Hickman-Bey v. Livingston et al

Filing 49

ORDER GRANTING 22 PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
KENNETH HICKMAN-BEY, et al,
Plaintiffs,
VS.
BRAD LIVINGSTON, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-266
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ORDER GRANTING PLAINTIFF’S
MOTION FOR A PRELIMINARY INJUNCTION
In this civil rights action, Plaintiff Kenneth Hickman-Bey, a prisoner in the Texas
Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID), challenges
as unconstitutional the TDCJ’s grooming policy that requires all inmates to be cleanshaven. (D.E.1-3). Plaintiff, a practicing Muslim, states that he is required to wear a
beard under the tenets of his faith, Sunna of the Prophets, and prescriptions of the Holy
Qur’an, and he seeks a preliminary injunction to allow him to wear a quarter-inch beard
as this case is litigated and until the constitutional and statutory issues are resolved.1
(D.E. 22). Defendants oppose Plaintiff’s request for a preliminary injunction. (D.E. 25).
For the reasons stated herein, the Court grants Plaintiff’s motion for preliminary
injunctive relief as to his request to grow and maintain a quarter-inch beard during the
pendency of this action, as well as to enjoin defendants and their assigns from harassing
or retaliating against Plaintiff in regards to his beard and pursuing this litigation.
1

Plaintiff seeks additional preliminary injunctive relief including “legal visits” with other inmates, indigent supplies,
and to be free from retaliation and/or harassment by prison officials. (D.E. 22, pp. 2-3).

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I.

Jurisdiction.
The court has federal question jurisdiction over this action. 28 U.S.C. § 1331.

II.

Procedural background.
On January 20, 2012, Plaintiff filed his original complaint for declaratory and

injunctive relief in the 201st Judicial District Court of Travis County, Texas, alleging that
the TDCJ’s no-beard policy violates his First Amendment right to the free exercise of his
religion, his Fourteenth Amendment right to equal protection, and his statutory rights
under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc-2(a).2

(D.E.1-3, ¶ 1).

He named as defendants: (1) the Texas Board of

Criminal Justice (TBCJ); (2) Oliver Bell, TBCJ Chairman; (3) Brad Livingston, TDCJ
Executive Director; (4) Eileen Kennedy, Region IV Director; and (5) Lorie Davis,
(former) McConnell Unit warden. Id., p. 2.
On February 17, 2012, Defendants removed the action to the United States District
Court for the Western District of Texas, Austin Division, and filed their Answer. (See
D.E. 1-1, 2). On March 7, 2012, Plaintiff filed a motion to stay the action pending the
TDCJ’s appeal of Garner v. Morales, Case No. 2:06-cv-218, a case in which another
Muslim and McConnell Unit inmate challenged the TDCJ’s no-beard policy under
RLUIPA. (D.E. 8). In the Garner case, following a bench trial, on May 19, 2011, Judge
Hudspeth granted Garner a declaratory judgment that the TDCJ grooming policy could
not be enforced against him and enjoined the McConnell Unit from doing so. (See Case

2

The Court evaluates Plaintiff’s request for preliminary relief on the basis of his RLUIPA claim only.

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No. 2:06-cv-218, D.E. 153). The TDCJ appealed the Garner decision, and consequently
in this case, on March 20, 2012, the Austin district court stayed this action while the Fifth
Circuit considered Garner on appeal. (D.E. 14).
On July 10, 2013, Plaintiff moved to lift the stay because, on April 2, 2013, the
Fifth Circuit affirmed Garner and specifically found that the TDCJ had failed to carry its
RLUIPA burden that the no-beard policy is the least restrictive means of furthering the
compelling governmental interest in security. See Garner v. Gutierrez, 713 F.3d 237,
247 (5th Cir. 2013).
On July 12, 2013, Plaintiff filed the instant motion for a preliminary injunction.
(D.E. 22).
On July 16, 2013, the Austin district court lifted the stay.
On July 31, 2013, Defendants filed a response in opposition to Plaintiff’s motion
for a preliminary injunction. (D.E. 25). On August 15, 2013, Plaintiff filed a reply to
Defendants’ response. (D.E. 31).
On August 23, 2013, the case was transferred on venue grounds from the Western
District, Austin Division, to this Court. (D.E. 32).
On September 30, 2013, Plaintiff was granted a continuance and stay of
proceedings. (D.E. 38).
On October 18, 2013, the stay was lifted and pending motions were reactivated,
including Plaintiff’s motion for a preliminary injunction. (D.E. 44).
On November 29, 2013, Plaintiff filed a motion to expedite consideration of his
motion for a preliminary injunction. (D.E. 48).
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III.

Plaintiff’s requested relief.
In his motion for preliminary injunction (D.E. 22), Plaintiff seeks specifically:
(1)

A preliminary injunction prohibiting Defendants from enforcing TDCJ’s
clean-shaven policy;

(2)

A preliminary injunction prohibiting Defendants from denying Plaintiff
legal visits with other Muslim prisoners who wish to assist Plaintiff with
this lawsuit;

(3)

A preliminary injunction ordering Defendants to allow Plaintiff to use his
own funds to buy pen, paper, envelopes, etc., or to provide him with
indigent supplies; and

(4)

A preliminary injunction to protect Plaintiff throughout the TDCJ from
harassment, retaliation, or demands to be clean-shaven.

In his original complaint, Plaintiff did not claim that he has been denied access to
the courts or indigent supplies, let alone that he has been prejudiced in any pending nonfrivolous litigation. See Lewis v. Casey, 518 U.S. 343, 356 (1996) (to state a cognizable
First Amendment claim for denial of access to the courts, a prisoner must demonstrate
that his position as a litigant was actually prejudiced).

Moreover, Plaintiff has no

constitutional right to legal visits with other prisoners. See Shaw v. Murphy, 532 U.S.
223, 230 (2001) (inmates do not possess a First Amendment right to discuss legal matters
with other inmates). Because these allegations do not state cognizable First Amendment
violations, Plaintiff is not entitled to preliminary or other relief based on these claims. As
to Plaintiff’s allegations that McConnell Unit employees harass him regarding his desire
to wear a beard, the Court notes that mere harassment or verbal abuse alone does not state
a constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993).
However, prison officials may not harass an inmate in retaliation for the inmate
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exercising his First Amendment rights. Morris v. Powell, 449 F.3d 682, 684 (5th Cir.
2006). Thus, in fashioning preliminary relief on Plaintiff’s RLUIPA claim, the Court will
address Plaintiff’s concerns of harassment and retaliation.
IV.

Preliminary injunction prerequisites.
To obtain a preliminary injunction pursuant to Rule 65 of the Federal Rules of

Civil Procedure, the movant must show: (1) a substantial likelihood of success on the
merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that
the threatened injury outweighs any harm that the injunction might cause to the
defendant; and (4) that the injunction will not disserve the public interest. Opulent Life
Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir. 2012) (citation omitted).
Injunctive relief is an extraordinary remedy that requires the applicant to unequivocally
show the need for its issuance. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050
(5th Cir. 1997) (citation omitted). Failure to establish any of the four elements will result
in the motion for injunctive relief being denied.

Guy Carpenter & Co. v. Provenzale,

334 F.3d 459, 464 (5th Cir. 2003) (citation omitted).
V.

Analysis.
A.

Plaintiff establishes a substantial likelihood of success on the merits
on his claim challenging the grooming policy.

Plaintiff argues that enforcement of the TDCJ’s grooming policy requiring him to
be clean-shaven violates RLUIPA.
The RLUIPA mandates that “[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution … even if
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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). The RLUIPA defines
“religious exercise” to include “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).

A government

regulation substantially burdens a “religious exercise” for purposes of RLUIPA if it
“truly pressures the adherent to significantly violate his beliefs.” Adkins v. Kaspar, 393
F.3d 559, 570 (5th Cir. 2004).
RLUIPA imposes the strict scrutiny test on prison regulations; however, the courts
are to apply that 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.” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (citation omitted). Prison
security, in and of itself, is a compelling state interest, and deference is due to
institutional officials’ expertise in this area. Id. at 724 n. 13. RLUIPA does not elevate
accommodation of religious observances over a prison’s need to maintain order and
safety, and any accommodation must be measured so that it does not override other
significant interests.

Id. at 722.

A prison is free to resist requests for religious

accommodations that either impose unjustified burdens on other prisoners, or jeopardize
the effective functioning of a prison. Id. at 726.

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In defining “substantial burden” under RLUIPA, the Fifth Circuit has explained
that “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 violate his religious beliefs.” Adkins, 393 F.3d at 570. Further: “the
effect of a government action or regulation is significant when it either (1) influences the
adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to
choose between, on the one hand, enjoying some generally available, non-trivial benefit,
and, on the other hand, following his religious beliefs.” Id.
Plaintiff has met his prima facie burden with respect to his RLUIPA claim that the
TDCJ’s grooming policy substantially burdens his ability to exercise his religious beliefs.
In his original complaint made under penalty of perjury, Plaintiff states that he is a
Muslim and that he practices and follows the Islamic faith, the basis of which is set forth
in the Qur’an. (D.E. 1-3, at p. 3, 6). In addition, Plaintiff seeks to model his behavior
after Muhammad’s “customary practices,” or “sunnah.” Id. Because Muhammad is a role
model, Muslim men are encouraged to wear beards to emulate Muhammad and to please
Allah; not wearing a beard can be viewed as a rejection of both.3 Defendants do not
dispute, question, or address the sincerity of Plaintiff’s Islamic faith and beliefs. (See
D.E. 25).
Plaintiff states that, if he grows a beard and then refuses to shave, he is charged
with a disciplinary case. (D.E. 1-3, p. 3). If he is found guilty of the disciplinary offense,

3

See e.g. http://www.alahazrat.net/islam/follow-the-sunnah-and-increase-your-beauty.php.

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he faces an array of punishments, ranging from loss of commissary, recreation, and/or
visitation privileges, to more serious consequences such as solitary confinement and/or
reduction in time-earning classification. Id. He claims that he is routinely harassed by
prison personnel for attempting to wear a beard. Id. In his preliminary injunction motion,
Plaintiff reports that, unless he is clean-shaven, he is not allowed in the dining hall and is
denied his meals until he shaves. (D.E. 22, p. 2). Although Plaintiff has repeatedly
invoked the Garner decision as grounds that he be permitted to maintain a quarter-inch
beard, prison officials refuse to extend the Garner ruling to the other Muslim inmates at
the McConnell Unit.
For purposes of a preliminary injunction, Plaintiff has established that his sincere
religious beliefs require him to maintain at least a quarter-inch beard, while the TDCJ’s
grooming policy requires him to be clean-shaven. He has also shown that, if he violates
the grooming policy, he is subjected to disciplinary measures ranging from missed meals,
to loss of privileges, to more severe punishments and penalties that could possibly
adversely affect the duration of his sentence. This is precisely the choice RLUIPA
prohibits.
To defeat Plaintiff’s success on the merits of his RLUIPA claim, Defendants must
demonstrate that the clean-shaven policy is the least restrictive means to achieve the
compelling governmental interest of prison security and cost effectiveness. 42 U.S.C. §
2000cc. See also Cutter, 544 U.S. at 723 (recognizing institutional security in the context
of costs and limited resources as a valid governmental interest). However, the Garner
decision effectively forecloses this point.
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In the Garner trial, TDCJ officials testified that the TDCJ’s clean-shaven policy is
essential to the compelling governmental interest of safety in that (1) the identification of
prisoners would be hindered by allowing beards to be worn, (2) a beard could be a hiding
place for weapons or contraband, and (3) a prison escapee could change his appearance
by shaving his beard, rendering recapture more difficult. (See Case No. 2:06-cv-218,
D.E. 153, Memorandum Opinion and Order, p. 4).

The defendants also expressed

economic concerns, contending that additional expense would be involved in (1)
changing the photographs on prison identification cards, and (2) making barbers and/or
clippers available to trim the beards of Muslim prisoners to the length of one-quarter
inch.

Id. The trial court found unpersuasive both the TDCJ’s security and costs

arguments, and granted declaratory and injunctive relief to Garner.
On appeal, the Fifth Circuit overruled the TDCJ’s objections that allowing an
exception to the no-beard rule would have an adverse economic impact on the TDCJ,
noting that the trial court had specifically addressed this issue and found that the barber
services were already in place and available, and that the TDCJ’s evidence of increased
costs “was vague and consisted primarily of speculation and conjecture.” Garner, 713
F.3d at 243. The Fifth Circuit found further that, on the record presented, the TDCJ had
failed to carry its burden to show that the no-beard policy is the least restrictive means of
furthering the compelling governmental interest in security. Id. at 247.
In their response to Plaintiff’s motion for a preliminary injunction, Defendants
state that Plaintiff cannot demonstrate a likelihood of success on the merits “…because
the ruling in Garner only applied to Garner.” (D.E. 25, p. 5). This argument ignores the
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specific findings made in Garner regarding facial hair and security, and the costs of
allowing Muslim prisoners to maintain a quarter-inch beard. Indeed, the trial court
specifically acknowledged that allowing Garner to wear a beard might likely cause other
Muslim inmates at the McConnell Unit to “desire the same benefit,” but he found that
barber services are already available and accommodating Muslim prisoners would not
present a significant expense.

(See Case No. 2:06-cv-218, D.E. 153, pp. 6-7).

Defendants have failed to offer any evidence to suggest that the no-beard policy is the
least restrictive means to achieve a compelling government interest, and the Garner
decision is direct authority to the contrary. Accordingly, Plaintiff prevails on the first
prong for issuance of a preliminary injunction on his RLUIPA claim.
B.

Plaintiff has established a substantial threat that he will suffer
irreparable injury if the injunction is denied.

For an injunction to issue, “[s]peculative injury is not sufficient; there must be
more than an unfounded fear on the part of the applicant.”

Holland Am. Ins. v.

Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985) (citation omitted). An “actual
injury” must be certain to occur. Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999)
(per curiam).
As a matter of law, the violation of a constitutional right in and of itself constitutes
irreparable injury. Elrod v. Burns, 427 U.S. 347, 373-74 (1976). And more specifically
for purposes of this case, “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Opulent Life Church, 697
U.S. at 295 (quoting Elrod, 427 U.S. at 373). Indeed, in Opulent Life Church, the
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Supreme Court extended to RLUIPA claims its holding that violations of the First
Amendment are per se irreparable injury for purposes of preliminary injunction analysis:
… This principle applies with equal force to the
violation of RLUIPA rights because RLUIPA enforces
First Amendment freedoms, and the statute requires
courts to construe it broadly to protect religious
exercise. See 42 U.S.C. § 2000cc-3(g) (“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.”) …
Opulent Life Church, 697 U.S. at 295.
Plaintiff has established that, unless a preliminary injunction is issued, he is forced
to choose between violating his sincerely held religious beliefs or facing disciplinary
penalties. Thus, Plaintiff has satisfied the second prong of the preliminary injunction
inquiry on his RLUIPA claim.
C.

The threatened injury to Plaintiff outweighs the harm to Defendants.

Plaintiff has established that an irreparable injury, the violation of his rights under
RLUIPA, is substantially likely to occur in the absence of a preliminary injunction. In
response, Defendants argue that the Garner decision does not hold that the TDCJ’s
grooming policy is unconstitutional, but instead, only establishes that the TDCJ failed to
prove at trial that the policy “was the least restrictive means to accomplish its interest.”
(D.E. 25, p. 3).
Defendants’ argument is merely a distinction without a difference. Although
neither the trial court nor the Fifth Circuit made a determination that the clean-shaven
requirement of the TDCJ grooming policy is facially unconstitutional, both courts
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specifically held: (1) the no-beard policy imposes a substantial burden on the religious
exercise of Muslim inmates; (2) the no-beard policy does not aid in the identification of
prisoners nor in the secreting of contraband; and (3) allowing Muslim inmates to grow
and maintain quarter-inch beards might result in some additional expense, but such cost
would not be “significant.” Garner, Case No. 2:06-cv-218, D.E. 153, pp. 6-7; Garner,
713 F.3d at 243. Thus, both Garner decisions indicate that the TDCJ would suffer no
harm if it is enjoined from enforcing the no-beard policy as to Muslim inmates seeking to
wear a quarter-inch beard. To the contrary, were the TDCJ to stop such enforcement, it
would free itself of present and future lawsuits on this issue.

Indeed, Defendants

responded initially to that decision by voluntarily allowing Plaintiff to wear a quarterinch beard, thus further demonstrating that Plaintiff’s substantial injury outweighs the
threatened harm to Defendants.
D.

No harm to the public interest.

It is well established that federal courts “do not sit to supervise state prisons, the
administration of which is of acute interest to the States.” Meachum v. Fano, 427 U.S.
215, 228 (1976). Indeed, the Supreme Court has instructed all courts to afford prison
administrators “wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). See also Gates v.
Cook, 376 F.3d 323, 338 (5th Cir. 2004) (noting that federal courts “are not to
micromanage state prisons”).

Even within the strict scrutiny standard of RLUIPA,

courts must defer to the judgment of prison administrators on matters of prison safety,
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order, discipline, security, and efficiency. Cutter, 544 U.S. at 723. Because prison
security itself is a compelling state interest, prison officials need not accommodate
requests for religious exemptions that jeopardize these interests. Id.
Defendants argue that the no-beard policy “is founded on reasons of prison
security and cost concerns.” (D.E. 25, p. 8).

However, both of those concerns were

raised in Garner and rejected at trial and on appeal.

There is simply no evidence that

allowing an inmate to wear a quarter-inch beard presents an impediment to prompt and
accurate identification or contributes to the trafficking of contraband. Similarly, there is
no evidence that permitting Plaintiff or other Muslim inmates at the McConnell Unit to
grow and maintain a quarter-inch beard would cause any significant cost or expense; the
prison has several barbershops and inmates are already required to make frequent visits to
the barber to maintain their required haircuts.
Defendants maintain that the Garner holdings do not apply to other Muslim
inmates and contend that each case presents a different “context” and will generate a
“substantially different record.”

(D.E. 25, p. 5).

However, this position appears

inapposite to Defendants’ costs concerns. Indeed, to require each Muslim inmate to file
and pursue separate litigation to stop the TDCJ from continuing to enforce a policy that
violates federal law would place an unnecessary burden on judicial resources and time.
In addition, the State of Texas would incur additional cost and expense in litigating the

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issue, and, as in Garner, be responsible for attorney fees and costs of Plaintiff’s
appointed counsel. 4
Finally, 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 First Amendment rights, a preliminary injunction would not
disserve the public interest.
VI.

Injunctive relief granted.
Plaintiff has met his preliminary injunction burden on his RLUIPA claim.

Accordingly, it is ORDERED that Defendants, their successors and assigns, and all
persons acting in concert with them, including the McConnell Unit officials and staff, be
and are hereby, RESTRAINED and ENJOINED pursuant to Rule 65 of the Federal Rules
of Civil Procedure from enforcing the TDCJ no-beard policy against Plaintiff Kenneth
Hickman-Bey, TDCJ-CID #665874.
It is further ORDERED that Plaintiff be permitted to grow, wear, and maintain a
quarter-inch beard as a religious exercise.
4

In the Garner case, plaintiff’s counsel was awarded his attorney fees and costs totaling over $87,000.00. See Case
No. 2:06-cv-218, D.E. 189, Satisfaction of Judgment.

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Finally, it is ORDERED that Defendants, their successors and assigns, and all
persons acting in concert with them, including the McConnell Unit officials and staff, be
and are hereby, RESTRAINED and ENJOINED pursuant to Rule 65 of the Federal Rules
of Civil Procedure, from harassing or retaliating against Plaintiff regarding his beard, to
include: no disciplinary cases for failure to groom;5 no denial of privileges, including
library visits, commissary, and recreation; and no abusive language, derogatory
comments, or gestures concerning Plaintiff’s beard, appearance, or religious beliefs.
ORDERED this 20th day of December, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

5

Plaintiff is reminded that this relief extends only to his beard and that all other provisions of the TDCJ grooming
policy remain applicable to him.

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