Cox v. Stephens et al
Filing
58
MEMORANDUM OPINION AND ORDER granting 37 Motion for Summary Judgment. Plaintiffs claims against Defendants in their official capacities, and against Morris in hisindividual capacity, are DISMISSED with prejudice.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
J L COX,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.
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§ CIVIL ACTION NO. 2:13-CV-151
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MEMORANDUM OPINION AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this prisoner civil rights action, Plaintiff J.L. Cox challenges certain policies
and practices of the Texas Department of Criminal Justice, Correctional Institutions
Division (TDCJ-CID) that he claims conflict with his right to practice his Native
American faith in violation of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc, et seq., and the First Amendment. Plaintiff seeks
injunctive and declaratory relief against the TDCJ-CID, by and through Defendants in
their official capacities only, to: (1) allow Plaintiff to grow his hair and not be required to
keep it trimmed around the ears and neck as required by the TDCJ grooming policy; (2)
allow Plaintiff to wear his medicine bag at all times; and (3) allow Plaintiff to possess his
own personal prayer pipe and allow him to smoke it during sacred pipe ceremonies.
(D.E. 1, pp. 6-7). Plaintiff is also suing Clint Morris (Defendant Morris or Morris), the
TDCJ-CID Native American Program Analyst, in his individual capacity under the First
Amendment, alleging that Defendant Morris personally violated Plaintiff’s rights when
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he failed to provide sacred pipe ceremonies at the McConnell Unit prior to TDCJ’s ban
on communal pipe smoking in July 2012. (D.E. 1, p. 7-8).
Pending is Defendants’ motion for summary judgment to deny Plaintiff Cox’s
claims. (D.E. 37). Plaintiff has filed responses in opposition to the motion, (D.E. 47,
56), and Defendants have filed a reply. (D.E. 52).
For the reasons set forth below, the Court finds that the TDCJ-CID’s practices and
policies at issue in this lawsuit do impose a “substantial burden” on Plaintiff’s free
exercise of his religious beliefs in violation of RLUIPA. However, the Court finds the
challenged TDCJ-CID policies and practices are the least restrictive means of providing
religious freedom to Plaintiff, while simultaneously maintaining the TDCJ-CID’s
compelling penological interests in security and safety within mandated budget
constraints.
Further, Plaintiff’s allegations do not establish constitutional violations
under the First Amendment. Consequently, the Court GRANTS Defendants’ motion for
summary judgment and DISMISSES with prejudice Plaintiff’s claims for injunctive
relief under RLUIPA and the First Amendment. Finally, the Court DISMISSES with
prejudice Plaintiff’s claims for money damages against Defendant Morris in his
individual capacity because Morris is entitled to qualified immunity.
I.
JURISDICTION.
The Court has federal question jurisdiction over this action pursuant to 28 U.S.C.
§ 1331.
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II.
PROCEDURAL BACKGROUND.
Plaintiff is a prisoner in the TDCJ-CID and is currently confined at the McConnell Unit
in Beeville, Texas.
Plaintiff has been in TDCJ custody since 1994, serving three
concurrent forty-year sentences. He is in general population and lives in a dorm-like
setting, not a cell.
On May 28, 2013, Plaintiff filed his original complaint.
(D.E. 1).
He named as
defendants: (1) Rick Thaler, the former TDCJ-CID Director who was subsequently
replaced by the current Director, William Stephens; and (2) Native American Program
Analyst, Clint Morris. (D.E. 1, p. 3).
On July 9, 2013, a Spears1 hearing was conducted, and on July 15, 2013, United States
Magistrate Judge Jason Libby recommended that Plaintiff’s First Amendment and
RLUIPA claims for injunctive relief against Defendants Stephens and Morris in their
official capacities be retained, but that Plaintiff’s First Amendment claims against Morris
be dismissed for failure to state a claim. (D.E. 14). On July 22, 2014, Plaintiff filed an
objection to the recommendation, arguing that he had stated a cognizable First
Amendment claim against Morris in his individual capacity. (D.E. 16). Plaintiff argued
that, prior to the TDCJ’s 2012 ban on communal pipe smoking, offenders were allowed
to partake in the communal pipe. However between 2009 and 2012, Defendant Morris
failed to provide adequate personnel to conduct pipe ceremonies, effectively violating
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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Plaintiff’s right to practice his religion under the First Amendment over that three year
period. (D.E. 16).
On September 11, 2013, the Court adopted the recommendation to retain Plaintiff’s
RLUIPA and First Amendment claims against Defendants in their official capacities.
(D.E. 21). In addition, the Court sustained Plaintiff’s objection to the recommendation
and allowed Plaintiff’s First Amendment claim for damages against Morris in his
individual capacity to go forward. (D.E. 21).
On August 29, 2013, Defendants filed their Answer and asserted their entitlement to
qualified immunity. (D.E. 18). Also on August 29, 2013, Defendant Morris filed a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (D.E. 17). On January 22, 2014,
the Court denied Defendant Morris’s dismissal motion finding that Plaintiff had alleged
sufficient facts for purposes of 28 U.S.C. § 1915A screening to avoid a Rule 12(b)(6)
dismissal. (D.E. 26).
On June 11, 2014, Defendants filed the instant motion for summary judgment. (D.E. 37,
38, 39, 40, 42).
Following an extension of time, on August 25, 2014, Plaintiff filed his response in
opposition to Defendants’ summary judgment motion. (D.E. 47).
Following an extension of time, on December 22, 2014, Defendants filed a reply to
Plaintiff’s response. (D.E. 52).
On February 20, 2015, Plaintiff filed an additional response. (D.E. 56).
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III.
SUMMARY JUDGMENT EVIDENCE.
A.
Evidence related to Plaintiff’s faith and claims.
Plaintiff is of Choctaw descent. (D.E. 37-2, p. 3). He was raised Pentecostal; however,
when he arrived at the McConnell Unit, he began studying the faith of his ancestors under
an elder named “Old One.” (D.E. 37-2, p. 4). In 2005, Plaintiff considered himself to be
a practitioner of the Native American faith. 2 (D.E. 37-2, p. 4). On March 11, 2008, the
TDCJ Chaplaincy Department file noted that Plaintiff’s religious preference was Native
American. (D.E. 37-3, p. 4).
On December 10, 2012, Plaintiff filed a Step 1 grievance, Grievance No. 2013058735,
complaining that certain TDCJ policies were interfering with his ability to exercise his
Native American faith. (D.E. 37-1, pp. 7-8). Plaintiff stated that it was one of the tenets
of his faith to continually grow his hair and to cut it only in times of mourning as a sign
of respect for the deceased. He claimed that the TDCJ’s mandate of requiring short hair
trimmed above the ears interfered with this practice, and he sought an exemption from
the grooming policy. (D.E. 37-1, pp. 7-8). Plaintiff alleged further that it was his belief
that wearing a medicine bag containing certain sacred items protected him from evil
2
It is acknowledged that neither the term “Native American faith” nor “Native American
religion” adequately represents the defined belief system of Plaintiff Cox or any particular
Native American practitioner because the faith encompasses a wide range of beliefs from
different tribes and regions. (Affidavit of Chari Bouse, Contract Native American Chaplain,
D.E. 38-12, p. 4, noting: “Currently, there are 565 federally recognized tribes . . . Each tribe has
its own specific customs and traditions. However, there are several ‘inter-tribal’ customs, and
even that varies in tribes from different states. Native Americans are not religious by nature, but
adhere to what we call a ‘way of life.’ Our people are monotheistic, meaning we recognize only
one Creator God or Deity.”). A running similarity in the Native American faith system is the
central relationship of human beings, and their bodies, to the land, nature, reality, and
spirituality. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 460-61
(1988) (J. Brennan, dissenting).
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spirits, and he challenged the TDCJ policy that limited his wearing of the medicine bag to
his cell area and circle ceremonies only. Finally, Plaintiff requested that he be able to
smoke his own sacred prayer pipe and offer his own prayers to the Great Spirit rather
than have a chaplain offer his prayers by proxy. (D.E. 37-1, pp. 7-8).
On January 15, 2013, Warden Monroe denied Plaintiff’s Step 1 grievance noting that the
grooming policy applied to all offenders regardless of their religious faith, that offenders
were limited to what items could be carried outside of their cells, and that per revised
TDCJ policy, only the chaplain/volunteer could smoke the sacred pipe. (D.E. 37-1, p. 8).
On January 26, 2013, Plaintiff filed a Step 2 appeal of Grievance No. 2013058735. (D.E.
37-1, pp. 5-6). Plaintiff argued that the grooming policy requiring short hair was not the
least restrictive means of balancing Plaintiff’s right to practice his religion against the
TDCJ’s interest in security and that he should be allowed to wear a kouplock, a 2” x 2”
wide strip of hair at the base of his skull that could grow continuously. (D.E. 37-1, pp. 56).
Plaintiff claimed also that inspection of the medicine bags would not place any
undue hardship or expense on prison security such that he should be allowed to
continually wear his medicine bag as an exercise of his faith. As to the communal pipe,
Plaintiff argued that the TDCJ had allowed it for sixteen years, and that the federal prison
system continued to allow Native American prisoners to partake in it. (D.E. 37-1, pp. 56).
On March 27, 2013, the Region IV Grievance Coordinator denied the grievance as
properly denied at Step 1. (D.E. 37-1, p. 6).
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B.
Evidence related to development of challenged TDCJ policies.
(1)
The Yellowquill case.
On April 13, 1995, Jolene Yellowquill, a Native American of Ojibwe heritage who was
confined at a TDCJ unit in Gatesville, Texas, filed suit for injunctive relief in the United
States District Court for the Southern District of Texas, Houston Division, seeking, inter
alia, that the TDCJ be required to provide sacred pipe ceremonies to Native American
adherents confined within the TDCJ. See Yellowquill v. Scott, No. 4:95-cv-1080, D.E. 1,
63. On May 22, 1997, the district court granted Yellowquill’s motion for a temporary
restraining order as it related to the communal pipe. Id.; D.E. 71. Thereafter, the parties
reached a settlement. Id.; D.E. 119. Although Yellowquill involved only one inmate, the
resulting settlement agreement served as the basis for the TDCJ to implement certain
policies to address the practice of the Native American faith.
(2)
The TDCJ Offender Orientation Handbook, Policies after Yellowquill,
and the Chance Litigation.
The TDCJ Offender Orientation Handbook (revised November 2004) (D.E. 37-7, pp. 117) includes a grooming policy mandating that all offenders maintain “good personal
hygiene,” brush their teeth daily, and be clean-shaven. (D.E. 37-7, p. 8). As to hair
length, the grooming policy states:
Male offenders must keep their hair trimmed up the back of their neck and
head. Hair must be neatly cut. Hair must be cut around the ears. Sideburns
will not extend below the middle of the ears. No block style, afro, natural or
shag haircuts will be permitted. No fad or extreme hairstyles/haircuts are
allowed. No mohawks, tails, or designs cut into the hair are allowed.
(D.E. 37-7, p. 8)
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The handbook also includes the TDCJ’s tobacco policy which states that “[a]ll facilities
within the TDCJ are designated as tobacco free,” and warns that offenders found in
possession of “tobacco products, paraphernalia or similar products may be charged with a
disciplinary offense.”3 (D.E. 37-7, p. 11).
In November 2008, the TDCJ Chaplaincy Department, in response to the Yellowquill
litigation, revised the Chaplaincy Manual (CM), Policy 09.03 (rev. 4) to create an
exception to the TDCJ tobacco ban for Native American adherents at pipe ceremonies.
(D.E. 37-12, pp. 1-4.).
The policy provided in relevant part:
3.
TDCJ policy forbids the use or possession of tobacco in prison by
offenders. However, an exception to policy is in effect for Native American
religious practitioners participating in the circle group prayer pipe ceremony of
Native American-designated units/facilities.
. . .
5.
The Pipe ceremony will be conducted at a rate of no more than twice
each month on Native American-designated units/facilities. This is contingent
upon availability of a qualified Native American chaplain, or a TDCJ approved
volunteer, the pipe ceremony will be supervised and/or facilitated by one of
these.
6.
The pipe ceremony will include tobacco or sage, sweet grass,
kinnikinnick, or cedar. These may be used in combination as prescribed by
Native American tradition.
(D.E. 37-12, pp. 1-4) (emphasis in original).
3
Effective October 13, 1997, the TDCJ banned the use of all tobacco products within its
institutions, for both offenders and employees. (D.E. 37-9, pp. 1-4, TDCJ Tobacco Policy, Rule
§ 151.25).
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On June 16, 2011, William Chance, a Native American prisoner confined at the
Michael Unit in Tennessee Colony, Texas, sued the TDCJ and certain prison officials in
the United States District Court for the Eastern District of Texas, Tyler Division, alleging
that he had been denied, inter alia, the right to participate in pipe ceremonies and
smudging rituals in violation of RLUIPA and his First Amendment rights. See Chance v.
Tex. Dep’t of Criminal Justice, No. 6:11-cv-435 (E.D. Tex. June 16, 2011) (complaint).
Plaintiff Chance suffers from two serious infectious diseases, Hepatitis C and
Tuberculosis. Because of his communicable diseases, he could not smoke from the
communal pipe used during pipe ceremonies so he sought permission to possess a
personal pipe. Id.
In response to the Chance litigation, on September 8, 2011, a meeting was held with
former TDCJ-CID Director Rick Thaler, Chaplaincy Director Bill Pierce, Program
Analyst Clint Morris, and other officials to discuss the status of Native American contract
chaplains, the possibility of hiring full-time chaplains, and Native American communal
pipe services, including medical and sanitation issues, liability releases, protective covers
for pipes, frequency of pipe services, costs of pipes, and the increase in Native American
adherents over time. (D.E. 38-9, pp. 1-5). It was decided that only the Native American
chaplain could smoke the ceremonial pipe at a pipe ceremony. (D.E. 38-9, p. 5).
The
chaplains were told that no offender was allowed to personally smoke the pipe in a pipe
ceremony. (D.E. 38-14, pp. 1-4) (October 12, 2012 Inter-Office Memorandum). The
memorandum states:
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To ensure consistency among the Native American Pipe services the
following information is being provided to clarify the handling of the pipe.
Effective immediately, offenders participating in the Native American Pipe
service will be allowed to handle the pipe prior to its lighting. This was
the practice on the majority of the units and will be the standard from this
point forward. The pipe can be the contract Native American chaplain’s
pipe or one donated to the unit.
The contract Native American chaplain or authorized Native American
volunteer will be the only individual allowed to smoke the pipe.
Please note upon the notification that a unit has been quarantined for any
reason, the handling of the communal pipe will cease until the quarantine
has been lifted.
(D.E. 38-14, p. 3).
Robert J. Eason (Eason), TDCJ-CID Deputy Director – Prison and Jail Operations,
reported on the medical barriers to communal pipe use and communicable illnesses in a
prison setting. (D.E. 40-18. pp. 1-22). Further, Dr. Robert Williams, Deputy Director of
TDCJ Health Services Division, opined that the communal pipe presents a “poor health
practice” and an unnecessary risk of the spread “of all communicable diseases including
influenza, norovirus, viral hepatitis (HAV, HBV, HCV), HIV, and herpes, among the
prison population.” (D.E. 38-11, pp. 1-4).
In July 2012, the TDCJ revised CM Policy 09.01 to provide that “[o]nly the Native
American chaplain/volunteer is authorized to smoke the pipe used for the pipe service.”
(D.E. 37-4, p. 3).
In July 2012, the TDCJ Chaplaincy Department revised Policy 05.01 regarding
Religious Devotional Items and Observed Holy Days. (D.E. 37-5, pp. 1-13). CM Policy
05.01, Section II.D provides information about “Medicine Bags or Pouches” and states
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that “[w]earing the bag or pouch is limited to the offender’s cell or immediate bunk area
in a dorm setting, and at religious services.” (D.E. 37-5, p. 5).
IV.
SUMMARY JUDGMENT STANDARD.
Summary judgment is proper if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must examine “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this determination, the Court must consider the
record as a whole by reviewing all pleadings, depositions, affidavits and admissions on
file, and drawing all justifiable inferences in favor of the party opposing the motion.
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not
weigh the evidence, or evaluate the credibility of witnesses. Id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed. R. Civ. P. 56(e); see also Cormier v. Pennzoil Exploration
& Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider
affidavits that relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that courts cannot consider
hearsay evidence in affidavits and depositions).
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Unauthenticated and unverified
documents do not constitute proper summary judgment evidence. King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (per curiam).
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party demonstrates an absence of evidence supporting the nonmoving party’s case, then
the burden shifts to the nonmoving party to come forward with specific facts showing
that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S.
at 248. “After the nonmovant has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant, summary judgment will be
granted.” Caboni, 278 F.3d at 451. “If reasonable minds could differ as to the import of
the evidence . . . a verdict should not be directed.” Anderson, 477 U.S. at 250-51.
The evidence must be evaluated under the summary judgment standard to
determine whether the moving party has shown the absence of a genuine issue of material
fact. “[T]he substantive law will identify which facts are material. Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 248.
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V.
DISCUSSION AND ANALYSIS.
A.
(1)
Threshold determinations.
The Chance case and summary judgment.
Plaintiff argues that there exists a genuine issue of material fact on the issue of least
restrictive means, because the TDCJ followed more liberal policies in the past regarding
the communal pipe, the TDCJ allows women prisoners to grow their hair, and other
prisons allow certain practices that the TDCJ does not. (D.E. 47-1, pp. 18-19). However,
a fact issue is not created simply because the TDCJ previously had a policy allowing a
now-prohibited activity or because other correctional systems allow an activity that the
TDCJ prohibits. See Chance v. Tex. Dep’t of Criminal Justice, 730 F.3d 404 (5th Cir.
2013). In Chance, the plaintiff was seeking access to a sweat lodge, and he offered
evidence that a federal correctional facility nearby provided such access. Id. at 411. The
Fifth Circuit found the practices of other prison systems irrelevant, noting that a
comparison of policies ignores “the differences between institutions and all the other
factors that might be more relevant in a given case.” Id. (citing Fowler v. Crawford, 534
F.3d 931, 934 (8th Cir. 2008)). The Fifth Circuit concluded that the mere existence of a
prison policy that differs from a past policy or another institution’s policy does not
necessarily entitle a plaintiff to survive summary judgment on a RLUIPA claim. Id. The
Chance court noted: “That TDCJ or other prisons have tolerated unsafe practices in the
past is not a reason to permanently bind it to a dangerous policy.”4 Id. at 412. Rather, as
4
Other circuit courts have rejected the adoption of a per se rule or bright-line test in evaluating
RLUIPA’s least restrictive means issue. See, e.g., Mays v. Springborn, 575 F.3d 643, 647 (7th
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discussed below, the RLUIPA analysis mandates a case-specific approach when
analyzing the issue of least restrictive means on summary judgment. Therefore, Plaintiff
does not necessarily survive summary judgment simply because the TDCJ previously had
more liberal policies or because other penal institutions provide more services and
accommodations to offenders practicing the Native American faith.
(2)
Substantial burden and sincerity of Plaintiff’s beliefs.
Defendants do not challenge the sincerity of Plaintiff’s beliefs, but argue only that the
policies at issue do not impose substantial burdens on the exercise of his faith. There is
no evidence to cast doubt as to the sincerity of Plaintiff’s beliefs.
B.
The RLUIPA Standard.
With respect to its protection of institutionalized persons, the RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution … even if the burden results
from a rule of general applicability, unless the government demonstrates that
imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc-1(a). Under the RLUIPA, the plaintiff bears the burden to prove that
the challenged law, regulation, or practice substantially burdens his exercise of religion.
Once a plaintiff has made this prima facie showing, the defendant bears the burden to
Cir. 2009) (affirming summary judgment dismissing prisoner’s free exercise claim where “the
only evidence he produced was that the [forbidden items] were allowed at other prisons”); Spratt
v. R.I. Dep’t of Corr., 482 F.3d 33, 42 (1st Cir. 2007) (“[E]vidence of policies at one prison is
not conclusive proof that the same policies would work at another institution.”).
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prove that the challenged regulation is the least restrictive means of furthering a
compelling governmental interest. Id., § 2000cc-2(b). See Sossamon v. Texas, 131 S. Ct.
1651, 1656 (2011).
Despite RLUIPA’s express purpose to protect the religious observances of
institutionalized persons, the statute does not give courts carte blanche to second-guess
the reasoned judgments of prison officials. Congress anticipated that courts “would
accord ‘due deference to the experience and expertise of prison and jail administrators.’”
Cutter v. Wilkinson, 544 U.S. 709, 716-17 (2005) (quoting 146 Cong. Rec. 16698, 16699
(2000) (joint statement of Sens. Hatch and Kennedy on the RLUIPA)). The Supreme
Court has cautioned that “[w]e do not read RLUIPA to elevate accommodation of
religious observances over an institution’s need to maintain order and safety,” and “an
accommodation must be measured so that it does not override other significant interests.”
Id. at 722. The Court further instructed:
We have no cause to believe that RLUIPA would not be applied in an
appropriately balanced way, with particular sensitivity to security concerns.
While the Act adopts a “compelling governmental interest” standard, context
matters in the application of that standard. Lawmakers supporting RLUIPA
were mindful of the urgency of discipline, order, safety, and security in penal
institutions. They anticipated that courts would apply the Act’s standard with
due deference to the experience and expertise of prison and jail administrators
in establishing necessary regulations and procedures to maintain good order,
security and discipline, consistent with consideration of costs and limited
resources.
Id. at 722-23 (internal quotation marks and citations omitted). However, this deference is
not unlimited, and “policies grounded on mere speculation, exaggerated fears, or post-hoc
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rationalizations will not suffice to meet the Act’s requirements.” Rich v. Sec’y, Fla.
Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013) (internal quotation marks omitted).
C.
Application of RLUIPA Standard to this Case.
(1)
The policies complained of present a substantial burden on Plaintiff’s ability
to practice his faith.
Under RLUIPA, Plaintiff must initially demonstrate that a government practice
imposes a “substantial burden” on his religious exercise. The Court must determine: (1)
whether the burdened activity is “religious exercise,” and if so, (2) is the burden
“substantial”? Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004). RLUIPA defines
“religious exercise” to include “any exercise of religion,” whether or not compelled by,
or central to, a system of religious beliefs.” Id. A government action or regulation
creates a substantial burden on a religious exercise if it truly pressures the adherent to
significantly modify his religious behavior and significantly violates his religious beliefs.
Id. at 570.
Plaintiff is challenging the TDCJ’s grooming policy that prohibits him from growing his
hair, the religious objects policy that prohibits him from wearing his medicine bag at all
times, and the pipe policy prohibiting him from partaking in the communal pipe. (D.E.
47). Plaintiff relates that, under the Native American faith, hair is considered a part of
one’s self and spirituality, and is to be cut only in times of mourning. (D.E. 47, pp. 9-12).
The TDCJ argues that long hair poses a security risk because it can be used to hide
contraband and it exposes the person wearing it to harm. (D.E. 37, pp. 41-44).
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As to the medicine bag, Plaintiff explains that it contains sacred stones and items that
protect him from evil spirits. (D.E. 47, pp. 20-24). The TDCJ maintains that it would be
cost prohibitive to search the contents of each Native American adherent’s medicine bag
if the adherents are permitted to wear the bags outside of the cell or cell area. (D.E. 37,
pp. 59-60).
Plaintiff contends that the purpose of the ceremonial pipe is to establish a personal
relationship with the Creator through a direct dialogue which can only be accomplished
by personally inhaling and exhaling the smoke. (D.E. 47, pp. 18-20). For the Spirits to
answer a participant’s prayers, he must make an offering to them by personally smoking
the pipe. (D.E. 47, p. 20).
Plaintiff also complains that his faith is practiced and
reinforced in ceremonies and gatherings with other Native American believers, but the
McConnell Unit has failed to provide even the minimal services described in its policies
because it has failed to employ contract chaplains or locate volunteer chaplains to
conduct and/or oversee ceremonies.
Given the Supreme Court’s mandate to examine RLUIPA claims on a fact-specific caseby-case basis, the Court finds that Plaintiff has met his summary judgment burden to
establish that the complained-of TDCJ policies and practices place a substantial burden
on Plaintiff’s religious exercise of his Native American faith.
(2)
Least restrictive means.
Because Plaintiff has established a substantial burden under RLUIPA, Defendants must
demonstrate that the challenged policies are the least restrictive means of furthering a
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compelling governmental interest. 42 U.S.C. § 2000cc-1(a); Chance, 730 F.3d at 410;
see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013).
(a)
Wearing long hair or a kouplock.
Robert Eason (Deputy Director — Prison and Jail Operations) testified that the grooming
policy impacts the TDCJ’s compelling interests in both security and costs. (D.E. 40-18,
pp. 15-21). Eason stated that longer hair would result in increased searches and increased
physical contact between officers and offenders in the “strike zone.” (D.E. 40-18, p. 15).
Correctional officers are trained to keep an arms-length distance between themselves and
offenders, and with an inmate’s hair no longer than the collar, visible inspections are
effective and the officer need not touch the inmate. If an inmate is allowed to wear long
hair or even a braid, the hair must be searched, thus diverting the attention of the officer
from supervising the larger population to focus on a single prisoner.
In addition,
searching an offender’s hair takes time, and time pressures impact the entire unit schedule
and the ability to move offenders. (D.E. 40-18, p. 15).
Eason noted that long hair can be used against the offender if he is assaulted or otherwise
engaged in a physical confrontation. (D.E. 40-18, p. 16). Long hair or a braid allows
another inmate to grab the hair and control the victim. Eason stated that the TDCJ is
regularly sued by prisoners who allege failure to protect, and long hair exposes the TDCJ
to increased liability. Additionally, long hair would make identification of prisoners both
in and outside of prison (in the event of an escape) more difficult. (D.E. 40-18, p. 16).
Jennifer Gonzales (Gonzales), Assistant Budget Director of the TDCJ Business and
Finance Division, calculated that the annual cost to search offenders’ hair if all prisoners
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were permitted to grow their hair past collar length would be approximately $147,460.00.
(D.E. 40-16, p. 3).
The Fifth Circuit has effectively foreclosed Plaintiff’s RLUIPA claim regarding the
grooming policy and his desire to wear long hair. In Longoria v. Dretke, 507 F.3d 898
(5th Cir. 2007), the plaintiff, an inmate of Mexican and Native American descent,
requested permission to grow his hair because the Great Spirit instructed him to do so.
He sued under RLUIPA and the district court dismissed the lawsuit as frivolous. On
appeal, the Fifth Circuit referenced its decision in Diaz v. Collins, 114 F.3d 69 (5th Cir.
1997), a case decided under the Religious Freedom Restoration Act (RFRA). The Court
held: “Because the test under RLUIPA is sufficiently the same as that previously imposed
under RFRA, we hold TDCJ-ID did not violate Longoria’s rights by, pursuant to the
grooming policy, denying him permission to grow his hair.” Longoria, 507 F.3d at 901.
In Thunderhorse v. Pierce, 364 F. Appx. 141 (5th Cir. 2010), the Fifth Circuit again
relied on Diaz and noted:
… that prisoners may hide weapons and other contraband in their hair. 114
F.3d at 73. In addition, requiring short hair makes it more difficult for an
escaped prisoner to alter his appearance from photographs that the TDCJ
periodically takes of each inmate. Id. In light of these concerns, we held
that ‘the security interest at stake cannot meaningfully be achieved
appropriately by any different or lesser means than hair length standards.’
Id.
364 F. Appx. at 146. Thus, the Fifth Circuit has determined that even if the grooming
policy interferes with a prisoner’s right to practice his religion, the policy is the least
restrictive means of furthering the TDCJ’s compelling interest in security and managing
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costs. The evidence presented in this case falls squarely within that reasoning, and
Plaintiff fails to establish that a genuine issue of a material fact exists.
Similarly, a kouplock raises the same security concerns and costs as does long hair. The
Fifth Circuit has held that RLUIPA “is not meant to elevate accommodation of religious
observances over the institutional need … to control costs,” and “controlling costs …
involves compelling governmental interests.” DeMoss v. Crain, 636 F.3d 145, 154 (5th
Cir. 2011) (quoting Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). The TDCJ is
not obligated to spend large amounts of money in order for Plaintiff to wear long hair or a
kouplock. The uncontroverted summary judgment evidence establishes that allowing
long hair or a kouplock could increase the danger to correctional officers during a search
as they must enter the “strike zone,” increase the risk of serious injury to Native
American offenders if attacked by other inmates, and lead to increased liability exposure
to the TDCJ. The grooming policy is the least restrictive means of promoting the TDCJ’s
compelling interests in security and costs.
(b)
Medicine bags.
Since 2009, the TDCJ Chaplaincy Department has included medicine bags and pouches
as approved devotional items for offender possession. (D.E. 37-13, p. 4). However,
“[w]earing the bag is limited to the offender’s cell/dorm area in a dorm setting, and at
religious services.” (D.E. 37-13, p. 4).
Plaintiff testified that he can also wear his
medicine bag on his way to and from services. (D.E. 14, p. 3). The policy provides that
“[f]or religious reasons, any inspecting officer shall exercise care while performing a
visual examination of contents and not touch the bag or its contents.” (D.E. 37-13, p. 4).
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Eason testified that if an offender is allowed to move about the prison with his medicine
pouch at all times, he would be at a greater risk of harm from other offenders, and would
also present additional work for security officials:
… The ability to quickly and effectively search medicine bags is a basic
correctional security need. A bag or pouch which is not transparent and
cannot be touched by a correctional officer becomes an ideal place to store
contraband, particularly drugs or weapons. A cell phone, or at the very
least a SIM card could easily be stored within a medicine bag. Accordingly,
TDCJ correctional officers regularly request offenders open and display the
contents of the medicine bag during cell searches or when offenders are on
their way to religious services. These searches occur most commonly while
offenders are en route to and from the weekly religious service. The
offender must place the bag in the view of the officer and remove the
contents for examination. The time an offender takes to perform this
activity is generally longer than it would take an officer to perform the
same process. The offender must then replace the contents of the bag.
(D.E. 40-18, p.11). Eason stated that the search of medicine bags is problematic because
offenders are very sensitive about the items in the bags being touched or mishandled, and
such searches can often lead to correctional officers being sued. (D.E. 40-18, p.12).
Gonzales calculated the costs to search the medicine bags of fifty (50) offenders to attend
Native American services. The cost is approximately $18.49 per service or $6,748.85
annually. (D.E. 40-16, p. 2.)
Allowing offenders to wear their medicine bags at all times necessarily increases
costs and time. Defendants have established that TDCJ’s policy which limits the wearing
of medicine bags to cell areas and to and from services is the least restrictive means in
relation to security and cost concerns.
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(c)
Smoking and/or possessing a pipe.
After Yellowquill, Native American practitioners were permitted to personally smoke the
communal pipe or a personal pipe if available.
However, several offenders filed
grievances complaining about the risk of communicable disease transmission from a
communal pipe. TDCJ officials sought a medical opinion from Dr. Robert Williams,
Deputy Director of TDCJ’s Health Service Division. See Chance, 730 F.3d at 413. He
opined:
There is no way to share an object designed to be placed in one’s mouth outside
of a clinical setting with enough certainty that diseases cannot be transmitted
for Health Services to advocate instituting this practice. If it is determined that
[TDCJ’s] obligation to allow observance of this practice outweighs [TDCJ’s]
obligation to prevent spread of infection in our institutionalized setting, [TDCJ]
will have to take as effective measures as are feasible, but it should be
understood that the repercussions of this practice may extend beyond the
participants since they would subsequently expose others with whom they have
close contact to any disease they contracted from participating in the practice.
(D.E. 38-11, p. 3). Based on Dr. Williams’ recommendation, the TDCJ determined that it
would no longer permit a communal pipe ceremony.
Rather, only the chaplain
conducting the service would be allowed to smoke the pipe and pray on behalf of those
present.
(D.E. 38-14, p. 2) (October 12, 2012 Inter-Office Memorandum).
The
uncontested evidence establishes that the change in the communal pipe policy was based
on the TDCJ’s compelling interest in preventing the spread of diseases.
Plaintiff argues that the TDCJ’s new pipe ceremony is an insufficient accommodation of
his religious exercise under RLUIPA because personal participation in the pipe ceremony
is essential. (D.E. 47, p. 26 through D.E. 47-1, p. 9). Conceding the medical concerns,
Plaintiff argues that, with respect to the least restrictive means, Native American
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adherents should be allowed to possess their own personal pipe, and the pipes could be
stored by the prison chaplain in his or her office.
The TDCJ previously considered allowing the use of personal pipes, but concluded that
the security risks and associated costs were too great, and that a pipe smoked only by the
ceremony leader is the least restrictive means. As discussed above, on September 8,
2011, Defendant Morris, Director Pierce, and numerous TDCJ officials met to discuss
various issues concerning Native American ceremonies, including medical, sanitation,
and security issues, and liability releases. (D.E. 38-9, pp. 2-5). At that time, pipe
ceremonies were conducted at the Daniel Unit with a shared pipe, and the tobacco
distributed for the pipe ceremony “kept disappearing.” (D.E. 38-9, pp. 2-3). The group
discussed personal pipes for Native American offenders, but concluded that personal
pipes would create a security concern and burden, and the cost was too great. (D.E. 38-9,
pp. 4-5). It was noted that the Cherokee Nation of Texas, the Lakota Nation, and the
Apache Nation were not interested in assisting with the cost or donating personal pipes as
they believed the offenders had “lost the right to take of the pipe.” (D.E. 38-9, p. 5). The
group reached a consensus that there be: (1) no communal offender pipes; (2) no
offender-owned or possessed pipes; (3) no storage of offender-possessed pipes or pipe
herbs by the TDCJ; and (4) one pipe ceremony per month, with smoking to be done only
by the volunteer/chaplain. (D.E. 38-9, p. 5).
Regarding individual pipes, Eason testified: “Pipe ceremonies in which offenders are
allowed to smoke and handle contraband, such as pipes, tobacco and fire starting
materials present serious challenges to the safety, security, and operation of a unit.”
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(D.E. 40-18, p. 5). The use of personal or disposable pipes would require spending
considerable time to distribute, inventory, and track every pipe for every ceremony.
(D.E. 40-18, pp. 5-7).
The pipes would have to be cataloged and stored, creating
additional logistical problems.
Eason further stated that disposable pipes are not a
feasible alternative because tobacco is banned in Texas prisons and is considered
valuable contraband. The TDCJ would have to devote extensive manpower to ensure that
none of the pipe ceremony participants stole or hid a pipe. (D.E. 40-18, pp. 5-7). As to
the McConnell Unit in particular, there are severe staff shortages due to the boom in the
hydraulic fracturing industry in the Eagle Ford Shale. TDCJ is not able to compete with
the salaries associated with that work. (D.E. 40-18, p. 14).
In Chance, the Fifth Circuit considered essentially the same evidence as is now before
this Court regarding pipe ceremonies, including Dr. Williams’ medical opinion and
Eason’s costs and security analysis. 730 F.3d at 412-414. The Fifth Circuit concluded
that the TDCJ had met its burden of establishing that the ban on communal and
individual pipes and allowing only the ceremony leader to smoke the pipe at ceremonies
was the least restrictive means to conduct pipe ceremonies, and accordingly, not in
violation of RLUIPA. Id.
In this case, the TDCJ has presented additional and more compelling evidence to support
this same conclusion given the documented staff shortages at the McConnell Unit. In
addition, Defendants have offered evidence suggesting that, under the Native American
faith system, a Native American may be prohibited from partaking in the sacred pipe
while in prison. (D.E. 38-12, pp. 3-10). Chief Chari Bouse, a contract Native American
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chaplain for TDCJ, reports that, after researching the issue, he found no tribes that would
allow an offender inside the “Iron House” to smoke the sacred ceremonial pipe due to the
negative or “dark winds” that preside there. (D.E. 38-12, p. 6). In addition, Chief Bouse
attended a ceremony where the elders of the tribe smoked the pipe on behalf of the 3,000
attendees, refuting Plaintiff’s allegation that he must personally partake in the pipe. (D.E.
38-12, p. 6). Further, Edward Hernandez, the chaplain for the Marlin Unit in Falls
County, Texas, testified that he did not know of any tribe “…that believes that prayers to
the Creator can only be conducted by personally smoking the Pipe.” (D.E. 40-10, p. 3).
Defendants Stephens and Morris have offered unrefuted summary judgment evidence that
the TDCJ’s policy banning personal and communal pipes while allowing a contract
chaplain to smoke the ceremonial pipe and to offer the prayers on behalf of the Native
American offenders in attendance is the least restrictive means of conducting the sacred
pipe ceremonies and does not violate RLUIPA.
D.
First Amendment.
Plaintiff’s allegations do not establish constitutional violations under the Free Exercise
Clause.
The Supreme Court has made it clear that prisoners must be provided
“reasonable opportunities” to exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319,
322 (1972) (per curiam). The Court has recognized, however, that limits may be placed
on the religious rights that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78
(1987), the Supreme Court held “[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights,” and “[w]hen a prison regulation
impinges upon the inmates’ constitutional rights, the regulation is valid if it is reasonably
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related to legitimate penological interests.” Id. at 89. In determining the reasonableness
of a regulation, the trial court should consider the following four factors: (1) whether
there is a valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it; (2) the alternative means of exercising the
right that remain open to prison inmates; (3) the impact that an accommodation will have
on guards and other inmates and on the allocation of prison resources generally; and (4)
the absence of alternatives. Id. 89-91. Shortly after the Turner decision, the Supreme
Court applied the test to uphold a prison policy that prevented inmates from attending
Islamic prayer services in O’Lone v. Estate of Shabazz, 482 U.S. 382 (1987). The Fifth
Circuit subsequently added that the Supreme Court neither held any single factor to be
dispositive, nor did it require all four factors to be met. Scott v. Miss. Dep’t of Corr., 961
F.2d 77, 80 (5th Cir. 1992). The first factor has been held to be controlling in these
cases, and the other factors merely provide help in determining whether the connection is
logical.
Id. at 81.
More recently, the Fifth Circuit reaffirmed the basic idea that
rationality is the controlling factor. Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d
599, 607 (5th Cir. 2008).
RLUIPA imposes a more stringent standard than that of the First Amendment. Patel v.
U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). Because Plaintiff has not
shown a violation under RLUIPA, he has not shown a violation of the Free Exercise
Clause. The Fifth Circuit has considered free exercise claims similar to Plaintiff’s claims
and has rejected them. See Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 860,
862-63 (5th Cir. 2004) (rejecting challenge to policy regarding volunteers); Baranowski,
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486 F.3d at 121-22 (rejecting challenge to volunteer policy); Thunderhorse, 364 F. Appx.
at 141 (rejecting requests for items to practice Native American faith, observance of holy
days, and pipe ceremony). As shown under the discussion of RLUIPA, there are valid
rational connections between the challenged policies and practices and compelling
governmental interests. The first factor in the Turner analysis is satisfied with respect to
all of Plaintiff’s claims. Thus, Plaintiff’s First Amendment claims against Defendants are
DISMISSED with prejudice.
E.
First Amendment claims against Defendant Morris in his individual capacity.
Plaintiff is suing Defendant Morris in his individual capacity for monetary damages for
alleged violations of his First Amendment rights. Plaintiff alleges that Morris arrived at
the McConnell Unit in May 2009, and at that time, pipe ceremonies were authorized by
TDCJ policy, but Morris failed to conduct a single pipe ceremony, in violation of
Plaintiff’s right to practice his Native American faith. Plaintiff contends that Morris
failed to perform the job for which he was hired, effectively denying Plaintiff the right to
exercise his religious beliefs. (D.E. 47-2, pp. 2-3). Morris seeks to dismiss Plaintiff’s
claims on the grounds that Plaintiff has failed to raise a constitutional violation and that
Morris’s actions were objectively reasonable, such that he is entitled to qualified
immunity. (D.E. 37, pp. 62-77).
The defense of qualified immunity protects government officials performing
discretionary functions from “liability for civil damages insofar as their conduct does not
violate clearly established rights which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982); Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 409
27 / 31
(5th Cir. 2009). Government employees are presumptively entitled to the defense of
qualified immunity. Once asserted, the burden shifts to a plaintiff to demonstrate that
qualified immunity does not bar recovery. Salas v. Carpenter, 980 F.2d 299, 305 (5th
Cir. 1992). A two-step process has traditionally been employed in evaluating the defense
of qualified immunity. Saucier v. Katz, 533 U.S. 194 (2001). Under the traditional
approach, a court must first consider whether “the facts alleged show the officer’s
conduct violated a constitutional right.” Id. at 201. Second, courts are required to decide
whether the right at issue was “clearly established” at the time of the defendant’s alleged
misconduct. Id.; see also Brown v. Strain, 663 F.3d 245, 249 (5th Cir. 2011). “To be
clearly established for purposes of qualified immunity, the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citations
omitted). The Fifth Circuit has specified that the issue for a court’s consideration with
respect to the second step is whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in question.
Short v. West, 662 F.3d 320, 325 (5th Cir. 2011) (citations omitted).
Conclusory
allegations of wrong-doing fail to satisfy both the first and second requirement. Geter v.
Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). More recently, the Supreme Court
held that a case may be dismissed based on either step in the qualified immunity analysis:
“The judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in the light of the circumstances in the
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particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); Short, 662 F.3d
at 325.
The summary judgment evidence establishes that Defendant Morris did not violate
Plaintiff’s First Amendment rights by failing to conduct pipe ceremonies at the
McConnell Unit when such ceremonies were authorized by TDCJ policy.5 Following the
Yellowquill litigation, sometime in 2009, the TDCJ made an exception to its tobacco ban
to allow Native American adherents to partake in pipe ceremonies. However, the fact
that inmates were permitted to participate in smoking the pipe did not address or remedy
the issues that have routinely plagued the TDCJ Native American chaplaincy: the ability
to secure qualified chaplains and/or volunteers to conduct the ceremonies at the various
units.
Morris is a Program Supervisor III – Rehabilitation Programs Division of the TDCJ.
(D.E. 40-12, p.2). Morris is not qualified to conduct the pipe ceremonies. (D.E. 40-12,
pp. 2-7). According to his affidavit, Morris has worked diligently at attempting to find
and secure Native American teachers who can perform ceremonies and minister to the
McConnell Unit Native American faith community, and Plaintiff has no evidence to
refute this testimony.
As noted above, the First Amendment requires only that prisoners be provided
“reasonable opportunities” to exercise their religious beliefs. Cruz, 405 U.S. at 322.
Plaintiff testified that he was able to study and learn about his faith from another prisoner,
5
In July 2012, the TDCJ banned inmate smoking of the sacred pipe during ceremonies. (D.E. 37-4, p. 3). Plaintiff
filed his lawsuit on May 28, 2013, almost one-year after the ban had been in effect. Applying the two-year
limitations period, Plaintiff’s claims for damages could arise only between May 28, 2011 through July 2012.
29 / 31
attend circle meetings, possess a medicine bag, and celebrate holy days. In March 2010,
Morris hired Dr. Robert Pierce as the contract chaplain. (D.E. 40-12, p. 4). Dr. Pierce
(now deceased) testified that he never conducted a pipe ceremony while at the
McConnell Unit because he did not personally meet the qualifications of a “Pipe Holder.”
(D.E. 40-9, p. 3). According to Dr. Pierce, “The [pipe] ceremony should be conducted by
a Pipe Holder who has studied for many years with a tribal elder who is also a Pipe
Holder.” (D.E. 40-9, p. 3).
In addition, Dr. Pierce found that the offenders did not have
sufficient knowledge of Native American history, culture, spirituality, and customs, and
that more education would be beneficial before partaking in a pipe ceremony. (D.E. 409, p. 3).
The uncontested evidence establishes that Morris worked diligently to meet the religious
needs of the TDCJ Native American community. Plaintiff has not offered any evidence
to suggest that Morris engaged in any actions that were objectively unreasonable in light
of clearly established law. Morris is entitled to summary judgment based on qualified
immunity to the extent Plaintiff has sued him in his individual capacity for monetary
damages.
VI.
CONCLUSION.
The summary judgment evidence establishes that the TDCJ policies challenged by
Plaintiff -- the grooming policy, the medicine bag policy, and the Native American pipe
policy -- all impose substantial burdens on Plaintiff’s religious exercise. However, the
TDCJ has established with an abundance of uncontested and unchallenged evidence that
the policies are the least restrictive means of furthering the TDCJ’s compelling interests
30 / 31
in maintaining security and monitoring costs. Thus, Plaintiff’s claims under RLUIPA
fail. Moreover, because the protections offered by the First Amendment are more limited
than those extended under RLUIPA, Plaintiff’s First Amendment claims also fail.
Accordingly, Defendants’ motion for summary judgment (D.E. 37) is GRANTED, and
Plaintiff’s claims against Defendants in their official capacities, and against Morris in his
individual capacity, are DISMISSED with prejudice.
ORDERED this 27th day of March, 2015.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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