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Hickman-Bey v. Livingston

United States District Court, Fifth Circuit

December 20, 2013

KENNETH HICKMAN-BEY, et al, Plaintiffs,
v.
BRAD LIVINGSTON, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

NELVA GONZALES RAMOS, District Judge.

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 clean-shaven. (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.

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 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 ...


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