Ali v. Quarterman

Filing 227

MEMORANDUM OPINION AND ORDER. The Plaintiff's requests for a temporary restraining order and a preliminary injunction are GRANTED to the extent that William B. Stephens, his successors, and all persons acting in concert with him are RESTRAIN ED and ENJOINED from enforcing the TDCJ grooming policy prohibiting David Rasheed Ali from wearing and maintaining a quarter-inch beard as an exercise of his rights under the RLUIPA. In all other respects, the Plaintiff's motions for a temporary restraining order and preliminary injunction are DENIED. Signed by Magistrate Judge Zack Hawthorn on 2/4/14. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
DAVID RASHEED ALI

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VS.

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WILLIAM B. STEPHENS

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CIVIL ACTION NO. 9:09-CV-52

MEMORANDUM OPINION AND ORDER
Plaintiff David Rasheed Ali, an inmate currently confined at the Michael Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed this civil rights
action pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. § 2000cc, against the Director of TDCJ-CID. The Plaintiff challenges prison policies that
prohibit him from wearing a full-length beard and from wearing a Kufi cap throughout the prison
facility.
The Fifth Circuit remanded the case for further proceedings on the merits of the Plaintiff’s
RLUIPA claims and for a ruling on the Plaintiff’s motion for a preliminary injunction on his
RLUIPA claim challenging the grooming policy. Ali v. Quarterman, 434 F. App’x 322 (5th Cir.
2011). The Plaintiff subsequently filed a motion for a temporary restraining order allowing him to
wear a full-length beard and to wear his white Kufi cap throughout the prison at all times.
Standard of Review
A party seeking a temporary restraining order or preliminary injunction must establish the
following elements: (1) there is a substantial likelihood the party will prevail on the merits; (2) a
substantial threat exists that irreparable harm will result if the injunction is not granted; (3) the
threatened injury outweighs the threatened harm to the defendants; and (4) the granting of the

preliminary injunction will not disserve the public interest. Opulent Life Church v. City of Holly
Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012). Relief should be granted only if the party seeking
relief has clearly carried the burden of persuasion as to all four elements. Karaha Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003).
Analysis
The RLUIPA prohibits a government from imposing a substantial burden on a prisoner’s
religious exercise, even if the burden results from a rule of general applicability, unless the burden
is: (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of
furthering that interest. 42 U.S.C. § 2000cc-1(a).1
The plaintiff bears the initial burden of proving the challenged government action
substantially burdens his religious exercise. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011).
The statute defines “religious exercise” as “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The RLUIPA does not define
“substantial burden,” but the Fifth Circuit has held that a government regulation places a substantial
burden on a religious exercise if it pressures the prisoner to significantly modify his religious

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The Supreme Court has noted that the RLUIPA reinstated the “compelling government interest”/ “least
restrictive means” standard set by the Religious Freedom Restoration Act (RFRA). The RFRA was enacted in response
to Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 878-882 (1990), in which the Supreme Court
held that the Free Exercise Clause is not offended by the enforcement of laws of general application that incidentally
burden religious conduct. See Cutter v. Wilkinson, 544 U.S. 709, 714-15 (2005). The RFRA prohibited a government
from substantially burdening a person’s exercise of religion unless the government demonstrated that the burden is the
least restrictive means of furthering a compelling government interest. 42 U.S.C. §§ 2000bb, et seq. The Supreme Court
invalidated the RFRA as applied to States and their subdivisions, holding that it exceeded Congress’ powers under the
Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).
In response to City of Boerne, Congress passed the RLUIPA. Cutter, 544 U.S. at 715. Invoking its
powers under the Spending and Commerce Clauses, Congress largely reprised the provisions of the RFRA, but limited
its scope to laws and regulations governing land use and institutions, including prisons, that receive federal funds. Id.;
Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).

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behavior and significantly violate his beliefs. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
A government regulation does not pose a substantial burden to religious exercise “if it merely
prevents the adherent from either enjoying some benefit that is not otherwise generally available or
acting in a way that is not otherwise generally allowed.” Id.
If the plaintiff shows that the challenged government action substantially burdens his
religious exercise, the burden shifts to the defendant to prove a compelling state interest, and that
the government action is the least restrictive means of furthering that interest. DeMoss v. Crain, 636
F.3d at 150. The court must give due deference to the expertise of prison officials in establishing
regulations and procedures to maintain order, security and discipline, taking into consideration costs
and limited resources. Cutter v. Wilkinson, 544 U.S. 709, 723 (2005).
I. Grooming Policy
The Plaintiff argues that, as a Muslim, his faith requires him to wear a full beard, which he
asserts is equal to one-fist length. The Plaintiff seeks injunctive relief during the pendency of this
lawsuit enjoining the Defendant from enforcing the grooming policy preventing him from wearing
a beard.
A.

Substantial Likelihood of Prevailing on the Merits

The Defendant argues that the grooming policy does not substantially burden the Plaintiff’s
religious exercise. In support of this contention, the Defendant submitted the affidavit of TDCJ
Chaplain Haywood Talib, an Imam or Muslim religious leader. Chaplain Talib states that the Quran
does not mandate followers to wear a beard. Chaplain Talib calls the wearing of a beard a personal
practice, not a religious mandate. However, Chaplain Talib acknowledges that Muslim scholars have
differing opinions as to whether wearing a beard is required.
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Because courts are “ill-suited to resolve issues of theology,” the court must not inquire
whether a religious practice is central to the adherent’s religious belief system. See Adkins, 393 F.3d
at 570. A plaintiff is only required to demonstrate the “honesty and accuracy of his contention that
the religious practice at issue is important to the free exercise of his religion.” Id. For the Plaintiff,
wearing a beard is clearly a “religious exercise” as defined by the RLUIPA, regardless of whether
other Muslims or religious scholars feel that the Quran compels them to wear a full beard. It is
undisputed that the Plaintiff’s failure to comply with the TDCJ grooming policy requiring inmates
to be clean-shaven subjects him to disciplinary action. The policy creates a substantial burden on
the Plaintiff’s religious exercise because it forces him to choose between being clean-shaven or
exercising his religious beliefs and facing disciplinary action. Thus, the burden shifts to the
Defendant to demonstrate that enforcing the grooming policy against the Plaintiff furthers a
compelling governmental interest, and that it is the least restrictive means of furthering that interest.
Cases brought pursuant to the RLUIPA require a “fact-specific inquiry that takes into account
the special circumstances of the individual prisoner and prison.” Chance v. TDCJ, 730 F.3d 404,
411 (5th Cir. 2013). Nevertheless, in determining whether there is a substantial likelihood that a
plaintiff will prevail on the merits, the court must consider the Fifth Circuit’s opinion in Garner v.
Kennedy, 713 F.3d 237 (5th Cir. 2013). In Garner, a Muslim inmate challenged the application of
TDCJ’s grooming policy as it applied to him. Id. at 240. Initially, the district court granted the
defendant’s motion for summary judgment and dismissed Garner’s claims. Id. at 241. The Fifth
Circuit reversed the district court’s judgment on Garner’s requests for declaratory and injunctive
relief. Id. On remand, the district court appointed counsel for the plaintiff and conducted a bench
trial. Id. The district court considered the defendant’s claims that the no-beard policy was essential
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to TDCJ’s compelling interest in safety because: (1) the identification of prisoners would be
hindered, (2) contraband and weapons could be hidden in a beard, and (3) a prison escapee could
change his appearance by shaving his beard. Garner v. Livingston, 2011 WL 2038581, at *2 (S.D.
Tex. May 19, 2011). The district court also considered cost-related interests concerning the extra
expense in changing photographs on prisoner identification cards and paying for additional barbers
and clippers to trim the beards of Muslim prisoner to a quarter-inch. Id. The district court found
these arguments unpersuasive, and found that TDCJ failed to show that the no-beard policy is the
least restrictive means of furthering a compelling government interest. Id. at *2-3. Therefore, the
court enjoined the defendants from enforcing the grooming policy that prohibited Garner from
wearing a quarter-inch beard.2 Id. at *3.
On appeal, the Fifth Circuit found that two prior cases, in which TDCJ’s no-beard policy was
upheld,3 did not control the result in Garner. Garner, 713 F.3d at 244. The Fifth Circuit noted that
the record in Garner was substantially different than the prior cases because Garner was represented
by counsel, thoroughly cross-examined the defense witnesses, proposed different alternatives to the
policy, and presented expert testimony. Id. The Court found that the defendants did not meet their
burden of showing that the policy was the least restrictive means of advancing their compelling
interests in controlling costs and security. Id. at 245, 247.
As the parties note, the record in this case is different than the record in Garner. For
example, the Plaintiff points out that Garner does not address his contentions that he should be
2

Although Garner asserted that the Quran prescribes a fist-length beard, he only sought declaratory and
injunctive relief allowing him to maintain a quarter-inch beard. Garner v. Livingston, 2011 WL 2038581, at *2 n. 2
(S.D. Tex. May 19, 2011).
3

See DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011) (per curiam); Gooden v. Crain, 353 F. App’x 885
(5th Cir. 2009) (per curiam).

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allowed to wear a full beard of three to four inches in length. The Defendant has submitted summary
judgment evidence that was not available to the Court in Garner, such as: the cost of identification
pictures, the cost of maintaining the same inmate to correctional officer ratio as the Bureau of
Prisons, security problems caused by the unrestricted beard policy in the Bureau of Prisons and
California, the cost to install a video surveillance system equivalent to the Bureau of Prisons, the cost
of installing electric fences around Texas prisons, and the estimated cost of enforcing a changed
grooming standard for Muslim prisoners. While this evidence supports the Defendant’s argument
that TDCJ has compelling security, safety and cost interests in banning full beards, it is far less
persuasive regarding the Plaintiff’s alternate request to be allowed a quarter-inch beard. With respect
to the Plaintiff’s request to wear a quarter-inch beard, the Defendant has not met his burden of
proving that the no-beard policy is the least restrictive means of achieving a compelling government
interest with respect to wearing a quarter-inch beard.
In light of Garner and the evidence currently before the court, the Plaintiff has shown a
substantial likelihood that he will prevail on the merits of his RLUIPA claim regarding his request
to wear a quarter-inch beard. See Hickman-Bey v. Livingston, 2013 WL 6817309, at *5 (S.D. Tex.
Dec. 20, 2013); Strong v. Livingston, 2013 WL 6817095, at *11-12 (S.D. Tex. Dec. 20, 2013).
B.

Substantial Threat of Irreparable Harm

The Plaintiff is not entitled to a temporary restraining order or preliminary injunction unless
he shows there is a substantial threat he will suffer irreparable harm if injunctive relief is not granted.
The loss of freedoms granted by the First Amendment and the RLUIPA are sufficient to satisfy the
irreparable harm requirement. Opulent Life Church, 697 F.3d at 295-96 (citing Elrod v. Burns, 427

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U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”) ).
C.

Threatened Injury Outweighs Threatened Harm to the Defendant

In addition to proving that there is a substantial threat he will suffer irreparable harm, the
Plaintiff must show that the threatened harm to him outweighs the threatened harm to the Defendant.
Because the Plaintiff has shown that the harm to him is irreparable, the Defendant would need to
present “powerful evidence of harm to [his] interests” to prevent the Plaintiff from meeting this
requirement. Id. at 297. The Defendant has not produced powerful evidence of any threatened harm
if the Plaintiff is permitted to grow a quarter-inch beard during the pendency of this action.
Therefore, the Plaintiff has met his burden of demonstrating that the threatened harm to him
outweighs any threatened harm to the Defendant. Hickman-Bey, 2013 WL 6817309, at *6; Strong,
2013 WL 6817095, at *11.
D.

Public Interest

The public certainly has an interest in the safety and security of their prisons and the costs
to operate them. However, the court has already concluded, on the record before it, that the no-beard
policy is not the least restrictive means of achieving these compelling interests. Injunctions
protecting First Amendment and RLUIPA rights are always in the public interest. Opulent Life
Church, 697 F.3d at 298. Therefore, this requirement is met if the Plaintiff has shown a substantial
likelihood of success on the merits, which the Plaintiff has done. Id.

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E.

Conclusion

The Plaintiff has met his burden for a temporary restraining order and preliminary injunction
with respect to wearing a quarter-inch beard, but has not met the burden with respect to his request
to wear a full beard.
II. Kufi Cap
The Plaintiff is currently permitted to wear a Kufi cap in his cell and at religious services.
He requests a temporary restraining order allowing him to wear his Kufi cap throughout the prison
at all times.
For purposes of this Memorandum Opinion, the court assumes that the prison policy
substantially burdens the Plaintiff’s religious exercise. The Defendant has asserted compelling safety
and security interests in the policy limiting the use of Kufi caps. In addition, on the record before
the court, the policy is the least restrictive means of furthering those interests. As the district court
noted in Garner:
Unlike facial hair, the Kufi is easily capable of being donned in one location
and doffed in another. In addition to the removability, the Kufi is distinguished from
the quarter-inch beard in its potential for the concealment of a weapon or contraband.
Given the State’s compelling interest in the safety and security of prisoners and
prison staff, requiring a Muslim prisoner to remove his Kufi and to make it available
for inspection while on route to and from his religious service appears to qualify as
the least restrictive way of furthering that compelling interest.
Garner, 2011 WL 2038581, at *3.
The Plaintiff has not demonstrated a substantial likelihood of prevailing on his claim
concerning the Kufi cap. Therefore, he is not entitled to a temporary restraining order allowing him
to wear a Kufi cap throughout the prison at this stage in the litigation.

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ORDER
The Plaintiff’s requests for a temporary restraining order and a preliminary injunction are
GRANTED to the extent that William B. Stephens, his successors, and all persons acting in concert
with him are RESTRAINED and ENJOINED from enforcing the TDCJ grooming policy
prohibiting David Rasheed Ali from wearing and maintaining a quarter-inch beard as an exercise of
his rights under the RLUIPA. In all other respects, the Plaintiff’s motions for a temporary restraining
order and preliminary injunction are DENIED.
SIGNED this 4th day of February, 2014.

_________________________
Zack Hawthorn
United States Magistrate Judge

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