Smith v. Collier et al

Filing 71

ORDER OF DISMISSAL adopting 67 Report and Recommendation. Pltf's complaint is dismissed as moot. All motions not previously ruled on are denied. Signed by District Judge Ron Clark on 3/1/18. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

TIMOTHY JOHN SMITH, #743621

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VS.

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BRYAN COLLIER, ET AL.

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CIVIL ACTION NO. 6:17cv073

ORDER OF DISMISSAL
Plaintiff Timothy John Smith, an inmate confined in the Texas prison system, proceeding
pro se, filed the above-styled and numbered civil rights lawsuit pursuant to the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. Defendants Collier
Catoe, and Cooper filed a motion for summary judgment (Dkt. #54). Mr. Smith filed his response
(Dkt. #59). The complaint was referred to United States Magistrate Judge K. Nicole Mitchell, who
issued a Report and Recommendation (Dkt. #67) concluding that Defendants’ motion for summary
judgment (Dkt. #54) should be granted in part and the remainder of Mr. Smith’s claims should be
dismissed as moot. Mr. Smith has filed objections (Dkt. #70).
Facts of the Case
The complaint was filed on February 6, 2017. Mr. Smith complained that TDCJ’s
grooming policy pertaining to religious beards prevented him from shaving his neck and
maintaining his mustache. He also complained that TDCJ’s razor supply policy prevented him
from receiving a free, weekly razor to shave his body hair because he has a religious beard. Mr.
Smith sought prospective injunctive relief in the form of being able to: (1) shave his neck hair and

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trim his mustache above his lip line and at the corners of his mouth, and (2) receive a free, weekly
razor to shave his armpits, the hair above his penis, and his testicle hair.
Report and Recommendation
After reviewing the summary judgment evidence, the Magistrate Judge found that TDCJ
has changed its policy regarding the provision of weekly razors to inmates who wore beards for
religious purposes in March 2017, thereby rendering Mr. Smith’s weekly razor claim moot. The
Defendants also provided summary judgment evidence that any failure to provide Mr. Smith with
a weekly razor after March 2017 was because of a supply shortage and not because of any policy
prohibiting the provisioning of weekly razors to inmates with religious beards. The Magistrate
Judge recommended that the Defendants’ summary judgment motion be granted in part and Mr.
Smith’s weekly razor claim be dismissed as moot
The Magistrate Judge also found that Mr. Smith’s sculpting claim should be dismissed as
moot. In Burley v. Stephens, et al., No. 6:13-cv-601, a case that was pending before this court,
TDCJ changed its grooming policy and religious beard policy, effective December 1, 2017. Under
the new policy, the annual shaving requirement was discontinued and inmates may trim their
religious beards and mustaches in accordance with their religious beliefs. As such, Mr. Smith’s
religious sculpting claim became moot.
Objections
Mr. Smith has filed objections (Dkt. #70). Mr. Smith’s first and second objections seem to
pertain to the recommendation that this suit be dismissed with prejudice. As Mr. Smith’s claims
are moot, it is within the discretion of this court to enter judgment with prejudice.

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Mr. Smith’s third objection requests that the court not levy a strike pursuant to 28 U.S.C.
§ 1915(g) against him. The Magistrate Judge did not recommend that the court levy a strike against
Mr. Smith. The court does not intend to levy a strike pursuant to 28 U.S.C. § 1915(g) in this case.
Mr. Smith’s final objection suggests that this court should publish this case. Mr. Smith’s
objections lack merit.
Conclusion
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Smith to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. Smith’s
objections are without merit. Therefore, the court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the court. It is accordingly
ORDERED that Mr. Smith’s complaint is DISMISSED as MOOT. It is finally
ORDERED that all motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 1 day of March, 2018.

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Ron Clark, United States District Judge

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