United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART DEFENDANTS' SUPPLEMENTAL MOTION FOR
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
a civil rights case brought by Plaintiff William Casey, a
Texas inmate of the Native American faith. In his original
complaint, Plaintiff challenged certain policies and
practices of the Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ-CID) that he claims
conflict with his right to practice his Native American faith
in violation of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et
seq., and the First Amendment.
before the Court is Defendants Lorie Davis's and Cliff
Morris's supplemental motion for summary judgment (D.E.
28) which incorporated their original motion for summary
judgment (D.E. 15). Plaintiff has responded to both the
original and supplemental motions. (D.E. 27, 29) For the
reasons stated herein, it is respectfully recommended that
Defendants' supplemental motion for summary judgment,
which incorporates the original summary judgment motion, be
GRANTED IN PART and DENIED IN PART.
Court has federal question jurisdiction over this civil
action pursuant to 28 U.S.C. § 1331.
is a prisoner in the TDCJ-CID, and is currently confined at
the McConnell Unit in Beeville, Texas. Plaintiff has been in
TDCJ custody since 1997, serving a life sentence for capital
murder. He is housed in general population and has the
highest custody classification available for his conviction.
He is therefore able to be out of his cell from 7:00 a.m.
until 10:30 p.m., to go to the dayroom, and to take his meals
at the chow hall. He shares a cell with another offender.
September 2005, Plaintiff began studying the Native American
(NA) faith, and in January 2006, Plaintiff became identified
on his prison identification card as a practicing member of
the NA religion. Tenets of his faith include: pipe
ceremonies in which prayers are offered to the Creator; the
wearing of a medicine bag or pouch to protect him from evil;
not cutting one's hair except in mourning upon the death
of a relative or loved one; and smudging ceremonies for
January 21, 2014, Plaintiff filed his original complaint,
naming as defendants: (1) William Stephens, the former
TDCJ-CID Director who was subsequently replaced by Lorie
Davis; and (2) Native American Program Analyst, Clint Morris.
(D.E. 1, p. 3). Plaintiff alleged that certain TDCJ-CID
policies violated his RLUIPA and First Amendment rights by
prohibiting him from practicing his faith. Specifically,
Plaintiff claimed that the TDCJ-CID had implemented three
policies that prevented him from (1) growing his hair long or
alternatively, maintaining a kouplock, which is a
continuously growing one inch square section of hair at the
base of the skull; (2) wearing a religiously significant
“medicine bag” at all times; and (3) smoking a
prayer pipe during Native American pipe ceremonies. (D.E. 1,
sought injunctive and declaratory relief for his RLUIPA
claims to allow Plaintiff to: (1) grow his hair long and/or
wear a kouplock; (2) wear his medicine bag at all times; and
(3) possess and smoke a personal prayer pipe. (See
D.E. 1, p. 7). Plaintiff further seeks monetary relief
against Mr. Morris in his individual capacity, alleging that
he violated Plaintiff's First Amendment rights because he
failed to advocate for Native American programs and failed to
make the communal pipe available on the McConnell Unit.
March 6, 2014, a Spears hearing was conducted,
following which service was ordered on Director Stephens in
his official capacity and on Mr. Morris in his individual
capacity. (D.E. 9). On June 23, 2014, Defendants filed their
Answer. (D.E. 10).
October 31, 2014, Defendants filed their original motion for
summary judgment, seeking dismissal of Plaintiff's RLUIPA
and First Amendment claims. Defendants' motion included
over 550 pages of evidence offered in an Appendix.
(See D.E. 15-1 - D.E. 15-7). Plaintiff did not file
a timely response to Defendants' summary judgment motion.
December 9, 2014, the undersigned issued a Memorandum and
Recommendation (December 9, 2014 M&R), recommending that
Defendants' summary judgment motion be granted as to all
claims. (D.E. 16). Based on the uncontroverted summary
judgment submitted by Defendants, the undersigned Court found
that: (1) the TDCJ policies challenged by Plaintiff - the
TDCJ grooming policy, the devotional items policy, and the
Native American pipe policy - all imposed substantial burdens
on Plaintiff's religious exercise of his Native American
faith; and (2) the challenged prison policies nevertheless
were the least restrictive means of furthering the TDCJ's
compelling interests in maintaining prison security and
monitoring costs, such that there are no RLUIPA violations.
(D.E. 16, pp. 17-30). The undersigned further concluded that
Plaintiff's First Amendment claims failed as a matter of
law because the protections offered by the First Amendment
are more limited than those extended RLUIPA. (D.E. 16, pp.
days after the December 9, 2014 M&R was issued, the Court
received Plaintiff's motion for an extension of time to
file his response to the summary judgment motion. (D.E. 17).
On December 12, 2014, the undersigned stayed this case
pending the Fifth Circuit Court of Appeals' decision in
Davis, et al., v. Pierce, No. 14-40339 (appeal of
Davis, et al., v. Pierce, Cause No. 2:12-cv-166
(S.D. Tex, February 27, 2014)). (D.E. 18). Plaintiff's
motion seeking an extension of time to file a response was
denied without prejudice. (D.E. 18). The undersigned
instructed Plaintiff that, once the Fifth Circuit reached a
decision in Davis, he would be given an opportunity
to file a response to Defendants' summary judgment
motion. (D.E. 18).
14, 2016, the Fifth Circuit issued its decision in the
Davis case. Davis v. Davis, 826 F.3d 258
(5th Cir. 2016). That case specifically involved two Texas
inmates of the Native American faith, Teddy Davis and Robbie
Goodman. These plaintiffs had filed a civil rights action in
this Court, advancing RLUIPA and First Amendment claims
virtually identical to Plaintiff's claims in this case.
See Davis v. Pierce, et al., Civil Action No.
2:12-cv-166. On February 27, 2014, this Court granted
defendants' summary judgment motion and dismissed
Plaintiff's RLUIPA and First Amendment claims with
prejudice. Davis v. Pierce, No. 2:12-CV-166, 2014 WL
798033, at *19 (S.D. Tex. Feb. 27, 2014). The Fifth Circuit
on appeal affirmed the dismissal of Davis's and
Goodman's medicine bag and pipe claims, but remanded
their kouplock claim to this Court. Davis, 826 F.3d
26, 2016, the undersigned vacated the stay in this case,
recognizing that the Davis case resolved some, but
not all, of the issues in this case. (D.E. 23). The
undersigned further directed Plaintiff to show cause why
judgment should not be entered against him as to his First
Amendment claims for monetary relief against Defendant Morris
in his individual capacity, as well as his RLUIPA claims that
he should be permitted to smoke a personal prayer pipe and
carry his medicine bag at all times. (D.E. 23, p. 1). Lastly,
as to Plaintiff's RLUIPA claim that he be allowed to grow
his hair, or maintain a kouplock, the undersigned directed
the parties to file supplemental motions for summary
judgment. (D.E. 23, p. 2).
September 20, 2016, Plaintiff filed his 143-page response to
the original summary judgment motion. (D.E. 27). On September
28, 2017, Defendants Davis and Morris filed their
supplemental motion for summary judgment addressing
Plaintiff's RLUIPA claim that he be allowed to wear his
hair either long or in a kouplock. (D.E. 28). Plaintiff
subsequently filed his response to Defendants'
supplemental summary judgment motion. (D.E. 29).
SUMMARY JUDGMENT STANDARD
judgment is proper if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
Court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. In making this
determination, the Court must consider the record as a whole
by reviewing all pleadings, depositions, affidavits and
admissions on file, and drawing all justifiable inferences in
favor of the party opposing the motion. Caboni v. Gen.
Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The
Court may not weigh the evidence, or evaluate the credibility
of witnesses. Id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed.R.Civ.P. 56(e); see
also Cormier v. Pennzoil Exploration & Prod. Co.,
969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to
consider affidavits that relied on hearsay statements);
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d
547, 549 (5th Cir. 1987) (per curiam) (stating that courts
cannot consider hearsay evidence in affidavits and
depositions). Unauthenticated and unverified documents do not
constitute proper summary judgment evidence. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).
moving party bears the initial burden of showing the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the nonmoving
party's case, then the burden shifts to the nonmoving
party to come forward with specific facts showing that a
genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed.R.Civ.P.
56(e); Anderson, 477 U.S. at 248. “After the
nonmovant has been given an opportunity to raise a genuine
factual issue, if no reasonable juror could find for the
nonmovant, summary judgment will be granted.”
Caboni, 278 F.3d at 451. “If reasonable minds
could differ as to the import of the evidence ... a verdict
should not be directed.” Anderson, 477 U.S. at
evidence must be evaluated under the summary judgment
standard to determine whether the moving party has shown the
absence of a genuine issue of material fact. “[T]he
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Id. at 248.
PLAINTIFF'S RLUIPA CLAIMS
3 of the RLUIPA concerns institutionalized persons and
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution as defined in section 1997 of this title, even if
the burden results from a rule of general applicability,
unless the government demonstrates that imposition of the
burden on that person-
(1) is in furtherance of a compelling governmental interest;
(2) is the least restrictive means of furthering that
compelling government interest.
42 U.S.C. § 2000cc-1(a). The Act broadly defines
“religious exercise” to include “any
exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” Id. §
which provides a private cause of action, id.,
§ 2000cc-2(a), implements a burden-shifting framework.
Ware v. Louisiana Dep't of Corrections, 866 F.3d
263, 268 (5th Cir. 2017); Chance v. Tex. Dep't of
Crim. Justice, 730 F.3d 404, 410-11 (5th Cir. 2013). The
plaintiff's initial burden is two-fold: he or she must
show that (1) the relevant religious exercise is
“grounded in a sincerely held religious belief”
and (2) the government's action or policy
“substantially burden[s] that exercise” by, for
example forcing the plaintiff “to ‘engage in
conduct that seriously violates [his or her] religious
beliefs.'” Holt v. Hobbs, __ U.S. __, 135
S.Ct. 853, 862 (2015) (quoting Burwell v. Hobby Lobby
Stores, Inc., __ U.S. __, 134 S.Ct. 2751, 2775 (2014)).
If the plaintiff caries this burden, the government bears the
burden of proof to show that its action or policy (1) is in
furtherance of a compelling governmental interest and (2) is
the least restrictive means of furthering that interest. 42
U.S.C. § 2000cc-1(a); Holt, 135 S.Ct. at 863.
RLUIPA's express purpose to protect the religious
observances of individualized persons, the statute does not
give courts carte blanche to second-guess the reasoned
judgments of prison officials. Indeed, while Congress enacted
the RLUIPA to address the many “frivolous or
arbitrary” barriers impeding institutionalized
persons' religious exercise, it nevertheless anticipated
that courts entertaining RLUIPA challenges “would
accord ‘due deference to the experience and expertise
of prison and jail administrators.'” Cutter v.
Wilkinson, 544 U.S.709, 716-17 (2005) (quoting
146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sens.
Hatch and Kennedy on the RLUIPA)). The Supreme Court has
cautioned that “[w]e do not read RLUIPA to elevate
accommodation of religious observances over an
institution's need to maintain order and safety, ”
and “an accommodation must be measured so that it does
not override other significant interests.” Id.
at 722. The Supreme Court further instructed:
We have no cause to believe that RLUIPA would not be applied
in an appropriately balanced way, with particular sensitivity
to security concerns. While the Act adopts a
“compelling governmental interest” standard,
context matters in the application of that standard.
Lawmakers supporting RLUIPA were mindful of the urgency of
discipline, order, safety, and security in penal
institutions. They anticipated that courts would apply the
Act's standard with due deference to the experience and
expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good order,
security and discipline, consistent with consideration of
costs and limited resources.
Id. at 722-23 (internal quotation marks and
citations omitted). This deference is not, however,
unlimited, and “policies grounded on mere speculation,
exaggerated fears, or post-hoc rationalizations will not
suffice to meet the Act's requirements.” Rich
v. Secretary, Florida Dep't of Corrections, 716 F.3d
525, 533 (11th Cir. 2013) (internal quotation marks omitted).
RLUIPA Claims Resolved by Davis
response to the original summary judgment motion, Plaintiff
extensively argues pursuant to RLUIPA that the challenged
TDCJ policies imposed substantial burdens on his religious
exercise of his Native American faith and were not the least
restrictive means of furthering the TDCJ's compelling
interests. (See D.E. 27). Plaintiff's RLUIPA
claims involving the ...