Grayson v. Furlow et al

Filing 41

ORDER GRANTING 26 Motion to Amend/Correct and DISMISSING AS MOOT 23 Motion to Dismiss. The Clerk of Court is DIRECTED to file Graysons proposed Amended Complaint as the First Amended Complaint. Although the entirety of Graysons proposed Amended Complaint will be filed, only the First Amendment, Eighth Amendment and Fourteenth Amendment claims will proceed in this action. Signed by Magistrate Judge Donald G. Wilkerson on 8/13/2018. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
)
Plaintiff,
)
)
v.
)
SEAN FURLOW and THOMAS SPILLER, )
)
)
Defendants.
OMAR GRAYSON,

Case No. 3:17-cv-539-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Pending before the Court are Defendants’ Motion to Dismiss Plaintiff’s Complaint (Doc.
23) and Plaintiff’s Motion to File First Amended Complaint (Doc. 26). For the reasons set forth
below, the Court GRANTS Plaintiff’s Motion to Amend and DISMISSES as MOOT
Defendants’ Motion to Dismiss (Doc. 23).
BACKGROUND AND PROCEDURAL FACTS
Plaintiff Omar Grayson, a former Illinois Department of Corrections inmate, filed the
current action alleging violation of his rights under the Religious Land and Institutionalized
Persons Act (RLUIPA), and the First and Eighth amendments of the United States Constitution
(Doc. 1). On February 6, 2018 Grayson filed a motion to amend his complaint in order to “more
clearly frame the legal particulars” and to add “some facts that were omitted in the original
complaint.” (Doc. 26).
Grayson is a member of the African Hebrew Israelites of Jerusalem, a religious

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organization (Doc. 1, ¶ 6). 1 As a member of that group, Grayson has taken the “Nazirite Vow”
which requires him not to cut his hair (Doc. 1, ¶ 6). As a result, Grayson wore his hair in what he
described in his Complaint as three-inch skinny dreadlocks (Doc. 1, ¶ 7). He was allowed to wear
his hair in this manner while at Stateville Correctional Center (Doc. 1, ¶ 8). However, when he was
transferred to Pinckneyville Correctional Center on September 6, 2013 he was informed he would
have to remove his dreadlocks in order to take an identification photograph (Doc. 1, ¶ 9). In his
proposed Amended Complaint, Grayson clarifies that he was told this by Defendant Furlow and
Warden Goetting (not a defendant). He further states that despite his objections, he eventually
agreed to comb out his dreadlocks, but began re-growing them immediately after the photograph
was taken.
On or about February 17, 2015 Grayson was taken to Internal Affairs after he was issued a
ticket for wearing his dreadlocks in a braid. His hair was manually search by Defendant Sean
Furlow who took pictures and informed Grayson his hair was “deemed searchable” (Doc. 1, ¶ 15).
However, three days later he was again taken to Internal Affairs and told by Furlow he would need
to remove his dreadlocks in order to have another identification photograph taken (Doc. 1, ¶ 16).
Grayson told the prison officials the only way to remove his dreadlocks was to either brush them
out, which was extremely painful, or to cut them (Doc. 1, ¶ 17). He also told the officials, including
Furlow, that to cut his hair would be breaking a religious vow.
On February 23, 2015, Grayson filed a Complaint and a Motion for Preliminary Injunction
to prevent Defendants from cutting his hair (15-cv-198-NJR-DGW; Doc. 1, ¶ 18). After his
Complaint was filed, Grayson was manually searched several more times and issued disciplinary

1

The majority of facts stated in the proposed Amended Complaint are the same as those alleged in Grayson’s original
Complaint. Because the proposed Amended Complaint is not part of the docket, the Court has cited to the original
Complaint where the facts in the proposed Amended Complaint are similar. Those facts included only in the proposed
Amended Complaint are not cited.

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tickets for his dreadlocks. On March 13, 2015 the Court issued a Report and Recommendation to
the District Judge that the Motion for Preliminary Injunction be granted and Defendants be
enjoined

from

“cutting

Plaintiff’s

hair

or

from

combing

out

his

dreadlocks”

(15-cv-198-NJR-DGW Doc. 18, p. 18; Doc. 1, ¶ 23). However, after the filing of the Motion for
Preliminary Injunction but before entry of the Report and Recommendation, Pinckneyville
officials forcible cut off Grayson’s dreadlocks (Doc. 1, ¶ 24).
In his proposed Amended Complaint, Grayson states that Furlow told him he was the
individual at Pinckneyville responsible for supervising the “situation of inmates with dreadlocks,”
but the ultimate decision about whether to cut an inmate’s dreadlocks was made by Warden
Spiller. It was, however, Furlow who ordered the tactical team to cut off Grayson’s dreadlocks
(Doc. 1, ¶ 5).
The only reason given to Grayson for the removal of his dreadlocks was the need to take an
identification photograph (Doc. 1, ¶¶ 9, 16).
Grayson’s proposed Amended Complaint alleges he suffered severe emotional distress,
including months of mental anguish and sleeplessness leading up to and after the incident because
of nightmares about corrections officers coming into his cell and cutting off his hair. Further, he
states he suffered from depression, was placed on suicide watch, and was prescribed Trazadone by
a psychiatrist at Pinckneyville.
Grayson was released from prison on December 3, 2015 (Doc. 1, ¶ 3) and filed the current
action on May 22, 2017 (Doc. 1). Defendants filed the pending Motion to Dismiss on January 2,
2018 (Doc. 23). Grayson filed a Motion to File First Amended Complaint a month later, on
February 6, 2018 (Doc. 26). 2 On April 2, 2018 Grayson informed the Court he had been arrested
2

The proposed Amended Complaint, however, was not included with the motion and Grayson was granted additional
time to submit the proposed Amended Complaint (Doc. 30). The proposed Amended Complaint was eventually

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on a parole violation and was waiting to be picked up by the IDOC (Doc. 29). He is currently being
held at Henrico County Jail in Virginia (Doc. 40).

ANALYSIS
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading, and that
leave to amend should be freely given when justice so requires. This Circuit recognizes “the
complaint merely serves to put the defendant on notice and is to be freely amended or
constructively amended as the case develops, as long as amendments do not unfairly surprise or
prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989). Accordingly,
the Court is to liberally allow amendment of pleadings “so that cases may be decided on the merits
and not on the basis of technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.
1977). However, a court may deny a party leave to amend in the presence of undue delay, futility,
bad faith, prejudice, or dilatory motive. Indiana Funeral Directors Ins. Trust v. Trustmark Ins.
Corp., 347 F.3d 652, 655 (7th Cir. 2003); see also: Rodriguez v. United States, 286 F.3d 972, 980
(7th Cir. 2002). The district court's decision to grant or deny a motion for leave to file an amended
pleading is “a matter purely within the sound discretion of the district court. Guise v. BWM Mortg.,
LLC, 377 F.3d 795, 801 (7th Cir. 2004) (quoting J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935 F.2d
815, 819 (7th Cir.1991)). 3
Here, Grayson raises claims under RLUIPA as well as the First, Fourteenth and Eighth
Amendments.

received by the Court on June 15, 2018.
3
Because Grayson was not incarcerated at the time he filed the original complaint, or at the time he filed his Motion to
Amend, the Court need not conduct a threshold review pursuant to 28 U.S.C. § 1915A. Further, because Grayson filed
the Motion to Amend more than twenty-one days after service of the Motion to Dismiss, he is not entitled to amend as
a matter of course. FED. R. CIV. P. 15(a)(1)(B). The Court must review the proposed amended complaint, however, for
undue delay, futility, bad faith, prejudice, or dilatory motive. Indiana Funeral Directors Ins. Trust v. Trustmark Ins.
Corp., 347 F.3d 652, 655 (7th Cir. 2003); see also: Rodriguez v. United States, 286 F.3d 972, 980 (7th Cir. 2002).

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Religious Land Use and Institutionalized Persons Act (RLUIPA)

To establish a claim under RLUIPA, the plaintiff bears the initial burden of showing they
(1) seek to engage in an exercise of religion, and (2) the challenged practice substantially burdens
that exercise of religion. 42 U.S.C. § 2000cc-2(b). Once the plaintiff produces prima facie
evidence to support the claim, the defendants “bear the burden of persuasion on any [other]
element of the claim, except that the plaintiff shall bear the burden of persuasion on whether [the
challenged practice or law] substantially burdens the plaintiff’s exercise of religion.”
Id. Additionally, the government has the burden of proving their practice “is the least restrictive
means of furthering a compelling governmental interest.” Id.; Lovelace v. Lee, 472 F.3d 174, 186
(4th Cir. 2006).
However, because the act does not create a cause of action against state employees in their
personal capacity, and damages against the state are barred by the doctrine of sovereign immunity,
the only relief available to prisoners under RLUIPA is injunctive. Grayson, 666 F.3d at 451.
Further, that injunctive relief is only available where there is a continuing violation of a federal
law. Al-Alamin v. Gramley, 926 F.2d 680, 685 (7th Cir. 1991).
It is undisputed Grayson was released from prison on December 3, 2015 (Doc. 1, ¶ 3).
Normally, release from prison makes a prisoner’s claims for injunctive relief moot. Grayson, 666
F.3d at 451. Grayson argues, however, he has violated his parole and is currently in jail in Virginia
waiting for IDOC to pick him up and return him to their physical custody (Doc. 1, ¶ 3; Doc. 28, ¶¶
6, 8; Docs. 39-40). 4 Thus, his return to IDOC is “not a remote possibility” (Doc. 28, p. 3).
The IDOC, however, has over twenty-five facilities not including Pinckneyville. 5 Even

4

A copy of the proposed Amended Complaint received by the Court on June 15, 2018 appears to have been sent from
Culpepper County Jail in Virginia, confirming Grayson’s statements about his incarceration in Virginia.
5
Just some of the correctional facilities currently operated by the IDOC include: Centralia Correctional Center;

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assuming IDOC intends to return Grayson to Illinois, there is no reason to believe he will be placed
back in the same facility. Where there is only a remote possibility a prisoner will be reincarcerated
in the same state facility, and therefore subject to the same violations alleged in the Complaint, no
prospective injunctive relief is available. Ortiz v. Downey, 561 F.3d 664, 667 (7th Cir. 2009)
(referencing Preiser v. Newkirk, 422 U.S. 395, 402 (1975)).
Thus, Grayson’s RLUIPA claim would be futile and is therefore dismissed.
FIRST AMENDMENT
Prisoners retain the right to exercise their religious beliefs, although that right is not
unfettered. Turner v. Safley, 482 U.S. 78, 89–91 (1987); Tarpley v. Allen County, In., 312 F.3d
895, 898 (7th Cir. 2002). Prison officials may restrict an inmate's ability to practice his faith only
so long as the restriction is reasonably related to a legitimate penological interest, such as security
or economic concerns. Al–Alamin v. Gramley, 926 F.2d at 686.
Here, Grayson has taken a religious oath not to cut his hair (Doc. 1, ¶ 6). He alleges the
only reason his dreadlocks were forcibly removed was to enable the prison to take an identification
photograph (Doc. 1, ¶¶ 9, 16) and he was allowed to regrow his dreadlocks between photographs.
The evidence before the Court at this early stage, therefore, suggests the prison did not have a
legitimate security reason to forcible remove Grayson’s dreadlocks. Thus, Grayson has
sufficiently pled a claim for violation of his First Amendment right to exercise his religious beliefs.

Danville Correctional Center; Decatur Correctional Center; Dixon Correctional Center; East Moline Correctional
Center; Graham Correctional Center; Hill Correctional Center; Illinois River Correctional Center; Jacksonville
Correctional Center; Lawrence Correctional Center; Lincoln Correctional Center; Logan Correctional Center; Menard
Correctional Center; Pontiac Correctional Center; Robinson Correctional Center; Shawnee Correctional Center;
Sheridan Correctional Center; Southwestern Illinois Correctional Center; Stateville Correctional Center; Taylorville
Correctional Center; Vandalia Correctional Center; Vienna Correctional Center; and Western Illinois Correctional
Center. Illinois Department of Corrections, All Facilities, (last visited July 31, 2018)
https://www2.illinois.gov/idoc/facilities/pages/allfacilities.aspx.

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FOURTEENTH AMENDMENT
When a Fourteenth Amendment equal protection claim is similar to a claim under another
constitutional clause, courts will analyze the complaint under the most “explicit source[s] of
constitutional protection.” Graham v. Connor, 490 U.S. 386, 395 (1989). Accordingly, Fourteenth
Amendment equal protection claims that are essentially duplicative of First Amendment free
exercise claims are routinely dismissed. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.2005)
(dismissing equal protection and Eighth Amendment claims based on same circumstances as a free
exercise claim because the free exercise claim “gains nothing by attracting additional constitutional
labels”).
Here, however, Grayson claims prison officials arbitrarily discriminated against him in favor
of other inmate groups (i.e., Rastafarians). Although the religious dimension of the discrimination
alleged here is governed by the First Amendment, a separate claim regarding the arbitrariness of that
religious discrimination may separately implicate the equal protection clause. Reed v. Faulkner, 842
F.2d 960, 962 (7th Cir. 1988). Although the Court is not convinced this claim will ultimately succeed,
Grayson had pled enough that the Court cannot say his Fourteenth Amendment claim is futile. 6

EIGHTH AMENDMENT
The Eighth Amendment prohibits punishments which “involve the unnecessary and
wanton infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Among “unnecessary
and wanton” inflictions of pain are those that are “totally without penological justification.” Id.
(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Such gratuitous infliction of pain need not
produce serious injury in order to violate the Eighth Amendment. Hudson v. McMillian, 503 U.S.
1, 9 (1992). Further, the wanton infliction of psychological pain is also prohibited. Id. at 16.
6

Grayson also raises a claim of discrimination based on gender. He claims that the policy negatively impacts male
inmates because women are allowed to wear dreadlocks. However, this claim is conclusory and unsupported. As such,
he fails to state a separate constitutional claim.

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Here, Grayson’s proposed Amended Complaint alleges he suffered severe emotional
distress. Specifically, he suffered months of mental anguish and sleeplessness leading up to the
incident because of nightmares about corrections officers coming into his cell and cutting off his
dreadlocks. Further, he states he suffered from depression, was placed on suicide watch, and was
prescribed Trazodone by a psychiatrist at Pinckneyville; as a result of threats to cut off his
dreadlocks as well as the forcible shearing of his hair.
As discussed above, the only justification provided to Grayson for forcibly removing his
dreadlocks was the need to obtain a photograph for identification. He was allowed to wear his hair
in dreadlocks at all other times during his incarceration at Pinckneyville. At this very early stage at
least, there appears to be little penological justification for forcible removing Grayson’s
dreadlocks. As such, he has sufficiently alleged an Eighth Amendment claim.

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Amend (Doc. 26) and
DISMISSES as MOOT Defendants’ Motion to Dismiss (Doc. 23). The Clerk of Court is
DIRECTED to file Grayson’s proposed Amended Complaint as the First Amended Complaint.
The Court notes that, although the entirety of Grayson’s proposed Amended Complaint will be
filed; only the First Amendment, Eighth Amendment and Fourteenth Amendment claims will
proceed in this action.

So Ordered.
DATED: August 13, 2018

DONALD G. WILKERSON
United States Magistrate Judge

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