Hickman-Bey v. Livingston et al

Filing 59

OPINION AND ORDER denying 53 Motion to Stay.(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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OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO STAY
Before the Court is Defendants’ Motion to Stay Preliminary Injunction (D.E. 53).
For the following reasons, Defendants’ motion to stay is DENIED, and Defendants are
again ordered to refrain from enforcing the TDCJ’s no-beard policy as to Plaintiff
Kenneth Hickman-Bey, TDCJ No. 665874, and to permit him to wear at least a quarterinch beard.
I.

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

II.

Background facts and proceedings.
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal

Institutions Division (TDCJ-CID), and he is currently confined at the McConnell Unit in
Beeville, Texas. On January 20, 2012, Plaintiff filed this § 1983 civil rights complaint
alleging that Defendants were violating his right to exercise his Islamic faith by forcing

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him to shave his beard.1 (D.E.1-3). In particular, Plaintiff claims that the TDCJ’s
grooming policy requiring all inmates to be clean-shaven 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).
Beginning March 20, 2012, this case was stayed while the Fifth Circuit considered
a similar challenge to the TDCJ’s no-beard policy in Garner v. Gutierrez, 713 F.3d 237
(5th Cir. 2013).2 (See D.E. 14).
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 interests of security and
costs. Garner, 713 F.3d at 247.
On July 12, 2013, Plaintiff filed a motion for a preliminary injunction arguing that
the Garner decision effectively holds that the TDCJ’s no-beard policy violates RLUIPA
and therefore, Plaintiff should be permitted to grow and maintain a quarter-inch beard

1

A more detailed description of the procedural background of this case is set forth in the Court’s
Order Granting Plaintiff’s Motion for a Preliminary Injunction (D.E. 49), entered December 20,
2013, and need not be repeated herein.
2
In the Garner bench trial, Offender Garner successfully demonstrated to the trial court that the
no-beard policy imposed a substantial burden on his religious exercise in violation of RLUIPA,
and the TDCJ did not oppose this finding. The burden then shifted to the TDCJ to establish that
the no-beard policy “is in furtherance of a compelling governmental interest” and is the least
restrictive. See 42 U.S.C. § 2000cc-1(a). The TDCJ argued that the no-beard policy is essential
to the compelling government interest of prison security because it aids in prisoner identification,
eliminates a means to secret contraband, and makes alteration of appearance more difficult in the
event of an escape; the TDCJ also argued that the no-beard policy was more cost efficient. Judge
Hudspeth rejected these arguments and found plaintiff’s rebuttal evidence more compelling.
(See Case No. 2:06-cv-218, D.E. 153, Memorandum Opinion and Order).
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without fear of a disciplinary action or other punishment. (D.E. 22). Defendants opposed
the proposed injunctive relief arguing that the Garner decision was limited in scope and
applies only to Mr. Garner. (D.E. 25).
On December 20, 2013, the Court granted Plaintiff’s motion for a preliminary
injunction and enjoined Defendants from enforcing the no-beard policy as to Plaintiff.
(D.E. 49). In addition, the Court enjoined Defendants from retaliating against or
harassing Plaintiff as it concerns his wearing of a quarter-inch beard. Id. On that same
date, Defendants filed their Notice of Interlocutory Appeal of the Preliminary Injunction
Order. (D.E.52).
On December 23, 2013, Defendants filed the instant Motion to Stay Preliminary
Injunction. (D.E. 53). Defendants request that the December 20, 2013 Preliminary
Injunction Order allowing Plaintiff to wear a quarter-inch beard be stayed “in order to
maintain the status quo of the parties until such time the Fifth Circuit rules upon [sic]
Defendants’ interlocutory appeal.” Id., p. 2.
III.

Discretionary stay.
In determining whether a discretionary stay should be granted, a district court

employs a four-factor test that examines: (1) “whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure
other parties interested in the proceedings; and (4) [whether] public interest [favors a
stay].” See Weingarten Realty Investors v. Miller, 661 F.3d 904, 910 (5th Cir. 2011)
(quoting Hilton v. Braunskill, 481 U.S. 770 (1987)). The stay applicant has the burden of
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establishing that a stay is warranted. State of Tex. v. U.S. Forest Serv., 805 F.2d 524, 525
(5th Cir. 1986) (per curiam); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). To meet
this burden, the stay applicant must satisfy each of the four Hilton factors. See Arnold v.
Garlock, Inc., 278 F.3d 426, 438-39 (5th Cir. 2001).
Defendants fail to address the four Hilton factors to establish that the desired stay
is justified and necessary, instead arguing only that a stay would maintain the status quo.
However, as discussed in the December 20, 2013 Preliminary Injunction Order,
maintaining the purported status quo in this case amounts to a continuous violation of
Plaintiff’s free exercise rights under RLUIPA and amounts to irreparable harm. See
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir. 2012) (“[t]he
loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury”). Indeed, maintaining the status quo would force Plaintiff
to choose between violating his sincerely held religious beliefs or facing disciplinary
action or other punishments.
Moreover, in addition to irreparable harm, Plaintiff established a likelihood of
success on the merits on his RLUIPA claims based on the Garner decisions, and both the
trial court and the Fifth Circuit found no credible evidence that the TDCJ would suffer
harm if it is enjoined from enforcing the no-beard policy as to Muslim inmates seeking to
wear a quarter-inch beard. Finally, as discussed in the Preliminary Injunction Order, the
public interest is best served when prison policy is the least restrictive means of enforcing
a compelling governmental interest, and the Fifth Circuit has expressly held that the no-

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beard policy is not the least restrictive means of ensuring the TDCJ’s security and
economic concerns.
IV.

Conclusion.
Defendants have failed to establish the four factors necessary to justify a stay of

the Preliminary Injunction Order, and accordingly, Defendants’ Motion to Stay
Preliminary Injunction (D.E. 53) is DENIED.
ORDERED this 31st day of December, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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