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officials acting under prison policy are essentially following orders and so they do not violate clearly established law unless those orders are facially outrageous


Rene Michelle Taylor is a former Texas inmate and practicing Muslim. For decades she wore a hijab that covered her hair, ears, and chest. The parties do not dispute that Taylor sincerely believed she needed to wear such a hijab. In 2012 the Texas Department of Criminal Justice (TDCJ) promulgated a system-wide policy regulating hijab size. Taylor admits her hijab was larger and covered more of her than the TDCJ-approved hijab. Prison officials did not at first enforce the new policy against Taylor, but when they did Taylor sued.

Taylor sued pro se following the permanent confiscation of her larger hijab. She brought claims against Rose Nelson, Joy Fattori, Michael Rutledge, and Kimberly Massey under 42 U.S.C. § 1983. Among other things, Taylor alleged that each of these Officials violated her rights under the Free Exercise Clause by having a hand in confiscating her hijab.

The district court granted the Officials summary judgment on all of Taylor’s claims. Taylor appealed and advises us that she now abandons all her claims other than those under the Free Exercise Clause against Nelson, Fattori, and Rutledge. The 5th affirmed.


Taylor mainly argues that the district court misapplied the parties’ burdens in dismissing her claims under the Free Exercise Clause. We agree. The district court faulted Taylor for not complaining in any detail about how the hijab policy violates her First Amendment Rights. But the district court got ahead of itself. All Taylor needed to show at summary judgment was that she was sincere in her religious beliefs. See DeMarco.

Once she did—something nobody disputes— it was up to the Officials to defend their actions. True, reasonable restrictions on religious exercise do not offend the Free Exercise Clause if they stem from legitimate penological concerns. But it is not the prisoner’s or a court’s job to speculate what those concerns are. It is up to officials, rather, to put forward some. The Officials have yet to do so. Therefore, Taylor met her burden at this stage.

Even so, the Officials asserted in the district court that, as state officials, they are entitled to qualified immunity. That meant Taylor had to show that (1) each Official’s conduct violated her constitutional rights, and (2) her right was clearly established at the time of the violation. To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Taylor cannot get past qualified immunity’s second prong.

First, Taylor fails to identify a clearly established right. Taylor contends that the law was clearly established that no restriction on religious practice is constitutional absent a reasonable relationship between the restriction and a legitimate penological concern. But plaintiffs who assert religion-based rights cannot overcome qualified immunity by defining those rights at such a high level of generality. See Morgan. Taylor needed to be more specific.

Second, reasonable officials would not have understood that enforcing the hijab policy was unconstitutional. Legitimate penological interests support whether a prison regulation impinging on inmates’ constitutional rights is valid. But non promulgating officials enforcing that policy act reasonably so long as the policy itself does not itself suffer from an obvious constitutional defect. See Riojas.

We said as much in Cope. There we explained, in the Eighth Amendment context, that officials acting under prison policy are essentially following orders and so they do not violate clearly established law unless those orders are facially outrageous. Taylor admits she violated the hijab policy, but does not argue that it is obviously unconstitutional. Therefore, we cannot agree with her that Officials who enforced it against her violated clearly established law.

Because Taylor cannot overcome the Officials’ qualified immunity defense, the judgment of the district court is AFFIRMED.