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Hartney v. Butcher

United States District Court, S.D. Texas, Galveston Division

February 21, 2018

CARL WILLIAM HARTNEY, TDCJ #01670192, Plaintiff,
v.
MICHAEL BUTCHER, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE

         Carl William Hartney (TDCJ #01670192), a Texas state prisoner, has brought an action under 42 U.S.C. § 1983 alleging that his rights under the Free Exercise Clause of the First Amendment were violated when some of his Native American religious articles were confiscated. The Court requested an answer from Rhonda Windmeyer, the correctional officer who confiscated the articles (Dkt. 15). Hartney's suit seeks damages and an "injunction against R. Windmeyer from harassing or obthering [sic] Plaintiff (Dkt. 1 at p. 4). Hartney does not request the return of the confiscated items. In an "addendum" to his complaint, Hartney has added Texas Department of Criminal Justice ("TDCJ") Executive Director Brad Livingston[1] as a defendant and added a claim under the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The RLUIPA claim is extremely vague: Hartney does not specify what relief he seeks under RLUIPA, and he does not specify which TDCJ policy he is challenging under RLUIPA.

         Hartney is proceeding/?™ se and has been granted leave to proceed in forma pauperis. Windmeyer has asserted entitlement to qualified immunity and moved for summary judgment (Dkt. 29 and Dkt. 34). Hartney has responded (Dkt. 31, Dkt. 32, and Dkt. 38). Hartney's responses do not constitute competent summary judgment evidence because they are unsworn and the factual allegations within were not declared under penalty of perjury to be true and correct. See Davis v. Hernandez, 798 F.3d 290, 291 (5th Cir. 2015); see also Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991) ("Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment evidence.")- However, the Court will consider Hartney's complaint and its attachments to be part of the summary judgment record because Hartney declared under penalty of perjury that the facts set forth in the complaint and attachments are true and correct (Dkt. 1 at p. 6). See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) ("On summary judgment, factual allegations set forth in a verified complaint may be treated the same as when they are contained in an affidavit."); see also Davis, 798 F.3d at 293 ("[F]ederal courts, this one included, have a traditional disposition of leniency toward pro se litigants.") (quotation marks omitted).

         Before proceeding, the Court will note that many of Hartney's claims can be dismissed with minimal discussion. The claim for an injunction against Windmeyer's "harassment" is vaguely pled and unsupported by any evidence and, in any event, is moot-Hartney has been transferred to a different unit (the Jester Unit, which is located in the Houston Division) and there is no evidence that Windmeyer has had any contact with him there. Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). RLUIPA does not create a cause of action against officials in their individual capacities, so no claim against Collier in his individual capacity is cognizable. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 329-31 (5th Cir. 2009), aff'd, 131 S.Ct. 1651 (2011). Any claims for damages against the defendants in their official capacities, whether brought under Section 1983 or under RLUIPA, are barred by sovereign immunity. Id.; Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2001). Remaining are Hartney's claim for damages against Windmeyer in her individual capacity under Section 1983 and Hartney's claim for unspecified injunctive relief against Collier in his official capacity under RLUIPA.

         After reviewing all of the evidence submitted, the pleadings, the parties' briefing, and the applicable law, the Court concludes that Windmeyer's motion for summary judgment must be granted. Hartney's claims against Collier will be dismissed as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B).

         I. BACKGROUND

         Hartney is an adherent of a Native American faith and has been recognized as such by TDCJ since 2013 (Dkt. 29-2 at p. 11). He was sentenced to eight concurrent 20-year sentences in 2010 and is currently serving those sentences in TDCJ's Jester Unit.

         On April 4, 2015, while Hartney was housed in TDCJ's Terrell Unit, Windmeyer entered Hartney's bunk area and confiscated as contraband two leather swatches, 12 black beads, and four loose screws (Dkt. 1-1 at pp. 1, 5; Dkt. 29-3 at p. 5). Hartney filed Step One and Step Two grievances in which he argued that, in confiscating those items, Windmeyer acted "in violation of the PD-22[2] rules" governing the conduct of TDCJ employees (Dkt. 1-1 at p. 1). Hartney further argued in his grievances that Windmeyer's confiscation of the swatches and the beads "violated [his] religious rights per [TDCJ's] Chaplaincy Manual" because he needed the swatches and beads to pray at his altar (Dkt. 1 -1 at p. 1). The swatches formed the base of the altar (Dkt. 1-1 at p. 1); the exact role of the beads in the prayer is unclear.

         The investigation of Hartney's grievances revealed that Hartney had never properly registered the confiscated property and therefore had never obtained the "Registered Property Receipt, " also known as a PROP-02 form, that was necessary for him to establish to Windmeyer (or any other TDCJ employee) that he had permission to possess the confiscated property (Dkt. 29-6 at pp. 3, 36). Under TDCJ policy, religious devotional items that are not properly registered and listed on a PROP-02 form are considered contraband and can be confiscated (Dkt. 29-2 at p. 3; Dkt. 29-6 at pp. 3, 16, 25). According to a statement that Windmeyer gave during the investigation, the religious items (meaning the swatches and beads)[3] drew Windmeyer's attention because they "[we]re not items allowed by policy 05.01" (Dkt. 29-3 at p. 7). Windmeyer's mention of "policy 05.01" refers to the portion of TDCJ's Chaplaincy Manual entitled "Religious Devotional Items and Observed Holy Days" (Dkt. 29-2 at pp. 3-10). The Chaplaincy Manual explains that "[a] TDCJ offender is permitted to possess only approved religious devotional items appropriate for the [inmate's] faith preference" (Dkt. 29-2 at p. 3). The Chaplaincy Manual provides a list of approved devotional items that inmates of Native American faith may possess, and that list includes: (1) a headband; (2) a feather; (3) a shell; (4) a medallion; and (5) a medicine bag (Dkt. 29-2 at p. 9). The medicine bag may contain the following "natural objects[:]" (1) seven sacred stones; (2) a bone; (3) a tooth; and (4) an herbal mixture of sage, sweet grass, and cedar (Dkt. 29-2 at p. 9).[4] That said, the Chaplaincy Manual, read in conjunction with TDCJ's Administrative Directive AD-07.30, [5] allows some play in the joints regarding the possession of religious devotional items-namely, an inmate can request religious accommodations that are not explicitly authorized by TDCJ regulations, and those accommodations can include permission to possess an unlisted religious devotional item (Dkt. 29-2 at p. 4; Dkt. 29-5 at pp. 4, 10-15). The inmate can request an accommodation by submitting an 1-60 form to the unit chaplain, who will then have the inmate complete a "Request for Religious Accommodation" form and conduct an interview of the inmate (Dkt. 29-5 at pp. 4, 10). If the accommodation sought involves a religious practice that has not previously been addressed by TDCJ's Religious Practices Committee ("RPC"), the chaplain will then complete a "Religious Practice Issue Assessment" form; and the RPC, after considering "any compelling countervailing considerations[, ]”[6] will decide whether to grant the accommodation (Dkt. 29-5 at pp. 3, 4, 11-12).[7] According to the language of the Religious Practice Issue Assessment form, "[i]f the request is clearly a recognized practice of the offender's designated faith preference and there are no compelling [countervailing] considerations [noted], then the request shall be accommodated" (Dkt. 29-5 at p. 12). If there are compelling countervailing considerations, the form instructs the chaplain to collaborate with the warden (or a designee of the warden) and the inmate (if the inmate will cooperate) in identifying any alternative accommodations (Dkt. 29-5 at p. 12).

         When Windmeyer confiscated his swatches and beads, Hartney possessed PROP-02 forms authorizing him to possess a feather with beads;[8] a brown leather headband; a necklace; a white shell; and a leather medicine bag containing two sacred stones and an herbal mixture of sage, sweet grass, and cedar (Dkt. 29-7 at pp. 3, 16, 17). Hartney did not have a PROP-02 form authorizing him to possess the confiscated leather swatches and beads. In fact, in one of his responses to Windmeyer's motion for summary judgment, Hartney admits that the items were properly seized as contraband (Dkt. 38 at p. 1) ("The [A]ttorney General has made it clear that the items that Officer Windmeyer confiscated was [sic] contraband.")- There is no evidence that Hartney had ever sought permission to possess the swatches and beads from the RPC by presenting 1-60 and Request for Religious Accommodation forms to the unit chaplain.

         In his grievances, Hartney requested the return of the confiscated items and that Windmeyer "be punished pursuant to the PD-22 code violation" (Dkt. 1-1 at p. 4). After his grievances were denied, Hartney filed this lawsuit, in which he seeks damages and an "injunction against R. Windmeyer from harassing or obthering [sic] Plaintiff (Dkt. 1 at p. 4). Hartney does not request the return of the confiscated items. Hartney initially brought suit under Section 1983; in a supplemental complaint, he named Livingston (for whom the Court has substituted Collier) as a defendant and added a claim under RLUIPA (Dkt. 11-1 at pp. 1-2). The RLUIPA claim consists of nothing more than citations to Holt v. Hobbs, 135 S.Ct. 853 (2015) and Ali v. Stephens, 822 F.3d 776 (5th Cir. 2016).

         II. THE PLRA. SUMMARY JUDGMENTS. AND QUALIFIED IMMUNITY

         A. The PLRA

         The complaint in this case is governed by the Prison Litigation Reform Act (the "PLRA"). Upon initial screening of a prisoner civil rights complaint, the PLRA requires a district court to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted;" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § l9l5A(b). A reviewing court may dismiss a complaint for these same reasons "at any time" where a party, like Hartney, proceeds in forma pauperis. 28 U.S.C. ยง 1915(e)(2)(B) (mandating dismissal where the complaint is "frivolous or malicious, " "fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief). The PLRA also provides that the court "shall on its own motion or on the motion of a party dismiss an action" if it is satisfied that the ...


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