Shabazz v. Secretary, Department of Corrections et al

Filing 152

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION granting 141 Motion for Preliminary Injunction. The requirement for a bond is waived. See separate preliminary injunction for details. Signed by Judge John E. Steele on 7/24/2020. (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:

MARK S. INCH,
Florida D.O.C.,

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

Secretary,

Defendant.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff’s

Fourth

Amended

Complaint

seeks

permanent

injunctive and declaratory relief as to the Florida Department of
Correction (DOC) grooming policy as it pertains to the length of
a beard he may grow while in the custody of the DOC.

Plaintiff

alleges that the failure to allow him to grow a fist-length (four
inches) beard violates his rights under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc2000cc-5. 1

1

See generally (Doc. #138).

On July 10, 2020, the

Section 3 of RLUIPA, which concerns institutionalized persons, states:
No 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
demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a).

Court granted Petitioner’s Motion for a Temporary Restraining
Order.

(Doc.

#140).

The

Temporary

Restraining

Order

(TRO)

enjoined DOC Officials from enforcing the grooming policy in
Chapter 33-602.101, Fla. Stat. against Plaintiff to the extent
Plaintiff was permitted to maintain a fist-length beard of at least
inches 2 and

four

officials

were

prohibited

from

disciplining

Plaintiff for violating the grooming policy while the Order is
still in effect.
on July 24, 2020.

(Id. at 6, ¶ 1).

The Restraining Order expires

(Id., ¶ 2).

Now before the Court is Plaintiff’s Motion for a Preliminary
Injunction

(Doc.

(Doc. #141-1).
TRO.

#141),

which

includes

Plaintiff’s

Affidavit.

Plaintiff seeks the same relief he obtained in the

See generally (Doc. #141).
Defendant filed a Response in Opposition (Doc. #145) on July

13, 2020.

Defendant attaches 180 pages of exhibits to support its

Response, including: an Affidavit of Assistant Warden Lori Norwood
(Doc. #145-1); the Inmate Orientation Handbook (Doc. #145-2); the
DeSoto Correctional Institution Inmate Information/Institutional
Rule Book (Doc. #145-3); the Florida Department of Corrections
Chaplaincy Services 2019 Religion Technical guide for Selected
Religious

Groups

(Doc.

#145-4);

2

the

Barber

and

Cosmetology

The Court erred when it ordered Defendant to permit Plaintiff to grow
a beard of “at least four inches” instead of a beard “not to exceed four inches.”
Given the fourteen-day life of the TRO, this appears harmless but will be
corrected if a preliminary injunction is granted.

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Sanitation Guide (Doc. #145-5); the Chapter 36, Clipper Shave
Sanitation Guide (Doc. #145-6); an Affidavit of Alan McManus (Doc.
#145-7);

and

the

Disciplinary

Record

Actions

of

(Doc.

Plaintiff’s
#145-8).

Inmate

Defendant

Movement
contends

and
an

evidentiary hearing is required before a preliminary injunction
may be entered “because the facts are hotly contested.”
#145 at 2).
that

(Doc.

Specifically, Defendant disputes Plaintiffs assertion

officials

subjected

Plaintiff

to

disciplinary

action

or

retaliation in the recent past, and disagrees with Plaintiff’s
characterization of his disciplinary record as “overwhelmingly
positive.”

(Id.).

Further, Defendant argues that Plaintiff

cannot meet the four requirements for the issuance of a preliminary
injunction.

See generally id.

Plaintiff filed a Reply on July 23, 2020.

See generally

(Doc. #149, Reply).
Upon a thorough review of the Motion, Plaintiff’s affidavit,
Plaintiff’s Fourth Amended Complaint, Defendant’s Response with
exhibits, Plaintiff’s Reply and the record, the Court finds the
material facts are not in dispute, and that an evidentiary hearing
is unnecessary at this stage of the proceedings.

The Court grants

Plaintiff a preliminary injunction while the case proceeds on the
Fourth Amended Complaint.

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I.
Plaintiff

is

Background and Undisputed Facts
an

inmate

in

the

Department of Corrections (DOC).

custody

of

the

Florida

Plaintiff is observant of the

Sunni Muslim faith, which mandates he “grow a beard to at least a
fist-length (approximately 4 inches).” (Doc. #141-1, ¶¶ 3-4).
Defendant does not contest the sincerity of Plaintiff’s faith or
that its tenets require him to have a beard not shorter than fist
length.

See Shabazz v. Barnauskas, 600 F. Supp. 712, 715 (M.D.

Fla. 1985), aff’d, 790 F.2d 1536, 1537 (11th Cir. 1986) (Defendants
stipulated Shabazz’s faith is sincere and growing a beard is deeply
rooted in religious beliefs). It is undisputed that the Florida
Administrative Code, Chapter 33-602.101, requires inmates to be
clean shaven or “grow and maintain a maximum half-inch beard.”
(Doc. #145 at 7).
Plaintiff is 71 years old and had served 43 years of his life
sentence.

3

While

the

parties

disagree

as

to

the

proper

characterization of Plaintiff’s disciplinary record, the record
itself is set forth in the record.

Plaintiff’s disciplinary

records includes: (1) an escape attempt in 1998, for which he was
subjected to 365 days of disciplinary confinement; (2) discipline
for disobeying regulations twice, in 1997 and 1990; (3) various

3 DOC’s Inmate Population Information Detail reflects in 1977 the Pinellas
Circuit Court sentenced Plaintiff to life for robbery with a gun or deadly
weapon (case no. 7700263).

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other discipline at different times throughout his several decades
of incarceration.

(Doc. #145-1, ¶¶ 26-27).

Defendant concedes,

however, that Plaintiff “has been relatively free of disciplinary
charges the last five years.”
suggestion

that

Plaintiff

is

(Doc. #145 at 2.)
involved

with

or

There is no
has

any

gang

affiliations.
II.

Applicable Law

A. Preliminary Injunction
To obtain a preliminary injunction, a movant
the following four criterion:

must establish

(1) a substantial likelihood of

success on the merits, (2) irreparable injury if the relief is not
granted, (3) the issuance of an injunction would not substantially
harm the other litigant(s), and (4) the injunction is not adverse
to the public interest.

Swain v. Junior, 961 F. 3d 1276 (11th

Cir. 2020) (citing Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244,
1247 (11th Cir. 2016)).

“Preliminary injunctions are, by their

nature, products of an expedited process often based upon an
underdeveloped and incomplete evidentiary record.”

Cumulus Media,

Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1171 (11th
Cir. 2002) (citing Revette v. Int'l Ass'n of Bridge, Structural &
Ornamental Iron Workers,740 F.2d 892, 893 (11th Cir. 1984) (per
curiam) (“[T]he grant or denial of a preliminary injunction is
almost always based on an abbreviated set of facts ....”)(internal
quotations and citations omitted)). An evidentiary hearing is

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required for entry of a preliminary injunction only “where facts
are bitterly contested and credibility determinations must be made
to decide whether injunctive relief should issue.”

Cumulus Media,

Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1178 (11th
Cir. 2002)(citing McDonald's Corp. v. Robertson, 147 F.3d 1301,
1312 (11th Cir. 1998)).
B.

RLUIPA

Inmates

retain

religion rights.

their

First

Amendment

free

Cruz v. Beto, 405 U.S. 319 (1972).

exercise

of

A prisoner’s

request for a religious accommodation must be based on a sincerely
held religious belief and not motivated by other factors.
Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014).

See

The RLUIPA

“provide[s] greater protection for religious exercise than is
available under the First Amendment.”

Holt v. Hobbs, 135 S. Ct.

853, 859 (2015) (quotation marks and citations omitted). 4
RLUIPA implements a burden-shifting framework.

The

A plaintiff must

show that (1) his relevant religious exercise is “grounded in a
sincerely held religious belief” and (2) the challenged government
policy “substantially burden[s] that exercise” by forcing the
plaintiff “to ‘engage in conduct that seriously violates [his]
religious beliefs.’ ” Id., at 862 (quoting Hobby Lobby, 134 S. Ct.

4

In Holt, the Supreme Court held the Arkansas Department of Corrections’
grooming policy violated RLUIPA insofar as it prevented the plaintiff from
growing a one-half inch beard in accordance with his religious beliefs. Id.
at 867.

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at 2775).
its

The burden then shifts to the government to show that

action

or

policy

is

(1)

in

furtherance

of

a

compelling

governmental interest; and (2) the least restrictive means of
furthering that interest.

Holt, 135 S. Ct. at 863.

An analysis

as to whether Shabazz can prevail on his RLUIPA requires a “focused
inquiry.”

Id. at 863. This “individualized, context specific

inquiry” required by Holt in a RLUIPA claim requires DOC “to
demonstrate that application of the grooming policies to [Shabazz]
furthers its compelling interests.”
981 (11th Cir. 2017).

Smith v. Owens, 848 F.3d 975,

With these parameters in mind, the Court

considers Plaintiff’s Motion.
III. Analysis
A.

General Objections

Defendant

argues

Plaintiff

may

not

obtain

injunction to create a new rule within the DOC.

a

preliminary

Rather, Defendant

argues that a preliminary injunction may issue only to preserve
the status quo.

In this case, Defendant argues, the status quo

is to continue to allow a beard of no more than one-half inch
despite Plaintiff’s well-founded religious beliefs.
at 7).

(Doc. #145

The Court disagrees.

Plaintiff is asking the Court to permit him to practice his
religion by allowing his beard to freely grow until it reaches
fist length.

He seeks a personal exception to the DOC’s grooming

policy based upon his religious beliefs, not that DOC make a new

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policy

system-wide.

As

pointed

out

by

Plaintiff,

under

Defendant’s theory “no constitutional challenge to a state prison
policy would be ever eligible for injunctive relief.”
at

3).

Plaintiff

seeks

a

proper

interim

remedy

(Doc. #149

to

enjoin

a

continuous violation until the Court can hold a trial and decide
on the request for permanent injunctive relief.
below,

Plaintiff

has

satisfied

preliminary injunction.

his

burden

for

As discussed
issuance

of

a

Nothing requires the Court to continue

to allow conduct which violates Plaintiff’s religious freedom
rights while the case proceeds through the Court process.
Next,

Defendant

asserts

Plaintiff

did

not

exhaust

his

administrative remedies and thus cannot prevail on his claim.
(Doc. #145 at 8).

Defendant does not suggest Plaintiff did not

fully grieve his RLUIPA claim set forth in his Fourth Amended
Complaint, but instead points to the two incidents Plaintiff
references in his Motion in which he asserts officials forced him
to shave to comply with the DOC’s grooming policy.

Defendant also

disputes the factual accuracy of these incidents.

Plaintiff’s

reference to those instances is intended to evidence Plaintiff’s
repeated and continuous injury, and do not constitute separate
claims which need to be administratively exhausted.

The Court

finds the record establishes that Plaintiff has exhausted his
RLUIPA claim set forth in the Fourth Amended Complaint.

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Plaintiff

is

not

required

to

take

futile

administrative

steps

as

to

evidentiary matters.
B.

Likelihood of Success on Merits

There is no dispute that Plaintiff’s religious beliefs are
sincere and that the DOC’s grooming policy as it pertains to the
length of a beard is a substantial burden on Plaintiff’s religious
beliefs.

Thus, the burden shifts to Defendant to show its policy

is to further a compelling governmental interest and is the least
restrictive means of furthering that interest.
Defendant wholly fails to address the compelling interest of
its grooming policy as applied to Shabazz.
(the

RLUIPA

necessitates

a

“more

Holt, 135 S. Ct. 863

focused

inquiry”

and

the

government needs “to demonstrate that the compelling interest test
is satisfied through application of the challenged law ‘to the
person’—the particular claimant whose sincere exercise of religion
is being substantially burdened.’” (citations omitted)). Defendant
points to general security interests - such as the potential to
hide

contraband

institutional

in

a

setting,

beard,

the

concern

need
that

for

uniformity

allowing

in

an

preferential

treatment to Plaintiff would create hostility and discord among
other inmates, use of beards for gang affiliation, and the ability
of a beard to permit an inmate to alter his appearance and to
impede the ability to identify an inmate if he escaped. (Doc. #1451,

¶¶

16-22).

Even

considering

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these

legitimate

security

interests, Defendant does not explain why a less restrictive means
could not accomplish the same goals.
Exceptions

to

regulations,

while

not

the

norm,

are

not

uncommon, and officials’ objections that other inmates will demand
similar treatment have routinely been rejected as a reason for
denying an accommodation.

United States v. Sec’y, Fla. Dep’t of

Corr., 828 F. 3d 1341, 1348 (11th Cir. 2016). Further, the Supreme
Court in Holt and the United States District Court for the Northern
District of Florida in Sims v. Inch, 400 F. Supp. 3d 1272, 1280
(N.D. Fla. 2019) have rejected these general security concerns.
The Court in Holt found dual photographs of an inmate (bald faced
and with a beard) would avoid an inmate’s attempt to use a beard
to disguise his appearance.
court

rejected

government’s

Id., 135 S. Ct. at 864-65.

Defendant’s

interest

in

uniformity

uniformity,

argument

without

The Sims

finding

more,

is

“[a]
rarely

compelling enough to defeat a RLUIPA claim. And in any event, the
Department

has

itself

identified

a

viable

alternative

that

achieves its interest in uniformity: The Department can allow every
inmate the option of having a fist-length beard.”
Supp at 1273.

Id., 400 F.

Beards can be searched for contraband and an inmate

would likely hide contraband in a more secure location.
S. Ct. at 865-66.

Holt, 135

There is no evidence that Shabazz is in a gang,

and he does not challenge the DOC design restrictions in a fist
length beard.

See Sims, 400 F. Supp at 1278. See also Ali v.

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Stephens, 822 F.3d 776, 794 (5th Cir. 2016)(affirming district
court grant of preliminary injunction for claim brought under
RLUIPA and permitting inmate’s request for a fist length beard not
to exceed four inches); see also Smith v. Dozier, 5:12-CV-26 (WLS),
2019 WL 3719400, at *3 (M.D. Ga. Aug. 7, 2019)(finding Georgia
correctional grooming beard policy violative of RLUIPA).
Undoubtedly, the RLUIPA does not negate the ability of prison
officials to maintain security.

Holt, 135 S. Ct. 866.

And,

prison officials may question the authenticity of an individual
inmate’s religious beliefs or withdraw accommodation if an inmate
abuses an exemption.

Id. at 867.

Based upon the current state

of law and the record before the Court, the Court finds Plaintiff
is likely to succeed on the merits of his claim.
C.

Irreparable Injury to Plaintiff
Defendant disputes Plaintiff’s assertions that his attempt to

adhere to his religious beliefs and grow a beard has resulted in
recent disciplinary action or retaliation.
Assistant

Warden

Norwood

states

that

(Doc. #145 at 2).

Plaintiff’s

disciplinary

records from 1978 to the present do not reveal punishment stemming
from enforcement of the grooming policy “at any time after May 21,
1999.”

(Doc. #145, ¶ 26).

Thus, Defendant impliedly concedes

that Plaintiff was subjected to disciplinary action in the past
for his attempts to grow a beard.

Defendant also argues that

Plaintiff’s quandary of choosing between his religious beliefs or

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facing disciplinary confinement “is something he has faced during
his entire lengthy period of incarceration.

Nothing has changed

recently to make his need for relief urgent.”

(Id. at 12).

The court’s records reveal that Plaintiff has repeatedly
sought injunctive relief on this issue, not only in this case, but
in other cases,.

See Shabazz v. Barnauskas, 790 F.2d 1536, 1537

(11th Cir. 1986) (acknowledging Shabazz “has been litigating with
Florida prison officials since the late 1970's concerning whether
he may grow and maintain a beard.”).

What “changed” is the 2015

United States Supreme Court decision in Holt, subjecting DOC’s
regulations to the stricter individualized scrutiny standard.

The

fact is undisputed that Plaintiff is repeatedly forced to choose
between adhering to his religious tenets or being subjected to
disciplinary action.
Other than the arguments raised above, Defendant does not
explain how permitting Plaintiff an exception to the DOC’s beard
grooming

policy

Amendment

is

freedoms,

unduly
for

burdensome.
even

minimal

“[T]he

loss

periods

of
of

First
time,

unquestionably constitutes irreparable injury” for the issuance of
a preliminary injunction.
(1976).

Elrod v. Burns, 427 U.S. 347, 373

Thus, the Court finds the potential harm to Plaintiff is

outweighed by any potential harm to Defendant.
D.

Adverse to Public Interest

Requiring DOC to forego enforcement of its grooming policy to

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a single inmate with Plaintiff’s well-founded religious beliefs is
not contrary to public policy, but furthers the policy stated by
Congress.

“The promise of the free exercise of religion enshrined

in our Constitution . . . lies at the heart of our pluralistic
society.”
(2020).

Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1754
The Eleventh Circuit Court of Appeals has held that “the

public interest is always served in promoting First Amendment
values.”

Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,

1276 (11th Cir. 2001).
The Court finds Plaintiff has satisfied each of the four
factors to obtain a Preliminary Injunction under Federal Rule Civil
Procedure 65.

Given Plaintiff’s indigent status, the Court will

not require Plaintiff to post a bond.
Accordingly, it is hereby
ORDERED:
1. Plaintiff’s Motion for a Preliminary Injunction (Doc. #141)
is

GRANTED.

As

set

forth

in

a

separate

Preliminary

Injunction, Defendant’s officers, agents, servants, and
employees are enjoined from enforcing the grooming policy
in Chapter 33-602.101, Fla. Stat. against Plaintiff to the
extent that Plaintiff shall be permitted to maintain a
fist-length beard not to exceed four inches.

Plaintiff

shall not be subject to any disciplinary measures for

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violating the beard grooming policy while this Order still
is in effect.
2. The requirement for a bond is waived.
DONE and ORDERED at Fort Myers, Florida, this
of July 2020.

SA: FTMP-1
Copies:
Counsel of Record

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24th

day