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

                                                                                FILED
                                                                               April 2, 2013

                                         No. 11-40653                         Lyle W. Cayce
                                                                                   Clerk

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

                                                     Plaintiff–Appellee,
v.

EILEEN KENNEDY, in her official capacity as Director, Region IV, Texas
Department of Criminal Justice; SENIOR WARDEN ERNEST GUTIERREZ,
JR.; BRAD LIVINGSTON, EXECUTIVE DIRECTOR OF THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE; EXECUTIVE DIRECTOR RICK
THALER,

                                                     Defendants–Appellants.



                     Appeal from the United States District Court
                          for the Southern District of Texas


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
OWEN, Circuit Judge:
      This case requires us to determine whether the Texas Department of
Criminal Justice’s policy of prohibiting prisoners from wearing beards for
religious reasons violates the Religious Land Use and Institutionalized Persons
Act (RLUIPA).1 After a bench trial, the district court granted declaratory and
injunctive relief in favor of the plaintiff, a Muslim, to the extent that the policy



      1
          Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc to 2000cc-5).
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                                     No. 11-40653

prohibits him from wearing a quarter-inch beard. The defendants have appealed
that ruling. We affirm.
                                            I
      Willie Lee Garner is a Texas state prisoner in the custody of the Texas
Department of Criminal Justice (TDCJ). He is currently incarcerated in the
McConnell Unit in Beeville, Texas. Garner claims that as a Muslim he is
required to wear a beard.          However, TDCJ rules prohibit most inmates,
including Garner, from having a beard, and Garner has been disciplined for his
failure to comply with this policy. Some inmates are allowed to grow beards up
to a quarter of an inch if they have specified skin conditions. These exemptions
from the general no-beard policy are known as “clipper-shave passes.” TDCJ
does not issue clipper-shave passes to accommodate religious beliefs or tenets.
      Garner filed a pro se complaint against a number of defendants, who we
will refer to collectively as TDCJ, in the Southern District of Texas pursuant to
RLUIPA and 42 U.S.C. § 1983. Garner claimed that TDCJ violated RLUIPA and
his constitutional rights by prohibiting him from wearing a beard and from
wearing a white head covering, known as a Kufi, to and from worship services.
The district court initially denied Garner’s request to appoint counsel and
granted summary judgment in favor of the defendants. Garner appealed, and
we reversed the district court’s judgment on Garner’s request for declaratory
relief and injunctive relief with respect to his RLUIPA claim but affirmed in all
other respects.2
      On remand, the district court appointed counsel and held a bench trial on
Garner’s RLUIPA claims. After noting that it is not seriously contested that
TDCJ’s policies impose a substantial burden on Garner’s religious exercises, the
court concluded that TDCJ failed to discharge its burden to show that TDCJ’s

      2
           Garner v. Morales, No. 07-41015, 2009 WL 577755 (5th Cir. Mar. 6, 2009) (per
curiam).

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beard policy is the least restrictive means of furthering a compelling government
interest. It therefore enjoined the defendants from enforcing the grooming policy
prohibiting Garner from wearing a quarter-inch beard. However, the district
court concluded that requiring an inmate to remove his Kufi and make it
available for inspection when traveling to and from religious services is the least
restrictive way of furthering TDCJ’s compelling government interest in the
safety and security of prisoners and prison staff. Therefore, the district court
held that Garner was not entitled to declaratory and injunctive relief on his
claim with respect to wearing his Kufi. TDCJ has appealed the district court’s
ruling that its grooming policy violates RLUIPA insofar as it prohibits Garner
from wearing a quarter-inch beard.
                                               II
       RLUIPA provides that “no government shall impose a substantial burden
on the religious exercise of a person confined in an institution, even if that
burden results from a rule of general applicability,” unless the burden “is in
furtherance of a compelling government interest” and “is the least restrictive
means of furthering that compelling government interest.”3                  The plaintiff
initially bears the burden of showing that “the challenged government action
substantially burdens the plaintiff’s religious exercise.”4 In order to show a
substantial burden, the plaintiff must show that the challenged action “truly
pressures the adherent to significantly modify his religious behavior and
significantly violate his religious beliefs.”5



       3
           42 U.S.C. § 2000cc-1(a).
       4
        DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011) (per curiam) (quoting Mayfield v.
Tex. Dep’t of Criminal Justice, 529 F.3d 599, 613 (5th Cir. 2008)) (internal quotation marks
omitted).
       5
           Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).

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       If the plaintiff shows that the government action imposes a substantial
burden on his religious exercise, the burden then shifts to the government to
show that the action was supported by a compelling interest and is the least
restrictive means of furthering that compelling interest.6 However, the Supreme
Court has held that although RLUIPA requires a compelling interest, “context
matters,”7 and therefore the court must give “due deference to the experience
and 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.”8
       We have not specifically addressed whether determining if a prison policy
meets the requirements of RLUIPA presents a question of law or fact. At least
one court has addressed this question in the RLUIPA context.9 Several courts
of appeals have addressed this question with respect to the predecessor to
RLUIPA,10 the Religious Freedom Restoration Act (RFRA),11 which is identical




       6
           DeMoss, 636 F.3d at 150 (citing Mayfield, 529 F.3d at 613).
       7
           Cutter v. Wilkinson, 544 U.S. 709, 723 (2005).
       8
        DeMoss, 636 F.3d at 150 (quoting Cutter, 544 U.S. at 723) (internal quotation marks
omitted).
       9
         Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th Cir. 2005) (“[W]hether the prison
regulations were the least restrictive means is a question of law” (citing Lawson v. Singletary,
85 F.3d 502, 511-12 (11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996))).
       10
          See United States v. Friday, 525 F.3d 938, 949 (10th Cir. 2008); United States v.
Vasquez-Ramos, 522 F.3d 914, 917 (9th Cir. 2008) (per curiam) (citing United States v. Hugs,
109 F.3d 1375, 1379 (9th Cir. 1997) (per curiam)); Christians v. Crystal Evangelical Free
Church (In re Young), 82 F.3d 1407, 1419 (8th Cir. 1996), vacated & remanded, 521 U.S. 1114
(1997), reinstated in relevant part, 141 F.3d 854, 856 (8th Cir. 1998); Lawson, 85 F.3d at 511-
12.
       11
            Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb to 2000bb-
4).

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                                        No. 11-40653

to RLUIPA for present purposes.12 These courts have generally held that
whether the imposition of a burden is the least restrictive means of furthering
a compelling government interest is a question of law. Because it is highly
dependent on a number of underlying factual issues, we conclude that whether
the imposition of a burden is the least restrictive means of furthering a
compelling government interest is best characterized as a mixed question of fact
and law, which is subject to de novo review.13 As always, we review questions of
fact for clear error.14
                                             III
       TDCJ first argues that the district court’s written opinion fails to comply
with Federal Rule of Civil Procedure 52(a)(1), which requires that the district
court “find the facts specially and state its conclusions of law separately.”15 Rule
52(a)(1) serves three main purposes: “1) aiding the trial court’s adjudication
process by engendering care by the court in determining the facts; 2) promoting
the operation of the doctrines of res judicata and estoppel by judgment; and
3) providing findings explicit enough to enable appellate courts to carry out a
meaningful review.”16 Rule 52(a)(1), however, is not overly burdensome—it
“‘exacts neither punctilious detail nor slavish tracing of the claims issue by issue



       12
        See Cutter, 544 U.S. at 714-16 (recounting the history of RFRA and RLUIPA).
Compare 42 U.S.C. § 2000bb-1, with 42 U.S.C. § 2000cc-1.
       13
        See McKinley v. Abbott, 643 F.3d 403, 407-08 (5th Cir. 2011) (“Last, we consider
whether the Barratry Statute violates the United States Constitution’s First Amendment
guarantee to free speech. This is a mixed question of fact and law, which we review de novo.”).
       14
       DeMoss v. Crain, 636 F.3d 145, 149 (5th Cir. 2011) (per curiam) (citing Cerda v. 2004-
DQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010)).
       15
            FED. R. CIV. P. 52(a)(1).
       16
         Chandler v. City of Dallas., 958 F.2d 85, 88 (5th Cir. 1992) (per curiam) (citing Tex.
Extrusion Corp. v. Palmer, Palmer & Coffee (In re Tex. Extrusion Corp.), 836 F.2d 217, 220 (5th
Cir. 1988)).

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                                             No. 11-40653

and witness by witness.’”17 It requires only that the district court “issue findings
with sufficient detail to enable the appellate court to consider the findings under
the applicable reviewing standard.”18 We will not remand for clarification as
long as “the district court’s findings give the reviewing court a clear
understanding of the factual basis for the decision.”19
          TDCJ cites the following paragraph from the district court’s opinion as
most evident of the district court’s error:
                The Defendants also contend that allowing an exception to the
          no beard rule would have an economic impact. They are probably
          correct in assuming that if Plaintiff Garner were allowed to have a
          beard, other Muslim prisoners in the McConnell Unit would desire
          the same benefit. This could, and probably would, result in some
          additional expense to the TDCJ, but the evidence fails to
          demonstrate that it would be significant. The McConnell Unit
          already features barbering services for the benefit of those inmates
          who are allowed to maintain beards by virtue of a medical condition.
          These services might have to be expanded to accommodate Muslim
          prisoners, but the additional expense is unlikely to be exorbitant.
          Some additional expense would also be incurred in taking new
          photographs for prisoner identification cards, but some of that
          expense is covered by fees paid by the prisoners themselves. In
          short, the evidence as a whole fails to establish that the economic
          impact on the TDCJ would be significant.
TDCJ argues that this paragraph “leaves the reader to wonder what findings of
fact are to be reviewed on appeal for clear error, if any, and what conclusions of
law are to be reviewed de novo.” It argues that instead of issuing a finding of
fact as to the approximate amount of expenses, the district court couched its


          17
         Burma Navigation Corp. v. Reliant Seahorse MV, 99 F.3d 652, 657 (5th Cir. 1996)
(quoting Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993)).
          18
         Id. (citing Schlesinger, 2 F.3d at 139; Collins v. Baptist Memorial Geriatric Ctr., 937
F.2d 190, 194 (5th Cir. 1991)).
          19
               Id. (citing Interfirst Bank of Abilene, N.A. v. Lull Mfg., 778 F.2d 228, 234 (5th Cir.
1985)).

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language in the form a legal conclusion, stating that the expenses are not
significant enough to frustrate Garner’s RLUIPA claim.
      We find no error in the form of district court’s opinion. With respect to the
paragraph quoted above, TDCJ’s evidence concerning increased costs was vague
and consisted primarily of speculation and conjecture. There was no evidence
concerning concrete numbers besides testimony that a single disposable razor
costs four cents while an electric clipper costs thirty-four dollars. The district
court cannot be faulted for not making an exact finding with regard to costs.
      More generally, the district court clearly discusses its view of the evidence
presented. It found, for various reasons, that TDCJ’s arguments that allowing
beards poses great safety risks were unfounded, that there is at least one viable
alternative to achieve easy identification of inmates, and that the costs,
whatever the exact number is, would be insignificant. The district court thus
concluded that “TDCJ’s grooming policy does impose a substantial burden on an
important aspect of the Plaintiff’s exercise of his Muslim religion, and the
Defendants have failed to sustain their burden of showing that the policy
represents the least restrictive means of furthering a compelling government
interest.” The district court’s order gives us a clear understanding of the basis
of its decision and its conclusions. It did not violate Rule 52(a)(1).
                                        IV
      TDCJ argues that the district court erred in holding that the no-beard
policy violates RLUIPA because it is not the least restrictive means of furthering
a compelling government interest. TDCJ has not challenged the finding that the
policy imposes a substantial burden on Garner’s religious exercise, so we do not
address that issue.
      Although TDCJ argued below that its policy furthers the state’s interest
in security because quarter-inch beards can be used to hide contraband, TDCJ
does not press that argument on appeal. It advances two main arguments in

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                                         No. 11-40653

this court. First, it contends that the no-beard policy advances the compelling
interest in controlling costs. Second, it argues that the no-beard policy advances
the compelling interest in security because the policy promotes easy
identification of inmates.
      In support, TDCJ cites two cases of this court, DeMoss v. Crain20 and
Gooden v. Crain,21 in which we upheld the TDCJ no-beard policy as compliant
with RLUIPA. In DeMoss, we held that the district court’s finding that a partial
or total repeal of the no-beard rule, the two alternatives proposed by the
plaintiff, would impose additional costs was not clearly erroneous and that the
no-beard rule was the least restrictive means of advancing the compelling
government interest in security and controlling costs.22 Similarly, in Gooden,
an unpublished opinion, we held that the no-beard rule furthered the compelling
government interest in security and was the least restrictive means of doing so.23
The district court found that making an exception for quarter-inch beards would
make identification of inmates more difficult.24 We noted, however, that Gooden
offered little evidence in response to TDCJ’s evidence and explicitly made “no
broad holding that the grooming policy, as it applies to quarter-inch beards, will
always be upheld.”25
      DeMoss and Gooden are not controlling here. In both cases, the plaintiffs
were pro se and there is no indication that they countered TDCJ’s evidence as
Garner has done. In this case, we are presented with a substantially different

      20
           636 F.3d 145 (5th Cir. 2011) (per curiam).
      21
           353 F. App’x 885 (5th Cir. 2009) (per curiam).
      22
           DeMoss, 636 F.3d at 153-55.
      23
           Gooden, 353 F. App’x at 887-89.
      24
           Id. at 889.
      25
           Id. at 889 n.3.

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                                       No. 11-40653

record. Garner disputed TDCJ’s evidence: he was represented by counsel,
thoroughly cross-examined all TDCJ witnesses, proposed different alternatives
to the no-beard policy than have been previously offered, and presented expert
testimony from a long-time prison administrator. Our decisions in DeMoss and
Gooden are not controlling in light of the more-developed record and the factual
findings present here that were not present in previous cases. Those cases
contained no evidence or factual findings regarding other jurisdictions’ beard
policies or TDCJ’s current policy with respect to head shaving. Nor had the
district courts in those prior cases found that the state failed to show that
increased costs due to a religious exemption would be significant.
                                              A
       TDCJ argues that its no-beard policy is the least restrictive means of
advancing the compelling government interest in controlling costs.                       It is
undisputed that controlling costs is a compelling government interest and that
we must give deference to prison administrators.26 However, RLUIPA “may
require a government to incur expenses in its own operations to avoid imposing
a substantial burden on religious exercise.”27 With these principles in mind, the
record reflects that TDCJ has not carried its burden of showing that its policy
is the least restrictive means of advancing the interest in controlling costs.
       TDCJ presented testimony from multiple witnesses that allowing quarter-
inch beards for religious reasons would impose additional costs.                     William
Stephens, the deputy director of prison and jail operations within TDCJ, who


       26
          DeMoss, 636 F.3d at 154 (citing Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir.
2007)); see also Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (noting that Congress recognized
that courts would apply RLUIPA’s standard with “due deference to the experience and
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.” (emphasis added) (internal quotation marks omitted)).
       27
            42 U.S.C. § 2000cc-3(c).

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was also qualified as an expert to give his opinion on the effects of allowing
Muslim inmates to wear quarter-inch beards, testified that he was concerned
about the added cost of allowing beards. He noted, for example, that some large
institutions currently have only one barbershop and would likely have to expand.
He also testified that costs would be imposed due to greater use of barbershop
equipment. Rick Thaler, the Director of the Correctional Institutions Division
of TDCJ, testified that if inmates were allowed to grow quarter-inch beards, then
staff would have to take more valuable time to enforce the grooming policy.
Allowing beards would also require additional trips to the barbershop by each
inmate. He also testified that it is expected that TDCJ’s budget is going to be
“extremely tight” in the near future. Finally, he testified that the option of
requiring a new photo ID card when an inmate grows a beard, for which the
inmate would pay an additional charge, would be costly because half of the
prison population is indigent, and the volume of ID cards issued would increase
significantly.
      Billy Pierce, the Director of Chaplaincy Operations for TDCJ, testified
about the increased burden allowing Muslim inmates to grow beards would put
on chaplains. He testified that chaplains would have to verify the religious
beliefs of inmates, keep lists of inmates in the faith group allowed to have a
beard, continually update the list, and make sure housing areas had the list. He
also testified that when certain faith groups have received special privileges in
the past, the number of inmates claiming to belong to that faith group increased
dramatically.
      In contrast, Garner established through exhibits and testimony that the
TDCJ had made no studies concerning the costs of allowing inmates to grow
beards. Garner elicited testimony from Stephens that “there has not been a
specific study made” with respect to cost, although “[t]here ha[ve] been some
general reviews about cost.” Stephens agreed that he does not “know from an

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economic analysis standpoint all of the factors that would have to be considered
to determine what is or is not cost effective over the long term.” Garner also
elicited testimony that TDCJ already tracks inmates’ expressed beliefs, although
it does so on a central computer and on each inmate’s housing papers, not on a
list kept by the chaplains on each unit.
      Based on this record, we cannot say that the district court’s finding that
any increased costs would be insignificant is clearly erroneous. Although there
was testimony that there would be additional costs, whether due to the
construction of barbershops, the purchase of barbering supplies, or the creation
of new identification cards, almost all of that testimony was speculative. The
Defendants admitted that no specific studies had been done other than general
reviews. We recognize that it is possible that allowing quarter-inch beards could
impose some administrative costs in enforcement.            However, while TDCJ
witnesses testified that a quarter-inch limit would be difficult to enforce, their
testimony concerning these administrative costs was also speculative. For
example, Thaler testified that the time for enforcement “would potentially” take
time from other tasks. There is no testimony regarding what other tasks would
be affected or the amount of time that would be necessary in order to enforce a
limit on beard length. Furthermore, TDCJ imposes limits on hair length,
requiring that it be trimmed up the back of the head and neck and be cut around
the ears, and although Stephens testified that enforcement is time-consuming,
there is no evidence that TDCJ would encounter greater or added difficulty if it
enforced a one-quarter-inch as opposed to a clean-shaven rule.
      RLUIPA “may require a government to incur expenses in its own
operations to avoid imposing a substantial burden on religious exercise.”28 TDCJ
has presented testimony only that its costs would increase. It has not attempted


      28
           Id.

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                                  No. 11-40653

to approximate the amount of those costs, and it has not presented any concrete
evidence concerning how other operations of the prison system would be affected
by these increased costs. Such speculative testimony cannot satisfy TDCJ’s
burden.
                                        B
      TDCJ also argues that its no-beard policy is the least restrictive means of
furthering the compelling interest in security because the policy aids rapid
identification of inmates. TDCJ presented testimony that if inmates were
allowed to grow beards, identification would be hindered. John Moriarty, the
Inspector General for TDCJ, testified that identification is important both for
inmates within the prison and for capturing escaped inmates. Director Thaler
testified that TDCJ had recently decided to retain its current grooming policy
based largely on the fact that “the issue of positive identification of individuals
as [they are moved] throughout the facility [is] a cornerstone to good correctional
practice.” In his opinion, having inmates have their beards trimmed regularly
at the barbershop, as is done with hair, is not an acceptable alternative because
“any time you move your offender population around your institution, you
subject your security process to vulnerabilities.”
      Garner, on the other hand, elicited testimony that the security issues with
allowing all inmates or some inmates to wear beards is not as serious as TDCJ
asserts. Inmates are allowed to shave their heads, and Moriarty was not aware
of any incident in which an inmate shaved his head in prison to change his
appearance. In fact, he was not aware of any inmate changing his appearance
after committing a crime in jail other than by changing clothes. Thaler testified
that prohibiting inmates from shaving their heads had been contemplated but
ultimately was not adopted as a policy, even though he agreed that an inmate
shaving his head would change the inmate’s appearance just as much as growing
a quarter-inch beard. In addition, Garner presented the testimony of an expert

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witness, George Sullivan, whom the district court found has “decades of practical
experience in managing correctional institutions.” Sullivan testified that, in his
experience, institutions that allow beards are no less safe than those that do not.
He testified that in the prison setting, it is not generally more difficult to identify
an inmate with a beard because officers become familiar with the inmate. He
acknowledged that it is a little more difficult in systems with larger populations,
like California, Texas, and the Federal Bureau of Prisons, because of the
numbers, but “if the officer is doing his job . . . and is paying attention to the
inmates as they come in his proximity, he should have no problem at all shifting
his mental gears to keep up with the appearance of inmate.” He disagreed with
the argument that permitting inmates to maintain beards would pose
identification difficulties.
      On this record, TDCJ has not carried its burden to show that its no-beard
policy is the least restrictive means of furthering the compelling government
interest in security. Although TDCJ has presented evidence that allowing
inmates to have beards hinders inmate identification, there was undisputed
evidence that TDCJ allows inmates to shave their heads, and there was
testimony that shaved heads pose just as many identification problems as
allowing prisoners to grow and shave beards. TDCJ has not shown why any
security concerns could not be addressed by requiring an inmate to have his
identification picture changed if he grows or shaves his beard, as apparently is
already required when an inmate changes his appearance in any way. As
discussed above, TDCJ has not shown any reason why costs related to
identification cards would be significant. One TDCJ witness admitted that
requiring a new identification card to be made when an inmate grows a beard
can, in a general sense, accommodate the need to identify him as he moves
through the facility. We also find it persuasive that prison systems that are
comparable in size to Texas’s—California and the Federal Bureau of

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                                          No. 11-40653

Prisons—allow their inmates to grow beards, and there is no evidence of any
specific incidents affecting prison safety in those systems due to beards.
      With respect to an escaped prisoner, Garner observes that nothing
prohibits an escapee from changing his appearance by, for example, growing out
his hair or wearing a wig. Moriarty testified that TDCJ can do nothing to
prevent an inmate from changing his appearance outside of the prison. Based
on the present record, we cannot say that the district court’s factual findings are
clearly in error.
                                      *        *         *
      We recognize that in applying RLUIPA, we must accord “due deference to
the experience and expertise of prison and jail administrators.”29 However,
based on the present record, the state has not satisfied its burden under
RLUIPA. Therefore, we AFFIRM the district court’s judgment.




      29
           Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (internal quotation marks omitted).

                                              14
