Shabazz v. Secretary, Department of Corrections et al

Filing 102

OPINION AND ORDER granting 88 motion to dismiss and the Amended Complaint is dismissed with prejudice as to defendant Morales; granting in part and denying in part 96 motion to dismiss as to defendant Stewart. Plaintiff's Fourteenth A mendment Equal Protection claim is dismissed with prejudice and and the First Amendment retaliation claim against Stewart is dismissed without prejudice due to lack of exhaustion. The Clerk shall enter judgment in favor of defendant Morales and prov ide plaintiff with a blank civil rights complaint form with this Opinion and Order. Within 20 days, Stewart shall file an answer to the First Amendment Free Exercise claim contained in the Amended Complaint. Signed by Judge John E. Steele on 9/27/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABDUL HAKEEN JAHMAL NASEER
SHABAZZ, aka Owen D. Denson,
Jr.,
Plaintiff,
v.

Case No:

2:17-cv-648-FtM-29NPM

JOHNNY MORALES, Correctional
Officer - Colonel and SCOTT
STEWART, Adm. Lieutenant,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendant Morales’ Motion
to Dismiss Plaintiff’s Amended Complaint (Doc. 88, “Morales Motion”)
filed February 6, 2019 and Defendant Stewart’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. #96, “Stewart Motion”) filed
May 13, 2019.

Plaintiff responded to the Morales Motion on March

4, 2019 (Doc. #90) and to the Stewart Motion on June 26, 2019 (Doc.
#99).

The Court finds these matters ripe for review.
I. Background and Factual Allegations

Abdul Hakeeen Jahmal Naseer Shabazz, also known as Owen D.
Denson, is a Florida state inmate proceeding pro se on his Amended
Complaint filed under 42 U.S.C. § 1983 on May 7, 2018 (Doc. #78).
By way of background, on November 21, 2017, the Tampa Division
transferred this action to this Court after issuing a Temporary

Restraining

Order

(Doc.

#17)

which

enjoined

the

then

named

defendants 1 from requiring Shabazz to shave his beard or impose
discipline on Shabazz for violating the DOC grooming policy.
operation of law, the Temporary Restraining Order expired.
March 12, 2018

Order of Court

(Doc. #71).

By
See

The Court sought

clarification from Plaintiff whether he was seeking to enjoin the
current DOC grooming policy set forth in the Florida Administrative
Code which, in pertinent part, provides:
All inmates shall elect either to be clean shaven or to
grow and maintain a half-inch beard. Such a beard shall
include all the hair that grows naturally on the face and
front of the neck, excluding eyebrows and eyelashes. . ..
Those male inmates who desire to remain clean shaven shall
be clipper shaved three times per week, and those inmates
who desire to grow a half-inch beard shall have their
beards trimmed three times per week with a clipper with
a half-inch guard.
Fla. Admin. Code, Ch. 33-602.101 Care of Inmates (4)-(5) (effective
7-20-2017).

(Id., ¶ 2). On April 2, 2018, Plaintiff advised the

Court that he was challenging the current DOC grooming policy under
RLUIPA.

(Doc. #74).

remained pending.

At that time, Plaintiff’s original complaint

(See generally docket).

On March 7, 2018, the

Court granted Plaintiff’s motion requesting leave to file an amended
complaint (Doc. #68), and on April 17, 2018, granted Plaintiff an
extension of time to file his amended complaint (Doc. #77).

1

As

Plaintiff’s original complaint named inter alia the
Secretary, Department of Corrections (“DOC”), the Warden and
Assistant Warden, all in their official capacity. See Doc. #1.

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noted above, Plaintiff filed his Amended Complaint on May 7, 2018
(Doc. #78) which sues only Desoto Correctional

Officers Scott

Stewart and Johnny Morales in their individual capacities. (Id. at
2).

On May 10, 2018, the Court finding the Amended Complaint the

“operative pleading for this action” denied the various pending
motions to dismiss by the original named defendants as moot.

(Doc.

#79, ¶¶ 1-2). The Court then directed service of the Amended
Complaint on Defendants Morales and Stewart.

(Doc. #81).

The Amended Complaint alleges that Defendants Stewart and
Morales violated Shabazz’s “First and Fourteenth Amendment rights
to the free practice of religion” by forcing him to choose between
engaging in conduct that “seriously violates Plaintiff’s religious
beliefs” or violating the DOC grooming policy that permits inmates
to grow a one-half inch beard.
grooming

policy

violates

Shabazz contends that the DOC

the

Religious

Land

Use

and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et
seq. because it prevents him “clipping the mustache and letting the
beard flow.”

(Doc. #78 at 6).

The Court interprets this language

to mean that Shabazz asserts that his deeply held religious beliefs
require him to grow a beard of an indeterminate length.

The Amended

Complaint in passing also alleges a First Amendment retaliation
claim against Defendant Stewart for an incident that took place on
April 26, 2018 (Id. at 4, 15).

Shabazz seeks declaratory relief,

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monetary damages, and temporary and permanent injunctive relief.
(Id.). The Court accepts these facts as true for this motion.
Defendant Morales
In the first week of April 2018, Defendant Morales summoned
Plaintiff to his office and advised him that the assistant attorney
general notified him the temporary restraining order that had been
entered had expired.

Doc. #78 at 12.

Morales told Plaintiff that

he needed to comply with the DOC grooming policy and shave his beard
to a one-half inch length or he would be placed in confinement.
Id.

Morales directed his officers to make sure that Plaintiff

continued to keep his beard groomed pursuant to the DOC policy.
Id.

In response to Plaintiff’s objection that he had litigation

pending, Morales replied “I don’t give a damn about your religion,
you are going to shave, or you will be placed in confinement.

If

you want to grow your beard it can be no longer than ½ [inch].”
Id.
Defendant Stewart
On an unspecified date in July 2017, 2 Defendant Stewart forced
Plaintiff to “be shaved.”

Id. at 14. Plaintiff advised Defendant

Stewart that it was against his religion to shave his beard to the
one-half inch set forth by the DOC policy because his religion

2

The Amended Complaint contains only the year (2017) but
Plaintiff claims the incident occurred in July 2017 in his reply.
Compare Doc. #78 at 14 and Doc. #99 at 2.

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“requires me to ‘clip’ the moustache and let the beard flow.”

Id.

Stewart replied, “he did not give a damn about [Shabazz’s] religion
that policy calls for [Shabazz] to either shave or grow a ½ [inch]
beard.”

Id.

Stewart

then

ordered

Sergeant

Plaintiff to the barbershop “to bald his face.”

Gill

to

escort

Id.

Defendant Stewart states that Plaintiff’s allegation that he
“bald his face” or “shave” means “trim his beard to one-half inch
length.”

Doc. #96 at 3, n.1.

In response, Plaintiff states he was

forced “to bald his face or be placed in disciplinary confinement
not to a one-half inch beard in July, 2017.” Doc. #99 at 2.
Plaintiff filed a grievance about the forced shaving incident
involving Stewart and it was finally denied on August 11, 2017.
Id. at 15.

Plaintiff alleges “there is a reasonable probability

that Defendant Stewart took the denial of Plaintiff’s grievance as
an

[sic]

carte

bla[n]che

to

constitutional rights. Id.
came

into

Shabazz’s

continue

to

violate

Plaintiff’s”

On April 26, 2018, Defendant Stewart

living

quarters

and

“flipped

Plaintiff’s

mattress, tipped Plaintiff’s holy Quran and other legal documents
and left them scattered.”

Id.

Plaintiff admits that “no grievance

was filed” for the April 26, 2018 incident “because the issue is
already in litigation” in the instant case.

Id.

II. Motion to Dismiss and Standard of Review
Defendants seek dismissal of the Complaint under Fed. R. Civ.
P. 12(b)(6) and qualified immunity.

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See generally Doc. #88 and

#96.

In deciding a motion to dismiss, the Court must accept all

factual allegations in a complaint as true and take them in the
light most favorable to the plaintiff.
550 U.S. 544, 556 (2007).

Bell Atlantic v. Twombly,

In general, a complaint must give the

defendants fair notice of what the plaintiff’s claim is and the
grounds on which it rests to satisfy the pleading requirements of
Fed. R. Civ. P. 8.

Id. at 555.

In addition, the plaintiff’s claim

must be plausible on its face to overcome a Rule 12(b)(6) motion to
dismiss.

Id. at 556.

The court must be able to draw a reasonable

inference from the complaint that the defendant is liable for the
misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

While the facts need not be detailed, they must “raise a reasonable
expectation that discovery will reveal evidence” in favor of the
plaintiff’s claim.

Twombly, 550 U.S. at 556.

Labels, conclusions,

and a formulaic recitation of the elements of a cause of action are
not

enough

to

meet

the

plausibility

standard.

Id.

at

555.

Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if the alleged
claim is not supported by enough factual allegations to raise a
reasonable expectation of relief.
III.
A.

Id.

Analysis

Amended Complaint is Operative Pleading

The Court granted Plaintiff’s motion for leave to file an
amended

complaint

on

March

7,

2018

(Doc.

#68).

Complaint supersedes Plaintiff’s original complaint.

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The

Amended

Schreane v.

Middlebrooks, 522 F. App’x 845, 847-48 (11th Cir. 2013); see also
Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada,
674 F.2d 1365, 1370 n. 6 (11th Cir. 1982(“as a general rule, an
amended complaint supersedes and replaces the original complaint
unless the amendment specifically refers to or adopts the earlier
pleading.”).

The Court’s Local Rules requires “any party permitted

to amend a pleading shall file the amended pleading in its entirety
with the amendment incorporated therein.”

M.D. Fla. R. 4.01(a).

Plaintiff’s pro se status does not excuse him from the Court’s
procedural or local rules.

Schreane, 522 F. App’x at 847 (citing

McNeil v. U.S., 508 U.S. 106, 113 (1993)). And on May 10, 2018, the
Court made clear that the Amended Complaint was “the operative
pleading” when it denied as moot the original named defendants’
motions to dismiss Plaintiff’s original complaint as moot.

(See

Doc. #79). The Amended Complaint does not refer to or incorporate
by reference the original complaint and the Court made clear that
the Amended Complaint was the operative pleading for this action.
Consequently, the Court considers only the allegations and facts
set

forth

in

the

Amended

Complaint

in

ruling

on

Defendants’

respective motions.
B. RLIUPA
Plaintiff contends DOC’s grooming policy violates RLIUPA and
he seeks a temporary and permanent injunction.

RLIUPA “provide[s]

greater protection for religious exercise than is available under

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the

First

Amendment.”

Holt

v.

Hobbs,

135

S.

(2015) (quotation marks and citations omitted).

Ct.

853,

859

In Holt, the

Supreme Court held the Arkansas Department of Corrections’ grooming
policy violated RLIUPA insofar as it prevented the plaintiff from
growing a one-half inch beard in accordance with his religious
beliefs.

Id. at 867.

a “focused inquiry.”

The Court concedes that the RLUIPA requires
Id. at 863.

Applying the “individualized,

context specific inquiry” required by Holt in a RLIUPA claim would
require the DOC “to demonstrate that application of the grooming
policies to [Shabazz] furthers its compelling interests.”
Owens, 848 F.3d 975, 981 (11th Cir. 2017).

Smith v.

However, the issue of

whether the DOC grooming policy violates RLIUPA as applied to
Shabazz

is

not

presently

before

the

authorize individual-capacity suits.

Court.

RLUIPA

does

not

Hathcock v. Cohen, 287 F.

App'x 793, 798 n.6 (11th Cir. 2008)(“[I]ndividual capacity RLUIPA
claims are not cognizable.”).

As a result, Plaintiff cannot proceed

on his RLIUPA claim against either Defendant Stewart or Morales
because he names both defendants in their individual capacity only.
Fatal to Plaintiff’s RLIUPA claim is the fact he did not name the
Secretary of the Florida Department of Corrections (or any official)
in his official capacity in his Amended Complaint.

The Court

therefore need to not address Plaintiff’s RLUIPA claim at this

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time. 3
C.

First Amendment—Free Exercise Clause

Defendants assert that they have a right to qualified immunity
from

suit

in

their

individual

capacities

Plaintiff’s First Amendment claim.

in

connection

with

Defendants argue that they were

exercising their discretionary duty when they directed Plaintiff to
adhere to the DOC grooming policy and because the DOC grooming
policy is consistent with Holt, that they did not violate clearly
establish law.
Unlike a RLIUPA claim that applies a “least-restrictive means
standard,” a First Amendment challenge to a prison regulation or
policy “alleged to infringe constitutional rights are judged under
a

‘reasonableness’

applied
rights.”

to

alleged

test

less

restrictive

infringements

of

than

that

fundamental

ordinarily

constitutional

O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).

The Turner v. Safley 4 standard of review applies to claim that an
inmate’s free exercise rights have been violated by a regulation or
policy.

And, courts are required to give respect and deference to

3

To the extent that Plaintiff seeks to challenge the DOC’s
grooming policy as violating RLIUPA as applied to him and seeks
injunctive relief to be exempt from the same, the proper named
defendant would be the Secretary of the Florida Department of
Corrections in his official capacity. See Ex parte Young, 209 U.S.
123 (1908).
4

Turner v. Safley, 482 U.S. 78 (1987).

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the

judgment

of

prison

administrators

in

considering

a

First

Amendment challenge. O’Lone, 482 U.S. at 350.
Qualified immunity is “an immunity from suit rather than a mere
defense to liability,” and it is thus “effectively lost if a case
is erroneously permitted to go to trial.” Pearson v. Callahan, 555
U.S. 223, 231 (2009)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). The “driving force” behind the doctrine is the “desire to
ensure

that

[will]

be

original).
First

insubstantial
resolved

prior

claims
to

against

government

discovery.”

Id.

officials

(alteration

in

Even conceding that Plaintiff has plausibly stated a

Amendment

claim

stemming

from

the

DOC

grooming

policy, 5

qualified immunity applies to bar the claim if, based on the facts
presented, “a reasonable officer could have believed [his actions]
to

be

lawful,

in

light

of

clearly

established

law

and

the

information the ... officers possessed.” Anderson v. Creighton, 483
U.S. 635, 641 (1987).

See also Reichle v. Howards, 566 U.S. 658,

664 (2012)(“[c]ourts may grant qualified immunity on the ground that
a purported right was not ‘clearly established’ by prior case law,
without resolving the often ore difficult question whether the
purported right exists at all.”(internal citations omitted)).

“To

be clearly established, a right must be sufficiently clear ‘that

5

See Robbins v. Robertson, __ F. App’x __, 2019 WL 3302229
*5(11th Cir. July 23, 2019).

- 10 -

every reasonable official would have understood that what he is
doing violates that right.”
The

Court

finds

Id. (citations omitted).

Defendant

Morales

was

acting

in

his

discretionary duty when he ordered Plaintiff to comply with the DOC
grooming

policy

and

Defendant

Stewart

was

acting

in

his

discretionary duty when he ordered Plaintiff “to bald his face or
be placed in disciplinary confinement.”

See Roberts v. Spielman,

643 F.3d 899, 903 (11th Cir. 2011) (holding that discretionary
authority includes all actions taken by an official pursuant to his
duties and within his authority).

The Court next turns to whether

Defendant Morales and Defendant Stewart believed their alleged
actions violated established law.
1.

Defendant Morales

As set forth above, Plaintiff acknowledges that Defendant
Morales informed him that he had received a telephone call from the
Assistant State Attorney General who had advised that the temporary
restraining order had expired so Plaintiff would have to comply with
the DOC grooming policy. Defendant points out that the DOC grooming
policy which permits inmates to grow a half-inch beard comports with
Holt, which as noted earlier was decided under RLIUPA, an act passed
to provide “greater protection” for religious liberty cases than
provided by the First Amendment.

Holt, 135 S. Ct. 859-60.

Thus,

the Court finds it was reasonable for Defendant Morales to believe
his actions were lawful.

Even if Plaintiff eventually successfully

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challenges the DOC grooming policy as violating RLIUPA as applied
to him, Plaintiff still cannot show that the constitutional right
in

question

was

“clearly

established”

at

the

directed he comply with the DOC grooming policy.

time

Defendants

For a right to be

“clearly established” for qualified immunity purposes, “existing
precedent must have placed the statutory or constitutional question
beyond debate.”
Defendant

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Morales

applied

the

standard

facially-neutral

DOC

grooming policy that applies to all inmates to Shabazz only after
learning that the temporary restraining order had expired that
temporarily exempted him from the policy.

No clearly established

law suggested that applying the current DOC policy requiring Shabazz
to groom his beard to one-half inch would violate his clearly
established

First

Amendment

rights.

And

Plaintiff

does

not

identify any statute or decision of the United States Supreme Court,
the Eleventh Circuit or Florida Supreme Court opining that inmates
have a constitutional right to grow a beard of an indeterminate
length

in

accordance

with

his

religious

beliefs.

The

Court

therefore finds that the facts as alleged in the Amended Complaint
fail to show that Defendant Morale’s conduct violated Shabazz’s
constitutional rights or that any alleged constitutional right was
then “clearly established.” Reichle, 566 U.S. at 664-65.

The Court

thus finds that Defendant Morales has a right to qualified immunity
claim on Plaintiff’s First Amendment free exercise claim.

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2.

Defendant Stewart

Plaintiff alleges that in July 2017 Defendant Stewart ordered
Sergeant Gill to escort Plaintiff to the barbershop “to bald his
face.”

Doc. #78 at 14.

Plaintiff in his response disputes that he

was given the option to comply with the DOC’s one-half inch beard
policy.

Doc. #99 at 2.

The Amended Complaint is otherwise devoid

of any facts surrounding Defendant Stewart’s order to have Plaintiff
“bald his face.”

The Court is required to accept the allegations

in the Amended Complaint as true at this stage of the pleading
process.
Prior to Holt, the Eleventh Circuit Court of Appeals had
repeatedly

found

that

grooming

facilities

were

interests.

Indeed, DOC’s previous forced-shaving regulation (i.e.

reasonably

regulations

related

to

in

legitimate

correctional
penological

no beard policy) was held by the Eleventh Circuit not to violate
the First Amendment or RLIUPA.

See Muhammad v. Colon, 494 F. App’x

953, 956 (11th Cir. 2012); see also Shabazz v. Barnauskas, 790 F.2d
1536, 1538 (11th Cir. 1986) (per curiam) (holding that “the state’s
no

beard

preventing

rule

serve[s]

escape.”).

a
The

legitimate
Court

penological

recognizes

that

interest
the

in

Amended

Complaint is devoid of the circumstances surrounding the alleged
order directing Shabazz to be bald faced.
that a no beard

Nonetheless, Holt held

policy substantially burdened

exercise of his religion on the facts presented.

- 13 -

the plaintiff’s
Holt, 135 S. Ct.

at 863.

Further, current DOC policy permits Plaintiff to grow at

a minimum a one-half inch beard.

Thus, the Court cannot at this

stage of the pleadings find that Defendant Stewart reasonably
believed

his

order

reasonably lawful.

directing

Shabazz

to

be

shaved

bald

was

Consequently, the Court will deny Defendant

Stewart qualified immunity on Plaintiff’s First Amendment Free
Exercise claim without prejudice.
D.

Fourteenth Amendment—Equal Protection Clause

The

Amended

Complaint

Fourteenth Amendment.

makes

a

passing

See Doc. #78 at 3-4.

reference

to

the

The Amended Complaint

lacks any factual allegations that support or give rise to a
Fourteenth Amendment violation.

The Equal Protection Clause under

the Fourteenth Amendment requires that persons similarly situated
be treated alike. Plyer v. Doe, 457 U.S. 202, 216 (1982). To state
such a claim, a plaintiff must allege and be able to demonstrate
that he has been treated differently from others who are similarly
situated, and that the unequal treatment stemmed from intentional
discrimination.

Muhammad v. Sapp, 388 F. App’x 892, 899 (2010).

The Amended Complaint does not allege, yet alone describe, how
Shabazz is treated differently than any other inmate who wants to
grow a beard of an indeterminate length.

Instead, the Amended

Complaint complains that all inmates were required to comply with
the DOC grooming policy.

Thus, the Amended Complaint fails to state

- 14 -

claim

for

relief

under

the

Fourteenth

Amendment

as

to

either

Defendant.
E.

First Amendment-Retaliation Against Defendant Stewart

The PLRA compels proper exhaustion of available administrative
remedies before a prisoner can seek relief in federal court on a §
1983 complaint.

Specifically, 42 U.S.C. §

1997e(a) states 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.

The

Eleventh Circuit further determined that “the

question of exhaustion under the PLRA [is] a ‘threshold matter’ that
[federal courts must] address before considering the merits of the
case.

Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).

The “failure to exhaust is an affirmative defense under the PLRA,”
however,

and

“inmates

are

not

required

to

specially

plead

or

demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S.
199, 216 (2007).

However, a complaint may be dismissed for failure

to exhaust if the lack of exhaustion appears on the face of the
complaint.

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.2011).

Chandler, 379 F.3d at 1286.

Because exhaustion is mandated by the

statute, [this court has] no discretion to waive this requirement.
Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998).”

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Myles

v. Miami-Dade Cty. Corr. and Rehab. Dep't, 476 F. App’x 364, 366
(11th Cir. 2012).
For these reasons, the Court will “resolve this issue first”
as it relates to Plaintiff’s retaliation claim against Defendant
Stewart.

Plaintiff admits on the face of his Amended Complaint

that he did not file a grievance concerning the incident that took
place on April 26, 2018.

Plaintiff appears to suggest he is exempt

from filing a grievance because he had already begun the instant
litigation.

The Prison Litigation Reform Act expressly requires

exhaustion “prior to institution a § 1983 a suit.”

Porter v.

Nussle, 534 U.S. 516, 524 (2002); see also Johnson v. Meadow, 418
F.3d 1152, 1156 (11th Cir. 2005).

Because Plaintiff admits that he

filed “no grievance” over the April 26, 2018 incident, the Court is
mandated to dismiss this claim.
Even if the Court considered Plaintiff’s retaliation claim,
the Court finds it subject to dismissal.
Amendment

forbids

prison

officials

from

Admittedly, the First
retaliating

prisoners for the exercise of their free speech rights.
West, 320 F.3d 1235, 1248 (2003).

against
Farrow v.

To prevail on a retaliation

claim, the inmate must be able to establish that “(1) his speech
was constitutionally protected; (2) the inmate suffered adverse
action such that the [official's] allegedly retaliatory conduct
would likely deter a person of ordinary firmness from engaging in
such speech; and (3) there is a causal relationship between the

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retaliatory action [the disciplinary punishment] and the protected
speech [the grievance].”

O’Bryant v. Finch, 637 F.3d 1207, 1212

(11th Cir. 2011).
In the alternative, even assuming Defendant Stewart learned
that Plaintiff had filed a grievance against him, (not alleged) an
eight-month period elapsed between the date when the grievance was
finally denied and the date of the alleged incident.
finds this lapse in time
retaliatory motive.

too

remote to be

The Court

attributable to a

See Godwin v. Corizon Health, 732 F. App’x

805, 809 (11th Cir. 2018) (“[W]hile close temporal proximity of a
protected activity and a subsequent adverse action may be probative
of discriminatory intent, a three-month interval between the two is
insufficient to establish a causal connection, as a matter of law.”)
(citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363-64
(11th Cir. 2007)).

Therefore, the Court finds Plaintiff has failed

to articulate a causal connection between Plaintiff’s filing of the
grievance and Defendant Stewart’s alleged adverse action.
Accordingly, it is hereby
ORDERED:
1.

Defendant Morales’ Motion to Dismiss Plaintiff’s Amended

Complaint (Doc. #88) is GRANTED and Plaintiff’s Amended Complaint
is DISMISSED with prejudice against Defendant Morales.

The Clerk

shall enter judgment in favor of Defendant Morales and correct the
caption to reflect the dismissal of Defendant Morales.

- 17 -

2.

Defendant Stewart’s Motion to Dismiss Plaintiff’s Amended

Complaint

(Doc.

Plaintiff’s
DISMISSED

#96)

is

Fourteenth
with

GRANTED

in

Amendment

prejudice

and

part

Equal

and

DENIED

Protection

Plaintiff’s

in

part.

claim

First

is

Amendment

retaliation claim against Defendant Stewart is DISMISSED without
prejudice due to lack of exhaustion.

Plaintiff’s First Amendment

Free Exercise claim remains pending against Defendant Stewart.
3.

Within twenty (20) days from the date of this Opinion and

Order, Defendant Stewart shall file an answer to Plaintiff’s First
Amendment Free Exercise claim as contained in his Amended Complaint.
4.
because

The Court makes no ruling on Plaintiff’s RLIUPA claim
the

claim

was

not

preserved

in

Plaintiff’s

Amended

Complaint.

Plaintiff is permitted to prosecute a RLUIPA claim to

obtain

injunctive

the

relief

he

seeks

prosecute the claim in a new action.

but

he

is

required

to

The Clerk shall provide

Plaintiff with a blank civil rights complaint form with this Opinion
and Order for Plaintiff’s use, if appropriate.
DONE and ORDERED at Fort Myers, Florida, this
September, 2019.

SA: FTMP-1
Copies:
Counsel of Record

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27th

day of