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Cobb v. Morris

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

January 11, 2018

RAYMOND COBB, Plaintiff,
CLINT MORRIS, et al, Defendants.



         This is 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.

         Pending 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.


         The Court has federal question jurisdiction over this civil action pursuant to 28 U.S.C. § 1331.


         Plaintiff 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.

         In 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.[1] 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 purification.

         On 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, pp. 6-7).

         Plaintiff 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.

         On March 6, 2014, a Spears[2] 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).

         On 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.

         On 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. 30-33).

         Two 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).

         On June 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 at 266-70.

         On July 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).

         On 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 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).

         The 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 250-51.

         The 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.


         Section 3 of the RLUIPA concerns institutionalized persons and states:

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; and
(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. § 2000cc-5(7)(A).

         RLUIPA, 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.

         Despite 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).

         A. RLUIPA Claims Resolved by Davis

         In his 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 ...

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