MEMORANDUM1

MALACHY E. MANNION, District Judge.

I. Background

On January 24, 2012, Plaintiff, Kerry-X Marshall, an inmate currently confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania, filed the above captioned, pro se action, on behalf of himself and four other individuals, in the United States District Court for the Western District of Pennsylvania, at Civil No. 2:12-cv-00082. (See Doc. 7, complaint). James Jihad Butler, Shawn Mustafa Saunders, James Shakoor Townsend, and Melvin Ali Lindsey are the four other named Plaintiffs. Plaintiff alleges a denial of the First Amendment right to one's freedom to exercise religion. Specifically, the complaint states that:

Id.

On February 1, 2012, Magistrate Judge Kelly issued a Report and Recommendation, recommending, that the four parties who did not sign the Complaint be dismissed, that any putative class action claims be dismissed, and the remaining claims be transferred to the United States District Court for the Middle District of Pennsylvania. (Doc. 2, Report and Recommendation). The Magistrate Judge found that the only remaining claims were Plaintiff Marshall's individual claims that while housed in SCI-Mahanoy, he was denied his religious rights. (Doc. 2, at 5).

By Memorandum Order dated February 17, 2012, Judge Bissoon adopted the Report and Recommendations in full, dismissed the four non-signatory Plaintiffs, and transferred the action to this Court. (Doc. 6, Order).

On May 15, 2012, this Court, recognizing Judge Bissoon's Memorandum Order, directed the Clerk of Court to re-caption the above complaint to reflect the name of the sole Plaintiff, Marshall, in this matter. (Doc. 21, Order.) Additionally, the Court denied Plaintiff's motion for a preliminary injunction, finding that Plaintiff did not have standing to bring claims, or requests for relief, on behalf of other inmates, and that Marshall's transfer from SCI-Mahanoy mooted his claim for injunctive relief involving that facility. Id. Finally, the Court granted Marshall's motion for leave to proceed in forma pauperis, and directed the United States Marshal to serve the Complaint upon Defendants. Id. The United States Marshal Service served the Complaint on May 17, 2012. (See Doc. 21, Order).

By Memorandum and Order dated January 22, 2014, the Court denied Defendants' motion for summary judgment, denied Plaintiff's motion for leave to file an amended complaint, and granted Plaintiff's motion to compel, directing Defendants to respond to Plaintiff's outstanding discovery requests on, or before, February 14, 2014. (Docs. 105, 106, Memorandum and Order). On April 17, 2014, a Scheduling Order was issued, directing that any dispositive motions be filed on, or before, May 30, 2014. (Doc. 107, Order).

Presently before the Court are the parties' cross motions for summary judgment. (Docs. 118, 121). The motions are ripe for disposition, and for the reasons set forth below, Plaintiff's motion for summary judgment will be denied and Defendants' motion for summary judgment will be granted.

Also before the Court are Plaintiff's motion for enlargement of time to file dispositve motions, motion to file an amended complaint, motion to compel discovery, motion for leave to take videotape deposition of Defendants and Plaintiff's motion for a court order to compel SCI-Rockview to allow Plaintiff to mail his brief in response to Defendants' brief in opposition to Plaintiff's motion for summary judgment. (Docs. 109, 110, 113, 119, 135).

Based on the Court's resolution of the parties' cross motions for summary judgment, infra, Plaintiff's motion for enlargement of time to file dispositive motions, motion to take videotape depositions, and motion for an order to file a sur-reply, will be dismissed as moot. Plaintiff's motion to compel will be denied, as Defendants have responded to all of Plaintiff's discovery requests. (See Doc. 112, Defendants' brief in opposition to Plaintiff's motion to compel). Plaintiff's motion for leave to file an amended complaint will be denied for the reasons set forth in this Court's January 22, 2014 Memorandum and Order.

II. Standard of Review

Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

Notably, these summary judgment rules do not apply any differently where there are cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir.2008). As stated by the Third Circuit, "`[c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'" Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)).

III. Statement of Facts

From the pleadings, declarations, and exhibits submitted therewith, the following pertinent facts can be ascertained from the record as undisputed.

The DOC policy for religious activities is set forth in Department of Corrections Administrative Directive 819 ("DC-ADM 819"). (See Doc. 125 at 132-152, DC-ADM 819, Religious Activities Procedures Manual, Section 4 — Religious Accommodations). The DOC and SCI-Mahanoy are committed to providing inmates with the opportunity to practice the basic tenets of their faith through religious programs and services, while guarding against the misuse of inmates claiming religious beliefs as a means of obtaining special privileges or breaching security. (Doc. 125 at 7, Defendants' statement of material facts). Worship services for major faith groups, which represent the whole body of a particular faith group, such as Catholics, Jehovah's Witnesses, Jewish, Muslim, Native American and Protestants are provided in all correctional institutions. (Doc. 125 at 34, Affidavit of Reverend Ulli Klemm). Religious leaders, including but not limited to chaplains, imams and rabbis are approved by the DOC in order to assure that worship is in accordance with the tenets of the faith groups and to guard against potential security concerns. Id. The DOC allows for diversity of worship, and reasonable accommodations are made for inmates consistent with the order, safety and security of the correctional facility, prison staff and inmates, including faith groups that fall outside of the majority groups. Id.

For instance, the term "broad Islamic faith" refers to those religious traditions, which contain the most basic elements of the Islamic tradition and is not an Islamic denomination. (Doc. 125 at 33-34, Klemm Affidavit). The term "broad Islamic faith" does not imply that all individuals who practice the Islamic faith or an offshoot of that faith, possess and profess identical faith teachings and perspective, nor does it mean that inmates who identify with the broad Islamic faith have the same faith teaching similarities in common. Id. Just as there is a "broad Islamic Faith" there is a "broad Jewish faith" for which Jewish inmates are provided religious accommodations (Ultra-Orthodox, Orthodox, Conservative, Reform, etc. . . .), there is a "broad Protestant faith" (Fundamentalists, Episcopalian, Mennonite, Pentecostal, Baptist), and a broad Native American tradition (Lakota, Cherokee, Apache, Taino) under one "faith umbrella". Id.

SCI-Mahanoy does not, and has not ever, provided separate congregational services for those who adhere to Muhammad's Temple of Islam (MTOI) and Nation of Islam (NOI),2 from those provided to Sunni Orthodox Muslims. (Doc. 125 at 36, Klemm Affidavit). Taking into account the cost that would be incurred, as well as security concerns of guards, inmates and prison resources generally, at this time it is not practical to provide separate MTOI services at SCI-Mahanoy. Id.

Of the twenty-seven State Correctional Institutions, there are only a few institutions in the Department which have a long-standing tradition of accommodating inmates who identify with the NOI with a regular group meeting time. (Doc. 125-1 at 44, Klemm's response to Plaintiff's First Set of Interrogatories). These accommodations were made prior to the existence of the Religious Accommodation Review Committee, which began in 2011, and consist of the following:

Id. The Bureau of Treatment and Services (BTS) and the Religious Accommodation Review Committee (RARC) have not yet expanded the number of facilities in which Nation of Islam inmates are accommodated with a separate group meeting time, due to security and budgetary limitations, available resources, the impact of accommodating requests on the normal operation of the prison, as well as time and space constraints. Id.

Despite the fact that MTOI adherents are not provided with separate congregational services from Orthodox Sunni Muslims, MTOI adherents are permitted spiritual growth opportunities, month long fast and food accommodations, as well as religious books, CD's and DVD's, which may be donated to the institution provided they meet the standards outlined in the DOC religious accommodations policy. Id. Plaintiff was able to pray and conduct religious rituals in his cell, correspond with and have priests, ministers, or religious advisors visit him at the prison, possess religious books and materials, and other devotional items such that are consistent with prison security policies. Id.

Inmates seeking accommodations for a particular faith are directed to express their concerns to the Religious Accommodation Review Committee (RARC) via an Inmate Religious Accommodation Request Form ("RAR"). (Doc. 125 at 140-143, DC-ADM 819, Religious Activities Procedures Manual, Section 4 — Religious Accommodations). In accordance with DC-819, inmates must first submit an RAR to the Facility Chaplain Program Director ("FCPD"). Id. The evaluation of all RARs is the same, no matter to what religious group the inmate belongs. Id. The inmate is encouraged to obtain written information from his outside faith group, including any publications that describe the goals, beliefs and practices of the group and supply this information to the FCPD for review. Staff at the institution also evaluates the RAR and, upon completion of the institutions evaluation of a request, the request is forwarded to the RARC. Id. The RARC then reviews the request and makes a recommendation to the Regional Deputy Secretary. Id. Upon completion of review, the RARC notifies the Facility Manager and the FCPD, who then notifies the inmate of the outcome of the request. Id. If an inmate is informed that the request will not be accommodated, he may file a grievance in accordance with the DOC's Grievances policy, DC-ADM 804. (Doc. 125 at 33, Klemm Affidavit)

The Department consults with Muslim Imams throughout the Department as well as Islamic scholars outside the Department when ascertaining how best to accommodate Muslim inmates with their requests. Id. Currently, two full-time Imams sit on the Religious Accommodations Review Committee and provide guidance to the Department on Islamic concerns. Id.

On February 2, 2009, while housed at SCI-Mahanoy, Plaintiff filed a Religious Accommodation Request Form, stating that as an adherent to Muhammad's Temple of Israel ("MTOI"), he request MTOI services be established, including Ramadhan services in the month of December, and services for Eid-Fitr and Eid-al-Adha; Ju'mah prayer services; religious study classes; Islamic holy books; cassette tapes; DVD's and DVD player; Islamic bow ties, crowns, incense, oils, prayer rugs and bean pies, as well as Islamic dietary meals, and a means of generating Islamic treasury/funds. (Doc. 125-1 at 66, Inmate Religious Accommodation Request Form).

On March 9, 2009, Marshall's Religious Accommodation Request was evaluated by Rev. Waddell, and the following was determined:

(Doc. 125-1 at 67, Evaluations of Requests for Religious Accommodation).

In a response dated August 4, 2009, Regional Deputy Secretary Shirley Moore-Smeal concurred with the recommendation. (Doc. 125-1 at 69, Response Letter).

By letter dated August 13, 2009, Superintendent Kerestes was informed of the Deputy Secretary's affirmance of the denial of Marshall's Religious Accommodation Request, and was asked to notify Marshall of the decision, as well as all appropriate staff. (Doc. 125-1 at 70, Aug. 13, 2009 Letter).

In response to an inquiry by Marshall, on December 2, 2009, Rev. Klemm wrote to Marshall, informing him of the August 13, 2009 notice to the institution, denying Marshall's Religious Accommodation Request. (Doc. 125-1 at 72, Dec. 2, 2009 Letter).

On December 10, 2009, Marshall submitted an Inmate's Request to Staff Member requesting a copy of the Religious Accommodation Approval Letter that was sent to the institution on August 13, 2009. (Doc. 125-1 at 73, Inmate's Request to Staff Member). Plaintiff's request was received on December 14, 2015 and he was instructed to see staff on December 15, 2009. Id.

On December 16, 2009, Marshall filed Grievance No. 300593, claiming that he is being denied MTOI services at SCI-Mahanoy "based on a religious discriminatory prison policy, DC-ADM 819". (Doc. 125-1 at 8, Official Inmate Grievance). For relief, Plaintiff requested damages, as well as that "DC-ADM 819 policy be changed to allow separate MTOI services from the Orthodox Sunni Muslim services". Id.

By response dated January 4, 2010, Grievance Officer Mason denied Grievance No. 300593, finding the following:

(Doc. 125-1 at 9, Official Inmate Grievance Initial Review Response).

Marshall appealed the denial of his grievance, and by response dated January 14, 2010, Superintendent Kerestes denied Marshall's appeal. (Doc. 125-1 at 10, Response to Official Inmate Grievance).

On January 20, 2010, Marshall filed a final appeal to the Secretary's Office of Inmate Grievances & Appeals. (Doc. 125-1 at 11, Final Appeal).

On March 12, 2010, Chief Grievance Officer Dorina Varner, upheld the Superintendent's denial, finding the following:

(Doc. 125-1 at 12, Final Appeal Decision).

Plaintiff's Grievance No. 300593, filed December 16, 2009, is the only grievance Plaintiff filed to final review, while housed at SCI-Mahanoy, that concerns the denial of religious accommodations requests for Muslims. (Doc. 125-1 at 5 Affidavit of Dorina Varner, Chief Grievance Coordinator).

IV. Discussion

A. The Prison Litigation Reform Act

Section 1997e(a) of title 42 U.S.C. provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner must exhaust all available administrative remedies before initiating a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001). Failure to exhaust available administrative remedies is an affirmative defense. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). As such, the failure to exhaust available administrative remedies must be pleaded and proven by the Defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

The Pennsylvania Department of Corrections' administrative remedies for inmate grievances are provided for in Department of Corrections Administrative Directive 804 ("DC-ADM 804"). This policy establishes the Consolidated Inmate Grievance Review System, through which inmates can seek to resolve issues relating to their incarceration. The first step in the inmate grievance process is initial review. Id. Grievances must be submitted for initial review within 15 working days after the event upon which the grievance is based. Id. After initial review, the inmate may appeal to the superintendent of their institution. Id. Upon completion of the initial review and the appeal from the initial review, an inmate may seek final review. Id.

The undisputed record reveals that Marshall exhausted his administrative remedies to final review, only with respect to the denial of separate MTOI services at SCI-Mahanoy. Thus, any other requested accommodations, outside of separate MTOI services, are unexhausted and not before this Court.

B. Religious Land Use and Institutionalized Persons Act of 2000

Section 3 of Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") provides, in relevant part, 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 establishes that the burden furthers "a compelling interest," and does so by the "least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A); see also Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).

Although Congress intended that RLUIPA be construed "in favor of broad protection of religious exercise," see 42 U.S.C. § 2000cc-3(q), Congress also "anticipated that courts would apply the Act'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.'" Cutter, 544 U.S. at 723. Congress indicated that in the event an inmate's request for religious accommodation would "become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition." Id. at 726; see also Holt v. Hobbs ___ U.S. ___, 135 S.Ct. 853, (2015) (recognizing the plaintiff has the burden to show a sincerely held religious belief and that governmental action substantially burdened that belief).

Under RLUIPA, the plaintiff must show that his religious exercise has been burdened substantially by the challenged conduct. Washington v. Klem, 497 F.3d 272, 277-78 (3d Cir. 2007). The Third Circuit Court of Appeals has found that 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." Id. at 280.

If the plaintiff shows that prison administrators' action or inaction has imposed a substantial burden on the exercise of his religion, the prison administrator must establish that the challenged conduct furthers a compelling governmental interest and that it is the least restrictive means of furthering that interest. Id. at 283. Under RLUIPA, 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." Cutter, 544 U.S. at 723. "However, `a court should not rubber stamp or mechanically accept the judgments of prison administrators.' Rather, due deference will be afforded to those explanations that sufficiently `take[ ] into account any institutional need to maintain good order, security, and discipline'." Holt, 135 S.Ct. at 866.

Initially, the Court notes that Marshall cannot recover compensatory or punitive damages against Defendants in either their individual or official capacities under RLUIPA. In 2012, in the matter of Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012), in considering this very issue, the United States Court of Appeals for the Third Circuit stated that "the Courts of Appeals for the Fourth, Fifth, Seventh and Eleventh Circuits — the only circuits we are aware of that have addressed this issue in precedential opinions — have rejected arguments similar to Sharp's and held that RLUIPA does not permit actions against government employees in their individual capacities. See, e.g., Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009); Rendelman v. Rouse, 569 F.3d 182, 186-89 (4th Cir. 2009); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 327-29 (5th Cir.2009); Smith v. Allen, 502 F.3d 1255, 1271-75 (11th Cir. 2007), abrogated on other grounds, Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 1654, 179 L.Ed.2d 700 (2011) (abrogating Smith as to the claim against government employees in their official capacities)." Sharp, 669 F.3d at 153-54. The Third Circuit joined those circuits in concluding that RLUIPA does not permit an action against defendants in their individual capacities. Id. at 155.

Moreover, Marshall cannot recover damages against the Defendants in their official capacities as they are barred by the Eleventh Amendment. The Eleventh Amendment bars money damages sought against a state official acting in his or her official capacity absent a valid abrogation by Congress or consent of the State. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that "absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court."). Congress did not validly abrogate or purport to abrogate the States' sovereign immunity against damages claims under RLUIPA, and the Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity. Scott v. Beard, 2007 WL 3194039, at *1 (3d Cir. 2007) (finding that the RLUIPA claim for money damages against a Pennsylvania state official in his official capacity is barred by the Eleventh Amendment because it is essentially a claim against the state itself.) Defendants are entitled to summary judgment on the RLUIPA claim lodged against defendants in their official capacities.

To the extent that Marshall seeks injunctive and declaratory relief on his RLUIPA, such claims are moot based on the transfer of Marshall from SCI-Mahanoy to SCI-Rockview. An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims. Abdul-Akbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993) (finding that former inmate's claim that the prison library's legal resources were constitutionally inadequate was moot; plaintiff was released five months before trial, because "past exposure to illegal conduct is insufficient to sustain a present case or controversy regarding equitable relief if unaccompanied by continuing, present adverse effects." Rosenberg v. Meese, 622 F.Supp. 1451, 1462 (S.D.N.Y. 1985). Furthermore, "[a]bsent class certification, an inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (citation omitted); see also, Carter v. Thompson, 808 F.Supp. 1548, 1555 (M.D. Fla. 1992); see also, Pruden v. Schuylkill Cnty Prison Med. Staff, Civil No. 3:CV-07-006, 2007 WL 465522 *1 (M.D. Pa. Feb. 6, 2007). The RLUIPA claims for equitable and declaratory relief were rendered moot upon Marshall's transfer from SCI-Mahanoy. Consequently, Defendants are entitled to an entry of summary judgment.

Notably, even if Marshall were able to overcome each of these obstacles, he would still not be entitled to relief. It is clear from the record that Plaintiff has failed to demonstrate that the denial of his request for separate congregational services (or the denial of any of his requested religious accommodations) has substantially burdened his ability to exercise his religion. As is undisputed in the record, there were accommodations made which provided him with sufficient opportunity to adhere to his beliefs and practice his religion while housed at SCI-Mahanoy. Plaintiff was able to pray and conduct religious rituals in his cell, correspond with and have religious advisors visit him, possess religious books and materials, and other devotional items consistent with prison security policies, along with the opportunity for months long fasts. Moreover, there is no evidence that the failure to accommodate Plaintiff pressured him to substantially modify his behavior or to violate his beliefs. The party adverse to summary judgment must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). Marshall has failed to meet this burden in that he has failed to create a genuine issue of fact as to how attending congregational services with Orthodox Sunni Muslims, along with the opportunity for months long fasts, food accommodations, religious CD's and DVD's has substantially burdened the exercise of his religion, or pressured him to modify his behavior and violate his beliefs.

Other courts considering this question have concluded that corrections systems are not required to provide separate Jumu`ah services for NOI or other Muslim sects. In Muhammad v. City of New York Department of Corrs., 904 F.Supp. 161 (S.D.N.Y. 1995), the district court recognized the differences between NOI and orthodox Islam, but concluded that "generic Muslim services provide comfort and solace to NOI members without pressuring such members to commit acts forbidden by their religion or preventing them from engaging in conduct or having a religious experience mandated by their faith." Id. at 191. The district court found that the plaintiff had "not shown that he cannot accomplish the mandates of his faith through the means that the defendants do provide in his prison or that the absence of NOI congregate religious services has substantially burdened the exercise of his religious rights." Id.

In Davis v. Alameida, 2009 WL 890723 (C.D.Cal. 2009), the district court found no RLUIPA violation when an inmate's request fora separate NOI service was denied. The court concluded that the inmate "failed to show that his ability to pursue his NOI beliefs w[as] burdened by the failure to provide chapel time specific to the NOI followers." 2009 WL 890723 at *5. The denial of separate Jumu`ah service to NOI inmates in Jones v. Shabazz, No. H-06-119, 2007 WL 2873042 (S.D.Tex. Sept. 28, 2007) was not found to violate RLUIPA where generic services "structured for all Muslim inmates, not exclusively for any sub-group" were offered. Id. at *19.

The Sixth Circuit, in Johnson v. Baker, 67 F.3d 299 (6th Cir.1995) [Table] found the Religious Freedom Restoration Act (analyzed similarly to RLUIPA under a strict scrutiny standard) was not violated by the denial of separate religious services for NOI inmates. It was determined by the Sixth Circuit that inmate Johnson had "no proscriptions placed on his beliefs or the practices of his religion, but is simply deprived of a special time and place to observe his beliefs exclusively with others who profess the same faith." Johnson v. Baker, 67 F.3d at *4 (emphasis in original).

C. First Amendment Exercise of Religion

The First Amendment offers protection for a wide variety of expressive activities. See U.S. CONST. amend I. These rights are lessened, but not extinguished in the prison context, where legitimate penological interests must be considered in assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89 (1987). Although prisoners must be afforded "reasonable opportunities" to exercise their religious freedom guaranteed by the First Amendment, Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972), imprisonment necessarily results in restrictions on some constitutional rights, including the First Amendment's right to the free exercise of religion. O'Lone v. Shabazz, 482 U.S. 342, 348-49 (1987). It is well-established that only those beliefs which are (1) sincerely held, and (2) religious in nature are entitled to constitutional protection. Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972); Dehart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000); Africa v. Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981) (describing three indicia of religion (1) an attempt to address "fundamental and ultimate questions" involving "deep and imponderable matters"; (2) a comprehensive belief system; and (3) the presence of formal and external signs like clergy and observance of holidays.). It is undisputed that Marshall's sincerely held religious beliefs are entitled to Constitutional protection.

Whether an inmate's free exercise of religion has been impermissibly burdened is governed by the four-part test set forth by the Supreme Court in Turner, 482 U.S. 78. Specifically, Turner instructs courts to weigh four factors when applying this standard: (1) whether the regulation or practice bears a "valid, rational connection" to a legitimate and neutral governmental objective; (2) whether prisoners have alternative ways of exercising the circumscribed right; (3) whether accommodating the right would have a deleterious impact on other inmates, guards, and the allocation of prison resources generally; and (4) whether alternatives exist that fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Id. at 89-91.

The first factor requires consideration of whether the restrictions on the plaintiff's religious rights bear a valid and rational connection to a legitimate and neutral objective. Under this prong, courts accord great deference to the judgment of prison officials, who are charged with the "formidable task" of running a prison. Sutton v. Rasheed, 323 F.3d 236, 253 (3d Cir. 2003) (quoting O'Lone, 482 U.S. at 353). The first factor is "foremost" in the Court's analysis, in that a rational connection is a "threshold requirement." Id. (quoting Wolf v. Ashcroft, 297 F.3d 305, 310 (3d Cir. 2002)). The second factor requires consideration of whether inmates have alternative means of exercising the constitutional right at issue. In the free exercise context, the Court considers whether the inmate has other means of practicing his religion generally, not whether he has other means of engaging in any particular practice. Sutton, 323 F.3d at 255 (quoting DeHart, 227 F.3d at 55). The third and fourth Turner factors focus on the specific religious practice or expression at issue and the consequences of accommodating the inmate for guards, for other inmates, and for the allocation of prison resources. Sutton, 323 F.3d at 257 (quoting DeHart, 227 F.3d at 57).

As extensively discussed supra, there can be no question that DC-819 is rationally related to DOC's legitimate interest in running DOC facilities safely and efficiently. That is, DC-819 is reasonably related to DOC's concerns that non-generic services and individual group accommodations will undermine DOC's ability to run a complex prison housing a very large transitory inmate population. Further accommodations — in particular, separate congregate services for MTOI and NOI inmates — would significantly affect DOC's ability to provide the current level of mandated services to its inmate population. Moreover, if this Court were to find that the DOC must provide separate congregate services for NOI inmates, little, if anything, would preclude numerous other faith groups from seeking their own separate congregate services. The First Amendment surely does not require such an outcome. Also, as explained above, Plaintiff has adequate opportunity to pray and conduct religious rituals in his cell, correspond with and have priests, ministers or religious advisors visit him at the prison, possess religious books and materials, and other devotional items. There is simply nothing to lead this Court to conclude that Marshall's ability to practice his faith was restricted or that he was prohibited from practicing his religion in any manner.

As such, the Court need not reach the remaining issue of the absence of ready alternatives. Therefore, defendants are entitled to an entry of summary judgment on this claim.

D. Establishment Clause

Plaintiff alleges that the DOC's policy regarding religious services violates the First Amendment's Establishment Clause by "establishing the Sunni Islam sect as the PDOC's favored Islamic group to be followed over Plaintiff's, preventing Plaintiff from observing separate NOI religious services, while allowing separate Christian religious services, and by compelling NOI and Sunni Islam groups to merge and observe combined Islamic services contrary to Plaintiff's religious beliefs, while not compelling the four Christian groups to do the same." (Doc. 7, complaint).

The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The Supreme Court has set forth three tests for determining whether governmental action violates the Establishment Clause: the coercion test, the Lemon test, and the endorsement test. Mondrovich v. Allegheny Cnty., 385 F.3d 397, 400-01 (3d Cir.2004). The first of these, the "coercion" test, is not applicable to this case because it focuses primarily on government action in public education. See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 343 (5th Cir.1999), cert. denied, 530 U.S. 1251, 120 S.Ct. 2706, 147 L.Ed.2d 974 (2000). The second test, named after the Supreme Court case, Lemon v. Kurtzman, 403 U.S. 602, (1971), is a three-prong approach that finds a challenged action unconstitutional if (1) it lacks a secular purpose, (2) its primary effect either advances or inhibits religion, or (3) it fosters an excessive entanglement of government with religion. Lemon, 403 U.S. at 612-13. Finally, the "endorsement" test modifies Lemon in cases involving religious displays on government property, which is not applicable here. Thus, of the three tests, the only one with any possible application to this case is Lemon. Indeed, it appears that Plaintiff is relying on the second approach of this test in arguing, in essence, that the primary effect of the implementation of DC-ADM 819 is to inhibit his Islamic Religion. This claim, however, is without merit.

As previously discussed, DC-ADM 819 does not inhibit or interfere with any of Plaintiff's required religious practices, but merely places a restriction on providing separate MTOI services, as well as other secular services, due to budget and security considerations. However, such secular services restriction is not made without a reasonable accommodation of providing worships services for major faith groups, which represent the whole body of a particular faith group, such as Catholics, Jehovah's Witnesses, Jewish, Muslim, Native American and Protestants, without impermissibly promoting any specific religion. Thus the denial of separate services clearly falls short of fostering or endorsing one religious practice over another.

Likewise, Plaintiff's argument that the denial of separate services "compels [him] to convert to, practice and follow the Sunni" religion, (Doc. 7, complaint), is equally without merit. Although Plaintiff wishes to worship together with other MTOI or NOI members, he has not shown abandonment of a precept to receive a benefit. Moreover, although Plaintiff has been permitted and encouraged to worship with Orthodox Muslims, the record is devoid of any indication that Plaintiff has been compelled to "modify his religious behavior or beliefs." See Adkins v. Kaspar, 292 F.3d 559, 567, 569-570 n.37 (5th Cir. 2004), cert. denied, 545 U.S. 1104 (2005) (holding that a governmental action or regulation creates a substantial burden on religious exercise if it truly pressures the offender to significantly modify his religious behavior and greatly violates his religious beliefs). Thus the Court finds no support in the record for a violation of the Establishment Clause, nor any evidence to show government compulsion of religion, and summary judgment on these issues will be entered in favor the Defendants.

E. Equal Protection Clause

The Equal Protection Clause guarantees all citizens "equal protection of the laws,"meaning that similarly situated people must be treated the same. U.S. Const. amend. XIV. Generally, prison officials cannot discriminate against inmates of different religions. Cruz v. Beto, 405 U.S. 319 (1972) (per curiam). When an inmate asserts an equal protection claim based on the allegedly disparate treatment of different religious groups, the governing standard is whether the disparate treatment is "`reasonably related to legitimate penological interests.'" DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000). Marshall must therefore show that he was similarly situated to, and treated differently than, other inmates requesting separate religious services, and such disparate treatment was not reasonably related to legitimate penological interests.

DC-ADM 819 establishes that any inmate with concerns regarding accommodations of any particular faith group must follow the procedures set forth in that policy, which include completing a religious accommodation request form. Initially, the Court notes that Plaintiff's religious accommodation request was conducted in accordance with DC-ADM 819 and there is no record evidence to demonstrate that this review deviated from that applied to other inmates seeking the same religious accommodation. Plaintiff's affiliation with a particular faith group was not the reason for the denial of his request. Rather, the denial was based on available space, resources and security concerns. Moreover, it is undisputed that Plaintiff was able to pray or conduct religious rituals in his cell, correspond with and have priests, ministers or religious advisors visit him at the prison, possess religious books and materials, and other devotional items that are consistent with prison security policies. Thus, Marshall has failed to provide any competent summary judgment evidence that MTOI or NOI adherents are treated any differently than similarly situated faiths. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (stating that the Equal Protection clause does not require that all persons be treated alike, but rather that "all persons similarly situated should be treated alike.") Accordingly, summary judgment will be granted in favor of Defendants with respect to Plaintiff's Equal Protection claim.

V. Conclusion

Based on the foregoing, Defendant's motion for summary judgment will be granted and judgment will be entered in favor of Defendants and against Plaintiff. Based on the Court's resolution of the parties' cross motions for summary judgment, supra, Plaintiff's motion for enlargement of time to file dispositive motions, motion to take videotape depositions, and motion for an order to file a sur-reply, will be dismissed as moot. Plaintiff's motion to compel will be denied, as Defendants have responded to all of Plaintiff's discovery requests. (See Doc. 112, Defendants' brief in opposition to Plaintiff's motion to compel). Plaintiff's motion for leave to file an amended complaint will be denied for the reasons set forth in this Court's January 22, 2014 Memorandum and Order.

An appropriate order will follow.

*491 Appeal from United States District Court for the Middle District of Pennsylvania (D.C. No. 02-cv-00691), District Judge: Hon. A. Richard Caputo.

Elizabeth J. Goldstein [Argued], Camp Hill, PA, for Appellant.

J. Bart DeLone [Argued], Office of Attorney General of Pennsylvania, Harrisburg, PA, for Appellee.

*492 Before: AMBRO, JORDAN and ROTH, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

**1 Plaintiff Ron Scott appeals the District Court's order granting summary judgment in favor of defendants Jeffrey Beard, Raymond Sobina, and Kathy Flowers. We affirm.

BACKGROUND

Scott was a prisoner of the Commonwealth of Pennsylvania from 2000 to 2002. While incarcerated, he was disciplined for failure to comply with regulations governing the length of his hair. Scott claimed his religious beliefs prevented him from cutting his hair, but he did not provide prison officials with the documentation required to obtain a religious exemption to the prison's hair length policy.

After his release, Scott filed a pro se complaint seeking injunctive and monetary relief for violations of Pennsylvania state law, the Religious Land Use and Incarcerated Persons Act ("RLUIPA"), and his rights under the United States Constitution. Among others,FN1 Scott named as defendants Jeffrey Beard, the Pennsylvania Secretary of Corrections, Raymond Sobina, the Superintendent of the State Correctional Institution at Somerset, and Kathy Flowers, a correctional officer at the State Correctional Institution at Camp Hill. Scott purported to bring claims against Secretary Beard in his official capacity and against Superintendent Sobina and Officer Flowers in their individual capacities. Scott claimed that Secretary Beard, as the official ultimately responsible for the hair length policy, violated his rights under RLUIPA. He claimed that Superintendent Sobina violated his due process rights by denying his appeal of the hair length policy. Finally, he claimed that Officer Flowers violated his due process rights by coercing him into waiving a grievance on a matter unrelated to the hair length policy.

On the Commonwealth's motion for summary judgment, the District Court concluded that Scott had waived his state law and constitutional claims because he did not defend them in response to the Commonwealth's summary judgment motion. Because Scott had been released from prison, the District Court denied all claims for injunctive relief as moot. Finally, the District Court ruled that the defendants were entitled to qualified immunity on the RLUIPA claim for damages.

We exercise plenary review over a District Court's grant of summary judgment. United States ex rel. Quinn v. Omnicare, 382 F.3d 432, 436 (3d Cir.2004). Summary judgment is appropriate "if there is no genuine issue of material fact and the moving party is entitled to judgement as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

Scott argues that the defendants were not entitled to qualified immunity. However, we need not reach that issue to decide the case. Scott has not appealed the dismissal of his due process claims against Superintendent Sobina and Officer Flowers. Nor has he appealed the dismissal of his claim for injunctive relief under RLUIPA. The only claim before us is a RLUIPA claim for money damages against Secretary Beard in his official capacity. Because that claim is essentially leveled against Pennsylvania itself, it is *493 barred by the Eleventh Amendment. Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir.1981) (citing Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)).

**2 At oral argument, Scott's counsel urged that, in light of Scott's pro se status, his RLUIPA claim should be read as a claim against Secretary Beard in both his individual and his official capacity. Counsel further argued that a broad reading of the complaint reveals a RLUIPA claim against Superintendent Sobina in his individual capacity. Unfortunately for Scott, the complaint will not bear that construction. It is true that we read pro se complaints liberally, Zilich v. Lucht, 981 F.2d 694, 694 (3d Cir.1992), but that does not make such complaints endlessly malleable. Despite his pro se status, Scott clearly stated his claims against Superintendent Sobina as involving violations of due process, with no mention of RLUIPA. Likewise, Scott showed he knew how to name people in their individual or official capacities, as he thought best. Superintendent Sobina and Officer Flowers were sued in their individual capacities while Secretary Beard was sued in his official capacity. Therefore, it is apparent from Scott's pleadings that he knew how to make a claim against Secretary Beard in his individual capacity and chose not to do so.

In short, since the only viable appeals of the summary judgment is on Scott's RLUIPA claim for damages against Secretary Beard in his official capacity and that claim is barred by sovereign immunity, we affirm.

Ronald Pruden, Huntingdon, PA, pro se.

MEMORANDUM

A. RICHARD CAPUTO, United States District Judge.

I. Introduction

*1 Plaintiff, Ronald Pruden, an inmate at the Smithfield State Correctional Institution ("SCI") at Huntingdon, Pennsylvania, commenced this pro se action by filing a civil rights complaint pursuant to the provisions of 42 U.S.C. § 1983. Defendants are various officials at Schuylkill County Prison, SCI-Camp Hill, SCI-Cresson, SCI-Houtzdale, and SCI-Huntingdon. Plaintiff, who seeks leave to proceed in forma pauperis, claims that Defendants have denied adequate medical care, assaulted him, issued false misconducts and "false transfers," and entered slanderous information in his prison file. (Doc. 1 at 2-3.) Plaintiff seeks injunctive relief, and he is asking the Court to transfer him and direct Defendants to provide adequate medical care. Specifically, he claims that he needs to be "put in prison of Juge (sic) choice . . . [and] medications should bin (sic) prvied (sic)." (Id. at 4.) For the following reasons, Plaintiffs complaint will be dismissed without prejudice.

II. Discussion

It is well recognized that the adjudicatory power of a federal court depends upon the continuing existence of a live and acute controversy. Steffel v. Thompson, 218 F.3d 232, 240 (3d Cir.2000). The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Id. "Past exposure to illegal conduct is insufficient to sustain a present case or controversy regarding injunctive relief if unaccompanied by continuing, present adverse effects." Rosenberg v. Meese, 622 F.Supp. 1451, 1462 (S.D.N.Y.1985). Furthermore, "[a]bsent class certification, an inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985) (citation omitted); see also Carter v. Thompson, 808 F.Supp. 1548, 1555 (M.D.Fla.1992).

As previously noted, Plaintiff is seeking injunctive relief, and he is challenging conduct occurring at various state correctional institutions. However, Plaintiff does not raise any issues of misconduct at SCI-Smithfield, his current place of incarceration. Since he is no longer housed in any of the allegedly offending institutions, he has received his requested relief, i.e. relief from the allegedly substandard conditions and transfer. Consequently, since Plaintiff is not suffering any apparent continuing adverse effects as a result of his prior confinement at Schuylkill County Prison, SCI-Camp Hill, SCI-Cresson, SCI-Houtzdale, and SCI-Huntingdon, his requests for injunctive relief are moot under the standards set forth in Rosenberg and Wahl, and the case will be dismissed. An appropriate Order follows.

ORDER

NOW, THEREFORE, THIS 6th DAY OF FEBRUARY, 2007, in accordance with the foregoing Memorandum, IT IS HEREBY ORDERED THAT:

1. Plaintiff's motions for leave to proceed in forma pauperis (Does. 2 and 7) are construed as motions to proceed without prepayment of fees and costs, and the motions are GRANTED.

*2 2. Plaintiff's complaint (Doc. 1) is DISMISSED as moot.

3. The Clerk of Court shall close this case.

4. Any appeal taken from this order will be deemed frivolous, without probable cause, and not taken in good faith.

Eric Wayne Davis, Lancaster, CA, pro se.

Adam Logan Marcotte, Rene L. Lucaric, CAAG-Office of Attorney General of California, Los Angeles, CA, for Defendants.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CONSUELO B. MARSHALL, Senior District Judge.

*1 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.

IT IS ADJUDGED that Judgment be entered (that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting summary judgment in favor of all Defendants; and (3) directing that Judgment be entered dismissing this action with prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

OSWALD PARADA, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, Senior United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

I.

INTRODUCTION

On October 21, 2005, Eric Wayne Davis ("Plaintiff") filed a First Amended Complaint ("FAC") alleging civil rights violations pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at California State Prison-Lancaster ("CSPL") and is a member of the Nation of Islam ("NOI"). The named Defendants remaining in the action are Lynn Harrison (CSPL Community Resource Manager), Wahab Omeira (CSPL Muslim Chaplain), and M. Monteiro (former Warden of CSPL) (collectively "Defendants"). The FAC alleges that in December 2002, January 2003, and March 2004, Defendants violated Plaintiff's rights under the Free Exercise Clause of the First Amendment to the U.S. Constitution and under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc. (FAC at 1-7 and attached exhibits.) The FAC requests injunctive relief as well as compensatory and punitive damages. (Id. at 7.)

Specifically, Plaintiff alleges that he is a member of the NOI, an Islamic sect that holds tenets and beliefs distinct from those held by the four major Islamic sects.FN1 (Id. at 4.) Plaintiff alleges that NOI members were not provided separate chapel access apart from those in the Islamic program provided to all Muslims by Chaplain Omeira. (Id. at 5-6.) Plaintiff also contends that his requests to use the prison chapel for religious services for the NOI members were denied because Defendant Omeira wrongly concluded that the Islamic religious services already being provided at the prison were adequate to serve all who practiced the basic tenets of Islam, including the NOI. (FAC at 4.)

On February 6, 2008, Defendants filed a Motion for Summary Judgment. Along with the Motion for Summary Judgment, Defendants filed notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir.1998). Defendants contend they are entitled to summary judgment for the following reasons:

(MSJ at 2.)

On May 7, 2008, Plaintiff filed his "Memorandum of Points and Authorities in Opposition to Defendants['] Motion for Summary Judgment" ("Opposition"). On May 12, 2008, Defendants filed their "Memorandum of Points and Authorities in Reply to Plaintiff's Opposition" ("Reply"). Thus, this matter now is ready for decision.

II.

STANDARD OF REVIEW

The Court must render summary judgment if the papers show that "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. Inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). At the summary judgment stage, a judge's function is not to weigh the evidence or determine the truth of the matter but, rather, to determine whether there is any genuine issue for trial. Anderson, 477 U.S. at 249; Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999) (en banc).

The moving party bears the initial burden of informing the Court of the basis of its motion and identifying evidence of record it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party satisfies its initial burden, Rule 56(e) requires the party opposing the motion to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587. Summary judgment is appropriate if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Moreover, summary judgment cannot be avoided by relying solely on conclusory allegations unsupported by factual data or in a pleading. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).

III.

UNDISPUTED FACTS

*3 Unless otherwise noted, the Court finds the following facts to be undisputed ("Undisputed Facts"):

1. Plaintiff is a follower of the NOI and incarcerated at CSPL (FAC at 1);

2. Plaintiff alleges that NOI members were not provided separate chapel access apart from those in the Islamic Program provided to all Muslims by Chaplin Omeira (id. at 4);

3. Plaintiff alleges that NOI clergy were not allowed to enter the institution (id. at 4-6);

4. Plaintiff seeks injunctive relief which would allow NOI members to access and use the chapel for services and classes apart from the generic Muslim services already being provided to all sects of Muslims at the prison, and would allow NOI clergy to enter the prison to conduct services (id. at 7);

5. Defendant Abdul-Wahab Omeira is employed as the Muslim Chaplain at CSPL. He has served in that capacity since May 3, 1993. He grew up as a Muslim and attended the Ansar Institution that was established by the Grand Mufti of Syria. The Grand Mufti is the highest religious authority in any Muslim country (Def't's Statement of Undisputed Facts ("SUF") Ex. 5 ("Omeira Decl.") ¶ 1);

6. Defendant Harrison was formerly employed by the California Department of Corrections and Rehabilitation ("CDCR") as the Community Resources Manager at CSPL between January 4, 1993, and April 16, 2004. She served in that capacity in or about 2003 and 2004 when NOI inmates, including Plaintiff, requested that CSPL staff set aside time and space in the Facility A chapel for separate NOI services, apart from the services being provided to all Muslim sects (SUF Ex. 6 ("Harrison Decl.") ¶ 1);

7. Defendant Harrison managed all religious programs throughout CSPL. Those duties including supervising five paid Chaplains, each for a different faith, and setting chapel schedules in the five housing facilities, four Level IV facilities, and one Minimum Support Facility (id. ¶ 2);

8. Islam has several sects including Sunni, Shia, Ishmaeli, Ahamadi, and NOI. CSPL houses inmates who belong to the Sunni, Shia, and NOI groups (Omeira Decl. ¶ 2);

9. Chaplain Omeira does not conduct separate services or classes for Sunnis, Shias, or any other Muslim group (id.);

10. At the time the requests were made in 2003 and 2004, CSPL provided space and time (and in most cases, community volunteers) in the chapels for Buddhist, Catholic, Christian Science, Protestant (in English and Spanish), Jewish, Jehovah's Witness, Mormon, Muslim, Native American, and Wiccan services. In addition, inmates work, attend school, eat, and attend to other needs. Religious services must be scheduled around these activities. Other individual inmates practicing Satanism, Yahweh, and Kabala also could not be accommodated with chapel time, but were allowed literature and religious artifacts (Harrison Decl. ¶ 3);

11. Between July of 2002 to January of 2005, Defendant Monteiro was employed as the Chief Deputy Warden at CSPL. He has a twenty-six year background with the CDCR which encompasses experience working in all custody levels of the inmate population, as well as experience in many levels of prison management (SUF Ex. 7 ("Monteiro Decl.") ¶¶ 1-2);

*4 12. On March 4, 2004, Plaintiff filed an inmate appeal log at the second level of review, requesting that he and other NOI inmates be allowed access and use of the chapel and necessary materials to hold services and classes to teach and practice his faith (id. ¶ 3; SUF Ex. 4);

13. On May 24, 2004, Defendant Monteiro denied the appeal (id. ¶ 8, Attachment A; SUF Ex. 4);

14. Plaintiff appealed the decision to the third level of review which was denied (FAC Attached Exhibit "Director's Level Appeal Decision; SUF Ex. 4);

15. Despite the lack of assigned chapel space for NOI services, NOI members can pray in prison and do not need a minister's help to do so (SUF Ex. 9 ("Haggins Depo.") at 47-48; Opp'n at 13-14);

16. Defendant Omeira never prevented Plaintiff from receiving NOI newspapers, books, or sound recordings. Inmates at CSPL can receive any NOI literature. Plaintiff can also correspond with any NOI minister (Omeira Decl. ¶ 9; Harrison Decl. ¶ 6; SUF Ex. 8 ("Davis Depo.") at 72; Haggins Depo. at 26);

17. At CSPL, there is an NOI inmate minister who gives lectures and sermons at the weekly services conducted on the prison yard, and who gives a speech in the prison yard commemorating each Savior's Day. It used to be Minister Bess, but now it is a different inmate (Davis Depo. at 46; Haggins Depo. at 29-30, 34);

18. During all relevant times in this lawsuit there was no policy or practice at CSPL that would prevent an NOI minister from visiting with an individual inmate during visiting hours (Harrison Decl. ¶ 6);

19. Plaintiff attends the generic Jumah Islamic service most Fridays but does not sign in because he is concerned how it might be used in this lawsuit (Davis Depo. at 76-77);

20. Plaintiff and other NOI members get and sit in a chair when they attend the generic Islamic services (Davis Depo. at 77-78);

21. Plaintiff previously conducted the generic Islamic services offered to all Muslims while he was on B and C yard without compromising his beliefs (id. at 64, 66-67);

22. The NOI followers were able to function and practice without problem within the customs of the Eastern beliefs while Plaintiff was on B yard (id. at 68);

23. Defendant Harrison retired from CDCR in June 2005 (Harrison Decl. ¶ 6); Defendant Monteiro stopped working at CSPL as the Chief Deputy Warden in January 2005 (Monteiro Decl. ¶ 2).

IV.

DISCUSSION

A. Failure to State a First Amendment Free Exercise Claim.

1. Plaintiff has Failed to Demonstrate His First Amendment Rights Have Been Impinged.

Plaintiff alleges the Defendants violated his First Amendment right to free exercise of his religion. Defendants submit that Plaintiff must show that the governmental action burdened Plaintiff's practice of his religion "by preventing him or her from engaging in conduct or having a religious experience which the faith mandates." (MSJ at 15 (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987) aff'd sub nom. Hernandez v. C.I.R., 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)), 16.) The Ninth Circuit has since rejected the portion of that holding that requires the conduct be mandated by the prisoner's faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008). Instead, "it is the sincerity of his belief rather than its centrality that is relevant to the free exercise inquiry." Id. at 884.

*5 Regardless of which standard is considered, however, Plaintiff's First Amendment claim fails because he has failed to show that his ability to pursue his NOI beliefs were burdened by the failure to provide chapel time specific to the NOI followers, or to allow NOI ministers into the prison to conduct services. In fact, the Undisputed Facts show that: Plaintiff and the NOI members are allowed to attend generic services designed to encompass the beliefs common to all Muslims; there is no rule prohibiting visitation by NOI ministers during visiting hours; Plaintiff and NOI members can pray in prison and do not need a minister's help to do so; Plaintiff and other NOI members are not prevented from receiving NOI newspapers, books, sound recordings, or other NOI literature; there is an NOI inmate minister who gives lectures and sermons at weekly services conducted on the prison yard, and who gives a speech in the prison yard commemorating each Savior's Day; and when NOI members attend generic Islamic services they are able to sit in a chair. (Undisputed Facts Nos. 15-22.)

Based on the foregoing, the Court finds that Plaintiff has not alleged a Constitutional violation of his Free Exercise rights. Thus, Defendants are entitled to summary judgment on Plaintiff's First Amendment claim.

2. Even If Plaintiff's First Amendment Rights Were Impinged, There Has Been No Constitutional Violation.

"When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Salley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Supreme Court in Turner set forth four factors to balance in determining whether the challenged conduct is reasonably related to legitimate penological interests:

Id. at 89-90.

Because Plaintiff has not provided any admissible evidence demonstrating the infringement of his Constitutional rights, this Court need not address the Turner factors. However, even assuming the Free Exercise Clause somehow has been implicated, after balancing the four Turner factors, Plaintiff's claim still fails.

The first Turner factor requires the Court to determine whether there was a legitimate penological interest that is rationally related to the regulation and, specifically, Defendants' failure to provide a specific time slot for NOI services in the chapel. Defendants submit their policy was reasonably related to the penological interest of prison security. They assert that allowing separate NOI services would jeopardize CSPL's safety and security because the NOI followers espouse a racist theology, specifically instructing that white people are the devil and responsible for originating all evil; racial supremacy and hatred between the black and white race; and the destruction of white Jews and Christians. (MSJ at 13-14.) They also assert that in the "few years preceding NOI chapel requests in 2003 and 2004," there were numerous incidents of violence and inmate attacks on staff. (Id. at 14.) Additionally, they state that authorizing separate chapel time for any group so that they could teach that God's messenger has authorized racial hatred and violence toward different races would have put correctional officers' and other inmates' lives in danger and set a precedent for other race supremecist groups to demand equal access to run their meetings. (Id. at 14, 18.) They also allege that allowing NOI ministers into the prison would seriously jeopardize the safety and security of CSPL. Id. Plaintiff contends that the NOI pose no threat to prison security and, in fact, have been meeting every other Wednesday in a time slot given to them informally by the Wiccan group, without incident. (Opp'n at 11.)

*6 Certainly security is a legitimate penological interest. See Overton v. Bazzetta, 539 U.S. 126, 133, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003); Washington v. Harper, 494 U.S. 210, 225, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); see also Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ("[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves."). Defendants attest that giving the NOI a specific time in the chapel schedule could lead to disruption and violence among the inmates and officers, especially during the time period in question, when racial tensions were high. (Monteiro Decl. ¶ 6.) The Court finds that the avoidance of disruption and violence in the prison serve a legitimate penological interest, and that this interest was rationally related to Defendants' policy of not providing specific chapel time for NOI services. Conversely, the fact that there is no indication that allowing the NOI their own informal chapel time every other Wednesday has led to any violence or disruption, weighs in Plaintiff's favor. (Id.) Overall, this factor is balanced fairly evenly between Plaintiff and the Defendants.

The second Turner factor requires the Court to consider whether Plaintiff "has `alternative means by which he can practice his religion' or is `denied all means of religious expression.'" Shakur, 514 F.3d at 886 (citation omitted). It is undisputed that Plaintiff had numerous other means of practicing his religion. For instance, Plaintiff can pray in prison and does not need a minister's help to do so; Plaintiff is not prevented from receiving NOI literature, newspapers, or sound recordings; inmates are permitted to correspond with any NOI minister and NOI ministers are permitted during visiting hours; there is an NOI minister who gives lectures and sermons at the weekly services conducted on the prison yard, and who gives a speech in the prison yard commemorating each Savior's Day; Plaintiff often attends the generic Islamic service on Fridays; NOI members are permitted to observe Ramadan with the other Muslims (Opp'n at 8, Ex. C); moreover, when Plaintiff was on B and C yards he himself conducted the generic Islamic services without compromising his beliefs. (Undisputed Facts Nos. 15-22.) Therefore, this factor weighs in favor of Defendants.

The third Turner factor is the "impact [the] accommodation . . . will have on guards and other inmates, and on the allocation of prison resources generally." Id. In this case, California Code of Regulations, Title 15, section 3210(a) states in relevant part; "When feasible, separate space for services of the faith groups represented by a substantial number of inmates shall be provided. However in some facilities, . . . it shall be necessary for the various faith groups to share such space as is available for religious services." When the requests for separate NOI services were made in 2003 and 2004, CSPL provided space and time (and in many cases, community volunteers) in the chapels for Buddhist, Catholic, Christian Science, Protestant (in English and Spanish), Jewish, Jehovah's Witness, Mormon, Muslim, Native American, and Wiccan services. (MSJ at 16.) As discussed by Defendants, religious services must also be scheduled around working, attending school, eating, and attending to other needs. (Id.) At the time of the requests, it was impossible to find time and space to accommodate the NOI services, and other inmates practicing Satanism, Yahweh, and Kabala also could not be accommodated, but also were allowed literature and religious artifacts. (Id. 16-17.) Defendants claim there is a logical connection between the section 3210(a) requirement that in some instances various religious groups will have to share the available space and their decision not to provide separate space and time for the NOI, especially because during this time period racial tensions were high. (Monteiro Decl. ¶ 6.) The NOI members were allowed to share space and time in the chapel with other Muslim sects through the common Islamic program tailored to meet the needs of all Muslims. (Id. at 17.) This Turner factor weighs in Defendants' favor as well.

*7 The fourth Turner factor requires the Court "to consider whether `there are ready alternatives to the prison's current policy that would accommodate [Plaintiff] at de minimis cost to the prison.' . . . The `existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an `exaggerated response' to prison concerns.'" Shakur 514 F.3d at 887 (internal citations omitted). Defendants' policy already permits alternatives, such as attendance at generic Muslim services, the ability to conduct services in the yard, access to NOI literature, the ability to correspond with NOI ministers, and praying outside the chapel. Further accommodation is not necessary to ensure Plaintiff's right to Free Exercise is not violated.

Balancing all of the Turner factors, therefore, weighs in favor of Defendants. Thus, Defendants are entitled to summary judgment on this claim.

B. Failure to State a Claim Under RLUIPA.

Plaintiff alleges the Defendants violated RLUIPA, which protects an inmate's ability to exercise his religion. It states:

42 U.S.C. § 2000cc-1(a).

Under RLUIPA, a plaintiff has the initial "burden of persuasion on whether the law . . . or government practice that is challenged . . . substantially burdens the plaintiff's exercise of religion." Id. § 2000cc-2(b). If a plaintiff sustains that burden, the government then has the burden of showing that the challenged conduct is the "least restrictive alternative to achieve" a compelling government interest. Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir.2008). Courts, however, should 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.'" Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (quoting S.Rep. No. 103-111, at 10 (1993)).FN2

RLUIPA mandates a stricter standard of review for prison regulations that burden the free exercise of religion than the reasonableness standard outlined above under Turner. Shakur, 514 F.3d at 888. The enhanced standards set forth in RLUIPA "disallows policies that impose `a substantial burden on . . . religious exercise' unless the burden `furthers "a compelling governmental interest," and does so by "the least restrictive means."'" Alvarez, 518 F.3d at 1156 (quoting Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir.2005) (quoting 42 U.S.C. § 2000cc-1(a))).

*8 Defendants note that Plaintiff must first establish that Defendants "placed a `substantial burden' on his ability to practice religion." (MSJ at 19.) The Ninth Circuit has established that a substantial burden is one that imposes a significantly great restriction or onus upon the exercise of religion. Warsoldier, 418 F.3d at 995 (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004)). The Supreme Court has found a substantial burden where the state denies an important benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs. Id.

Defendants contend that Plaintiff has failed to provide evidence that his exercise of religion was substantially burdened. (MSJ at 19.) For the same reasons discussed by the Court in connection with Plaintiff's Free Exercise claims, the undisputed facts show that Plaintiff's exercise of religion was not substantially burdened: he was able to pray at any time without a minister's help; he could receive literature, books, newspapers, and sound recordings from the NOI; he could correspond with any NOI minister; there is an NOI minister who gives lectures and sermons at weekly services conducted on the prison yard, and who gives a speech in the prison yard commemorating each Savior's Day; an NOI minister may visit with individual inmates during visiting hours; Plaintiff attended the generic Islamic services tailored for all Muslims; and NOI members are permitted to sit in a chair when attending those services. (Undisputed Facts Nos. 15-20.) Moreover, Plaintiff agreed that he was able to conduct generic Islamic services offered to all Muslims when he was on the B and C yards, without compromising his beliefs. (Id. Nos. 21-22.) The Court agrees with Defendants that Plaintiff has failed to show his free exercise of religion was substantially burdened.

Even if Plaintiff made the requisite showing of a substantial burden, the Defendants have shown, as discussed above, that their actions furthered a compelling governmental interest of promoting prison security. Moreover, Defendants employed the least restrictive means of achieving that interest by allowing NOI members to attend generic Islamic services because there was no other way to accommodate the NOI request for time and space with the limited resources available.

Based on the foregoing, this Court finds that Plaintiff's right to exercise his religion freely was not substantially burdened. Thus, Defendants are entitled to summary judgment on Plaintiff's RLUIPA claim.

C. The Court Declines to Consider Defendants' Remaining Arguments.

Because the Court finds that Defendants are entitled to summary judgment on Plaintiff's Free Exercise and RLUIPA claims, it declines to consider Defendants' other arguments: (1) whether the doctrine of collateral estoppel prevents Plaintiff from pursuing this action based on the Court's judgment in the case of Haggins v. Alameida, et al., Case No. 04-2819-AHS (RC);FN3 (2) whether Defendant Omeira is a state actor for purposes of this lawsuit; (3) whether Defendants are in a position to provide injunctive relief;FN4 and (4) whether Defendants are entitled to qualified immunity. Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th Cir.2002).

V.

RECOMMENDATION

*9 IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting summary judgment in favor of all Defendants; and (3) directing that Judgment be entered dismissing this action with prejudice. C.D.Cal.,2009.

Samuel Lee Jones, Tennessee Colony, TX, pro se.

M. Carol Gardner, Office of the Attorney General, Austin, TX, for Defendants.

MEMORANDUM AND ORDER

EWING WERLEIN, JR., United States District Judge.

*1 Plaintiff Samuel Jones, a state inmate proceeding pro se and in forma pauperis, filed this civil rights action under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), codified at 42 U.S.C. § 2000cc-1, et seq. (Docket Entries Nos. 1, 45, 46). Defendants have filed a motion for summary judgment and a supplemental motion for summary judgment (Docket Entries Nos. 40, 60), and Plaintiff has filed responses to each motion. (Docket Entries Nos. 53, 55, 56, 66, 70). Plaintiff has also filed two motions for summary judgment. (Docket Entries Nos. 55, 66). He further seeks to file a supplemental motion for summary judgment. (Docket Entries Nos. 74, 75). For the reasons that follow, the Court will grant, in part, and deny, in part, the motions for summary judgment.

I. Background and Pleadings

Plaintiff is a member of the Nation of Islam ("NOI"). (Docket Entry No. 1). In 33 claims, Plaintiff alleges that Defendants Akbar Shabazz — the Director of the Islamic Chaplains at Texas Department of Criminal Justice — Correctional Institutions Division ("TDCJ-CID"), Bill Pierce — the Director of the Chaplaincy Department, Richard Lopez — the Regional Program Administrator, Douglas Dretke — the Director of TDCJ-CID, and Chaplain Charles Kiser, violated his rights under the Free Exercise Clause of the First Amendment, the RLUIPA, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment with respect to religious videotapes, books, services, diet, prayer oil, the hiring of chaplains, his religious name, strip searches inconsistent with religion, and hostility toward his religious sect. (Docket Entries Nos. 1, 45, 46). Plaintiff further alleges that Defendants conspired to deprive him of his rights and retaliated against him because he sought to enforce such rights through the inmate grievance system. (Id.)

Defendants move for summary judgment on grounds that Plaintiff is barred from raising allegations about violations of a consent decree and that he has not established a claim under the Equal Protection Clause, First Amendment, or RLUIPA. (Docket Entries Nos. 40, 60). Defendants also seek summary judgment on grounds that Plaintiff fails to state valid retaliation and conspiracy claims. (Docket Entry No. 60).

Plaintiff moves for summary judgment on the claims alleged in his prior pleadings. (Docket Entries Nos. 55-2, 66).

II. Discussion

A party seeking summary judgment bears the burden of informing the district court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant carries this burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Claims Regarding Religious Expression

*2 Plaintiff alleges that TDCJ officials have violated his First Amendment right to the free exercise of his faith and his statutory rights under RLUIPA, and engaged in religious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. To avoid redundancy, the Court will state the law applicable to Plaintiff's claims and examine each claim under the applicable law.FN1 All claims challenging the Brown v. Beto, Civil Action No. H-69-CV-74 (S.D.Tex.1977) (O'Conner, J.) consent decree will be examined in a later section.

1. Legal Standards

a. First Amendment

The First Amendment requires that a prisoner must be allowed reasonable opportunities to practice his religion. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). A prison regulation that impinges on an inmate's fundamental right is valid if it is reasonably related to legitimate penological interests. Turner v. Salley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). To determine whether a challenged regulation is valid, the Court considers four factors: (1) whether a "valid, rational connection [exists] between the prison regulation and the legitimate governmental interest put forward to justify it," id. at 2262, (2) whether there are alternative means of exercising the rights that remain open to the inmates; (3) the impact that accommodation of the asserted constitutional right will have on other inmates, guards, and prison resources; and (4) the presence or absence of ready alternatives that fully accommodate the prisoner's rights at de minimus cost to valid penological interests. O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2405-07, 96 L.Ed.2d 282 (1987). The court accords prison officials broad discretion and deference in making and administering policies that are needed to maintain institutional order. Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 1883, 104 L.Ed.2d 459 (1989).

b. Equal Protection

"The Equal Protection Clause directs that `all persons similarly circumstanced shall be treated alike.'" Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982) (citation omitted). However, things that are different in fact or opinion do not have to be treated as if there were no difference. Id. To succeed on an equal protection challenge, a plaintiff must prove purposeful discrimination resulting in a discriminatory effect among persons similarly situated. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987). A "discriminatory purpose" implies that a particular course of action was selected "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). A plaintiff must prove specific acts that support a claim of discrimination; his personal belief that he was subject to such discrimination is insufficient to prove an equal protection violation. Id. "To maintain his equal protection claim independently of his free exercise claim, [a plaintiff] must allege and prove that he received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent." Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir.2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 3353-54, 87 L.Ed.2d 313 (1985)).

c. Religious Land Use & Institutionalized Persons Act

*3 The RLUIPA provides that the government shall not "impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). To support a claim under the RLUIPA, a plaintiff must produce prima facie evidence that defendants substantially burdened his exercise of religion; he also bears the burden of persuasion on whether the policies and regulations substantially burden the same. 42 U.S.C. § 2000cc-2(b). Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir.2004). A "religious exercise" for purposes of the RLUIPA includes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).

A governmental action or regulation creates a "substantial burden" on a religious exercise if it truly pressures the offender significantly to modify his religious behavior and significantly violates his religious beliefs. Adkins, 393 F.3d at 569-70 & n. 37. Specifically, the Fifth Circuit has stated the following:

Id., at 570.

The accommodation of religious observances is not elevated over a prison's need to maintain order and safety. Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 2122-23, 161 L.Ed.2d 1020 (2005). Although the RLUIPA imposes the strict scrutiny standard on prisons, the courts are to apply that 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." Id., 125 S.Ct. at 2123 (citation omitted). The Supreme Court specifically noted that "[l]awmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions." Id. (indicating that RLUIPA will be applied "in an appropriately balanced way, with particular sensitivity to security concerns"). The RLUIPA does not elevate accommodation of religious observances over a prison's need to maintain order, security, and safety, consistent with consideration of costs and limited resources. A prison is free to resist requests for religious accommodations that either impose unjustified burdens on other prisoners, or jeopardize the effective functioning of a prison. Id. at 2125.

2. Application to Claims

a. Access to Religious Material

*4 In claims 1, 3, 4, 9, 14, 16, 19, 23, 24, and 25, Plaintiff complains that TDCJ chaplains and administrative officials have denied him and NOI inmates access to religious videotapes and DVDs, books, newspapers, and prayer oil. (Docket Entries Nos. 1-2, 46).

(i) Literature

In claims 16, 19, and 23, Plaintiff challenges TDCJ's policy regarding access to religious material as applied to him because prison officials have denied him access to the materials he desires under the pretext that they are inflammatory. (Docket Entry No. 1-2).

TDCJ policy provides that inmates may receive religious material, subject to receipt and review in accordance with TDCJ Correspondence Rules ("Rules"). (Docket Entry No. 40). Such Rules provide that "[a]ll publications are subject to inspection by the MSCP (Mail Systems Coordinators Panel)." (Id.) With respect to content inspection of publications, the Rules authorize MSCP staff to reject a publication for content if "[i]t contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes or riots[.]" (Id., Ex. C, p. 37).

In claim 16, Plaintiff complains that TDCJ has engaged in religious censorship by denying his request for two secular books, Without Sanctuary and From Niggas to Gods, on the ground that they were inflammatory. (Docket Entry No. 1-2 and Ex. 12). Plaintiff notes in Step 1 Grievance No. 2005200545, but not in his pleadings, that his religion mandates that in addition to studying Islam, NOI adherents must also study "all secular knowledge." (Id., Ex. 12). He argues, "So, in censoring and denying us to receive `Without Sanctuary,' and `From Niggas to Gods,' TDCJ-CID is infringing upon the constitutional rights" of NOI adherents freely to practice their religion. (Id.) Plaintiff, however, admits that the books are secular and that the book, Without Sanctuary, contains photographs of lynchings. (Docket Entries Nos. 1-2, Ex. 12; 40-6, pp. 63-64). At least one other court has determined that the photographs in Without Sanctuary: Lynching Photography in America are inflammatory. See generally Williams v. New York City Housing Authority, 154 F.Supp.2d 820, 824-24 (S.D.N.Y., 2001); see also Borzych v. Frank, 439 F.3d 388, 390 (7th Cir.2006) (holding denial of violent books as compelling state interest and the least restrictive means under RLUIPA).

Because the books are secular, Plaintiff has not shown purposeful religious discrimination by TDCJ in its application of the publications policy; therefore, Defendants are entitled to summary judgment on an equal protection claim. Likewise, Plaintiff has not shown that the denial of the two books pursuant to the publications policy constituted religious censorship in violation of the First Amendment. The books constitute a part of the large body of "all secular knowledge," to which Plaintiff most certainly has considerable access through other publications. Although Plaintiff and other inmates state by declaration that the books are mandated by the NOI as required reading (Docket Entry No. 55-2, Ex. 64), an NOI publication, also attached to his response, shows that Without Sanctuary is recommended reading, and not mandated reading. (Docket Entry No. 55-3, p. 33). The NOI publication does not mention From Niggas to Gods in either the mandatory or recommended reading list. (Id.) Therefore, Plaintiff fails to show that TDCJ's denial of his request for these secular books, especially in light of other accessible reading material, in any way materially burdens the exercise of his faith in violation of RLUIPA. Accordingly, Defendants are entitled to summary judgment on claim 16.

*5 In claim 19, Plaintiff complains that he has been unjustifiably denied receipt of the NOI religious newspaper, The Final Call. (Docket Entry No. 1-2). Plaintiff's exhibit shows that the newspaper was temporarily removed from the approved publications list but after further review, it was returned to the approved list. (Docket Entries Nos. 1-15, p. 15; 40-6, p. 18). Plaintiff, therefore, fails to show a deprivation giving rise to a First Amendment, RLUIPA, or Equal Protection claim that would entitle him to injunctive or declaratory relief. Accordingly, Defendants are entitled to summary judgment on claim 19.

In claim 23, Plaintiff complains that TDCJ and Dretke have denied NOI adherents religious books written by Elijah Muhammad, the founder of the NOI, specifically, Message to the Black Man, Our Savior Has Arrived, How to Eat to Live, and Fall of America. (Docket Entry No. 1-2). A response to Step 2 Grievance No. 2006089892 reflects that per the Offender Correspondence Policy 3.91, which relates to racist remarks, the Director's Review Committee denied the books, Our Savior Has Arrived on January 22, 2004, and the Fall of America on May 4, 1993. (Docket Entry No. 46-2, Ex. 27). The response further shows that Message to the Black Man was approved and made available to inmates. (Id.) How to Eat to Live had not been reviewed as of April 11, 2006. (Id.)

Plaintiff claims the books are essential and mandatory for NOI adherents to read and study. (Docket Entry No. 55, p. 28). Plaintiff further claims that the books are religious, are not racist or inflammatory, and do not advocate violence. (Id.) Plaintiff maintains the books had previously been approved for inmates, but a 2005 policy modification banned the books. (Id.)

The summary judgment record, however, reflects that TDCJ inmates consistently receive and have access to Message to the Black Man and How to Eat to Live and, in addition, also have access to another of Elijah Mohammad's books, Mohammad Speaks. (Docket Entry No. 40-10, p. 8, Ex. H). Plaintiff presents no evidence to contravene Defendant's summary judgment evidence. Because Plaintiff fails to show a deprivation with respect to How to Eat to Live and Message to the Black Man, he fails to state a First Amendment, RLUIPA, or Equal Protection claim with respect to these two publications that would give rise to injunctive or declaratory relief.

Plaintiff has provided the Court with copies of Our Savior Has Arrived (Docket Entry No. 56, Ex. 61) and Fall of America (id., Ex. 62) through another inmate at the Clements Unit of TDCJ-CID via the United States Postal Service.FN2 The Court has examined both books and finds that the books contain material that reek with racial hatred and hostility directed at the "white race," and religious bigotry directed at Jews and Christians. Implied threats of death (e.g., "should not [white Christians and Jews] be destroyed . . .?" Our Savior Has Arrived, at 76) and other inflammatory passages that may well incite racial and religious conflicts and violence, are found in both books.

*6 TDCJ's policy is to prohibit communication of information designed to achieve the breakdown of prisons through offender disruption,FN3 and applies to any materials that may provoke offender disruption, regardless of its sponsor. Plaintiff has failed to raise a material fact question that prison officials purposefully discriminated against NOI adherents and Plaintiff by denying them access to either of these books that contravene the policy. Likewise, the Court finds that Plaintiff has failed to show that his First Amendment right to exercise his faith has been violated by the denial of access to these books. (Oddly, as observed in footnote 2, Plaintiff and his fellow NOI adherents evidently had access to both books.) The record also shows that Plaintiff and NOI adherents have alternative means of expressing the NOI faith outside the study of these two books. The record further reflects the detrimental impact such racially divisive literature may have on other non Muslim and non Black inmates, guards, and the prison resources necessary to maintain security. (Docket Entry No. 40-7, Ex. E).

Plaintiff also fails to demonstrate a prima facie claim that denial of access to Our Savior Has Arrived and Fall of America substantially burdens the exercise of his faith. The record does not show that his inability readily to access these books has pressured him or other NOI adherents significantly to modify their religious behavior or that such denial significantly violates his religious beliefs. The Court accords prison officials broad discretion and deference in making and administering policies that are needed to maintain institutional security with respect to the MSPC's rejection of both books on racial issues. Accordingly, Plaintiff fails to state a First Amendment, RLUIPA, or Equal Protection claim with respect to access to Fall of America and Our Savior Has Arrived. Defendants are entitled to summary judgment on claim 23.

(ii) Videotapes

In claim 9, Plaintiff challenges TDCJ's policy that prohibits inmates from withdrawing money from their prisoner trust fund account to purchase religious videotapes. (Docket Entry No. 1-2). Plaintiff contends that prisoners are allowed to use their prison account money to purchase other religious material such as religious books, newspapers, prayer rugs, but not videotapes. (Id.)

Defendants' summary judgment evidence shows that TDCJ policy prohibits inmates from owning videotapes because such items can be used to make weapons. (Docket Entry No. 40-10, p. 8; No. 60-4, pp. 3-4). Inmates, however, may purchase these items and donate them to the Chaplaincy Program so that they and other inmates can view the videotapes. (Id.) The TDCJ prohibition is based on security reasons without regard to religious content.FN4 Moreover, the fact that Plaintiff cannot personally possess videotapes does not by itself prevent him from viewing religious videotapes. It follows that Plaintiff has not raised a valid claim that the challenged TDCJ policy regarding the purchase of videotapes for personal possession is not reasonably related to legitimate penological interests, that it constitutes a burden on the free exercise of his religion under the RLUIPA, or that it is discriminatory. Defendants are entitled to summary judgment on claim 9.

*7 In claims 1, 3, and 4, Plaintiff complains that TDCJ staff has acted or failed to act in such a manner as to deprive him and other NOI adherents of access to religious videotapes.FN5 (Docket Entry No. 1-2). In support of these allegations, Plaintiff alleges the following: In October of 2002, former Islamic Chaplain Omar Rakeeb, authorized Plaintiff to order three non-controversial videotape lectures of Minister Farrakhan, which were to be sent to Rakeeb for screening. (Id. at 7). On January 31, 2003, NOI Minister Jeffery Muhammad, informed Rakeeb that the three videotapes that Plaintiff requested were not available and that he was sending two replacement videotapes titled, "The Beauty of the Holy Qur'an" and "Jumah Prayer Kutbah Refuge in Allah." When the tapes arrived, Rakeeb screened them for controversial content as mandated by TDCJ policy. (Id.). Rakeeb determined that the videotapes were permissible for showing in TDCJ and the tapes were placed in the videotape library. (Id.). Later, two Muslim inmate coordinators, who were anti-NOI, wrote Chaplain Shabazz and informed him that Rakeeb had approved the videotape lectures by Farrakhan. Shabazz immediately called Rakeeb and forbade him from allowing inmates to view the tapes. (Id.).

Rakeeb rescinded his approval of the tapes and locked them in his office. (Id. at 8). Rakeeb informed Plaintiff that Shabazz had forbidden Beto 1 inmates from watching the tapes and that he, Rakeeb, was rescinding his approval of the tapes. For about one year, the videotapes were kept locked in Rakeeb's office. Before he left his job on Beto I, Rakeeb allowed the Muslim prisoners to watch the videotapes and placed the tapes in the Muslim Library. (Id.). Shabazz took over as the regional Islamic Chaplain on the Beto I Unit and ordered the confiscation of the videotape lectures of Minister Farrakhan. (Id.).

Plaintiff and other NOI adherents sought relief from this alleged order through the prison grievance system. (Docket Entries Nos. 1-5, 1-6, 1-8, 1-9, 1-10). In response to the grievances, TDCJ administrators informed plaintiff that the tapes had been removed from the Muslim Library so that Chaplain Shabazz could review them. The administrators indicated that Chaplain Kiser had sent the tapes by truck-mail but Shabazz never received the tapes. They further indicated that Shabazz and the Chaplaincy Department were attempting to locate copies of the tapes. Once located, Shabazz would screen the tapes per TDCJ policy. (Docket Entries No. 1-6, Ex. E, pp. 2-5, Grievance No. 2004058673, Grievance No. 200405867; No. 1-9, Ex. J, p. 2, Grievance No. 2004084041).

In other grievances, plaintiff complained of religious discrimination, to which TDCJ officials responded with references to TDCJ policy regarding the possession and purchase of videotapes by inmates and TDCJ's copyright policy. (Docket Entries No. 1-5, Ex. D, pp. 3-5, Grievance No. 2004046577; No. 1-8, Ex. 1, pp. 2-5, Grievance No. 20041065240). In Grievance No. 2004094283, plaintiff further grieved TDCJ's copyright policy as a misinterpretation of the "Federal Government copyright law." (Docket Entry No. 1-10, Ex. L, p. 2). In response to the Step 2 Grievance, Chaplain Pierce gave a more detailed explanation of the Copyright Remedy Clarification Act and TDCJ's reason for obtaining from the copyright owner authorization to show such tapes. (Id. at 5).

*8 Plaintiff does not show in his pleadings or summary judgment evidence whether Shabazz located the missing tapes or acquired new ones; nor does he indicate whether the tapes were screened and banned because of their content. Although Plaintiff claims that Shabazz and Kiser confiscated, stole, or delayed his access to the tapes because of their religious content,FN6 his pleadings and exhibits show that the problems with receiving and viewing the videotapes were in the nature of mix-ups, delays, and bureaucratic problems.FN7 Plaintiff's exhibits further show that the tapes in question were lost and the Chaplaincy Department investigated the loss and attempted to find them. (Docket Entries Nos. 1-6, pp. 3, 5; 1-7, p. 12). Defendants' exhibits also show that Plaintiff cannot own tapes himself. (Docket Entries Nos. 60-4, pp. 3-4; 60-5, p. 2). In any event, Plaintiff does not raise a genuine issue of material fact that he was unable to receive or view the videotapes in question because Defendants did not approve of their religious content.

In Step 2 Grievance No. 2004065250, Plaintiff complains that he is "appealing this grievance [because] Shabazz has verbally told us . . . that he will not review any videotapes of Minister Farrakhan." (Docket Entry No. 1-8, p. 4). Such statement is not competent summary judgment evidence and is too attenuated to raise a genuine issue of material fact that Shabazz did not review the Farrakhan videotapes. Moreover, it does not show that Shabazz refused to review Farrakhan videotapes or that he refused based on a religious bias against Farrakhan.

Plaintiff also complains of religious discrimination with respect to TDCJ's enforcement of its copyright policy. TDCJ's copyright policy requires officials to obtain appropriate authorization from the copyright owner for any showing of a videotape to a church group. (Docket Entry No. 1-10, p. 5). Plaintiff contends that TDCJ enforces this policy only against Muslim prisoners who are adherents of the NOI and who desire to receive and study videotape lectures by Minister Farrakhan. (Docket Entry No. 1-2). He contends that Muslim prisoners who follow the same Islamic sect as Shabazz are allowed to receive and study numerous videotape lectures of their religious teacher and leader Mohammed. He further contends that other groups show Hollywood movies such as "Roots" and "Remember the Titans" without being required to obtain a written permission statement from the publisher regarding compliance with TDCJ copyright policy. He claims that Christian prisoners are allowed to receive and study hundreds of videotape lectures from numerous different Christian teachers and show numerous Hollywood movies such as "Passion of the Christ" without obtaining a written permission statement from the publisher regarding compliance with the TDCJ copyright policy. (Id.)

Plaintiff also argues that other Muslim videotapes and Hollywood movies are shown without written permission from the publisher or copyright owner and submits exhibits in support of his contention. (Docket Entries Nos. 1-2, p. 14; 1-13, pp. 1-6). Although his exhibits suggest, and in one case demonstrate, that these videotapes and movies are shown in prison, they do not show a lack of copyright permission when shown, as he conclusorily alleges.

Plaintiff does not raise a genuine issue of material fact that any Defendants wrongly seized the videotapes in question or stole them from Plaintiff, that they kept Plaintiff from viewing the tapes based on their religious content by conspiring to delay screening or otherwise, or that they enforced copyright rules only against the Farrakhan tapes. Plaintiff has not raised a genuine issue of material fact that the TDCJ Chaplains in the foregoing 2002-03 incidents violated Plaintiff's First Amendment rights, or that they engaged in religious discrimination with respect to NOI videotapes such as to entitle Plaintiff to equitable relief. Accordingly, Defendants are entitled to summary judgment on claims 1, 3, and 4.

*9 In claim 24, Plaintiff alleges that in 2005-06, Shabazz, Pierce, and Lopez continuously conspired to hinder him from receiving and studying Farrakhan videotape lectures mailed to their office for approval. He maintains that TDCJ officials have intentionally taken several months to screen tapes for approval. (Docket Entry No. 46). Specifically, Plaintiff alleges that during November of 2005, he arranged for two videotape lectures to be mailed to Shabazz's office for screening. (Id. at 6). Plaintiff asserts that as of August of 2006, nine months later, he still had not received his two videotapes, nor had he been informed of the screening status of the tapes. (Id.) Plaintiff alleges that Shabazz told Plaintiff the tapes were with Chaplains Pierce and Lopez. (Id.) Plaintiff states that he wrote Pierce and Lopez several times about the screening status of the tapes, but they refused to respond to his inquiries. (Id.)

In Grievance No. 2006114478, Plaintiff complained that Shabazz had engaged in religious discrimination with respect to the screening delay of the Farrakhan videotapes. (Docket Entry No. 46-3, pp. 1-2). Warden Johnson responded that the videotapes had been sent to the Religious Practice Committee ("RPC") and that the Chaplaincy Department was awaiting the RPC's response. (Id.). On May 5, 2006, in response to Plaintiff's Step 2 grievance, Chaplain Pierce indicated that the RPC had received the videotapes and that the tapes would be reviewed at the next meeting of the RPC. (Id. at 3-4). He further indicated that Plaintiff would be notified after the review was completed. (Id.).

Plaintiff does not state the RPC's recommendation regarding the videotapes, when the recommendation was made, or whether the Chaplaincy Department authorized the tapes for inmate viewing; nor does Plaintiff state whether he was notified of the disposition of the tapes or whether he was denied access to the tapes. He further fails to state or provide any facts that would show that the RPC, Shabazz, the Chaplaincy Department, or any other defendant intentionally delayed review of NOI tapes as opposed to tapes of other religious groups or organizations at TDCJ-CID or that they applied TDCJ policy with respect to screening and approval of religious videotapes in such a way as to deny him the opportunity to practice his religious faith. Accordingly, Plaintiff fails to raise an issue of material fact showing purposeful discrimination in violation of the Fourteenth Amendment's Equal Protection Clause or a violation of the First Amendment. Defendants are therefore, entitled to summary judgment on claim 24.

In claim 25, Plaintiff alleges theft and religious discrimination with respect to three other videotapes or DVDsFN8 and a religious booklet. (Docket Entry No. 46, p. 6). Plaintiff alleges that in February 2006, he obtained Chaplain Shabazz's verbal approval to purchase these items. (Id., Docket Entry No. 46-7, p. 1). Shabazz instructed Plaintiff to have the materials sent to Shabazz's office in care of Plaintiff. (Docket Entry No. 46-7, p. 1). Plaintiff ordered the items from The Final Call, an approved TDCJ vendor. (Id.) Plaintiff asserts that when Shabazz did not answer his inquiries, he filed Grievance No. 2006109886 about Shabazz's failure to answer and he claimed that Shabazz had engaged in religious discrimination. (Docket Entries Nos. 46-1, p. 7; 46-4, pp. 1-4). Assistant Warden Johnson responded that Plaintiff would be notified when Shabazz received the tapes. (Id. at 2).

*10 Plaintiff states that The Final Call delivered the materials to Shabazz's office "in care of Plaintiff on March 15, 2006. (Docket Entry No. 46-7, p. 1). Plaintiff further states that on March 30, 2006, Shabazz acknowledged receiving the videotapes, but by this time Plaintiff had been transferred to the Clements Unit in Amarillo, Texas, where Chaplain Shabazz forwarded the religious material to the Islamic Chaplain. (Docket Entry No. 46, p. 7). Plaintiff claims that the Clements Unit's Islamic chaplain did not receive the tapes because Christian Chaplain Goad and Warden Nunn intercepted the materials and then denied that they had received the materials. (Id.) Plaintiff asserts, "so in short they stole the tapes." Id.

However, in his Declaration, Plaintiff states that when Chaplain Goad received the items, he called Plaintiff to his office and told Plaintiff that he was refusing Plaintiff "receipt" of the items and that he would be giving the items to the Clements Unit warden. (Docket Entry No. 46-7, p. 1). On April 25, 2006, Plaintiff filed Grievance No. 2006144162 against Chaplain Goad asserting that Goad had intercepted the three tapes although they were clearly addressed to Islamic Chaplain Talib and that Goad had no justification to hold Plaintiff's religious tapes. (Docket Entry No. 46-5, pp. 2-3). Warden Nunn responded that Goad had said that the items were addressed to himself and because they were not allowed on the unit, Goad would give them to Chaplain Talib for his determination. (Docket Entry No. 46-5, pp. 3-4). In his Step 2 Grievance, Plaintiff indicated that the videotapes were addressed to Talib and that there were four tapes, not three. (Id.). He also complained that Christian and Sunni Muslim prisoners were allowed to study religious tapes and DVDs on the Clements Unit but that NOI adherents were not. (Id.) Chaplain Pierce responded to the grievance and stated that the tape, "Jesus the Guide for the Public Servant," had been denied per TDCJ mailroom policy, that Chaplain Shabazz had denied giving Plaintiff approval to order the tapes, and that Plaintiff had been so notified, and that he may return the denied tape held by the mailroom. (Id. at 4).

On March 28, 2006, Plaintiff wrote Warden Zeller re-urging the allegations made in the earlier grievances concerning the tapes. (Docket Entry No. 46-5, Ex. 40, pp. 6-8). Plaintiff's summary judgment evidence includes an unsigned letter typed on paper without letterhead, dated June 14, 2006, which Plaintiff alleges was sent to him by Clements Unit Chaplain D. Schlewitz in response to Plaintiff's letter to the warden. (Id. at 9). In such letter, D. Schlewitz states that "[w]e had two packages for you here that were sent in our care." (Id.). Schlewitz further states that Chaplain Goad was no longer with TDCJ and that neither Goad, as far as he knew, nor Schlewitz had given Plaintiff permission to order the tapes; therefore, Schlewitz had "refused them." (Id.). Schlewitz states that he had not called Shabazz because "we are not going to approve any inmate to receive DVDs, Audio Cassettes, VHS, etc." (Id.). Schlewitz states that Plaintiff should know this by now and that the Clements mailroom should have told Plaintiff the options that were available to him. (Id.)

*11 Plaintiff also submits invoice papers dated March 10, 2006, and March 15, 2006, from The Final Call showing four items sold to Chaplain Shabazz C/O Samuel Jones. (Docket Entry No. 46-6, pp. 1-3). An invoice dated May 8, 2006, shows one of the four items was returned because TDCJ required the title to be on the DVD case. (Id.). Plaintiff also submits U.S. Postal Service tracking printouts and a copy of a prison trust fund printout consistent with these transactions. (Docket Entry No. 46-6, pp. 4-6).

Plaintiff's summary evidence clearly shows that the tapes and booklet were not stolen; they were, in fact, shipped to and received at the Clements Unit. As previously discussed, for valid security reasons, TDCJ policy does not allow inmates, like Plaintiff, to own or possess videotapes or the like. The policy allows inmates to purchase tapes for donation to the chaplaincy department, with prior approval. (Docket Entry No. 60-5, p. 2). Although Plaintiff alleges that Shabazz had given prior approval for him to purchase the tapes, the summary judgment record shows that the administrators at the Clements Unit, where Plaintiff was incarcerated when the tapes were delivered, had not given such approval and therefore disallowed Plaintiff receipt of the tapes per TDCJ policy. Plaintiff does not show that these administrators or Shabazz applied the TDCJ policy with a discriminatory intent or that they applied it in such a way as to deprive him of the practice of his religious beliefs. Accordingly, Plaintiff fails to raise a material fact issue showing a First or Fourteenth Amendment violation.

To the extent Plaintiff raises a separate property deprivation claim concerning these items, Plaintiff fails to raise a genuine issue of material fact. The Due Process Clause is not implicated by random, unauthorized property deprivations where the plaintiff has an adequate post deprivation remedy under state law. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984); Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir.1988). Texas provides an adequate post deprivation remedy for the loss of personal property. Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir.1994). Even where prison employees intentionally deprive an inmate of his property, the deprivation does not violate the due process clause if an adequate post deprivation remedy is available. Hudson, 104 S.Ct. at 3203; Marshall v. Norwood, 741 F.2d 761 (5th Cir.1984). Plaintiff fails to raise a genuine issue of material fact concerning property deprivation.

As a separate matter, summary judgment should be granted on claims 1, 3, 4, 24, and 25 because Plaintiff does not raise a genuine issue of material fact that he suffered a substantial burden on his religious exercise under RLUIPA. The Fifth Circuit has explained that "the Supreme Court's express disapproval of any test that would require a court to divine the centrality of a religious belief does not relieve a complaining adherent of the burden of demonstrating the honesty and accuracy of his contention that the religious practice at issue is important to the free exercise of his religion." Adkins, 393 F.3d at 570. Plaintiff does not demonstrate that watching Farrakhan videotapes (as opposed to getting Farrahkan's teachings through other means) is a religious practice that is important to the free exercise of his religion. Plaintiff sets forth a large number of requirements that he characterizes as mandatory and a large number of books and other materials that must be read and corresponding tapes that must be viewed, which contain the same content as some of the written materials.FN9 (Docket Entry No. 55, pp. 8-10). The Court finds that Plaintiff has not raised a genuine issue of material fact that his inability to view certain videotapes for which he may gain the content from other kinds of material constitutes a substantial burden that "truly pressures [him] to significantly modify his religious behavior and significantly violates his religious beliefs." See Adkins, 569-70 & n. 37. Moreover, Plaintiff has not shown that being unable to view videotapes is a substantial burden on the free exercise of his religion or that it constitutes a violation of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendments.

*12 Likewise, Plaintiff fails to raise a fact issue that Defendants conspired to deprive Plaintiff or NOI adherents of the equal protection of the laws or of equal privileges and immunities under the laws pursuant to 42 U.S.C. 1985(3). Section 1985(3) prohibits a conspiracy "for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985. See United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 3355-56, 77 L.Ed.2d 1049 (1983)). The summary judgment record does not evidence any agreement between two or more persons to deprive Plaintiff or NOI adherents of the videotapes; nor does it show a racial or religious animus behind Defendants' actions. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Galloway v. State of Louisiana, 817 F.2d 1154, 1159 (5th Cir.1987) (noting that plaintiff must prove discriminatory animus based on race or other inherited or immutable class characteristic such as gender, religion, national origin or based upon political association or beliefs). Accordingly, Defendants will be granted summary judgment on claims 1, 3, 4, 9, 24, and 25.

(iii) Prayer Oil

In claim 14, Plaintiff claims Defendants' application of TDCJ policy prohibiting the purchase of prayer oil (non-alcoholic cologne) from an approved vendor violates RLUIPA. (Docket Entry No. 1-2). Plaintiff states his religion mandates that before performing the Jumah prayer he must (1) wash his body, (2) put on clean clothes, and (3) put on prayer oil. Responses by prison officials to Plaintiff's grievances on this claim show that prisoners "are not allowed to purchase prayer oils for any reason" and "prayer oils are not permitted within TDCJ." (Docket Entry No. 1-14, pp. 23, 25). Plaintiff does not state a claim of purposeful discrimination in violation of the Equal Protection Clause.

On the other hand, Defendants' summary judgment evidence indicates that generally "Muslims are not required . . . to wear prayer oils." (Docket Entry No. 40-11, Ex. 1, p. 5). However, the use of prayer oil by Muslims appears to be a common practice and at least some courts have held that an outright denial of it is a substantial burden on a Muslim prisoner's free exercise of religion. See e.g., Cutter, 125 S.Ct. at 2121 n. 8 (2005) citing Charles v. Verhagen, 348 F.3d 601, 611 (7th Cir.2003) (upholding district court's summary judgment in favor of Muslim prisoner on prayer oil claim under RLUIPA). Defendants have not shown that this restriction is in furtherance of a compelling governmental interest and that it is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). Furthermore, defendants have not shown a legitimate governmental interest to justify the ban on prayer oil.

Summary judgment therefore will be denied on claim 14, but without prejudice to Defendants' filing a supplemental summary judgment motion that specifically addressees whether the prayer oil restriction violates the First Amendment and RLUIPA.

b. Religious Practices

*13 In claims 12, 13, 22, 29, 32, and 33, Plaintiff claims that TDCJ refuses to accommodate specific religious practices with respect to his diet, the practice of charity and modesty, and the use of his religious name. (Docket Entries Nos. 1-2, 46).

(i) Diet

In claim 12, Plaintiff complains that TDCJ does not afford a meat substitute for Muslims when pork meals are served, but serves protein substitutes, i.e., a spoonful of shredded cheese or a boiled egg when pork meals are served.FN10 (Docket Entry No. 1-2). In his separate Motion to Deny Summary Judgment on Plaintiff's Pork-free Claim, Plaintiff asserts that each of TDCJ's three pork-free options contains foods that are prohibited under NOI religious doctrine, i.e., (1) peanut butter, (2) white bread, and (3) beans other than navy, black, and lentil beans. (Docket Entry No. 73). Plaintiff attaches to this motion exhibits that are writings by Elijah Muhammad consisting of recipes, advice on healthy eating, and similar matters. (Docket Entries Nos. 73-3, pp. 3-4; 73-4, pp. 3-4; 73-5, pp. 2-3; 73-6, pp. 2-3). These exhibits do not show that Muhammad is issuing a religious mandate that not eating potatoes, beans, or bread is a matter of religious doctrine, but rather, they tend to show discourses by Muhammad about healthy eating habits. Furthermore, the writings are inconsistent.FN11

Plaintiff has not raised a genuine issue of material fact that his free exercise rights under the First Amendment have been violated based on the pork substitutes TDCJ provides. See Baranowski v. Hart, 486 F.3d 112, 122 (5th Cir.2007) (citing Kahey v. Jones, 836 F.2d 948 (5th Cir.1988)), petition for cert. filed, 76 U.S.L.W. 3058 (U.S. July 31, 2007) (No. 07-137); Muhammad v. Texas Dept. of Criminal Justice, Institutional Div., 134 F.3d 368, 1997 WL 811681, *1 (5th Cir.1997) (unpublished). In light of evidence that such substitutes are not prohibited by NOI principles, he further fails to raise a material fact issue that TDCJ's policy regarding pork substitutes constitutes a substantial burden on the exercise of his religious beliefs in violation of RLUIPA or that he has suffered religious discrimination by implementation of this diet. Defendants will be granted summary judgment on claim 12.

In claim 29, Plaintiff asserts NOI adherents are forced to touch swine by-products, which violates his religious beliefs.FN12 (Docket Entry No. 46). Plaintiff complains that TDCJ does not allow NOI adherents to sit at "non-pork eating dining tables" during meals whenever a pork meal is served. (Id., p. 9). He claims that TDCJ policy requires that he sit at the same table as prisoners who are eating swine, which results in Plaintiff being subjected to touching items like salt shakers, pitchers, and cups which other inmates sitting at the same table may have touched and who may have pork grease on their hands. (Id.)

Plaintiff also claims that pork by-products contaminate the food he eats. (Id.) He claims that TDCJ kitchen officials have inadequate separation of pork items from non pork food items on the serving line. He contends that a pork item can be so close (two inches) to the non pork item on the serving line that the pork grease pops onto the non pork items; such proximity effectively forces Plaintiff to eat pork by-products. (Id.) He submits several affidavits showing that on August 22, 2006, a pork item was two to three inches from a non pork item in the food serving line in the Clements Unit inmate cafeteria and that there were pork droppings in the rice and peanut butter inserts. (Docket Entry No. 46-9, Exs. 50-59).

*14 Plaintiff's claim of one incident supported by affidavits does not show a violation of his free exercise of religion rights. See Baranowski, 486 F.3d at 122 (citing Kahey, 836 F.2d at 949-51) (holding that a prison is not required to accommodate a Muslim's request for detailed requirements concerning preparation of food which included avoiding any food cooked or served in or on utensils that had come into contact with pork). Furthermore, Plaintiff raises only this single, specific incident, which occurred at a prison unit beyond the geographical confines of this district. An allegation of a single incident is insufficient to warrant equitable relief. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976) (stating injunctive relief should only be granted in the "most extraordinary circumstances."); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975) (stating the court must consider the principles of federalism in determining whether to grant equitable relief); Milliken v. Bradley (Milliken II), 433 U.S. 267, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (stating the court must take into account the interests of state authorities in managing their own affairs).

Plaintiff's unsupported, speculative allegation that his hands may become contaminated with pork grease from other inmates' hands is too attenuated to warrant equitable relief. Besides, Plaintiff does not show that he is prevented from taking protective measures such as using a napkin to handle items he suspects may possibly be contaminated. See Baranowski, 486 F.3d at 122. In any event, Plaintiff has not shown a substantial burden on the free exercise of his religion, or a violation of the First and Fourteenth Amendment by his assertion of one minor, isolated incident in the kitchen and the theoretical condition of possible contamination in the chow hall. Defendants will be granted summary judgment on claim 29.

(ii) Charity

In claim 32, Plaintiff claims that TDCJ has denied NOI adherents from practicing the mandated practice of charity by denying them the opportunity to provide indigent Muslim prisoners with toiletries, which are necessary to maintain bodily cleanliness as required by Islamic law. (Docket Entry No. 46).

Defendants argue that Plaintiff has no standing to complain on behalf of indigent prisoners who cannot afford to purchase toiletries from the prison commissary. (Docket Entry No. 60). Defendants' summary judgment evidence shows that allowing Plaintiff and other inmates to give gifts to fellow inmates would have a detrimental impact on prison security.FN13 (Docket Entry No. 60-4, p. 4). Although Plaintiff's exhibits show that one principle of Islam is to give charity to the poor (Docket Entry No. 56, Ex. 97, p. 43), his exhibits do not show anything specific about providing charity to fellow prisoners as opposed to providing charity to the poor outside prison or to charitable organizations.

Plaintiff argues that Defendants' security concerns are overblown.FN14 (Docket Entry No. 66, p. 38). Defendants' summary judgment evidence, however, shows that the only way to avoid the potential security problems raised in the affidavits is to prohibit any inmate from giving to any other inmates toiletries or other items even in an ostensibly anonymous, or collective or group manner.

*15 Courts must apply the strict scrutiny test on prison regulations under RLUIPA with "due deference to the experience and expertise of prison . . . administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Cutter, 125 S.Ct. at 2123 (citation omitted). In this case, the summary judgment record shows that the least restrictive means of avoiding the security problems raised by Defendants is to proscribe any individual inmate or group of inmates from giving items to other inmates. See Baranowski, 486 F.3d at 125 (noting the prison "context matters in the application of that standard," i.e., the least restrictive means of furthering a compelling governmental interest standard) (quoting Cutter, 125 S.Ct. at 2123).

Plaintiff has failed to raise a genuine issue of material fact on his claim that prohibiting inmates from giving charity to fellow inmates violates the RLUIPA, the First and Fourteenth Amendments to defeat Defendants' summary judgment showing. Defendants will be granted summary judgment on claim 32.

(iii) Religious Name

In claim 22, Plaintiff claims that the TDCJ has a policy that prohibits him from changing his "illegal slave" name, Samuel Lee Jones, to his religious name, Samuel Hakeem Muhammad. (Docket Entry No. 1-2). A prisoner has a First Amendment interest in using his religious name, at least in combination with the name under which he was committed to prison. See Felix v. Rolan, 833 F.2d 517, 518 (5th Cir.1987).

Defendants contend that Plaintiff has not alleged nor shown that he has sought or obtained a legal name change from an appropriate state court or that he has been prevented from using his religious name along with his commitment name. (Docket Entry No. 40). Plaintiff does not dispute either contention. (Docket Entry No. 46). In fact, the envelopes that Plaintiff used to mail pleadings to the Clerk in this case show many examples of Plaintiff using both names, with his religious name first. (See e.g., Docket Entries Nos. 9, 18, 20, 28, 29, 39, 44, 46, 47, 48, 49, 50, 52, 53, 57, 58). Accordingly, Plaintiff has not raised a genuine issue of material fact that Samuel Jones is an "illegal" name, that the TDCJ has prevented him from changing it, or that his free exercise rights or equal protection rights have been infringed in connection with the use of his name. Defendants will be granted summary judgment on claim number 22.

In claim 33, Plaintiff asserts that the Clements Unit mailroom has violated his First Amendment rights by refusing to process his outgoing mail because he writes his Muslim name and "Clements Plantation" on his return address. (Docket Entries Nos. 46, 66).FN15 As explained above, Plaintiff makes no specific factual allegation nor does he otherwise support this contention. In any event, Plaintiff has not shown the need for equitable relief concerning his use of the phrase Clements Plantation on his outgoing mail.FN16 Plaintiff is no longer housed at the Clements Unit; he is now at the Michael Unit.FN17 (Docket Entry No. 61). His unit transfer renders moot his request for injunctive relief concerning the Clements Mailroom's issuance of "Non-Mailable Correspondence" forms in response to Plaintiff using "Clements Plantation" on his outgoing mail. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir.2002); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir.2001).

*16 Defendants will be granted summary judgment on Plaintiff's claim 33.

(iv) Modesty

Plaintiff contends in claim 13 that his religion mandates that he protect his modesty. (Docket Entry No. 1-2). In the first instance, Plaintiff claims that TDCJ employees violate the Fourth Amendment and RLUIPA by routinely strip-searching him in the presence of people, including female officers. He also claims he is required to stand in the nude while waiting to be issued a clean pair of boxer shorts before and after showers during clothing exchange. (Id.).

Plaintiff has not stated specific instances where he was searched by females. Plaintiff, however, alleges that on June 13, 2005, he was strip-searched by a male officer in the presence of a female officer. (Docket Entry No. 55, p. 34). Plaintiff claims this alleged search alone raises a material fact question regarding a violation of the First Amendment and RLUIPA. In support of this claim, Plaintiff relies upon the opinion in Show v. Patterson, which states "the core inquiry is whether a reasonable prison official would have believed that the group strip search and the refusal to separate the Muslim inmates violated RFRA, the First Amendment or the Fourth Amendment." 955 F.Supp. 182, 193 (S.D.N.Y.1997). Plaintiff, however, fails to note that the Show Court determined the existence of a material fact question regarding the validity of the search on more than free exercise of religion concerns, as follows:

Id., at 190. Other courts, including the court that decided Show v. Patterson, have upheld strip searches of Muslim inmates under the First Amendment and RLUIPA. See Still v. Wilkinson, Fed. Appx. 356, 357, 2001 WL 303518, *1 (6th Cir.2001) (upholding search involving specific threat on First Amendment grounds); Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318, 324 (S.D.N.Y.2006) (holding that second strip search of Muslim inmate invalid because it did not further a compelling governmental interest under RLUIPA because the plaintiff had been in presence of guards since a prior search, which was not held to be in violation of RLUIPA).

TDCJ policy is that male inmates are only strip-searched in the presence of female officers in extraordinary circumstances and when approved by the Warden. (Docket Entry No. 40-8, Ex. F, p. 4). Defendants' evidence shows that contraband is a security problem and endangers the safety of inmates and officers and therefore inmates are routinely strip searched in certain circumstances. (Id., p. 7). Defendants' evidence further shows that routine strip searches are necessary for the compelling governmental interest of safety and security in the TDCJ. (Id.) Strip searches are the least restrictive means of furthering the governmental interest of safety and security because officers conduct them to find contraband that can only be found with a strip search. (Id.)

*17 Prison security, in and of itself, is a compelling state interest, and deference is due to institutional officials' expertise in this area. Cutter, 125 S.Ct. at 2124 n. 13. RLUIPA does not elevate accommodation of religious observances over a prison's need to maintain order and safety, and any accommodation must be measured so that it does not override other significant interests. Id. at 722. Defendants, in this case, have shown their strip search policy is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest under Cutter. Furthermore, the strip searches by male officers do not violate the Fourth Amendment. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); Elliott v. Lynn, 38 F.3d 188, 191 (5th Cir.1994).

Plaintiff has not raised a genuine issue of material fact that the strip searches by male officers violate RLUIPA or the First and Fourteenth Amendments. In support of his conclusory complaint about routine strip searches being conducted by males in the presence of female officers, Plaintiff's specific allegation is of only one incident, on June 13, 2005, 19 months before Plaintiff filed this pleading. Such an isolated incident does not raise a genuine issue of material fact sufficient to warrant the issuance of equitable relief. Rizzo, 96 S.Ct. at 608; Doran, 95 S.Ct. at 2566; Milliken, 433 U.S. at 280-81.FN18 Accordingly, Defendants will be granted summary judgment on Plaintiff's claim number 13 concerning strip searches.

Defendants have not addressed Plaintiff's other claim, that during clothing exchanges he is required to stand in the nude in the presence of females while waiting to be issued a clean pair of boxer shorts before and after showers. See Canedy v. Boardman, 16 F.3d 183 (7th Cir.1994) (holding that Muslim inmate entitled to some accommodation to avoid unnecessary observations by female guards of his unclothed body on privacy grounds and noted possible amendment under RFRA). Accordingly, summary judgment will be denied without prejudice on this clothing-exchange claim.

c. Religious Services and Ministry

Plaintiff makes various claims asserting religious discrimination and even hostility against adherents of the NOI sect primarily concerning the hiring of chaplains and religious services in claims numbered 7, 8, 10, 11, 15, 17, 18, 20, 21, 27, and 28.

(i) Religious Holidays

In claim 15, Plaintiff declares TDCJ is committing religious discrimination and violating RLUIPA by not "acknowledging" two NOI observance days, Saviour's Day and Holy Day of Atonement. (Docket Entries Nos. 1, 55). Plaintiff's own exhibits show that this request has been referred to the Religious Practice Committee for discussion and approval.FN19 Plaintiff does not allege or show that TDCJ officials have denied his request concerning two religious observance days. Plaintiff has not shown an infringement on his right to the free exercise of religion or a substantial burden on the exercise of his religion, nor has he shown purposeful religious discrimination. Accordingly, Plaintiff has not shown a First Amendment, equal protection, or RLUIPA violation. Defendants are entitled to summary judgment on claim 15.

(ii) Nation of Islam Spiritual Leaders

*18 In claims 10 and 21, Plaintiff asserts that TDCJ administrative and religious officials have conspired to hire only Islamic Chaplains who are adherents of the Muslim American Society and are followers of Warith Deen Mohammed or the Sunni orthodox doctrine and that TDCJ has not hired any NOI Ministers as full-time paid TDCJ Chaplains in violation of RLUIPA. (Docket Entry No. 1-2). Plaintiff has not alleged any specific facts showing a conspiracy nor any facts showing that Defendants intentionally hired only Muslim chaplains of certain persuasions or intentionally avoided hiring available, qualified NOI chaplains. See Wilson v. Budney, 976 F.2d 957, 958 (5th Cir.1992); Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir.1990). See also Davis v. Wall, 50 F.3d 1033, 1995 WL 136204, *4-5 (5th Cir.1995) (unpublished) (rejecting as having no legal basis inmate's complaint that prison did not hire a NOI chaplain). Plaintiff has not raised a genuine issue of material fact under claims 10 and 21 under RLUIPA, the First Amendment, or the Equal Protection Clause. Accordingly, Defendants are entitled to summary judgment on claims 10 and 21.

In claim 31, Plaintiff alleges that Defendants Pierce, Lopez, and Shabazz collaborated to deny a NOI volunteer minister entry inside the prison system. (Docket Entry No. 46). Specifically, Plaintiff claims that an outside NOI minister, Doyne Muhammad, submitted his volunteer application to TDCJ officials in February or March 2006. Five months later Muhammad's application had not been processed nor had he been contacted about the application or its status. (Id.).

Plaintiff complains that the processing of Doyne Muhammad's request has taken a long time but he makes no factual allegations asserting any specific acts or omissions by any Defendant that caused or contributed to the failure to complete the processing of Muhammad's request or delayed the process. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (stating that an alleged injury must be traceable to the challenged conduct by defendant). Furthermore, Plaintiff makes no specific factual allegations of any acts or omissions by any Defendant related to Muhammad's request that are based on religious discrimination. Plaintiff fails to raise a genuine issue of material fact that he is entitled to relief on claim 31 and Defendants will be granted summary judgment.

(iii) Religious Services

In claims 7, 8, and 17, Plaintiff asserts that TDCJ officials prevent him and other NOI adherents from teaching classes and giving religious sermons based on their NOI doctrine to other Muslim and non-Muslims prisoners at Jumah and Taleem services. (Docket Entry No. 1-2). In claims 27 and 28, Plaintiff asserts that TDCJ officials do not allow him to pray separately so he can invoke the name of his God, Fard Muhammad, and recite out loud the NOI National Pledge and Opening Prayer. (Docket Entry No. 46). He claims that the services are conducted by Sunni Orthodox Muslims who are of the same Muslim sect as the Muslim chaplains. (Id.). In claim 18, Plaintiff also alleges a violation of the court's decree in Hyde v. Texas Dep't of Criminal Justice, 948 F.Supp. 625 (S.D.Tex.1996). (Id.). Plaintiff further contends in claim 20 that NOI adherents are being denied equal protection under TDCJ's religious accommodation policy because NOI adherents are not given the same opportunities of involvement in the exercise of their religious beliefs as are Sunni/Orthodox Muslims. (Id.).

*19 Defendants' summary judgment evidence shows that because of the large number of prisoners and to best serve the needs of the most prisoners, TDCJ offers generic worship services for all Muslim prisoners. (Docket Entry No. 40-10, Ex. H, p. 4). "In a prison setting, and in view of the numbers and variations involved, to provide separate Jumah (the main Muslim worship service) services for each sub-group of the Islamic faith would not be feasible." (Id., pp. 5-6). The evidence further shows that "[several] factors are considered in the scheduling of all religious activities, including staff supervision requirements, unit and individual security concerns as set forth in Agency policy, and the availability of TDCJ approved religious volunteers to assist." (Id., pp. 2-3). "To require TDCJ to provide religious services to all the different faith groups would be virtually impossible for numerous reasons, including, but not limited to, the large number of faiths, the number of offenders, security concerns, staffing and space limitations, and the large geographical expanse TDCJ covers." (Id., p. 9). See Nation of Islam v. Michigan Dept. of Corrections 69 F.3d 537, 1995 WL 631589, *1 (6th Cir.1995) (unpublished) (finding "defendants showed that the decision to deny the NOI prisoners' request for individual services and meetings was reasonable").

Plaintiff, however, argues that RLUIPA requires TDCJ to accommodate NOI adherents with respect to their unique religious practices because it is mandatory that NOI adherents study the teachings of their leaders at the Jumah and Taleem services.FN20 (Docket Entry No. 55). Plaintiff does not allege or show that he was completely prevented from conducting any formal or informal group study, teaching, or sermon-giving at any particular appropriate time. He instead claims he cannot do these things at the religious services held for all Muslim prisoners of various Muslim sects. (Id.). In this respect, Plaintiff has not met his burden of showing a substantial burden on his free exercise of religion. Adkins, 393 F.3d at 569-70; see also Johnson v. Baker, 67 F.3d 299, 1995 WL 570913, *4-5 (6th Cir.1995) (unpublished) (upholding denial of separate religious services for NOI inmates under the Religious Freedom Restoration Act ("RFRA")).

The summary judgment evidence establishes that the generic Muslim service is structured for all Muslim inmates, not exclusively for any sub-group. Further, Defendants have satisfied their burden to show that a unified Muslim service is the least restrictive means of achieving compelling government interests of security concerns, and staffing limitations and space constraints.FN21 (Docket Entries Nos. 40, pp. 10-12; 40-10, Ex. H; 40-7, Ex. E). "To require TDCJ to provide religious services to all the different faith groups would be virtually impossible for numerous reasons, including, but not limited to, the large number of faiths, the number of offenders, security concerns, staffing and space limitations, and the large geographical expanse TDCJ covers." (Id.,, at 9).FN22 The RLUIPA standard must be applied consistent with consideration of costs and limited resources. Cutter, 125 S.Ct. at 2123.

*20 Plaintiff's listing of Sunni mandatory practices and his allegation that the generic services are actually Sunni services do not defeat Defendants' summary judgment showing. Plaintiff, who has no demonstrated expertise in the Sunni sect, provides no competent evidence to support his allegations about required Sunni practices at Sunni services nor sufficient evidence to show that the TDCJ services fulfilled these alleged Sunni requirements. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (stating if evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted); Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.1993) (noting unsubstantiated or conclusory assertions that a fact issue exists will not suffice to defeat a properly supported motion). Accordingly, Plaintiff has not defeated Defendants' summary judgment showing that his free exercise rights were not substantially burdened, but regardless, even if Plaintiff's objections to the Muslim services did indicate a substantial burden on Plaintiff's practices, the impositions alleged in claims 7, 8, 17, 18, 27, and 28 have been shown by Defendants as a matter of law to be in furtherance of a compelling governmental interest and constitute the least restrictive means of achieving that interest.

Plaintiff has not shown a First Amendment violation under these claims because he is allowed a reasonable opportunity to practice his religion and the TDCJ's structure is reasonably related to legitimate penological interests. See Boxer X v. Donald, 169 Fed. Appx. 555, 2006 WL 463243, *3-4 (11th Cir.2006) (no First Amendment or equal protection violations when prison provided congregational religious services based on "generic abstractions" of actual denominational faiths, including generic Islamic services, and denied separate services for the Lost-Found Nation of Islam). Plaintiff has not shown an equal protection violation because he has not shown purposeful discrimination by Defendants in their structuring of the Muslim generic services. See generally Freeman v. Texas Dep't of Criminal Justice, 369 F.3d 854 (5th Cir.2004) (finding First and Fourteenth Amendments were not violated by TDCJ religious accommodation policy). Contrary to Plaintiff's contention, he has not shown a violation of Hyde v. Texas Dep't of Criminal Justice, which provided for Jehovah's Witnesses to meet under conditions comparable to adherents of similar groups, including Muslims, who enjoyed a more lenient meeting policy than Jehovah's Witnesses. 948 F.Supp. 625 (S.D.Tex.1996).

Accordingly, the Court will grant summary judgment on Plaintiff's claims 7, 8, 17, 18, 20, 27, and 28.

(iv) Hostility toward NOI adherents

In claim 11, Plaintiff asserts that the Islamic Chaplains have systematically conspired to create an atmosphere of extreme hostility toward the NOI prisoners. A plaintiff claiming conspiracy must allege facts showing that the defendants agreed to commit an illegal act. Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). Plaintiff's conclusory conspiracy allegations against Defendants do not justify the granting of relief. Wilson, 976 F.2d at 958; Streetman, 918 F.2d at 557. Furthermore, he has not alleged any specific facts against any Defendant acting alone or in conjunction with others, showing actions designed to create or foster hostility against NOI prisoners. See Allen 104 S.Ct. at 3324 (holding an alleged injury must be traceable to the challenged conduct by defendant). Plaintiff has not raised a genuine issue of material fact under RLUIPA on the First or Fourteenth Amendments.

*21 Accordingly, Defendants are entitled to summary judgment on claim 11.

B. Other Claims

1. Consent Decree

Plaintiff in his claim 2 alleges that the TDCJ and Shabazz are violating the Court decree in Brown v. Beto, Civil Action No. H-69-CV-74, (S.D.Tex.1977) by, among other things, implementing a rule that prohibits NOI adherents from studying or reading NOI literature at the established Jumah and Taleem services. (Docket Entry No. 1). Brown v. Beto was a consent decree signed by Judge Robert O'Conner in 1977, which essentially provided Muslims the opportunity to practice their religion in prison on a basis equivalent to adherents of other major religions. These terms of the decree are largely reflected in the TDCJ rules and policies shown in the summary judgment evidence in this case. Plaintiff in a later pleading disavowed this claim. (Docket Entry No. 66, p. 2).

Defendants correctly argue that if Plaintiff does assert violations of the Brown v. Beto decree, he must seek equitable relief in that case, citing Gillespie v. Crawford, 858 F.2d 1101 (5th Cir.1988) (en banc). (Docket Entry No. 40). Although Plaintiff claims otherwise (Docket Entry No. 46), he is a member of the class in the Brown v. Beto decree. (Docket Entry No. 1-11, p. 3). Therefore, the opinion in Gillespie precludes Plaintiff from seeking relief here. Accordingly, Defendants are entitled to summary judgment on claim 2.

2. Negligent Supervision

In claim 5, Plaintiff alleges that Pierce and Lopez had knowledge of the religious discrimination against Plaintiff and other NOI adherents but instead of remedying the situation, they conspired with the other Defendants. (Document Entry No. 1-2). This allegation is not a separate claim from the other claims raising religious discrimination. To the extent it is a separate claim, it will be dismissed.

Negligence does not constitute a constitutional deprivation. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); also see generally Shidler v. Moore, 409 F.Supp.2d 1060, 1068-69 (N.D.Ind.2006). Further, Plaintiff has presented no summary judgment evidence of negligence on the part of Pierce or Lopez that caused any injury to Plaintiff over which this Court would have jurisdiction. Defendants will be granted summary judgment on claim 5.

3. Grievances

Plaintiff states in claim 26 that Defendants are continuously conspiring to take several months to answer his grievances and in some cases they do not answer the grievances at all, thus hindering Plaintiff in exhausting his administrative remedies. Plaintiff does not have a constitutional right to a grievance procedure. Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994); see also Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 2544, 53 L.Ed.2d 629 (1977) (Burger, C.J., concurring) (lauding prison grievance procedures but not suggesting they are constitutionally required). Plaintiff has no due process liberty interest in having his grievances resolved. See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.2005). To the extent he raises a separate claim concerning grievances, he fails to state a claim upon which relief may be granted and fails to show a genuine issue of material fact. Plaintiff's allegation that Defendants are hindering him from exhausting his administrative remedies, even if true, is not determinative of any issue in this case because none of Plaintiff's claims is being dismissed solely for failure to exhaust his administrative remedies under the TDCJ grievance procedures. Moreover, Plaintiff fails to state any facts that would give rise to a conspiracy to deprive him of any federal constitutional or statutory rights.

*22 Defendants will be granted summary judgment on claim 26.

4. Retaliation

In claims 6 and 30, Plaintiff alleges that Defendants twice retaliated against him for engaging in constitutionally protected conduct by transferring him to another unit. (Docket Entries Nos. 1, 46). To prevail on a retaliation claim, a prisoner must show (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Steward 132 F.3d 225, 231 (5th Cir.1998).

Plaintiff in claim 6 alleges that he was retaliated against for engaging in constitutionally protected conduct. On some unspecified date in 2003, Chaplain Shabazz came to the Beto I Unit and summoned Plaintiff to Chaplain Kiser's office where Shabazz threatened to transfer Plaintiff if he did not stop filing grievances. (Docket Entry No. 1-2). Plaintiff claims he continued to file grievances; thereafter, on July 30, 2004, TDCJ religious officials transferred him to the Wynne Unit in Huntsville, where Shabazz's office is located. (Docket Entries Nos. 1-2, 46, 66).

Defendants' summary judgment evidence shows that Shabazz has no authority to transfer inmates. (Docket Entry No. 40-10, p. 8). Plaintiff does not dispute such evidence. Accordingly, Plaintiff has not raised a genuine issue of material fact defeating Defendants' summary judgment showing a lack of causation on Plaintiff's first retaliatory transfer claim.FN23

In claim 30, Plaintiff claims that after his transfer to the Wynne Unit he continued to file religious discrimination grievances against Shabazz. (Docket Entry No. 46). He further claims that he started receiving death threats from the Sunni Orthodox Muslim prisoners, at the urging of Chaplain Shabazz. (Id.) Plaintiff maintains that on February 2, 2006, he requested a life-endangerment transfer, which the Wynne Unit Warden denied. (Id.). Plaintiff contends that Shabazz was infuriated that Plaintiff had filed a life endangerment claim and therefore conspired with the Wynne Unit warden to issue Plaintiff a retaliatory transfer to the Clements Unit in Amarillo, Texas. (Id.; Docket Entry No. 6). (Plaintiff does not reconcile that the claimed "retaliatory transfer" served to fulfill his own request for a "life endangerment transfer.") Plaintiff contends Shabazz sought such a transfer to hinder Plaintiff's elderly mother in visiting Plaintiff (Id.).

Defendants' summary judgment evidence, however, shows that while a unit warden may request a transfer, the final decisions on whether an inmate will be transferred and, if so, to which unit he will be transferred, are made by the Classification and Records Department in Huntsville, Texas. (Docket Entry No. 60-2, Ex. A).

Plaintiff's allegations of a conspiracy to transfer Plaintiff to another unit because Plaintiff had filed a life endangerment claim and requested a life endangerment transfer are not supported by allegations of any specific facts, much less competent summary judgment evidence. Furthermore, Plaintiff does not refute Defendants' evidence that the Classification and Records Department in Huntsville has final authority over transfers, not wardens or chaplains.

*23 The summary judgment record does not raise a genuine issue of material fact that any of Defendants conspired to retaliate against Plaintiff by transferring him to another prison unit, that his transfer was a retaliatory act, or that Plaintiff's First Amendment rights were violated. Defendants will be granted summary judgment on claim 30.

III. Order

Based on the foregoing, the Court ORDERS the following:

The Clerk will enter this Order and provide a correct copy to all parties.