Kearey v. Currie et al

Filing 68

ORDER ADOPTING, AS MODIFIED, MEMORANDUM AND RECOMMENDATIONS re: 54 MOTION for Summary Judgment, 61 Memorandum and Recommendations. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARK JAMAL KEARNEY,
Plaintiff,
VS.
GARY L CURRIE, et al,
Defendants.

November 30, 2015
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-39
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ORDER ADOPTING, AS MODIFIED,
MEMORANDUM AND RECOMMENDATIONS
Pending before the Court is Defendant Carol Monroe’s (Monroe’s) Motion for
Summary Judgment (D.E. 54). On August 13, 2015, Magistrate Judge Jason B. Libby
issued his Memorandum and Recommendation (M&R, D.E. 61), recommending that the
motion be granted with respect to the Eighth and Fourteenth Amendment complaints
regarding Plaintiff’s placement in a solitary cell for fourteen days. The M&R also
recommends that Plaintiff’s claim under the Religious Land Use and Institutionalized
Persons Act (RLUIPA) remain pending.
On August 24, 2015, Defendant William Stephens filed an advisory, providing
notice that the Texas Department of Criminal Justice (TDCJ) had issued a new policy
permitting Plaintiff to wear a half-inch beard in connection with his Muslim faith, thus
ostensibly eliminating Plaintiff’s RLUIPA claims. On September 10, 2015, Plaintiff filed
his objections to the M&R and to the advisory (D.E. 63). Plaintiff does not address any
objections to the M&R’s analysis of his Eighth and Fourteenth Amendment claims and
Monroe’s invocation of qualified immunity. When no timely objection is filed, the
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district court need only satisfy itself that there is no clear error on the face of the record
and accept the magistrate judge’s recommendation. Guillory v. PPG Industries, Inc., 434
F.3d 303, 308 (5th Cir. 2005) (citing Douglass v. United Services Auto Ass’n, 79 F.3d
1415, 1420 (5th Cir. 1996)). The Court, after due consideration of the M&R, ADOPTS
the M&R with respect to its analysis and recommendation to dismiss the Eighth and
Fourteenth Amendment claims.
With respect to the RLUIPA claims and Defendants’ advisory suggesting that the
new TDCJ policy has cured any deficiencies, Plaintiff has objected that the new TDCJ
policy is vague and contradictory in that one cannot have a beard that is both “neatly
trimmed” and not “sculpted.” Plaintiff alleges that the ambiguity permits retaliatory
enforcement actions in which the jailors may claim that the beard is not compliant with
whichever of the two mutually exclusive requirements it does not appear to meet. He
also complains that the requirement that he be clean-shaven once a year for purposes of
an identifying photo is unreasonable.
In this case, Plaintiff asked for injunctive relief that he be allowed to wear a onequarter to one-half inch beard. Plaintiff has received that relief. Accordingly, Plaintiff’s
claim that he be permitted to wear a one quarter-inch beard is dismissed as moot.
Plaintiff’s new claims have not yet proceeded through the administrative remedy phase.
The Court holds that Plaintiff may raise any claims challenging the new policy after
exhausting his administrative remedies at both levels and seeking leave to amend his
complaint or by filing a new lawsuit. Because the action of Plaintiff and other litigants

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led directly to the promulgation of a new policy, fairness counsels against requiring
Plaintiff to pay a second filing fee if he wishes to challenge the new policy.
Therefore, Plaintiff is granted sixty days from the date of this order to exhaust
administrative remedies and seek leave to amend his complaint to add the new claim.
Alternatively, Plaintiff may file a new lawsuit. If no motion for leave to amend is filed
on or before January 29, 2016, final judgment closing this case may be entered. Entry of
final judgment in this case will not bar a new lawsuit challenging the religious beard
policy.

ORDERED this 30th day of November, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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