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Date: 12-15-2017

Case Style:

Paul Richard Butts v. Marcus Martin, et al.

Eastern District of Texas Federal Courthouse - Beaumont, Texas

Case Number: l5-41460

Judge: Edward C. Prado

Court: United States Court of Appeals for the Fifth Circuit on appeal from the Eastern District of Texas (Jefferson County)

Plaintiff's Attorney: Pro se

Defendant's Attorney: Andrea Hedrick Parker

Description: Plaintiff–Appellant Paul Richard Butts, a Hasidic Jewish federal prisoner at the Federal Corrections Complex in Beaumont, Texas (“FCC
United States Court of Appeals
Fifth Circuit
FILED
December 8, 2017
Lyle W. Cayce
Clerk
No. 15-41640
2
Beaumont”), filed a Bivens1 suit against numerous Bureau of Prisons (“BOP”)
employees, all of whom worked at FCC Beaumont. All his claims arise from an
incident when Butts was allegedly forced to choose between eating a meal and
wearing his yarmulke and the subsequent disciplinary proceedings against
him. The district court granted summary judgment and dismissed Butts’s
claims. For the reasons set forth below, we AFFIRM in part, and REVERSE
and REMAND in part.
I. BACKGROUND
A. Factual Allegations
In his complaint, Butts alleged the following facts. On the evening of
December 19, 2010, he went to the “chow-hall” for dinner wearing a gray
knitted cap, which could be purchased from the commissary. Butts had his
black yarmulke,2 which he has worn since his arrival at FCC Beaumont, in his
pocket. Once inside the chow-hall, Butts removed the gray cap, placed it in his
pocket, and put on his yarmulke. One of the customs of Hasidic Judaism, the
faith to which Butts adheres, requires men to keep their heads covered.
Defendant Martinez, a BOP lieutenant, pointed to the yarmulke and asked:
“What’s that?” When Butts explained that it was his yarmulke, Martinez told
him that it was not “BOP issued.” Butts tried to explain that prisoners “have
to supply their own” and the BOP does not supply them, but Martinez “cut
[Butts] off [by] asking other rhetorical questions.” According to Butts, it was
“clear” that Martinez intended only to harass him. Martinez took Butts’s ID
and said he would check with the FCC Beaumont chaplain “to see if they were
issued.” Martinez told Butts that, if Butts were lying, he would spend the night
1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
2 Butts describes a yarmulke as “[a] skullcap worn by Jewish men and boys, especially
those adhering to Orthodox or Conservative Judaism” and “a symbol of faith” that carries
“religious significance for the wearer.”
No. 15-41640
3
in the special housing unit (“SHU”). Martinez said that Butts would have to
remove the yarmulke or leave the hall. Butts chose to leave. This was the only
time Butts was questioned about his yarmulke or denied a meal because of his
religious beliefs.
At lunch the next day, Butts spoke with Defendant Cheryl Cranmer–
Sutton, a BOP officer who at that time was “the acting Captain.” After Butts
told her about the events from the night before, Cranmer–Sutton said that she
would “check on [Butts’s] ID.” But Butts “was wanting a little more than that,
at least an [apology].” Cranmer–Sutton explained that she was only concerned
with getting Butts’s ID back and with his ability to eat and wear his yarmulke
going forward. Butts, dissatisfied with her response, mentioned that he
planned on filing an administrative grievance.
At 2:30 that afternoon, a BOP officer named “Q. Jones” came to Butts’s
cell and asked him about a gray yarmulke, which Butts denied possessing.
Jones searched the cell but found only black and white yarmulkes, which were
approved under BOP regulations. Altogether, Butts’s cell and property were
searched three different times, and he was strip searched twice. No gray
yarmulke was ever found.
Jones took Butts to Cranmer–Sutton’s office where she and Martinez
were waiting. Martinez asked Butts about the location of his gray yarmulke
from the night before. Butts denied owning a gray yarmulke or having worn
one. After the chaplain arrived, Martinez again asked Butts about the gray
yarmulke’s location, and Butts again denied owning a gray yarmulke. Butts’s
complaint asserted that it was “clear that Defendant Martinez was setting
[Butts] up to be a liar.” After Martinez left, Butts asked the chaplain whether
he had ever seen Butts wearing a gray yarmulke, and the chaplain stated that
he had only seen Butts wearing a black one.
No. 15-41640
4
Martinez wrote an incident report and placed Butts in the SHU for “lying
to staff” regarding the gray yarmulke. While Butts was in the SHU, the opened
commissary items in his cell were discarded and Butts was denied access to his
personal address book, stamps, and religious items—despite the fact that BOP
regulations permitted these items in the SHU. He was also denied the “Holiday
Package” handed out to prisoners because he was in the SHU.
The next day, Defendant Christopher Banks, a BOP officer, delivered to
Butts a copy of Martinez’s incident report and asked Butts whether he wanted
to make a statement or request any witnesses. Butts gave a statement and
requested three witnesses. Banks later told Butts, however, that Martinez had
“refused to enter the information.”
Defendants Garod Garrison and Theodosia Debricassart, members of the
Unit Disciplinary Committee (“UDC”), subsequently held a hearing in Butts’s
cell in the SHU. When Butts asked about his witnesses, Garrison stated that
Butts had not requested any, and the UDC refused to investigate whether
Butts had requested witnesses through Banks. On December 22, 2010, the
UDC found that Butts had committed the charged violation of lying to a staff
member and sanctioned him, depriving him of commissary privileges for 30
days. Butts remained in the SHU for an additional week even though the UDC
did not sentence him to additional SHU time.
B. Administrative Remedies
Butts attempted an informal resolution (BP-8).3 In the BP-8, Butts listed
as his “Specific Complaint and Requested Relief” the desire to appeal based
upon an alleged violation of his due process rights because the UDC’s decision
was not based on sufficient evidence. Butts noted that Martinez did not
3 As part of their motion to dismiss and for summary judgment, the Defendants filed
copies of Butts’s administrative grievance forms, his correspondence, and the Defendants’
responses.
No. 15-41640
5
confiscate any yarmulke and that no gray yarmulke had ever been found, even
though Jones had searched his cell and property. The correctional counselor
instructed Butts to “start with a BP-9 on a UDC appeal.”
Butts filed a request for administrative remedy (BP-9) on January 10,
2011, appealing the UDC’s decision. In support of his request, Butts alleged
that the UDC “did not look into any part of the [incident] report” but instead
blindly accepted Martinez’s word over Butts’s. Butts again alleged that his due
process rights were violated because there was no evidence that a gray
yarmulke ever existed. And the disciplinary proceeding “has only been
harrassment [sic] by Lt. Martinez of [his] religious beliefs and retaliation.” He
explained that he was attaching a three-page summary “[d]ue to the detail
needed.”
In the attached summary, Butts detailed the incidents from his
perspective. Although he mentioned other individuals (including Defendant
Cranmer–Sutton) over the course of the narrative, he only levied with
specificity claims of wrongdoing against Martinez, including that Martinez
(1) harassed Butts and violated his religious rights by forcing him to “choose
between eating or setting aside his religious beliefs by removing his
yarmulka [sic],” and (2) made up the gray yarmulke and used it as an “excuse”
to put Butts in the SHU in retaliation for Butts’s threat to “write [Martinez]
up.” Butts also asserted once more that his due process rights were violated
because the UDC decision was not supported by sufficient evidence. Defendant
Marcus Martin, the Warden at FCC Beaumont, denied the BP-9 on January
26, 2011, concluding that Butts had been afforded due process.
Butts filed a regional administrative remedy appeal (BP-10) in February
2011. In the appeal, Butts complained that Martinez had harassed him,
violated his religious rights, and then “covered” those improper actions by
claiming that Butts was wearing a gray yarmulke. Butts alleged that Martinez
No. 15-41640
6
had purposely written him up for lying, rather than for possession of
unauthorized headwear, because such an issue “would only be seen as
[Martinez’s] word vs. [Butts’s] word.” Butts again maintained that Martinez
had denied him dinner because of his religious beliefs and then placed him in
the SHU as “punishment and retaliation because [Butts] was going to write
him up.”
The Regional Director, Defendant Geraldo Maldonado, ordered a
rehearing on the procedural ground that Butts had not received a copy of the
incident report until two days after the events in the chow-hall, and the
incident report gave no reason for the delay. According to Butts, however, the
UDC “decided not to have the rehearing as ‘ordered,’ but ‘squashed it.’”
Butts was “dissatisfied with this decision” by the UDC and appealed
back to Maldonado. No copy of the appeal appears in the record, but Defendant
Banks alleges that Butts filed it on April 26, 2011. On May 8, 2011, Butts sent
Maldonado an “[a]ttachment to [his] formal complaint against Lt. Martinez.”
In the attachment, Butts alleged that, on May 6, 2011, Banks had informed
him that Martinez had been responsible for excluding Butts’s statement and
witness list from the incident report.
On May 18, 2011, citing Maldonado’s failure to respond, Butts submitted
to the BOP Central Office a handwritten appeal, which he characterized as a
“BP-11.” In this appeal, Butts complained exclusively about Martinez’s actions,
claiming that Martinez had violated his First Amendment and due process
rights, retaliated against and defamed him falsely imprisoned him, and denied
him a meal because of his religious beliefs. Butts concluded by requesting that
“Martinez be fully investigated and that actions or sanctions be taken against
him” under BOP regulations.
The Administrator of National Inmate Appeals, Defendant Harrell
Watts, denied the appeal. Watts recounted that Butts had alleged violations of
No. 15-41640
7
his rights by “a staff member” and had requested that “the staff member” be
investigated and sanctioned. Watts found no evidence supporting Butts’s
allegations. Watts also noted that Martinez’s incident report had already been
expunged and removed from Butts’s disciplinary record.
C. Procedural Background
On March 6, 2012, Butts filed a Bivens lawsuit against BOP employees.
When his pro se amended complaint is liberally construed,4 Butts claimed that
Martinez had (1) violated his First Amendment rights and the Religious
Freedom Restoration Act (“RFRA”) by forcing him to choose between his
religious beliefs and eating; (2) retaliated against him for complaining to
Cranmer–Sutton; (3) violated his Fourth Amendment rights by ordering
searches of his cell and strip searches of his person; (4) defamed him;
(5) violated his Eighth Amendment rights by denying him a meal and falsely
imprisoning him in the SHU; (6) violated his due process rights by (a) ignoring
Butts’s statement and request for witnesses prior to the disciplinary hearing,
and (b) improperly discarding and denying him personal property; and
(7) violated his equal protection rights by discriminating against him on the
basis of religion. Butts also stated numerous claims against other Defendants.
He sought compensatory, nominal, punitive, and exemplary damages.
The Defendants filed a motion to dismiss or, alternatively, for summary
judgment. In addition to arguing the merits, the Defendants asserted that
Butts had failed to exhaust his administrative remedies and that the court
lacked personal jurisdiction over Defendant Watts. The district court granted
dismissal and summary judgment based upon Butts’s failure to exhaust his
claims. In the alternative, the district court granted dismissal and summary
4 Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989) (“Pro se prisoner complaints
must be read in a liberal fashion . . . .” (quoting Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir.
1976)).
No. 15-41640
8
judgment on the ground that it lacked personal jurisdiction over Watts and on
the merits as to the claims against the other Defendants. Butts filed a motion
for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). The
district court denied the motion. Butts timely filed a notice of appeal.
II. DISCUSSION
On appeal, Butts contests the district court’s denial of his Rule 59(e)
motion, which requires review of both that denial and the underlying
judgment. See Fed. R. App. P. 4(a)(4)(A)(iv); Martinez v. Johnson, 104 F.3d 769,
771 (5th Cir. 1997) (citing United States v. One 1988 Dodge Pickup, 959 F.2d
37, 41 n.5 (5th Cir. 1992)). This Court reviews de novo a grant of summary
judgment and applies the same standards as the district court. Mayfield v. Tex.
Dep’t of Crim. Justice, 529 F.3d 599, 603–04 (5th Cir. 2008). “The [district]
court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute as to a material fact is
‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–
52 (1986)). The evidence, including factual allegations set forth in verified
complaints,5 is viewed “in the light most favorable to the nonmoving party, but
conclusional allegations and unsubstantiated assertions may not be relied on
as evidence.” Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011). The
court must “draw all reasonable inferences in favor of the nonmoving party”
and “refrain from making credibility determinations or weighing the evidence.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
5 See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (“On summary judgment,
factual allegations set forth in a verified complaint may be treated the same as when they
are contained in an affidavit.”).
No. 15-41640
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(citations and internal quotation marks omitted). This Court reviews the
denial of a Rule 59(e) motion for an abuse of discretion. Dearmore v. City of
Garland, 519 F.3d 517, 520 (5th Cir. 2008).
A. Exhaustion
Butts and the Defendants contest whether the district court erred in
dismissing Butts’s claims for failure to exhaust. We agree that Butts failed to
exhaust his claims against all Defendants other than Martinez.
Before bringing suit, the Prison Litigation Reform Act (“PLRA”) requires
that a prisoner exhaust all available administrative remedies. 42 U.S.C.
§ 1997e(a) (“No 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 requirement applies to Bivens
actions. Porter v. Nussle, 534 U.S. 516, 524 (2002). “[T]he PLRA exhaustion
requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93
(2006). That is, “prisoners must complete the administrative review process in
accordance with the applicable procedural rules—rules that are defined not by
the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S.
199, 218 (2007) (internal citation and quotation marks omitted). The BOP
offers a four-step grievance procedure: (1) informal resolution of the issue with
prison staff, submitted on form BP-8; (2) a formal administrative remedy
request to the Warden, submitted on form BP-9; (3) an appeal to the Regional
Director, submitted on form BP-10; and (4) a national appeal to the Office of
General Counsel in Washington, D.C., submitted on form BP-11. 28 C.F.R.
§§ 542.13–15.
This Court takes “a strict approach” to the exhaustion requirement. Days
v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003), overruled by implication on other
grounds by Jones, 549 U.S. at 216. Under this strict approach, “mere
No. 15-41640
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‛substantial compliance’ with administrative remedy procedures does not
satisfy exhaustion.” Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). An
inmate’s grievance must be sufficiently specific to give “officials a fair
opportunity to address the problem that will later form the basis of the
lawsuit.” Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). This Court
reviews the district court’s legal rulings concerning exhaustion de novo and its
factual findings for clear error. Dillon, 596 F.3d at 273.
1. Butts’s Claims Against All Defendants Other Than Martinez
A review of the administrative grievance forms at issue shows that Butts
failed to exhaust his administrative remedies as to his claims against all
Defendants other than Martinez. See Johnson, 385 F.3d at 517 (requiring that
prisoners provide sufficient information to address a grievance, including who
was involved for claims that a guard acted improperly). When his pro se reply
brief is liberally construed, Butts claims that the three-page factual summary,
which he attached to some of his grievances, was sufficiently specific to give
officials a fair opportunity to address the claims against Defendants other than
Martinez. While Butts referenced the actions of some of the other Defendants
in the summary, he did not accuse any of them of wrongdoing. Moreover,
Butts’s BP-11 requests only that Martinez be investigated and sanctioned.
Accordingly, the district court did not err by dismissing Butts’s claims against
the other Defendants.
2. Butts’s Claims Against Martinez
The district court agreed with the Defendants that the BOP’s
administrative remedy program allowed Butts only to raise one issue per
grievance form, and his grievance forms only challenged the correctness of his
disciplinary conviction by the UDC. The district court reasoned, without
further elaboration, that “[w]hile plaintiff did exhaust all steps of the grievance
procedure for his claims related to the disciplinary proceeding which resulted
No. 15-41640
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in the disciplinary conviction being overturned due to a procedural error
regarding notice, plaintiff failed to properly raise his other constitutional
claims.” The Defendants maintain that Butts did not address any claims other
than the correctness of the UDC’s initial decision in his grievance forms and
that the district court correctly analyzed the issue.
However, neither the district court nor the Defendants acknowledge that,
beginning with his BP-9 and continuing throughout the administrative
grievance process, Butts consistently complained that Martinez had violated
his religious rights and had retaliated against him. Further, as the Defendants
concede, the BOP administrative grievance process allows a prisoner to raise
more than one complaint per grievance form so long as the complaints are
closely related. See 28 C.F.R. § 542.14(c)(2) (“The inmate shall place a single
complaint or a reasonable number of closely related issues on the [BP-9]
form.”). Neither the district court nor the Defendants explain how Butts’s
claims against Martinez for violation of his religious rights and retaliation are
not closely related to his appeal from the UDC’s decision. Given this, Butts has
shown that the district court erred by dismissing his claims against Martinez
for retaliation and violation of his religious rights for failure to exhaust
administrative remedies.
Butts’s claim that he was improperly searched, however, was not
exhausted. Although he mentioned searches of his cell and property in his BP-
9, BP-10, and the factual summary, Butts did not complain in his BP-11 that
Martinez had ordered or conducted any improper searches. In his reply brief,
Butts asserts that he attached the factual summary, which mentions searches,
“to each grievance, through each step” and that “[e]ach grievance filed [was]
accompanied [by] the previous ones.” However, the affidavit of BOP employee
James E. Robinson, to which the administrative grievance forms were attached
as exhibits, states that “Attachment 4 [constitutes] a true and correct copy” of
No. 15-41640
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Butts’s BP-11. That attachment contains no copies of the factual summary or
other grievances mentioning improper searches. In any event, Butts was
required to “state specifically the reason for appeal” in his BP-11, see 28 C.F.R.
§ 542.15(b)(1), and his BP-11 itself does not mention searches.
As he did not complete the administrative grievance process with regard
to his stand-alone claim that Martinez violated his Fourth Amendment rights,
the district court did not err by dismissing that claim for failure to exhaust
administrative remedies. This Court need not consider whether Butts properly
exhausted his other claims against Martinez because, as shown below, either
he has abandoned them on appeal or they lack merit.
B. Summary Judgment on Exhausted Claims Against Martinez
Butts argues that the district court erred by granting summary judgment
on the merits of his claims against Martinez. Specifically, Butts argues that
Martinez violated his First Amendment right to freely exercise his religious
beliefs, retaliated against him for exercising his constitutional rights, violated
his due process rights, and discriminated against him on the basis of religion
in violation of his equal protection rights.6 We evaluate these claims in turn.
1. First Amendment Free Exercise Claim
Butts asserts an implied right to monetary damages under Bivens
because Martinez violated his First Amendment right to freely exercise his
religious beliefs. Neither the Supreme Court nor this Circuit has directly
6 Butts, however, does not substantively brief any challenges to the district court’s
dismissal of his Eighth Amendment, RFRA, or defamation claims. Nowhere in his brief on
appeal, including the section pertaining to the violation of his First Amendment rights, does
Butts mention RFRA. While Butts references solitary confinement, he does so only in support
of his Fourth Amendment and retaliation claims, and does not otherwise argue an Eighth
Amendment violation on appeal. He has therefore abandoned those three claims. See Geiger
v. Jowers, 404 F.3d 371, 373 n.6 (5th Cir. 2005) (“Although pro se briefs are to be liberally
construed, pro se litigants have no general immunity from the rule that issues and arguments
not briefed on appeal are abandoned.” (citation omitted)).
No. 15-41640
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extended Bivens to violations of the Free Exercise Clause. See Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009). Given the complexity of the Bivens issue and the
dearth of arguments available to this Court, we decline to conduct such an
analysis here, and remand the issue for consideration before the district court.
Lawful incarceration inherently involves the limitation of many
privileges and rights, but prisoners still benefit from some constitutional
protections, including the First Amendment “directive that no law shall
prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S.
342, 348 (1987). Whether a prison regulation impermissibly encroaches upon
a prisoner’s First Amendment rights depends upon whether it is “reasonably
related to legitimate penological interests.” Mayfield, 529 F.3d at 607 (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). To assist courts in assessing whether
a regulation burdening a prisoner’s constitutional rights is reasonably related
to a legitimate penological interest, the Supreme Court enumerated four
factors:
(1) [W]hether a “valid, rational connection [exists] between the
prison regulation and the legitimate governmental interest put
forward to justify it,” (2) whether there exist “alternative means of
exercising the fundamental right that remain open to prison
inmates,” (3) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally,” and (4) whether there
is an “absence of ready alternatives” to the regulation in question.
Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (quoting Turner, 482 U.S.
at 89–90). The same standard applies to challenges based on prison authorities’
actions as prison regulations. See Jackson v. Cain, 864 F.2d 1235, 1248 (5th
Cir. 1989) (applying Turner to determine whether acts of prison authorities
violated an inmate’s First Amendment rights). Ultimately, “the government
objective must be a legitimate and neutral one.” Mayfield, 529 F.3d at 607
(quoting Turner, 482 U.S. at 90). And this Court has denied summary
No. 15-41640
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judgment when a question of fact exists as to whether the government’s
objective is legitimate. See id. at 612.
When his pro se brief is liberally construed, Butts argues that the district
court erred by granting summary judgment because whether Martinez was
acting pursuant to a legitimate penological interest necessarily turns on the
factual question whether Butts was wearing a gray or black yarmulke in the
chow hall. See Mayfield, 529 F.3d at 612 (denying summary judgment for
further factual development of whether a prison regulation violated the
inmate’s free-exercise rights). If the yarmulke was black, Butts contends,
Martinez had no such legitimate interest given that BOP policy has long
allowed black yarmulkes.
The district court did not specifically address why the factual question of
the yarmulke’s color did not preclude summary judgment. Instead, the district
court first noted that “[w]hether suing under the Free Exercise Clause, RFRA
and [the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)],
plaintiffs must first raise a material question of fact regarding whether the
BOP has placed a ‘substantial burden’ on their ability to practice their
religion.” And it concluded that the denial of a single meal to Butts did not rise
to the level of substantial interference necessary to state a constitutional claim.
In support of this conclusion, the court cited several opinions (only one of which
was authored by this Court) holding that discrete or occasional denials of meals
or religious services do not form bases for First Amendment or RFRA claims.
See, e.g., Williams v. Bragg, 537 F. App’x 468, 468–69 (5th Cir. 2013) (holding
that occasional cancellations of Muslim services did not violate prisoner’s First
Amendment rights).
But the analysis of Butts’s First Amendment free exercise claim proceeds
under a different framework than claims brought under RLUIPA or RFRA.
Other circuits have required that a prisoner must make a threshold showing
No. 15-41640
15
that a regulation imposes a substantial burden on their religious exercise in
order to maintain free exercise claims.7 However, free exercise claims in this
Circuit are analyzed under the Turner framework separately and
independently from RFRA and RLUIPA claims. Compare Mayfield, 529 F.3d
at 607–12 (analyzing free exercise claims under Turner without addressing
whether regulations substantially burdened inmate’s free exercise), with
Mayfield, 529 F.3d at 612–14 (analyzing whether regulations substantially
burdened religious exercise under RLUIPA). Generally, this Court has not
required a preliminary showing that a regulation substantially interferes with
an inmate’s religious rights before assessing whether the regulation is
reasonably related to a penological interest.8 In assessing whether Martinez’s
actions violated Butts’s First Amendment rights, we must therefore determine
whether Martinez’s actions were reasonably related to a legitimate penological
interest under the deferential standard set forth in Turner.
7 See Ford v. McGinnis, 352 F.3d 582, 592 (2d Cir. 2003) (noting a circuit split on the
issue and assuming that the substantial burden test applies at the threshold of a Turner
analysis); Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007) (assessing whether a prison
official’s conduct “substantially burdened” sincerely-held religious beliefs before applying
Turner); Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (requiring as a
pre-requisite that an inmate “raise a material question of fact regarding whether the BOP
has placed a ‘substantial burden’ on his ability to practice his religion” for Free Exercise,
RFRA, and RLUIPA claims); Canell v. Lightner, 143 F.3d 1210, 1214–15 (9th Cir. 1998)
(finding that interference with prayer activities did not constitute a substantial burden on
inmate’s free exercise of religion).
8 See, e.g., Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) (analyzing a free exercise
claim under Turner and separately analyzing whether the action “substantially burdened”
the practice of religion under RLUIPA); Muhammad v. Lynaugh, 966 F.2d 901 (5th Cir. 1992)
(analyzing a free exercise claim under Turner without addressing whether the policy
substantially interfered with his right); Mitchell v. Quarterman, 515 F. App’x 244, 246–47
(5th Cir. 2012) (same); see also Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003) (rejecting
Defendants’ argument that an inmate is required to show that the challenged prison policy
“substantially burdens” religious beliefs in a free exercise claim). But see Randall v. McLeod,
No. 95-10106, 1995 WL 581973, at *4 (5th Cir. Sept. 15, 1995) (holding that prisoner did not
allege facts to show a substantial burden on his right to freely exercise religion when prison
officials had failed to provide him with a pork-free meal on two separate occasions).
No. 15-41640
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Butts alleged in his verified complaint that (1) a BOP policy allows
prisoners to wear white or black yarmulkes;9 (2) he was wearing a black
yarmulke when Martinez told him that his headwear was not “BOP issued;”
(3) Martinez refused to allow Butts to dine without removing his yarmulke,
and Butts chose to leave rather than remove it; (4) Martinez intended to harass
Butts for being Jewish, as shown by the facts that Martinez “cut [Butts] off”
when Butts tried to answer his questions and confiscated Butts’s ID;
(5) Martinez subsequently made up a story that Butts was wearing a gray
yarmulke to “cover-up” his harassment of Butts and to “set [Butts] up to be a
liar, which is what he wrote [Butts] up for;” and (6) several facts showed that
Martinez had lied about the gray yarmulke, including that no gray yarmulke
was ever found despite that Butts’s cell and property were searched three times
and that Butts was strip searched twice, the chaplain had only ever seen Butts
wear a black yarmulke, and Martinez did not confiscate the alleged gray
yarmulke despite a BOP policy requiring the immediate confiscation of
unauthorized items or contraband.
Defendants maintained, in their motion for summary judgment, that
Martinez had a legitimate penological interest in confronting Butts because
(1) “[Martinez] could [have] reasonably believe[d that] a violation of prison
policy occurred by [Butts] wearing the yarmulke,” (2) Butts was “disallowed
from wearing the yarmulke he possessed [because] its status as an authorized
institutional item was in question,” and (3) prison officials were required to
“maintain the secure and orderly running of the institution” or else
“inmates . . . might perceive disciplinary staff were not serious about enforcing
9 Butts attached a copy of the policy in question to his opposition to the Defendants’
motion for summary judgment. He also attached to his opposition a copy of an email from
“Religious Services Low [sic]” indicating that a policy allowing prisoners to wear yarmulkes
had been in effect since at least December 31, 2004.
No. 15-41640
17
institution rules and policies.” The Defendants did not specifically identify, or
attach copies of, the BOP policies that they argue Martinez was seeking to
enforce.
We conclude that Butts has raised an issue of material fact regarding
the legitimacy of Martinez’s actions. Whether there is a “valid, rational
connection” between Martinez’s actions and “legitimate governmental
interest” under Turner’s first factor depends on resolving the fact issue
regarding the color of the yarmulke. See Jackson v. Cain, 864 F.2d 1235, 1248
(5th Cir. 1989). If the color complied with BOP policies, then the reasons
advanced by the Defendants (enforcing institution rules and policies) do not
appear to be legitimate. On the other hand, if the color of the yarmulke violated
BOP policies, the penological interest appears legitimate and must be analyzed
under the remaining Turner factors. See Fluker v. King, 679 F. App’x 325, 330
(5th Cir. 2017) (“‘Factor one’ is ‘controlling’; ‘the other factors merely help a
court determine if the connection is logical.’” (quoting Scott v. Miss. Dep’t of
Corr., 961 F.2d 77, 81 (5th Cir. 1992)). Because Butts has raised a fact issue as
to whether Martinez acted pursuant to a legitimate penological interest, we
conclude that summary judgment on his First Amendment claim was
inappropriate.
However, the district court did not address the issue of whether a Bivens
remedy is available for violations of the Free Exercise Clause under these
circumstances. In Bivens, the Supreme Court recognized “an implied private
action for damages against federal officers alleged to have violated a citizen’s
constitutional rights” for the first time. Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 66 (2001); see also Bivens, 403 U.S. 388. Specifically, Bivens implied a
damages remedy for violations of the Fourth Amendment prohibition against
unreasonable searches and seizures. See Bivens, 403 U.S. at 397. “The purpose
of Bivens is to deter individual federal officers from committing constitutional
No. 15-41640
18
violations.” Malesko, 534 U.S. at 70. But a Bivens remedy is not available for
all constitutional violations. In fact, expanding the implied cause of action
under Bivens is “a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017) (citing Iqbal, 556 U.S. at 675). Since Bivens’s inception, the
Supreme Court has only extended Bivens beyond the deprivation of Fourth
Amendment rights on two occasions: for violations of the Fifth Amendment
Due Process Clause for gender discrimination, Davis v. Passman, 442 U.S. 228
(1979), and for violations of the Eighth Amendment prohibition against cruel
and unusual punishment, Carlson v. Green, 446 U.S. 14 (1980). Abbasi, 137 S.
Ct. at 1854–55.
In order to determine whether a Bivens remedy is available, courts must
first assess whether Butts’s claim presents a new Bivens context. See Iqbal,
556 U.S. at 675 (quoting Malesko, 534 U.S. at 68). If so, there are two
circumstances where Bivens does not recognize an implied cause of action for
constitutional violations. First, Bivens claims are unavailable “if there are
‘special factors counselling hesitation in the absence of affirmative action by
Congress.’” Abbasi, 137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18); see
also Zuspann v. Brown, 60 F.3d 1156, 1160 (5th Cir. 1995) (quoting Bivens, 403
U.S. at 396). Second, Bivens remedies may be foreclosed by congressional
action where an “alternative, existing process for protecting the interest
amounts to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551
U.S. 537, 550 (2007).
Because the Supreme Court has not recognized a Bivens remedy in the
First Amendment context, Butts’s claim likely presents a new context under
Bivens. See Abbasi, 137 S. Ct. at 1859, 1864; Iqbal, 556 U.S. at 675. This Court
has also recognized that “a Bivens action is analogous to an action under
§ 1983—the only difference being that § 1983 applies to constitutional
No. 15-41640
19
violations by state, rather than federal, officials.” Evans v. Ball, 168 F.3d 856,
863 n.10 (5th Cir. 1999), abrogated on other grounds by Castellano v. Fragozo,
352 F.3d 939 (5th Cir. 2003). And “[t]his [C]ourt does not distinguish between
Bivens claims and § 1983 claims.” Espinal v. Bemis, 464 F. App’x 250, 251 (5th
Cir. 2012) (citing Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005)).
Although this Court “may affirm the district court’s decision on any grounds
supported by the record,” Phillips ex rel. Phillips v. Monroe Cty., 311 F.3d 369,
376 (5th Cir. 2002), we decline to assess whether a Bivens remedy is available
for Butts’s free exercise claim. Neither the district court nor the parties’ briefs
on appeal addressed the issue of whether a Bivens remedy is available for
violations of the Free Exercise Clause. And questions regarding the proper
scope of Bivens are complex, often involving thorough analyses of alternative
remedy schemes created by Congress or factors counselling hesitation in the
absence of such action. See, e.g., Abbassi, 137 S. Ct. at 1858–63; Bush v. Lucas,
462 U.S. 367, 380–90 (1983). Without the benefit of further argument, we are
ill-equipped to conduct such an analysis.
On remand, the district court should examine whether a Bivens remedy
is available for violations of the Free Exercise Clause. The district court should
also appoint counsel for Butts given the complexity and importance of this
issue. While a trial court is not required to appoint counsel for an indigent
plaintiff, the court has discretion to do so if, as here, it would advance the
proper administration of justice. See Sanchez v. Chapman, 352 F. App’x 955,
957 (5th Cir. 2009) (citing Branch v. Cole, 686 F.2d 264, 266–67 (5th Cir.
1982)). Accordingly, we remand Butts’s free exercise claim to the district court
with instructions to appoint counsel.
2. Retaliation Claim
Butts argues that the district court erred by granting summary
judgment on his retaliation claim against Martinez. Prison officials may not
No. 15-41640
20
retaliate against prisoners for exercising their constitutional rights. Zebrowski
v. U.S. Fed. Bureau of Prisons, 558 F. App’x 355, 358 (5th Cir. 2014) (citing
Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986)). This includes a prisoner’s
First Amendment right to file grievances, as retaliation has the potential to
discourage exercising that right. See Morris v. Powell, 449 F.3d 682, 686 (5th
Cir. 2006). In order to successfully plead retaliation, Butts must establish that
“(1) [he exercised] a specific constitutional right, (2) [Martinez] inten[ded] to
retaliate against [Butts] for his . . . exercise of that right, (3) [Martinez took] a
retaliatory adverse act, and (4) causation.” Bibbs v. Early, 541 F.3d 267, 270
(5th Cir. 2008) (citation omitted); see also Zebrowski, 558 F. App’x at 358. Butts
must “produce direct evidence of motivation” or “allege a chronology of events
from which retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995) (citations omitted). The retaliatory adverse act must
be more than de minimis to state a viable retaliation claim; the act must be
“capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.” Morris, 449 F.3d at 686; see Bibbs, 541 F.3d at 271–72
(surveying case law regarding de minimis acts in retaliation claims).
“Filing grievances and otherwise complaining about the conduct of
correctional officers through proper channels are constitutionally protected
activities, and prison officials may not retaliate against inmates for engaging
in such protected activities.” Reese v. Skinner, 322 F. App’x 381, 383 (5th Cir.
2009) (citing Morris, 449 F.3d at 684). When Butts’s pro se complaint is
liberally construed, he alleges that Martinez retaliated against him after
Martinez learned from Cranmer–Sutton that Butts intended to file an
administrative grievance against Martinez. Thus, Butts alleged that he had
exercised a specific constitutional right. See Bibbs, 541 F.3d at 270; Reese, 322
F. App’x at 383.
No. 15-41640
21
In rejecting Butts’s claim for failure to establish a retaliatory motive or
causation, the district court implicitly, but improperly, determined that
Martinez’s claim regarding the existence of a gray yarmulke was credible. See
Turner, 476 F.3d at 343 (noting that courts should “refrain from making
credibility determinations or weighing the evidence” at the summary judgment
stage). Butts alleged, however, that Martinez’s actions established his
motivation for retaliation: roughly two hours after Butts spoke with Cranmer–
Sutton about Martinez, Martinez falsely accused Butts of having worn a gray
yarmulke, wrote Butts up for lying regarding the gray yarmulke, and sent him
to the SHU. When viewed in the light most favorable to Butts, Carnaby, 636
F.3d at 187, these allegations revealed evidence of a retaliatory motive and
causation. See Woods, 60 F.3d at 1166. Thus, the district court’s grant of
summary judgment was inappropriate.
Like Butts’s free exercise claim, however, neither the district court nor
the parties addressed whether Butt’s retaliation claim is actionable under
Bivens. Retaliation claims are actionable under § 1983. See, e.g., Morris, 449
F.3d at 684. And a “Bivens action is analogous to an action under § 1983.”
Evans, 168 F.3d at 863 n.10. This Circuit thus does not distinguish between
Bivens and § 1983 claims. Izen, 398 F.3d at 367 n.3. Indeed, this Circuit has
largely permitted Bivens claims against prison officials alleging retaliation for
exercising a constitutional right without addressing whether a Bivens remedy
is available for such claims. See, e.g., Zebrowski, 558 F. App’x at 358; Burnette
v. Bureau of Prisons, 277 F. App’x 329, 332–33 (5th Cir. 2007); Muniz v.
Childers, No. 95-50786, 1996 WL 255193, at *2 (5th Cir. Apr. 23, 1996). But
whether Bivens extends to First Amendment retaliation claims remains
inconclusive. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). On remand,
the district court should consider whether a Bivens remedy is available under
No. 15-41640
22
these circumstances and appoint counsel for Butts. See Sanchez, 352 F. App’x
at 957 (citing Branch, 686 F.2d at 266–67).
3. Due Process Claim
Butts argues that the district court erred by granting summary judgment
on his due process claims. To establish a due process violation in the prison
context, a plaintiff must show that he was deprived of a liberty interest
protected by the Constitution or statute. See Richardson v. Joslin, 501 F.3d
415, 418–19 (5th Cir. 2007) (citing Sandin v. Conner, 515 U.S. 472, 479 n.4,
483–84 (1995)); see also Zebrowski, 558 F. App’x at 358–59. But “[i]n the
context of prison disciplinary proceedings, not every punishment gives rise to
a constitutional claim.” Zebrowski, 558 F. App’x at 358–59. “[A] prisoner’s
liberty interests are not violated unless a condition ‘imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.’” Driggers v. Cruz, 740 F.3d 333, 338 (5th Cir. 2014) (quoting
Sandin, 515 U.S. at 484). Thus, in determining whether an individual’s due
process rights have been violated, this Court first considers whether he has
been denied a liberty or property interest. See Ky. Dep’t of Corrs. v. Thompson,
490 U.S. 454, 460 (1989). Only if an individual makes such a showing will this
Court consider “whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Id.
Here, Butts would be entitled to procedural due process with respect to
his disciplinary proceeding if the hearing implicated a protected liberty
interest. See id. However, neither the nine days of SHU confinement nor the
30-day loss of commissary privileges implicated a protected liberty interest.
See Malchi v. Thaler, 211 F.3d 953, 958–59 (5th Cir. 2000) (loss of commissary
privileges and cell restriction do not implicate due process concerns); Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995) (placement in administrative
segregation without more does not amount to the deprivation of a
No. 15-41640
23
constitutionally protected liberty interest). Butts therefore fails to show that
the district court erred by granting summary judgment on his due process
claims.
4. Equal Protection Claim
When his pro se brief is liberally construed, Butts alleges that the district
court erred by dismissing, without addressing, his claim that Martinez
discriminated against him on the basis of religion in violation of his equal
protection right. The Fourteenth Amendment, which applies to state officials,
contains an equal protection clause, while the Fifth Amendment, which applies
to federal officials, does not. Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
Nevertheless, “the Fifth Amendment’s Due Process Clause contains within it
the prohibition against denying to any person the equal protection of the laws.”
United States v. Windsor, 133 S. Ct. 2675, 2695 (2013). Fifth Amendment equal
protection claims against federal actors are analyzed under the same
standards as Fourteenth Amendment equal protection claims against state
actors. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
To establish an Equal Protection Clause violation, Butts “must prove
purposeful discrimination resulting in a discriminatory effect among persons
similarly situated.” Baranowski v. Hart, 486 F.3d 112, 123 (5th Cir. 2007)
(citation and internal quotation marks omitted). Nowhere in his complaint
does Butts identify any other individuals or groups that he claims were
similarly situated but received superior treatment from Martinez, nor does he
address this issue in his appellate brief. He therefore fails to show that the
district court erred by dismissing such a claim on summary judgment.
III. CONCLUSION
For the foregoing reasons, we find that the district court improperly
dismissed Butts’s free exercise and retaliation claims against Martinez on
summary judgment. On remand, the district court should appoint counsel for
No. 15-41640
24
Butts. We affirm the dismissal on summary judgment of Butts’s claims against
Defendants other than Martinez, as well as his due process and equal
protection claims against Martinez for the reasons stated by the district court.

Outcome: Accordingly, we AFFIRM in part and REVERSE and REMAND in part for
further proceedings consistent with this opinion.

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