                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2007

Washington v. Klem
Precedential or Non-Precedential: Precedential

Docket No. 05-2351




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PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  Case No: 05-2351

               HENRY WASHINGTON

                             v.

      SUPERINTENDENT EDWARD KLEM;
         DEPUTY SUPT. JOSEPH PIAZZA;
        JOHN MACK, Programs Coordinator;
    SGT. DOUGHERTY, Property Room Supervisor

                   Henry Unseld Washington,

                                  Appellant


    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
             District Court No. 01-CV-02432
    District Judge: The Honorable John E. Jones, III


                Argued April 10, 2007
Before: SMITH, NYGAARD, and HANSEN, Circuit Judges*

                   (Filed: August 2, 2007)

Counsel:

Nancy Winkelman
Edward D. Manchester (argued)
Schnader Harrison Segal & Lewis LLP
1600 Market St., Suite 3600
Philadelphia, PA 19103
Counsel for Appellant

Thomas W. Corbett, Jr., Attorney General
Howard G. Hopkirk, Senior Deputy Attorney General
(argued)
John G. Knorr, III, Chief Deputy Attorney General, Chief,
       Appellate Litigation Section
Office of Attorney General
Appellate Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee

                _______________________

                OPINION OF THE COURT
                _______________________

SMITH, Circuit Judge.



    *
      The Honorable David R. Hansen, Senior United States
Circuit Judge for the Court of Appeals for the Eighth Circuit,
sitting by designation.

                              2
        This case requires us to define “substantial burden” under
the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq, to determine
whether the Pennsylvania Department of Corrections’ (DOC’s)
restriction on inmates that they possess in their cells only ten
books at a time substantially burdens inmate Henry Unseld
Washington’s religious exercise. We hold that it does. Because
the DOC is unable to show that its ten-book policy is the least
restrictive means to further its compelling governmental interest
in the safety and health of prisoners and prison employees, we
will reverse the District Court’s order dismissing Washington’s
RLUIPA claim and remand with instructions to consider
whether any factual issues remain when that claim is evaluated
under the proper legal standard.

                               I.

        Henry Unseld Washington is an inmate in the custody of
the Pennsylvania DOC who has attempted to practice his
religion while incarcerated. Washington founded and has been
a practitioner of the Children of the Sun Church for over two
decades. According to Washington, the Children of the Sun
Church supports the development of “Pan-Afrikanism” whereby
adherents to the religion stress that “only through Pan-
Afrikanism can Afrikan people worldwide, be able to change the
conditions of Afrikan people in the diaspora and the
motherland.” To this end, Washington’s Church states that
“[f]or every Afrikan’s eyes you open with his teachings you will
gain rewards in the life everafter.” One of the rituals requires a
practitioner to read four different Afro-centric books per day.1

    1
     Washington quotes Church doctrine to require “a daily
reading of Afrokentrick books, newspaper, newsletters,

                                3
This ritual is aimed at educating the adherent to doctrine, so that
he is able to teach others more effectively. Washington views
this ritual as necessary to his Church’s proselytization
requirement, so that the books “are in essence the religion
itself.”

        The Pennsylvania DOC limits the amount of property any
inmate may store in his cell. The DOC’s policy states that
“limitations on the amount and variety of inmate property may
be imposed for security, hygiene and/or safety reasons.” With
respect to publications, each inmate is permitted to retain three
newspapers, ten magazines, and ten books, “unless additional
books are approved by the facility’s education department.”
This provision applies to every prison in the Pennsylvania
DOC.2 The DOC also permits “storage space equal to four
records center boxes. This space may be made up of the four
records center boxes or one footlocker and two records center
boxes. In cells that have either a built-in or a free standing
storage cabinet, the inmate is permitted to use that space and
either two records center boxes or one footlocker.”

     The conflict in this case arises from the clash between
Washington’s interest in practicing what he claims is his religion



magazines, etc., (at least four different sources on the same topic
a must !!!) view Afrikan-centerd books, plays, dances, etc.”
While this statement seems to permit Washington to use non-
books to fulfill the four source requirement, the Pennsylvania
DOC stipulates that Washington is supposed to read four books
per day as part of his religious practice.
   2
    Some of the DOC’s policies have been revised, but not in
any way that is significant for the purposes of this appeal.

                                4
and the prison’s interest in limiting, for security, hygiene, and
safety reasons, the amount of inmate property that may be held
in a cell. In July 2000, Washington was transferred from the
State Correctional Institution (SCI) at Mahanoy to SCI-Retreat.
In February 2001, Washington’s books, religious literature, and
legal materials arrived at SCI-Retreat in thirteen boxes. In
December 2001, authorities at SCI-Retreat informed
Washington that he was in possession of property in his cell that
exceeded the amount of property permitted. The excess
property was removed from Washington’s cell, although
authorities permitted Washington to choose which ten books to
keep in his cell. SCI-Retreat authorities gave Washington the
option of mailing the books out of the prison or having the
books destroyed by the DOC because of a lack of adequate
storage space for excess inmate property. The Superintendent
of SCI-Retreat wrote to Washington personally, stating that
Washington could also donate the books to the prison library so
he could still access them on an as-needed basis. The prison,
though, had a policy limiting the number of trips an inmate
could take to the library to one per week. Library policy
allowed inmates to check out four books per visit.3 SCI-Retreat


  3
    As Washington notes, the defendants raise for the first time
on appeal that Washington could have donated his excess books
to the prison library, and thereby have access to them. Before
the District Court, the defendants argued that Washington could
ship the books to someone outside the prison or allow the books
to be destroyed. Washington now argues that, by failing to raise
this issue previously, the defendants have waived it. Prison
officials did offer Washington the option to donate these books,
but did so in a December 7, 2001 letter from the Warden. This
letter was sent on the same day Washington filed suit, and by its
own terms, the offer would expire on December 10, 2001.

                               5
did not destroy the property, and shipped it to SCI-Albion when
Washington was transferred there in December 2002.

        Washington, proceeding pro se, sued several employees
of Pennsylvania’s DOC pursuant to 42 U.S.C. § 1983 and 42
U.S.C. §§ 2000cc – 2000cc-5 (the Religious Land Use and
Institutionalized Persons Act of 2000, or RLUIPA) in December
2001. His suit alleged that the ten-book policy violated his First
Amendment rights and the terms of RLUIPA. The District
Court denied preliminary injunctive relief and found that,
because Washington’s books had been mailed to his mother,
they were not in danger of being destroyed. The District Court
subsequently granted the defendants’ motion to dismiss on all
counts in May 2003.            The District Court dismissed
Washington’s RLUIPA claim because he had not shown that
SCI-Retreat is an institution receiving federal funds (a
prerequisite for a RLUIPA claim). In April 2004, however, this
Court reversed and remanded the case with respect to the
RLUIPA claim because Washington could easily show that SCI-
Retreat receives federal funds. See Washington v. Klem, No. 03-
2584 (unreported-not precedential). In the same opinion, we
affirmed the District Court’s dismissal of all non-RLUIPA
claims, and expressed no opinion as to the merits of the
RLUIPA claim. On remand, in December 2004 the District
Court granted the defendants’ motion for summary judgment
and denied Washington’s motion for summary judgment. The


Whether this argument has been waived is of no moment,
because the offer was not accompanied by an alteration in the
prison’s policy that Washington could go to the library more
than once a week. The library policy permitting visits once a
week and check-outs four at a time necessarily made it
impossible for Washington to read four books per day.

                                6
District Court based its dismissal of Washington’s RLUIPA
claim on several factors. The District Court found that the
Pennsylvania DOC receives federal funds. It also found that
Washington’s beliefs are sincerely held, and noted that this point
was not contested by the Pennsylvania DOC. However, the
District Court concluded that the DOC policy did not impose a
substantial burden on Washington’s religious practice, the
policy furthered a compelling governmental interest, and the
policy used the least restrictive means to further this interest.
This timely appeal followed.4

                               II.

       A.     A General Note About RLUIPA

        Congress passed RLUIPA to grant heightened protection
to prisoners from burdens imposed by the government.
RLUIPA also contains a land-use provision not applicable in
this case. The history of this law traces back to the Supreme
Court’s decision in Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990). The Supreme
Court in Smith held that the Free Exercise Clause of the First
Amendment does not impede the enforcement of neutral and
otherwise valid laws of general applicability that incidentally
burden religious conduct. Id. at 878-82, 885. The Court did
state that the political branches could grant a higher degree of
protection for religious exercise through legislative


  4
   The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343. We exercise jurisdiction pursuant to 28 U.S.C. §
1291. We exercise plenary review over an order resolving
cross-motions for summary judgment. Cantor v. Perelman, 414
F.3d 430, 435 n.2 (3d Cir. 2005) (citation omitted).

                                7
accommodation. Id. at 890. Taking the cue from Smith,
Congress passed the Religious Freedom Restoration Act of 1993
(RFRA), 107 Stat. 1488, 42 U.S.C. §2000bb et seq. RFRA
prohibited the Government from substantially burdening a
person’s exercise of religion even if the burden results from a
rule of general applicability, unless the Government could
demonstrate that the application of the burden was in
furtherance of a compelling governmental interest and was the
least restrictive means of furthering that compelling
governmental interest. As applied to the states, RFRA was
struck down by the Supreme Court because it exceeded
Congress’ remedial powers under the Fourteenth Amendment.
City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997). The
dialogue between Congress and the Supreme Court continued
when Congress enacted RLUIPA. The key difference between
RFRA and RLUIPA is that RLUIPA invokes its power to
regulate under the Spending and Commerce Clauses, and
protects only land-use regulation and prisoners. See Cutter v.
Wilkinson, 544 U.S. 709, 715 (2005).

        RLUIPA also does not confer any “privileged status on
any particular religious sect, and singles out no bona fide faith
for disadvantageous treatment.” Id. at 724. In addition to not
differentiating between bona fide faiths, RLUIPA does not
permit a court to determine whether the belief or practice in
question is “compelled by, or central to, a system of religious
belief.” 42 U.S.C. § 2000cc-5(7)(a); Cutter, 544 U.S. at 725
n.13; Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1032
(9th Cir. 2007). RLUIPA does permit inquiry into the sincerity
of a prisoner’s religious beliefs. Cutter, 544 U.S. at 725 n.13.

       B.     Strict Scrutiny Under RLUIPA


                               8
        Section 3 of RLUIPA states 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 the burden is “in furtherance of
a compelling governmental interest” and is “the least restrictive
means of furthering that . . . interest.” 42 U.S.C. § 2000cc-1(a).
If the plaintiff “produces prima facie evidence to support a claim
alleging a [RLUIPA] violation . . . the government shall bear the
burden of persuasion on any element of the claim, except that
the plaintiff shall bear the burden of persuasion on whether [the
challenged practice or law] substantially burdens the plaintiff’s
exercise of religion.” Id. § 2000cc-2(b). For the purposes of
RLUIPA, “government” includes any official of a “State,
county, municipality, or other governmental entity created under
the authority of a State,” as well as any other person “acting
under color of State law.” Id. § 2000cc-5(4)(A).

               1.      Substantial Burden

        A plaintiff-inmate bears the burden to show that a prison
institution’s policy or official practice has substantially
burdened the practice of that inmate’s religion. Both the text of
the statute and the legislative history provide support for how
the statute should be interpreted with respect to what qualifies
as a “substantial burden.” Legislative history on this point has
been cited by the Supreme Court approvingly in Cutter. Despite
the limitations inherent in most legislative history as a tool for
use in statutory interpretation, here that history as been cited by
the Supreme Court approvingly in Cutter. Cf. Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (describing some
of the criticisms of legislative history to interpret the meaning of a
statute).

                                  9
       Senators Hatch and Kennedy, two principal sponsors of
RLUIPA, discussed the statute in a Joint Statement that
appeared in the Congressional Record. The Joint Statement’s
section on the definition of substantial burden states that:

       [t]he Act does not include a definition of the term
       “substantial burden” because it is not the intent of
       this Act to create a new standard for the definition
       of “substantial burden” on religious exercise.
       Instead, that term as used in the Act should be
       interpreted by reference to Supreme Court
       jurisprudence. Nothing in the Act, including the
       requirement in Section 5(g) that its terms be
       broadly construed, is intended to change that
       principle. The term “substantial burden” as used
       in this Act is not intended to be given any broader
       interpretation than the Supreme Court’s
       articulation of the concept of substantial burden or
       religious exercise.


146 CONG. REC. S7774, 7776 (July 27, 2000) (emphasis added).
Section 5 of RLUIPA provides the Act’s Rules of Construction.
Section 5(g) states that “[t]his Act shall be construed in favor of
a broad protection of religious exercise, to the maximum extent
permitted by the terms of this Act and the Constitution.” 42
U.S.C. § 2000cc-3(g). The legislative history and the Act’s
Rules of Construction illustrate that “substantial burden” should
be interpreted broadly, but in line with prior Supreme Court
precedent. The Supreme Court has defined “substantial burden”
in the Free Exercise Clause context, and several courts of
appeals have looked to this line of cases to interpret what the
phrase means for RLUIPA purposes. See, e.g., Lovelace v. Lee,

                                10
472 F.3d 174, 187 (4th Cir. 2006); Warsoldier v. Woodford, 418
F.3d 989, 995 (9th Cir. 2005); Adkins v. Kaspar, 393 F.3d 559,
569 (5th Cir. 2004).

        This clear methodology runs into trouble, however,
because Supreme Court precedent with respect to the definition
of “substantial burden” in the Free Exercise Clause context has
not always been consistent. See, e.g., Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1226-27 (11th Cir. 2004)
(discussing the various standards). Further, transferring these
definitions, which often arise in the denial of unemployment
benefits, to a prison setting has not always been seamless
because of the different factual scenarios presented by the
institutional milieu. Nonetheless, the Supreme Court has stated
in its Free Exercise Clause jurisprudence that a substantial
burden exists when a follower is forced “to choose between
following the precepts of her religion and forfeiting benefits, on
the one hand, and abandoning one of the precepts of her religion
in order to accept work, on the other hand.” Sherbert v. Verner,
374 U.S. 398, 404 (1963). In Sherbert, the Court addressed
whether a Seventh Day Adventist who was religiously precluded
from working on Saturdays could be denied unemployment
compensation because she could not find work that would
permit her to observe this precept of her religion. The Court
concluded that the Government could not deny unemployment
benefits, as such a practice essentially forced Sherbert to choose
between her religion and government benefits provided to others
who do not have a similar religious belief. In a footnote,
however, the Supreme Court seemed to imply that a substantial
burden exists whenever a government action has the “tendency
to inhibit constitutionally protected activity.” Id. at 406 n.6.

       The Court in a later case purportedly followed Sherbert,

                               11
but restated the “substantial burden” definition. Thomas v.
Review Bd. of Indiana Employment Security Div., 450 U.S. 707,
717-18 (1981). The Court stated:

       Where the state conditions receipt of an important
       benefit upon conduct proscribed by a religious
       faith, or where it denies such a benefit because of
       conduct mandated by religious belief, thereby
       putting substantial pressure on an adherent to
       modify his behavior and to violate his beliefs, a
       burden upon religion exists.            While the
       compulsion may be indirect, the infringement
       upon free exercise is nonetheless substantial.

Id. See also Hobbie v. Unemployment Appeals Comm’n of
Florida, 480 U.S. 136, 141 (1987) (quoting Thomas). The
current status of this test is not entirely clear because of a later
Supreme Court decision that contains some language which may
be read to lower the hurdle for showing a substantial burden.
See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485
U.S. 439 (1988).

       In Lyng, the Supreme Court found no substantial burden
where the federal government planned to harvest timber and
build a highway through part of a National Forest used for
religious purposes by members of three Native American
religions. The members claimed that the noise and pollution
from the highway would “diminish the sacredness of the area”
and interfere with the religious experience of the members using
the area. Id. at 448. The Court rejected the position that
“incidental effects of government programs, which may make it
more difficult to practice certain religions but which have no
tendency to coerce individuals into acting contrary to their

                                12
religious beliefs, require government to bring forward a
compelling justification for its otherwise lawful actions.” Id. at
450-51. The Court made this statement in the context of
rejecting the plaintiffs’ reading of, inter alia, Sherbert and
Thomas. See Adkins, 393 F.3d at 569. The Court did not
declare that it was altering the holdings of Sherbert or Thomas.
Nor did the Court hold that its conclusion must be read to mean
that any incidental effect of a government program which may
have some tendency to coerce individuals into acting contrary to
their religious beliefs satisfies the substantial burden standard.

        The courts of appeals to have addressed the definition of
“substantial burden” under RLUIPA have defined it in several
ways. Most of those courts have adopted some form of the
Sherbert/Thomas formulation, but have often reworded their
holdings. The result of this practice has been to create several
definitions of “substantial burden” with minor variations.5

  5
    See Spratt v. Rhode Island Dept. of Corrs., 482 F.3d 33 (1st
Cir. 2007) (assuming, arguendo, that the Thomas standard
applies); Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006)
(stating that, “for RLUIPA purposes, a substantial burden on
religious exercise occurs when a state or local government,
through act or omission, puts substantial pressure on an adherent
to modify his behavior and to violate his beliefs” (quoting
Thomas)); Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004)
(“[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. And, in line with the foregoing
teachings of the Supreme Court, the 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,

                                13
Whether or not these semantic differences in definition result in
any meaningful differences in application is, for the most part,
an open question.6 In an effort to harmonize the “substantial



enjoying some generally available, non-trivial benefit, and, on
the other hand, following his religious beliefs. On the opposite
end of the spectrum, however, a government action or regulation
does not rise to the level of a substantial burden on 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.”); Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d 752,
761 (7th Cir. 2003) (stating that a substantial burden in the land
use context “is one that necessarily bears direct, primary, and
fundamental responsibility for rendering religious exercise ...
effectively impracticable”); Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (explaining that
“a substantial burden can result from pressure that tends to force
adherents to forego religious precepts or from pressure that
mandates religious conduct”) (emphasis added); Warsoldier v.
Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005) (stating that a
substantial burden exists where the government conduct
“impose[s] a significantly great restriction or onus upon
[religious] exercise,” or where the government conduct puts
“substantial pressure on an adherent to modify his behavior and
to violate his beliefs” (quoting San Jose Christian Coll. v. City
of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) and
Thomas). The standards from the Seventh and Eleventh Circuits
appear to be at opposite ends of the definitional spectrum.
   6
    But see Murphy v. Missouri Dept. of Corrs., 372 F.3d 979,
988 (8th Cir. 2004) (still requiring the government policy/action
to substantially burden a “central tenet” of the individual’s
religious beliefs, even though RLUIPA explicitly protects
religious exercise that includes activities not necessarily central

                                14
burden” jurisprudence, we adopt a disjunctive test that couples
the holdings of Sherbert and Thomas. For the purposes of
RLUIPA, a substantial burden exists where: 1) a follower is
forced to choose between following the precepts of his religion
and forfeiting benefits otherwise generally available to other
inmates versus abandoning one of the precepts of his religion in
order to receive a benefit; OR 2) the government puts substantial
pressure on an adherent to substantially modify his behavior and
to violate his beliefs.7

        This definition accords with § 5(g) of RLUIPA and the
statute’s legislative history in that it recognizes that Congress
intended to create a broad definition of substantial burden. We
recognize that this definition is narrower than the dictum in
footnote six of Sherbert and the negative implication of Lyng,
but is still broad enough to accurately reflect the statute’s plain
text and to effect its purpose. Using an expansive definition of
“substantial burden” derived from language not essential to the
holdings of either Sherbert or Lyng poses at least two problems.
First, post-Sherbert, the Supreme Court has not squarely
adopted its dictum in footnote six of Sherbert as a holding in a
Free Exercise or RLUIPA case. Second, there is reason to
question whether Lyng can be read to hold that any incidental
effect of a government program which may have some tendency
to coerce individuals into acting contrary to their religious


to a system of religious belief).
   7
    We believe that the Fifth Circuit in Adkins enunciated the
proper standard for what constitutes a substantial burden under
RLUIPA. The Adkins definition incorporates the holdings of
both Sherbert and Thomas, while also requiring that the burden
on religious exercise actually be substantial. 393 F.3d at 570.

                                15
beliefs satisfies the substantial burden standard. Such a reading
fails to take into account that the discussion of “substantial
burden” in Lyng occurred while the Court approvingly discussed
Sherbert and Thomas. The “any incidental effect/some
tendency” standard would also conflict with other statements in
Lyng where the Court decided whether the Government’s
actions constituted a substantial burden. See Lyng, 485 U.S. at
451 (no substantial burden even though “we can assume that the
threat to the efficacy of at least some religious practices is
extremely grave”); id. at 452 (“However much we might wish
that it were otherwise, government simply could not operate if
it were required to satisfy every citizen’s religious needs and
desires.”).

        In interpreting the definition of “substantial burden,” we
must keep in mind the plain text of the statute. Adopting the
negative implication of the Supreme Court’s holding in Lyng
would read “substantial” out of the statute. See Civil Liberties
for Urban Believers, 342 F.3d at 761 (stating, in the land use
context, that “[a]pplication of the substantial burden provision
to a regulation inhibiting or constraining any religious exercise
... would render meaningless the word ‘substantial’”). The
straightforward test we adopt today, derived directly from
Supreme Court precedent, respects the text and purpose of
RLUIPA while seeking to clarify unnecessary confusion on this
issue.

        With this groundwork laid, we now apply this definition
to the case before us. In our view, the Pennsylvania DOC’s ten-
book limitation in a prisoner’s cell constitutes a substantial
burden which impedes Washington from exercising his
professed religion.


                               16
        Washington argues that the ten-book limitation places a
substantial burden on his religious exercise because it prevents
him from reading four books per day and teaching others about
the African people. Washington’s religion requires a daily
reading of four Afro-centric books. Further, Washington argues
that his ability to teach others about the African people exists
only to the extent that he himself has learned about the African
people.

        The Pennsylvania DOC contends that limiting the
number of books that Washington may keep in his cell at any
one time does not significantly inhibit or constrain his conduct,
or the expression, of his religious beliefs. This book limitation,
it asserts, does not prohibit Washington from adhering to his
faith or deny him the opportunity to engage in activity
fundamental to his religion. The Pennsylvania DOC also argues
that its regulations do not render Washington’s religious
exercise effectively impracticable.

        The District Court took a similar stance when it held that
the exercise of Washington’s religion was not substantially
burdened by the Pennsylvania DOC’s policy. Notably, the
definition of “substantial burden” used by the District Court
came from a pre-RLUIPA Eighth Circuit case from 1997, and at
least one prong of the definition adopted in that case contained
the central tenet requirement that has since been prohibited by
the express terms of RLUIPA.8 Another prong required the


  8
    The full definition of substantial burden used by the District
Court, which quoted from Weir v. Nix, 114 F.3d 817, 820 (8th
Cir. 1997), stated that “A substantial burden is: governmental
action that must significantly inhibit or constrain conduct or
expression that manifests some central tenet of a person’s

                               17
religious activities to be “fundamental” to the person’s religion.
The District Court concluded that “a palatable alternative exists”
for Washington to practice his religion.             Specifically,
Washington still possessed some books that would impart
knowledge about his religion and the District Court found “it
hard to believe that Washington does not possess significant
knowledge of the beliefs and teachings of his religion to teach
others in an oral tradition.” The District Court stated that its
conclusion was not altered in any way by the fact that
Washington’s exchange of old books for new books must occur
by having outsiders supply Washington with books which he
can exchange for others in his cell.

        The position espoused by the Pennsylvania DOC and
adopted by the District Court is incorrect. The DOC has, for
whatever reason, elected not to challenge the sincerity of
Washington’s religious beliefs. The brief for the DOC prison
officials states that those officials “do not dispute that
Washington’s beliefs are sincerely held religious beliefs and that
the books are necessary to enable him to fulfill his religious
missionary work.” The District Court has acknowledged this
sincerity of belief and that books are necessary to enable him to
fulfill his religious missionary work. The District Court’s
acknowledgment and the DOC’s concession, coupled with the
ten-book limitation, indicates why Washington’s religious
exercise has been substantially burdened. Washington’s religion
contains two interrelated components–reading four books per


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.” It is unclear which
prong the District Court used to decide the case.

                               18
day about Africa and African people, and then proselytizing
about what he has read. The record amply supports the
proposition that Washington cannot practice his religion in the
absence of reading these books. Washington is therefore correct
in his assertion that “his books and his religion are one and the
same; his religion is destroyed in the absence of his religious
books.”

        The ten-book limitation substantially burdens the first
component of Washington’s religious exercise under the second
part of our disjunctive test because it severely inhibits his ability
to read four new books per day. Before the end of three days,
Washington would run out of new books. In response, the
Pennsylvania DOC makes two arguments. First, the DOC states
that the prison library is available for Washington’s use and that
he would be permitted to read books that are housed in the
library. The fatal flaw in this argument is that, as we have
mentioned, Washington was permitted to visit the library only
once a week and could take out just four books at a time. This
policy precludes Washington from reading twenty-eight Afro-
centric books per week. Thus, even if the Pennsylvania DOC is
correct that Washington could house his own books in the prison
library,9 this policy would still not permit him to read four books
per day. Second, the Pennsylvania DOC argues that there is no
prohibition on Washington’s trading those ten books for another
ten books at any time. We find nothing in the record to show
that Washington could freely trade books that were located
inside the prison. Similarly, forcing Washington, an indigent
prisoner, to have outsiders continuously mail books to him
severely inhibits his ability to read four new books per day.

    9
    But, as noted, this point is disputed and may have been
waived. See supra note 3.

                                 19
Coupling Washington’s sincerity of religious belief with the
inseparability of the four-book requirement from the exercise of
his religion leads us to the conclusion that the Pennsylvania
DOC’s ten-book limitation substantially burdens the practice of
Washington’s religion.

               2.     Compelling Governmental Interest

        Washington has satisfied his burden to show that the
Pennsylvania DOC’s ten-book limitation substantially burdens
his exercise of religion. 42 U.S.C. § 2000cc-2(b). Accordingly,
the burden shifts to the Pennsylvania DOC to show that the
policy is in furtherance of a compelling governmental interest
and is the least restrictive means of furthering this interest. 42
U.S.C. § 2000cc-1(a).

        Interests of safety and health play a particularly important
role in the institutional setting. Williams v. Morton, 343 F.3d
212, 218 (3d Cir. 2003) (stating that “when a challenged
regulation implicates security . . . judicial deference is especially
appropriate”) (internal quotation omitted); Lovelace, 472 F.3d
at 210-11 (Wilkinson, J., dissenting) (chastising the majority for
not properly accounting for the prison’s compelling interest in
safety and security). The Supreme Court in Cutter v. Wilkinson,
544 U.S. 709 (2005), repeatedly referenced the importance of
according deference to prison authorities’ choices about how to
run their institution. The Court plainly stated that “[w]e do not
read RLUIPA to elevate accommodation of religious
observances over an institution’s need to maintain order and
safety.” Cutter, 544 U.S. at 722 (emphasis added); Baranowski
v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (a policy that “is
related to maintaining good order and controlling costs” serves
a compelling governmental interest). The Court in Cutter noted

                                 20
the importance of order, security, and the granting of deference
to prison administrators’ expertise, and also displayed
“particular sensitivity to security concerns.” 544 U.S. at 722-23.
Further, “context matters in the application of that standard.” Id.
at 723 (internal quotation omitted). See Hoevenaar v. Lazaroff,
422 F.3d 366, 370-72 (6th Cir. 2005); see also Lovelace, 472
F.3d at 212 (Wilkinson, J., dissenting) (“As the Supreme Court
recognized in Cutter, it is simply impossible to divorce a
prison’s compelling interests in safety and security from internal
administration and order.”). Even in light of the substantial
deference given to prison authorities, the mere assertion of
security or health reasons is not, by itself, enough for the
Government to satisfy the compelling governmental interest
requirement. Rather, the particular policy must further this
interest. See, e.g., Spratt, 482 F.3d at 39; Murphy, 372 F.3d at
988-89; Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 126 S.Ct. 1211, 1225 (2006) (rejecting the
government’s reliance on a general interest in health and safety
in the related RFRA context). A conclusory statement is not
enough.

       In this case, Washington argues that general assertions of
safety and security are not sufficient to establish a compelling
governmental interest.      He points to the Pennsylvania
Administrative Code, which recommends that prisoners should
be allowed “a reasonable quantity of reading materials,” and that
“[n]eatness and good order should be of primary concern rather
than a specified number of publications.” 37 PA. CODE §
95.245. As further support, Washington points out the arbitrary
nature of the ten-book limitation. One DOC policy allows for
an exception to the limitation when the books are for
educational purposes. Also, an inmate may have ten magazines
and three newspapers in addition to the ten books. Similarly, an

                                21
inmate may have as many non-literature items as will fit in four
storage boxes in his cell. If safety and security are the
paramount concerns, these exceptions seem to undermine the
compelling nature of the ten-book limitation.

       The Pennsylvania DOC responds that its limitation on the
number of books in a cell furthers a compelling governmental
interest in protecting the safety and health of prisoners and DOC
employees. The District Court agreed with the DOC that the
policy furthers the state’s compelling governmental interest.
The DOC contends that an excess number of books can create
a fire hazard, provide a place to conceal weapons or other
contraband, and also create a sanitation problem in the relatively
small confines of a prison cell.

        Certainly, the Pennsylvania DOC has asserted a valid
interest, but it fails to make clear how its ten-book limitation
furthers this interest. It is unclear how the book limitation
decreases the likelihood of a fire in a cell or provides hiding
places for contraband when a prisoner in that same cell is
permitted to have magazines and newspapers in addition to ten
books. We suppose that books eleven through twenty, for
example, provide more hiding places than books one through
ten. It is also plausible that the physical space taken by these
extra books might make a cell dirtier. In this sense, the ten-book
limitation might further the Pennsylvania DOC’s interest in
safety and health. Yet even assuming that the DOC has shown
that its ten-book limitation serves a compelling governmental
interest, it falls short of satisfying its burden that this DOC
policy is the least restrictive means for achieving this interest.
See Warsoldier, 418 F.3d at 998 (recognizing the comparatively
lower threshold to prove a compelling governmental interest
when juxtaposed against whether the government policy is the

                               22
least restrictive means to achieve that interest); Lovelace, 472
F.3d at 191.

              3.      Least Restrictive Means

        In other strict scrutiny contexts, the Supreme Court has
suggested that the Government must consider and reject other
means before it can conclude that the policy chosen is the least
restrictive means. See Warsoldier, 418 F.3d at 999 (citing
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 824
(2000); City of Richmond v. J.A. Croson, 488 U.S. 469, 507
(1989)). In light of the statute’s text and legislative history, we
agree with the Ninth Circuit in Warsoldier that this requirement
applies with equal force to RLUIPA. Additionally, the phrase
“least restrictive means” is, by definition, a relative term. It
necessarily implies a comparison with other means. Because
this burden is placed on the Government, it must be the party to
make this comparison.

        The Pennsylvania DOC argues that the manner in which
its policies were applied to Washington were the least restrictive
means of furthering the compelling governmental interest in
health and safety. To support this point, the DOC emphasizes
that the policies were applied to Washington in a flexible
manner. The DOC notes that none of Washington’s books was
ever destroyed, Washington could have donated his books to the
prison library so that they would be available to him, and
Washington could have exchanged his books for new ones.
Because of this flexibility, according to the Pennsylvania DOC,
the policy was applied to him in the least restrictive manner
possible.      There are two interrelated problems with the
Pennsylvania DOC’s argument. First, this discussion occurred
in the District Court against the backdrop of the incorrect

                                23
assumption that Washington had the burden to prove that there
were other less restrictive means available. The District Court
noted that “[w]e cannot comprehend, and Washington has not
suggested, any way in which the Defendants can better keep
inmates’ cells safe, other than limiting the amount of personal
property inmates may store within their cells.” RLUIPA,
however, mandates that the Government has the burden to prove
that its policy is the least restrictive means. 42 U.S.C. § 2000cc-
1(a).

        Once we place this burden on the proper party, the
second problem arises. This problem is that the ten-book
limitation, either facially or as applied to Washington, arbitrarily
limits the property an inmate may possess. The record indicates
that Pennsylvania DOC policies permit prisoners to have
personal property up to a limit of four storage boxes or their
equivalent. However, an inmate is not permitted to fill these
boxes with more than ten books, although the inmate may fill
the boxes with other property. The least restrictive means would
be to allow an inmate to choose what property he may keep in
the storage units so long as the property does not violate prison
policy for an independently legitimate reason. A prisoner could
not, for example, keep a knife in the storage unit. Additionally,
prison policy permits more than ten books when the books are
approved for educational purposes. Finally, inmates are
permitted to have ten books, ten magazines, and three
newspapers, but not more books instead of fewer magazines and
newspapers. Put simply, these two policies evince a flexibility
in the prison regulations that belies the “compelling” nature of
the policies with respect to safety and security.

      There is also flexibility within the Pennsylvania DOC
system. Prior to transferring to SCI-Retreat, Washington spent

                                24
two decades incarcerated, apparently in the Pennsylvania DOC
system. We can find nothing in the record to indicate that prison
authorities at these other institutions objected to Washington
possessing his books. See Warsoldier, 418 F.3d at 1000 (“[T]he
failure of a defendant to explain why another institution with the
same compelling interests was able to accommodate the same
religious practices may constitute a failure to establish that the
defendant was using the least restrictive means.”). In sum, even
though the ten-book limitation was not strictly applied to
Washington, the Pennsylvania DOC has not satisfied its burden
to show that the limitation qualified as the least restrictive
means to protect its interests in health, safety, and security.

        We are satisfied that a ruling in favor of the plaintiff will
not lead to judicial micro-management of the Pennsylvania
DOC. Here, we are doing no more than examining prison
policies on their own terms to determine whether the ten-book
limitation is the least restrictive means to achieving a
compelling interest in health, safety, and security. The
Pennsylvania DOC’s own policies state that safety and security
of a prison cell are satisfied when the prisoner possesses storage
boxes that have the capacity to hold more than ten books. Given
the existence of those policies, falling back on safety and
security concerns, while possibly satisfying the compelling
governmental interest prong of strict scrutiny, will not,
independent of other reasoning, also satisfy the least restrictive
means test.10 See Warsoldier, 418 F.3d at 998-99 (rejecting the


  10
    If the books themselves preached violence that undermined
safety and security within the prison, then this would be a
different case. See Borzych v. Frank, 439 F.3d 388 (7th Cir.
2006) (purportedly religious texts advocated white-supremacist
violence).

                                 25
state’s “conclusory statements that the [policy in question] is the
least restrictive means to ensuring prison security”). We are not
facially invalidating the ten-book limitation. We do hold that its
application in this case has substantially burdened the exercise
of Washington’s religious beliefs–the sincerity of which the
Pennsylvania DOC does not challenge–and that the DOC has
not shown that this burden is the least restrictive means to
further its interest in safety and security.

                               III.

       For the above-stated reasons, we will reverse the District
Court’s Order dismissing Washington’s RLUIPA claim and
remand with instructions to consider whether any factual issues
remain when that claim is evaluated under the proper legal
standard. On the current record, the DOC has failed to
demonstrate that its policy is the least restrictive means to
further its interest in safety and security. However, we
recognize that the Pennsylvania DOC has not had a full
opportunity to rebut Washington’s assertions because the
District Court appeared to place the least restrictive means
burden on Washington rather than the DOC. On remand, the
DOC will have the opportunity to do so.




                                26
