United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
LANE, UNITED STATES MAGISTRATE JUDGE
Magistrate Court submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. § 636(b) and
Rule 1(f) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
States Magistrates Judges.
the Court are Plaintiff's complaint (Document No. 1);
Plaintiff's Motion for Default Judgment (Document No.
26); Plaintiff's Motion for Summary Judgment (Document
No. 27); Plaintiff's Motion for Declaratory Judgment and
Permanent Injunction (Document No. 29); Defendants'
Motion for Summary Judgment (Document No. 30); and
Plaintiff's reply thereto (Document No. 32). Plaintiff,
proceeding pro se, has been granted leave to proceed in forma
time he filed his complaint, Plaintiff was an inmate
incarcerated in the Hughes Unit of the Texas Department of
Criminal Justice - Correctional Institutions Division
(“TDCJ”). Plaintiff files this action pursuant to
the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) and the American Indian Religious
Freedom Act (“AIRFA”). Plaintiff originally sued
Director William Stephens and Warden John Werner.
Subsequently, Director Lorie Davis was substituted for
Stephens and Warden David Blackwell was substituted for
asserts he is a Choctaw Indian and adheres to Native American
religious practices. According to Plaintiff, in 1988 he was
convicted of murder and sentenced to 75 years in prison.
Plaintiff is currently 62 years of age, and according to
Plaintiff, in poor health. Specifically, Plaintiff asserts he
was diagnosed with coronary artery disease in 2011, is an
insulin dependent type-II diabetic, and has hepatitis C.
requested from the warden permission to grow his hair long
for religious reasons. Plaintiff's request was denied,
and he was informed he should grow a beard instead. Plaintiff
maintains it is his deeply held religious belief that he must
have long hair upon his death in order to be recognized and
taken into eternity by his ancestors, none of whom grew
beards. Plaintiff asserts, prior to entering prison, he had
never cut his hair.
seeks a declaration that his rights were violated under the
Constitution and Federal Laws of the United States. He seeks
permission to immediately grow his hair long without
restriction but within TDCJ rules under which female
prisoners must abide. Although Plaintiff included his request
for relief in his original complaint, Plaintiff also filed a
Motion for Declaratory Judgment and Permanent Injunction.
Plaintiff's motion is unnecessary and should be
dismissed, as his request for relief will be considered in
his original complaint.
moves for summary judgment. He contends his request to grow
the length of his hair is similar to inmates' requests to
grow beards for religious reasons. He argues AIRFA guarantees
complete religious freedom for Native Americans with no
exceptions for incarceration. Plaintiff contends federal law,
constitutional law, and treaties allow Plaintiff to grow long
hair at whatever cost may be incurred by TDCJ.
also move for summary judgment. They argue Plaintiff's
First Amendment claims are barred by Fifth Circuit precedent.
Defendants further argue AIRFA does not create a cause of
action or any judicially enforceable rights. Finally, they
argue Plaintiff's RLUIPA claim is without merit, because
TDCJ's grooming policy is the least restrictive means to
advance its compelling interests.
rely on Longoria v. Dretke, 507 F.3d 898 (5th Cir.
2007) (per curiam). In that case, a Texas inmate alleged that
his religion barred him from cutting his head hair and sought
an exemption from TDCJ's short-hair policy. Id.
at 900. The Fifth Circuit dismissed his RLUIPA claim as
frivolous, explaining that the court was bound by Diaz v.
Collins, 114 F.3d 69 (5th Cir. 1997). The
Longoria court noted that in Diaz, after an
evidentiary hearing, the district court had found that
“long hair ... facilitates the transfer of contraband
and weapons into and around TDCJ institutions” and
“requiring prisoners to have short hair makes it more
difficult for escaped prisoners to alter their
appearance.” Longoria, 507 F.3d at 904
(alteration in original) (quoting Diaz, 114 F.3d at
72-73). The Fifth Circuit then concluded that the evidentiary
showing in Diaz was “sufficient to preclude
[the inmate's] RLUIPA claim” to grow long, unshorn
head hair. Longoria, 507 F.3d at 904.
responds that Defendants do not challenge his deeply held
religious beliefs and do not deny TDCJ's grooming policy
against long hair substantially burdens Plaintiff's
ability to practice his faith. Plaintiff agrees Defendants
have a compelling interest in promoting and maintaining unit
safety, good order and discipline and controlling costs.
However, Plaintiff argues TDCJ's grooming policy banning
long hair is not the least restrictive means of achieving
their own compelling interests.
disputes he raised First Amendment claims pursuant to 42
U.S.C. § 1983. He appears to waive any First Amendment
claims he may have made.
also moves for a default judgment. However, Defendants were
not in default at the time Plaintiff filed his motion. His
Motion for Default Judgment should be denied.
Summary Judgment Standard
movant is entitled to summary judgment “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). It is axiomatic that the
“evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). A genuine dispute of material fact is not created by
“conclusory allegations, unsubstantiated assertions, or
only a scintilla of evidence.” Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quotation
marks and citation omitted).