     Case: 15-60218      Document: 00513870163         Page: 1    Date Filed: 02/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-60218                              FILED
                                                                          February 9, 2017
                                                                           Lyle W. Cayce
PATRICK D'ANTRE FLUKER,                                                         Clerk

              Plaintiff - Appellant

v.

RONALD KING, sued in individual capacity; HUBERT DAVIS, sued in
individual capacity,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:13-CV-521


Before JOLLY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Pro se Muslim inmate Patrick Fluker filed a lawsuit alleging that, while
he was in restrictive custody (“c-custody”) at South Mississippi Corrections
Institution (“SMCI”), Superintendent Ronald King and Deputy Warden Hubert
Davis (“Appellees”) violated the First Amendment’s Free Exercise Clause, the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and the



       * 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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 15-60218
Fourteenth Amendment’s Equal Protection Clause by prohibiting him and
other Muslim c-custody inmates from attending Jumu’ah services 1 outside of
the c-custody unit while allowing non-Muslim c-custody inmates to attend out-
of-unit religious services. In this appeal, Fluker challenges the district court’s 2
grant of summary judgment in favor of Appellees. He contends that the court
erred because: (1) his claim for injunctive relief is not moot; (2) he is entitled to
damages against Appellees in their individual capacities; and (3) Appellees are
not entitled to qualified immunity. For the following reasons, we AFFIRM.
                                              I.
      While Fluker was incarcerated at SMCI, he was housed in c-custody, a
section of the prison reserved for inmates who violated prison rules, from
August 2012 to October 2013. According to Fluker, Appellees implemented a
new policy in September 2012 that prohibited all c-custody inmates from
attending activities outside of their unit (“the Policy”). As a result of the Policy,
Fluker claims that he could not continue attending Jumu’ah services, as his
faith required, because they were held outside of the c-custody unit.
       Fluker promptly availed himself of SMCI’s Administrative Remedy
Program (“ARP”), submitting multiple grievances contending that the Policy
violated his religious rights and asking that he be allowed to attend Jumu’ah
services.     Davis, the ARP first step respondent, denied Fluker’s request,
informing him that he was:
       free to exercise any religion [he] cho[]se. However, due to [his] poor
       institutional behavior and [his] refusal to abide by [Mississippi
       Department of Corrections] Policy and Procedures[, he was]
       housed in a restrictive custody unit. The restrictive custody [sic]


      1 Jumu’ah is “a weekly Muslim congregational service” that is “commanded by the
Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or
afternoon prayer.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987).

      2   The parties consented to a magistrate judge conducting all proceedings.
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      does not allow out-of-unit activities; as such, [he was] absolutely
      free to exercise any religion or practice any faith [he] so cho[]se as
      long as it [was] in [his] assigned housing unit.

      Unsatisfied with this response, Fluker appealed to the second step
respondent, King. King likewise denied Fluker’s request, stating that:
      [t]he fact you are not allowed to attend the formal services is not
      an act of discrimination[;] it is a matter of security. Due to a poor
      record of institutional behavior[,] you are being housed in a unit
      reserved for restrictive custody. Just because you are not allowed
      to attend activities outside of the unit does not mean you are being
      denied an opportunity to practice your faith.

Having exhausted his administrative remedies, Fluker was eligible to seek
judicial review.
      In April 2013, Fluker filed a complaint under 42 U.S.C. § 1983 and
RLUIPA in the district court, seeking punitive damages and an injunction
requiring Appellees to allow c-custody inmates to attend Jumu’ah services.
Fluker’s overarching complaint was that, despite the Policy, non-Muslims were
allowed to attend an out-of-unit Jehovah’s Witness service on January 16,
2013, and an out-of-unit Kairos service on March 27, 2013, yet he and other
Muslims were not allowed to attend out-of-unit Jumu’ah services.
      In August 2014, Appellees moved for summary judgment, contending
that: (1) Fluker’s claim for injunctive relief was moot because he had been
transferred from SMCI to Walnut Grove Correctional Facility; and (2) they
were entitled to sovereign and qualified immunity.
      In March 2015, the district court granted Appellees’ motion and entered
judgment on all of Fluker’s claims. The court first held that Fluker’s claim for
injunctive relief was moot because he had been transferred from SMCI’s c-
custody and had not established a demonstrated probability or a reasonable
expectation that he would be returned there. Additionally, the court held,
Fluker’s claims for damages against Appellees in their official capacities were
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barred by the Eleventh Amendment.           Moreover, the court found, Fluker’s
claims for damages against Appellees in their individual capacities failed.
RLUIPA does not support this cause of action. Fluker had not shown that
Appellees violated the Equal Protection Clause because he had not shown that
any unequal treatment he received stemmed from invidious religious
discrimination.   And the Policy did not violate the Free Exercise Clause
because, under Turner v. Safley, 482 U.S. 78 (1987), it was reasonably related
to legitimate penological interests. Finally, the court found that it need not
address whether Appellees were entitled to qualified immunity because
Fluker’s claims were not constitutionally cognizable.
      Fluker has timely appealed. He contends that the district court erred in
granting summary judgment because: (1) his claim for injunctive relief is not
moot given the lingering effect of Appellees’ actions and his reasonable
expectation of being transferred back to c-custody at SMCI and subjected to
the same action again; (2) he is entitled to damages against Appellees in their
individual capacities due to their denial of his right to freely exercise his
religion, which is protected by RLUIPA and the Free Exercise and Equal
Protection Clauses; and (3) Appellees are not entitled to qualified immunity
because they violated his First Amendment right to freely exercise his religion.
                                      II.
      “This court reviews a summary judgment de novo, using the same
standard as that employed by the district court.” McFaul v. Valenzuela, 684
F.3d 564, 571 (5th Cir. 2012). A court should “grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“No genuine issue of fact exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” City of Alexandria v.
Brown, 740 F.3d 339, 350 (5th Cir. 2014) (citation omitted). When determining
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whether summary judgment is appropriate, the court must “consider all of the
evidence in the record,” “refrain from making credibility determinations or
weighing the evidence,” and “draw all reasonable inferences in favor of the
nonmoving party.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007) (citations omitted). A party cannot, however, “defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Id. (citation and internal quotation marks omitted).
                                         A.
      We begin by considering whether the district court erred in granting
summary judgment on Fluker’s claim for injunctive relief.            While Fluker
acknowledges that he is no longer housed in c-custody at SMCI, he nonetheless
argues that his claim is not moot because he has a reasonable expectation of
being transferred back and subjected to the same discriminatory action again
because he has already been placed into c-custody twice. Moreover, he asserts,
Appellees’ actions have a continuing effect.
      The district court properly concluded that Fluker was not entitled to
injunctive relief. Fluker’s transfer from SMCI to another correctional facility
“rendered his claims for . . . injunctive relief moot.” Herman v. Holiday, 238
F.3d 660, 665 (5th Cir. 2001). “And any suggestion of relief based on the
possibility of transfer back . . . is too speculative to warrant relief.” Id.
                                         B.
      Fluker also argues that the district court erred in granting summary
judgment on his RLUIPA claim.            Appellees, Fluker contends, placed a
substantial burden on his religious exercise without using the least restrictive
means necessary to do so. This claim, he asserts, is demonstrated by the fact
that Appellees allowed non-Muslim c-custody inmates to attend out-of-unit
religious services, yet Appellees neither allowed Muslim c-custody inmates to


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                                 No. 15-60218
attend out-of-unit Jumu’ah services nor provided them with the means to hold
in-unit services.
      The district court correctly held that Fluker’s RLUIPA claim cannot
survive summary judgment because “RLUIPA does not create a cause of
action” for damages against Appellees “in their individual capacities.”
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 331 (5th Cir. 2009).
                                       C.
      Next, Fluker contends that the district court erred in granting summary
judgment on his equal protection claim. Appellees, Fluker argues, violated his
equal protection rights by favoring other religions over Islam. Specifically,
Appellees allowed non-Muslim c-custody inmates to attend an out-of-unit
Jehovah’s Witness service on January 16, 2013, and an out-of-unit Kairos
service on March 27, 2013, while denying him and other c-custody Muslims the
opportunity to attend any out-of-unit Jumu’ah services.
      The district court properly granted Appellees summary judgment on
Fluker’s equal protection claim.    To establish an Equal Protection Clause
violation, Fluker “must prove purposeful discrimination resulting in a
discriminatory effect among persons similarly situated.” Baranowski v. Hart,
486 F.3d 112, 123 (5th Cir. 2007) (citation omitted). “Discriminatory purpose”
here “implies that the decisionmaker selected a particular course of action at
least in part because of, and not simply in spite of, the adverse impact it would
have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.
1995) (citation omitted). Notably, the Equal Protection Clause does not require
“that every religious sect or group within a prison . . . must have identical
facilities or personnel”; it requires only that prison officials afford inmates
“reasonable opportunities . . . to exercise the[ir] religious freedom.”
Baranowski, 486 F.3d at 123 (citations omitted).


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       No one disputes that Fluker was not allowed to attend out-of-unit
Jumu’ah services after Appellees implemented the Policy.                       And Fluker
produced a memorandum from SMCI Chaplain Kenneth Powell stating that
“seven (7) close custody offenders . . . attend[ed] [an out-of-unit] Kairos [service]
on March 27, 2013.” Thus, the record demonstrates that, on one occasion, 3
Fluker was treated differently from similarly situated c-custody inmates.
       But Fluker has not pointed to any evidence indicating that Appellees’
motivation for treating him differently was invidious religious discrimination.
Appellees rejected Fluker’s request to attend out-of-unit Jumu’ah services
explicitly because of his “poor record of institutional behavior.”                  Further,
nothing in the record indicates that Appellees used the Policy to treat Muslim
and non-Muslim c-custody inmates differently. The record does not establish
that the Kairos service here was anything other than nondenominational. As
the district court noted, Fluker “did not provide information regarding the
content of the Kairos service/event.” Fluker never stated what faith tradition
is associated with Kairos services or the religion of the inmates who attended
the service in question. And the only information in the record about this
service is that it was open to offenders of all religions, seven c-custody inmates
attended, and one c-custody attendee was a Muslim (the religious affiliations
of the other six were never disclosed).
       Still further, the affidavits from c-custody inmates that Fluker himself
submitted indicate equal, not disparate, treatment. Jackey Gholar attested
that Appellees were “denying all C-Custody . . . inmates their rights to attend
Religion Services due to [their] custody level” and that “[a]ll C-Custody . . .


       3 Fluker has not “come forward with specific facts indicating a genuine issue for trial”
on his claim that other c-custody inmates attended a Jehovah’s Witness service on January
16, 2013. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005) (citation omitted).
Chaplain Powell swore that “c-custody offenders were not allowed to attend, and did not
attend,” that service. Fluker simply rested on his unsubstantiated allegations.
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inmates are being forced to exercise their religion and/or practice their faith in
their assigned housing unit.”       And Quartaveous Strickland swore “that
Christians and Muslims both are being denied the rights to attend worship
services . . . [d]ue to our custody level.” Fluker does not challenge the accuracy
of these statements.
      Moreover, the record indicates that Appellees afforded Fluker
reasonable opportunities to exercise his religion.      The record shows that
Appellees permitted Muslim c-custody inmates to attend some Muslim out-of-
unit services.   As c-custody inmate Ricky Moore attests in his affidavit,
“Restrictive Custody Muslims were allowed to participate in the Eidul Fitr (the
celebration of the completion of Ramadan) with the General Population in
which all feasted together.” Fluker does not challenge the accuracy of this
statement. Additionally, Davis stated that Fluker was “absolutely free to
exercise any religion or practice any faith [he] so cho[]se as long as it [was] in
[his] assigned housing unit.” And King emphasized that Fluker was not “being
denied an opportunity to practice his faith”—he was simply “not allowed to
attend activities outside of the [c-custody] unit.”
      Fluker counters this evidence with only his conclusional assertion that
Appellees treated him and other Muslim inmates differently based on their
faith. Such conclusional assertions are not enough to create a genuine issue
for trial. See Turner, 476 F.3d at 343 (citation omitted). Thus, Fluker has
failed to show that Appellees acted with purposeful discrimination; the district
court therefore did not err in granting summary judgment on this claim.
                                        D.
      Fluker also asserts that the district court erred in granting summary
judgment on his free exercise claim. Fluker challenges the court’s application
of the first and second Turner factors, referred to below. While his argument
is somewhat disjointed, we understand his argument to be that the Policy is
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not rationally related to a legitimate penological interest because Appellees
treated Muslim c-custody inmates differently than non-Muslim c-custody
inmates. This discrimination against Muslims, he claims, is apparent from the
facts that Appellees: (1) prohibited him and other Muslim c-custody inmates
from attending Jumu’ah services while permitting non-Muslim c-custody
inmates to attend a Jehovah’s Witness service and a Kairos service; and (2)
provided only non-Muslim c-custody inmates with an alternative means of
attending religious services.
      The district court did not err in granting summary judgment on this
claim.   The Supreme Court has explained that a prison regulation may
“impinge[] on inmates’ constitutional rights” as long as “it is reasonably related
to legitimate penological interests.” Turner, 482 U.S. at 89. To determine
whether a regulation is “reasonable,” courts must consider four factors: (1)
whether there is “a valid, rational connection between the prison regulation
and the legitimate[, neutral] governmental interest put forward to justify it”;
(2) “whether there are alternative means of exercising the right that remain
open to prison inmates”; (3) “the impact accommodation of the asserted . . .
right will have on guards and other inmates, and on the allocation of prison
resources generally”; and (4) whether there is a “ready alternative[].” Id. at
89–90 (citation and internal quotation marks omitted).          Courts are not,
however, required “to weigh evenly, or even consider, each of these factors.”
Scott v. Miss. Dep’t of Corrs., 961 F.2d 77, 80 (5th Cir. 1992). “Factor one” is
“controlling”; “the other factors merely help a court determine if the connection
is logical.” E.g., id. at 81.
                                        1.
      As an initial matter, the district court did not err in analyzing the second
Turner factor.     Even if the Policy was applied to exclude some c-custody
inmates from attending Jumu’ah services, that alone is not determinative. See
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O’Lone, 482 U.S. at 351–52 (upholding a prison regulation that prevented
inmates from attending Jumu’ah services, even where the Court recognized
that “[t]here [were] . . . no alternative means of attending Jumu’ah”). The key
inquiry is whether inmates “retain the ability to participate in other . . .
religious ceremonies” in their faith tradition. Id. at 352; accord, e.g., Mayfield
v. Tex. Dep’t Of Criminal Justice, 529 F.3d 599, 609–10 (5th Cir. 2008)
(citations omitted).   And Appellees did not prevent Fluker from generally
participating in Muslim ceremonies. As Davis explained, c-custody inmates
were “absolutely free to exercise any religious or practice any faith [they] so
cho[]se as long as” they did so “in [their] assigned housing unit.”
                                        2.
      The district court also did not err in analyzing the critical first Turner
factor. This factor requires a multi-faceted analysis. A court must: (1) identify
the regulation in question and the governmental objective justifying it; and (2)
“determine whether the governmental objective” is: (A) “legitimate”; (B)
“neutral”; and (C) “rationally related to” the regulation. See McFaul, 684 F.3d
at 572 (citation omitted).
      The district court properly articulated the regulation in question as
“prohibiting inmates in restrictive custody from attending activities outside of
their unit” and the governmental interest justifying the regulation as ensuring
“the safety and security of the prison.”
      The district court also correctly recognized that the “internal security of
detention facilities is a legitimate governmental interest.”       E.g., Block v.
Rutherford, 468 U.S. 576, 586 & n.8 (1984).
      Nor did the district court err in finding that the Policy was neutrally
applied among all religions.     Fluker has failed to point to specific facts
indicating that Appellees used the Policy to specifically prevent c-custody
Muslims from attending out-of-unit religious activities. As discussed above,
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                                 No. 15-60218
his assertion that non-Muslim c-custody inmates were allowed to attend a
Jehovah’s Witness service is nothing more than an unsubstantiated allegation.
Granted that the record indicates that several c-custody inmates were allowed
to attend one Kairos service, but, as detailed in Part II.C, there is no evidence
that Muslim and non-Muslim c-custody inmates were treated differently.
      Finally, the district court did not err in holding that the Policy was
rationally related to SMCI’s safety and security. As King explained in an
affidavit, c-custody inmates “are the highest risk population inmates and pose
a threat to the safety and security of the prison.” And “keeping vulnerable or
dangerous prisoners apart is a rational way to achieve [the] goal” of ensuring
the safety and security of a prison. E.g., Fortner v. Lowndes Cty. Adult Det.
Ctr., No. 1:12CV192-SA-DAS, 2014 WL 3746642, at *3 (N.D. Miss. July 29,
2014). It certainly “cannot seriously be maintained [here] that the logical
connection between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational,” especially because we must “give
great deference to prison administrators’ judgments regarding jail security.”
O’Lone, 482 U.S. at 351 (citation omitted); Oliver v. Scott, 276 F.3d 736, 745
(5th Cir. 2002) (citations omitted). The district court therefore did not err in
applying the first and second Turner factors and thus correctly granted
Appellees summary judgment on Fluker’s free exercise claim.
                                       E.
      Finally, turning to the issue of whether Appellees are entitled to
qualified immunity, we hold that this issue is moot because Fluker has not
stated the denial of a constitutional right. Wells v. Bonner, 45 F.3d 90, 94 (5th
Cir. 1995) (citation omitted).
                                      III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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