United States District Court, S.D. Texas, Corpus Christi Division
OPINION AND ORDER ON REMAND DENYING DEFENDANT'S
MOTION TO STRIKE, DENYING PLAINTIFFS' MOTION TO STRIKE,
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFFS' RLUIPA GROOMING POLICY CLAIM AND RECOMMENDING
REMAND OF THE APPEAL FOR A TRIAL ON THE MERITS
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
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. Id.
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).
PLAINTIFFS' CLAIMS AND PROCEDURAL BACKGROUND.
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.
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.
21, 2012, a Spears 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.
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.
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.
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.
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.
12, 2016, this Court ordered the parties to submit additional
briefing following the Fifth Circuit's remand. (D.E.
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).
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 STANDARD.
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).
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
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.
Issue One: Testimony of George Sullivan.
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.
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.
Standard of Review.
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.
Defendant's Motion to Strike.
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.
R. Civ. P. 26.
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
(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).
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. 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).
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 ...