Strong v. Livingston et al

Filing 67

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: denying 31 MOTION for Summary Judgment, granting 34 MOTION to Dismiss -Partial Dismissal Under Fed.R.Civ.P. 12(b)(6), 55 Memorandum and Recommendations, granting in part and denying in part 52 MOTION for Preliminary Injunction, granting in part and denying in part 54 MOTION for Preliminary Injunction (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TABARI S STRONG, et al,
Plaintiffs,
VS.
BRAD LIVINGSTON, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-106
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court are: (1) Plaintiff’s Motion for Summary Judgment, (D.E.
31); (2) Defendants’ Motion for Partial Dismissal, (D.E. 34); and (3) Plaintiff’s Amended
Motions for Preliminary Injunction, (D.E. 52, 54). On October 17, 2013, United States
Magistrate Judge B. Janice Ellington submitted a Memorandum and Recommendation
(D.E. 55) addressing these motions.

The Magistrate Judge recommends:

(1) that

Plaintiff’s Motion for Summary Judgment be denied; (2) that Defendants’ Motion for
Partial Dismissal be granted; and (3) that Plaintiff’s Amended Motions for Preliminary
Injunction be granted in part and denied in part. Defendants timely filed Objections on
October 31, 2013. (D.E. 58). Plaintiff also timely filed Objections on November 27,
2013. (D.E. 62).
Plaintiff is a Muslim prisoner incarcerated at the Texas Department of Criminal
Justice’s (TDCJ) McConnell Unit. Plaintiff filed this lawsuit alleging that the TDCJ’s
grooming policy was a violation of his rights under the Religious Land Use and

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Institutionalized Persons Act (RLUIPA)1 and the First Amendment as well as his right to
equal protection under the Fourteenth Amendment.

The grooming policy requires

inmates to be clean-shaven. Plaintiff avers that his adherence to Islam and the teachings
of its prophets prohibit him from being clean-shaven.
In making her recommendations, the Magistrate Judge concluded: (1) Summary
Judgment in favor of Plaintiff would be inappropriate because although “[s]tanding alone,
the Garner decision itself may effectively be grounds for this Court to find that the
TDCJ’s clean-shaven policy violates RLUIPA . . . the evidence offered by [P]laintiff to
sustain this argument is not;” (2) The Eleventh Amendment barred any claims against
Defendants in their official capacities for money damages but did not bar a claim for
prospective injunctive relief; (3) Defendants were entitled to dismissal of claims against
them in their individual capacities because RLUIPA does not apply to a defendant acting
in its individual capacity;2 (4) Plaintiff’s equal protection claims should be dismissed
because he did not allege that the grooming policy was applied only to Muslims and thus
failed to state a cognizable equal protection claim; (5) “[I]t would be contrary to justice to
not grant the [injunctive] relief requested by [P]laintiff to wear a quarter-inch beard;”
and (6) Plaintiff was not entitled to injunctive relief for new charges against correctional
officers for alleged harassment. Both parties’ Objections are set out and discussed below.

1

42 U.S.C. § 2000cc–2(a) (2006).
The pertinent language of the general rule states that “no government shall impose a substantial burden on the
religious exercise of a person residing or confined to an institution . . . .” 42 U.S.C. § 2000cc–1(a) (2006) (emphasis
added).

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In reaching its conclusions, this Court will only consider the record developed at
the time the Memorandum and Recommendation was entered and will not expand the
record by incorporating evidence not before the Magistrate Judge when her
recommendations were made.
DEFENDANTS’ OBJECTIONS
Defendants object to the Magistrate Judge’s recommendation to partially grant
Plaintiff’s Amended Motion for Preliminary Injunction.
First, Defendants object because “[t]he finding that Plaintiff is not facing
irreparable harm independently bars entry of a preliminary injunction in his favor.” (D.E.
58, p. 4). In analyzing this second factor for the award of injunctive relief, the Magistrate
Judge determined that “[a]lthough the harm [suffered by Plaintiff] is not irreparable, in
light of [the] fact that the Fifth Circuit has conclusively found the policy to be a burden,
any continued enforcement of it amounts to at least some harm that need not be endured.”
(D.E. 55, p. 17).
The award of injunctive relief requires irreparable harm. See Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (requiring “plaintiffs seeking preliminary
relief to demonstrate that irreparable injury is likely in the absence of an injunction.”).
Plaintiff has satisfied the irreparable harm requirement as a matter of law because he has
alleged violations of his RLUIPA rights. See Opulent Life Church v. City of Holly
Springs, 697 F.3d 279, 295 (5th Cir. 2012) (holding that “[Plaintiff] has demonstrated
that it will suffer irreparable harm absent the injunction it seeks . . . because it has alleged
violations of its First Amendment and RLUIPA rights.”).
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“RLUIPA enforces First

Amendment freedoms, and the statute requires courts to construe it broadly to protect
religious exercise.”

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Id. “The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.” Id. (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976)). Because Plaintiff brings his claim under RLUIPA,
inherent in which is an allegation of a violation of his religious freedoms, he has satisfied
the irreparable harm requirement. Defendants’ first objection is OVERRULED.
Second, Defendants object to the Magistrate Judge’s conclusion that Plaintiff
established a likelihood of success on the merits of his challenge to the TDCJ grooming
policy based on the Fifth Circuit’s recent decision in Garner v. Kennedy, 713 F.3d 237
(5th Cir. 2013). Despite an earlier motion by Defendants to abate these very proceedings
pending the outcome of Garner because “the same issue in Garner is now before the
Court,” (D.E. 14, p. 2), Defendants now argue that Garner does not control the case at
bar since “Plaintiff is not the beneficiary of the declaratory judgment or the injunction
from Garner,” and Defendants’ ability to proffer evidence in order to rebut Plaintiff’s
claims is not foreclosed by its holding. (D.E. 58, p. 5). The Magistrate Judge observed
that “[t]he Garner decision effectively holds that the TDCJ grooming policy requiring
inmates to be clean-shaven violates RLUIPA, and it effectively affirms the right of a
Muslim inmate to wear a quarter-inch beard as a valid exercise of his faith.” (D.E. 55, p.
9). This Court agrees.

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“This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc–3(g) (2006).

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The fact that Plaintiff was not the beneficiary of Garner’s holding does not
frustrate its application as controlling precedent in this case. The record in this case is
strikingly similar to the record before the Fifth Circuit in Garner, and the favorable
outcome for the plaintiff in that case militates strongly in favor of success on the merits
for Plaintiff in this case. Defendants’ second objection is OVERRULED.
Third, Defendants object to the Magistrate Judge’s finding that Plaintiff’s
substantial injury outweighs the threatened harm to Defendants “because DeMoss4 and
Gooden5 demonstrated that allowing inmates to wear quarter-inch beards makes Texas
prisons more expensive and less secure.” (D.E. 59, p. 7). In Garner, the Fifth Circuit
declined to extend the holdings of DeMoss and Gooden “in light of the more-developed
record and the factual findings present” in the case before it. Garner, 713 F.3d at 244.
Then, while recognizing that it must “accord due deference to the experience and
expertise of prison and jail administrators,” the Fifth Circuit found no clear error in the
district court’s finding that any increased costs to the TDCJ would be insignificant
despite testimony that permitting Muslim inmates to wear quarter-inch beards would
increase both costs and security concerns. Id. at 246-47.
The record developed at the time the Memorandum and Recommendation was
entered fails to disclose significant costs to the TDCJ that would outweigh Plaintiff’s
substantial injury. In fact, Defendants voluntarily allowed Plaintiff to wear a quarter-inch
beard after the Fifth Circuit’s decision in Garner. Both the decision in Garner and the

4
5

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

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fact that Defendants responded to that decision by voluntarily allowing Plaintiff to wear a
quarter-inch beard support the conclusion that Plaintiff’s substantial injury outweighs the
threatened harm to Defendants. Defendants’ third objection is OVERRULED.
Finally, Defendants object to the conclusion that granting Plaintiff’s Amended
Motions for Preliminary Injunction to the extent that he would be permitted to wear a
quarter-inch beard would not disserve the public interest. (D.E. 58, p. 7). The Fifth
Circuit has held that “[i]njunctions protecting First Amendment freedoms are always in
the public interest.” Opulent Life Church, 697 F.3d at 298 (citations omitted). Therefore,
when a likelihood of success on the merits is established, the final requirement for a
preliminary injunction is met.

Id.

“This principle applies equally to injunctions

protecting RLUIPA rights because, as discussed, RLUIPA enforces the First Amendment
and must be construed broadly.” Id. Because Plaintiff has established a likelihood of
success on the merits of his RLUIPA claim, which alleges infringement upon his
religious freedoms, a preliminary injunction would not disserve the public interest.
Defendants’ fourth objection is OVERRULED.
PLAINTIFF’S OBJECTIONS
Plaintiff was granted an extension to file objections to the Memorandum and
Recommendation of October 17, 2013. (D.E. 61). However, his Objections are primarily
directed at Defendants’ Motion for Summary Judgment (D.E. 57) which was filed after
the Magistrate Judge made her recommendations. In his Objections, Plaintiff does not
challenge the recommendation to deny his Motion for Summary Judgment (D.E. 31) and
partially deny his Amended Motions for Preliminary Injunction (D.E. 52, 54). He also
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does not challenge the recommendation to dismiss his equal protection claim, any claims
against Defendants in their individual capacities, and any claims against Defendants for
money damages. Defendants’ Motion for Summary Judgment was not pending before
the Magistrate Judge when her Memorandum and Recommendation was entered and so it
is not before the Court for consideration at this juncture.
Since Plaintiff has not made specific objections to the Magistrate Judge’s
Memorandum and Recommendation, this Court need only satisfy itself that there is no
plain error on the face of the record with regard to Plaintiff’s claims. Guillory v. PPG
Industries, Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citations omitted). Finding no plain
error, this Court ADOPTS the findings of fact and conclusions of law expressed in the
Memorandum and Recommendation with regard to the pending motions. (D.E. 31, 34,
52, and 54).
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s and Defendants’ Objections, and all other relevant documents in the record,
and having made a de novo disposition of the portions of the Magistrate Judge’s
Memorandum and Recommendation to which objections were specifically directed, the
Court OVERRULES Defendants’ Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge.

Accordingly, Plaintiff’s Motion for Summary

Judgment is DENIED, Defendants’ Motion for Partial Dismissal is GRANTED, and

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Plaintiff’s Amended Motions for Preliminary Injunction are GRANTED in part and
DENIED in part.
ORDERED this 20th day of December, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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