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Strong v. Livingston

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

March 7, 2017

TABARI S STRONG, et al, Plaintiffs,
v.
BRAD LIVINGSTON, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION

          B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         JURISDICTION

         Jurisdiction 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).

         BACKGROUND

         Plaintiff 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).

         Based 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 (Id.).

         Plaintiff 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 Spears[1]hearing, 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 still pending.

         In the 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).

         DISCUSSION

         A. Mootness

         If a 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)).

         "On 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.

         In 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 ...


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