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

                                                 FILED
                                                                            March 6, 2009
                                     No. 07-41015
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

WILLIE LEE GARNER, also known as Willi Free I Gar’ner

                                                   Plaintiff-Appellant

v.

PAUL MORALES, Individually and in his official capacity; ROBERT CRITES,
Individually and in his official capacity; BRYAN GORDY, Individually and in his
official capacity; EILEEN KENNEDY; MARTHA WEAR; ET AL.; JUAN M.
GARCIA; LOUIS ROCHA; GINA K. CURRIE; SYLVIA VILLARREAL;
RACHELLE RAMON

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:06-CV-218


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Willie Lee Garner, Texas prisoner # 606635, appeals the district court’s
adverse summary judgment on his free exercise, equal protection, and retaliation
claims under 42 U.S.C. § 1983 as well as his claims under the Religious Land
Use and Institutionalized Persons Act (RLUIPA or Act), 42 U.S.C. §§ 2000cc-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 07-41015
2000cc-5. He also appeals the district court’s denial of his request for appointed
counsel. For the following reasons, we affirm in part and vacate in part and
remand.
                                        I. FACTS
       Garner, a prisoner incarcerated in the Texas Department of Criminal
Justice (TDCJ), adheres to Islam. He contends that the tenants of his Islamic
faith require him to wear at all times a beard and a white head covering known
as a Kufi. Impeding Garner’s ability to adhere to these tenants of his faith are
the TDCJ’s no-facial-hair grooming policy, which requires all inmates to
maintain a clean shave absent an objectively verifiable medical condition,1 and
the TDCJ’s head-covering policy, which restricts Garner from wearing his Kufi
to and from religious services. In 2004, Garner began refusing to comply with
the TDCJ’s grooming policy by not shaving; he was disciplined several times as
a result. Garner admitted that he was not exempt from the policy due to a
medical condition; instead, he argued that the TDCJ’s inflexible grooming policy
should yield to his religious beliefs.
       Garner brought this suit against Lieutenant Juan Garcia, Sergeant Louis
Rocha, Officer Rachelle Ramon, Commissary Manager Gina Currie, and
Commissary Coordinator Sylvia Villarreal in their individual and official
capacities. His suit alleges that the defendants violated his constitutional rights
by refusing to allow him to maintain a quarter-inch beard and wear a Kufi to
and from religious services. Specifically, Garner brought suit under § 1983,
alleging violation of his First Amendment right to free exercise of religion, his
Fourteenth Amendment right to equal protection of the law, and retaliation
under the Eighth Amendment. Garner also claims that the TDCJ’s policies
violate the RLUIPA, which protects the religious practices of institutionalized
persons.


       1
         The grooming policy permits inmates with an objectively verifiable medical condition
to obtain a clipper-shave pass, which allows them to maintain a quarter-inch beard.

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                                  No. 07-41015
      The district court granted summary judgment in favor of the defendants
on all of Garner’s claims.    The court provided a number of grounds for its
judgment. First, the court concluded that sovereign immunity barred Garner
from suing the defendants in their official capacities for money damages.
Second, the court held that the defendants were entitled to judgment as a matter
of law because Garner had not sufficiently shown a violation of either the
RLUIPA or the First, Eighth, or Fourteenth Amendments. Finally, the court
concluded that the defendants were entitled to qualified immunity.            In a
separate order, the district court denied Garner’s request for appointed counsel.
Garner’s claims are now before this Court.
                               II. DISCUSSION
      We review the district court’s grant of summary judgment de novo
applying the same standard as the district court. See Baranowski v. Hart, 486
F.3d 112, 119 (5th Cir. 2007).      Summary judgment is appropriate “if the
pleadings, depositions, 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. C IV. P. 56(c). The
movant bears the burden of demonstrating the absence of a genuine issue of
material fact. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc) (per curium). In making our determination, all doubts and reasonable
inferences must be resolved in favor of the non-movant, here Garner. Id.
A. Sovereign immunity
      Garner contends that the district court improperly held that sovereign
immunity barred him from suing the defendants in their official capacities for
money damages. We disagree. A suit against a government official in his or her
official capacity is a suit against the entity that the individual represents, here
the TDCJ. Kentucky v. Graham, 473 U.S. 158, 166 (1985). We have previously
recognized that the TDCJ is an agency of the state, and is thus “shielded from
suits by individuals absent its consent.” Mayfield v. Tex. Dep’t of Criminal

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Justice, 529 F.3d 599, 604 (5th Cir. 2008) (citation and internal quotations
marks omitted).     Moreover, we recently held that the RLUIPA does not
constitute a waiver of a state’s sovereign immunity. Sossamon v. Lone Star
State of Texas, No. 07-50632, 2009 U.S. App. LEXIS 3701, at *28 (5th Cir. Feb.
17, 2009). Thus, the only potentially viable claims that Garner has brought
against the TDCJ (through its officials) are those for declaratory and injunctive
relief. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 417 (5th Cir. 2004)
(recognizing that declaratory and injunctive relief are exceptions to the doctrine
of sovereign immunity); see also Sossamon, 2009 U.S. App. LEXIS 3701 at *19
(“[The] RLUIPA unambiguously creates a private right of action for injunctive
and declaratory relief.”). Accordingly, we affirm the portion of the judgment
concluding that Garner is barred from seeking money damages from the
defendants in their official capacities.
B. Free exercise claims
      Garner also challenges the district court’s dismissal of his free exercise
claims. He contends that the TDCJ policies that forbid him from wearing a
quarter-inch beard and a Kufi to and from religious services violate his First
Amendment rights. Garner’s claims are foreclosed by this circuit’s precedent.
In Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000), an inmate contended that a
TDCJ policy that forbid him from wearing a quarter-inch beard in accordance
with his Muslim faith, yet allowed prisoners with certain medical conditions to
wear three-quarter-inch beards, violated the Free Exercise Clause of the First
Amendment. Id. at 488. We disagreed and held that the grooming policy was
reasonably related to the TDCJ’s legitimate penological interests. Id. at 490.
Similarly, in Muhammad v. Lynaugh, 966 F.2d 901 (5th Cir. 1992), we rejected
a free exercise challenge to a TDCJ policy restricting the use of Kufi caps,
concluding that the policy bore a reasonable relationship to the legitimate
penological interests of prison security. Id. at 902-03. Given these precedents,



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the district court did not err in concluding that no fact issue exists on Garner’s
free exercise claims.
C. Equal protection claim
      Garner further contends that the TDCJ’s grooming and head-covering
policies violate the Equal Protection Clause of the Fourteenth Amendment
because the policy forbids Muslims from wearing a quarter-inch beard in
accordance with their religion, yet does not impose a similar restriction on
inmates with certain medical conditions. He also notes that adherents of other
religions are permitted to wear medallions, crosses, amulets, and medical bags,
and also permitted to perform ceremonial rites like smoking a tobacco pipe and
participating in sweat lodges.
      To maintain his equal protection claim independent of his free exercise
claim, Garner “must allege and prove that he received treatment different from
that received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473
(5th Cir. 2001). Discriminatory intent “implies that the decisionmaker singled
out a particular group for disparate treatment and selected his course of action
at least in part for the purpose of causing its adverse effect on an identifiable
group.”   Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988) (internal
quotation marks omitted).
      The district court correctly concluded that Garner has failed to raise a fact
issue on his equal protection claim. Garner has not established that the TDCJ
enacted its grooming or head-covering policy for the purpose of adversely
impacting the ability of Muslim inmates to practice their faith; rather, the TDCJ
enacted the policies to forward its legitimate penological interests in prison
security. Nor has Garner shown that the TDCJ applies its facially-neutral
grooming and head-covering policies differently among Muslims or those of other
faiths. Individuals receiving an exemption from the grooming policy due to an
objectively verifiable medical condition are, by definition, not similarly situated

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to Garner. Finally, Garner has not offered any facts demonstrating that the
TDCJ intended to discriminate against him as a member of an identifiable
group.   Because Garner has failed to raise a fact issue on any potentially
actionable theory of equal protection, the district court properly granted
summary judgment on this claim. Moreover, because Garner has failed to
establish that the TDCJ’s grooming and head-covering policies violate his
constitutional rights, he cannot establish an Eighth Amendment retaliation
claim based on penalties incurred as a result of his refusal to comply with that
policy. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (noting that
an Eighth Amendment retaliation claim must be predicated on the violation of
a specific constitutional right).
D. Appointment of counsel and the RLUIPA
      Garner requested appointment of counsel in the district court; his request
was denied. There is no automatic right to appointment of counsel in a civil
case. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). A federal
court may, however, appoint counsel for an indigent if doing so would advance
the proper administration of justice. 28 U.S.C. § 1915(e); Ulmer v. Chancellor,
691 F.2d 209, 213 (5th Cir. 1982). Appointment of counsel in a civil rights case
is generally reserved for cases presenting “exceptional circumstances.”        Id.
While no precise formulation of such circumstances can be stated, courts
generally look at the following:
      [i] the type and complexity of the case; [ii] the petitioner’s ability
      adequately to present and investigate his case; [iii] the presence of
      evidence which largely consists of conflicting testimony so as to
      require skill in presentation of evidence and in cross-examination;
      and [iv] the likelihood that appointment will benefit the petitioner,
      the court, and the defendants by shortening the trial and assisting
      in just determination.
Murphy v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992) (citation and internal
quotations omitted).



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                                     No. 07-41015
      The district court concluded that this was not a novel or complex case and
that Garner could adequately present the issues to the court. With respect to
the matters already discussed, we find no abuse of discretion in this conclusion.
However, our review of the relevant case law and statutory developments causes
us to conclude that this is a case of first impression under the RLUIPA. As such,
it may be a case in which appointment of counsel is appropriate.2
      Garner claims that the TDCJ’s grooming and head-coverings policies
violate the RLUIPA. The 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
      (2) is the least restrictive means of furthering that compelling
      governmental interest.
42 U.S.C. § 2000cc-1(a). “[The] 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).             We have
recognized that “the RLUIPA standard poses a far greater challenge than does
[traditional free exercise analysis] to prison regulations that impinge on inmates’
free exercise of religion.” Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d
854, 858 n.1 (5th Cir. 2004). Moreover, Congress has mandated that courts
construe the Act “in favor of a broad protection of religious exercise,” to the
maximum extent permitted by law. 42 U.S.C. § 2000cc-3(g).
      Initially, the burden rests on the religious adherent to demonstrate that
the challenged governmental policy substantially burdens the adherent’s


      2
          We recently appointed appellate counsel in another RLUIPA case presenting issues
of first impression. See Sossamon, 2009 U.S. App. LEXIS 3701, at *11.

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                                  No. 07-41015
exercise of religion. See 42 U.S.C. § 2000cc-2(b). This requires courts to answer
two questions: (1) Is the burdened activity “religious exercise,” and if so (2) is
the “burden substantial”?
      The RLUIPA defines “religious exercise” to include “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.”
42 U.S.C. § 2000cc-7(A). The activities alleged to be burdened in this case – the
wearing of a quarter-inch beard and a Kufi – easily satisfy this broad definition
of “religious exercise.” Thus, this case presents the question of whether the
TDCJ’s grooming and head-coverings policies “substantially burden” Garner’s
exercise of religion.
      Although not defined by statute, this circuit has held that a government
regulation substantially burdens a “religious exercise” for the purposes of the
RLUIPA if it “truly pressures the adherent to significantly modify his religious
behavior and significantly violate his beliefs.” Adkins v. Kaspar, 393 F.3d 559,
570 (5th Cir. 2004). This test requires a “case-by-case, fact-specific inquiry to
determine whether the government action or regulation in question imposes a
significant burden on an adherent’s religious exercise.”          Id. at 571.    In
conducting this inquiry, courts are forbidden from asking whether the practice
at issue is central to the adherent’s religious-belief system. Id. at 570. This
limitation, however, “does not relieve a complaining adherent of the burden of
demonstrating the honesty and accuracy of his contention that the religious
practice at issue is important to the free exercise of his religion.” Id.
      If the TDCJ’s policies impose a substantial burden on Garner’s religious
exercise, the defendants must then establish that the policies further a
compelling government interest and are the least restrictive means of furthering
that interest. 42 U.S.C. § 2000cc-1(a); 42 U.S.C. § 2000cc-2(b). In conducting
this inquiry, courts are guided by the Supreme Court’s recognition that the
RLUIPA does not “elevate accommodation of religious observances over an
institution’s need to maintain order and safety.”       Cutter, 544 U.S. at 722.

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Indeed, “prison security is a compelling state interest, and [ ] deference is due
to institutional officials’ expertise in this area.” Id. at 725 n.13. Nevertheless,
we do not believe that the Supreme Court intended these pronouncements to
relieve prisons from the express mandate placed on them by Congress: that
policies which substantially burden the religious practice of inmates be
predicated on a compelling interest, that they further that interest, and that
they do so in the least restrictive manner possible. See 42 U.S.C. § 2000cc-1(a);
42 U.S.C. § 2000cc-2(b).
          Our circuit has never addressed the question of whether a religion-based
request to have a quarter-inch beard is a significant burden on the adherent’s
religious exercise of the Islamic religion or whether the clean-shaven policy is
the least restrictive manner of furthering a compelling interest. Green, 229 F.3d
486, is not dispositive as it was decided based upon law from a time when
RLUIPA’s predecessor statute, the Religious Freedoms Restoration Act (RFRA),
had been found unconstitutional and the RLUIPA had not yet been passed. We
have upheld a TDCJ policy banning long hair under the RFRA, based on some
of the same interests asserted by the TDCJ here. See Diaz v. Collins, 114 F.3d
69, 73 (5th Cir. 1997). Although the RFRA has since been held unconstitutional,
the RLUIPA adopts the same heightened standard of scrutiny as the RFRA. See
Cutter, 544 U.S. at 715-16. In a recent unpublished opinion, however, we noted
that Diaz’s reasoning concerning long hair is not dispositive of the issue
presented by quarter-inch beards. Gooden v. Crain, 255 Fed. App’x 858, 861 n.1
(5th Cir. 2007) (unpublished) (reversing summary judgment because the issues
involving the quarter-inch beard policy were contested fact questions).       The
district court did not have the benefit of our decision in Gooden when it denied
relief.
          Our circuit has expressed the view that a case of first impression might
present an “exceptional circumstance” justifying appointment of counsel.
Santana v. Chandler, 961 F.2d 514 (5th Cir. 1992) (concluding, however, that the

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presence of law in other circuits lessened the need for counsel); see also Duran
v. Reno, 193 F.3d 82 (2d Cir. 1999) (counsel appointed on appeal because the
case presented an issue of first impression). The district court viewed this case
as one presenting a well-settled issue – citing Diaz and the since-reversed
district court opinion in Gooden – rather than a case of first impression. The
court stated: “plaintiff’s claims do not present any complexities that are unusual
in prisoner actions.”
       Thus, the court’s analysis of the need to appoint counsel failed to take into
account the particular complexity and legal novelty of this case. As noted above,
we conclude that this case is not the usual one. Because appointment of counsel
in the district court is a question of discretion – albeit discretion exercised under
the proper analysis of the situation – we conclude that the appropriate course of
action is to vacate the district court’s rulings on the RLUIPA claims and the
appointment of counsel motion and remand for reconsideration of the latter first
followed by the former in light of the opinion here stated.
                               III. CONCLUSION
      We VACATE the district court’s adverse summary judgment on Garner’s
RLUIPA claims and the district court’s order denying appointment of counsel
and REMAND. We note that our recent decision in Sossamon held, as a matter
of statutory interpretation and to avoid certain constitutional concerns, that the
RLUIPA does not permit suits against defendants in their individual capacities.
Sossamon, 2009 U.S. App. LEXIS 3701, at *28.             Accordingly, on remand,
Garner’s RLUIPA claims are limited to declaratory and injunctive relief. In all
other respects, we AFFIRM the district court’s judgment.




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