Tucker v. Livingston et al

Filing 177

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS for 175 Report and Recommendations. Plaintiff's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate j udge is ADOPTED. The Defendant's motion for summary judgment based on mootness 156 is GRANTED and the lawsuit is DISMISSED WITHOUT PREJUDICE AS MOOT. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations. All motions not previously ruled upon are hereby DENIED. Signed by District Judge Thad Heartfield on 03/04/20. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
GEORGE LEE TUCKER, II

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v.

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BRAD LIVINGSTON, ET AL.

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CIVIL ACTION NO. 6:14cv659

MEMORANDUM ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
The Plaintiff George Lee Tucker II, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding through counsel, filed this civil rights lawsuit under
42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act complaining of
violations of his rights. This Court referred the matter to the Honorable K. Nicole Mitchell, United
States Magistrate Judge, for consideration pursuant to applicable laws and orders of this court.
Plaintiff contended he is an adherent of a group known as the Nation of Gods and Earth
(NOGE), described as an off-shoot of the Nation of Islam. He stated at the time of his lawsuit, the
Muslim groups, including NOGE, assembled together for services, but these services were run by
practitioners of the Sunni sect of Islam. According to Plaintiff, NOGE adherents were not permitted
to express their personal religious beliefs during services, and they could not hold separate services.
For relief in his lawsuit, Plaintiff asked that NOGE members be accommodated with time and
space for assembly and practice, that TDCJ assist in the location and recruitment of a “God
Centered Cultural Representative,” that TDCJ permit the wearing of crowns and the
displaying of the “universal flag,” that NOGE adherents be permitted to take their lessons and
materials to their meetings, and that NOGE adherents be permitted to purchase approved
NOGE materials, publications, and symbols from NOGE vendors. All of the claims except for
the request for time and space for assembly were ultimately determined to be unexhausted.

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An evidentiary hearing was conducted, at which a TDCJ representative named Chaplain
Lowery testified that NOGE was shown at that time on the list of faith groups as a separate, nontraditional religious group. After reviewing the summary judgment evidence, the district court
determined that NOGE had a documented history of connections to prison violence and the teaching
of racial supremacy, citing a number of cases including decisions from the Third and Fourth Circuits
as well as various district courts. The district court concluded that TDCJ had a compelling
governmental interest in preventing racial supremacist groups from congregating and that this was
the least restrictive means of preventing unnecessary conflict, and granted the defendants’ motion
for summary judgment.
On appeal, the Fifth Circuit affirmed the dismissal of Plaintiff’s other claims for failure to
exhaust, but remanded the claim of space and time for congregation back to the district court.
While the litigation was ongoing, an affidavit from Timothy Jones, Deputy Director of
Religious Services for TDCJ, stated that on April 19, 2019, the Religious Practices Committee took
NOGE out of the other/non-traditional category and placed the group within the Muslim religious
group. This change allowed the NOGE adherents to attend Muslim services and also permitted them
to have a secondary NOGE service depending on the availability of time, space, security, and an
approved volunteer. The committee also approved a request which allowed prisoners to send,
receive, and possess Nation of Gods and Earth literature in accordance with established policy and
procedure. Religious holidays were declared to be a secondary service which may be scheduled
dependent on availability of time, space, security, and an approved volunteer. Finally, the
committee added February 22, Father Allah’s physical birthday, to the holy day/observance day list
as a recognized holy day.
Jones’ affidavit further states that on May 3, 2019, Tucker and other NOGE members were
notified that NOGE had been placed under the Muslim religious group. While they are not required
to attend Muslim primary services, they may do so, and may also request secondary NOGE services
dependent on the availability of time, space, security, and approved volunteers. They were also
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notified that they could send, receive, and possess NOGE literature, that February 22 was recognized
as a holy day, and that religious holiday services could be scheduled dependent on availability of
time, space, security, and an approved volunteer. (Docket no. 157, p. 2). A later affidavit from
Jones (docket no. 163-1. p. 1) details his efforts to contact free-world NOGE representatives in an
effort to find outside volunteers.
On May 20, 2019, the Defendant filed a motion for summary judgment based on mootness.
The Defendant argued that because NOGE members, including Tucker, can now seek separate
NOGE services, dependent on the availability of time, space, security, and an approved volunteer,
his claim is moot.
Tucker also filed a motion for summary judgment on May 20, 2019. This motion devoted
considerable space to arguments which paralleled those addressed by the Fifth Circuit. In one brief
reference to the change wrought by the Religious Practices Committee, Tucker stated that
notwithstanding this change, “the State still has never accommodated separate Nation
accommodation for Mr. Tucker and other Nation adherents nor has committed to doing so.” He
asserted that the change conflicted with previous positions taken by TDCJ and asked that the Court
order the State to formulate a revised policy which affords full and equal opportunity to participate
in group observance of Nation honor days, General Civilization classes, Parliaments and rallies, and
to accommodate the Nation with the provision of scheduled times and venues for Nation assembly
and practice.
In a response to the Defendant’s motion for summary judgment, Tucker asserted that “the
State cannot prove that its failure to accommodate separate Nation congregation advances a
compelling governmental interest through the least restrictive means.” He stated that while the State
says he can seek secondary services dependent on the availability of time, space, security, and an
approved volunteer, “the State has failed to provide evidence - and does not even assert - that TDCJ
has provided Mr. Tucker separate time and space to exercise his beliefs through Nation
congregation, as he has requested, nor that any such hypothetical Nation congregation will ever
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occur, nor that Mr. Tucker could ever attend such congregation.” Tucker categorized the State’s
claim that separate Nation congregations would be allowed dependent on availability of time, space,
security, and an approved volunteer as “administrative boilerplate” and asserted that if the State
intended to allow Tucker to attend separate Nation congregations, it could say so, but it has not.
After review of the pleadings, the magistrate judge entered a Report recommending that the
Defendants’ motion for summary judgment based on mootness be granted. After tracing the
procedural history of the case, the magistrate judge cited Brown v. Collier, 929 F.3d 218, 224 (5th
Cir. 2019). In that case, the Fifth Circuit upheld the “Scott Plan,” which in relevant part requires
direct supervision of all religious gatherings of more than four prisoners, and permits each religious
group to have a group worship service for one hour per week which is directly supervised by prison
staff or an outside authorized volunteer. Id. at 226. The prison has designated ten major faith
groups, which each have weekly congregational services, and smaller groups within the major faith
groups, such as NOGE, may have services dependent on time, space, security, and the availability
of an outside volunteer. TDCJ Administrative Directive 07.30; Baker v. Davis, civil action no.
5:17cv78, 2018 WL 4690959 (E.D.Tex., August 20, 2018), Report adopted at 2018 WL 4685459
(E.D.Tex., September 28, 2018), appeal dismissed 2019 WL 2067717 (5th Cir., March 14, 2019).
The magistrate judge also examined Jones v. Davis, civil action no. 4:16cv193, 2018 WL
6591582 (S.D.Tex., December 13, 2018), in which the plaintiff Sam Jones sought injunctive relief
under RLUIPA and the First Amendment regarding TDCJ’s policies prohibiting the sculpting of
religious beards and requiring inmates to shave once a year for identification purposes. The
Defendant argued that the case was moot because TDCJ changed its policy so as to allow prisoners
who wear religious beards to trim and shape their beards according to their beliefs and to eliminate
the annual shaving requirement. The district court dismissed the case as moot despite Jones’
arguments that his claims were capable of repetition yet evading review and that TDCJ changed its
policy in bad faith to “hoodwink” the Court.

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The magistrate judge concluded that the change in policy rendered by the Religious Practices
Committee rendered Plaintiff’s claims moot because NOGE, like other faith groups, can now have
separate services subject to the availability of time, space, security, and outside volunteers. The
summary judgment evidence shows that prison officials have made efforts to secure outside
volunteers, but this lack of success is not the result of any prison policies. Brown, 929 F.3d at 230
(discussing requirement of outside volunteers); Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2010)
(outside volunteer requirement does not place a substantial burden upon prisoner’s religious
exercise). The magistrate judge stated that the reclassification of NOGE as a faith group which can
receive separate services subject to the availability of time, space, security, and an outside volunteer
is a governmental action entitled to a presumption of good faith, see Sossamon v. Lone Star State
of Texas, 560 F.3d 316, 325 (5th Cir. 2009), and there is no evidence that TDCJ intends to revoke
this classification. Finally, the magistrate judge determined that the “capable of repetition yet
evading review” exception to the mootness doctrine was not applicable to this case.
In his objections, Plaintiff complains that there is no evidence that TDCJ has rescinded its
position that NOGE congregation poses an unacceptable security risk. The undisputed summary
judgment evidence shows that TDCJ has notified Plaintiff and other NOGE adherents that NOGE
services will be permitted subject to the availability of time, space, security, and an outside
volunteer, and that TDCJ personnel have sought to locate outside volunteers to conduct such
services. These attempts to facilitate NOGE separate services plainly show that TDCJ no longer
believes that NOGE congregation poses an unacceptable risk. This objection is without merit.
Next, Plaintiff argues that the fact that NOGE has been classified under the Muslim faith
group is relevant only to Plaintiff’s ability to attend Muslim services, which is not at issue here. It
is true that Plaintiff’s ability to attend Muslim services is not at issue; rather, the relevant fact is that
NOGE separate services will be permitted subject to the availability of time, space, security, and an
outside volunteer. This objection is without merit.

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Third, Plaintiff contends the availability of a volunteer is irrelevant because the State has
never denied his long-requested accommodation on the basis that a volunteer is unavailable, and
Plaintiff does not challenge the volunteer requirement. Rather, he states he challenges the continued
denial of his requests based on the assumptions that Plaintiff and fellow NOGE adherents hold
supremacist beliefs and that allowing a supremacist group to congregate threatens prison security,
citing Tucker v. Collier, 906 F.3d at 303. While it may be true that Plaintiff’s previous requests for
accommodation were denied for these reasons, all of these requests were made before the April 19,
2019 decision by the Religious Practices Committee to permit NOGE congregation subject to the
generally applicable requirements of time, space, security, and the availability of an outside
volunteer. Plaintiff’s objection on this point succinctly demonstrates why his claim is now moot.
See DeMoss v. Crain, 636 F.3d 145, 150-51 (5th Cir. 2011) (abandonment of policy that general
population prisoners on cell restriction could not attend religious services mooted claim for
declaratory and injunctive relief concerning that policy).
Plaintiff complains that the magistrate judge did not consider Tucker’s affidavit, which he
says asserts that TDCJ has never granted his requests to attend NOGE congregation and has never
informed him that he could attend NOGE congregation even if administrative requirements unrelated
to racial supremacy-based concerns were satisfied. This affidavit, which is undated, acknowledges
that Plaintiff has been told that February 22 has been added to the holy day list, but says that he has
never been told he would be permitted to attend NOGE congregation or to engage in any other
communal NOGE exercise on that day or any other day. The fact that no previous requests have
been approved is not disputed, given that TDCJ previously regarded NOGE as a supremacist racial
group. The affidavit indicates that as of the date of the affidavit, Plaintiff had not received the May
3, 2019 notice from Jones indicating that NOGE adherents could request secondary services
dependent on the availability of time, space, security, and approved volunteers, and the Court will
assume this to be the case. Plaintiff nowhere states that a request for NOGE congregation has been
made after the April 2019 decision by the Religious Practice Committee, much less that any such
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request met the requirements of available time, space, security, and an outside volunteer. His
affidavit offers nothing to overcome the Defendant’s showing that the case is moot, and his
objection on this point is without merit.
Plaintiff goes on to argue the Report errs by concluding that the voluntary cessation
exception does not apply. He argues that the action of the Religious Practice Committee does not
amount to an “official state-wide policy,” pointing to an administrative directive from 2014 and an
undated faith code list which shows the Nation of Gods and Earth as falling under the “other/nontraditional” category. (Docket no. 158-15, p. 6). It is not disputed that at one time, TDCJ classified
NOGE in the “other/non-traditional” category. As noted above, however, this was changed by the
Religious Practices Committee in April of 2019.
In a similar vein, Plaintiff states that as a historical matter, TDCJ has previously revoked the
Muslim classification and argues that the timing of the purported cessation suggests “a litigationdriven change.” He contends that TDCJ has defended the lawsuit for five years by arguing that
NOGE poses an unacceptable security risk, but then on the eve of summary judgment TDCJ argues
that Plaintiff has received the relief sought. Plaintiff complains that the Report “ignores Plaintiff’s
account of the State’s long, demonstrated history of posturing in this case, taking opportunistic,
inconsistent positions in briefs and affidavits based on the exigencies of litigation.” The fact that
the State previously defended the case on the theory that NOGE was a racial supremacist group a theory which the Fifth Circuit’s decision made clear was untenable - does not show that the State
is likely to revert to this theory in the future, particularly in light of the State’s own efforts to secure
outside volunteers so as to facilitate NOGE congregation. This objection is without merit.
Finally, Plaintiff asserts that the Report errs by saying no order could grant him more relief
than the State has purportedly granted him because “the Court can and should enjoin the State from
preventing Mr. Tucker from attending Nation congregation under its rationale that it has a narrowly
tailored, compelling interest in denying Mr. Tucker’s accommodation because Nation congregation

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poses a security threat. Whether the State has justified that rationale for refusing to accommodate
separate Nation congregation under RLUIPA is and has always been the issue litigated in this case.”
As the magistrate judge correctly observed, the summary judgment evidence shows that the
State has abandoned the position that NOGE is a racial supremacy group whose congregation ipso
facto poses a security threat. This is made clear by the Religious Practices Committee’s decision
to permit NOGE congregation under the same conditions applicable to other small religious groups
as well as by the prison officials’ efforts to facilitate such congregation by seeking outside
volunteers. The fact that the Court could hypothetically grant an injunction enjoining TDCJ not to
carry out an abandoned policy does not show that the claim is not moot.1
Plaintiff sought by his lawsuit to achieve equal status and recognition for the Nations of Gods
and Earth by other religious groups of comparable size within TDCJ. The decision of the Religious
Practices Committee accomplished this goal by allowing the group to have separate services, subject
to the generally applicable restrictions of time, space, security, and the availability of an outside
volunteer, by allowing adherents to send, receive, and possess NOGE literature in accordance with
generally applicable policies and procedures, and by recognizing February 22 as a holy day for the
group. The magistrate judge properly concluded that the Plaintiff’s claims are moot.
ORDER
The court has conducted a careful de novo review of the objections in relation to the
pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court
concludes that Plaintiff’s objections lack merit.

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Plaintiff’s argument in this regard would carve a wide swath out of the doctrine of
mootness. For example, under Plaintiff’s theory, the claim in Sossamon would not have been moot
because the district court could have issued an injunction ordering TDCJ not to prevent general
population inmates on cell restriction from attending religious services. No such injunction issued,
but the Fifth Circuit nonetheless held the claim moot because the practice had been discontinued.
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Accordingly, Plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. The
Defendant’s motion for summary judgment based on mootness (docket no. 156) is GRANTED and
the lawsuit is DISMISSED WITHOUT PREJUDICE AS MOOT. A final judgment will be
entered in this case in accordance with the magistrate judge’s recommendations. All motions not
previously ruled upon are hereby DENIED.

SIGNED this the 4 day of March, 2020.

____________________________
Thad Heartfield
United States District Judge

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