf. Fed.
R. Civ. P. 4. As such, the magistrate judge properly denied his request to compel
Liles and O’Brien to appear as Defendants.
      Thunderhorse also mischaracterizes the proceedings before the magistrate
judge on this issue by selectively quoting from her February 20, 2008 Order to
Produce Witnesses. According to Thunderhorse, the Order stated, “The State of
Texas shall produce Debra Liles, Deacon Al O’Brien . . . [.]” But what the Order
actually required was that the “State of Texas shall produce, Debra Liles,
Reverend-Deacon Al O’Brien (or provide last known address) . . . .” On March 17,
2008, Defendants complied: They informed the magistrate judge and
Thunderhorse that Liles and O’Brien were no longer employed with the TDCJ
and that they would not be available for trial. Defendants also provided Liles
and O’Brien’s last known addresses to the court under seal. Under these
circumstances, we cannot find that the magistrate judge abused her discretion
in denying Thunderhorse’s request to subpoena these witnesses to testify.
      D.    Alleged Judicial Bias
      During the trial, the magistrate judge stated that this court had already
ruled that the TDCJ’s grooming code, as applied to hair length, is enforceable
under RLUIPA. She explained that Thunderhorse would have to argue the issue
to this court because she was bound by our precedent. Thunderhorse argues that
these statements, coupled with the magistrate judge’s unwillingness to consider
evidence that the hair-length regulations violated RLUIPA, evinces judicial bias.
Once again, Thunderhorse mischaracterizes what occurred. Contrary to
Thunderhorse’s argument, the record reflects that the magistrate judge allowed

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detailed testimony about the hair-length code over Defendants’ objections that
the Fifth Circuit had already decided the issue. In sum, there is no merit to this
claim of judicial bias.
      E.     Alleged Discovery Abuse
      Thunderhorse alleges that Defendants’ attorneys engaged in discovery
abuse, such as failing to disclose documents and impeachment information, and
informing Thunderhorse, just four days before trial, that Liles and O’Brien no
longer worked for the TDCJ. According to Thunderhorse, “[t]hese tactics and
elements of surpri[s]e etc. operated to cause Appellant, a disabled [Pro Se]
litigant[,] extreme undue prejudice and constitutes misconduct by the [S]tate of
Texas.” We review alleged discovery errors for an abuse of discretion and will not
reverse unless the party alleging the error establishes that he was prejudiced by
the error. See United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009);
Hastings v. North East Indep. Sch. Dist., 615 F.2d 628, 631 (5th Cir. 1980).
      We have already addressed the magistrate judge’s denial of the motion to
subpoena Liles and O’Brien. Thunderhorse’s remaining allegations of
misconduct also fail because he has not alleged that the magistrate judge made
incorrect rulings or rulings that prejudiced him as a result of this alleged
misconduct. Nor has he identified anything in the record showing that he
objected to this conduct. Instead, his appellate papers focus exclusively on the
“misconduct by the [S]tate of Texas.” As such, these claims are not properly
before the court as there are no decisions by the magistrate judge to review. See
Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 14 (1st Cir. 2002) (finding
no abuse of discretion where the plaintiffs did not object to the alleged discovery
abuses).
      F.     Recognition of Native Americans as a Racial Category
      Thunderhorse complains about the TDCJ’s method for categorizing its
inmates as either “White,” “Black,” “Hispanic,” or “Other.” According to

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Thunderhorse, categorizing him as “Other” instead of “Native American” violates
his Fourteenth Amendment rights by depriving him of “any legitimate
rehabilitative, cultural programs, services and activities that could, should or
would be available if such a category existed.” Once again, Thunderhorse has not
pointed to any evidence to support this supposition. Nor have we found any in
the appellate record. To the contrary, the Regional Director of the TDCJ testified
that there are no benefits attached with these racial classifications. Hence, we
find no clear error in the magistrate judge’s decision to credit this
uncontroverted testimony and to dismiss this claim.
      G.    Other Claims
      Thunderhorse’s remaining claims lack merit. First, he argues that the
TDCJ favors white supremacist and multi-denominational faiths over
traditionalist Native American Shamanism because the TDCJ does not have a
“faith code” for Native American Shamanism. This argument overlooks the fact
that he prevailed on this very issue before the magistrate judge who ordered that
“Native American shamanism should be recognized as a legitimate faith, with
its own faith code . . . .” Indeed, his brief recognizes that the magistrate judge’s
decision “give[s] Appellant the right to be recognized and categorized as a Native
American Shaman with its own sub-code, with a choice of holy days and with
special meals.”
      Second, Thunderhorse complains about the magistrate judge’s ruling that
he may have a ceremonial pipe, drum, clay flute, and medicine bundle when he
is released from administrative segregation. He argues that this ruling creates
an incentive for the TDCJ to keep him in administrative segregation for as long
as possible. This argument is entirely speculative and not ripe.
      Third, during this appeal, Thunderhorse filed a Motion for Leave to File
a Supplemental Brief, which we granted. In it, he contends that the TDCJ
discriminates against his religion because he cannot obtain special foods for his

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holy days while Jewish, Muslim, and Catholic prisoners in administrative
segregation can. The magistrate judge ruled on this matter in her Order Denying
Plaintiff’s Second Motion for Enforcement, dated July 21, 2009. She found that
the religious meals that the Jewish, Muslim, and Catholic prisoners receive
consist of the same foods provided to all inmates. She ruled that, consistent with
the TDCJ’s policy, if Thunderhorse wants food that the TDCJ does not serve so
that he can celebrate religious holidays, he can arrange for outside sources to
deliver the food through the prison chaplain. Thunderhorse does not challenge
these rulings in his supplemental brief. Therefore, we do not address this claim.6
                                 IV. CONCLUSION
      For the reasons set forth above, we AFFIRM the judgment.




      6
        The remainder of the supplemental brief echoes prior requests for a pipe ceremony
and an exemption to the hair-length policy, which we have addressed.

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