United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
in this case is Defendant Michael Collier's motion for
summary judgment filed on November 4, 2016 in which he argues
that Plaintiff Tabari Strong's lawsuit should be
dismissed because it is moot (D.E. 141). Plaintiff responded
to the motion on November 16, 2016 (D.E. 142). For the
reasons explained more fully below, it is recommended that
Defendant's motion for summary judgment be granted.
and venue are proper in this court because the actions about
which Plaintiff complains occurred in Beeville, Bee County,
Texas, which is located in the Corpus Christi Division of the
Southern District of Texas. 28 U.S.C. 2241(d); Wadsworth
v. Johnson, 235 F.3d 959 (5th Cir. 2000).
filed this lawsuit on April 9, 2012 pursuant to the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc-1(a) (RLUIPA), asking to be allowed to maintain a
fist-length, or four-inch, beard consistent with his
religious beliefs (D.E. 1). In the alternative, Plaintiff
asked to be allowed to grow a beard of at least one-quarter
inch (Id.). While Plaintiff's lawsuit has been
pending, the issue of inmates being allowed to grow beards
for religious purposes has been the subject of much
litigation. A series of decisions from the U.S. Supreme Court
and the Fifth Circuit Court of Appeals have made it clear
that as a general rule, inmates should be allowed to grow a
fist-length beard. See Holt v. Hobbs, 135 S.Ct. 853,
862-863 (2015) (Arkansas Department of Corrections'
no-beard policy violated RLUIPA because it was not the least
restrictive means of achieving legitimate interest in
maintaining security and control in the prisons); Garner
v. Gutierrez, 713 F.3d 237, 247 (5th Cir. 2013)(TDCJ
inmates allowed to grow and wear a quarter-inch beard after
it was determined that the no-beard policy did not provide
the least restrictive means of maintaining TDCJ's
legitimate interest in identification of inmates and security
in prison); Ali v. Stephens, 822 F.3d 776 (5th Cir.
2016)(TDCJ did not meet its burden under RLUIPA with respect
to its denial of inmate's request to grow a fist-length
beard not to exceed four inches).
on the outcome of the beard litigation, TDJC has changed its
policy for inmates who wish to grow beards for religious
purposes. According to the assistant warden at the McConnell
Unit, Plaintiff has been allowed to wear a four-inch beard
since July 25, 2016 (Aff. of Kenneth Putnam, D.E. 141-1 at p.
1). TDCJ officially changed its policy effective February 1,
2017 to allow for four-inch religious beards (D.E. 144,
144-1). Absent any unforeseen disciplinary issues or failure
to abide by the religious beard specifications outlined in
the TDCJ Offender Orientation Handbook, the warden states
that he anticipates Plaintiff will continue to be allowed to
wear a four-inch religious beard (Id.). Inmates who
are allowed to wear a four-inch religious beard are subject
to a requirement that they shave once a year and have a
clean-shaven picture taken for identification purposes. They
may grow the beard back after the picture has been taken
filed a separate action in this court on April 22, 2016.
Strong v. Livingston, et al., No. 2:16-cv-131 (S.D.
Tex., filed April 22, 2016). Following a
Spearshearing, it was recommended that Plaintiff
be allowed to proceed on several claims he made in that
proceeding, including a challenge to the TDCJ policy that he
must shave once a year in order to take a clean-shaven
picture for identification purposes (D.E. 12 in that
litigation at pp. 11-15). The claims in that lawsuit are
motion for summary judgment filed in this case, Defendant
argues that because Plaintiff has been allowed to grow a
fist-length beard, his claim is now moot and should be
dismissed. Plaintiff counters that not all the relief he
sought has been granted. He appears to seek a ruling from
this Court stating that TDCJ will not be allowed to make him
shave in response to any disciplinary case it may bring
against him in the future. In addition, Plaintiff argues that
his lawsuit should not be dismissed because TDCJ has a
history of "misguiding the court and
retracting/breaching contracts made in this cause."
Plaintiff also asks that all court costs be paid by Defendant
(D.E. 142 at pp. 1-2).
controversy between parties resolves to the point that they
no longer qualify as "'adverse parties with
sufficient legal interests to maintain the litigation,
'" a court is without power to entertain the case.
Sossamon v. Lone Star State of Texas, 560 F.3d 316,
324 (5th Cir. 2009)(quoting United States v.
Laers-Meraz, 452 F.3d 352, 351 (5th Cir. 2006)(per
curiam)). This general rule is subject to several exceptions.
For example, if a defendant voluntarily ceases a
complained-of activity, a case is not ordinarily mooted
because the defendant could eject a plaintiff on the eve of
judgment and then resume the complained-of activity without
fear of flouting a court order. Under those circumstances, a
plaintiff would face the hassle, expense, and injustice of
having to relitigate the claim without the possibility of
obtaining lasting relief. Sossamon, 560 F.3d at 324.
The party alleging mootness bears the heavy burden of showing
that it is absolutely clear that the allegedly wrong behavior
could not reasonably be expected to recur. Id. at
325 (citing Friends of the Earth, Inc. v. Laidlaw
Environmental Services, Inc., 528 U.S. 167, 189 (2000)).
the other hand, courts are justified in treating a voluntary
governmental cessation of possibly wrongful conduct with some
solicitude, mooting cases that might have been allowed to
proceed had the defendant not been a public entity."
Id. (citations omitted). "[G]overnment actors
in their sovereign capacity and in the exercise of their
official duties are accorded a presumption of good faith
because they are public servants, not self-interested
parties. Without evidence to the contrary, we assume that
formally announced changes to official governmental policy
are not mere litigation posturing." Id.
Sossamon, the plaintiff complained that inmates who
were on cell restriction were not allowed to attend religious
services. While the case was on appeal, the director of TDCJ
notified the appellate court via a letter accompanied by an
affidavit that the prison system had ended the policy of
preventing general-population prisoners on cell restriction
from attending religious services. Id., 560 F.3d at
324. The court found that the affidavit was sufficient
because the director swore that he was the party responsible
for enforcing TDCJ administrative directives, that the
Executive Director of the TDCJ had revised the relevant
administrative directive and that prisoners on cell
restriction would now be allowed to attend religious
services. Id. at 325. The court further found that
any claim that the inmate might be removed from the general
population was too speculative to avoid mooting the case and
that the court could not foresee how a claim made by a
prisoner presenting special security concerns ...