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Byrd v. Malil

United States District Court, E.D. Texas, Tyler Division

July 17, 2017

DAVID BYRD
v.
CHARLI MALIL, ET AL.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON DEFENDANTS DEWBERRY, KILLMAN, AND DORRELL'S MOTION TO DISMISS

          Ron Clark, United States District Judge.

         The Plaintiff David Byrd, a prisoner of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The named Defendants are Officer Charli Malil (subsequently identified as Charles Marshall), Warden Dwayne Dewberry, Thomas Killman, Thomas Green, and Jason Dorrell. This Memorandum Opinion concerns the motion to dismiss filed by the Defendants Dewberry, Killman, and Dorrell.

         I. Background

         In his original complaint, Byrd complains that his Creator-given rights were violated when an officer named McArthur, who is not named as a defendant in the lawsuit, would not allow him out of his cell to attend a Sabbatarian service. Byrd complains that he has not been allowed to attend Sabbatarian services since April 12, 2014, because he started growing a beard in adherence to the Torah.

         The next day, April 13, 2014, Sgt. Killman asked if Byrd was going to shave and Byrd said no. Killman wrote him a disciplinary case and Byrd was found guilty. He received punishments of cell and commissary restrictions. On April 14, 2014, Officer Dorrell would not let Byrd out of his cell to attend Passover services or Seder. The only claim stated against Warden Dewberry was that the warden was “allowing staff to infringe on my Creator-given rights, constitutional and civil rights.”

         Byrd attached grievance no. 2014130446 to his complaint. This grievance complained about a disciplinary case Byrd received for growing a beard. The responses to his grievance upheld the disciplinary case. The only relief sought in Byrd's lawsuit is “to grant me injunctive relief from punishment by administration and staff of Michael Unit until my 1983 lawsuit is carried to its conclusion.”

         II. The Motion to Dismiss

         The Defendants Dewberry, Killman, and Dorrell filed a motion to dismiss arguing that: the Religious Land Use and Institutionalized Persons Act (RLUIPA) did not authorize individual-capacity claims and only permits injunctive relief; any official-capacity claims for monetary damages is barred by the Eleventh Amendment; Byrd's claims for injunctive relief are moot because the Texas Department of Criminal Justice has now changed its grooming policies; Warden Dewberry is no longer employed by TDCJ and lacks the power to redress any injuries through the granting of injunctive relief; Byrd failed to state a claim upon which relief may be granted against Dewberry and Killman; Byrd failed to state a First Amendment claim against Dorrell; and, these Defendants are entitled to qualified immunity. Byrd did not file a response to the motion to dismiss.

         III. The Report of the Magistrate Judge

         After review of the pleadings, the Magistrate Judge issued a Report recommending that the motion to dismiss be granted. The Magistrate Judge determined that the Religious Land Use and Institutionalized Persons Act did not create a private right of action for damages against prison officials in their individual capacities and claims for damages against prison officials in their official capacities are barred by the sovereign immunity of the State of Texas. McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 329 (5th Cir. 2009), aff'd sub nom. Sossamon v. Texas, 563 U.S. 277, 280, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). Thus, the Magistrate Judge concluded, Byrd cannot maintain a claim for monetary damages against the Defendants under RLUIPA.

         With regard to injunctive relief, the Magistrate Judge stated that while Byrd seeks an injunction against officials at the Michael Unit, he is now confined at the Eastham Unit. His claim for injunctive relief against the Michael Unit officials is therefore moot. Gillespie v. Crawford, 858 F.2d 1101, 1102 (5th Cir. 1988). Furthermore, TDCJ has changed its policies and now permits the growing of beards for religious purposes, rendering Byrd's request for injunctive relief moot on this basis as well. Strong v. Livingston, civil action no. 2:12cv106, 2017 WL 1102861 (S.D.Tex., March 7, 2017), Report adopted at 2017 WL 1102691 (S.D.Tex., March 23, 2017).

         Turning to the individual defendants, the Magistrate Judge stated that Killman's alleged verbal assault is not a constitutional violation and that Byrd offers no supporting facts to show that Killman acted in retaliation. Byrd states that he received cell and commissary restrictions as a result of the disciplinary case Killman gave him, but the Magistrate Judge determined that neither of these punishments implicated any constitutionally protected liberty interests. Thus, Byrd failed to overcome Killman's defense of qualified immunity.

         Byrd alleges Dorrell did not permit him to attend Passover and Seder services on April 2014, but the Magistrate Judge stated that single incidents of missing religious services are normally not treated as First Amendment violations. The Magistrate Judge also concluded that Byrd could not maintain an individual-capacity suit against Dorrell under the Religious Land Use and Institutionalized Persons Act. Byrd also failed to overcome Dorrell's defense of qualified immunity.

         Byrd complained that Warden Dewberry permitted the staff to violate his rights, but the Magistrate Judge stated that supervisory officials such as the Warden are not liable for the actions of their subordinates under any theory of vicarious liability. Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 20110). While supervisors may be held liable under certain conditions, Byrd failed to show that any of these conditions existed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). The Magistrate Judge also observed that Byrd's claim against Dewberry was entirely devoid of specific facts and thus failed to overcome Dewberry's defense of qualified immunity. Oliver v. Scott, 276 F.3d 736, ...


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