Payne v. Dewitt et al

Filing 61

Order: The Court has conducted an independent review of the record in this case. The Court finds that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED with the following modification: Plaintiff should be GRANT ED leave to supplement his complaint to request declaratory and injunctive relief with respect to the ongoing effect of his relevant prison disciplinary convictions. For the reasons stated herein, the Court ORDERS: 1. Plaintiff's Motion to S upplement 59 is GRANTED in part as described in this Order. 2. Defendant Lorie Davis, in her official capacity as Director of TDCJ-CID, shall answer or otherwise respond within 14 days of the date of this ORDER, to Plaintiff's remaining RLUI PA claim as supplemented. 3. Defendants' Motion to Dismiss 45 is GRANTED in part. All Plaintiff's claims, except the RLUIPA claim described herein against Lorie Davis in her official capacity, are dismissed with prejudice for failure t o state a claim upon which relief can be granted. 4. All relief not expressly granted is denied and any pending motions are denied. There is no just reason for delay in entering a final judgment and final judgment should be entered as to the above-described Defendants and claims pursuant to the Federal Rule of Civil Procedure 54(b). JUDGMENT SHALL BE ENTERED ACCORDINGLY. (Ordered by Senior Judge Sam R Cummings on 9/9/2019) (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
.I'OBY

KRIS'fOPHER PAYNE,
lnstitutional ID No. 1720023

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intill'.

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CIVIL ACl'lON NO. l:18-CV-00048-C

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MICHAIIL D. DEWITT, ct rrl..

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Delendants,

S\

ORDER

PlaintillToby Kristopher Payne, proceeding pro se

and in forma pauperis,

filed this civil

rights complaint under 42 U.S.C. $ 1983 against l8 officials employed by the Texas Department

of Criminal Justice (TDCJ). He alleges that the Defendants violated his religious rights under
the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA). He also complains that the Defendants violated his rights under the Eighth and
Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act.
The Court transferred the civil action to the United States Magistrate Judge for additional

screening. The Magistrate Judge ordered Plaintitf to complete a questionnaire pursuant to
Wdtson v. Auh,525 F.2d 886, 892-93 (5th

Cir. 1976). After receiving Plaintifls response to the

questionnaire, the Magistrate Judge found that Plaintiff s claims required an answer and ordered
service ofprocess on Defendants.
Defendantsr filed a motion to dismiss under Federal Rules of Civil Procedure

l2(bXl)

and l2(b)(6). In response, Plaintiff sought, and was granted, leave to supplement his complaint.

I The Ofllce ofthe Attomey
General appeared on behalfolall named Defendants in this case, but it was unable to
identily, and thus unable to represent two unnamed Defendants, listed as Defendant #14: "Unknown Defendant's
Investigationg Officer(s) [all sic],"and Defendant#15: "Unknown Defendant's Isic] Counsel Substitute." To date,

these unnamed defendants have not been properly identified and have not appeared in this case.

Defendants hled an amended motion to dismiss to include Plaintiff s newly supplemented

claims. Again, Plaintiff sought, and was granted leave to supplement his claim.
Def'endants filed their second amended motion to dismiss (Doc. 45) and brief in support

on March 26,2019.2 Plaintiff filed a response (Doc. 52) but was denied leave to supplement his

complaint again. The United States Magistrate Judge entered a Report and Recommendation
(Doc. 55), recommending that the Court grant Defendants' motion and dismiss all of Plaintiff's

claims. Plaintiff filed
as

well

as

a response

with objections to the Report and Recommendation (Doc. 58),

two motions for leave to amend or supplement his complaint (Docs. 56 and 59).

The Court has conducted an independent review of the record in this case. As explained

below, the Court finds that the Repo( and Recommendation of the United States Magistrate
Judge should be ADOPTED with the following modification: Plaintiff should be

GRANTED

leave to supplement his complaint to request declaratory and injunctive relief with respect to the

ongoing effect of his relevant prison disciplinary convictions. Defendants' Motion to Dismiss
(Doc. 45) should be GRANTED in part, so that all of Plaintifls claims, except his
supplemented RLUIPA claim, should be DISMISSED with prejudice.

As a result, the Court finds that Defendant Lorie Davis, in her official capacity as
Director of the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-

CID), should be required to answer or otherwise respond to PlaintifFs sole remaining

claim-

thal TDCJ's continued enfbrcement of Plaintifls relevant disciplinary convictions constitutes an
ongoing violation of RLUIPA, for which he is entitled to injunctive relief.

Plaintiff s remaining requests to supplement should be DENIED

as

futile.

3l).

As
'z-fhe Cou( finds that the Defendants' second Amended Motion supersedes the first Amended Motion (Doc.
a result, the first Amended Motion is DENIED as moot. The Magistrate Judge denied Defendants' original Motion
as mool on December 20,2018.
1

I.

STANDARD UNDER RULE 12(B)

Rule I 2(b)(6) allows dismissal if a plaintiff "fails to state a claim upon which relief may
be granted." Fed. R. Civ. P.

l2(b)(6). \n Bell Atlantic Corp. v. Twombl/, 550 U.S. 544 (2007),

the Court held that a complaint fails to comply with Rule 8 if it does not plead "enough facts to
state a claim of relief that is plausible on its

face." Twombly,550 U.S. al570; see also Cuvillier

v. Taylor,503 F.3d 397,401 (5th Cir. 2007) (holding that "to survive a Rule 12(b)(6) motion to
dismiss, a complaint'does not need detailed factual allegations,'but must provide the plaintiffs
grounds for entitlement to relief-including factual allegations that when assumed to be true 'raise
a right to reliefabove the speculative

level."'(quoting Twombly,550 U.S. at 555)).

The Court "must accept as true all ofthe factual allegations contained in the complaint"
when considering a motion to dismiss for failure to state a claim under Rule 12(bX6). Erickson
v. Pardus,551 U.S. 89,94 (2007); see also Twombly,at555. Furthermore,

[t]he complaint is liberally construed in the plaintiff-s favor, and all
well-pleaded lacts in the complaint are taken as true. The
determining issue is not whether the plaintiff will ultimately prevail
on the merits, but whether he is entitled to offer evidence to support
his claim. Therefore, this court will not dismiss a plainrifls claim,
unless the plaintitTwill not be entitled to reliefunder any set olfacts
or any possible theory that he could prove consistent with the
allegations in his complaint.

Priester v. Lowndes County,354 F.3d 414,418-19 (5th Cit.2004) [intemal citations and
quotations omitted]; see also Ericlcsor, at 94 ("a document filedp/o.se is to be liberally
construed . . . and apro se complaint, however inartfully pleaded, must be held to less stringent
standards than fbrmal pleadings drafted by lawyers").

J

2.

ANALYSIS AND DISCUSSION

Plaintiffclaims that the Defendants wrongfully delayed approval for him to grow

a beard

for religious purposes. He states that he made multiple requests for a religious exemption to the
TDCJ grooming standards, but his requests were left unanswered for about 5 months because

of

a staffing shortage. During that time, he began growing his beard without approval and as a

result, he received 5 disciplinary cases for failing to adhere to the TDCJ grooming standards. He
alleges that the disciplinary cases were given as a result

of"a targeted crack-down" by

Defendant Sperry, who knew that the religious-exemption requests were not being processed
because

ofthe vacant beard-coordinator position, but ordered Robertson Unit staff to write

disciplinary cases for any offender with a beard who was not already on the religious-exemption
list. (Doc. 12 at 5).

Plaintiff complains that the collective punishments he received for the disciplinary cases
forced him to shave his beard against his religious beliefs. He also asserts that although he was
required to shave, he was not given proper grooming implements. He states that he "had to
remove a razor blade from a razor, affix [it] to a comb, wet [his] beard with soap and water, and
hack/chop/cut [his] beard off while in [his] cell." (Doc. 12 at 8).

Plaintiff alleges that while he has now been approved to have
purposes, he

a beard

for religious

still suffers the consequences of the wrongful disciplinary cases-namely, that his

custody level was reduced to G5 status (close custody). He admits that his custody level has

changed-he was promoted to G4 and then demoted back to G5-while this case has been
pending. (Docs. 12 and 47). But he claims that the cumulative effect ofthe religious-beard

disciplinary cases has set him back in eaming a minimum custody status, which would allow him

4

to have contact visits with his family, attend school courses, and participate in mental health
counseling. (Docs. 12 and 59-1).

Plaintiff alleges, based on the facts asserted above, that Defendants violated his rights
under the First Amendment and RLUIPA. Plaintiff also claims that Defendants' actions violated
his rights under the Americans with Disabilities Act and the Rehabilitation Act of 1973, as a
result ofhis diagnosed mental illness. Finally, Plaintiff claims that Defendants retaliated against

him and used excessive force.

Plaintiffasks for monetary reliefas well

as the

removal of the five disciplinary cases

from his prison record. And he now requests to supplement his complaint with a request for
declaratory and inj unctive relief.

a. RLUIPA
Codified at 42 U.S.C. $ 2000cc-l et seq., RLUIPA prohibits the govemment from
imposing a substantial burden on the religious exercise ofa prisoner unless it is in furtherance of
a

compelling govemmental interest and is the least-restrictive means offurthering that

compelling governmental interest. A prisoner asserting a claim under RLUIPA must show

(l)

that he seeks to exercise a religious practice out ofa sincerely held religious belief, and (2)

that the government substantially burdened that practice. Ifthe prisoner makes this initial
showing, then the burden shifts to the government to meet the difficult compelling-interest and
least-restrictive-means test. 42 U.S.C. $ 2000cc-l(1);

lli

v. Stephens,822 F.3d 776,782-83

(sth

Cir.20l6).
As Defendants correctly note, RLUIPA does not permit suits brought against officials in

their individual capacities or for the collection of money damages. Sossomon v. Lone Star State

of Texas,560 F.3d 316,328-29 (5th Cir. 2009) aff'd sub nom. Sossomon v. Texos,563 U.5.277

)

(201

I

). RLUIPA

allows a person to bring a claim against a government and obtain "appropriate

relief ;' 42 U.S.C. $ 2000cc-2.
Defendants are right that RLUIPA does not permit Plaintiffto bring individual-capacity
claims or to collect monetary damages. As a result, the Court finds that Plaintiff s claims under

RLUIPA against any defendant in his or her individual capacity should be DISMISSED for
failure to state a claim. Additionally, Plaintifls claims for monetary damages under RLUIPA
should be DISMISSED for lailure to state a claim.
Defendants acknowledge that RLUIPA protects an inmate's right to grow a beard for

religious purposes. They do not contest that Plaintiff requested to grow his beard out ofa
sincerely held religious belief. Nor do they challenge Plaintiffs contention that the 5-month
delay in processing the exemption request burdened his religious exercise. Instead, they argue
that the burden has been removed because Plaintiff s request for a religious-beard-exemption
was eventually approved. They ask that the Court dismiss Plaintifls RLUIPA claims as moot.
Def-endants are right that most

of Plaintiff s RLUIPA claims are moot. Plaintiff admits

that his request for a religious beard exemption was approved on December 13,2017, and that he

now wears a fully-grown beard with no interlerence from TDCJ officials. Thus, the Court finds
that any burden caused by the delay in processing and approving Plaintitls request has been

lifted. But Plaintiff

alleges that his religious exercise was not only burdened by the lengthy

delay in approving his beard, but by Defendants actively punishing him for practicing his faith in
the meantime.
Defendants do not directly address the alleged burden imposed by the five disciplinary

convictions Plaintiff received in the interim. Rather, they argue that the Eleventh Amendment
bars

Plaintiffs suit against Defendants in their official capacities because Plaintilfseeks only

6

retroactive-not prospective-relief. The Eleventh Amendment generally bars federal courts
from hearing claims against state govemments. But Ex Parte Young,209 U.S. 123 (1908), and
its progeny, carve out a narrow exception, which allows state officials to be sued in their official
capacity only for prospective injunctive relief. The Ex Parte Young exception applies only when
there is I) an ongoing violation offederal law and 2) a request for prospective relief.
Defendants assert that the disciplinary actions against Plaintiflfor growing his beard
before obtaining approval amount to a violation of TDCJ policy, not federal [aw. And even
is a violation offederal law, Defendants argue that

Plaintiffs

if it

request for removal of the

disciplinary cases from his record cannot be properly characterized as prospective.
But if Plaintiffs right to grow a religious beard is protected by RLUIPA, then punishing
him for exercising that right arguably violates federal [aw. And it stands to reason that
continuing to use the disciplinary cases against Plaintiff might constitute an ongoing violation

of

federal law.3 The Magistrate Judge similarly found that TDCJ's enforcement of disciplinary
punishments given in violation of RLUIPA is a violation of federal law, not just TDCJ policy.
However, the Magistrate Judge recommended that PlaintifPs claim be dismissed to the extent
that the relief he requested was retroactive rather than prospective.

Unsurprisingly, Plaintiff now requests to supplement his claim to expressly seek
prospective injunctive relief"that the five disciplinary actions . . . be considered in context in
future disciplinary issues." The Court finds that Plaintiffs request to supplement his RLUIPA

claim to request injunclive relief should be GRANTED. Thus, Plaintiff has pleaded enough

r The Court's discussion here should not be interpreted as commentary or findings on the merits of Plaintifls
RLUIPA claim. This analysis constitutes only a screening of Plaintifls pleadings pursuant to the standards of Rule
l2(b) and |i 1915,
'1

facts to proceed at this stage

ofthe

case on his official-capacity claima under

RLUIPA for

injunctive reliefregarding the ongoing effect ofhis disciplinary actions. Plaintiffhas listed each
named defendant in his or her

official capacity. But with respect to his remaining RLUIPA

claim, no named official has a separate identity from TDCJ as an entity. See Brandon v. Holt,
469 U.S. 464,471-72 (1985). The Court finds, then, that Plaintiffs RLUIPA claim should
proceed against only one defendant in her official capacity as a representative ofTDCJ.

As a result, Defendant Lorie Davis, in her official capacity as the Director of the TDCJ-

CID, should be required to answer or otherwise respond. Specifically, the Court finds that the
tbtlowing questions remain unbriefed:

(l)

Whether TDCJ's delay in processing Plaintiff s request for a religious-beard
exemption violated RLUIPA,

(2) Whether TDCJ's enfbrcement of its general grooming standards through disciplinary
action and punishment-after Plaintiff requested but before he was approved for a
religious exemption-violated RLUIPA,

(3) Whether continuing to observe the five disciplinary actions is an ongoing violation of
federal law, and

(4) Whether the injunctive reliel Plaintiff now

seeks is appropriate under

RLUIPA and

the Eleventh Amendment.

The Court finds that the Magistrate Judge's recommendation was correct as to all of

Plaintiff s other claims, and the Defendants second Amended Motion to Dismiss (Doc. 45)
should be GRANTED except as 1o the RLUIPA claim described above.

b,

First Amendment

As a prisoner, Plaintifls right to grow a religious beard is protected by RLUIPA, but not
the First Amendment. RLUIPA provides greater protection than the First Amendment. Holt

4

v.

"IOlfficial-capacitv suits generally represent only another way ofpleading an action against an entity ofwhich an
officer is an agent;" thus, RLUIPA permits suits against governmental agents in their official capacities. Monell v.
Dep't o/ Sociol Services of City of New Yorh, 436 U.S. 658,690 n.55 ( 1978).
8

Hobbs,574 U.S. 352 (20t5). The First Amendment permits prison policies that incidentally
burden the religious rights ofprisoners as long as the regulation is reasonably related to
legitimate penological interests. See O'Lone v. Estate of Shabazz,482 U.S. 342 (1987); Green v.

PolunslE, 229 F.3d 486, 490 (5th Cir. 2000).
The Fifth Circuit has approved TDCJ's grooming policy as reasonably related to

legitimate penological interests. Green v. PolunslE,229

F

.3d 486, 490 (5th Cir. 2000). And the

Supreme Court has found that similar prison grooming policies offend RLUIPA but not the First

Amendment. Holt v. Hobbs,574 U.S. 352 (2015). Thus, Plaintiff has failed to state a claim
under the First Amendment.

To the extent Plaintiff alleges First Amendment retaliation, his claim still fails. "To
prevail on a claim ofretaliation, a prisoner must establish

(l)

a

specific constitutional right,

(2) the defendant's intent to retaliate against the prisoner for his or her exercise ofthat right, (3) a

retaliatory adverse act, and (4) causation;' Morris v. Powell,449 F.3d 682, 684 (5th Cir. 2006)
(quoting McDonald v. Steward, 132 F.3d 225,231 (5th

Cir.l998). As described above, Plaintiff

did not have a constitutional right to grow his beard. So, to the extent Plaintiff alleges that his
prison disciplinary cases were issued in retaliation for his religious practice, he has failed to state
a

claim. Plaintiffalso alleges that Defendants acted in retaliation, generally, for

in

a

an adverse result

prior civil action brought by other prisoners in other units. But Plaintiffhas failed to connect

any alleged retaliatory intent to his own exercise

ofa constitutional right. Thus, Plaintiffhas

failed to state a claim for First Amendment retaliation claim.

Finally, Plaintiffalso attempts to incorporate retaliation claims that he has raised in other
pending actions before this Court. He states that Delendants Merchant and LaFrance have
retaliated against him for filing the complaint in this case. He states that he hopes the claims

9

from his other case will "tend credence to the asserted retaliatory intentions of the defendants
from the outset or at any point during the factual allegations asserted in this action." (Doc. 58 at

4-5). Plaintiff acknowledges that he

has raised this claim in a separate proceeding, which is

currently pending before the magistrate court in Civil Action No. l:18-CV-208. As a result, the
Court will nol consider it here.

c.

Eighth Amendment

Plaintiff has also failed to state a claim under the Eighth Amendment. Plaintiff alleges
that he has been subjected to cruel and unusual punishment. It is unclear which facts he believes

suppo( that claim. However, Plaintiffhas pleaded no facts, which when taken

as true,

would

entitle him to relief under the Eighth Amendment. To state a claim under the Eighth
Amendment based on conditions ofconfinement, a prisoner must establish both an objective
elemenl and a subjective element. Woods v. Edwards,5l F.3d577,581 (5th Cir. 1995).
First, he must show that the deprivation was objectively serious-that it "violated
contemporary standards ofdecency." Hudson v. McMillian,503 U.S.

l, 8-9 (1991); llalker

v.

Nunn,456 Fed. App'x 419,422 (5th Cir.201l). "[O]nly those deprivations denying the minimal

civilized measure of life's necessities are sufficiently grave to form the basis ofan Eighth
Amendment violation." lVilson v. Seiter, 501 U.S. 294, 298 (1991) (intemal quotation marks and

citation omitted).

PlaintilTfails to plead any facts that satisfy the objective component ofan Eighth
Amendment claim. Plaintiff s complaint about inadequate or delayed access to grooming
implements fails to state an objectively serious deprivation under the Eighth Amendment.

Likewise, his complaints that Defendants failed to timely fitl the beard coordinator position, and
that Defendants targeted him for disciplinary action before his request was approved are not the

t0

soft of extreme deprivations required to state a claim of cruel and unusual punishment. See

Hudson,503 U.S. at 9. Because Plaintiff has not met the objective component, he has failed to
state a claim for cruel and unusual punishment under the Eighth Amendment.

To the extent that Plaintiff seeks to supplement his claim with allegations related to an
excessive-use-of-force incident, the Court finds that his request should be DENIED. These
allegations, described in Plaintifls response to the Magistrate Judge's Report, do not relate back

to his original complaint. Further, Plaintiff acknowledges that he has raised this claim in a
separate proceeding, which is currently pending before the magistrate
I

:

cou( in Civil Action No.

l8-CV-208.

d.

FourteenthAmendment

Plaintiff claims generally that his due process rights were violated. "Prisoners charged
with rule violations are entitled to certain due process rights under the Fourteenth Amendment
when the disciplinary action may result in a sanction that wilt impinge upon a liberty interest."
Hodges v. Johnson, No. 3:01-CV-665-P,2001 WL 493151 at

*l

(N.D. Tex. May 7,2001). The

Supreme Court has held that a prisoner's liberty interest is "generally limited to freedom from

restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force, nonetheless imposes atypical and
significant hardship on the [prisoner] in relation to the ordinary incidents ofprison life." Sandin
v. Conner, 515 U.S. 472, 484 (1995).

It is well settled that the Due Process Clause does not protect every change in the
conditions of confinement having a substantially adverse impact on a prisoner. Meachum

v.

Fano, 427 U.S. 215, 224 (1976). The Due Process Clause protections are not implicated by a
change in

Plaintiffs custody level or line-class status. The Fifth Circuit

ll

has held that "the mere

opportunity to eam good time credits" does not constitute a "constitutionally cognizable liberty
interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott,'71F.3d
192, 193 (5th Cir. 1995), cerr. denied,5lT U.S. I196 (1996). Plaintiffs custodial classification

will

no1

inevitably affect the duration ofhis sentence.

Id. Tothe

extent that Plaintiff is

challenging the loss of commissary, recreation, and telephone privileges, the Due Process Clause
is not implicated by these changes in the conditions ofhis confinement. Madison v. Parker, 104
F.3d 765,768 (5th Cir. 1997). Ptaintiffhas failed to state aclaim under the Due Process Clause

of the Fourteenth Amendment.

e.

ADA and RA

Plaintiffclaims, in conclusory fashion, that Defendants discriminated against him
because of his mental

illness. Title II of the Americans with Disabilities Act (ADA) provides

that "no qualified individual with a disability shall, by reason ofsuch disability, be excluded

from participation in or be denied the benefits ofthe services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity." 42 U.S.C. $ 12132. The ADA
prohibits discrimination by public entities, while the similarly-worded Rehabilitation Act (RA)
applies to federally-funded programs and activities. 29 U.S.C. $ 79a(a). The same legal
standards and definitions apply to both

Acts. Kemp v. Holder, 610 F.3d 231,234 (5th Cir. 2010).

To state a claim under the ADA and RA, a plaintiff must show that

(l)

he has a qualifying

disability, (2) he is being denied the benefits ofservices, programs, or activities or otherwise
being discriminated against by a public entity, and (3) he is being discriminated against because

of his disability. Hale v. King, 642F.3d 492, 499 (5th Cir. 201 1).

Plaintiff claims that Defendants have discriminated against him because of his diagnosed
mental illness. First, Plaintiffhas not pleaded enough facts to establish that his mental illness

t2

"substantially limits one or more major life activities." See 42 U.S.C. 12102(lXA). But even
assuming that his schizoaffective disorder is a qualifying disability, Plaintiff fails to plead any

facts to establish causation. In his motion to supplement, Plaintiff attempts to clarify his claim.
He states that he was denied access to the dayroom, outside recreation activities, full commissary

privileges, visitation privileges, telephone privileges, chow hall privileges, law library privileges,
school courses, and mental health counseling. However, he states that these privileges were
denied because of his G5 custody level. Plaintiffhas pleaded no facts to suggest that he was
denied any ofthese programs or activities by reason olhis mental illness. As a result, he has

failed to state a claim under the ADA and RA. As a result, these claims should be DISMISSED.
For the reasons stated above, the Court ORDERS:

1.

Plaintiff s Motion to Supplement (Doc. 59) is GRANTED in part

as described in this

Order.

2.

Def'endant Lorie Davis, in her official capacity as Director oITDCJ-CID, shall
answer or otherwise respond within l4 days of the date of this Order, to Plaintifls
remaining RLUIPA claim as supplemented.

3.

Defendants' Motion to Dismiss is GRANTED in part. All Plaintifls claims, except
the RLUIPA claim described herein against Lorie Davis in her oUlcial capacity, are
disrnissed with prejudice lbr failure to state a claim upon which reliefcan be granted

4. All relief not expressly granted

is denied and any pending motions are denied.

There is no just reason fbr delay in entering a final judgment and final judgment should
be entered as to the above-described Defendants and claims pursuant to Federal Rule

olCivil

Procedure 54(b).

JUDGMENT SHALL BE ENTERED ACCORDINGL
Dated September

201 9.

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