Fifth Circuit Revives Texas Prisoner’s Suit Alleging Interference With His Muslim Religious Practice
by David M. Reutter
On April 11, 2024, the U.S. Court of Appeals for the Fifth Circuit found error in a lower court’s judgment for Texas Department of Criminal Justice (TDCJ) officials in a lawsuit accusing them of infringing on prisoner Eric Demond Lozano’s ability to practice his religion.
As PLN previously reported, this was one of four lawsuits filed by Lozano. Two others involved denial of Halal meals during a hurricane evacuation. Another alleged that he was retaliated against for grievances filed after his cell fan failed during a muggy August 2019, causing him to suffer from medication-induced heat sensitivity. [See: PLN, May 2023, p.25.]
In this suit, filed pro se, Lozano raised three claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., as well as a claim under the First Amendment’s Establishment Clause. A Sunni Muslim, Lozano alleged that he was unable to properly cleanse himself; that he was denied adequate space to pray; and that other prisoners were provided chapel opportunities to practice their faith while he was denied such opportunities. When the U.S. District Court for the Southern District of Texas granted Defendants’ motion for summary judgment in March 2021, Lozano appealed.
The Fifth Circuit began its analysis with Lozano’s claimed inability to physically and spiritually cleanse himself. TDCJ policy relating to Jum’ah prayer “allow[s] Muslim offenders to shower prior to their Jum’ah service to meet their holy obligation for cleanliness in prayer.” But Lozano objected that non-Muslim prisoners were allowed in the area, where they engaged in “masturbating in the shower, cussing, [and] speaking idol talk,” some leaving feces on the floor after their sexual contact. This, the prisoner said, negatively impacted his obligation to bathe in silent prayer before Jum’ah services.
The Fifth Circuit found a genuine dispute of material fact existed as to whether TDCJ Defendants substantially burdened Lozano’s ability to practice Islam. TDCJ argued that it had a legitimate penological objective in maintaining prison order and security with its shower schedule, including the policy for those prepping for Jum’ah. But the Court said the agency failed to show this was the least restrictive means to further its security objectives.
The Court made a similar finding on Lozano’s claim that he was not offered adequate space to pray five times per day. TDCJ argued that Lozano could stand on his bunk to pray. But Lozano countered that there was insufficient space to stand on his bed. Moreover, he could face disciplinary action for that, he pointed out, and some non-Muslim cellmates took issue with his praying in the cell. The Court found that TDCJ was directly responsible for Lozano’s housing conditions, but it said the agency failed to explain why Lozano could not be housed with another Muslim prisoner or allowed to use a single-man cell so he could pray freely.
Lozano further alleged that religious dorm and unit designations were not neutrally applied across all religions, and that TDCJ failed to recruit enough Muslim Chaplains and volunteers. An all-Muslim dorm or unit, he said, would enhance prisoners’ access to religious programming and resolve the controversy. The Court found this presented another set of disputed material facts that required resolution in the district court.
Finally, the Court turned to the Establishment Clause claim. Lozano alleged that Jewish and Native American prisoners were provided space and time in the prison chapel while Muslim prisoners were denied space and time for their services. Moreover, TDCJ used Christian materials in all its faith-based dorms. Once again, the Court found disputed material facts that needed resolution at the district court. That court’s order was therefore reversed and the case remanded. Before the Court, Lozano was represented by appointed attorney James R. Sheppard III of King & Spalding LLP in Houston. See: Lozano v. Collier, 98 F.4th 614 (5th Cir. 2024).
The case has now returned to the district court, where Lozano retains appointed counsel. PLN will update developments as they are available. See: Lozano v. Collier, USDC (S.D. Tex.), Case No. 3:18-cv-00237.
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