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White v. Davis

United States District Court, W.D. Texas, Austin Division

August 1, 2017

TERRY WHITE #503525
v.
LORIE DAVIS AND DAVID BLACKWELL

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          MARK LANE, UNITED STATES MAGISTRATE JUDGE

         The 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.

         Before 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 pauperis.

         I. BACKGROUND

         At the 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 Werner.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Defendants 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.

         Defendants 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         II. ANALYSIS

         A. Summary Judgment Standard

         A 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).

         B. Fi ...


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