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Davis v. Davis

United States District Court, S.D. Texas, Corpus Christi Division

March 7, 2017

TEDDY NORRIS DAVIS, et al, Plaintiffs,
LORIE DAVIS, Director, TDCJ-CID, Defendant.



         By judgment issued as mandate entered on July 6, 2016, the Fifth Circuit affirmed in part, and vacated and remanded in part, this Court's February 27, 2014 order granting Defendant's motion for summary judgment and denying Plaintiffs' cross-motion for summary judgment. (D.E. 191). The Fifth Circuit affirmed the dismissal of Plaintiffs' First Amendment claims as well as Plaintiffs' claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, regarding his medicine bag and pipe ceremonies, but retained and remanded Plaintiffs' RLUIPA claims challenging Defendant's grooming policy prohibiting long hair or alternatively, the growing of a kouplock. (D.E. 191 at p. 19). See also Davis v. Davis, 826 F.3d 258, 2016 WL 3269089 (5th Cir. 2016). The remand required examination of two issues: (1) whether Plaintiffs' summary judgment evidence setting forth the testimony of an expert, Mr. George Sullivan, exacted in an earlier trial before this Court on the identical issue of hair length, kouplocks and prison security, could properly be considered on summary judgment in this proceeding; and (2) whether an exception to the grooming policy posed any risk to the safety and security of the prison population and staff due to Plaintiffs' individual security status.[1] Id.


         The Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331. Upon consent of the parties (D.E. 87, 102), this case was referred to the undersigned United States magistrate judge to conduct all further proceedings, including entry of final judgment. (D.E. 107). See 28 U.S.C. § 636(c).


         The procedural history of this case has been fully and accurately detailed in previous pleadings, as well as by the Fifth Circuit in its July 2016 opinion. (See D.E. 191, pp. 2-4). Briefly, Plaintiff Teddy Norris Davis and Plaintiff Robbie Dow Goodman are prisoners incarcerated in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID), and both are currently confined to the McConnell Unit in Beeville, Texas.

         On May 21, 2012, Davis filed a pro se 42 U.S.C. § 1983 complaint alleging that certain TDCJ Defendants were burdening his right to practice his religious faith by implementing three TDCJ policies that prevented him from (1) smoking a prayer pipe during Native American pipe ceremonies, (2) wearing a religiously significant “medicine bag” other than within his cell and while walking to and from religious ceremonies, and (3) growing his hair long or alternatively, maintaining a kouplock, which is a continuously growing one inch square section of hair at the base of the skull. (See D.E. 1). Plaintiff Davis named as defendants the TDCJ-CID Director (then Rick Thaler, and now Lorie Davis) and Bill Pierce, the Director of the TDCJ Chaplaincy Department.

         On June 21, 2012, a Spears[2] hearing was held with Plaintiff Davis, and he orally moved to add as defendants (1) Clint Morris, the Program Analyst for Designated Units, (2) Madeline Ortiz, the Director of Rehabilitative Programs, and (3) Shawna Mitchell, the McConnell Unit Chaplain.

         On June 22, 2012, Robbie Goodman was granted leave to join as a plaintiff. (D.E. 16). Both Plaintiffs alleged that implementation of the challenged TDCJ policies caused them to suffer deprivations of their religious beliefs, and pointed out that if they disobeyed the TDCJ policies they were subject to disciplinary action, including loss of privileges and good time credits.

         On February 11, 2013, Plaintiffs filed an Amended Complaint. (D.E. 88). Thereafter, following Plaintiffs' consent to proceed before a magistrate judge, Plaintiffs voluntarily dismissed all of their claims except their three RLUIPA challenges which sought injunctive and declaratory relief against TDCJ-CID Director Rick Thaler in his official capacity, and their First Amendment claim against Clint Morris, a TDCJ Program Analyst. After Thaler retired, William Stephens was substituted as the TDCJ-CID Director Defendant, and on May 5, 2016, the new TDCJ-CID Director, Lorie Davis, was appointed and substituted as a defendant in this action.

         On February 27, 2014, this Court issued its Opinion and Order on Cross-Motions for Summary Judgment and Final Judgment. (D.E. 158, 159). The undersigned found that Plaintiffs are sincere practitioners of the Native American faith and that the policies complained of constituted a substantial burden on their religious exercise. The undersigned further found that Defendant had demonstrated that the challenged prison regulations were the least restrictive means of furthering compelling governmental interests, in particular, the prison's interest in security, such that Plaintiffs' request to modify those policies be denied.

         Plaintiffs appealed (D.E. 161), and by Order issued as mandate entered on July 6, 2016, the Fifth Circuit affirmed the dismissal of Plaintiffs' First Amendment claim and RLUIPA claims regarding the tobacco policy and medicine bag policy. (D.E. 191). The Fifth Circuit remanded for further briefing on Plaintiffs' challenge to the TDCJ-CID grooming policy and the issue of whether or not this Court should have considered the testimony of Mr. Sullivan and further to examine the individual security risk(s) posted by each Plaintiff.

         On July 12, 2016, this Court ordered the parties to submit additional briefing following the Fifth Circuit's remand. (D.E. 192).

         Defendants filed a motion for clarification of appeal (D.E. 161), and on August 8, 2016, the Fifth Circuit clarified that only additional briefing was necessary and that there was no need for a trial. (D.E. 198).

         On August 10, 2016, Defendant filed a motion to strike the testimony of Mr. George Sullivan, (D.E. 200), and on September 28, 2016, Plaintiffs filed a motion to strike some of the exhibits contained in Defendant's additional briefing. (D.E. 210). The parties filed numerous replies and responses to replies, and all have been considered in connection with the remand order. (D.E. 200-230).


         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). 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.

         IV. DISCUSSION.

         A. Issue One: Testimony of George Sullivan.

         In their cross-motion for summary judgment/summary judgment response (D.E. 129), Plaintiffs relied on the prior testimony and expert report of a retired prison official, George Sullivan, elicited during a trial of another case held before Magistrate Judge Brian Owsley, to support their argument that kouplocks do not pose risks to prison security sufficient to warrant their prohibition by TDCJ-CID's grooming policy. (D.E. 143). Without squarely addressing the admissibility of Plaintiffs' proposed expert testimony, this Court granted summary judgment in favor of Defendant, thus effectively ignoring Sullivan's proffered testimony. (D.E. 158). The Fifth Circuit vacated and remanded on Plaintiffs' claim that TDCJ's grooming policy violates their right under RLUIPA to wear a kouplock consistent with their Native American faith, but instructed this Court to make a specific finding as to the admissibility of Sullivan's testimony. (D.E. 191).

         Defendant Davis moves to strike Plaintiffs' proffered expert testimony arguing that the testimony cannot and could not have properly been considered because it was offered in an improper manner and form under Federal Rules of Civil Procedure 26(a)(2) and 56(c), and is unreliable under Federal Rule of Evidence (FRE) 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1987). (See D.E. 200, D.E. 205, pp. 18- 28). Sullivan's testimony is found at the following entries in this case: D.E. 143-1, pp. 14-17, 20-25, 27-28, 30; D.E. 143-2, pp. 1, 4, 12, 18; D.E. 143-3, p. 14, 17-18, and 24.

         (1) Standard of Review.

         Trial courts have wide latitude when ruling on the admissibility of expert testimony. Hammond v. Coleman Co., 209 F.3d 718 (5th Cir. 2000). Because trial courts serve as gatekeepers, their exclusion of expert testimony is reviewed only for an abuse of discretion. See, e.g. Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (“With respect to expert testimony … its ruling must be sustained unless manifestly erroneous.”). Here, no specific ruling was made on the admissibility of Sullivan's report and so the Court addresses the issue for the first time.

         (2) Defendant's Motion to Strike.

         Defendant argues that Plaintiffs' summary judgment evidence setting forth the prior testimony of George Sullivan could not properly be considered as expert testimony on summary judgment because Plaintiffs retyped or merely referenced portions of Mr. Sullivan's expert report, deposition, and prior trial testimony from a previous trial held in the Corpus Christi Division, Odneal v. Pierce, et al., Civil Action No. 2:04-cv-00454, thus failing to satisfy either the procedural requirements of Fed.R.Civ.P. Rules 26(a)(2) and 56(c)(1)(A) or the reliability requirements of Daubert and Fed.R.Evid. 702.

         (a)Fed. R. Civ. P. 26.

         As inmates proceeding pro se, Plaintiffs are excused from the duty to participate in initial disclosures. See Fed. R. Civ. P. 26(a)(1)(B)(iv), excusing from initial disclosures “an action brought without an attorney by a person in the custody of the United States, state, or a state sub-division.” Although excused from initial disclosures, pro se plaintiffs are not excused from complying with Fed.R.Civ.P. 26(a)(2)(D)(ii) in regards to disclosing expert witnesses. That rule provides:

(D) Time to Disclose Expert Testimony. … absent a stipulation or a court order, the disclosures must be made:
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject identified by another party under Rule 26(a)(2)(B) or (C), within thirty days after other party's disclosure.

Fed. R. Civ. P. 26(a)(2)(D)(ii).

         In this case, on September 13, 2012, Defendant disclosed her expert witnesses in her Initial Disclosures, along with a statement of proposed testimony. (D.E. 36). (See also D.E. 206-11, pp. 1-10). Defendant argues that Plaintiffs were thus required to disclose the expert testimony of Mr. Sullivan that they intended to use to rebut that testimony within thirty days, by October 13, 2012. Plaintiffs first produced Sullivan's testimony on October 28, 2013, fifteen days past the Rule 26 deadline. However, the mere fact that Plaintiffs' expert testimony was produced fifteen days late does not equate with a punishment of striking Plaintiffs' expert witness testimony.[3] The essential inquiry is whether or not Defendant was prejudiced or harmed from this fifteen day delay. Under Rule 37(c)(1), if a party fails to provide expert disclosures within the established deadlines, “the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. (emphasis added).

         In this case, Mr. Sullivan's testimony posed neither surprise nor harmful error to Defendant. Mr. Sullivan's testimony had been presented in an earlier Native American RLUIPA long-hair case to which the Director was a party. Moreover the fifteen day delay in Plaintiffs' producing the testimony caused no harm to Defendant, and Defendant did not file a motion to strike the expert testimony, but only raised the issue in her Reply to Plaintiffs' summary judgment motion. That is, Defendant had plenty of time to review the testimony offered by Plaintiffs and to prepare her objections thereto such ...

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