Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 1 of 27
CLOSED,LEAD,PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:12−cv−00166

Goodman et al. v. Davis Assigned to: Judge Nelva Gonzales Ramos Cause: 42:1983 Prisoner Civil Rights
Plaintiff Teddy Norris Davis TERMINATED: 01/26/2018
Plaintiff Robbie Dow Goodman 758386 McConnell Unit 3001 So Emily Dr Beeville, TX 78102

Date Filed: 05/21/2012 Date Terminated: 02/26/2019 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Teddy Norris Davis 00807688 East Texas Treatment Facility 900 Industrial Dr. Henderson, TX 75652 PRO SE
represented by Robert K. Ellis Yetter Coleman 811 Main Street Suite 4100 Houston, TX 77002 713−632−8000 Email: rellis@yettercoleman.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Charles Messer Yetter Coleman LLP 811 Main Street Suite 4100 Houston, TX 77002 713−457−3068 Email: smesser@yettercoleman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Paul Yetter Yetter Coleman LLP 811 Main Street Suite 4100 Houston, TX 77002 713−632−8000 Fax: 713−632−8002 Email: pyetter@yettercoleman.com ATTORNEY TO BE NOTICED

V. Consol Plaintiff William Casey

represented by Robert K. Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Charles Messer (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

Consol Plaintiff Raymond Cobb

represented by Robert K. Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Charles Messer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Billy Pierce Contract Native American Chaplain TERMINATED: 02/25/2013
Defendant Nurse Jones McConnell Unit Chaplain TERMINATED: 06/22/2012
Defendant William Stephens Deputy Director of Prison and Jail Operations TERMINATED: 02/25/2013
Defendant Clint Morris Program Analyst

represented by Celamaine Cunniff Office of the Atty Gen Law Enforcement Def Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−370−9389 Email: Cela_Cunniff@txed.uscourts.gov ATTORNEY TO BE NOTICED
represented by Craig McCam Jacobs Office of the Attorney General Civil Medicaid Fraud Division 9th FL 300 West 15th Street Austin, TX 78701 512−936−2769 Fax: 512−499−0712 Email: craig.jacobs@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon Office of the Attorney General of TX P.O. Box 12548 Austin, TX 78711−2548 512−463−2080

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Fax: 512−370−9410 Email: Emily.Landon@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Armstrong Huntpalmer Office of the Attorney General Law Enforcement Defense Division 300 W 15th St Austin, TX 78701 512−463−2080 Fax: 512−370−9398 Email: richard.huntpalmer@texasattorneygeneral.gov TERMINATED: 10/09/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Celamaine Cunniff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Madeline Ortiz Director of Rehabilitative Programs TERMINATED: 02/25/2013

represented by Celamaine Cunniff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Shawna Mitchell McConnell Unit Captain TERMINATED: 11/16/2012

represented by Celamaine Cunniff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sam Longoria Director of Chaplaincy for Region IV TERMINATED: 02/25/2013

represented by Celamaine Cunniff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ed Hernandez Contract Native American Chaplain TERMINATED: 06/22/2012

Defendant Kenneth M Little Brave

Interested Party Tory Lance Pitts

represented by Tory Lance Pitts #1038349 Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886 PRO SE

Defendant Lorie Davis

represented by Benjamin Lindberg Dower Office of the Attorney General 300 West 15th St Austin, TX 78701 512−463−2120 Fax: (512) 370−9069 Email: benjamin.dower@oag.texas.gov LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
Craig McCam Jacobs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Armstrong Huntpalmer (See above for address) TERMINATED: 10/09/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celamaine Cunniff (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012
05/21/2012 05/22/2012 05/22/2012 05/24/2012
05/24/2012
05/31/2012
06/04/2012

# Docket Text
1 Prisoner Civil Rights COMPLAINT against All Defendants (Filing fee $ 350) filed by Terry Norris Grey Haw Davis. (Attachments: # 1 Continuation)(vrios, ) (Entered: 05/22/2012)
2 MOTION/APPLICATION to Proceed In Forma Pauperis by Terry Norris Grey Hawk Davis, filed. Motion Docket Date 6/11/2012. (vrios, ) (Entered: 05/22/2012)
3 Prisoner Trust Fund Account Statement by Terry Norris Grey Hawk Davis, filed. (vrios, ) (Entered: 05/22/2012)
4 MOTION for Appointment of Counsel by Terry Norris Grey Hawk Davis, filed. Motion Docket Date 6/11/2012. (vrios, ) (Entered: 05/22/2012)
5 MOTION for Joinder of Party: Robbie Goodman by Terry Norris Grey Hawk Davis, filed. Motion Docket Date 6/11/2012. (Attachments: # 1 Attachment to Complaint as to ROBBIE GOODMAN, # 2 Attachment to Complaint as to ROBBIE GOODMAN)(vrios, ) (Entered: 05/22/2012)
6 Prisoner Trust Fund Account Statement as to ROBBIE GOODMAN, filed. (vrios, ) (Entered: 05/22/2012)
7 NOTICE of Exclusion, filed. (vrios, ) (Entered: 05/22/2012)
8 NOTICE to Pro Se Litigant. Party notified, filed. (vrios, ) (Entered: 05/22/2012)
9 ORDER for Initial Partial Filing Fee and Collection Order as to Terry Norris Grey Hawk Davis; granting 2 MOTION/APPLICATION to Proceed In Forma Pauperis.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lsmith, ) (Entered: 05/24/2012)
10 NOTICE of Setting. Parties notified. Evidentiary Hearing by Telephone Conference set for 6/21/2012 at 03:00 PM before Magistrate Judge B. Janice Ellington, filed. (amireles, ) (Entered: 05/24/2012)
11 LETTER MOTION Issuance of an Emergency Restraining OrderMotions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 6/21/2012. (Attachments: # 1 restraining order, # 2 declaration statement, # 3 envelope)(lrivera, ) (Entered: 06/04/2012)
12 NOTICE TO THE COURT re: duplicate case number by Teddy Norris Grey Hawk Davis, filed. (Attachments: # 1 Envelope)(amireles, ) (Entered: 06/06/2012)

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06/08/2012 06/12/2012 06/20/2012
06/21/2012
06/21/2012 06/22/2012
06/22/2012 06/25/2012
06/26/2012 07/05/2012 07/12/2012 07/13/2012 07/19/2012 07/25/2012 07/25/2012 08/06/2012
08/07/2012

13 SWORN AFFIDAVIT of Teddy Norris Grey Hawk Davis, filed.(amireles, ) (Entered: 06/08/2012)
14 ORDER TO CONSOLIDATE CASES: Lead Case No. 2:12cv166 and Member Case No. 2:12cv169 (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lsmith, ) (Entered: 06/12/2012)
15 MOTION to Consolidate Lead Case No. 2:12cv166 and Member Case No. 2:12cv169Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 7/11/2012. (Attachments: # 1 Envelope)(lsmith, ) (Entered: 06/20/2012)
Minute Entry for proceedings held before Magistrate Judge B. Janice Ellington. EVIDENTIARY HEARING BY TELEPHONE held on 6/21/2012. Discussion of case. Orders to be entered. Clerk to mail to plaintiff copies of docket sheets for cases C−12−166 and C−12−169. Appearances:Teddy Norris Grey Hawk Davis, pro se.(Digital # 2:59:30 − 4:16:16)(ERO:Brian Garcia), filed.(dperez, ) (Entered: 06/21/2012)
***Current docket sheet mailed to plaintiff., filed. (dperez, ) (Entered: 06/21/2012)
16 ORDER CONCERNING PARTIES AND ORDER ON PENDING MOTIONS granting 5 Motion for Joinder; denying as moot 11 Motion; denying as moot 15 Motion to Consolidate Cases.(Signed by Magistrate Judge B. Janice Ellington) Robbie Dow Goodman, TDCJ−CID # 758386, is added as a plaintiff to this lawsuit, and the Clerk is instructed to note such on the docket, and to include Mr. Goodman in the style of this case. Plaintiff Goodman is granted leave to proceed in forma pauperis, and a separate collection order will be entered. Parties notified.(mserpa, ) (Entered: 06/22/2012)
17 MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL denying 4 Motion to Appoint.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, ) (Entered: 06/22/2012)
18 COLLECTION ORDER. Copy of this Order will be sent to TDCY − Office of the General Counsel, P. O. Box 13084, Austin, TX 78711, per this ORDER. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lsmith, ) Modified on 6/25/2012 (lsmith, ). (Entered: 06/25/2012)
19 SWORN STATEMENT of Robbie Goodman, filed.(vrios, ) (Entered: 06/26/2012)
20 MOTION to Correct Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 7/26/2012. (amireles, ) (Entered: 07/06/2012)
21 MOTION to Add Defendants to Suit. Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 8/2/2012. (vrios, ) (Entered: 07/12/2012)
22 ORDER FOR SERVICE OF PROCESS (Signed by Magistrate Judge B. Janice Ellington) (Attachments: # 1 Plaintiffs' Original Complaint, # 2 Order Concerning Parties) Parties notified.(mserpa, ) (Entered: 07/13/2012)
23 AO 435 TRANSCRIPT ORDER FORM by Celamaine Cunniff. This is to order a transcript of Evidentiary Hearing held on 6/21/2012 before Magistrate Judge B. Janice Ellington (Original), filed. (mlothmann) (Entered: 07/19/2012)
24 NOTICE TO COURT CLERK by Teddy Norris Grey Hawk Davis, filed. (mserpa, ) (Entered: 07/25/2012)
25 DECLARATION STATEMENT of Teddy Norris Grey Hawk Davis, filed.(mserpa, ) (Entered: 07/25/2012)
26 TRANSCRIPT re: EVIDENTIARY HEARING BY TELEPHONE CONFERENCE held on 06−21−12 before Magistrate Judge B. Janice Ellington. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Release of Transcript Restriction set for 11/5/2012., filed. (esaenz, ) (Entered: 08/06/2012)
27 Notice of Filing of Official Transcript as to 26 Transcript. Party notified, filed. (dterrell, ) (Entered: 08/07/2012)

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08/16/2012
08/16/2012 08/27/2012 08/28/2012
08/30/2012
09/07/2012 09/07/2012 09/07/2012 09/13/2012 09/17/2012 09/17/2012 09/17/2012 09/17/2012
09/17/2012
09/17/2012
09/24/2012 09/24/2012

28 MOTION TO REQUEST EMERGENCY TELEPHONE CONFERENCE( Motion Docket Date 9/6/2012.)re: 21 MOTION to Add Defendants to Suit, 1 Complaint, 20 MOTION to Correct Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. (Attachments: # 1 Envelope)(amireles, ) (Entered: 08/17/2012)
29 MOTION Requesting Temporary Restraining Order/Preliminary Injunction Relief( Motion Docket Date 9/6/2012.)Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. (amireles, ) (Entered: 08/17/2012)
30 ANSWER to Complaint with Jury Demand by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 08/27/2012)
31 MOTION to Correct Motions referred to B. Janice Ellington. by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. Motion Docket Date 9/18/2012. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 08/28/2012)
32 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) & 12(b)(6) Motions referred to B. Janice Ellington. by Shawna Mitchell, filed. Motion Docket Date 9/20/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Cunniff, Celamaine) (Entered: 08/30/2012)
33 OBJECTIONS to 31 MOTION to Correct, filed by Teddy Norris Grey Hawk Davis. (Attachments: # 1 Envelope)(amireles, ) (Entered: 09/07/2012)
34 MOTION to Exclude Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 9/28/2012. (Attachments: # 1 Envelope)(amireles, ). Clerk notes duplicate image of D.E.# 33. (Entered: 09/07/2012)
35 ACKNOWLEDGMENT OF SERVICE by Robbie Dow Goodman, filed. Clerk notes: damaged mail. (amireles, ) (Entered: 09/07/2012)
36 NOTICE of Initial Disclosures to Plaintiff by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 09/13/2012)
37 ORDER denying 28 Emergency Motion for Emergency for Telephone Conference. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(vrios, ) (Entered: 09/17/2012)
38 ORDER FOR SERVICE ON TX ATTORNEY GENERAL (Signed by Magistrate Judge B. Janice Ellington) (Attachments: # 1 DE # 1 Original Complaint, # 2 DE # 16 Order Concerning Parties) Parties notified.(amireles, ) (Entered: 09/17/2012)
39 ORDER granting in part and denying in part 21 Motion to Add Defendants. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(vrios, ) (Entered: 09/17/2012)
40 ORDER granting 31 Defendants' Motion to Correct; denying without prejudice as premature 34 Plaintiff's Motion to Exclude; granting in part and denying in part 20 Plaintiff Davis' Motion to Correct.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(vrios, ) (Entered: 09/17/2012)
41 MEMORANDUM AND RECOMMENDATIONS to Deny re 29 Plaintiff Davis' MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction. Objections to M&R due by 10/1/2012(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(vrios, ) (Entered: 09/17/2012)
42 MOTION ProtectionMotions referred to B. Janice Ellington. by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. Motion Docket Date 10/9/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Cunniff, Celamaine) (Entered: 09/17/2012)
43 MOTION for Appointment of CounselMotions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 10/15/2012. (Attachments: # 1 Envelope)(lsmith, ) (Entered: 09/24/2012)
44 MOTION to Dismiss Deft. Shawna Mitchell Motions referred to B. Janice Ellington. by Teddy Norris Grey Hawk Davis, Robbie Dow Goodman, filed. Motion Docket Date

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09/25/2012 09/27/2012 10/02/2012 10/03/2012 10/09/2012 10/09/2012 10/10/2012
10/11/2012 10/16/2012 10/31/2012
11/01/2012 11/01/2012
11/05/2012 11/07/2012 11/08/2012
11/09/2012

10/15/2012. (Attachments: # 1 Proposed Order, # 2 Envelope)(lsmith, ) (Entered: 09/24/2012)
45 White Card received indicating receipt of DE #41, M&R on 9/21/12, by Teddy Norris Grey Hawk Davis, filed.(lsmith, ) (Entered: 09/25/2012)
46 White Card Receipt Returned regarding DE# 41 Memorandum and Recommendation by Robbie Dow Goodman, filed.(vrios, ) (Entered: 09/27/2012)
47 MEMORANDUM OPINION AND ORDER denying 43 MOTION for Appointment of Counsel (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lsmith, ) (Entered: 10/02/2012)
48 OBJECTIONS to 41 Memorandum and Recommendations, filed by Teddy Norris Davis, Robbie Dow Goodman. (Attachments: # 1 Exhibit A, # 2 Envelope)(lsmith, ) (Entered: 10/03/2012)
49 NOTICE of 1st Supplemental Disclosures to Plaintiff Davis by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 10/09/2012)
50 NOTICE of 1st Supplemental Disclosures to Plaintiff Goodman by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 10/09/2012)
51 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) Motions referred to B. Janice Ellington. by Clint Morris, filed. Motion Docket Date 10/31/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Cunniff, Celamaine) (Entered: 10/10/2012)
52 MOTION for Rule 7(a) ReplyMotions referred to B. Janice Ellington. by Madeleine Ortiz, filed. Motion Docket Date 11/1/2012. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 10/11/2012)
53 ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 29 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lsmith, ) (Entered: 10/16/2012)
54 MOTION Request of First Set of Interrogatories to be AnsweredMotions referred to B. Janice Ellington. by Teddy Norris Davis, filed. Motion Docket Date 11/21/2012. (Attachments: # 1 requested documentation, # 2 cover letter, # 3 envelope)(lrivera, ) (Entered: 11/01/2012)
55 MOTION for Rule 7(a) ReplyMotions referred to B. Janice Ellington. by William Stephens, filed. Motion Docket Date 11/23/2012. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 11/01/2012)
56 MOTION to Dismiss or in the Alternative, Motion for Rule 7(a) Reply Motions referred to B. Janice Ellington. by Sam Longoria, filed. Motion Docket Date 11/23/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Cunniff, Celamaine) (Entered: 11/01/2012)
57 RESPONSE to 51 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) filed by Teddy Norris Davis, Robbie Dow Goodman. (lcayce, ) (Entered: 11/05/2012)
58 CERTIFICATE OF SERVICE of 57 Response to Motion by Teddy Norris Davis, Robbie Dow Goodman, filed.(lcayce, ) (Entered: 11/07/2012)
59 MEMORANDUM AND RECOMMENDATION TO DISMISS DEFENDANT SHAWNA MITCHELL re 44 , 32 , Objections to M&R due by 11/23/2012(Signed by Magistrate Judge B. Janice Ellington) Parties notified. Copy mailed to Teddy Norris Davis and Robbie Dow Goodman with receipt card. (amireles, ) (Entered: 11/08/2012)
60 ORDER striking 54 Motion Request of First Set of Interrogatories to be Answered. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 11/09/2012)

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11/09/2012 11/09/2012 11/15/2012 11/16/2012 11/16/2012 11/20/2012 11/20/2012 11/21/2012 11/23/2012 11/23/2012 11/23/2012 11/26/2012
11/27/2012 11/30/2012 12/05/2012 12/05/2012

61 MEMORANDUM AND RECOMMENDATION TO GRANT MOTION FOR PROTECTION 42 . Objections to M&R due by 11/23/2012 (Signed by Magistrate Judge B. Janice Ellington) Parties notified. Copy mailed to Teddy Norris Davis and Robbie Dow Goodman with receipt card.(amireles, ) (Entered: 11/09/2012)
62 MOTION to Dismiss Defendant Mitchell with Prejudice pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)Motions referred to B. Janice Ellington. by Teddy Norris Davis, filed. Motion Docket Date 11/30/2012. (Attachments: # 1 Envelope)(amireles, ) (Entered: 11/13/2012)
63 OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR RULE 7(a) REPLY re 52 .(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 11/15/2012)
64 ORDER DISMISSING CLAIMS AGAINST DEFENDANT SHAWNA MITCHELL. mooting 32 Motion to Dismiss; granting 44 Motion to Dismiss; granting 62 Motion to Dismiss.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, ) (Entered: 11/16/2012)
65 MEMORANDUM AND RECOMMENDATION re 51 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b). Objections to M&R due by 11/30/2012(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(vrios, ) (Entered: 11/20/2012)
66 Defendants' Thaler, Pierce, Morris, Ortiz, Longoria and Stephens' Notice of Second Supplemental Disclosures to Plaintiff Davis by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 11/20/2012)
67 Defendants Thaler, Pierce, Morris, Ortiz, Longoria and Stephens' Notice of Filing Second Supplemental Disclosures to Plaintiff Goodman by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 11/20/2012)
68 REPLY to Response to 51 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), filed by Clint Morris. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 11/21/2012)
69 ACKNOWLEDGMENT OF SERVICE by Teddy Norris Davis on 11/19/12 re: DE 61, filed.(lcayce, ) (Entered: 11/23/2012)
70 ACKNOWLEDGMENT OF SERVICE by Teddy Norris Davis on 11/19/12 re: DE 59, filed.(lcayce, ) (Entered: 11/23/2012)
71 MOTION for Leave to File Amended Complaint; Motions referred to B. Janice Ellington. by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 12/14/2012. (lcayce, ) (Entered: 11/23/2012)
72 Mail Returned Undeliverable as to Robbie Dow Goodman re: 64 Order on Motion to Dismiss,, 63 Order on Motion for Miscellaneous Relief, filed. Envelope marked "Insufficient Address" (Clerk notation: prisoner's ID number was incorrect as 168949. Clerk editing ID # to correctly reflect 758386. D.E. 63 and 64 resent to prisoner) (lcayce, ) (Entered: 11/26/2012)
73 NOTICE Vacation Advisory to the Court by Shawna Mitchell, Clint Morris, Madeleine Ortiz, Billy Pierce, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 11/27/2012)
74 OBJECTIONS to 65 Memorandum and Recommendations, filed by Clint Morris. (Cunniff, Celamaine) (Entered: 11/30/2012)
75 ANSWER to Complaint with Jury Demand by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 12/05/2012)
76 RESPONSE to 71 MOTION for Leave to File Amended Complaint filed by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler. (Cunniff, Celamaine) (Entered: 12/05/2012)

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12/06/2012 12/11/2012 12/14/2012 01/07/2013
01/14/2013 01/14/2013 01/14/2013 01/18/2013 01/24/2013 01/24/2013 01/25/2013
01/25/2013 01/25/2013
01/25/2013 02/11/2013 02/11/2013

77 MOTION for Leave to File Amended Complaint; Motions referred to B. Janice Ellington. by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 12/27/2012. (lcayce, ) (Entered: 12/06/2012)
78 RESPONSE to 77 MOTION for Leave to File Amended Complaint filed by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler. (Cunniff, Celamaine) (Entered: 12/11/2012)
79 RESPONSE to 52 MOTION for Rule 7(a) Reply filed by Teddy Norris Davis. (Attachments: # 1 Envelope)(amireles, ) (Entered: 12/17/2012)
80 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: granting in part and denying in part 51 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), adopting 65 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, ) (Entered: 01/08/2013)
81 NOTICE of Setting (Telephone Conference) as to 42 MOTION for Protection. Parties notified. Motion Hearing set for 1/22/2013 at 03:00 PM before Judge Nelva Gonzales Ramos, filed. (amireles, ) (Entered: 01/14/2013)
Corrective Entry: 81 Notice of Setting was recorded on the wrong docket, filed. Motion Hearing to be held before U.S. Magistrate Judge B. Janice Ellington. (amireles, ) (Entered: 01/14/2013)
***Set/Reset Hearings: Motion Hearing set for 1/22/2013 at 03:00 PM before Magistrate Judge B. Janice Ellington re 42 ; 81 (amireles, ) (Entered: 01/14/2013)
82 AMENDED NOTICE of Setting re: 42 MOTION Protection. Parties notified. Motion Hearing by telephone conference set for 1/25/2013 at 03:00 PM before Magistrate Judge B. Janice Ellington, filed. (lcayce, ) (Entered: 01/18/2013)
83 NOTICE of Third Supplemental Disclosures to Plaintiff Davis by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 01/24/2013)
84 NOTICE of Third Supplemental Disclosures to Plaintiff Goodman by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 01/24/2013)
Minute Entry for proceedings held before Magistrate Judge B. Janice Ellington. MOTION HEARING BY TELEPHONE CONFERENCE held on 1/25/2013. Discussion of motion for protection. Defense withdraws motion for protection. Court grants motion to amend complaint and directs plaintiffs to file amended complaint within two weeks. Telephone conference to be held in three weeks. Plaintiffs request copy of current docket sheet. Clerk to mail docket sheet to plaintiffs. Appearances:Teddy Norris Davis, Robbie Dow Goodman, pro se. Celamaine Cunniff.(Digital # 3:00:15 − 3:24:53)(ERO:Brian Garcia), filed.(dperez, ) (Entered: 01/25/2013)
*** Current docket sheet mailed to plaintiffs Davis and Goodman, filed. (dperez, ) (Entered: 01/25/2013)
85 ORDER granting 77 MOTION for Leave to File Amended Complaint, 71 MOTION for Leave to File Amended Complaint, granting defendants' oral motion to withdraw 42 MOTION for Protection ( Telephone Conference set for 2/22/2013 at 03:00 PM before Magistrate Judge B. Janice Ellington) The Clerk shall mail to each plaintiff an updated copy of the docket sheet.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, ) (Entered: 01/25/2013)
86 NOTICE of Setting. Parties notified. Telephone Conference set for 2/22/2013 at 03:00 PM before Magistrate Judge B. Janice Ellington, filed. (mserpa, ) (Entered: 01/25/2013)
87 CONSENT to Proceed Before a Magistrate Judge by Teddy Norris Davis, Robbie Dow Goodman, filed.(vrios, ) (Entered: 02/12/2013)
88 AMENDED Complaint against All Defendants filed by Robbie Dow Goodman, Teddy Norris Davis.(vrios, ) (Additional attachment(s) added on 2/12/2013: # 1 envelope)

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02/22/2013
02/22/2013 02/25/2013 03/05/2013
03/18/2013 03/21/2013 03/25/2013 03/25/2013 03/28/2013 03/28/2013 04/05/2013 04/18/2013

(vrios, ). (Entered: 02/12/2013)
Minute Entry for proceedings held before Magistrate Judge B. Janice Ellington. TELEPHONE CONFERENCE held on 2/22/2013. Plaintiffs agreed that there were three RLUIPA claims for declaratory and injunctive relief against Director Rick Thaler challenging TDCJs policy related to traditional pipe ceremonies, the carrying of a medicine pouch, and the wearing of a kouploc. Plaintiffs orally moved to dismiss all RLUIPA claims against defendants Ortiz, Stephens, Longoria, and Pierce, with the understanding that only Director Thaler has the authority to change policy. Plaintiffs also retain their First Amendment Claim against Defendant Morris for monetary relief. Counsel for defendants Ms. Cuniff agreed that her motions for a Rule 7(a) reply and to dismiss should be denied as moot. Order to be presented to District Court. Discovery and dispositive motions due within 90 days with responses to motions due within 30 days after filing of motions. Order to be entered. Copies of Fifth Circuit opinion in 06−41165 Odneal v. Pierce, et al. mailed to plaintiffs Davis and Goodman. Appearances:Teddy Norris Davis, Robbie Dow Goodman. Celamaine Cunniff.(Digital # 3:00:04 − 3:39:45)(ERO:Arlene Benavidez), filed.(dperez, ) (Entered: 02/22/2013)
89 ORDER Discovery due by 5/24/2013. Dispositive Motion Filing due by 5/24/2013.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, ) (Entered: 02/25/2013)
90 Order Dismissing Defendants' Ortiz, Stephens, Longoria, and Pierce and Denying as Moot Defendants' Motion to Dismiss or in the Alternative for a Rule 7(a) Reply re 56 , 55 (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, ) (Entered: 02/25/2013)
91 MOTION to Compel Plaintiffs to Respond to Defendants' First Set of InterrogatoriesMotions referred to B. Janice Ellington. by Clint Morris, Rick Thaler, filed. Motion Docket Date 3/26/2013. (Attachments: # 1 Exhibit A: Defendants' First Set of Interrogatories to Plaintiff Davis, # 2 Exhibit B: Defendants' First Set of Interrogatories to Plaintiff Goodman, # 3 Exhibit C: Offender Legal Mail Logs, # 4 Proposed Order)(Cunniff, Celamaine) (Entered: 03/05/2013)
92 RESPONSE to 91 MOTION to Compel Plaintiffs to Respond to Defendants' First Set of Interrogatories filed by Teddy Norris Davis. (mserpa, ) (Entered: 03/18/2013)
93 ORDER denying without Prejudice Motion to Compel 91 .(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 03/21/2013)
94 NOTICE Defendants Rick Thaler, Bill Pierce, Clint Morris, Madeleine Ortiz, Samuel Longoria and William Stephens' Notice of Fourth Supplemental Disclosures to Plaintiff Davis by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 03/25/2013)
95 NOTICE Defendants Rick Thaler, Bill Pierce, Clint Morris, Madeleine Ortiz, Samuel Longoria and William Stephens' Notice of Fourth Supplemental Disclosures to Plaintiff Goodman by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, Rick Thaler, filed. (Cunniff, Celamaine) (Entered: 03/25/2013)
96 Second MOTION to Compel Plaintiffs to Respond to Defendants' First Set of InterrogatoriesMotions referred to B. Janice Ellington. by Clint Morris, Rick Thaler, filed. Motion Docket Date 4/18/2013. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Cunniff, Celamaine) (Entered: 03/28/2013)
97 (WITHDRAWN SEE 109 ) MOTION to Compel Plaintiff Davis to Respond Completely to Defendant's Second Set of InterrogatoriesMotions referred to B. Janice Ellington. by Clint Morris, filed. Motion Docket Date 4/18/2013. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Cunniff, Celamaine) Modified on 5/10/2013 (amireles, ). (Entered: 03/28/2013)
98 Letter from Teddy Norris Davis re: discovery, filed. (dterrell, ) (Entered: 04/05/2013)
99 RESPONSE in Opposition to 96 Second MOTION to Compel Plaintiffs to Respond to Defendants' First Set of Interrogatories, filed by Teddy Norris Davis, Robbie Dow Goodman. (amireles, ) (Additional attachment(s) added on 4/18/2013: # 1 Envelope) (amireles, ). (Entered: 04/18/2013)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 11 of 27

04/18/2013 04/18/2013 04/22/2013 04/22/2013 04/26/2013 04/29/2013
04/29/2013
04/29/2013
04/29/2013 05/09/2013
05/09/2013
05/15/2013 05/20/2013 05/20/2013
05/30/2013 05/30/2013 06/17/2013 07/01/2013

100 REQUEST for Admissions by Teddy Norris Davis, Robbie Dow Goodman, filed. (Attachments: # 1 Envelope)(amireles, ) (Entered: 04/18/2013)
101 Letter from Teddy Davis re: mail, filed. (amireles, ) (Entered: 04/18/2013)
102 CONSENT to Proceed Before a Magistrate Judge by Clint Morris, Rick Thaler, filed.(Cunniff, Celamaine) (Entered: 04/22/2013)
103 Letter regarding mail filed by Teddy Norris Davis, filed.(vrios, ) (Entered: 04/23/2013)
108 Letter from Teddy Norris Davis re: production of evidence, filed. (Attachments: # 1 Envelope) (amireles, ) (Entered: 04/30/2013)
104 MOTION to Compel Plaintiff Goodman to Respond to Defendant's second Set of InterrogatoriesMotions referred to B. Janice Ellington. by Clint Morris, filed. Motion Docket Date 5/20/2013. (Attachments: # 1 Exhibit A: Defendant Morris' Second Set of Interrogatories to Plaintiff Goodman, # 2 Exhibit B: Defendant Morris' Amended Second Set of Interrogatories to Plaintiff Goodman, # 3 Exhibit C: Signed CM/RRR Green Receipt Cards, # 4 Proposed Order)(Cunniff, Celamaine) (Entered: 04/29/2013)
105 MOTION to Withdraw 96 Second MOTION to Compel Plaintiffs to Respond to Defendants' First Set of Interrogatories Motions referred to B. Janice Ellington. by Clint Morris, Rick Thaler, filed. Motion Docket Date 5/20/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 04/29/2013)
106 MOTION to Withdraw 97 MOTION to Compel Plaintiff Davis to Respond Completely to Defendant's Second Set of Interrogatories Motions referred to B. Janice Ellington. by Clint Morris, Rick Thaler, filed. Motion Docket Date 5/20/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 04/29/2013)
107 ORDER OF REASSIGNMENT. Case reassigned to Magistrate Judge B. Janice Ellington for all further proceedings. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, ) (Entered: 04/29/2013)
109 ORDER granting 106 Motion to Withdraw; withdrawing 97 MOTION to Compel Plaintiff Davis to Respond Completely to Defendant's Second Set of Interrogatories.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 05/10/2013)
110 ORDER granting 105 Motion to Withdraw; withdrawing 96 Second MOTION to Compel Plaintiffs to Respond to Defendants' First Set of Interrogatories.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 05/10/2013)
111 ANSWER to Interrogatories by Robbie Dow Goodman, filed.(lcayce, ) (Entered: 05/16/2013)
112 MOTION for Extension of Time to File Motion for Summary Judgment with Brief in Support by Clint Morris, Rick Thaler, filed. Motion Docket Date 6/10/2013. (Cunniff, Celamaine) (Entered: 05/20/2013)
113 MOTION to Withdraw 104 MOTION to Compel Plaintiff Goodman to Respond to Defendant's second Set of Interrogatories by Clint Morris, filed. Motion Docket Date 6/10/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 05/20/2013)
114 ORDER granting 112 Motion for Extension of Time Dispositive Motion Filing due by 7/8/2013.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, ) (Entered: 05/30/2013)
115 ORDER granting 113 Motion to Withdraw; withdrawing 104 MOTION to Compel Plaintiff Goodman to Respond to Defendant's second Set of Interrogatories.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lrivera, ) (Entered: 05/31/2013)
116 ACKNOWLEDGMENT OF SERVICE by Teddy Norris Davis on 6/3/13 re: DE 115, filed.(lcayce, ) (Entered: 06/18/2013)
117 NOTICE Defendants' Notice of Substitution of Parties by Sam Longoria, Clint Morris, Madeleine Ortiz, Billy Pierce, William Stephens, filed. (Cunniff, Celamaine) (Entered: 07/01/2013)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 12 of 27

07/08/2013 07/08/2013 07/08/2013 07/08/2013
07/09/2013
07/09/2013 07/10/2013 07/10/2013 07/18/2013 07/18/2013 07/18/2013 07/19/2013 07/19/2013 07/23/2013

118 NOTICE of Fifth Supplemental Disclosures by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 07/08/2013)
119 MOTION to Seal Appendix 298−309 and Appendix 310−323 to Defendants Stephens and Morris' Motion for Summary Judgment by Clint Morris, William Stephens, filed. Motion Docket Date 7/29/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 07/08/2013)
120 MOTION for Summary Judgment with Brief in Support by Clint Morris, William Stephens, filed. Motion Docket Date 7/29/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 07/08/2013)
121 APPENDIX re: 120 MOTION for Summary Judgment with Brief in Support by Clint Morris, William Stephens, filed. (Attachments: # 1 App. 001−037, # 2 App. 038, # 3 App. 039−066, # 4 App. 067, # 5 App. 068−071, # 6 App. 072−073, # 7 App. 074−083, # 8 App. 084−090, # 9 App. 091−095, # 10 App. 096−099, # 11 App. 100−101, # 12 App. 102−103, # 13 App. 104−108, # 14 App. 109−110, # 15 App. 111−114, # 16 App. 115−120, # 17 App. 121−126, # 18 App. 127−129, # 19 App. 130−143, # 20 App. 144−156, # 21 App. 157−162, # 22 App. 163−165, # 23 App. 166−179, # 24 App. 180−185, # 25 App. 186−197, # 26 App. 198−200, # 27 App. 201−203, # 28 App. 204−208, # 29 App. 209, # 30 App. 210−226, # 31 App. 227−244, # 32 App. 245−247, # 33 App. 248−252, # 34 App. 253−254, # 35 App. 255−258, # 36 App. 259−269, # 37 App. 270−271, # 38 App. 272−297)(Cunniff, Celamaine) (Entered: 07/09/2013)
122 APPENDIX re: 120 MOTION for Summary Judgment with Brief in Support by Clint Morris, William Stephens, filed. (Attachments: # 1 App. 324, # 2 App. 325−329, # 3 App. 330−332, # 4 App. 333−337, # 5 App. 338−342, # 6 App. 343−356, # 7 App. 357−360, # 8 App. 361−363, # 9 App. 364−365, # 10 App. 366−, # 11 App. 367−369, # 12 App. 370−381, # 13 App. 382−396, # 14 App. 397−400, # 15 App. 401, # 16 App. 402−409, # 17 App. 410−413, # 18 App. 414−418, # 19 App. 419−422, # 20 App. 423−424, # 21 App. 425−445, # 22 App. 446−449, # 23 App. 450−452, # 24 App. 453−454)(Cunniff, Celamaine) (Entered: 07/09/2013)
123 Sealed Event, filed. (With attachments) (Entered: 07/09/2013)
124 MOTION for Leave to File Defendants Stephens and Morris' Supplemental Motion for Summary Judgment with Brief in Support by Clint Morris, William Stephens, filed. Motion Docket Date 7/31/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 07/10/2013)
125 SUPPLEMENT to 120 MOTION for Summary Judgment with Brief in Support by Clint Morris, William Stephens, filed.(Cunniff, Celamaine) (Entered: 07/10/2013)
126 Plaintiffs Motion to Opposition to Defendants Fifth Supplemental Disclosures re: 118 ; MOTION for Evidentiary Hearing by Teddy Norris Davis, filed. Motion Docket Date 8/8/2013. (Attachments: # 1 Envelope)(amireles, ) (Entered: 07/18/2013)
127 ORDER granting 119 Motion to Seal Appendix 298−309 and Appendix 310−323 to Defendants Stephens and Morris' Motion for Summary Judgment.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 07/18/2013)
128 ORDER granting 124 MOTION for Leave to File Defendants Stephens and Morris' Supplemental Motion for Summary Judgment with Brief in Support ( Plaintiffs' Responses due by 8/19/2013.)(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, ) (Entered: 07/18/2013)
Participants edited, William Stephens substituted as respondent. (amireles, ) (Entered: 07/19/2013)
129 MOTION for Summary Judgment Default Against the Defendants by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 8/9/2013. (Attachments: # 1 Envelope)(amireles, ) (Entered: 07/22/2013)
130 RESPONSE to 126 MOTION for Evidentiary Hearing re: 118 Notice (Other) Defendants' Response to Plaintiffs' Opposition to Defendants' Fifth Supplemental Disclosures, filed by Clint Morris, William Stephens. (Attachments: # 1 Exhibit A:

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 13 of 27

07/24/2013 07/24/2013 07/31/2013 08/13/2013 08/21/2013 08/28/2013 08/28/2013 09/09/2013 09/12/2013
10/23/2013 10/25/2013 10/28/2013 10/28/2013
11/01/2013 11/06/2013 11/22/2013

Defendants Morris and Stephens' Fifth Supplemental Disclosures (without the attachments), # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 07/23/2013)
131 RESPONSE to 129 MOTION for Summary Judgment filed by Clint Morris, William Stephens. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 07/24/2013)
132 MOTION/RESPONSE in Opposition to 124 MOTION for Leave to File Defendants Stephens and Morris' Supplemental Motion for Summary Judgment with Brief in Support, filed by Teddy Norris Davis, Robbie Dow Goodman. (vrios, ) (Entered: 07/24/2013)
133 MOTION Requesting a Forty−Five Day Extension of Time to Prepare the Answer to Defendants' Summary Judgment by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 8/21/2013. (Attachments: # 1 Envelope)(amireles, ) (Entered: 07/31/2013)
134 ADVISORY by Clint Morris, William Stephens, filed. (Attachments: # 1 Attachment)(Cunniff, Celamaine) (Entered: 08/13/2013)
135 MOTION to Intervene by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 9/11/2013. (Attachments: # 1 Envelope)(amireles, ) (Entered: 08/21/2013)
136 MOTION for Extension of Time to File Response to Motion for Summary Judgment by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 9/18/2013. (lcayce, ) (Entered: 08/29/2013)
137 LETTER TO THE COURT from Teddy Davis and Robbie Goodman, filed. (lcayce, ) (Entered: 08/29/2013)
138 ADVISORY by William Stephens, filed. (Attachments: # 1 Attachment)(Cunniff, Celamaine) (Entered: 09/09/2013)
139 ORDER GRANTING MOTIONS FOR EXTENSION OF TIME AND DENYING AS MOOT MOTIONS TO INTERVENE AND FOR EVIDENTIARY HEARING denying as moot 126 Motion for Hearing; granting 133 Motion for Extension of Time( Responses due by 10/21/2013.); denying as moot 135 Motion to Intervene; granting 136 Motion for Extension of Time( Responses due by 10/21/2013.).(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2) (Entered: 09/13/2013)
140 MOTION to Stay by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 11/13/2013. (vrios, 2) (Entered: 10/23/2013)
141 ORDER Denying Without Prejudice 140 Motion to Stay.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(gchavez, 2) (Entered: 10/25/2013)
142 Letter to the District Court from Teddy Davis and Robbie Goodman, filed. (vrios, 2) (Entered: 10/29/2013)
143 RESPONSE to 129 MOTION for Summary Judgment filed by Teddy Norris Davis, Robbie Dow Goodman. (vrios, 2) (Additional attachment(s) added on 10/29/2013: # 1 Continuation, # 2 Continuation, # 3 Continuation, # 4 Continuation, # 5 Exhibit 1, # 6 Exhibit 2−4, # 7 Exhibit 5, # 8 Continuation Exhibit 5, # 9 Cover Sheet, # 10 Cover Letter, # 11 Envelope) (vrios, 2). (Entered: 10/29/2013)
144 MOTION for Extension of Time to File Reply to Plaintiffs' Response to the Motion for Summary Judgment by Clint Morris, William Stephens, filed. Motion Docket Date 11/22/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 11/01/2013)
145 ORDER granting 144 Motion for Extension of Time; Motion−related deadline set re: 129 MOTION for Summary Judgment. Replies due by 11/22/2013.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2) (Entered: 11/06/2013)
146 Second MOTION for Extension of Time to File Reply to Plaintiffs' Response to the Motion for Summary Judgment by Clint Morris, William Stephens, filed. Motion

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 14 of 27

11/25/2013
11/26/2013 12/12/2013 12/20/2013 01/06/2014
01/08/2014 01/09/2014 01/29/2014 01/31/2014 02/13/2014 02/26/2014 02/27/2014
02/27/2014 03/05/2014 04/02/2014 04/02/2014
04/02/2014

Docket Date 12/13/2013. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 11/22/2013)
147 ORDER GRANTING DEFENDANTS' SECOND MOTION FOR AN EXTENSION OF TIME TO FILE A REPLY TO THE MOTION FOR SUMMARY JUDGMENT; granting 146 Motion for Extension of Time. Replies due by 11/26/2013.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2) (Entered: 11/25/2013)
148 REPLY to Response to 120 MOTION for Summary Judgment with Brief in Support, filed by Clint Morris, William Stephens. (Attachments: # 1 Appendix, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 11/26/2013)
149 MOTION for complimentary copy of summary judgment motion by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 1/2/2014. (mserpa, 2) (Entered: 12/12/2013)
150 ORDER ON MOTION FOR COMPLIMENTARY COPY granting 149 Motion.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2) (Entered: 12/20/2013)
151 MOTION Requesting the District Courts to File Their M & R on the Defendants' Summary Judgment to Stop Further Delays from Defendants by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 1/27/2014. (Attachments: # 1 Envelope)(amireles, 2) (Entered: 01/07/2014)
152 RESPONSE to 151 MOTION Requesting the Disrict Courts to Defendants' Advisory to the Court, filed by Clint Morris, William Stephens. (Cunniff, Celamaine) (Entered: 01/08/2014)
153 ORDER denying 151 Motion on Requesting a Ruling.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(jalvarez, 2) (Entered: 01/09/2014)
154 MOTION for Extension of Time to Reply to Defendant's Response to Summary Judgment by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 2/19/2014. (lrivera, 2) (Entered: 01/29/2014)
155 ORDER granting 154 Motion for Extension of Time. (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, 2) (Entered: 01/31/2014)
156 RESPONSE to 155 Order on Motion for Extension of Time, filed by Teddy Norris Davis, Robbie Dow Goodman. (lcayce, 2) (Entered: 02/13/2014)
157 CONSENT to Proceed Before a Magistrate Judge by William Stephens, filed.(Cunniff, Celamaine) (Main Document 157 replaced on 8/20/2014) (lcayce, 2). (Entered: 02/26/2014)
158 OPINION AND ORDER ON CROSS−MOTIONS FOR SUMMARY JUDGMENT denying 125 Motion for Summary Judgment; granting 129 Motion for Summary Judgment.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2) (Entered: 02/27/2014)
159 FINAL JUDGMENT (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2) (Entered: 02/27/2014)
160 REPLY to 148 Reply to Response to Motion, filed by Teddy Norris Davis. (Attachments: # 1 Continuation)(amireles, 2) (Entered: 03/06/2014)
161 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 158 Order on Motion for Summary Judgment, by Teddy Norris Davis, Robbie Dow Goodman (Filing fee $ 505), filed.(lcayce, 2) (Entered: 04/02/2014)
162 Notice of the Filing of an Appeal. DKT13 transcript order form was mailed to appellant (2 copies). Fee status: Not Paid. The following Notice of Appeal and related motions are pending in the District Court: 161 Notice of Appeal, filed.(lcayce, 2) (Entered: 04/02/2014)
163 MOTION for Reconsideration of 158 Order on Motion for Summary Judgment, by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 4/23/2014.

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 15 of 27

04/03/2014 04/04/2014 04/07/2014 04/15/2014 04/15/2014 04/18/2014 04/18/2014 04/18/2014 04/18/2014 04/18/2014 04/18/2014
04/22/2014
04/22/2014
04/24/2014 05/02/2014 05/16/2014 06/02/2014 06/06/2014 06/12/2014

(lcayce, 2) (Entered: 04/02/2014)
165 Notice of Assignment of USCA No. 14−40339 re: 161 Notice of Appeal, filed.(sscotch, 2) (Entered: 04/04/2014)
164 ORDER denying 163 Motion for Reconsideration.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2) (Entered: 04/04/2014)
166 APPELLATE IN FORMA PAUPERIS DEFICIENCY ORDER (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2) (Entered: 04/07/2014)
167 Certified Mail Receipt Returned, executed on 4/10/14 − receipt attached, access restricted to court users for privacy reasons −, filed. (lrivera, 2) (Entered: 04/16/2014)
168 Mail Receipt Returned, executed on 4/10/14 − receipt attached, access restricted to court users for privacy reasons −, filed. (lrivera, 2) (Entered: 04/16/2014)
169 MOTION for Leave to Appeal in forma pauperis by Robbie Dow Goodman, filed. Motion Docket Date 5/9/2014. (lcayce, 2) (Entered: 04/18/2014)
170 Prisoner Trust Fund Account Statement by Robbie Dow Goodman, filed. (lcayce, 2) (Entered: 04/18/2014)
171 MOTION for Leave to Appeal in forma pauperis by Teddy Norris Davis, filed. Motion Docket Date 5/9/2014. (lcayce, 2) (Entered: 04/18/2014)
172 Prisoner Trust Fund Account Statement by Teddy Norris Davis, filed. (lcayce, 2) (Entered: 04/18/2014)
173 MOTION/APPLICATION to Proceed In Forma Pauperis by Teddy Norris Davis, filed. Motion Docket Date 5/9/2014. (avleal, 1) (Entered: 04/21/2014)
174 DKT−13 TRANSCRIPT ORDER FORM by Teddy Noris Davis. This is to a copy of transcript order of 06/21/2012 and order a transcript of the Telephone Hearings February 22, 2013 before Judge Magistrate Judge B. Janice Ellington (Original). Court Reporter/Transcriber: Brian Garcia & Arlene Benavidez. This order form relates to the following: 161 Notice of Appeal, filed.(mxperez, 5) (Additional attachment(s) added on 4/21/2014: # 1 in−forma pauperis data) (mxperez, 5). (Entered: 04/21/2014)
175 ORDER granting 171 Motion for Leave to Appeal in forma pauperis and Collection Order.(Signed by Magistrate Judge B. Janice Ellington) Parties notified. Copy mailed to Inmate Trust Fund and TDCJ − Office of the General Counsel. (lcayce, 2) (Entered: 04/23/2014)
176 ORDER granting 169 Motion for Leave to Appeal in forma pauperis and Collection Order.(Signed by Magistrate Judge B. Janice Ellington) Parties notified. Copy mailed to Inmate Trust Fund and TDCJ − Office of the General Counsel. (lcayce, 2) (Entered: 04/23/2014)
177 ORDER denying as moot 173 Motion for Leave to Proceed in forma pauperis.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lrivera, 2) (Entered: 04/24/2014)
178 MOTION for Appointment of counsel and Expert Witness by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 5/23/2014. (Attachments: # 1 envelope)(lrivera, 2) (Entered: 05/02/2014)
179 MEMORANDUM OPINION AND ORDER denying 178 MOTION for Appointment of counsel (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2) (Entered: 05/16/2014)
180 MOTION for Transcript at Government Expense by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 6/23/2014. (amireles, 2) (Entered: 06/02/2014)
181 ORDER denying 180 Motion.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lrivera, 2) (Entered: 06/06/2014)
182 MOTION for Extension of Time to Prepare Appeal Brief by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 7/3/2014. (lcayce, 2) (Entered: 06/12/2014)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 16 of 27

06/13/2014 06/19/2014 07/10/2014 08/11/2014 09/05/2014 10/16/2014 11/06/2014 12/02/2014 01/22/2015 07/06/2016
07/06/2016 07/12/2016 07/18/2016 07/20/2016 07/20/2016 07/26/2016 07/26/2016 08/08/2016
08/09/2016

183 ORDER denying without prejudice 182 Motion for Extension of Time.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(jalvarez, 2) (Entered: 06/13/2014)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 161 Notice of Appeal USCA No. 14−40339, filed.(lcayce, 2) (Entered: 09/02/2014)
184 Appellant's BRIEF by Teddy Norris Davis, Robbie Dow Goodman, filed. Original forwarded to the Fifth Circuit Court of Appeals on 7/11/14. (amireles, 2) (Entered: 07/11/2014)
185 Transmittal Letter on Appeal Certified re: 161 Notice of Appeal. CDs containing the electronic record are being sent to appellees counsel. (USCA No. 14−40339), filed.(lcayce, 2) (Entered: 08/11/2014)
186 Letter requesting docket sheet by Teddy Norris Davis, filed. Docket sheet mailed to petitioner (Attachments: # 1 envelope)(lrivera, 2) (Entered: 09/09/2014)
187 Copy of Motion to the Fifth Circuit Court of Appeals Plaintiff's "Motion for Correction on Defendants and To Correct Caption of All Documents from Hereon Out" by Teddy Norris Davis, filed.(amireles, 2) (Entered: 10/16/2014)
188 MOTION To Correct Caption by Teddy Norris Davis, filed. Motion Docket Date 11/28/2014. (lrivera, 2) (Entered: 11/07/2014)
189 ORDER denying without prejudice 188 Motion to Correct Caption.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, 2) (Entered: 12/02/2014)
Partial Filing fee: $10.00 re: 9 Order for Initial Partial Filing Fee, receipt number CC008277, filed. (dterrell, 2) (Entered: 01/22/2015)
190 Order of USCA re: 161 Notice of Appeal ; USCA No. 14−40339. It is ordered and adjudged that the judgment of the District Court is affirmed in part and vacated in part and the cause is remanded to the District Court for further proceedings, filed.(dterrell, 2) (Entered: 07/07/2016)
191 Order of USCA re: 161 Notice of Appeal ; USCA No. 14−40339. This appeal is vacated and remanded in part for further proceedings, filed. (Attachments: # 1 Letter)(dterrell, 2) (Entered: 07/07/2016)
192 ORDER FOR ADDITIONAL BRIEFING AND EVIDENCE ON SUMMARY JUDGMENT. (Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2) (Entered: 07/12/2016)
193 MOTION for Appointment of Counsel and Expert Witness Assigned to this Case Before Trial by Teddy Norris Davis, filed. Motion Docket Date 8/8/2016. (lcayce, 2) (Entered: 07/18/2016)
194 RESPONSE IN OPPOSITION to 192 Order for Additional Briefing and Evidence on Summary Judgment, filed by Teddy Norris Davis, Robbie Dow Goodman. (lcayce, 2) (Entered: 07/20/2016)
195 DEMAND for Trial by Jury by Teddy Norris Davis, Robbie Dow Goodman, filed.(lcayce, 2) (Entered: 07/20/2016)
196 ORDER Striking Document re: 195 Jury Demand (Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2) (Entered: 07/26/2016)
197 OPINION AND ORDER denying without prejudice 193 Motion to Appoint Counsel.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2) (Entered: 07/26/2016)
198 Order of USCA − PER CURIAM re: 161 Notice of Appeal ; USCA No. 14−40339. Ordered that appellant's letter request to clarify opinion is granted, filed.(dterrell, 2) (Additional attachment(s) added on 8/9/2016: # 1 Letter) (dterrell, 2). (Entered: 08/09/2016)
199 NOTICE Defendants Morris and Davis' Notice of Sixth Supplemental Disclosures by Lorie Davis, Clint Morris, filed. (Cunniff, Celamaine) (Entered: 08/09/2016)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 17 of 27

08/10/2016
08/11/2016 08/11/2016 08/11/2016 08/11/2016 08/12/2016 08/12/2016
08/12/2016 09/28/2016 09/28/2016 09/28/2016 09/28/2016 09/28/2016 10/06/2016
10/11/2016 10/13/2016
10/21/2016 11/21/2016

200 MOTION to Strike Defendant Davis' Motion to Strike the Prior Testimony of Dr. George Sullivan under Daubert, Federal Rule of Evidence 702, Federal Rules of Civil Procedure 26(a)(2) and 56(c) by Lorie Davis, filed. Motion Docket Date 8/31/2016. (Attachments: # 1 Exhibit A: Defendants' Initial Disclosure, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 08/10/2016)
201 MOTION to Seal Appendix 455 of Defendant Lorie Davis' Additional Briefing and Evidence on Summary Judgment by Lorie Davis, filed. Motion Docket Date 9/1/2016. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/11/2016)
202 Sealed Event, filed. (Entered: 08/11/2016)
203 NOTICE Defendants Morris and Davis' Notice of Seventh Supplemental Disclosures by Lorie Davis, Clint Morris, filed. (Cunniff, Celamaine) (Entered: 08/11/2016)
204 ORDER granting 201 Motion to Seal Appendix 455 of her Additional Briefing and Evidence on Summary Judgment.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(vrios, 2) (Entered: 08/11/2016)
205 BRIEF in Support Defendant Lorie Davis' Additional Briefing and Evidence on Summary Judgment by Lorie Davis, filed. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 08/12/2016)
206 APPENDIX re: 205 Brief by Lorie Davis, filed. (Attachments: # 1 Appendix 456−458, # 2 Appendix 459−462, # 3 Appendix 463−467, # 4 Appendix 468−473, # 5 Appendix 474−479, # 6 Appendix 480−488, # 7 Appendix 489−558, # 8 Appendix 559−565, # 9 Appendix 566−582, # 10 Appendix 583−662, # 11 Appendix 663−671)(Cunniff, Celamaine) (Entered: 08/12/2016)
207 Sealed Event, filed. (Entered: 08/12/2016)
208 MOTION In Limine by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 10/19/2016. (lcayce, 2) (Entered: 09/28/2016)
209 MOTION for Extension of Time to Respond to Defendant's Motion for Summary Judgment by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 10/19/2016. (lcayce, 2) (Entered: 09/28/2016)
210 MOTION to Strike Defendant Davis's Appendix's #456−458, and #459−462 and Page #12 par 2 & 3 by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 10/19/2016. (lcayce, 2) (Entered: 09/28/2016)
211 ORDER GRANTING MOTION FOR EXTENSION OF TIME 209 Motion for Extension of Time Responses due by 10/31/2016..(Signed by Magistrate Judge B Janice Ellington) Parties notified.(fcarbia, 2) (Entered: 09/28/2016)
212 ORDER denying 208 Motion in Limine.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(fcarbia, 2) (Entered: 09/28/2016)
213 MOTION requesting a survey be done under Rluipa analysis on individual basis against woman's in prison conduct records with the same line class and custody level as plaintiff's by Teddy Norris Davis, filed. Motion Docket Date 10/27/2016. (dterrell, 2) (Entered: 10/06/2016)
214 RESPONSE to 210 MOTION to Strike filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 10/11/2016)
215 RESPONSE to 213 MOTION requesting a survey be done under Rluipa analysis on individual basis against woman's in prison conduct records with the same line class and custody level as plaintiff's filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 10/13/2016)
216 ORDER DENYING MOTION FOR A SURVEY denying 213 Motion.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 10/21/2016)
217 Plaintiff Davis and Goodman's RESPONSE to 205 Brief, filed by Teddy Norris Davis. (Attachments: # 1 exhibit 1, # 2 exhibit 2, # 3 exhibit 3, # 4 cover letter and envelope)(lrivera, 2) (Entered: 11/22/2016)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 18 of 27

11/28/2016 12/07/2016 12/14/2016 12/29/2016 01/20/2017 01/26/2017 01/27/2017 02/03/2017 02/06/2017
02/08/2017
02/21/2017 02/22/2017 03/06/2017 03/07/2017
03/07/2017

218 Motion Requesting the Davis v. Davis by Teddy Norris Davis, Robbie Dow Goodman, filed. Copy of current docket sheet mailed to pltff. (lcayce, 2) (Entered: 11/29/2016)
219 MOTION for Extension of Time to File Reply to Plaintiffs' Response to Defendant's Additional Briefing by Lorie Davis, filed. Motion Docket Date 12/28/2016. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 12/07/2016)
220 ORDER granting 219 Motion for Extension of Time Replies due by 12/30/2016.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(lrivera, 2) (Entered: 12/15/2016)
221 REPLY to 217 Response Defendant's Reply to Plaintiffs' Response to Defendant's Additional Briefing and Evidence on Summary Judgment, filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 12/29/2016)
222 RESPONSE to 221 Reply, filed by Teddy Norris Davis. (Note: Document not signed by Teddy Davis.) (mserpa, 2) (mserpa, 2). (Entered: 01/23/2017)
223 MOTION to Strike 222 Response by Lorie Davis, filed. Motion Docket Date 2/16/2017. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 01/26/2017)
224 MOTION for a Copy of Davis v. Davis 826 F.3d 258 WL 3269089 (5th Cir. 2016) by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 2/17/2017. (lcayce, 2) (Entered: 01/31/2017)
225 MOTION to Amend the Pleadings by Allowing Them to Sign the Document. by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 2/24/2017. (lcayce, 2) (Entered: 02/03/2017)
226 RESPONSE in Opposition to 225 MOTION to Amend, filed by Lorie Davis. (Attachments: # 1 Attachment 1: Plaintiff Goodman's verified Responses to Defendants' First Set of Interrogatories from Docket Entry 121−8, # 2 Attachment 2: Plaintiffs Davis and Goodman's Request to be able to Amend the Pleadings by Allowing them to sign the Document, Docket Entry 225, # 3 Proposed Order)(Cunniff, Celamaine) (Entered: 02/06/2017)
227 ORDER ON PENDING MOTIONS denying without prejudice 223 Motion to Strike; granting 224 Motion; granting 225 Motion to Amend. Plaintiffs must submit for filing their signed amended response on or before Wednesday, February 22, 2017.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 02/08/2017)
228 MOTION To be able to Amend the Pleadings by allowing then to sign the documents by Teddy Norris Davis, Robbie Dow Goodman, filed. Motion Docket Date 3/14/2017. (lrivera, 2) (Entered: 02/22/2017)
229 ORDER Denying as Moot for Leave to Amend 228 ( Plaintiffs Responses due by 2/28/2017.)(Signed by Magistrate Judge B Janice Ellington) Parties notified.(amireles, 2) (Entered: 02/22/2017)
230 MOTION Putting the District Court on Notice by Teddy Norris Davis, filed. Motion Docket Date 3/27/2017. (dterrell, 2) (Entered: 03/07/2017)
231 OPINION AND ORDER ON REMAND DENYING DEFENDANT'S MOTION TO STRIKE, DENYING PLAINTIFFS' MOTION TO STRIKE, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' RLUIPA GROOMING POLICY CLAIM AND RECOMMENDING REMAND OF THE APPEAL FOR A TRIAL ON THE MERITS denying 210 MOTION to Strike, denying 200 MOTION to Strike Defendant Davis' Motion to Strike the Prior Testimony of Dr. George Sullivan under Daubert, Federal Rule of Evidence 702, Federal Rules of Civil Procedure 26(a)(2) and 56(c). The Clerk shall further forward a copy of this order, as well as the entire supplemental Record on Appeal, to the Clerk for the United States Fifth Circuit Court of Appeals.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 03/07/2017)
232 ORDER DENYING PLAINTIFFS' MOTION denying 230 Motion.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 03/07/2017)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 19 of 27

03/08/2017 07/12/2017 11/02/2017
11/09/2017 11/13/2017 11/13/2017 11/13/2017 11/15/2017
11/22/2017 11/27/2017 11/27/2017 11/28/2017 12/06/2017 12/18/2017 12/21/2017 12/21/2017
01/25/2018 01/25/2018 01/30/2018

233 RESPONSE to 221 Reply, filed by Teddy Norris Davis, Robbie Dow Goodman. (mserpa, 2) (Entered: 03/09/2017)
234 Letter from Robie Goodman re: status, filed. (dterrell, 2) (Entered: 07/12/2017)
235 MOTION for Leave to File a Motion to become an Added Party and Move to Present Favorable Evidence to Support Plaintiff's in This Case by Carlos Kidd, filed. Motion Docket Date 11/24/2017. (Attachments: # 1 Cover Letter, # 2 Envelope)(LynetteSlayton, 2) (Entered: 11/02/2017)
236 ORDER DENYING MOTION FOR LEAVE TO ADD PARTY 235 Motion for Leave to File.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(fcarbia, 2) (Entered: 11/09/2017)
237 NOTICE of Setting. Parties notified. Telephone Conference set for 11/15/2017 at 03:00 PM before Magistrate Judge B Janice Ellington, filed. (mserpa, 2) (Entered: 11/13/2017)
***Update setting. (mserpa, 2) (Entered: 11/13/2017)
238 NOTICE of Appearance by Benjamin Dower on behalf of Lorie Davis, filed. (Dower, Benjamin) (Entered: 11/13/2017)
Minute Entry for proceedings held before Magistrate Judge B Janice Ellington. TELEPHONE CONFERENCE held on 11/15/2017. Discussion held: Davis has been released from the unit, halfway house, no change of address, court appeals remand, summary judgment, Dower will file a motion to certify within 30 days, fact issue that needed to be decided, if case goes to trial it is likely the court will appoint a lawyer, case heard by Judge Ramos, if motion filed, Goodman will have 30 days to file a response and expert issue. Court will be entering an order. Appearances:PRO SE: ROBBIE DOWN GOODMAN. Benjamin Lindberg Dower.(Digital # 2:59−3:17)(ERO:A. Zepeda), filed.(legarza, 2) (Entered: 11/15/2017)
239 ORDER FOLLOWING STATUS CONFERENCE(Signed by Magistrate Judge B Janice Ellington) Parties notified.(amireles, 2) (Entered: 11/22/2017)
240 Mail Returned Undeliverable as to Teddy Norris Davis re: 237 Notice of Setting, filed. (SandraSilva, 7) (Entered: 11/28/2017)
241 Mail Returned Undeliverable as to Teddy Norris Davis re: 236 Order on Motion for Leave to File, filed. (SandraSilva, 7) (Entered: 11/28/2017)
242 Mail Returned Undeliverable as to Teddy Norris Davis re: 236 Order on Motion for Leave to File, filed. Envelope notation states "discharged." No updated address located. (sylopez, 2). (Entered: 11/28/2017)
243 Mail Returned Undeliverable as to Teddy Norris Davis re: 239 Order, filed.(LaurenWebster, 4) (Entered: 12/06/2017)
244 Letter from Carlos Kidd requesting that a copy of his Motion for Leave to Add Party be forwarded to the Plaintiff, Mr. Davis, filed.(vrios, 2) (Entered: 12/21/2017)
245 NOTICE Regarding Interlocutory Appeal re: 239 Order by Lorie Davis, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dower, Benjamin) (Entered: 12/21/2017)
246 MOTION to Dismiss Plaintiff Teddy Norris Davis's Claims for Lack of Subject−Matter Jurisdiction by Lorie Davis, filed. Motion Docket Date 1/11/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Dower, Benjamin) (Entered: 12/21/2017)
247 Letter from Robbie Dow Goodman re: status, filed. (BelindaSaenz, 7) (Entered: 01/25/2018)
248 ORDER granting 246 Motion to Dismiss Plaintiff Teddy Norris Davis's Claims for Lack of Subject−Matter Jurisdiction.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(vrios, 2) (Entered: 01/26/2018)
249 Letter from John Galbraith re: requesting a copy of DE 231 Opinion, filed. (jmarks, 2) (Entered: 01/31/2018)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 20 of 27

02/05/2018 03/02/2018 03/05/2018 03/05/2018 03/14/2018 03/19/2018 03/20/2018
03/21/2018 04/16/2018
04/23/2018
04/23/2018 04/23/2018

251 Mail Returned Undeliverable as to Teddy Norris Davis re: 248 Order on Motion to Dismiss, filed. (bcampos, 1) (Entered: 02/05/2018)
252 ORDER TO CONSOLIDATE CASES: Lead Case No. 2:12−cv−166 and Member Case Nos. 2:14−cv−13, 2:14−cv−22 (Signed by Judge Nelva Gonzales Ramos) Parties notified.(sylopez, 2) (Entered: 03/05/2018)
253 ORDER APPOINTING COUNSEL. Attorneys Robert Ellis and Steven Messer of Yetter Coleman L.L.P., 909 Fannin Street, Suite 3600, Houston, Texas 77010, Phone (713) 632−8000, are appointed to represent each of the remaining Plaintiffs in this consolidated action. (Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) (Entered: 03/05/2018)
*** Copy of Pro Bono Expense Plan emailed to Attys. Ellis and Messer. (mserpa, 2) (Entered: 03/05/2018)
254 ORDER SETTING TELEPHONE HEARINGTelephone Hearing set for 3/20/2018 at 03:00 PM in by telephone before Magistrate Judge Jason B Libby(Signed by Magistrate Judge Jason B Libby) Parties notified.(fcarbia, 2) (Entered: 03/14/2018)
255 Mail Returned Undeliverable as to Teddy Norris Davis re: 252 Order to Consolidate Cases, filed. (dmorales, 5) (Entered: 03/19/2018)
Minute Entry for proceedings held before Magistrate Judge Jason B Libby. TELEPHONE CONFERENCE held on 3/20/2018. Plaintiffs Robbie Goodman, William Casey and Raymond Cobb are present. Court advises plaintiffs that counsel has been appointed and their case has been consolidated. Discussion held regarding procedural matters. Telephonic Status Conference set for 4/23/2018 at 03:00 PM before Magistrate Judge Jason B Libby. Appearances: Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Emily Marie Landon.(Digital # 3:07:49−3:22:09)(ERO:amanda zepeda), filed.(KendraPearson, 2) (Entered: 03/20/2018)
256 ADVISORY by Lorie Davis, Clint Morris, filed.(Huntpalmer, Richard) (Entered: 03/21/2018)
257 NOTICE OF SETTING. Parties notified. Telephonic Status Conference set for 4/23/2018 at 03:00 PM before Magistrate Judge Jason B Libby, filed. ***SPECIAL INSTRUCTIONS TO COUNSEL: Parties must call into the Courts meet−me−line call in number of 713−250−5332. This line will be open 5 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If more than one attorney/party is on the line, for clarity of the record, please state you name when responding to the Court. THESE CALL−IN INSTRUCTIONS WILL ONLY BE PROVIDED IN THIS ELECTRONIC NOTICE *** (KendraPearson, 2) (Entered: 04/16/2018)
Minute Entry for proceedings held before Magistrate Judge Jason B Libby. TELEPHONIC STATUS CONFERENCE held on 4/23/2018. Discussion held regarding the case. Scheduling order to be entered. Appearances: Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Richard Armstrong Huntpalmer, Emily Marie Landon.(Digital # 3:08:35−3:26:39)(ERO:amanda zepeda), filed.(KendraPearson, 2) (Entered: 04/23/2018)
258 ADVISORY by Lorie Davis, filed.(Dower, Benjamin) (Entered: 04/23/2018)
259 SCHEDULING ORDER. Bench Trial. Pltf Expert Witness List due by 6/15/2018. Deft Expert Witness List due by 4/27/2018. Discovery due by 8/1/2018. Joint Pretrial Order, along with Witness Lists, Motions in Limine, and Designation of Deposition Excerpts for Witnesses due by 8/24/2018. Disputes regarding Issues accompanying JPTO are due no later 8/31/2018. Status Conference set for 8/7/2018 at 10:00 AM before Judge Nelva Gonzales Ramos. Final Pretrial Conference set for 9/7/2018 at 09:00 AM before Judge Nelva Gonzales Ramos. Bench Trial set for 9/17/2018 at 09:00 AM before Judge Nelva Gonzales Ramos.(Signed by Magistrate Judge Jason B Libby) Parties notified.(jalvarez, 2) (Entered: 04/24/2018)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 21 of 27

04/27/2018 05/09/2018 05/09/2018 06/04/2018 07/13/2018 07/17/2018
07/20/2018
07/23/2018 07/23/2018 07/23/2018
07/24/2018 07/24/2018 07/24/2018 07/24/2018

***Set/Reset Hearings: Status Conference set for 8/7/2018 at 10:00 AM before Magistrate Judge Jason B Libby (bcortez, 2) (Entered: 04/27/2018)
260 Sealed Event, filed. (Entered: 05/09/2018)
261 Sealed Order, filed. A copy of this order was provided to Plaintiff's counsel by regular mail on 5/9/2018 by jfa as ordered by the Court. (Entered: 05/09/2018)
262 MOTION for Stare Decisis, MOTION for Contempt( Motion Docket Date 6/25/2018.), MOTION for SanctionsMotions referred to Jason B Libby. by Kenneth M Little Brave, filed. (srussell, 2) (Entered: 06/06/2018)
263 ORDER DENYING MOTIONS FILED BY NON−PARTY − denying 262 Motion; denying 262 Motion for Contempt; denying 262 Motion for Sanctions.(Signed by Magistrate Judge Jason B Libby) Parties notified.(fcarbia, 2) (Entered: 07/13/2018)
264 NOTICE OF SETTING. Parties notified. Telephone Conference set for 7/20/2018 at 03:00 PM before Magistrate Judge Jason B Libby, filed. ***SPECIAL INSTRUCTIONS TO COUNSEL: Parties must call into the Courts meet−me−line phone number of 713−250−5332. This line will be open 5 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court. THESE CALL−IN INSTRUCTIONS WILL ONLY BE PROVIDED IN THIS ELECTRONIC NOTICE.*** (KendraPearson, 2) (Entered: 07/17/2018)
Minute Entry for proceedings held before Magistrate Judge Jason B Libby. TELEPHONE CONFERENCE held on 7/20/2018. Discussion held regarding resetting the trial setting. Parties agree to the 8/29/18 trial setting. Court instructs attorneys to file a motion to expedite the trial setting and to consult with the district case manager regarding new deadlines. Appearances: Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Richard Armstrong Huntpalmer.(Digital # 3:03:55−3:14:18)(ERO:amanda zepeda), filed.(KendraPearson, 2) (Entered: 07/20/2018)
265 AMENDED COMPLAINT against Lorie Davis filed by Robbie Dow Goodman, William Casey, Raymond Cobb.(Ellis, Robert) (Order Striking Complaint entered 7/24/18) (Entered: 07/23/2018)
267 Mail Returned Undeliverable as to Teddy Norris Davis re: 263 Order on Motion for Miscellaneous Relief, Order on Motion for Contempt, Order on Motion for Sanctions, filed. (dhansen, 4) (Entered: 07/24/2018)
269 SECOND AMENDED SCHEDULING ORDER: Bench Trial set for 8/29/2018 at 08:30 AM before Judge Nelva Gonzales Ramos Discovery due by 8/1/2018. Status Conference set for 8/7/2018 at 10:00 AM before Magistrate Judge Jason B Libby Proposed Findings of Fact and Conlusions of Law due by 8/20/2018. Joint Pretrial Order due by 8/20/2018. Objections due by 8/22/2018 Final Pretrial Conference set for 8/29/2018 at 08:30 AM before Judge Nelva Gonzales Ramos(Signed by Magistrate Judge Jason B Libby) Parties notified.(vrios, 2) Modified on 7/24/2018 (vrios, 2). (Entered: 07/24/2018)
266 ORDER Striking re: 265 Amended Complaint. (Signed by Magistrate Judge Jason B Libby) Parties notified.(vrios, 2) (Entered: 07/24/2018)
268 Agreed MOTION to Amend 88 Amended Complaint/Counterclaim/Crossclaim etc., 1 Complaint Motions referred to Jason B Libby. by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 8/14/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Ellis, Robert) (Entered: 07/24/2018)
270 ORDER granting 268 Motion to Amend.(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) (Entered: 07/24/2018)
271 CONSOLIDATED AMENDED COMPLAINT against Lorie Davis filed by Robbie Dow Goodman, William Casey, Raymond Cobb. Related document: 265 Amended Complaint/Counterclaim/Crossclaim etc. filed by William Casey, Raymond Cobb,

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 22 of 27

07/24/2018 08/01/2018
08/01/2018 08/02/2018 08/07/2018
08/07/2018
08/09/2018 08/10/2018 08/10/2018 08/10/2018

Robbie Dow Goodman.(mserpa, 2) (Entered: 07/24/2018)
272 Mail Returned Undeliverable as to Teddy Norris Davis re: 264 Notice of Setting,,,, filed. No new address found. (JenniferOlson, 4) (Entered: 07/25/2018)
273 NOTICE OF SETTING. Parties notified. Telephonic Status Conference set for 8/7/2018 at 10:00 AM before Magistrate Judge Jason B Libby, filed. ***SPECIAL INSTRUCTIONS TO COUNSEL: Parties must call into the Courts meet−me−line call in number of 713−250−5332. This line will be open 5 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If more than one attorney/party is on the line, for clarity of the record, please state you name when responding to the Court. THESE CALL−IN INSTRUCTIONS WILL ONLY BE PROVIDED IN THIS ELECTRONIC NOTICE *** (KendraPearson, 2) (Entered: 08/01/2018)
274 Mail Returned Undeliverable as to Teddy Norris Davis re: 266 Order Striking Document, filed. (SamanthaWarda, 4) (Entered: 08/03/2018)
275 Mail Returned Undeliverable (UNABLE TO FORWARD − RETURN TO SENDER) as to Teddy Norris Davis re: 269 Scheduling Order, filed. (rnieto, 1) (Entered: 08/03/2018)
276 NOTICE OF RESETTING (TIME CHANGE). Parties notified. Telephonic Status Conference set for 8/7/2018 at 02:00 PM before Magistrate Judge Jason B Libby, filed. ***SPECIAL INSTRUCTIONS TO COUNSEL: Parties must call into the Courts meet−me−line call in number of 713−250−5332. This line will be open 5 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If more than one attorney/party is on the line, for clarity of the record, please state you name when responding to the Court. THESE CALL−IN INSTRUCTIONS WILL ONLY BE PROVIDED IN THIS ELECTRONIC NOTICE *** (KendraPearson, 2) (Entered: 08/07/2018)
277 2ND NOTICE OF RESETTING. Parties notified. Telephonic Status Conference set for 8/9/2018 at 02:00 PM before Magistrate Judge Jason B Libby, filed. ***SPECIAL INSTRUCTIONS TO COUNSEL: Parties must call into the Courts meet−me−line call in number of 713−250−5332. This line will be open 5 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If more than one attorney/party is on the line, for clarity of the record, please state you name when responding to the Court. THESE CALL−IN INSTRUCTIONS WILL ONLY BE PROVIDED IN THIS ELECTRONIC NOTICE *** (KendraPearson, 2) (Entered: 08/07/2018)
Minute Entry for proceedings held before Magistrate Judge Jason B Libby. TELEPHONIC STATUS CONFERENCE held on 8/9/2018. Case set for bench trial 8/29/18. Discussion held regarding status of case and issuing writs for the appearance of plaintiffs. Appearances: Robert K. Ellis. Benjamin Lindberg Dower. Richard Armstrong Huntpalmer.(Digital # 2:05:00−2:13:16)(ERO:judy alvarez), filed.(KendraPearson, 2) (Entered: 08/09/2018)
278 Writ of Habeas Corpus ad Testificandum Issued as to Robbie Dow Goodman for Final Pretrial Conference and Bench Trial on 8/29/18 at 8:30 a.m. before Honorable Nelva Gonzales Ramos ( Signed by Magistrate Judge Jason B Libby), filed.(vrios, 2) (Entered: 08/10/2018)
279 Writ of Habeas Corpus ad Testificandum Issued as to William Casey for Final Pretrial Conference and Bench Trial on 8/29/18 at 8:30 a.m. before Honorable Nelva Gonzales Ramos ( Signed by Magistrate Judge Jason B Libby), filed.(vrios, 2) (Entered: 08/10/2018)
280 Writ of Habeas Corpus ad Testificandum Issued as to Raymond Cobb for Final Pretrial Conference and Bench Trial on 8/29/18 at 8:30 a.m. before Honorable Nelva Gonzales

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 23 of 27

08/20/2018 08/20/2018 08/20/2018 08/20/2018
08/20/2018
08/20/2018
08/20/2018 08/20/2018 08/20/2018 08/20/2018 08/21/2018 08/22/2018
08/22/2018 08/27/2018
08/27/2018
08/27/2018 08/29/2018

Ramos ( Signed by Magistrate Judge Jason B Libby), filed.(vrios, 2) (Entered: 08/10/2018)
281 Joint Proposed Pretrial Order by William Casey, Raymond Cobb, Robbie Dow Goodman(Ellis, Robert) (Entered: 08/20/2018)
282 Exhibit List by William Casey, Raymond Cobb, Robbie Dow Goodman(Ellis, Robert) (Entered: 08/20/2018)
283 Witness List by William Casey, Raymond Cobb, Robbie Dow Goodman(Ellis, Robert) (Entered: 08/20/2018)
284 MOTION In Limine Motions referred to Jason B Libby. by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 9/10/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ellis, Robert) (Entered: 08/20/2018)
285 MOTION to Exclude Expert Testimony of Ronald AngeloneMotions referred to Jason B Libby. by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 9/10/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Ellis, Robert) (Entered: 08/20/2018)
286 MOTION to Exclude Expert Testimony of John WernerMotions referred to Jason B Libby. by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 9/10/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Ellis, Robert) (Entered: 08/20/2018)
287 Proposed Findings of Fact/Conclusions of Law by William Casey, Raymond Cobb, Robbie Dow Goodman(Ellis, Robert) (Entered: 08/20/2018)
288 Proposed Findings of Fact/Conclusions of Law by Lorie Davis(Huntpalmer, Richard) (Entered: 08/20/2018)
289 Witness List by Lorie Davis(Huntpalmer, Richard) (Entered: 08/20/2018)
290 Exhibit List by Lorie Davis(Huntpalmer, Richard) (Entered: 08/20/2018)
291 Amended Exhibit List by Lorie Davis(Huntpalmer, Richard) (Entered: 08/21/2018)
292 NOTICE −DEFENDANTS NOTICE OF DISPUTES REGARDING MATTERS NOT ACCOMPANYING JOINT PRETRIAL ORDER by Lorie Davis, filed. (Huntpalmer, Richard) (Entered: 08/22/2018)
293 NOTICE /Plaintiffs' Notice of Objections to Defendant's Exhibits by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. (Ellis, Robert) (Entered: 08/22/2018)
294 RESPONSE in Opposition to 285 MOTION to Exclude Expert Testimony of Ronald Angelone, filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 08/27/2018)
295 RESPONSE in Opposition to 286 MOTION to Exclude Expert Testimony of John Werner, filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 08/27/2018)
296 RESPONSE in Opposition to 284 MOTION In Limine , filed by Lorie Davis. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 08/27/2018)
Minute Entry for proceedings held before Judge Nelva Gonzales Ramos. FINAL PRETRIAL CONFERENCE and FIRST day of BENCH TRIAL held on 8/29/2018. Parties announce ready for trial. ETT: 3 days. Plaintiffs exhibits 1−7, 9−17, 23−29, 32−111, 113−120 admitted. Defendants exhibits 1−6, 13, 20, 22 (affidavit removed), 26−30, 32 (as redacted), 35, 38, 41, 42−44, 46. Rulings made on pending motions. Opening statement by Plaintiffs. Witnesses: Joan Palmateer, Raymond Cobb, William Casey, Robbie Dow Goodman. Plaintiffs rest. Opening statement by Defendant. Witnesses: Melodye Nelson. Court takes judicial notice of information on website as requested by parties. Parties directed to return Thursday, August 30, 2018 at 9:15am. Appearances: Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Richard Armstrong Huntpalmer.(Digital # 8:31−9:10, 9:20−11:57, 1:34−3:12, 3:29−4:30, 4:50−5:10)(ERO:F. Carbia), filed.(bcortez, 2) (Entered: 08/29/2018)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 24 of 27

08/29/2018 08/29/2018 08/29/2018 08/29/2018 08/30/2018
08/31/2018
09/04/2018 09/04/2018 09/04/2018 09/04/2018
09/04/2018

297 Witness List by William Casey, Raymond Cobb, Robbie Dow Goodman(bcortez, 2) (Entered: 08/31/2018)
298 Witness List by Lorie Davis(bcortez, 2) (Entered: 08/31/2018)
299 Exhibit List by William Casey, Raymond Cobb, Robbie Dow Goodman(bcortez, 2) (Entered: 08/31/2018)
300 Exhibit List by Lorie Davis(bcortez, 2) (Entered: 08/31/2018)
Minute Entry for proceedings held before Judge Nelva Gonzales Ramos. SECOND day of BENCH TRIAL held on 8/30/2018. Defendants exhibit 10 admitted. Plaintiffs exhibits 19 and 21 as redacted admitted. Witnesses: Melodye Nelson, Dr. Michael Rutledge, Gene Miller, Ronald Angelone. Parties directed to return Friday at 8:30am. Appearances: Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Richard Armstrong Huntpalmer.(Digital # 9:19−10:28, 10:38−12:05, 1:31−2:54, 3:06−5:18)(ERO:F. Carbia), filed.(bcortez, 2) (Entered: 08/30/2018)
Minute Entry for proceedings held before Judge Nelva Gonzales Ramos. THIRD day of BENCH TRIAL held on 8/31/2018. Witnesses: Ronald Angelone, John Werner. Defendants exhibit 9 admitted. Defendant rests. Closing arguments. Parties to file amended findings of fact and conclusions of law due by October 15, 2018. Parties to upload admitted exhibits, with any redactions, by close of business Tuesday, September 4, 2018. Appearances:USM D. Taschner. Robert K. Ellis, Steven Charles Messer, Benjamin Lindberg Dower, Richard Armstrong Huntpalmer.(Digital # 8:30−10:30, 10:47−11:15, 11:23−12:09)(ERO:A. Rodriguez), filed.(bcortez, 2) (Entered: 08/31/2018)
301 NOTICE of Admitted Trial Exhibits re: 300 Exhibit List by Lorie Davis, filed. (Huntpalmer, Richard) (Entered: 09/04/2018)
302 MOTION to Admit Defendant's Trial Exhibit No. 45 by Lorie Davis, filed. Motion Docket Date 9/25/2018. (Attachments: # 1 Exhibit No. 45, # 2 Proposed Order)(Huntpalmer, Richard) (Entered: 09/04/2018)
303 NOTICE /Plaintiffs' Notice of Filing Exhibits Admitted at Trial re: 299 Exhibit List by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. (Ellis, Robert) (Entered: 09/04/2018)
304 NOTICE of Admitted Trial Exhibits re: 300 Exhibit List by Lorie Davis, filed. (Attachments: # 1 Exhibit No. 1, # 2 Exhibit No. 2, # 3 Exhibit No. 3, # 4 Exhibit No. 4, # 5 Exhibit No. 5, # 6 Exhibit No. 6, # 7 Exhibit No. 9, # 8 Exhibit No. 10, # 9 Exhibit No. 13, # 10 Exhibit No. 20, # 11 Exhibit No. 22, # 12 Exhibit No. 26, # 13 Exhibit No. 27, # 14 Exhibit No. 28, # 15 Exhibit No. 29, # 16 Exhibit No. 30, # 17 Exhibit No. 32, # 18 Exhibit No. 35, # 19 Exhibit No. 38, # 20 Exhibit No. 41, # 21 Exhibit No. 42, # 22 Exhibit No. 43, # 23 Exhibit No. 44, # 24 Exhibit No. 46)(Huntpalmer, Richard) (Entered: 09/04/2018)
305 Trial EXHIBITS re: 303 Notice (Other) by William Casey, Raymond Cobb, Robbie Dow Goodman (Attachments: # 1 Exhibit P002, # 2 Exhibit P003, # 3 Exhibit P004, # 4 Exhibit P005, # 5 Exhibit P006, # 6 Exhibit P007, # 7 Exhibit P009, # 8 Exhibit P010, # 9 Exhibit P011, # 10 Exhibit P012, # 11 Exhibit P013, # 12 Exhibit P014, # 13 Exhibit P015, # 14 Exhibit P016, # 15 Exhibit P017, # 16 Exhibit P019, # 17 Exhibit P021, # 18 Exhibit P023, # 19 Exhibit P024, # 20 Exhibit P025, # 21 Exhibit P026, # 22 Exhibit P027, # 23 Exhibit P028, # 24 Exhibit P029, # 25 Exhibit P032, # 26 Exhibit P033, # 27 Exhibit P034, # 28 Exhibit P035, # 29 Exhibit P036, # 30 Exhibit P037, # 31 Exhibit P038, # 32 Exhibit P039, # 33 Exhibit P040, # 34 Exhibit P041, # 35 Exhibit P042, # 36 Exhibit P043, # 37 Exhibit P044, # 38 Exhibit P045, # 39 Exhibit P046, # 40 Exhibit P047, # 41 Exhibit P048, # 42 Exhibit P049, # 43 Exhibit P050, # 44 Exhibit P051, # 45 Exhibit P052, # 46 Exhibit P053, # 47 Exhibit P054, # 48 Exhibit P055, # 49 Exhibit P056, # 50 Exhibit P057, # 51 Exhibit P058, # 52 Exhibit P059, # 53 Exhibit P060, # 54 Exhibit P061, # 55 Exhibit P062, # 56 Exhibit P063, # 57 Exhibit P064, # 58 Exhibit P065, # 59 Exhibit P066, # 60 Exhibit P067, # 61 Exhibit P068, # 62 Exhibit P069, # 63 Exhibit P070, # 64 Exhibit P071, # 65 Exhibit P072, # 66 Exhibit P073, # 67 Exhibit P074, # 68 Exhibit P075, # 69 Exhibit P076, # 70 Exhibit P077, # 71 Exhibit P078, # 72 Exhibit P079, # 73 Exhibit P080, # 74 Exhibit P081, # 75 Exhibit P082, # 76 Exhibit P083, # 77 Exhibit P084, # 78 Exhibit P085, # 79 Exhibit P086, # 80 Exhibit P087, # 81 Exhibit P088, # 82 Exhibit

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 25 of 27

09/05/2018 09/10/2018
09/11/2018
09/24/2018 10/03/2018 10/03/2018 10/03/2018 10/04/2018 10/04/2018 10/04/2018 10/09/2018 10/09/2018 10/19/2018

P089, # 83 Exhibit P090, # 84 Exhibit P091, # 85 Exhibit P092, # 86 Exhibit P093, # 87 Exhibit P094, # 88 Exhibit P095, # 89 Exhibit P096, # 90 Exhibit P097, # 91 Exhibit P098, # 92 Exhibit P099, # 93 Exhibit P100, # 94 Exhibit P101, # 95 Exhibit P102, # 96 Exhibit P103, # 97 Exhibit P104, # 98 Exhibit P105, # 99 Exhibit P106, # 100 Exhibit P107, # 101 Exhibit P108, # 102 Exhibit P109, # 103 Exhibit P110, # 104 Exhibit P111, # 105 Exhibit P113, # 106 Exhibit P114, # 107 Exhibit P115, # 108 Exhibit P116, # 109 Exhibit P117, # 110 Exhibit P118, # 111 Exhibit P119, # 112 Exhibit P120)(Ellis, Robert) (Entered: 09/04/2018)
306 ORDER ADMITTING DEFENDANT'S EXHIBIT NO. 45 granting 302 Motion.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2) (Entered: 09/05/2018)
307 AO 435 TRANSCRIPT REQUEST by Richard Huntpalmer for Transcript of Bench Trial on 08/29/18 to 08/31/18 before Judge Ramos. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: GLR Transcribing Services, filed. UPDATE: Per GLR − they do not transcribe trials. Audio/log notes electronically sent to Exceptional Reporting on 9/11/18 (arodriguez) (Huntpalmer, Richard) (Entered: 09/10/2018)
308 AO 435 TRANSCRIPT REQUEST by Steven C Vacek for Transcript of 8/29/2018 −8/31/2018, Judge Nelva Gonzalez Ramos. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (mmapps, 4) 9/20/18 forwarded duplicate request to Exceptional. Modified on 9/20/2018 (arodriguez, 2). (Entered: 09/11/2018)
309 Letter from Tory Lance Pitts re: Appeal/5th Circuit status, Case status, filed. (srussell, 2) (Entered: 09/25/2018)
310 TRANSCRIPT re: BENCH TRIAL − DAY 1 held on 8/29/18 before Judge Nelva Gonzales Ramos. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party BENJAMIN DOWER Release of Transcript Restriction set for 1/2/2019., filed. (thudson, ) (Entered: 10/03/2018)
311 TRANSCRIPT re: BENCH TRIAL − DAY 2 held on 8/30/18 before Judge Nelva Gonzales Ramos. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party BENJAMIN DOWER Release of Transcript Restriction set for 1/2/2019., filed. (thudson, ) (Entered: 10/03/2018)
312 TRANSCRIPT re: BENCH TRIAL − DAY 3 held on 8/31/18 before Judge Nelva Gonzales Ramos. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party BENJAMIN DOWER Release of Transcript Restriction set for 1/2/2019., filed. (thudson, ) (Entered: 10/03/2018)
313 Notice of Filing of Official Transcript as to 312 Transcript, 311 Transcript, 310 Transcript. Party notified, filed. (dterrell, 2) (Entered: 10/04/2018)
314 Unopposed MOTION to Substitute Attorney Benjamin L. Dower in place of Richard Huntpalmer by Lorie Davis, filed. Motion Docket Date 10/25/2018. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 10/04/2018)
315 Unopposed MOTION for Extension of Time to File Amended Findings of Fact and Conclusions of Law by Lorie Davis, filed. Motion Docket Date 10/25/2018. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 10/04/2018)
316 ORDER granting 314 Motion to Substitute Attorney Attorney Richard Armstrong Huntpalmer terminated.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(bcortez, 2) (Entered: 10/09/2018)
317 ORDER granting 315 Motion for Extension of Time. Plaintiffs' and Defendant's respective proposed amended findings of fact and conclusions of law shall be considered timely if filed on or before Friday, October 19, 2018.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(bcortez, 2) (Entered: 10/09/2018)
318 Proposed Findings of Fact/Conclusions of Law by William Casey, Raymond Cobb, Robbie Dow Goodman(Ellis, Robert) (Entered: 10/19/2018)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 26 of 27

10/19/2018 10/22/2018 10/31/2018 01/24/2019 02/01/2019 02/08/2019 02/26/2019 03/12/2019
03/12/2019 03/15/2019 03/25/2019 03/26/2019
03/26/2019 03/27/2019 03/28/2019
03/28/2019
03/29/2019

319 Proposed Findings of Fact/Conclusions of Law by Lorie Davis(Dower, Benjamin) (Entered: 10/19/2018)
320 Mail Returned Undeliverable as to Teddy Norris Davis re: 317 Order on Motion for Extension of Time. (yhausmann, 6) (Entered: 10/23/2018)
321 Mail Returned Undeliverable as to Teddy Norris Davis re: 316 Order on Motion to Substitute Attorney, filed. (dmorales, 5) (Entered: 10/31/2018)
322 FINDINGS OF FACT AND CONCLUSIONS OF LAW(Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2) (Entered: 01/24/2019)
323 MOTION for /Plaintiff's Motion for Entry of Judgment by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 2/22/2019. (Attachments: # 1 Exhibit 1)(Ellis, Robert) (Entered: 02/01/2019)
324 Mail Returned Undeliverable as to Teddy Norris Davis re: 322 Findings of Fact & Conclusions of Law, filed. (ShoshanaArnow, 4) (Entered: 02/11/2019)
325 FINAL JUDGMENT (Signed by Judge Nelva Gonzales Ramos) Parties notified.(srussell, 2) (Entered: 02/26/2019)
326 Unopposed MOTION for Extension of Time to Submit Bill of Costs and Application for Attorney's Fees by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 4/2/2019. (Attachments: # 1 Proposed Order)(Messer, Steven) (Entered: 03/12/2019)
327 ORDER granting 326 Motion for Extension of Time Bill of Costs and application for attorney's fees due by 3/26/2019.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lrivera, 2) (Entered: 03/12/2019)
328 Mail Returned Undeliverable as to Teddy Norris Davis re: 325 Final Judgment, filed. (dbenavides, 1) (Entered: 03/18/2019)
331 Mail Returned Undeliverable (Not Deliverable as Addressed − Return to Sender) as to Teddy Norris Davis re: 327 Order on Motion for Extension of Time, filed. (rnieto, 1) (Entered: 03/27/2019)
329 MOTION for Bill of Costs by William Casey, Raymond Cobb, Robbie Dow Goodman, filed. Motion Docket Date 4/16/2019. (Attachments: # 1 Exhibit 1 to Bill of Costs, # 2 Affidavit Declaration of S. Messer, # 3 Exhibit 1 to Declaration, # 4 Exhibit 2 to Declaration, # 5 Exhibit 3 to Declaration, # 6 Exhibit 4 to Declaration, # 7 Exhibit 5 to Declaration, # 8 Proposed Order)(Yetter, R) (Entered: 03/26/2019)
337 BILL OF COSTS in total amount $9,803.19, filed.(ChristinaAvila, 2) (Entered: 04/05/2019)
330 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 325 Final Judgment, 322 Findings of Fact & Conclusions of Law by Lorie Davis (Filing fee $ 505, receipt number 0541−22127783), filed. (Dower, Benjamin) (Entered: 03/27/2019)
332 DISREGARD/NO IMAGE ATTACHED/Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 330 Notice of Appeal. Fee status: Paid. Reporter(s): A Rodriguez, filed.(dterrell, 2) (Entered: 03/28/2019)
333 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 330 Notice of Appeal. Fee status: Paid. Reporter(s): A Rodriguez, filed. (Attachments: # 1 Notice of Appeal) (dterrell, 2) (Entered: 03/28/2019)
334 DKT13 TRANSCRIPT ORDER REQUEST by Benjamin L. Dower, Counsel for Defendant Lorie Davis, Director, TDCJ. Transcript is already on file in Clerks office regarding Bench Trial, Days 1−3, 8/29−31/2019 before the Honorable Nelva Gonzales Ramos. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: 312 Transcript, 330 Notice of Appeal, 311 Transcript, 310 Transcript, filed.(Dower, Benjamin) (Entered: 03/29/2019)

Case: 2:12-cv-166 As of: 07/21/2019 01:39 PM CDT 27 of 27

04/02/2019 04/02/2019 04/05/2019 04/16/2019 05/01/2019 05/03/2019 05/28/2019 06/03/2019 07/09/2019

335 ADVISORY by Lorie Davis, filed. (Attachments: # 1 Proposed Order)(Dower, Benjamin) (Entered: 04/02/2019)
336 ORDER granting 329 Motion for Bill of Costs.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2) (Entered: 04/02/2019)
Costs Taxed in the amount of $ 9,803.19 re: 337 Bill of Costs, filed. (ChristinaAvila, 2) (Entered: 04/05/2019)
338 Mail Returned Undeliverable as to Teddy Norris Davis re: 336 Order on Motion for Bill of Costs (Current address information unavailable), filed. (agarcia, 7) (Entered: 04/17/2019)
Electronic Access to Record on Appeal Provided re: 330 Notice of Appeal to Fifth Circuit. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40279), filed.(dterrell, 2) (Entered: 05/01/2019)
Electronic Access to Record on Appeal Provided re: 330 Notice of Appeal to Paul Yetter, Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40279), filed.(dterrell, 2) (Entered: 05/03/2019)
Electronic Access to Record on Appeal Provided re: 330 Notice of Appeal to Steven Messer. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40279), filed.(dterrell, 2) (Entered: 05/28/2019)
339 Letter from Gilberto Red Eagle Saldana re: copies, filed. (Attachments: # 1 Envelope) (AmandaZepeda, 2) (Entered: 06/03/2019)
340 Order of USCA; − PER CURIAM − Judgment issued as mandate 7/9/19 re: 330 Notice of Appeal ; USCA No. 19−40279. It is ordered that Appellant's opposed motion to dismiss appeal is granted, filed. (Attachments: # 1 USCA Letter)(dterrell, 2) (Entered: 07/09/2019)

 
 Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF TEXAS

_ _ _ _ _ _ _ _ DIVISION

Form To Be Used By A Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983

MAY 2 1 2012

'J1rlh7 T\brcj s G:ey I-Awk IRvj s # f07688 Plaintiffs name and ID Number

Willian G. 1.'1:D:::rlooll Pd.s::n Ulit Place of Confinement
V.
RICl< C. 'IHA11R (DIRE.l2ICR of '.ilX::J - ID )
P.O. :Ebx 93 Iilntsville, 'lexas. 77342. Defendant's name and address Billy Pierce (DIRECRR of rnAPIAThCY IEPARIMENT)
2.:03 I.ake ru. &lite 19 Ii.lntsville, "Iexas. TlYID
Defendant's name and address ED H2rran::lez (CD..'llRl-lCI' NATIVE N1ERICAN CBAPI.AIN)

CASENO: _ _ _ _ _ _ _ _ _ _ __ (Clerk will assign the number)

Defendant's name and address (DO NOT USE "ET AL.")

INSTRUCTIONS- READ CAREFULLY
NOTICE:
Your complaint is subject to dismissal unless it conforms to these instructions and this form.
1. To start an action you must file an original and one copy ofyour complaint with the court. You should keep a copy of the complaint for your own records.
2. Your complaint must be legibly handwritten in ink, or typewritten. You, the plaintiff, must sign and declare under penalty of petjury that the facts are correct. If you need additional space, DO NOT USE THE REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND WRITE ON IT.
3. You must file a separate complaint for each claim you have unless the various claims are all related to the same incident or issue or are all against the same defendant, Rule 18, Federal Rules of Civil Procedure. Make a short and plain statement of your claim, Rule 8, Federal Rules of Civil Procedure.
4. When these forms are completed, mail the original and one copy to the Clerk of the United States Court for . the appropriate District of Texas in the Division where one or more named defendants are located, or where the incident giving rise to your claim for relief occurred. The list labeled as "VENUE LIST" is posted in your unit law library. It is a list of Texas prison units indicating the appropriate District Court, the Division and an address of the Divisional Clerks.

ATC 1983 (Rev. 04/06)

Page 1 of 5

•

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 2 of 9 FILING FEE AND IN FORMA PAUPERIS

•

1. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.

2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis
(IFP), setting forth the information to establish your inability to prepay the fees and costs or give security therefore. You must also include a six (6) month history of your Inmate Trust Account. You can acquire the application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison unit.

3. 28 U.S.C. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides, " ... ifa prisoner brings a civil action or files and appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been paid by the prisoner. If you submit the application to proceed in forma pauperis, the Court will apply 28 U.S.C. 1915 and, if appropriate, assess and collect the entire filing fee or an initial partial filing fee, then monthly installments from your Inmate Account, until the entire $350 filing fee has been paid.
4. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to Proceed IFP, and the Certificate of Inmate Trust Account. Complete all the essential paperwork before submitting it to the Court.

CHANGE OF ADDRESS

It is your responsibility to inform the Court of any change of address and its effective date. Such notice
should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any motions(s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal of your complaint pursuant to Rule 41(b), Federal Rules of Civil Procedures.

I. PREVIOUS LAWSUITS:

A. Have you filed any other lawsuits in the state or federal court relating to

imprisonment?

X

YES

NO

B. If your answer to "A" is yes, describe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, giving the same information.)

1. Approximate date of filing lawsuit: _JUL_Y._0_2_,_'XJJ_-_2_ _ _ _ _ _ __

2. Parties to previous lawsuit: Plaintiff(s): 'IWjy N:>rris Q:ey Pawk I:B.vis

Defendant(s): Wmi=o 'Jlxues J. J?rasi.fka et ,al
3. Court (If federal, name the district; if state, name the county) u::D': S:::ut.hem District,Cbr:p.lS Olristi Divisioo
4. Docket Number: - ca= us~ e #~C- -0- 220-) ---------------5. Name ofjudge to whom case was assigned: H:::nxable B. Janice Elli.ndtrn (TH1J)
6. Disposition: (Was the case dismissed, appealed, still pending?)
DIS'1ISSED

7. Approximate date of disposition: July 16, 2rrJ3 or after

ATC 1983 (Rev. 04/06)

Page 2 of5

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 3 of 9

II. PLACE OF PRESENT CONFINEMENT: William G. 1'1:D:llrell Pris::n Thit

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution? X

YES

NO

Attach a copy of the Step 2 grievance with the response supplied by the prison system.

IV. PARTIES TO THE SUIT:
A. Name of address of plaintiff: 'll=rljy Nxri s ct:ey fuwk rev; s :jf 007Ef!B 3:Dl S::uth Etni.ly Ixive Peeville 1 'Iexas. 78102 - 8583

B. Full name of each defendant, his official position, his place of employment, and his full mailing address.
Defendant #1: Ricilarr'J c. 'Thaler (DirE-ctor of ')TCJ - ID)
P.O. Ibx 99 HNJSVTf.IE, 'If)(AS. 77342
Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
fE is d:nyin::J rre my First J'm:rrlrEnt rights ~teOO cy the o.s. QnstitJJtim
Defendant #2: Billy Pierce (Director of 01apJ;a~z ~~t) 2:D3 lake R). s.Jite 19 HN!SVILLE. 'TEXAS 77340
Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you. H2 is~ rre II¥ Fkst AuPnirent dgbt-s qaranteej by ~US c.l:xlatitutim Defendant #3: ED l:i2rn3rrl?z (Ctntract N3.tive Jlrrerican d1aplaln)

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

fu is cB1yim rre IW ~J.rst ffierrlrEnt rights CJi3!0nteffl bt the o,s. Qnsri tJJti<Y)

Defendant #4:

JCNES (t'k:G:lTEll UJ:it Chap-lain)

3.))1 S::uth Bnily IXive Eeeville 1 'Iexas. 78102 - 8583

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
ffi is d:nvin:l rre IT¥ First J'm:rrlrEnt rights yaranteed by the u.s. Constitution

Defendant#5: William Stephens (Deputy Director of Prison and .Jail Opecations)

P.O. Box 99 Huntsville, Texas.77342

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
He is denying me my First Amendment rights qaranteed by the u.s. Constitution

ATC 1983 (Rev. 04/06)

Page 3 of5

•

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 4 of 9
V. STATEMENT OF CLAIM:

State here in a short and plain statement the facts of your case, that is, what happened, where did it happen, when did it happen, and who was involved. Describe how each defendant is involved. You need not give any legal argument or cite any cases of statutes. If you intent to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR COMPLAINT.
Please see attached d:x:urent cf c:x::rnlp3.int (Rj. 1 & 2)

I
I
I
I

VI. RELIEF: State briefly exactly what you want the court to do for you. Make no legal arguments. Cite not cases or statutes.
pJ ffiFe see at.t:adJrent rEQ.l6St:i.rg relief (R:J • 3)
VII. GENERAL BACKGROUND INFORMATION:
A. State, in complete form, all names you have ever used or been known by including any and all aliases:
'llrllil.'brris IB.vis I 'Iffiti l.'brris Q:ey Hawk IB.vis I Q:ey H3.wk I eetan Ibta I 'lErl IB.vis
B. List all TDCJ-ID identification numbers you have ever been assigned and all other state or federal prison or FBI numbers ever assigned to you, if know to you.
'IIdt 323»1 I 'IIdt 512364 I 'IIdt 007fffil
VIII. SANCTIONS:
A. Have you been sanctioned by any court as a result of any lawsuit you have filed? __ YES -X- NO B. If your answer is "yes", give the following information for every lawsuit in which sanctions were
imposed. (If more than one, use another piece of paper and answer the same questions.) 1. Court that imposed sanctions (If federal, give district and division): _ _ _ _ _ _ _ _ _ _ __
2. Case Number: - - - - - - - - - - - - - - - - - - - - - - -
3. Approximate date sanctions were imposed: - - - - - - - - - - - 4. Have the sanctions been lifted or otherwise satisfied? _ _ YES _ _ _ NO

ATC 1983 (Rev. 04/06)

Page 4 of5

I • ~
l
I )
l
l
j
I
!
I
I
l

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 5 of 9
C. Has any court ever warned or notified you that sanctions could be imposed? __ YES ____x_ NO
D. Ifyour answer is "yes", give the following information for every lawsuit in which warning was imposed. (If more than one, use another piece of paper and answer the same questions.)
1. Court that imposed warning (if federal, give the district and division): 2. Casenumber: --------------------------------------------3. Approximate date warning were imposed:

Executed on:

(Date)

(Printed Name)

(Signature of Plaintiff)
PLAINTIFF'S DECLARATIONS
1. I declare under penalty of perjury all facts presented in this complaint and attachment thereto are true and correct.
2. I understand if I am released or transferred, it is my responsibility to keep the Court informed of my current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit.
4. I understand I am prohibited from bringing an in forma pauperis lawsuit if I have brought three or more civil actions in a Court of the United States while incarcerated or detained in any facility, which lawsuits are dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under imminent danger or serious physical injury.
5. I understand even if I am allowed to proceed without prepayment of costs, I am responsible for the entire $350 filing fee and costs assess by the Court, which shall be deducted in accordance with the law from the inmate account by my custodian until the filing fee is paid.

l'-!_;; __ Signed this __

day of_--..aM......-;;.;a.l{-4--------' 20 1=2=-------

(Day)

(Month)

(Year)

'IErl:J¥ N;rris Q:ey 1-Hwk IBvj s
(Printed Name)
.Je.p4 ~' {k.y.,K S1gnature ofPlamhff)

WARNING: The Plaintiff is hereby advised any false or deliberately misleading information provided in response to the following questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limbed to monetary sanctions and/or the dismissal of this action with prejudice.

ATC 1983 (Rev. 04/06)

Page 5 of5

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 6 of 9
A'I'IroMNI' '10 CIM?IAINr lN:ER 42 u.s.c. § 1$3

I

'fu: aforara1tiam inlividals are d:nyirg arrl restrict.:in;J rre tha exer:ci.<3e of IT¥ religicn (v.ay of life), I em 'tlilig d:nierl o:nri.stant arrl ~ ca:B3S to tha p:acti.<E of IT¥ religicn,
wdl is in violaticn of 42 u.s.c. §1$3 1:¥ virl:l.E .. tha da:fEnBnt's i.nfri.rg:ra1t of tha plaintiff's

i

riglts 'l.l'J:Er: tha first aladtalt to tha Uri.ted StatEs Cl::nsti.tuticn; arrl violatim of 42 u.s.c.
§ AXX> ee-l, tha nili.girus lard U'3e arrl instituticmliza'l fEt'OCILS crt (RI.IJIPA).

Ridlard c. 'fu3ler:' (Director of '.IIX::J-ID) is rarerl as " resfOdmt ap:ricr" in tha fc:r:ap~
cJ.ajm, alth::ujl Bill P:ierc:e, Chaplain J<n:s, arrl Etl H=rrarrez are~ tn:Er di.ra:t ap:!rvisicn of ~t ap:ricr, arrl are re:p:nsible as chaplains to ensure that plaintiff's religicus re::pirarmts are mat. 'R=ca & of tha d:iJ i b:!rate iirli.f:feri:n: of tha af.orarmtiam
~ in re:fusin:I to hire Slfficialt rurt::ers of mtive arer:ican chaplains to p:ovida ~te arrl 'ffi3ll]..ar arants of c:Ereuari.es, set fcrth 1:¥ A.D. (Jl :~, to Slfficialtly TIEet tha plaintiff's religicus rEEds, arrl a1aJ 1:¥ €!lfc:rcin3 rules arrl regul.ati~ that restrict plaintiff fmn his
a::nstitutia1ally ~rights to p:acti.<E his religicn( v.ay of life) in tha least restrictive
IIB3llS I"¥?CE'S'3ary.

1.). rede~Jin3.

'fu: first iss.E cEels with tha irfrlq.late an::mt of CEI:atari.es that 'll'ere are(l2) 'Dt.el.ve Native lfrerican D:sigrated uri.ts in 'llXlJ - ID,

plaintiff is l::ut cnly (3)

1:htee desigrated Native lr!erican chaplains to .:qErVise tha CEI:atari.es. 'na:e has teen a~

of Native lfrerican chaplains for s::ne pericd rnv. At em t:ine then:! ware cnly cm(l) Native

lm:rican a:ntract dlapl.ain, b..tt. even tl'e1 plaintiff vas l:e:irlJ d::rri.erl acx:ess to J:e3U].ar cem:tari.es.

Bill Pierce, as director of dlapla:irx:y c:p=rati~ for 'llXlJ - ID is resp:nsilile far tha
hi.r:in:l of chaplains to cdninister: to tha ~t:Lal nea:1s of all imat:Es in 'llXlJ- m. re has 1:een
a.are of tha en cpirg rEErl far Native lr!erican chaplains,aOO/cr mtive arer:ican voltnteers,to fulfill th:l:le m:pirg rEEds for q..ti.te s::netine rnv, b..tt. has <ire ~ to hire cr FCCOJCe
re tha servi<E of voltnteers to d:> this. H2 has ::to..n d:literate inli:ffer:en::E to plaintiff's rEEds,
arrl has stated plainly that is rot c:xn:emrl, ~fically that "as far as ha is a:U:Enal,
t,.e get rrore CELBluri.es t:h:ln ha w::uld allON US if ha hcrl a cfloi<E"·

re Etl H:Dlarrlez is rarerl as a dafarl:lnt, b?cal& has l:een eJ.ec:t:aj tha I;XEitim 1:¥ tre

dlapla:irx:y ~ to verify cg;ili.cants as quili.fierl as mtive areriC811S to s..p:!rVise the3e
re aeratari.es. Etl H:m:li'rlaz has U1fcrtunately l:een d..np:rl a la:rl of crap that krn.ls rot:hi.n:} ctx:ut.,

fran wr last mtive arrerican a:ntract dlapl.ain. H2 krn.ls aa:x:x:di.n:3 to wr m::st t:p &.ted A.D.'s

'2!:X:J:3 , ve are still all~ to l'Hve wr trcdi.ticml pipe CEI:alu rt to ware ve can i.rtale tha

STOke fran tha ca:arrn:i.al pipe. 'llXlJ crln:i.nistaticn is ~ tha mtive a:mrmi.ty that ve can

m ~ pn:t.ake of tha pipe aeraluiY as it statEs in wr p::ili.cies k:a::81& of s::ne law a.ri.t
that vas filerl cp to a fE!B:r1 g:~ harp:!s fran sro1d..n3 off tha pipe after arDt:rer ~·

Ebth Billy Pierce anr
rrw rights to p:acticE

Etl
rrw

H:Dlarrlez are religiog (v.ay

~ to siuN dal:i.l:Erate
of life) 1:¥ d:nyirg plaintiff

inli:ffer:en::E arrl ~ acess

violate to his

religicn (way of life) •

'

2.) 'fu: secxrd iss.E cEels with 'llXlJ - ID havin;J arrl enfcrcin3 rules that deny plaintiff
tha ability to p:acti.e2 his religim(\oay of life) in tha least restrictive IIB3llS rE'O?SS3t'Y· In tha dlapla:irx:y rran.al it statEs that Native lnerican p:ia::n2rs are a1J.a.aj to f03E!SS rralici..re ta}s, tut. are cnly all~ to v.e3r tlan " to arrl fran CEI:alulY".
'fu: mrli.c:i.oo l:BJ is a very inp:Jrt.ant asp:d: to tha p:actie2, cr tha fo1.1avi.rg of plaintiffs
religicn (way of life ) • A p:!tKI1 is given thair ''mrli.ci..re" fran tha"c:r:mtor" arrl is userl to vard off rn;Jative cr dest:ru:tive era:gy that is l:::r:'cu:jlt arcurl tha p;![S::n ~ tha mrli.c:i.oo l:B:]. It
is aliD a rani.n:Er of wr Cl':l"IB±icn to all of tha sac:rerl c:r:mticn, arrl halts guide us m wr
sac:rerl Y.elk e3Ch <By. It is a a:nsec:rated itan arrl S'n.ll.d te w::m at all tines.
I:¥ enf~ rules arrl regul.atims in tha dlapla:irx:y rran.al, l:xJth Bill PiercE arrl dlap.l.ain jerEs
are violatirg plaintiff's ri<jlts to fri3Ctie2 his relig~ in a least restrictive rreans. 'llri.s is
a a::ntirui.n:J violaticn totha plaintiff's a.nstituticml first atadtalt rights.

(1)

Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 7 of 9 3.) 'Ire third arrl last i.s.9..E ala:> d:sls with 'II'CJ - ID ~ arrl ~ rules arrl
re:Jl].aticns tlat restrict arrl <Eny tie plaintiff to p:actic:E his religi01 (way of life) in tie le3st restrictive meanc:~ recessary. 'II'CJ - ID rules arrl ~ticns, state par A.D (J7 .3) in tie
offa-rlerorialtatimhard::x:ok, A.D. 3.83. 'II'CJ gro::mi.n:J st:.ardards are to oo en:fc::rca:l with ro
~01 l:::aserl 01 religirus bili.ef. It states ''rrale offen:Ers rn..m. keep tieir tair t.ri.rmed 1.p
tie tack of tieir rnck arrl head. H:rir rn..m. oo rEStly cut. H:rir rrust oo cut araro tie 63!'5".
'll'e:e is ro rule for a farele offa-rler to keep tieir hair cut q:> tie l:ac:k of tieir re::k arrl te;rl, arrl t:tey are alla.al to grG1 tteir hair to tie mi.dJl.e of tieir tacks.'lhats in violati01 of tteir CM1 J;:Olicies arrl is sexu3l discdmi.natim arrl an equal rights violati01 as veil. J;:Olicies
state tlat an offarlar 'W"o is in violati01 of th:se gro::mi.n:J J;:Olicies ate a:bject to oo p.nisherl
bj m= or !'lOre near5 su:h as : l.ocsinJ g:xX.I t.irre,line class, arrl p:ssibly placerl into se:::jm3ated a:nfi.rarent. ( N:ltive Anarican/N:n - N:ltive lmrican \oOTB1 l::oth ha.ve lcn:J hair) •

'!his tle:efore S'o.1s it is a :fara:d r:a:pirarart:, arrl has ro exarpticns, mless iUl are a
ferrale offa-rler, arrl tluls oo~ a first atedtalt violati01 of my cxnstitutiaal rights. rum Plaintiff can sh:w tlat tle:e is a least restrictive meanc:~ to allcw to grow his hair to rreet

his req..rin:rl naais with::ut <DL!XQtLis~ 'II'CJ - ID security, or ~ able to hioo cx:n1:rab3rrl, bj
rum ~ to grow a ~(ka.plcck) Ykri.dl is a m= irx:h ~ secti01 of tair at tie tB9e

of tie skull. 'Ire a:ntirml emcxu:ue 1t of this rule by 'II'CJ - ID officers 'W"o are tn:Er direct

~01 of Ridlard c. 'lhaler, ran::rl as resp:nEnt .sq:a:ior,

. .. · •·

. T.:

'Ire united states district m.rt. for the ro.Jt.i"e:n district of '!exas recievErl a case tlat W3S
rerarrl:rl l:ac:k to tlan fran tie fifth cira.ri.t stat.:in::! tie 'II'CJ - ID gro::mi.n:J st:arrlmls are a
s.bstantial b.ll:dn to tie N:ltive lnerican reliqirus sect. '1he case W3S Ctlml vs. Pierce d:x:ket I case # 2:04- cv - 004.54 I als:> tie fifth cira..ri.t case # is # 05- 41165 /ltril 03, 'X,JE.
it W3S rararrlrl l:ac:k fer :furtla:' ~irqs to rule 01 tie least restrictive near5 b..It W3S
rot ruloo 01 by jLrl:Je at trial . A pl.m l::argain W3S net arrl tie case W3S terminated. 'II'CJ - ID
has ro inta1t.i01 of allcwin::J ~ to have arry qro:rni.rq st.arrl3r:d exarpticns to tieir JDlicies.
'llXD' told :ju::ge &:ian L. ()..]s].ey trey rever plan 01 ~a least restritive meanc:~ to~
a.rt: tie cxnstitutiaal violaticns tlat are a:ntiruiu::sly ao::urirq f!!NerY c:By dE to reliqirus
qra::mi.rq exaq:ticns.

(2)

Case 2:12-cv-00166ATDToAcCuHmMeEnNt T1 RFEilQeUd EoSnT0IN5G/21/R1E2LinIETFXSD Page 8 of 9

I
I

Plaintiff seeks a 09claratory Jtrl:JE:uaJ.t, an:J Injtn:tim fer '1lX:J- ID to hire rrore

t'ative lnerican d1apla:i.r5 to ~ tm CErE!l01i.es to rreet his requirerl naa:ls a1 tm (12)

desigrBt:erl t'ative lnerican lhit.s. Plaintiff ala:> seeks an Injt.n::tial fer '1lX:J - ID to allaN

Plaintiff to have his
re hirErl to~

cera1ari.es with security these cer:alari.es.

~'

mtil

t'ative

Jm:ri.can

~

can

Plaintiff seeks a Ceclratory jtrl:Jara1t, an:J injtn::ticn fer 'liXIT - ID to allON plaintiff to~ his hair,or allON him to grov a a:qllcck(:&:qllcck) as an alternative to gro¥inJ his full ha:D of hair. Plaintiff ala:> req.ESt that if he wins this laws.ri.t that the IE:fa'rlmt.s tBY fer
arrt an:J all o::ur:t exp:rras, lawyers f€es , filinJ fees, an:J etc.. fer tm intire law a.ri.t.

(3)

;e;ij~~~~it,-~-'""::~·---
Case 2:12-cv-00166 Document 1 Filed on 05/21/12 in TXSD Page 9 of 9

 
 Case 2:12-cv-00166 Document 16 Filed on 06/22/12 in TXSD Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS GREY HAWK DAVIS, §

TDCJ-CID #168949,

§

and

§

ROBBIE DOW GOODMAN

§

CASE NO. 2:12-cv-166

TDCJ-CID #758386,

§ (consolidated with Case No. 2:12-cv-169)

Plaintiffs,

§

v.

§

§

RICK THALER, ET AL.

§

ORDER CONCERNING PARTIES AND ORDER ON PENDING MOTIONS

On June 21, 2012, an evidentiary hearing was conducted in this prisoner civil rights action. At the

hearing, the following issues were clarified concerning plaintiff’s pending motions and the proper parties

to this litigation:

(1) Robbie Dow Goodman, TDCJ-CID # 758386, is added as a plaintiff to this lawsuit, and the

Clerk is instructed to note such on the docket, and to include Mr. Goodman in the style of this case. The

motion for joinder of party (D.E. 5), is GRANTED.

(2) Plaintiff Goodman is granted leave to proceed in forma pauperis, and a separate collection

order will be entered.1

(3) Plaintiff Davis orally moved to voluntarily dismiss defendants Ed Hernandez and Chaplain

Jones. That motion is granted, and the Clerk is instructed to remove the names of these individuals from

the docket.

1 Pursuant to the Prison Litigation Reform Act (“PLRA”), each prisoner-plaintiff must pay the court filing fee regardless of whether prisoners join in one action or each file an individual action. See 28 U.S.C. § 1915(b)(1); Boribourne v. Berge, 391 F.3d 852, 854-56 (7th Cir. 2004) (the PLRA obliges prisoners in a joint action seeking to proceed i.f.p. to pay one filing fee per prisoner, rather than splitting one filing fee); Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001) (PLRA did not permit group of prisoners proceeding i.f.p. in § 1983 action against correction officials to join claims and thereby divide single mandatory filing fee among them, regardless of prisoners’ contention that federal joinder rule governed and that their claims arose out of the same transaction or occurrence and involved common questions of law).

Case 2:12-cv-00166 Document 16 Filed on 06/22/12 in TXSD Page 2 of 2
(4) Plaintiff Davis orally moved to amend the original complaint to sue the following individuals in their individual and official capacities:
(i) Clint Morris, Program Analyst for Designated Units. Defendant Morris is alleged to have prohibited the traditional pipe ceremonies at the McConnell Unit, despite a 2008 TDCJ-CID policy that specifically authorizes the pipe ceremonies;
(ii) Madeleine Ortiz, Director of Rehabilitative Programs. The Chaplaincy Department falls under Ms. Ortiz’ supervision, and she is alleged to have approved the decision to prohibit traditional pipe ceremonies, in conflict with the policy; and
(iii) Shawna Mitchell, McConnell Unit Chaplain. Chaplain Mitchell is alleged to have refused to follow the 2008 policy that permits traditional pipe ceremonies.
The motion to amend is granted, and the Clerk is instructed to add these individuals as defendants on the docket.
(5) Plaintiff Davis moved orally to withdraw his retaliation claims and related request for injunctive relief concerning those retaliation claims. That motion is granted, and accordingly, the letter motion for a restraining order (D.E. 11) is denied as moot.
(6) Defendant Rick Thaler is sued in his official capacity only for injunctive relief. (7) Plaintiff’s motion to consolidate (D.E. 15) is denied as moot because a consolidation order was entered on June 12, 2012 (D.E. 14).
ORDERED this 22nd day of June, 2012.
____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS GREY HAWK DAVIS, §

ET AL.,

§

Plaintiffs

§

§

v.

§

§

RICK THALER, ET AL.,

§

Defendants.

§

CASE NO. 2:12cv166

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff is an inmate assigned to the McConnell Unit of TDCJ-CID. He alleges in this

lawsuit filed pursuant to 42 U.S.C. § 1983 that defendants violated the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., as well as his First

Amendment Right to practice his Native American faith (D.E. 1). Pending is plaintiff’s motion for

appointment of counsel (D.E. 4).

In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right of access

to the courts requires that the access be meaningful; that is, prison officials must provide pro se

litigants with writing materials, access to the law library, or other forms of legal assistance. Bounds

v. Smith, 430 U.S. 817, 829 (1977). There is, however, no constitutional right to appointment of

counsel in civil rights cases. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Branch v.

Cole, 686 F.2d 264, 266 (5th Cir. 1982). Further, Bounds did not create a "free-standing right to

a law library or legal assistance." Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is within the

Court's discretion to appoint counsel, unless the case presents "exceptional circumstances," thus

requiring the appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

A number of factors should be examined when determining whether to appoint counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of the case. Id. The case is fairly simple. Plaintiff seeks monetary damages and injunctive relief because he is unable to wear a kouplock, participate in traditional pipe ceremonies, and carry his medicine pouch at all times. An evidentiary hearing was held on June 21, 2012, and his claims will likely be retained and service of process ordered. Though serious, at this stage of the case plaintiff’s allegations are not complex.
The second and third factors are whether the plaintiff is in a position to adequately investigate and present his case. Plaintiff’s pleadings and his testimony during the evidentiary hearing demonstrate that he is reasonably intelligent, articulate, and able to describe the facts underlying his claims. He is aware of the law, and has assisted another inmate in the prosecution of similar claims previously. He appears, at this stage of the case, to be in a position to adequately investigate and present his case.
The fourth factor which should be examined is whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in crossexamination. Examination of this factor is premature. The case has not been set for trial; in fact service of process has not yet been ordered.
Plaintiff has not shown that exceptional circumstances require the appointment of counsel at this time. In addition, there is no indication that appointed counsel would aid in the efficient and equitable disposition of the case. The Court has the authority to award attorneys' fees to a prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney on a contingent-fee
2

arrangement. Plaintiff's motion for appointment of counsel (D.E. 4) is denied without prejudice at this time. This order will be sua sponte reexamined as the case proceeds, particularly if the case is scheduled for trial.
ORDERED this 22nd day of June, 2012. ____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
3

 
 Case 2:12-cv-00166 Document 41 Filed on 09/17/12 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
RICK THALER, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-12-166 § § § §

MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF DAVIS’S MOTION FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Pending is plaintiff Davis’s motion for a temporary restraining order and preliminary injunction (D.E. 29-1, 29-2).1 It is respectfully recommended that plaintiff’s

motion be denied.

I. Jurisdiction.

The Court has federal question jurisdiction over this civil rights action pursuant to

28 U.S.C. § 1331.

II. Background facts and plaintiff’s allegations.

Plaintiff Davis is an inmate currently assigned to the McConnell Unit of TDCJ-

CID (D.E. 1). Plaintiff alleges that he is Native American, and he is being denied the

right to practice his religion in violation of the Constitution and The Religious Land Use

and Institutionalized Persons Act (RLUIPA). Robbie Goodman was allowed to join the

1 Plaintiff Davis brought this motion on behalf of himself and his co-plaintiff. The motion is not signed by coplaintiff Goodman. Plaintiff was warned at the evidentiary hearing that he is not a lawyer and he cannot file motions on behalf of his co-plaintiff. Co-plaintiff Goodman is perfectly capable of filing his own motions for relief. To the extent that plaintiff Davis is acting on behalf of anyone but himself, the request is struck as improper.
1 / 4

Case 2:12-cv-00166 Document 41 Filed on 09/17/12 in TXSD Page 2 of 4
lawsuit as a co-plaintiff. Service of process has been ordered. Plaintiff brings this motion for a temporary restraining order and preliminary injunction, complaining that he and co-plaintiff Goodman are not being allowed adequate time together in the law library to work on their lawsuit. III. Discussion.
In order to obtain a preliminary injunction under Fed. R. Civ. P. 65(a), the applicant must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) the injunction will not disserve the public interest. Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir. 1999). Injunctive relief is an extraordinary remedy which requires the applicant to unequivocally show the need for its issuance. See Valley v. Rapides Parish School Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). Plaintiff must carry the burden as to all four elements before a preliminary injunction may be considered. United States v. Jefferson County, 720 F.2d 1511, 1519 (5th Cir. 1983).
Plaintiff’s motion fails to warrant such an extraordinary remedy. Even assuming plaintiff could demonstrate a likelihood of success on the merits of his claims, he has not suffered any irreparable injury. Plaintiff agrees that he has had law library time with his co-plaintiff, but he merely believes the time allotted has not been sufficient. Plaintiff fails to explain what he could accomplish with more law library time. Service of process has been ordered in the case, and after answers are filed, the court will hear dispositive
2 / 4

Case 2:12-cv-00166 Document 41 Filed on 09/17/12 in TXSD Page 3 of 4
motions. Plaintiff does not represent the co-plaintiff, and the co-plaintiff is capable of filing his own motions and responses to dispositive motions. Plaintiff has not demonstrated any harm at all, and especially not harm outweighed by the defendants’ interest in maintaining security at the prison unit.
Finally, plaintiff has not shown that ordering of injunctive relief at this time would serve the public interest. Federal courts are reluctant to interfere in the internal affairs of local jails or state prisons. See Kahey v. Jones, 836 F.2d 948, 950 (5th Cir. 1988) (federal courts defer to prison administrators concerning day-to-day operations). The ordering of injunctive relief at this stage of plaintiff’s case would not serve the public interest. IV. RECOMMENDATION
Based on the foregoing, it is respectfully recommended that plaintiff’s motion for a temporary restraining order and preliminary injunction (D.E. 29-1, 29-2) be denied.
ORDERED this 17th day of September, 2012. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
3 / 4

Case 2:12-cv-00166 Document 41 Filed on 09/17/12 in TXSD Page 4 of 4
NOTICE TO PARTIES The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
4 / 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, ET AL.,
Plaintiffs
v.
RICK THALER, ET AL., Defendants.

§

§

§

§

§

CASE NO. 2:12cv166

§

§

§

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff Davis is an inmate assigned to the McConnell Unit of TDCJ-CID. He alleges in this

lawsuit filed pursuant to 42 U.S.C. § 1983 that defendants violated the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., as well as his First

Amendment Right to practice his Native American faith (D.E. 1). Pending is plaintiff Davis’s1

second motion for appointment of counsel (D.E. 43).

In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right of access

to the courts requires that the access be meaningful; that is, prison officials must provide pro se

litigants with writing materials, access to the law library, or other forms of legal assistance. Bounds

v. Smith, 430 U.S. 817, 829 (1977). There is, however, no constitutional right to appointment of

counsel in civil rights cases. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Branch v.

Cole, 686 F.2d 264, 266 (5th Cir. 1982). Further, Bounds did not create a "free-standing right to

1Plaintiff Davis has been warned in numerous orders and during a telephone conference call that he cannot file motions on behalf of plaintiff Goodman because Davis is not a lawyer and cannot represent plaintiff Goodman. Plaintiff Goodman must either sign the motion, or he must file his own motion. If plaintiff Davis files another pleading on behalf of plaintiff Goodman without the signature of Goodman on the pleading, sanctions will be ordered. The sanctions may include striking of pleadings and monetary sanctions, and if plaintiff continues to disregard orders of the court, he may face dismissal of his lawsuit.

a law library or legal assistance." Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is within the Court's discretion to appoint counsel, unless the case presents "exceptional circumstances," thus requiring the appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
A number of factors should be examined when determining whether to appoint counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of the case. Id. The case is fairly simple. Plaintiff seeks monetary damages and injunctive relief because he is unable to wear a kouplock, participate in traditional pipe ceremonies, and carry his medicine pouch at all times. An evidentiary hearing was held on June 21, 2012, and his claims were retained and service of process ordered. Though serious, at this stage of the case plaintiff’s allegations are not complex.
The second and third factors are whether the plaintiff is in a position to adequately investigate and present his case. Plaintiff’s pleadings and his testimony during the evidentiary hearing demonstrate that he is reasonably intelligent, articulate, and able to describe the facts underlying his claims. He is aware of the law, and has assisted another inmate in the prosecution of similar claims previously. He appears, at this stage of the case, to be in a position to adequately investigate and present his case.
The fourth factor which should be examined is whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in crossexamination. Examination of this factor is premature. The case has not been set for trial; in fact a deadline for dispositive motions has not yet been set.
Plaintiff has not shown that exceptional circumstances require the appointment of counsel at this time. In addition, there is no indication that appointed counsel would aid in the efficient and
2

equitable disposition of the case. The Court has the authority to award attorneys' fees to a prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney on a contingent-fee arrangement. Plaintiff's motion for appointment of counsel (D.E. 43) is denied without prejudice at this time. This order will be sua sponte reexamined as the case proceeds, particularly if the case is scheduled for trial.
ORDERED this 2nd day of October, 2012. ____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
3

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
RICK THALER, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-12-166 § § § §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF DAVIS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Pending before the Court is Plaintiff Davis’ “Motion Requesting Temporary

Restraining Order/Preliminary Injunction Relief” (D.E. 29). On September 17, 2012,

United States Magistrate Judge B. Janice Ellington issued a Memorandum and

Recommendation (D.E. 41), recommending that Plaintiff’s Motion be denied. Plaintiffs

Davis and Goodman filed their Objections (D.E. 48) on October 3, 2012.

Plaintiffs, in their Objections, repeat their argument that they are being denied law

library time to confer together in violation of ATC-050, which outlines the prison policy

for law library usage for joint sessions. They aver generally that the Memorandum and

Recommendation reaches the wrong conclusion.

Plaintiffs have not identified any defect in the Magistrate Judge’s outline of the

law applicable to motions for injunctive relief. Neither have they demonstrated that they

have satisfied their burden of proof on any of the four elements governing the issuance of

injunctive relief. In fact, they have not even demonstrated (1) that they have complied

1 / 2

with the ATC-050 policy regarding the manner in which such joint sessions must be requested or (2) that specific requests that have been submitted have actually been denied.
While they outline the sessions that have been granted and have identified which ones have included joint conferences, they have not shown how those sessions have been inadequate or that they are being denied the ability to prepare for a certain deadline. Injunctive relief is an extraordinary remedy and Plaintiffs have not demonstrated that they are entitled to such relief. Plaintiffs’ Objections are OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Plaintiffs’ Objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation to which objections were specifically directed, the Court OVERRULES Plaintiffs’ Objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly, the “Motion Requesting Temporary Restraining Order/Preliminary Injunction Relief” (D.E. 29). is DENIED.
ORDERED this 16th day of October, 2012.
___________________________________ NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE
2 / 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, ET AL.,

§

Plaintiffs,

§

v.

§

§

RICK THALER, ET AL.,

§

Defendants. §

CAUSE NO. 2:12-cv-166

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR RULE 7(a) REPLY

Pending is defendant Madeline Ortiz’s motion for Rule 7(a) reply (D.E. 52); neither

of the two plaintiffs has filed an objection to the motion.1 For the reasons stated herein, Ms.

Ortiz’s Rule 7(a) motion is granted. Plaintiff s are ordered to answer the questions set forth

herein within thirty (30) days of the date of entry of this Order and to serve a copy on Ms.

Ortiz.

I. Background

In this prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, plaintiffs Teddy

Norris Davis and Robbie Dow Goodman allege that defendants have violated, and continue

to violate, their right to practice their Native American religion, in violation of provisions of

the Religious Land Use and Institutionalized Persons Act (“RLUPIA”), 42 U.S.C. § 2000cc,

and the First Amendment. Plaintiffs seek injunctive and declaratory relief from the Texas

Department of Criminal Justice, Criminal Institutions Division (“TDCJ-CID”) to: (1) hire

more Native American chaplains; (2) have security personnel available to supervise the

1 Pursuant to Local Rule 7.4, failure to respond is taken as a representation of no opposition.

Native American religious ceremonies until such time that more Native American chaplains can be hired; (3) allow plaintiffs to grow their hair or allow them to grow a kouplock; (4) smoke the ceremonial pipe at pipe ceremonies; (5) wear their medicine bags at all times; (6) damages for violations of their First Amendment rights; and (7) and court costs. (See D.E. 1, 16).
Plaintiffs have sued Ms. Ortiz in both her individual and official capacities. (D.E. 16 at 2). Plaintiffs identify Ms. Ortiz as the Director of Rehabilitative Programs for the TDCJ, and claim that the Chaplaincy Department falls under her supervision. Plaintiffs contend that she approved the decision to prohibit traditional pipe ceremonies, in conflict with McConnell Unit policy, and in violation of RLUIPA and the First Amendment. Plaintiff Davis also testified that he wrote letters to Ms. Ortiz concerning the pipe ceremonies, but that she did not answer his inquiries and simply forwarded them to defendant Clint Morris. (See D.E. 26, June 21, 2012 Evidentiary Hearing Transcript at p. 31, line 8 - p. 32, line 10).
On August 27, 2012, Madeline Ortiz filed her answer and raised the defense of qualified immunity. (D.E. 30).
II. Rule 7(a) Request In her request for a Rule 7(a) reply, Madeline Ortiz points out that, except for plaintiff Davis’s brief testimony at the evidentiary hearing, neither Davis nor Goodman has stated with any specificity in either the original or amended complaint any facts that explain what acts or omissions of Madeline Ortiz in her individual capacity violated plaintiffs’ First Amendment rights. Indeed, Ms. Ortiz contends that plaintiffs’ claims against her arise solely
2

from her supervisory role in the TDCJ, which fails to state a cognizable § 1983 claim. See
Monell v. Department of Social Services, 436 U.S. 658, 690-92 (1978) (section 1983 will not
support a claim based on respondeat superior or vicarious liability.”).
III. Discussion
Rule 7(a) of the Federal Rules of Civil Procedure authorizes the district court to
“order a reply to an answer.” The Fifth Circuit has held en banc that an individual defendant
who pleads immunity to a federal civil action is entitled to have the plaintiff ordered to reply
under Rule 7. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). The
Schultea Court stated:
Such an order will require the Plaintiff to reply to that [immunity] defense in detail. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations... . [The] Plaintiff [must] support his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendant’s conduct at the time of the alleged acts.
Id., 47 F.3d at 1434. “A plaintiff cannot overcome a qualified immunity defense with mere
conclusory allegations [but] must plead specific facts with sufficient particularity ... to negate
the defense of qualified immunity.” Burns-Toole v. Byrne, 11 F.3d 1270, 1274, cert. denied,
512 U.S. 1207 (1994) (citing Elliott v. Perez, 751 F.2d 1472, 1479, 1482 (5th Cir. 1985)).
The Fifth Circuit continues to require that plaintiffs suing governmental officials in
their individual capacities must allege specific conduct giving rise to a constitutional
violation. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). That
is, in order to survive, § 1983 actions against defendants in their individual capacities “must
3

be pled with factual detail and particularity, not mere conclusory allegations.” Id.
Ms. Ortiz has raised the defense of qualified immunity. (D.E. 30). She argues that,
encompassed within this defense, is the right to be informed of the allegations against her in
a fact- specific way. As it stands now, plaintiffs have failed to identify any specific date,
time, or place in which Ms. Ortiz personally denied either plaintiff the right to practice his
religion. So that Ms. Ortiz might properly respond to plaintiffs’ allegations, plaintiffs are
each hereby ORDERED to answer the following questions within thirty (30) days of the
date of entry of this Order:
(1) List all dates (and times, if available) that you personally met with Ms. Ortiz regarding any aspect of the practice of your Native American beliefs, including pipe ceremonies, kouplocks, possession of medicine bags, and chaplain availability. Describe the meetings with as much detail as you can remember, such as if you were in your cell, or her office. Were other inmates around that can confirm the conversation took place?
(2) List all dates that you corresponded with Ms. Ortiz, via letter, grievances, I60s, or any other manner concerning the practice of your Native American religion. Submit a copy of the correspondence if available, and if not, describe the nature of the communication. Describe any response you received from Ms. Ortiz or any other prison official.
(3) In what manner do you believe Ms. Ortiz acted unreasonably regarding your First Amendment rights? What actions do you believe she should have taken?
Label your pleading “Rule 7(a) Reply.” In addition, include the following declaration
at the end of your reply. “I declare, under penalty of perjury under the laws of the United
States of America, that the foregoing is true and correct. See 28 U.S.C. § 1746.” The
declaration must be dated and signed, and each plaintiff must submit his own individual Rule
7(a) reply.
4

In lieu of complying with this order, should either plaintiff desire to dismiss his First Amendment claims against Madeline Ortiz in her individual capacity, he may sign and return the attached motion for voluntary dismissal.
ORDERED this 15th day of November, 2012. ____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, ET AL.,

§

Plaintiffs,

§

v.

§

§

RICK THALER, ET AL.,

§

Defendants. §

CAUSE NO. 2:12-cv-166

MOTION FOR VOLUNTARY DISMISSAL

I, (circle one) Teddy Norris Davis / Robbie Dow Goodman, a plaintiff herein, seek

voluntary dismissal of my First Amendment claims against Madeline Ortiz in her individual

capacity pursuant to Rule 41(a)(2), Fed. R. Civ. P., because I do not want to prosecute these

claims against her. I understand that this is a dismissal with prejudice.

________________________________ Plaintiff
________________________________ Date

 
 Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, ET AL.,

§

Plaintiffs,

§

v.

§

§

RICK THALER, ET AL.,

§

Defendants. §

CAUSE NO. 2:12-cv-166

MEMORANDUM AND RECOMMENDATION ON ON DEFENDANT MORRIS’ MOTION TO DISMISS

Pending is defendant Clint Morris’ motion to dismiss plaintiffs’ claims against him

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and

alternatively for an order to file a Rule 7(a) Reply (D.E. 51). Plaintiffs have filed a response

in opposition. (D.E. 57). For the reasons stated herein, it is respectfully recommended that

defendant Morris’ motion to dismiss be granted in part, and denied in part, as set forth herein.

I. Background

In this prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, plaintiffs Teddy

Norris Davis and Robbie Dow Goodman allege that defendants have violated, and continue

to violate, their right to practice their Native American religion, in violation of provisions of

the Religious Land Use and Institutionalized Persons Act (“RLUPIA”), 42 U.S.C. § 2000cc,

and the First Amendment. Plaintiffs seek injunctive and declaratory relief from the Texas

Department of Criminal Justice, Criminal Institutions Division (“TDCJ-CID”) to: (1) hire

more Native American chaplains; (2) have security personnel available to supervise the

Native American religious ceremonies until such time that more Native American chaplains

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 2 of 11
can be hired; (3) allow plaintiffs to grow their hair or allow them to grow a kouplock; (4) smoke the ceremonial pipe at pipe ceremonies; and (5) wear their medicine bags at all times. Plaintiffs seek damages against certain individual defendants, including Clint Morris, for alleged violations of their First Amendment rights. (D.E. 1, 16).
Plaintiffs have sued Clint Morris in both his individual and official capacities. (D.E. 16 at 2). Plaintiffs identify Mr. Morris as the Program Analyst for Designated Units and claim that he is responsible for: (1) monitoring and evaluating Native American programs at designated units; (2) recruiting volunteers and contracting with chaplains to conduct Native American ceremonies; and (3) developing policies and procedures that govern and promote the success and accessibility of Native American programs at designated units. (D.E. 57 at 5). Plaintiff contend that Clint Morris failed to perform his job, and in so failing, violated both RLUIPA and the First Amendment, because, under his watch, pipe ceremonies that had been authorized by TDCJ-CID policy in 2008 were not conducted at the McConnell Unit,1 and that he failed to use his position to assist inmates in the practice of their faith. Plaintiffs note that they last participated in a traditional pipe ceremony in 2008.
On August 27, 2012, Clint Morris filed his answer and raised the defense of qualified immunity. (D.E. 30).
On October 10, 2012, Mr. Morris filed the instant motion to dismiss. (D.E. 51).
1 Effective July 2012, the TDCJ-CID now prohibits pipe ceremonies. 2

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 3 of 11

On November 5, 2012, plaintiffs filed their response in opposition to the dismissal.

(D.E. 57).

II. Motion to Dismiss

In support of his motion to dismiss, Mr. Morris has offered as evidence:

Ex. A:

Affidavit of Clint Morris;

Ex. B:

TDCJ Job Description for Program Analyst;

Ex. C:

September 8, 2011 TDCJ Memorandum Regarding Native American

Issues; and

Ex. D: American

Relevant portions of the 2012 TDCJ Chaplaincy Policy regarding Native Religious Services.2

In his affidavit, Clint Morris states that he has been employed by the TDCJ since May,

2009, and his current position title is “Program Supervisor III – Rehabilitation Programs

Analyst in the Rehabilitation Programs Division (RPD) – of the Texas Department of

Criminal Justice.” (RMD, Ex. A, Morris Aff’t at ¶ 1, ¶ 2). He relates that his general

responsibilities include: monitor and evaluate Native American and Jewish programs at

designated units; recruitment of volunteers and contract chaplains for Native American and

Jewish programs; confer with RPD staff on program issues and to identify and implement

solutions; and to develop and draft policies and procedures under the direction of the RPD

Manager III – Services. Id., Morris Aff’t at ¶ 2. He points out that he does not have the

2 Reference to Morris’ motion to dismiss (D.E. 51), is to “DMD,” followed by an exhibit letter. Reference to plaintiffs’ response, (D.E. 57), is to “PR,” followed by a page number.
3

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 4 of 11
authority to ratify or change any TDCJ policies, procedures, or rules, and that, even if plaintiffs prevailed in their claims, he would not be able to implement the relief requested. Id., Morris Aff’t at ¶ 3. That is, he has no executive function. Id., Morris Aff’t at ¶ 4. (See also DMD, Ex. B, TDCJ job description for Program Supervisor III).
Defendant also offers in support of his motion to dismiss the minutes from a September 8, 2011 meeting in which Mr. Morris, defendant Bill Pierce, and others were present to discuss various issues concerning Native American ceremonies. (RMD, Ex. C). It was noted that pipe ceremonies were conducted at the Daniel Unit with a shared pipe, and a discussion followed regarding medical and sanitation issues, and liability releases. Id. at 1 - 2. Security issues were discussed, and it was noted that tobacco distributed for the pipe ceremony at the Daniels Unit “kept disappearing.” Id. at 2. The group discussed personal pipes for Native American offenders, but concluded personal pipes would create too great of a security concern and burden, and the cost was great. Id. at 3. It was noted that the Cherokee Nation of Texas, the Lakota Nation and the Apache Nation were not interested in assisting with the cost or donation of personal pipes as they believed the offenders had “lost the right to take of the pipe.” The group reached a consensus that there be: (1) no communal offender pipes; (2) no offender-owned or possessed pipes allowed; (3) no storage of offender-possessed pipes or pipe herbs by the TDCJ; and (4) Native Americans be provided with one pipe ceremony per month, with smoking to be done only by the volunteer/chaplain. Id. at 4.
4

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 5 of 11
In July 2012, the Chaplaincy Manual was revised to reflect changes concerning religious devotional items. (DMD Ex. D). In summary, the policy, 05.01, provides that an offender is permitted to possess only approved religious devotional items. (RMD, Ex. D at 1, Procedures, ¶ I.A). Concerning medicine bags or pouches in particular, the policy provides that an offender may possess one medicine bag or pouch, and that wearing of the item “is limited to the offender’s cell or immediate bunk area in a dorm setting, and at religious services.” Id. at 4, ¶ I.D.
III. Discussion Defendant Morris moves for dismissal of plaintiffs’ claims against him pursuant to Rule 12(b)(1), and Rule 12(b)(6) of the Federal Rules of Civil Procedure. He argues that a Rule 12(b)(1) dismissal is appropriate regarding plaintiff’s claims against him in his official capacity for monetary relief as such claims are barred by the Eleventh Amendment. He contends further that plaintiffs claims against him for injunctive relief are not available because, in his capacity as a program analyst, he does not have the authority to “act.” As to plaintiffs’ claims against him in his individual capacity, Morris argues that he is entitled to dismissal for failure to state a claim because he is entitled to qualified immunity. A. Eleventh Amendment. 1. Monetary damages and official capacity. A suit against a state actor in his or her official capacity for monetary damages is, for all intensive purposes, a suit against the state itself. Howlett v. Rose, 496 U.S. 356, 365-66 (1990). The Eleventh Amendment is a jurisdictional bar to a suit for money damages against
5

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 6 of 11
a state. Pennhurst State Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Indeed, the Fifth Circuit has repeatedly held that the Eleventh Amendment bars claims for money damages against TDCJ officers in their official capacities. See e.g., Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). Accordingly, to the extent plaintiffs are suing Clint Morris in his official capacity for money damages, those claims are barred by the Eleventh Amendment, and therefore, they are properly dismissed.
2. Injunctive relief and official capacity. It is well established that the Eleventh Amendment does not bar a plaintiff’s claim for prospective injunctive relief. Ex parte Young, 209 U.S. 123, 159 (1908); Edelman v. Jordan, 415 U.S. 651, 666-68 (1974) ; Green v. Mansour, 474 U.S. 64, 68 (1985). However, for the Ex parte Young exception to apply, the court must examine: (1) the ability of the official to enforce the statute at issue under his statutory or constitutional power, and (2) the demonstrated willingness of the official to enforce the statute. Okpalobi v. Foster, 244 F.3d 405, 425-27 (5th Cir. 2001). That is, “the necessary fiction of Young requires that the defendant state official be acting, threatening to act, or at least have the ability to act.” Okpalobi, 244 F.3d at 405. The Fifth Circuit has noted that a state official cannot be enjoined to act in any way that is beyond his authority to act in the first place. Id. at 427. Mr. Morris’ authority in his official capacity is limited to the responsibilities set forth in his job description. (See DMD, Ex. A, Morris Aff’t at ¶ 3; Ex. B). His responsibilities do not include amending or ratifying TDCJ policy. That is, even should plaintiffs prevail under RLUIPA and establish that the TDCJ must provide monthly ceremonial pipe ceremonies,
6

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 7 of 11
or allow offenders to wear a kouplock, or any other requested injunctive relief, the proper official to implement this change will be Rick Thaler, as TDCJ Executive Director. Indeed, it was specifically discussed at the evidentiary hearing that Rick Thaler was the necessary defendant to enforce any prospective injunctive relief. Thus, it is respectfully recommended that plaintiffs’ claims for injunctive relief against defendant Morris be dismissed. B. First Amendment claims against Morris in his individual capacity.
Plaintiffs are suing Mr. Morris in his individual capacity for monetary damages for alleged violations of their First Amendment rights. Plaintiffs argue that Mr. Morris arrived at the McConnell Unit in May 2009, and at that time, pipe ceremonies were in fact authorized by TDCJ policy. Plaintiffs contend that Mr. Morris failed to perform or authorize the very responsibilities he was hired by the TDCJ to perform, effectively denying plaintiffs their right to practice their religion as provided by the First Amendment. Defendant Morris seeks to dismiss plaintiffs’ claims on the grounds that they have failed to raise a constitutional violation and argues that his actions were objectively reasonable, such that he is entitled to qualified immunity.
Although Rule 12(b)(6) authorizes a defendant to move to dismiss a complaint for “failure to state a claim upon which relief may be granted,” the district court must construe the complaint in a light most favorable to the plaintiff, and the allegations contained therein must be taken as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
7

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 8 of 11
citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In the context of a defendant’s motion to dismiss, the district court’s review is limited to the allegations in the complaint and to those documents attached to a defendant's motion to dismiss to the extent that those documents are referred to in the complaint and are central to the claims. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). “If, based on the facts pleaded and judicially noticed, a successful affirmative defense appears, then dismissal under Rule 12(b)(6) is proper.” Hall v. Hodgkins, No. 08-40516, 2008 WL 5352000, *3 (5th Cir. 2008).
Plaintiffs have alleged sufficient facts that, if true, state a First Amendment claim for denial of their right to practice their Native American religion against defendant Mr. Morris. Plaintiffs have alleged that Mr. Morris was in charge of volunteers and chaplains, yet they have not had a pipe ceremony since 2008. Although the July 2012 policy may now prohibit such pipe ceremonies, the prohibition was not in effect in May 2009 when Mr. Morris assumed his responsibilities as program analyst, and ceremonies could have been conducted until July 2012. Moreover, by his own admission, Morris participated in the discussion which led to a change in TDCJ policy.3 Plaintiffs argue that Mr. Morris should be an advocate for their rights, but has failed to do so. Although additional information may establish that Mr. Morris’ actions are objectively reasonable and that he is entitled to
3It does not appear that plaintiffs were aware of the July 2012 change in policy. Should plaintiffs wish to amend their complaint to add a claim that the new policy is unconstitutional and violates RLUIPA, it would make sense and would conserve judicial resources to litigate such claims in this lawsuit.
8

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 9 of 11
qualified immunity, a Rule12(b)(6) motion is not the proper vehicle to address that defense. Thus, it is respectfully recommended that defendant Morris’ motion to dismiss plaintiff’s First Amendment claims against him in his individual capacity be denied.
IV. Motion for Rule 7(a) Reply Alternatively defendant Morris moves for the court to order a Rule 7(a) Reply. Rule 7(a) of the Federal Rules of Civil Procedure authorizes the district court to “order a reply to an answer.” The Fifth Circuit has held en banc that an individual defendant who pleads immunity to a federal civil action is entitled to have the plaintiff ordered to reply under Rule 7. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). The Schultea Court stated:
Such an order will require the Plaintiff to reply to that [immunity] defense in detail. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations... . [The] Plaintiff [must] support his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendant’s conduct at the time of the alleged acts. Id., 47 F.3d at 1434. “A plaintiff cannot overcome a qualified immunity defense with mere conclusory allegations [but] must plead specific facts with sufficient particularity ... to negate the defense of qualified immunity.” Burns-Toole v. Byrne, 11 F.3d 1270, 1274, cert. denied, 512 U.S. 1207 (1994) (citing Elliott v. Perez, 751 F.2d 1472, 1479, 1482 (5th Cir. 1985)). As set forth above, plaintiffs have plead sufficient facts to pursue their constitutional claims and to overcome the qualified immunity defense at this stage of the
9

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 10 of 11
litigation. Defendant Morris may seek discovery from plaintiffs, if necessary, to pursue his summary judgment motion on qualified immunity.
V. Recommendation For the reasons stated above, it is respectfully recommended that the Court grant in part, and deny in part, defendant Morris’ motion to dismiss (D.E. 51), as follows: (1) Plaintiffs’ claims for monetary damages against Mr. Morris in his official
capacity be dismissed as barred by the Eleventh Amendment; (2) Plaintiffs’ claims for injunctive relief against Mr. Morris in his individual
capacity be dismissed because he has no authority to grant the relief requested; and (3) Plaintiffs’ claims for money damages against Mr. Morris in his individual capacity alleging that he violated their First Amendment rights be retained. It is further recommended that defendant’s alternative motion for a Rule 7(a) reply be denied because plaintiffs have provided sufficient detail for defendant Morris to understand and defend the claims against him. Respectfully submitted this 16th day of November, 2012.
____________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
10

Case 2:12-cv-00166 Document 65 Filed on 11/16/12 in TXSD Page 11 of 11
NOTICE TO PARTIES The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

 
 Case 2:12-cv-00166 Document 80 Filed on 01/07/13 in TXSD Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS and ROBBIE DOW GOODMAN,
Plaintiffs,
v.
RICK THALER, ET AL., Defendants.

§

§

§

§

§

§

CIVIL ACTION NO. 2:12-CV-00166

§

§

§

§

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION ON DEFENDANT CLINT MORRIS' MOTION TO DISMISS

Before the Court is Defendant Clint Morris' Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(l) and 12(b)(6). (D.E. 51.) United States Magistrate Judge B. Janice Ellington issued a memorandum and recommendation to the Court in which she recommends that the Court grant in part and deny in part Morris' motion to dismiss. (D.E. 65.) Defendant Clint Morris (Morris) timely objected to the Magistrate Judge's memorandum and recommendation. (D.E. 74.) Morris is entitled to a de novo disposition by the District Judge of those portions of the Magistrate Judge's memorandum and recommendation to which timely objections were filed. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(l); Koetting v. Thompson, 995 F.2d 37,40 (5th Cir. 1993).
Morris objects that the memorandum and recommendation promotes an improper theory ofliability based on respondeat superior. (D.E. 74 at 3.) Morris asserts that Plaintiffs' complaint and response do not state a claim for the deprivation of a constitutional right, and the Magistrate Judge improperly recommends that the Court retain Plaintiffs' First Amendment claim based on vicarious liability. (Id. at 2.) Morris argues that the only allegations against him are that he

Case 2:12-cv-00166 Document 80 Filed on 01/07/13 in TXSD Page 2 of 4
recruited and supervised the volunteer chaplains, who refused to perform the traditional Native American pipe ceremonies. (!d. at 2-3.) Morris argues that he is therefore entitled to qualified immunity because Plaintiffs were required to show that Morris was personally involved in a constitutional violation or in the creation of a policy that caused a constitutional injury, and Plaintiffs complaint merely alleges that he failed to recruit qualified volunteer chaplains. (!d. at 4.) The Court disagrees with Morris' interpretation of the memorandum and recommendation and Plaintiffs' factual allegations.
Morris narrowly focuses on the factual allegations and arguments set forth in Plaintiffs' complaint and response to the motion to dismiss, arguing that Plaintiffs failed to show that Morris was personally involved in any constitutional violation or the creation or implementation of an unconstitutional policy. However, a pro se prisoner's civil rights complaint must be construed liberally, and any relevant factual allegations set forth at the Spears hearing may be incorporated into the complaint. Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996). The Spears hearing permits the magistrate judge to dig beneath the pro se prisoner's complaint to ascertain whether there exists a factual and legal basis for the claims. See Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998) ("the Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners"); Lowrey v. Collin County Sheriffs Dept., No. 93-5081, 1994 WL 35601, at *2 (5th Cir. Jan. 26, 1994) (unpublished); Spears v. McCotter, 766 F.2d at 181-82 (5th Cir. 1985) ("We see no reason why a district court may not ... refer the case to a magistrate to hold an evidentiary hearing 'in the nature of a motion for more definite statement' ").
During the Spears hearing before the Magistrate Judge on June 21, 2013, Plaintiff Teddy Norris Davis (Davis) alleged that Defendants Billy Pierce and Morris are the ones that had the
2

Case 2:12-cv-00166 Document 80 Filed on 01/07/13 in TXSD Page 3 of 4
final say about the pipe ceremonies. (D.E. 26 at 22.) Davis stated that Morris "is the one that actually ceased the pipe ceremonies." (!d. at 24.) Davis alleged that prison policy required that inmates be allowed one pipe ceremony per week, but the chaplains were ordered not to perform the traditional Native American pipe ceremony, wherein the inmates would inhale the smoke and prayers from the pipe and then release them to the Creator. (!d. at 14-15, 19-20.) Davis alleged that the chaplains were only permitted to do a teaching ceremony where a pipe was present but not actually lit and smoked by the inmates. (!d. at 20.)
In her memorandum and recommendation, the Magistrate Judge sets forth the following factual allegations asserted by Davis at the Spears hearing: that Morris was responsible for developing the policies and procedures that governed the Native American religious programs at the prison; that Morris failed to use his position to assist inmates in the practice of their faith; and that Morris' failure to develop and implement appropriate policies effectively denied Plaintiffs of their constitutional right to practice their religion. (D.E. 65 at 2, 7.) Additionally, the Magistrate Judge indicates that Morris assisted in the creation of a new policy at the prison prohibiting pipe ceremonies, which took effect in 2012. (!d. at 8.) The Magistrate Judge concludes that Plaintiffs have alleged sufficient facts that, if taken as true, state a First Amendment claim for the denial of the inmates' constitutional right to freedom of religion. (/d.) The Court agrees. Morris' objections to the Magistrate Judge's memorandum and recommendation are OVERRULED.
Having reviewed the findings of facts, conclusions of law, and recommendations set forth in the Magistrate Judge's memorandum and recommendation (D.E. 65); Plaintiffs' complaint (D.E. 1); the transcript ofthe Spears hearing (D.E. 26); and all other relevant documents in the record, the Court ADOPTS as its own the findings and conclusions of the Magistrate Judge.
3

.
Case 2:12-cv-00166 Document 80 Filed on 01/07/13 in TXSD Page 4 of 4

Accordingly, Defendant Clint Morris' Motion to Dismiss Pursuant to FED. R. Civ. P. 12(b)(l) and 12(b)(6) (D.E. 51) is GRANTED IN PART and DENIED IN PART.

ORDERED this 7th day of January 2013.

~ ~ lRJ:&

e._

GoNZALiSOs

UNITED STATES DISTRICT JUDGE

4

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
BILLY PIERCE, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:12-CV-166 § § § §

OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

In this prisoner civil rights action, Plaintiffs Teddy Norris Davis and Robbie Dow

Goodman allege that Defendants have violated, and continue to violate, their right to

practice their Native American religion, in violation of the Religious Land Use and

Institutionalized Persons Act (RLUPIA), 42 U.S.C. § 2000cc, and the First Amendment.

Plaintiffs seek injunctive and declaratory relief from the Texas Department of Criminal

Justice, Criminal Institutions Division (TDCJ-CID), by and through the TDCJ-CID

Director William Stephens, sued in his official capacity only, to: (1) allow Plaintiffs to

smoke a communal pipe and/or a personal pipe during Native American ceremonies; (2)

provide a minimum of two pipe ceremonies per month and/or otherwise increase the

number of Native American services at the McConnell Unit; (3) allow Plaintiffs to grow

their hair and/or grow a kouplock; and (4) allow Plaintiffs to wear their medicine bags at

all times. (D.E. 1, 16, 88). Plaintiffs have also sued Clint Morris, the TDCJ Program

Analyst for Designated Units, claiming that he personally violated their First Amendment

free exercise rights because he failed to advocate for the rights of Native American

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prisoners, including Plaintiffs, and as such, is liable in his individual capacity for monetary damages. (See Case No. 2:12-cv-166, Minutes Entry for 02/22/13, and D.E. 143 at pp. 1-2, Plaintiffs’ SJM response).
Pending is Defendants’ motion for summary judgment to deny Plaintiffs’ claims (D.E. 120-122, 125), and Plaintiffs’ cross-motion for summary judgment. (D.E. 129). For the reasons stated herein, Defendants’ motion is granted, and Plaintiffs’ claims are dismissed with prejudice. I. Jurisdiction.
The Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331. Upon consent of the parties (D.E. 87, 102, 157), this case was referred to the undersigned United States magistrate judge to conduct all further proceedings, including entry of final judgment. (D.E. 107). See 28 U.S.C. § 636(c). II. Procedural background.
The procedural history of this case has been fully and accurately detailed in previous pleadings, and is adequately reflected in the docket. However, a brief review is presented to explain the current posture of Plaintiffs’ claims against the remaining two Defendants.
Plaintiffs are prisoners in the TDCJ-CID, and are both currently confined at the McConnell Unit in Beeville, Texas. Both Plaintiffs practice the Native American (NA) faith.1 On May 21, 2012, Plaintiff Davis filed his original complaint challenging as
1 The Court acknowledges that neither the term “Native American faith” nor “Native American religion” adequately represents the defined belief system of the Plaintiffs or any particular Native
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unconstitutional, inter alia, the TDCJ grooming policy requiring inmates to cut their hair,
the prohibition of wearing a medicine bag, and the lack of NA services. (D.E. 1). He
named as defendants the TDCJ-CID Director (then Rick Thaler, and now William
Stephens) and Bill Pierce, the Director of the TDCJ Chaplaincy Department. On June 21, 2012, a Spears2 hearing was held with Plaintiff Davis, and he orally
moved to add as defendants (1) Clint Morris, the Program Analyst for Designated Units,
(2) Madeline Ortiz, the Director of Rehabilitative Programs, and (3) Shawna Mitchell, the
McConnell Unit Chaplain.
On June 22, 2012, Robbie Goodman was granted leave to join as a plaintiff. (D.E.
16).
On July 12, 2012, Plaintiffs filed a motion to add as a defendant Regional
Chaplain Sam Longoria. (D.E. 21).
On July 13, 2012, service was ordered on Defendants Thaler, Pierce, Morris,
Ortiz, and Mitchell. (D.E. 22).
On August 27, 2012, Defendants Thaler, Pierce, Morris, Ortiz, and Mitchell filed
their Answer. (D.E. 30). On August 30, 2012, Shawna Mitchell filed a Rule 12(b)(6)
American practitioner because the faith itself encompass a wide range of beliefs from different tribes and regions. See Affidavit of Chari Bouse, Contract Native American Chaplain, MSJ App. 122 (“Currently, there are 565 federally recognized tribes… Each tribe has its own specific customs and traditions. However, there are several ‘inter-tribal’ customs, and even that varies in tribes from different states. NAs are not religious by nature, but adhere to what we call a ‘way of life.’ Our people are ‘monotheistic,’ meaning we recognize only one Creator God or deity…”). A running similarity in the Native American faith system is the central relationship of human beings, and their bodies, to the land, nature, reality, and spirituality. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 460-61 (1988) (J. Brennan, dissenting). 2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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motion to dismiss (D.E. 32), to which Plaintiffs agreed (D.E. 44), and Chaplain Mitchell was dismissed from this action. (D.E. 64).
On October 10, 2012, Defendant Morris filed a motion to dismiss arguing, inter alia, that Plaintiffs were attempting to hold him liable on a theory of respondeat superior. (D.E. 51). On January 7, 2013, Plaintiffs’ RLUIPA and § 1983 claims against Morris in his official capacity were dismissed; but the Court retained Plaintiff’s free exercise claims against Morris in his individual capacity. (See D.E. 65, 80).
On September 17, 2012, Plaintiffs were granted leave to add as a defendant Chaplain Longoria, (D.E. 39), and on November 1, 2012, Longoria filed a motion to dismiss. (D.E. 56).
On November 23, 2012, Plaintiffs sought leave to file an amended complaint. (D.E. 71). Leave was granted, and on February 11, 2013, Plaintiffs filed their Amended Complaint.3 (D.E. 88).
On February 22, 2013, a telephone conference was held during which Plaintiffs orally moved to dismiss all claims against Defendants Ortiz, Longoria, and Pierce. Plaintiffs retained their RLUIPA claim and First Amendment claim against the TDCJ Director, and retained their free exercise claim against Defendant Morris in his individual capacity only.
On July 8, 2013, Defendants filed the instant motion for summary judgment (D.E. 120), with an accompanying appendix, (D.E. 121-122), and supplement.4 (D.E. 125).
3 The operative pleading is now Plaintiffs’ Amended Complaint (D.E. 88), filed on February 11, 2013.
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On July 19, 2013, Plaintiffs filed a motion for “summary judgment default” (D.E. 129), to which Defendants filed a response (D.E. 131). Also on that date, William Stephens was substituted as the proper party defendant in place of Rick Thaler.
Following several extensions of time, on October 28, 2013, Plaintiffs filed a response in opposition to Defendants’ summary judgment motion. (D.E. 143). Thereafter, additional time was granted for both parties to file additional supplements, responses, and replies. III. Summary judgment evidence.
On April 13, 1995, Jolene Yellowquill, a Native American of Ojibwe heritage who was confined at a TDCJ unit in Gatesville, Texas, filed suit for injunctive relief in the United States District Court for the Southern District of Texas, Houston Division, seeking, inter alia, that the TDCJ be required to provide sacred pipe ceremonies to Native American adherents confined within the TDCJ. (See Yellowquill v. Scott, Case No. 4:95cv-1080, D.E. 1, 63). On May 22, 1997, the Houston district court granted Yellowtail’s motion for a temporary restraining order. (Id., Case No. 4:95-cv-1080 at D.E. 71). Thereafter, the parties reached a settlement. Id., D.E. 119. Although Yellowquill involved only one inmate, the resulting settlement agreement served as the basis for the TDCJ implementing certain policies to address the practice of the NA faith.
4 On December 20, 2013, the Court granted Plaintiffs’ request for a complimentary copy of the Appendix (filed at D.E. 121 and 122), to Defendants’ summary judgment motion. (See D.E. 150). Because all parties have access to the Appendix, for consistency and ease, reference in this Order to the summary judgment evidence will be to “Appx” followed by a specific page citation, if appropriate.
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On January 7, 1998, Plaintiff Davis identified his religious preference as Baptist when entering the TDCJ system. (See Appx 100-101, relevant portions of Davis’ Chaplaincy file). On September 13, 1999, Plaintiff Davis changed his religious preference to Native American spirituality. (Appx 101). On May 5, 2011, Davis changed his preference to Native American Shamanism. (Appx 101).
On November 27, 1996, Plaintiff Goodman listed his religious affiliation as Baptist when he entered the TDCJ. (Appx 103, Goodman’s Chaplaincy file). On November 20, 1999, Goodman changed his religious preference to Native American. (Appx 103).
In November 2004, the TDCJ Offender Orientation Handbook was revised. (See Appx 227-244). The Handbook includes a grooming policy mandating that offenders maintain “good personal hygiene,” brush their teeth daily, and be clean-shaven. (Appx at 235). As to hair length, the grooming policy states:
Male offenders must keep their hair trimmed up the back of their neck and head. Hair must be neatly cut. Hair must be cut around the ears. Sideburns will not extend below the middle of the ears. No block style, afro, natural or shag haircuts will be permitted. No fad or extreme hairstyles /haircuts are allowed. No mohawks, tails, or designs cut into the hair are allowed. (Appx at 235). The November 2004 Offender Handbook also includes the TDCJ’s Tobacco Policy, stating that “[a]ll facilities within the TDCJ are designated as tobacco
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free,” and advising offenders found in possession of “tobacco products, paraphernalia or similar products may be charged with a disciplinary offense.”5 (Appx at 238).
On May 8, 2006, the TDCJ instituted Administrative Directive AD-07.30 (rev. 6) regarding Procedures for Religious Programming. (Appx 370-381). AD-07.30 is a general statement encompassing all faith groups:
The Texas Department of Criminal Justice extends to offenders of all faiths who are supervised or incarcerated within TDCJ operated units or contracted facilities, reasonable and equitable opportunities to pursue religious beliefs and participate in religious activities and programs that do not endanger the safe, secure, and orderly operation of the Agency. (Appx at 370). AD-07.30 defines such terms as “approved volunteer,” “Holy Day” and “religious ceremony,” and sets out general guidelines for offenders seeking to participate in religious activities. (Appx 371-381). AD-07.30 does not address any single faith group in particular. Id. In November 2008, the TDCJ Chaplaincy Department revised Policy 09.03 (rev. 4) to create an exception to the TDCJ tobacco ban for NA believers at pipe ceremonies. (See Appx 367-369). The policy provided: (3) TDCJ policy forbids the use or possession of tobacco in prison by offenders. However, an exception to policy is in effect for Native American religious practitioners participating in the circle group prayer pipe ceremony of Native American-designated units/facilities.
. . .
5 Effective March 1, 1995, the TDCJ banned the use of all tobacco products within its institutions, for both offenders and employees. (See Appx 127-129).
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(5) The pipe ceremony will be conducted at a rate of no more than twice each month on Native American-designated units/facilities. This is contingent upon availability of a qualified Native American chaplain, or a TDCJ approved volunteer, the pipe ceremony will be supervised and/or facilitated by one of these. (6) The pipe ceremony will include tobacco or sage, sweet grass, kinnikkinnick, or cedar. These may be used in combination as prescribed by Native American tradition. (Appx 367-369) (emphasis in original). In June 2009, the TDCJ Chaplaincy Department revised Policy 09.01 (rev. 4) in regards to general information about the religious beliefs of practitioners of the Native American faith. (See Appx 414-418). The policy addresses group worship and pipe ceremonies, smudging, and “medicine bundles.” Id. at 417-18. Also in June 2009, the TDCJ Chaplaincy Department revised Policy 09.02 (rev. 5) regarding medicine bags. (See Appx 419-422). Policy 09.02 provides specific information about the size of the permitted medicine bags and identifies the objects it may contain. Id. at 421. In addition, it advises offenders that: “[i]n prison, wearing the medicine bag is limited to the offender’s cell or immediate bunk area in a dorm setting and at religious services.” Id. TDCJ Chaplaincy Department Policy 05.02, also addresses approved devotional items for offenders to possess, including those relevant to the NA faith. (See Appx 410-413). On March 9, 2010, TDCJ revised its Administrative Directive AD-03.83 (rev. 6), to provide that offenders who do not comply with the grooming standards are subject to disciplinary action. (See Appx 245-247).
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On June 16, 2011, William Chance, a Native American prisoner confined at the Michael Unit in Tennessee Colony, Texas, sued the TDCJ and certain officials in the United States District Court for the Eastern District of Texas, Tyler Division, alleging that he had been denied, inter alia, the right to participate in pipe ceremonies and smudging rituals in violation of RLUIPA and his First Amendment rights. (See Chance v. TDCJ, Case No. 6:11-cv-435, D.E. 1). Plaintiff Chance related that he suffers from two serious infectious diseases, Hepatitis C and Tuberculosis, and because of his communicable diseases, he could not smoke from the communal pipe used during pipe ceremonies, and he sought permission to possess a personal pipe. Id.
In response to the Chance litigation, on September 8, 2011, a meeting was held with former TDCJ-CID Director Rick Thaler, Chaplaincy Director Bill Pierce, Program Analyst Clint Morris, and other officials to discuss the status of NA contract chaplains, the possibility of hiring full-time chaplains, and NA communal pipe services, including medical and sanitation issues, liability releases, protective covers for pipes, frequency of pipe services, costs of pipes, and the increase in NA adherents over time. (Appx 111114). At the meeting, it was decided that only the Native American Chaplain could smoke the ceremonial pipe at a pipe ceremony. (Appx 423, Affidavit of Billy Pierce, Director Chaplaincy Operations). All Native American chaplains conducting pipe ceremonies were advised by telephone after the meeting, and the policy went into effect as of that date. Id.
On May 21, 2012, the instant lawsuit was filed. (D.E. 1).
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In July 2012, the TDCJ Chaplaincy Department revised Policy 09.01 (rev. 5). (See Appx 198-200). Revised Policy 09.01 provides that “only the Native American chaplain/volunteer is authorized to smoke the pipe used for the pipe service). Id. at 199. IV. Summary judgment standard.
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.,
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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.
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V. Discussion and Analysis. A. Threshold determinations. (1) The Chance case and summary judgment. As a threshold matter, the Court notes that a common thread throughout Plaintiffs’
RLUIPA claims is premised on the fact the TDCJ previously allowed practices that it now seeks to prohibit. Plaintiffs argue that, because the TDCJ followed more liberal policies in the past, and also because other prisons allow certain practices that the TDCJ does not, there necessarily exists a genuine issue of material fact on the issue of least restrictive means such that summary is inappropriate as a matter of law.
The Fifth Circuit has squarely rejected the idea that a fact issue is created as to the issue of least restrictive means simply because the TDCJ had a past policy allowing a now-prohibited activity or that other correctional systems allow an activity that the TDCJ prohibits. See United States v. Chance, 730 F.3d 404 (5th Cir. 2013). In Chance, the Native American plaintiff was seeking inter alia, access to a sweat lodge, and he offered evidence that a federal correctional facility nearby provided such access. Id. at 411. The Fifth Circuit found irrelevant the practices of other prison systems, noting that a comparison of policies ignores “the differences between institutions and all the other factors that might be more relevant in a given case.” Id. (citing Fowler v. Crawford, 534 F.3d 931, 934 (8th Cir. 2008)). The Fifth Circuit concluded that the mere existence of a prison policy that differs from a past policy or another institution’s policy does not necessarily entitle a plaintiff to survive summary judgment on his RLUIPA claim. Id. Indeed, as the Chance Court aptly noted: “That TDCJ or other prisons have tolerated
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unsafe practices in that past is not a reason to permanently bind it to a dangerous policy.”6 Id. at 412. Rather, as will be discussed in more detail below, the RLUIPA analysis mandates a case-specific approach when analyzing the issue of least restrictive means on summary judgment, and accordingly, the Court overrules Plaintiffs’ argument that a fact issue exists simply because the TDCJ previously had more liberal policies or that other penal institutions provide more services and accommodations to offenders practicing the NA faith.
(2) Exhaustion. As another preliminary matter, the Court acknowledges that Defendants have moved for summary judgment to dismiss certain of Plaintiffs’ claims for failure to exhaust administrative remedies. In 1996, Congress enacted the Prison Litigation Reform Act, which mandated that no action shall be brought by a prisoner “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court unanimously concluded that inmates must exhaust their administrative remedies before proceeding in federal court. Booth v. Churner, 532 U.S. 731 (2001). It has also repeatedly held that exhaustion is mandatory and is required for all actions brought by prisoners. Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). In Jones v.
6 Other circuit courts have rejected the adoption of a per se rule or bright-line test in evaluating RLUIPA’s least restrictive means issue. See, e.g., Mays v. Springborn, 575 F.3d 643, 647 (7th Cir. 2009) (affirming summary judgment dismissing prisoner’s free exercise claim where “the only evidence he produced was that the [forbidden items] were allowed at other prisons”); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 42 (1st Cir. 2007) (“[E]vidence of policies at one prison is not conclusive proof that the same policies would work at another institution.” ).
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Bock, 549 U.S. 199, 217 (2007), the Supreme Court rejected a “name all defendants” requirement that was judicially created by the Sixth Circuit.
Plaintiff Davis’ relevant grievance records are filed at Appx 001-037. Plaintiff Goodman’s relevant grievance records are filed at Appx 039-066. In turn, Defendants have offered the Affidavit of Sandra K. Murphy, TDCJ Manager of Offender Grievances, who testifies that, based upon her review of the grievance records for both Plaintiffs, neither Davis nor Goodman submitted a grievance regarding his medicine bag. (See Appx 038 (Davis), Appx 067 (Goodman)). In their summary judgment response, Plaintiff Davis states that his medicine bag grievances were lost when TDCJ officials packed his possessions and moved him to 3-Building in retaliation for filing a grievance about the pipe ceremonies. (D.E. 143, p. 12). Offender Goodman claims that he filed a grievance about the medicine bag as a precursor to filing suit in state court. (D.E. 143, p. 14).
The Court concludes that it need not resolve the exhaustion dispute because it will be more beneficial to address Plaintiffs’ RLUIPA claims on the merits. Thus, Defendants’ motion for summary judgment for failure to exhaust is denied as moot.
(3) Sincerity of Plaintiffs’ beliefs. The last issue properly addressed at the onset of this case is the sincerity of the Plaintiffs’ Native American beliefs. See Moussazadeh v. TDCJ, 703 F.3d 781, 790-92 (5th Cir. 2012). Briefly, each case turns on its particular facts. Id. at 791. The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff’s “sincerity in espousing that practice is largely a matter of
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individual credibility. Id. at 792. In fact, the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, “[t]hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial shyness.’” Id. at 792 (quoting A.A. ex rel Betenbaugh v. Needville ISD, 611 F.3d 248, 262 (5th Cir. 2010).
In this case, Defendants do not seriously challenge the Plaintiffs’ beliefs, but do point out that Plaintiffs were both self-identified as Baptists when they entered the TDCJ. This fact fails to cast doubt on the credibility of either Plaintiff, and the Court finds that both Davis and Goodman are sincere in the practice of their NA faith.
B. The RLUIPA Standard. Congress enacted the RLUIPA as a response to the Supreme Court’s decisions in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and City of Boerne v. Flores, 521 U.S. 507 (1997). In Smith, the Supreme Court held that the Free Exercise Clause typically does not shield religiously motivated conduct from the burdens of generally applicable laws. 494 U.S. at 878-79. Congress responded three years later by enacting the Religious Freedom Restoration Act (RFRA). In an effort to restore the level of protection that religious observations enjoyed before Smith, the RFRA mandated that “government”—including state and local governments— “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless such a burden met a “compelling governmental interest” and “least restrictive means” test. 42 U.S.C. § 2000bb-1. In
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Flores, the Court declared the RFRA’s application to the States unconstitutional because it exceeded Congress’s Fourteenth Amendment enforcement power. 521 U.S. at 532-36.
In response to the Flores decision, Congress enacted RLUIPA, predicating its enactment not only on its power to enforce the Fourteenth Amendment, but also on its Spending and Commerce powers. RLUIPA targets two areas: land-use regulation and institutions that receive federal funds. With respect to its protection of institutionalized persons, the RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental 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). Under the RLUIPA, the plaintiff bears the burden to prove that the challenged law, regulation or practice substantially burdens his exercise of religion. Once a plaintiff has made this prima facie showing, the defendant bears the burden to prove that the challenged regulation is the least restrictive means of furthering a compelling governmental interest. Id., § 2000cc-2(b). And see Sossamon v. Texas, 131 S. Ct. 1651 (2011).
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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 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.
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Secretary, Florida Dep’t of Corrections, 716 F.3d 525, 533 (11th Cir. 2013) (internal quotation marks omitted).
C. Application of RLUIPA Standard to this Case. (1) The policies complained of present a substantial burden on Plaintiffs’ ability to practice their faith.
Under RLUIPA, the Plaintiffs must initially demonstrate that a government practice imposes a “substantial burden” on their religious exercise, which requires the Court to determine: (1) whether the burdened activity is “religious exercise,” and if so, (2) is the burden “substantial”? Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004). RLUIPA defines “religious exercise” to include “any exercise of religion,” whether or not compelled by, or central to, a system of religious beliefs.” Id. A government action or regulation creates a substantial burden on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs. Id. at 570.
Plaintiffs Davis and Goodman argue that certain TDCJ policies impose a substantial burden on their ability to practice their NA faith. In particular, Plaintiffs complain about the TDCJ’s: (1) ban on communal and individual pipes; (2) lack of twicemonthly NA services; (3) the TDCJ grooming policy that prohibits long hair and/or a kouplock; and (4) the TDCJ’s ban on medicine bags being worn outside of an offender’s cell or living area.
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Plaintiffs complain that they are denied the right to personally smoke from the sacred pipe during pipe ceremonies. Plaintiffs maintain that the pipe ceremonies enable the participants to establish a personal relationship with the Creator through a direct dialogue, which can only be accomplished by personally inhaling and exhaling the smoke from the pipe. (D.E. 147 at 17). For the Spirits to answer a NA participant’s prayers, “he must make a personal offering to them by personally smoking the pipe.” Id. Plaintiffs argue that their desire to practice the sacred pipe ceremony in this manner is consistent with the NA faith and is the method practiced by many other Native Americans, both incarcerated and outside of the prison setting. Id.
Plaintiffs’ NA faith is practiced and reinforced in ceremonies and gatherings with other NA believers. Plaintiffs claim that Defendants have denied them the right to congregate with other Native Americans on a regular basis because they have failed to provide volunteer chaplains to conduct and/or oversee ceremonies.
Another tenet of Plaintiffs’ NA faith is to grow their hair and to cut it only in cases of mourning. (See Transcript of June 21, 2012 evidentiary hearing, D.E. 26 at 39).7 However, the TDCJ grooming policy requires that male offenders must keep their hair trimmed up the back of their neck and head, and also trimmed around the ears. (Appx 227-244, at 235). If an offender refuses to comply with the grooming standards, he is subject to disciplinary charges that can result in the loss of privileges, and possibly,
7 Plaintiff Davis testified: “TDCJ has this policy stating that no inmates are supposed to be able to inflict harm on another inmate. For the past 16 years, they’ve been allowing an inmate to forcefully cut my – a living part of my body – mutilate it …” (D.E. 26, p. 39).
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adversely affect time-earning classification and good time credits. (Appx 245-247). Plaintiffs suggest that, as a proposed compromise to long hair, they be permitted to wear a kouplock, that is, a 2” x 2” square patch of hair at the base of the skull which may grow continuously. (D.E. 143 at 13; D.E. 143-1 at 12-17).
Finally, Plaintiffs maintain that Defendants have substantially burdened their religious exercise by not allowing them to wear medicine bags at all times, including when they walk to chow, are at recreation, or socializing in common areas. Plaintiffs believe that the medicine bag and its contents help protect them from evil spirits.
In Atkins v. Kaspar, the Fifth Circuit noted that it held under RFRA that circumscribing the use of a medicine bag did not rise to the level of a substantial burden on a prisoner’s NA practice, but grooming regulations did.8 Atkins, 393 F.3d at 568, n. 35 (citing Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997)). However, given the Supreme Court’s mandate to examine RLUIPA claims on a fact-specific case-by-case basis, the Court concludes that Plaintiffs’ have met their summary judgment burden to establish that the complained-of TDCJ policies and practices place a substantial burden on their religious exercise of their NA faith.
8 In Odneal v. Pierce, 324 Fed. Appx. 297, *2-3 (5th Cir. Apr. 3, 2009), the Fifth Circuit reversed this Court’s § 1915A dismissal of the plaintiff’s RLUIPA claims concerning his medicine bag and kouplock because this Court mistakenly applied the “legitimate penological interests” test of Turner v. Safley, 482 U.S. 78 (1987) and not the RLUIPA’s heightened standard of review. The fact that the Odneal decision was reversed and remanded on the kouplock and medicine bag claims, however, does not mean the Fifth Circuit found TDCJ’s policies regarding the kouplock or medicine bags to be a substantial burden on Odneal’s religious exercise. To the contrary, because it was a § 1915A dismissal, there was no factual record created. Thus the Odneal case has little or no bearing on the case sub judice.
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(2) Least restrictive means. Having established substantial burden under RLUIPA, the burden now shifts to Defendants to demonstrate that the challenged policies are the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a); Chance v. TDCJ, 730 F.3d 404, 410 (5th Cir. 2013). (a) Smoking and/or possessing a pipe. Under current TDCJ policy, the contract NA chaplain or authorized NA volunteer is the only individual permitted to smoke the pipe. (See Appx 201-203, October 12, 2012 Inter-Office Memorandum Re: “Policy regarding Native American pipe service”). Offenders are permitted to handle the pipe prior to its lighting. Id. at 202. Prior to this change in policy, Plaintiffs and other NA offenders were allowed to smoke a communal sacred pipe. However, several NA offenders filed administrative grievances with the TDCJ complaining about the risk of communicable disease transmission from a communal pipe, prompting TDCJ officials to seek a medical opinion from Dr. Robert Williams, Deputy Director of TDCJ’s Health Service Division. (See Chance, 730 F.3d at 413 (noting that, prior to Chance filing his lawsuit, other NA inmates had raised health concerns about the communal pipe)). In his opinion, Dr. Williams concludes:
There is no way to share an object designed to be placed in one’s mouth outside of a clinical setting with enough certainty that diseases cannot be transmitted for Health Services to advocate instituting this practice. If it is determined that [TDCJ’s] obligation to allow observance of this practice outweighs [TDCJ’s] obligation to prevent spread of infection in our institutionalized setting, [TDCJ] will have to take as effective measures as are feasible, but it should be understood
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that the repercussions of this practice may extend beyond the participants since they would subsequently expose others with whom they have close contact to any disease they contracted from participating in the practice. (See Appx 115-120 at 116, Affidavit of Dr. Williams, dated June 10, 2013, citing to his previous opinion that is also cited in Chance). Based on Dr. Williams’ recommendation, the TDCJ determined that it would no longer permit a communal pipe ceremony. Although a form of the sacred pipe ceremony would still be held, only the chaplain conducting the service would be allowed to smoke the pipe and pray on behalf of those present. (See Appx 201-203, October 12, 2012 Inter-Office Memorandum Re: “Policy Regarding Native American pipe service”). The uncontested evidence establishes that the change in the communal pipe policy was based on the TDCJ’s compelling interest in preventing the spread of diseases. Plaintiffs argue that the TDCJ’s new pipe ceremony is an insufficient accommodation of their religious exercise under RLUIPA because personal participation in the pipe ceremony is essential. Conceding the medical concerns, Plaintiffs argue that, with respect to the least restrictive means, NA adherents should be allowed to possess their own personal pipe, and that the pipes could be stored in-between ceremonies by the prison chaplain in his or her office. The TDCJ previously considered the idea of NA practitioners possessing personal pipes, but concluded that the security risks and associated costs were too great, and that a pipe smoked only by the ceremony leader is indeed the least restrictive means. For example, on September 8, 2011, Defendant Morris, Director Pierce, and numerous TDCJ
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officials met to discuss various issues concerning Native American ceremonies. (Appx 111-114). It was noted that pipe ceremonies were conducted at the Daniel Unit with a shared pipe, and a discussion followed regarding medical and sanitation issues, and liability releases. Id. at 111-112. Security issues were discussed, and it was noted that tobacco distributed for the pipe ceremony at the Daniels Unit “kept disappearing.” Id. at 112. The group discussed personal pipes for Native American offenders, but concluded personal pipes would create too great of a security concern and burden, and the cost was great. Id. at 113. It was noted that the Cherokee Nation of Texas, the Lakota Nation and the Apache Nation were not interested in assisting with the cost or donation of personal pipes as they believed the offenders had “lost the right to take of the pipe.” Id. at 114. The group reached a consensus that there be: (1) no communal offender pipes; (2) no offender-owned or possessed pipes allowed; (3) no storage of offender-possessed pipes or pipe herbs by the TDCJ; and (4) Native Americans be provided with one pipe ceremony per month, with smoking to be done only by the volunteer/chaplain. Id. at 114.
Robert Eason is the TDCJ-CID Deputy Director of Prison and Jail Operations. (Appx 425-445, Affidavit of Robert Eason). Mr. Eason has been a TDCJ employee for over twenty years and has personal experience in the areas of prison staffing, budgets, and security review. Id. at 425. Mr. Eason related that, as part of the September 8, 2011 meeting, TDCJ officials examined whether individual pipes would be feasible as the least restrictive means, and it was noted at the onset that: “Pipe ceremonies in which offenders are allowed to smoke and handle contraband, such as pipes, tobacco and fire starting materials present serious challenges to the safety, security, and operation of a unit.” Id. at
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428. In addition, it would take considerable time to distribute, inventory, and track every Native American believer’s pipe for every pipe ceremony. Id. Additional logistical problems are created by the necessity of cataloguing and storing several hundred pipes. Id. Mr. Eason explained that disposable pipes, assuming availability, would not be a feasible alternative. Id. This is because tobacco is banned in Texas prisons, and is considered valuable contraband. Id. The TDCJ would have to devote extensive manpower to ensure that none of the pipe ceremony participants stole or hid a pipe. Id.
As to the McConnell Unit in particular, Mr. Eason pointed out that, due to the boom in the hydraulic fracturing industry on the Eagle Ford Shale, wages and the cost of living have increased in the area, and the TDCJ is not able to compete with the oil and gas salaries available, resulting in severe staff shortages. (Appx 425-445, at 437). Indeed, on Mr. Eason’s last visit to the McConnell Unit on June 27, 2013, only 37 of the 99 correctional officers working there were assigned to that unit; the other 62 are assigned to other units and were working overtime. Id. at 47.
In Chance v. TDCJ, the Fifth Circuit considered essentially the same evidence as is now before this Court in regards to pipe ceremonies, including Dr. Williams’ medical opinion and Mr. Eason’s costs and security analysis. Id. 730 F.3d at 412-414. The Fifth Circuit concluded that the TDCJ had met its burden of establishing that the ban on communal and individual pipes, and allowing only the ceremony leader to smoke the pipe at ceremonies, was the least restrictive means to conduct pipe ceremonies, and accordingly, not in violation of RLUIPA. In this case, the TDCJ has presented even more compelling evidence to support this same conclusion given the documented staff
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shortages at the McConnell Unit. Thus, Defendants are entitled to summary judgment in
their favor on Plaintiffs’ RLUIPA challenge to the TDCJ pipe policy.
(b) Frequency of NA ceremonies.
Plaintiffs claim that the Yellowtail decision mandated pipe ceremonies twice a
month, with additional ceremonies for holy days. Defendants do not object to the idea of
bi-monthly services as well as holy days, but instead, offer the affidavit of TDCJ Director
of Chaplaincy Operations Billy Pierce detailing the efforts and difficulties in hiring and
paying contract chaplains, as well as finding qualified NA volunteers. (Appx 402-409).
Director Pierce, who testified also in the Chance lawsuit, provides a detailed statement as
to the Chaplaincy Department’s search for assistance from May 2009 through June 2013:
TDCJ seeks to obtain as many volunteers as possible to assist with NA services. The NA chaplains attempt to recruit volunteers to assist him or her in conducting prayer circles at as many additional units as possible. I personally have made numerous attempts to locate persons who adhere to NA spirituality as both volunteers and paid contract chaplains. I routinely send letters and make telephone calls to each of the 60+ known NA resource groups in the region, but rarely get a response or follow-up commitment from these tribes and organizations.
Along with sending letters, the Chaplaincy Department has diligently worked to try to find volunteers and contract chaplains to conduct NA services at McConnell and other units. In 2009, a poster was developed which encourages participating volunteers to help other faith groups by serving as a volunteer or finding others who will do so. It was posted at all units at a location where volunteers would see it. All TDCJ chaplains were enlisted in the recruitment effort. At volunteer appreciation events and other volunteer meetings, those in attendance are asked to help by being volunteers for other faith groups.
In addition, considerable efforts have been made to find either an unpaid volunteer or a paid contract chaplain to conduct monthly
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NA services. In November 2009, the Chaplaincy contacted the Alabama Coushatta tribe: there was no response. The same day, Chaplaincy contacted Sammy Gutierrez from the Tigua Indians of Yselta del San Pueblo in El Paso, Texas. Mr. Gutierrez said he was unavailable due to geographic location. In February 2010, Chaplaincy contacted Professor Lara-Lisa Condello of the Nicola Valley Institute of Technology, Institute of Indigenous Government of Canada. She was unavailable due to distance and geographic location. On February 12, 2010, Chaplaincy contacted Dr. PeSheWa of the NA Church of Strawberry Plains Tennessee. She was unavailable due to distance and geographic location, but offered her advice if needed. In March 2010, Chaplaincy contacted Kent Frazier from “Without Reservation” and he provided NA and Christian recordings.
In March 2010, Chaplaincy contacted Dr. Bob Pierce and proceeded to hire him as a NA contract chaplain as of May 2010. In May 2010, Regional Chaplain Sam Longoria visited with Javier Loera, a tribal historic and preservation officer of the Tigua of Ysleta del Sur Pueblo; at that time no volunteers were available due to distance and geographic location. NA volunteer Sam Lonewolf starting providing services at the Michael Unit in July 2010 until November 2010. From December 2010 through March 2011, Chaplaincy staff regularly recorded Dr. Bob Pierce’s services at the central unit. In March 2011, NA contract chaplain Chari Bouse started NA services at Michael, Hughes, Mountain View, Crain, and Murray units. In October 2011, NA contract chaplain Richard VanWormer started religious services at the Stevenson unit. In November 2011, NA contract chaplain Ed Hernandez started NA services at Daniel, Connally, McConnell and Terrell units.
In April 2012, NA contract chaplain Chari Bouse recruited two volunteers who went through volunteer training. These volunteers attended one service and then decided that volunteering in prison was not for them. In March 2012, Chaplaincy contacted Doug Tapper from “Storyteller” radio program and he provided NA and Christian readings. In April 2012, NA contract chaplain Ed Hernandez was hired as a State Chaplain I at the Estelle Unit, where he performs a teaching circle once a month. He provides NA services once a month for offenders on the Terrell unit. He has also contacted the Alabama Coushatta tribe about volunteering and providing services for TDCJ. In May 2012, Chaplaincy hired volunteer Shawna Mitchell as a NA contract chaplain for Daniel, McConnell, and Connally units. She performs the pipe ceremony once a month on each of the units. On
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November 10, 2012, the Committee on Native American Ministries from the United Methodist Church met with Chaplaincy and decided to promote a First Nations Family Heritage Day event for the offenders’ family members at the South Apache Museum in Houston, Texas. Flyers were sent to each of the NA designated units to be placed on the Chaplaincy Bulletin Board and each contract NA presented the information to the NA offenders during their NA service. (Appx 402-409, Pierce Aff’t, dated July 5, 2013, at 405-406). Director Pierce’s affidavit establishes that the primary reason more frequent services cannot be held is not the result of any TDCJ policy, but instead, is the dearth of available people willing and able to oversee religious ceremonies. This same opinion is echoed by Defendant Morris in his affidavit. (See Appx 357-360). The summary judgment evidence shows that, pursuant to longstanding TDCJ policy, prisoners may only organize religious gatherings under the proper supervision of a contract chaplain or qualified outside volunteer. Despite efforts to hire NA chaplains and continuous requests to more than 60-plus NA resource groups in the region, Director Pierce was unable to obtain anything but religious recordings and vague commitments to help. Similarly, Defendant Morris has traveled to various cities in Texas and has spoken with leaders of numerous tribes in an attempt to find volunteers and/or recruit chaplains. (Appx 358-59). More recently, these efforts have proven successful. Indeed, following a low of monthly services in 2012 at the McConnell Unit when only nine (9) NA services were conducted in a year, for the months of January 2013 through June 2013, the McConnell Unit had nineteen (19) NA services. (Appx 403).
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The Fifth Circuit has considered challenges by inmates of other faiths regarding the frequency of services. The volunteer policy has been reviewed and upheld on numerous occasions. See Mayfield, 529 F.3d at 613-14; McAlister v. Livingston, 348 Fed. Appx. 923, 936-37 (5th Cir. 2009); Newby v. Quarterman, 325 Fed. Appx. 345, 35052 (5th Cir. 2009). Moreover, in Chance v. TDCJ, the Fifth Circuit expressly rejected the plaintiff’s RLUIPA complaint about the frequency of services due to the limited number of outside volunteers, finding that the volunteer policy itself is reasonable and necessary, and “that it is the least restrictive means of furthering TDCJ’s compelling interest in prison administration.” Chance, 730 F.3d at 414-15. Although Chance involved an inmate at the Michael Unit, the summary judgment evidence establishes that the difficulties in finding qualified chaplains and volunteers is prevalent across Texas, adversely affecting all TDCJ prison units. Much of the evidence in this case is the same or updated versions of the evidence presented in Chance, and accordingly, Plaintiffs’ RLUIPA claim based on the frequency of NA services is foreclosed.
(c) Wearing long hair or a kouplock. As previously noted, Plaintiffs successfully established that the TDCJs grooming policy imposes a substantial burden on their religious exercise, and therefore, the burden shifts to Defendants to demonstrate that the challenged grooming policy is the least restrictive means of achieving the compelling government interest behind the policy. Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013). Plaintiffs’ suggest that the policy is not the least restrictive because women prisoners can wear their hair longer.
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Defendants contend that the grooming policy requiring short hair serves multiple compelling TDCJ interests related to both security and costs.
In support of their position, Defendants offer, inter alia, the affidavit of Tracy Bailey, the current senior warden at the Estelle Unit Huntsville, Texas. (Appx 248-252, Bailey Aff’t at 248). Warden Bailey has been employed by the TDCJ for over 21 years and has held the positions of Correctional Officer, Sergeant, Lieutenant, Captain, Major and Assistant Warden. Id. Acknowledging that TDCJ women offenders can wear their hair longer than TDCJ men, Warden Bailey states that the policy “reflects the difference in the in-prison conduct of male and female offenders.” Id. The TDCJ has a much greater male population than female. Id. at 249. From fiscal years 2009 to 2012, the male population ranged from a low of 140,310 to a high of 144,036, while the female population ranged between a low of 11,954 to a high of 12,486, approximately a 12:1 ratio. Id. “Based on the vast difference in number of male and female offenders, it is logical that male disciplinary offenses of escape, attempted escape, assaults on a correctional officer would greatly outnumber the female number of disciplinaries.” Id. Indeed, the data demonstrates that a TDCJ male offender is 12 times more likely to commit an offense than a female offender, and those offenses are more serious, involving physical injury and/or attempted escapes. Id. Statistics also show that TDCJ male offenders demonstrate a higher rate per capita of disobedience and violence toward correctional officers. Id. at 249-51. Warden Bailey testified that, from a security perspective, because men are considerably more likely to be disciplined for a felony in prison than a female, the grooming policy must be strict. Id.
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TDCJ Regional Director Robert Eason testified that the grooming policy impacts the TDCJ’s compelling interests in both security and costs. (Appx 425-445, at 441). Mr. Eason first observes that longer hair would necessarily result in increased searches and increased physical contact between officers and offenders in the “strike zone.” Id. at 438. Currently, correctional officers are trained to keep an arms-length distance between themselves and offenders, and with an inmate’s hair no longer than the collar, visible inspections are effective and the officer need not touch the inmate. Id. If an inmate is allowed to wear long hair or even a braid, the hair must be searched, thus diverting the attention of the officer from supervising the larger population to focus on a single prisoner. Id. In addition, searching an offender’s hair takes time, and time pressures impact the entire unit schedule and the ability to move offenders. Id.
In addition to exposing officers to more risk and negatively impacting time and schedules, Mr. Eason notes that long hair can be used against the offender himself if assaulted or otherwise engaged in a physical confrontation. (Eason Aff’t, Appx at 439). Long hair or a braid allows another inmate to grab the hair and control the victim. Id.9 Mr. Eason points out that the TDCJ is regularly sued by prisoners for allegations of failure to protect, and he states that the risk of long hair unnecessarily exposes the TDCJ to increased liability. Id. Finally, Mr. Eason points out that long hair would make
9 This case is distinguished from the Garner case for that reason. In Garner, the Plaintiff’s right, under RLUIPA, to wear of a quarter-inch beard was upheld by the Fifth Circuit. Garner, supra. Unlike the Plaintiff in Garner, Plaintiffs here seek to wear a kouplock of unlimited length on the back of the head, and have never suggested that they would be satisfied with quarter-inch kouplock.
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identification of prisoners both in and outside of prison (in the event of an escape), more difficult. Id.
Defendants also offer the testimony of Jennifer Gonzalez, Assistant Budget Director of the TDCJ Business and Finance Division. (Appx 450-52). Using “54” as the number of active McConnell Unit NA faith adherents, Ms. Gonzalez calculated that the annual cost for searching the hair of those 54 inmates would be approximately $7,753.15. Id. at 450.
Although RLUIPA claims must be evaluated on a case-by-case basis, the Fifth Circuit has effectively foreclosed Plaintiff’s RLUIPA claim regarding the grooming policy and their desire to wear long hair. In Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007), the plaintiff, an inmate of Mexican and Native American descent, requested permission to grow his hair because the Great Spirit instructed him to do so. Id. He advised prison officials that he would not cut his hair due to his religious beliefs, but officials told him he would not be exempt from the grooming policy. He sued under RLUIPA and the district court dismissed the lawsuit as frivolous. On appeal, the Fifth Circuit referenced its decision in Diaz v. Collins, 114 F.3d 69 (1997), that was decided under RFRA, and held: “Because the test under RLUIPA is sufficiently the same as that previously imposed under RFRA, we hold TDCJ-ID did not violate Longoria’s rights by, pursuant to the grooming policy, denying him permission to grow his hair.” Longoria, 507 F.3d at 901.
In Thunderhorse v. Pierce, 364 Fed. Appx. 141 (5th Cir. 2010) (unpublished), the Fifth Circuit again relied on Diaz and noted:
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… that prisoners may hide weapons and other contraband in their hair. 114 F.3d at 73. In addition, requiring short hair makes it more difficult for an escaped prisoner to alter his appearance from photographs that the TDCJ periodically takes of each inmate. Id. In light of these concerns, we held that “the security interest at stake cannot meaningfully be achieved appropriately by any different or lesser means than hair length standards. Id. Thunderhorse, 364 Fed. Appx. at *4. Thus, the Fifth Circuit has determined that, even if the grooming policy interferes with a prisoner’s right to practice his religion, the policy is the least restrictive means of furthering the TDCJ’s compelling interest in security and managing costs. The evidence presented in this case falls squarely within that reasoning, and Plaintiffs fail to establish that a genuine issue of a material fact exists. Similarly, Plaintiffs’ desire to wear a kouplock raises the same security concerns and costs as does their request to grow long hair. The Fifth Circuit has held that RLUIPA “is not meant to elevate accommodation of religious observances over the institutional need … to control costs,” and “controlling costs … involves compelling governmental interests.” DeMoss v. Crain, 636 F.3d 145, 154 (5th Cir. 2011) (quoting Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). The TDCJ is not obligated to spend large amounts of money in order for Plaintiffs to wear long hair or a kouplock. The uncontroverted summary judgment evidence establishes that allowing long hair or a kouplock could increase the danger to correctional officers during a search as they must enter the “strike zone,” increase the risk of serious injury to NA offenders if attacked by another inmate, and lead to increased liability exposure to the TDCJ. The grooming policy is the least restrictive means of promoting the TDCJ’s compelling interests in security and costs.
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(d) Medicine bags. For the same reasons Plaintiffs’ RLUIPA claims must fail in regards to hair length and kouplocks, so must their challenge to the TDCJ policy that limits the wearing of their medicine bags: the potential security risks and costs are too great. In 2009, TDCJ Chaplaincy Department Policy 05.02 included medicine bags as approved devotional items for offender possession. (Appx 410-413, at 412). However, that same policy expressly limited an NA offender’s wearing of the bag “to the offender’s cell/dorm area or immediate bunk area in a dorm setting, and at all religious services.” Id. at 412. In July 2012, the issue of medicine bags was moved to Chaplaincy Department Policy 05.01, but the provisions concerning the wearing of the medicine bags remained virtually the same. (Appx 343-356). Specifically, as to “Medicine Bags or Pouches,” Policy 05.01, Procedures II.D.1. provides: “[w]earing the bag or pouch is limited to the offender’s cell or immediate bunk area in a dorm setting, and at religious services.” (Appx at 346). The TDCJ’s security and cost concerns are magnified in the context of NA medicine bags. This is because under the TDCJ devotional items policy, correctional officers are instructed to not touch the medicine bag or its contents. (Appx 412). Only visual inspection is permitted. Id. If NA practitioners were allowed to wear their medicine bags at all times, correctional officers would have to perform visual inspections of the bag upon every ingress and egress which would unarguably take additional time and hinder the scheduled operations of the prison. Moreover, the very fact that the medicine bag can and does contain items, raises numerous contraband and smuggling
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concerns. Finally, it is inevitable that other offenders would attempt to grab or take a medicine bag from an NA adherent if worn throughout the day. The medicine bag could also result in choking of an inmate. The medicine bag policy is justified by security and resource concerns, and there is no reason to question the TDCJ’s position that it is using the least restrictive means of furthering those compelling state interests.
C. First Amendment claims against Morris in his individual capacity. Plaintiffs are suing Mr. Morris in his individual capacity for monetary damages for alleged violations of their First Amendment rights. Plaintiffs argue that Mr. Morris arrived at the McConnell Unit in May 2009, and at that time, pipe ceremonies were in fact authorized by TDCJ policy. Plaintiffs contend that Mr. Morris failed to perform the very responsibilities he was hired by the TDCJ to perform, effectively denying plaintiffs their right to practice their religion as provided by the First Amendment. Defendant Morris seeks to dismiss plaintiffs’ claims on the grounds that they have failed to raise a constitutional violation and argues that his actions were objectively reasonable, such that he is entitled to qualified immunity. The defense of qualified immunity protects government officials performing discretionary functions from “liability for civil damages insofar as their conduct does not violate clearly established rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Lytle v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009). Government employees are presumptively entitled to the defense of qualified immunity. Once asserted, the burden shifts to a plaintiff to demonstrate that qualified immunity does not bar their recovery. Salas v. Carpenter, 980 F.2d 299, 305
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(5th Cir. 1992). A two-step process has traditionally been employed in evaluating the defense of qualified immunity. Saucier v. Katz, 533 U.S. 194 (2001). Under the traditional approach, a court must first consider whether “the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 201. Second, if the plaintiff has satisfied the first step, courts are required to decide whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct. Id. See also Brown v. Strain, 663 F.3d 245, 249 (5th Cir. 2011). “To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citations omitted). The Fifth Circuit has specified that the issue for a court’s consideration with respect to the second step is whether the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the conduct in question. Short v. West, 662 F.3d 320, 325 (5th Cir. 2011) (citations omitted). Conclusory allegations of wrong-doing fail to satisfy both the first and second requirement. Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). More recently, the Supreme Court held that a case may be dismissed based on either step in the qualified immunity analysis: “The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in the light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); Short v. West, 662 F.3d 320, 325 (5th Cir. 2011).
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Defendant Morris first argues that Plaintiffs have not shown a constitutional violation under the Free Exercise Clause. The Supreme Court has made it clear that prisoners must be provided “reasonable opportunities” to exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319 (1972) (per curiam). The Court has recognized, however, that limits may be placed on the religious rights that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” and “[w]hen a prison regulation impinges upon the inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. Four factors that should be considered in determining the reasonableness of a regulation: (1) there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) are there alternative means of exercising the right that remain open to prison inmates; (3) the impact accommodation will have on guards and other inmates, and on the allocation of prison resources generally; and (4) the absence of alternatives is evidence of the reasonableness of a prison regulation. Id. 89-91. Shortly after the Turner decision, the Supreme Court applied the test to uphold a prison policy that prevented inmates from attending Islamic prayer services. O'Lone v. Estate of Shabazz, 482 U.S. 382 (1987). The Fifth Circuit subsequently added that the Supreme Court neither held any single factor to be dispositive, nor did it require all four factors to be met. Scott v. Mississippi Dept. of Corrections, 961 F.2d 77, 80 (5th Cir. 1992). The first factor has been held to be controlling in these cases, and the other factors merely provided help in determining
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whether the connection was logical. Id. at 81. More recently, the Fifth Circuit reaffirmed the basic idea that rationality is the controlling factor. Mayfield, 529 F.3d at 607.
Because Plaintiff has not shown a violation under RLUIPA, he likewise has not shown a violation of the Free Exercise Clause because RLUIPA imposes a more stringent standard than that of the First Amendment. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). Indeed, in Freeman, the Fifth Circuit expressed surprise that the inmate plaintiff brought religious claims under the First Amendment instead of RLUIPA because RLUIPA provides far greater challenges to prison regulations. 369 F.3d at 857 n.1. The Fifth Circuit has considered free exercise claims similar to Plaintiff’s claims and have rejected them. See Freeman, 369 F.3d at 862-63 (rejecting challenge to policy regarding volunteers); Baranowski, 486 F.3d at 121-22 (rejecting challenge to volunteer policy); Thunderhorse, supra (rejecting requests for items to practice NA faith, observance of holy days and pipe ceremony). As shown under the discussion of RLUIPA, there are valid rational connections between the challenged policies and practices and compelling governmental interests. The first factor in the Turner analysis is satisfied with respect to all of Plaintiffs’ claims.
Plaintiffs have failed to establish a constitutional violation in order to satisfy the first step in the qualified immunity analysis. Moreover, Plaintiffs have not offered any evidence to suggest that Defendant Morris engaged in any actions that were objectively unreasonable in light of clearly established law. Defendant Morris is entitled to summary judgment based on qualified immunity to the extent Plaintiffs have sued him in his individual capacity for monetary damages.
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D. Plaintiffs’ motion for summary judgment. Plaintiffs filed a pleading entitled “Motion for Summary Judgment Default against Defendants.” (D.E. 129). In this pleading, Plaintiffs summarize the September 8, 2011 meeting at which it was determined by TDCJ officials that the communal pipe would be smoked only by the NA chaplain or service leader. (See Appx 111-114, Chance litigation meeting held on 09/08/11). Plaintiffs then argue that Defendants were required to file their summary judgment motion on or before July 8, 2013, but failed to do so, and therefore, Plaintiffs should be granted summary judgment in their favor. (D.E. 129 at 5). Defendants’ summary judgment motion was filed on July 8, 2013. (See D.E. 120). In addition, Plaintiffs were provided with a copy of the Appendix to the summary judgment motion. (D.E. 150). There are no grounds for default, and Plaintiffs’ motion (D.E. 129) is denied. VI. Conclusion The summary judgment establishes that the TDCJ policies challenged by Plaintiffs, -- the Native American communal pipe policy, the requirement that all religious gatherings be conducted by a chaplain or approved volunteer, the grooming policy, and the devotional items policy, -- all impose substantial burdens on Plaintiffs’ religious exercise. However, the TDCJ has established with an abundance of uncontested and unchallenged evidence, that the policies are indeed the least restrictive means of furthering the TDCJ’s compelling interests in maintain security and monitoring costs. Moreover, because the protections offered by the First Amendment are more limited than those extended under RLUIPA, Plaintiffs claims against Defendant Morris in his
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individual capacity fail as a matter of law. Accordingly, Defendants’ motion for summary judgment (D.E. 129) is granted, Plaintiffs’ motion (D.E. 125) is denied, and Plaintiffs’ claims are dismissed with prejudice. Any and all other pending motions are denied as moot.
ORDERED this 27th day of February, 2014. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
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United States Courts Southern Qistrict of Texas
FILED
JUL -~2016

IN THE UNITED STATES COURT OF APPEiWJJS.Bradley,crerkotcoun FOR THE FIFTH CIRCUIT

No. 14-40339

United States Court of Appeals Fifth Circuit
FILED
June 14, 2016

TEDDY NORRIS DAVIS; ROBBIE DOW GOODMAN,

Lyle W. Cayce Clerk

Plaintiffs - Appellants v.

LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division; CLINT MORRIS, Program Analyst,

Defendants -Appellees

TEDDY NORRIS DAVIS,
Plaintiff- Appellant v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division,
Defendant - Appellee

Appeal from the United States District Court for the Southern District of Texas
Before SOUTHWICK and COSTA, Circuit Judges and OZERDEN, * District
Judge. HALIL SULEYMAN OZERDEN, District Judge:
*District Judge ofthe Southern District of Mississippi, sitting by designation.

CasCeas2e::121-4c-v4-003031966 DDooccuummeennt:t 01095113F5i7le9d78o9n 07P/0a6g/e1:62in TDXaSteDFilPeda:g0e72/0o6f/210916
No. 14-40339 Prisoner Plaintiffs Teddy Norris Davis and Robbie Dow Goodman appeal the district court's grant of summary judgment in favor of prison officials within the Texas Department of Criminal Justice ("TDCJ"). The district court granted summary judgment in Defendants' favor on Plaintiffs' First Amendment and 42 U.S.C. § 1983 claims challenging TDCJ policies on the wearing of medicine bags, the use of pipes during Native American religious pipe ceremonies, and grooming, based on the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc, et seq. We AFFIRM in part as to the First Amendment claim and RLUIPA claims concerning medicine bags and pipe ceremonies, and we VACATE and REMAND in part for further findings as to Plaintiffs' grooming-policy RLUIPA claim.
I. BACKGROUND Teddy Norris Davis, Texas prisoner #807688, is housed in the TDCJ's McConnell Unit in Beeville, Texas. On May 21, 2012, Davis filed a prose 42 U.S.C. § 1983 complaint alleging that the meaningful practice of his religion was being burdened by five Defendants employed by the TDCJ. A follower of the Native American religious path, Davis challenged three TDCJ policies. Specifically, Davis alleged that TDCJ policies burdened the exercise of his religious beliefs by preventing him from (1) smoking a prayer pipe during Native American pipe ceremonies, (2) wearing a religiously significant "medicine bag" other than within his cell and to and from religious ceremonies, and (3) growing long hair or alternatively, a kouplock, which is "a one inch square section of hair at the base of the skull." Davis argued that these three policies violated his rights under RLUIPA and the First Amendment, and that the grooming policy further violated his right to equal protection, because female inmates were allowed to wear their hair long.
2

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No. 14-40339 Robbie Dow Goodman, Texas prisoner #758386, is also housed in the McConnell Unit in Beeville, Texas, and joined this suit, claiming that he follows the Native American faith and has experienced the same deprivations as Davis. Davis and Goodman ("Plaintiffs") both purport to be non-violent, low security risk, or G2, custody level inmates. Plaintiffs filed an Amended Complaint on February 11, 2013, and subsequently consented to proceed before a United States Magistrate Judge. At a hearing before the Magistrate Judge, Plaintiffs voluntarily dismissed all of their claims except their three RLUIPA challenges, which sought injunctive and declaratory relief against Rick Thaler, the TDCJ Correctional Institutions Division Director in his official capacity, and their First Amendment claim seeking damages against Clint Morris, a TDCJ Program Analyst. On July 1, 2013, after Thaler retired, William Stephens was substituted as a Defendant. 1 On July 8, 2013, Defendants filed a Motion for Summary Judgment, and on July 10, 2013, Defendants filed a Supplemental Motion for Summary Judgment. Plaintiffs filed a Cross-Motion for Summary Judgment on July 19, 2013. On February 27, 2014, the district court issued its Opinion and Order on Cross-Motions for Summary Judgment ("Opinion and Order"), and Final Judgment was entered in Defendants' favor. The district court found that both Plaintiffs were sincere practitioners of the Native American faith and that the policies complained of constituted a substantial burden on their religious exerc1se. The Court concluded, however, that Defendants had demonstrated that the challenged prison regulations were the least
1 William Stephens has retired. On May 5, 2016, the new Director of the Texas Department of Criminal Justice Correctional Institutions Division, Lorie Davis, was substituted as Appellee in this case.
3

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No. 14-40339 restrictive means of furthering compelling governmental interests. This appeal followed.
II. STANDARD OF REVIEW A. Summary Judgment Standard
"This court reviews de novo a district court's order granting a defendant's motion for summary judgment, applying the same standard as did the district court." Toney v. Owens, 779 F.3d 330, 335 (5th Cir. 2015). 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."' Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting 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. The RLUIPA
RLUIPA provides, in relevant part, that: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). RLUIPA defines "religious exercise" broadly to include "any exercise of religion, whether or not compelled by, or central to, a
4

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No. 14-40339 system of religious belief." § 2000cc-5(7)(A). Under RLUIPA, Plaintiffs carry an initial burden to show that the challenged law, regulation, or practice substantially burdens the exercise of their religion. Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004). Once Plaintiffs make this showing, Defendants bear the burden to prove that the challenged regulation is the least restrictive means of furthering a compelling governmental interest. Id.; see also Sossamon v. Texas, 563 U.S. 277, 281 (2011). Defendants' burden "is not to show that it considered the claimant's proposed alternatives but rather to demonstrate those alternatives are ineffective." Ali v. Stephens, No. 1441165, 2016 WL 1741573, at *6 (5th Cir. May 2, 2016).
Congress enacted RLUIPA to address "frivolous or arbitrary" barriers impeding institutionalized persons' religious exercise, but expected courts entertaining RLUIPA challenges to also "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 RLUIPA)). Religious accommodations must not override other significant interests in maintaining order and safety, and courts should give deference to prison officials "in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Id. at 723. Costs, limited resources, and prison security are all compelling state interests. Id. However, deference is not unlimited and "'policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements."' Rich v. Sec'y, Florida Dep't of Carr., 716 F.3d 525, 533 (11th Cir. 2013) (quoting S. Rep. No. 103-111, at 10, reprinted in 1993 U.S.C.C.A.N. 1892, 1900) (discussing the Religious Freedom Restoration Act, predecessor to RLUIPA); see also Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) ("Indeed, prison policies
5

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No. 14-40339 'grounded on mere speculation' are exactly the ones that motivated Congress to enact RLUIPA.").
The least-restrictive-means standard is "exceptionally demanding, and requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party." Holt, 135 S. Ct. at 864 (quotation omitted and alteration adopted). The Government must also demonstrate that the "compelling interest test" is satisfied when applying the challenged law to the "particular claimant whose sincere exercise of religion is being substantially burdened." Id. at 863 (quotation omitted). Thus RLUIPA requires a court to scrutinize '"the asserted harm of granting specific exemptions to particular religious claimants"' and look '"to the marginal interest in enforcing' the challenged government action in that particular context." Id. (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)). C. The First Amendment
The First Amendment to the United States Constitution is violated when prisoners are not afforded "reasonable opportunity" to exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). The First Amendment applies to State prisons by virtue of the Fourteenth Amendment. Id.
Prison officials may still place reasonable limits on the religious rights that must be afforded to inmates. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89. Courts consider four factors in determining the reasonableness of a regulation: (1) the existence of a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) the existence of
6

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No. 14-40339 alternative means of exercising the right that remain open to prison inmates; (3) the impact an accommodation will have on guards and other inmates, and on the allocation of prison resources generally; and (4) the absence of alternatives. Id. at 89-91.
Turner's "rational connection" standard for assessing First Amendment claims provides less protection against prison regulations that impinge on inmates' free exercise of religion than does RLDIPA's more demanding compelling-interest/least-restrictive-means standard. Freeman v. Texas Dep't of Criminal Justice, 369 F.3d 854, 858 n.1 (5th Cir. 2004).
III. DISCUSSION Plaintiffs challenge whether summary judgment was properly granted in favor of the TDCJ Defendants as to their (1) First Amendment claim, (2) medicine-bag RLDIPA claim, (3) pipe-ceremony RLDIPA claim, and (4) grooming-policy RLDIPA claim. We find no error in the district court's grant of summary judgment on the first three issues, but will vacate and remand for further findings as to the grooming-policy RLDIPA claim. A. First Amendment Claim and Medicine-Bag RLUIPA Claim On appeal, Davis and Goodman only briefly mention their First Amendment claim and medicine-bag RLDIPA claim. Issues submitted to this Court that are inadequately briefed are considered abandoned. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Plaintiffs' arguments as to these two issues are entirely conclusory, and Davis and Goodman have not demonstrated that the district court erred in granting summary judgment for Defendants on the First Amendment claim or medicine-bag RLDIPA claim. 1. First Amendment Claim The district court determined that Defendant Morris was entitled to qualified immunity because Plaintiffs had not established that their First Amendment rights to exercise their religion had been violated. Since
7

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No. 14-40339 qualified immunity depends upon whether a defendant violated a clearly established constitutional right, the preliminary inquiry is whether the plaintiff can establish a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 232 (1991). The district court concluded that the challenged regulations and practices were rationally connected to valid government interest, and did not violate the First Amendment. In this Court, Davis and Goodman merely state, in a single paragraph and without elaboration, that "[t]he evidence is clear that the Appell[ants] have indeed established a First Amendment Constitutional violation thereby clearly overcoming the Qualified Immunity Analysis [sic]." Plaintiffs have not raised any other arguments or offered further explanation as to how the district court erred.
2. Medicine-Bag RLUIPA Claim The district court found that the TDCJ restrictions on weanng the medicine bag were the least restrictive means of furthering a compelling interest in security and controlling costs. Before this Court, Davis and Goodman do not contest this conclusion, merely stating in their brief that "it may very well be that the defendants are right." Plaintiffs object only to the district court's finding that TDCJ's restrictions "are appropriate as a matter of law on this record," but Plaintiffs do not clarify how the record could be seen as deficient. It appears that Defendants presented evidence that the medicine-bag policy furthers an interest in security and costs, and Plaintiffs did not present competent summary judgment evidence to rebut this assertion. Since Davis and Goodman have not adequately briefed or otherwise identified any legitimate points of error as to the First Amendment claim and medicine-bag RLUIPA claim, summary judgment will be affirmed as to these
ISSUeS.
8

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No. 14-40339 B. Pipe-Ceremony RLUIPA Claim
Plaintiffs challenge the TDCJ ban on inmates personally smoking a prayer pipe during pipe ceremonies. 2 TDCJ's official "Procedures for Religious Programming," as revised in 2012, state that "[o]nly the Native American chaplain/volunteer is authorized to smoke the pipe used for the pipe service." Davis and Goodman claim that having a Native American chaplain smoke the ceremonial prayer pipe for them is insufficient, yet they also do not want to use a communal prayer pipe due to the risk of disease. Instead, Plaintiffs propose that they each be allowed to purchase their own personal prayer pipes from an approved vendor. 3
Plaintiffs' suggestion that inmates be allowed to possess personal prayer pipes has already been considered and rejected by this Court. Chance v. Texas Dep't of Criminal Justice, 730 F.3d 404, 412-13 (5th Cir. 2013). In 2011, a TDCJ Native American prisoner, William Chance, requested permission to possess a personal pipe because he suffered from hepatitis C and tuberculosis and wished to avoid smoking from the communal pipe used in pipe ceremonies. See Chance v. TDCJ, Case No. 6:11-cv-435 (E.D. Tex. June 16, 2011) (Compl.). The Chance litigation prompted TDCJ officials to re-examine the policy concerning pipe ceremonies in light of these serious health concerns. After conducting a study, TDCJ concluded that going forward only the Native American chaplain performing the pipe ceremony
2 In the district court, Davis and Goodman also challenged the frequency of Native American ceremonies under RLUIPA. The Magistrate Judge concluded that the TDCJ volunteer chaplain policy was the least restrictive means of furthering Defendants' compelling interest in prison administration. This issue has not been raised on appeal.
s Davis and Goodman also claim that TDCJ never considered the use of the herb "cansasa" in the pipe ceremony as a least restrictive means. Because the TDCJ policy does not allow inmates to smoke their own personal prayer pipe for other reasons such as health, cost, and security concerns, the substance being smoked is irrelevant to the RLUIPA analysis in this case and consideration of tobacco alternatives is unnecessary.
9

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No. 14-40339 could smoke the prayer pipe during Native American pipe ceremonies. The TDCJ Chaplaincy Manual was revised in July 2012 to reflect this change.
The district court in Chance granted summary judgment for TDCJ on the pipe-ceremony issue. This Court affirmed and held that TDCJ had carried its burden of demonstrating that the policy banning communal and individual pipes and allowing only the ceremony leader to smoke the pipe at ceremonies was the least restrictive means of furthering compelling government interests in "prison health, administration, and security," and, accordingly, did not violate RLUIPA. Chance, 730 F.3d at 407-08.
In Chance, this Court considered the option of permitting every prisoner to purchase and smoke his own pipe, and Davis and Goodman do not present any new or different arguments from those previously considered. See id. at 413. In this case, both TDCJ and the district court considered allowing inmate-owned pipes to be stored in the chaplain's office, but logistical, health, and security concerns outweighed the need for a religious accommodation. As to this issue, the district court's grant of summary judgment will be affirmed. C. Grooming-Policy RLUIPA Claim
We will, however, vacate the grant of summary judgment on the grooming-policy RLUIPA claim for two reasons. First, the record does not reflect whether appropriate consideration was given to Plaintiffs' summary judgment evidence. Second, there is a need for further findings under the standard for evaluating RLUIPA claims as discussed in Holt v. Hobbs, 135 S. Ct. 853, 864 (2015), because Plaintiffs' RLUIPA claims must be evaluated on remand in light of the security risk presented by Plaintiffs as individuals.
1. Plaintiffs' Summary Judgment Evidence Plaintiffs contend that the district court did not g1ve proper consideration to their summary judgment evidence on the grooming-policy
10

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No. 14-40339 RLUIPA claim. A nonmovant's evidence on summary judgment "is to be believed, and all justifiable inferences are to be drawn in his favor." Cotton, 134 S. Ct. at 1863. Plaintiffs attempted to present evidence at summary judgment by retyping or referencing portions of a TDCJ official's testimony and the expert testimony of George Sullivan4 from an earlier bench trial in another Native American inmate's lawsuit challenging the TDCJ grooming policy. Within their reply brief on summary judgment, Defendants moved to strike this evidence. However, the district court did not rule on their request.
Because the motion to strike was included in Defendants' reply brief and not docketed as a separate motion, it is unclear whether the district court overlooked the motion or decided not to rule on it on grounds that it was not properly asserted. In any event, Sullivan's expert testimony was before the district court when it granted summary judgment, but the district court made no mention of it.
Sullivan's testimony was taken from an earlier bench trial in Odneal v. Dretke, 2:4cv454 (S.D. Tex. filed Aug. 30, 2004), and may be relevant in this case, because Odneal involved claims similar to those presented here. In Odneal, Shawn Odneal, a male inmate also housed in the McConnell Unit, challenged the insufficient frequency of pipe ceremonies and other Native American religious ceremonies. See Odneal v. Dretke, 435 F. Supp. 2d 608, 610-11 (S.D. Tex. 2006) ("Odneal!'). Odneal claimed to have learned about the spiritual path of the Native American people from one of the Plaintiffs in this case, Teddy Davis. See Odneal v. Pierce, C.A. No. C-04-454, 2010 WL 3359535, at *2 (S.D. Tex. Aug. 20, 2010) ("Odneal If'). Both Davis and
4 George Sullivan is an experienced prison official who has worked with Native American populations in prisons in Oregon and Colorado.
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No. 14-40339 Goodman attempted to join Odneal's case in 2004, but their requests were denied.
Odneal also challenged the TDCJ policy on wearing of medicine bags, and sought permission to grow long hair or wear a kouplock. Odneal I, 435 F. Supp. 2d at 611 (challenging essentially the same policies as those at issue in this litigation). The district court dismissed Odneal's claims regarding wearing a medicine bag and growing long hair, reasoning that TDCJ policy on medicine bags was rationally connected to security interests pursuant to Turner, 482 U.S. at 89-91, and the long-hair claim was foreclosed by Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 1997). The district court also granted summary judgment against Odneal on his claim concerning the insufficient frequency of religious ceremonies. Odneal I, 435 F. Supp. 2d at 622.
In an unpublished per curiam opinion, this Court affirmed the grant of summary judgment as to the pipe-ceremony claims, but remanded the medicine-bag and long-hair issues to the district court for further development of the evidentiary record. Odneal v. Pierce, 324 F. App'x 297, 302 (5th Cir. 2009) ("Odneal appeal"). As to the medicine-bag RLUIPA claim, this Court held that the district court had applied the wrong standard in analyzing the medicine-bag claim by utilizing the rational-connection/ legitimate-government-interest test rather than RLUIPA's more demanding compelling-interest/least-restrictive-means test. As to the grooming-policy RLUIPA claim, this Court reasoned that cases, such as Diaz, involving long hair generally do not necessarily foreclose a prisoner's claims involving kouplocks, which may have unexplored distinctions in the area of security risks. Id. at 301 (distinguishing Diaz, 114 F.3d at 72).
On remand, Odneal was appointed counsel and abandoned his medicine-bag claim, proceeding to trial only on the long-hair/kouplock issue. Odneal II, 2010 WL 3359535, at *2. TDCJ officials produced evidence that
12

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No. 14-40339 kouplocks could present security challenges for inmate identification and provide a place for hiding contraband. Id. at *6. Odneal countered this evidence with the testimony and expert report of George Sullivan, an experienced prison official who has worked with Native American populations in prisons in Oregon and Colorado. Id. Sullivan testified that kouplocks do not present security issues and are not practical places for hiding contraband. Id. at *7. Based on Sullivan's testimony, the district court denied summary judgment, finding that there were genuine issues of material fact as to whether the policy prohibiting Odneal from wearing a kouplock served a compelling interest, and was the least restrictive means of achieving that interest. Id. at *8.
Odneal's kouplock claim proceeded to a two-day bench trial held on December 13-14, 2010. See Odneal v. Pierce, C.A. No. C-04-454, 2011 WL 2678940, at *1 (S.D. Tex. July 7, 2011) ("Odneal Ill'). Before the district court could issue a ruling, TDCJ transferred Odneal to a Minnesota prison where he would be permitted to grow his hair. Id. at *2. Thus, the kouplock issue became moot and remained undecided.
Here, Plaintiffs purported to present summary judgment evidence to rebut prison officials' testimony by retyping and citing George Sullivan's expert testimony from Odneal's bench trial. The district court's opinion on summary judgment does not reflect what consideration, if any, was given to Plaintiffs' summary judgment evidence. 5 The district court briefly discussed the Odneal appeal in a footnote and concluded that "the Odneal case has
5 Davis and Goodman also contend that the district court failed to consider their post-judgment Reply to Defendants' Reply to the Motion for Summary Judgment. However, in denying Plaintiffs' Rule 59(e) Motion for Reconsideration of the Court's Opinion and Order, the Magistrate Judge indicated that she took into account the post-judgment Reply and found no basis for overturning summary judgment.
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No. 14-40339 little or no bearing on the case sub judice." Despite the district court's finding in Odneal II that Sullivan's expert testimony created genuine issues of material fact on the kouplock claim, 2010 WL 3359535, at *8, the district court's analysis of Plaintiffs' kouplock claims in this case was limited to one paragraph and did not discuss Sullivan's testimony, which had not been stricken. Instead, the district court stated that Defendants' summary judgment evidence was "uncontroverted."
Given the posture of the case at summary judgment, Defendants' evidence regarding the kouplock issue was not plainly uncontroverted. Plaintiffs had typed verbatim, and referenced portions of, testimony by witnesses from Odneal's bench trial to support their grooming-policy claim. Plaintiffs also informed the Magistrate Judge of their desire to use this testimony during an evidentiary hearing held on June 21, 2012. At that hearing, the Magistrate Judge indicated that the law might permit this evidence to be used against TDCJ, but that its admissibility would be determined at a future time. It appears from the record that such a determination was never made.
As an additional reason that we cannot conclude the evidence was not before the district court, the record indicates that Plaintiffs, as pro se prisoner litigants, were permitted some leeway in the form of documents that could be submitted. In another order entered on December 20, 2013, the district court responded to Plaintiffs' request for copies of pleadings by stating that Plaintiffs could "hand copy all documents sent to the Clerk." That order specifically dealt with maintaining Plaintiffs' own files of documents sent to the district court, but could reasonably have been construed by Plaintiffs as an invitation to make hand-written facsimiles when necessary for filing with the district court. Among the grounds argued in Defendants' motion to strike Sullivan's testimony was Plaintiffs' failure to
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No. 14-40339 attach the relevant portions of the actual transcript from which the typed copy was made. However, in light of the December 20, 2013, order referencing the hand-copying of materials, it is not clear that the district court would have discounted Plaintiffs' summary judgment evidence merely for reasons of form.
In substance, it is also unclear why Plaintiffs' summary judgment evidence would not be relevant to the district court's decision. In Odneal's case, summary judgment was denied and the district court found genuine issues of material fact remained on facts and evidence similar to those presented by Plaintiffs in this case. Odneal II, 2010 WL 3359535, at *8. While RLUIPA "suggests a fact-specific inquiry that takes into account the special circumstances of the individual prisoner and prison," see Chance, 730 F.3d at 410, this case and Odneal involved the same unit within the same prison and prisoners with substantially similar characteristics raising similar challenges to the TDCJ grooming policy. As such, evidence developed in Odneal's case could be relevant in the present suit, even under the individualized inquiry standard.
If Plaintiffs' expert testimony evidence was not credited because the Magistrate Judge found it inadmissible or improper, the record does not reflect this determination. Were the district court to have made a considered decision that evidence from Odneal's bench trial was not relevant or should be stricken from the record, or otherwise discussed the evidence presented in a meaningful way, the decision to grant summary judgment on this issue might ultimately have been supported. However, the current record does not reflect whether the Magistrate Judge considered Plaintiffs' evidence and drew reasonable inferences in their favor, as is required in deciding a motion for summary judgment. Cotton, 134 S. Ct. at 1863. Remand for further consideration of this issue is warranted.
15

CaCseas2e::1124-c-4v0-03031966 DDooccuummeennt:t 01095113F57ile9d78o9n 07P/a0g6e/1: 616in TXDSaDte FPileadg:e0176/0o6f/210916
No. 14-40339 2. Holt v. Hobbs and Plaintiffs' Particular Characteristics The grooming-policy RLUIPA claim should also be remanded because the district court did not appear to consider Plaintiffs' specific, individual status as low custody level inmates in relation to their theory that the groom1ng restrictions are unnecessary as applied to them. Davis and Goodman argue that the district court's op1n10n does not reflect that consideration was given to their specific security risk status, which they assert was low, in determining whether disallowing a kouplock substantially burdened their religious exercise by the least restrictive means. 6 The Supreme Court has explained that RLUIPA "requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person-the particular claimant whose sincere exercise of religion is being substantially burdened." Holt, 135 S. Ct. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779) (quotation marks omitted). In Holt, 135 S. Ct. at 853, the Supreme Court considered a RLUIPA challenge to the Arkansas Department of Corrections' no-beard policy. The policy prohibited inmates from wearing facial hair other than a "neatly trimmed mustache." !d. at 860. The policy made no religious exceptions, but did allow inmates with diagnosed dermatological conditions to wear a J;t -inch beard. !d. In accordance with his Muslim faith, Gregory Holt sought permission to grow a Y2-inch beard. !d. at 859, 861. Holt's request was denied, and he filed suit under RLUIPA. !d. at 861. Following an evidentiary
6 On appeal, Davis and Goodman also claim that the district court erred in failing to consider the option to house all low security risk Native American inmates in one unit and allow long hair or a kouplock only on that unit. It does not appear that this argument was raised in the district court. This Court does not "consider arguments or evidence that was not presented to the district court." Benefit Recovery, Inc. v. Donelan, 521 F.3d 326, 329 (5th Cir. 2008).
16

CaCseas2e::1214-c-v4-003031966 DDooccuummeennt:t 01095113F5i7le9d78o9n 07P/0a6ge/1:617in TXDSaDte FPileadg:e0177/0o6f/210916
No. 14-40339 hearing, the district court dismissed Holt's RLUIPA complaint for failure to state a claim, and the Eighth Circuit affirmed. Id. The Supreme Court reversed, holding that the Department's grooming policy violated RLUIPA as applied to Holt. Id. at 867.
The Court reasoned that the Department's stated justification for the policy, preventing the flow of contraband, would not be seriously compromised by permitting Holt to grow a Yz-inch beard. Id. at 863. Similarly, the Court found the Department's interests in prisoner identification and security would not be severely compromised. Id. at 865. In reaching this conclusion, the Court noted that permitting a religious accommodation to a grooming policy may still allow prison officials to maintain security because RLUIPA allows an institution "to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison's compelling interests." Id. at 867.
Applying Holt, another panel of this Court recently affirmed a district court's grant of declaratory and injunctive relief enabling a Muslim TDCJ inmate to grow a four-inch beard and wear his kufi throughout TDCJ's facilities. Ali, 2016 WL 1741573, at *1. 7 In doing so, this Court reviewed the district court's findings as to the TDCJ grooming policy and evaluated the evidence supporting TDCJ's concerns over preventing the transfer of contraband, facilitating inmate identification, controlling costs, and ensuring orderly program administration, all of which have been raised as interests in this litigation. Id. at *6-13. Examining the specific exemption requested, a four-inch beard, this Court found that TDCJ's ban on the wearing of such a
7 George Sullivan also testified as an expert witness in the Ali bench trial that selfsearches and visual inspections of longer beards are effective methods for revealing contraband. Ali, 2016 WL 1741573, at *8.
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CaCseas2e::1124-c-4v0-03031966 DDooccuummeennt:t 01095113F57ile9d78o9n 07P/a0g6e/1: 618in TXDSaDte FPileadg:e0178/0o6f/210916
No. 14-40339 beard as to Ali was not the least restrictive means of furthering these interests. B
In light of Holt, TDCJ's asserted compelling interests must be examined in light of the particular characteristics of each Plaintiff, including their alleged low security risk status and the particular risks of the specific exemption requested. 135 8. Ct. at 863. The specific exemption requested here is to allow Plaintiffs to wear long hair or a kouplock. In the district court, TDCJ presented photographs of objects small enough in size to hypothetically be hidden in a kouplock, and evidence that inmates at other institutions hide contraband in various styles of short and long hair, indicating that the grooming policy does further an interest in preventing the transfer of contraband. But TDCJ has not demonstrated on the present record that a total ban on the growing of kouplocks, even as to low security risk inmates such as Plaintiffs, is the least restrictive means of furthering that interest. Were Plaintiffs to be caught using their kouplocks to smuggle contraband or for some other prohibited purpose, any accommodation could be withdrawn. Id. at 867; see also Ali, 2016 WL 1741573, at *14 ("TDCJ has not shown why it is impracticable to revoke kufi privileges for those inmates that resist such searches."). In addition, a fact question may be presented on this point based on George Sullivan's testimony that, in his experience, inmates are unlikely to hide contraband in their hair.
Because TDCJ's interests in preventing the wearing of long hair or kouplocks were not evaluated in light of the specific characteristics of each Plaintiff as purportedly low security risk Native American inmates, remand for further findings on this issue is appropriate.
8 The Court began its analysis by noting that Ali "is a 'trusty' inmate, which is the lowest security level classification, and lives in a dormitory outside of the Michael Unit's fence line." Id.
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CaCsaese2::1124--c4v0-30309166 DDooccuummenetn: t010951135F7il9e7d8o9n 07P/a0g6e/:1619in TDXaStDe FiPleadg: e071/906o/f210916 No. 14-40339
IV. CONCLUSION The district court did not err in granting summary judgment on Plaintiffs' First Amendment claim, medicine-bag RLUIPA claim, and pipeceremony RLUIPA claim. Because the district court did not strike Plaintiffs' summary judgment evidence, including George Sullivan's expert testimony, and because genuine issues of material fact remain regarding the legitimacy of TDCJ's cost and security concerns created by the wearing of a kouplock by Plaintiffs as low security risk Native American inmates, and further because the district court did not consider Plaintiffs' grooming-policy claim in light of Plaintiffs' individual circumstances, we VACATE and REMAND in part for further proceedings as to Plaintiffs' grooming-policy claim under RLUIPA. We AFFIRM the judgment of the district court in all other respects.
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

United States District Court Southern District of Texas
ENTERED
March 07, 2017
David J. Bradley, Clerk

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
LORIE DAVIS, Director, TDCJ-CID,
Defendant.

§ § § § CIVIL ACTION NO. 2:12-CV-166 § § § §

OPINION AND ORDER ON REMAND DENYING DEFENDANT’S MOTION TO STRIKE, DENYING PLAINTIFFS' MOTION TO STRIKE, DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ RLUIPA GROOMING POLICY CLAIM AND RECOMMENDING REMAND OF
THE APPEAL FOR A TRIAL ON THE MERITS

By judgment issued as mandate entered on July 6, 2016, the Fifth Circuit affirmed

in part, and vacated and remanded in part, this Court’s February 27, 2014 order granting

Defendant’s motion for summary judgment and denying Plaintiffs’ cross-motion for

summary judgment. (D.E. 191). The Fifth Circuit affirmed the dismissal of Plaintiffs’

First Amendment claims as well as Plaintiffs’ claims under the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, regarding his medicine bag

and pipe ceremonies, but retained and remanded Plaintiffs’ RLUIPA claims challenging

Defendant’s grooming policy prohibiting long hair or alternatively, the growing of a

kouplock. (D.E. 191 at p. 19). See also Davis v. Davis, 826 F.3d 258, 2016 WL 3269089

(5th Cir. 2016). The remand required examination of two issues: (1) whether Plaintiffs’

summary judgment evidence setting forth the testimony of an expert, Mr. George

Sullivan, exacted in an earlier trial before this Court on the identical issue of hair length,

1 / 28

kouplocks and prison security, could properly be considered on summary judgment in this proceeding; and (2) whether an exception to the grooming policy posed any risk to the safety and security of the prison population and staff due to Plaintiffs' individual security status.1 Id. I. JURISDICTION.
The Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331. Upon consent of the parties (D.E. 87, 102), this case was referred to the undersigned United States magistrate judge to conduct all further proceedings, including entry of final judgment. (D.E. 107). See 28 U.S.C. § 636(c). II. PLAINTIFFS’ CLAIMS AND PROCEDURAL BACKGROUND.
The procedural history of this case has been fully and accurately detailed in previous pleadings, as well as by the Fifth Circuit in its July 2016 opinion. (See D.E. 191, pp. 2-4). Briefly, Plaintiff Teddy Norris Davis and Plaintiff Robbie Dow Goodman are prisoners incarcerated in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID), and both are currently confined to the McConnell Unit in Beeville, Texas.
On May 21, 2012, Davis filed a pro se 42 U.S.C. § 1983 complaint alleging that certain TDCJ Defendants were burdening his right to practice his religious faith by
1 In its opinion, the Fifth Circuit noted that Defendant had failed to object by separate motion to the admissibility of Mr. Sullivan’s testimony, but had objected only in her summary judgment motion. (D.E. 191, p. 10). Defendant’s objection to Sullivan’s testimony is now before the Court in a separate motion (D.E. 200), as well as in the additional briefing of both parties. (See D.E. 200, 210). The prior trial referred to the testimony given before United States Magistrate Brian Owsley in Odneal v. Pierce, et al., Civil Action No. 2:04-cv-00454. 2 / 28

implementing three TDCJ policies that prevented him from (1) smoking a prayer pipe during Native American pipe ceremonies, (2) wearing a religiously significant “medicine bag” other than within his cell and while walking to and from religious ceremonies, and (3) 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. (See D.E. 1). Plaintiff Davis named as defendants the TDCJ-CID Director (then Rick Thaler, and now Lorie Davis) and Bill Pierce, the Director of the TDCJ Chaplaincy Department.
On June 21, 2012, a Spears2 hearing was held with Plaintiff Davis, and he orally moved to add as defendants (1) Clint Morris, the Program Analyst for Designated Units, (2) Madeline Ortiz, the Director of Rehabilitative Programs, and (3) Shawna Mitchell, the McConnell Unit Chaplain.
On June 22, 2012, Robbie Goodman was granted leave to join as a plaintiff. (D.E. 16). Both Plaintiffs alleged that implementation of the challenged TDCJ policies caused them to suffer deprivations of their religious beliefs, and pointed out that if they disobeyed the TDCJ policies they were subject to disciplinary action, including loss of privileges and good time credits.
On February 11, 2013, Plaintiffs filed an Amended Complaint. (D.E. 88). Thereafter, following Plaintiffs’ consent to proceed before a magistrate judge, Plaintiffs voluntarily dismissed all of their claims except their three RLUIPA challenges which sought injunctive and declaratory relief against TDCJ-CID Director Rick Thaler in his
2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 3 / 28

official capacity, and their First Amendment claim against Clint Morris, a TDCJ Program Analyst. After Thaler retired, William Stephens was substituted as the TDCJ-CID Director Defendant, and on May 5, 2016, the new TDCJ-CID Director, Lorie Davis, was appointed and substituted as a defendant in this action.
On February 27, 2014, this Court issued its Opinion and Order on Cross-Motions for Summary Judgment and Final Judgment. (D.E. 158, 159). The undersigned found that Plaintiffs are sincere practitioners of the Native American faith and that the policies complained of constituted a substantial burden on their religious exercise. The undersigned further found that Defendant had demonstrated that the challenged prison regulations were the least restrictive means of furthering compelling governmental interests, in particular, the prison’s interest in security, such that Plaintiffs’ request to modify those policies be denied.
Plaintiffs appealed (D.E. 161), and by Order issued as mandate entered on July 6, 2016, the Fifth Circuit affirmed the dismissal of Plaintiffs’ First Amendment claim and RLUIPA claims regarding the tobacco policy and medicine bag policy. (D.E. 191). The Fifth Circuit remanded for further briefing on Plaintiffs’ challenge to the TDCJ-CID grooming policy and the issue of whether or not this Court should have considered the testimony of Mr. Sullivan and further to examine the individual security risk(s) posted by each Plaintiff.
On July 12, 2016, this Court ordered the parties to submit additional briefing following the Fifth Circuit’s remand. (D.E. 192).
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Defendants filed a motion for clarification of appeal (D.E. 161), and on August 8, 2016, the Fifth Circuit clarified that only additional briefing was necessary and that there was no need for a trial. (D.E. 198).
On August 10, 2016, Defendant filed a motion to strike the testimony of Mr. George Sullivan, (D.E. 200), and on September 28, 2016, Plaintiffs filed a motion to strike some of the exhibits contained in Defendant's additional briefing. (D.E. 210). The parties filed numerous replies and responses to replies, and all have been considered in connection with the remand order. (D.E. 200-230). III. SUMMARY JUDGMENT STANDARD.
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 5 / 28

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
6 / 28

facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. IV. DISCUSSION.
A. Issue One: Testimony of George Sullivan. In their cross-motion for summary judgment/summary judgment response (D.E. 129), Plaintiffs relied on the prior testimony and expert report of a retired prison official, George Sullivan, elicited during a trial of another case held before Magistrate Judge Brian Owsley, to support their argument that kouplocks do not pose risks to prison security sufficient to warrant their prohibition by TDCJ-CID’s grooming policy. (D.E. 143). Without squarely addressing the admissibility of Plaintiffs’ proposed expert testimony, this Court granted summary judgment in favor of Defendant, thus effectively ignoring Sullivan’s proffered testimony. (D.E. 158). The Fifth Circuit vacated and remanded on Plaintiffs’ claim that TDCJ’s grooming policy violates their right under RLUIPA to wear a kouplock consistent with their Native American faith, but instructed this Court to make a specific finding as to the admissibility of Sullivan’s testimony. (D.E. 191). Defendant Davis moves to strike Plaintiffs’ proffered expert testimony arguing that the testimony cannot and could not have properly been considered because it was offered in an improper manner and form under Federal Rules of Civil Procedure 26(a)(2) and 56(c), and is unreliable under Federal Rule of Evidence (FRE) 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1987). (See D.E. 200, D.E. 205, pp. 18-
7 / 28

28). Sullivan’s testimony is found at the following entries in this case: D.E. 143-1, pp. 14-17, 20-25, 27-28, 30; D.E. 143-2, pp. 1, 4, 12, 18; D.E. 143-3, p. 14, 17-18, and 24.
(1) Standard of Review. Trial courts have wide latitude when ruling on the admissibility of expert testimony. Hammond v. Coleman Co., 209 F.3d 718 (5th Cir. 2000). Because trial courts serve as gatekeepers, their exclusion of expert testimony is reviewed only for an abuse of discretion. See, e.g. Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (“With respect to expert testimony … its ruling must be sustained unless manifestly erroneous.”). Here, no specific ruling was made on the admissibility of Sullivan’s report and so the Court addresses the issue for the first time. (2) Defendant's Motion to Strike. Defendant argues that Plaintiffs' summary judgment evidence setting forth the prior testimony of George Sullivan could not properly be considered as expert testimony on summary judgment because Plaintiffs retyped or merely referenced portions of Mr. Sullivan’s expert report, deposition, and prior trial testimony from a previous trial held in the Corpus Christi Division, Odneal v. Pierce, et al., Civil Action No. 2:04-cv-00454, thus failing to satisfy either the procedural requirements of FED. R. CIV. P. Rules 26(a)(2) and 56(c)(1)(A) or the reliability requirements of Daubert and FED. R. EVID. 702. (a) FED. R. CIV. P. 26. As inmates proceeding pro se, Plaintiffs are excused from the duty to participate in initial disclosures. See FED. R. CIV. P. 26(a)(1)(B)(iv), excusing from initial disclosures “an action brought without an attorney by a person in the custody of the United States, 8 / 28

state, or a state sub-division.” Although excused from initial disclosures, pro se plaintiffs
are not excused from complying with FED. R. CIV. P. 26(a)(2)(D)(ii) in regards to
disclosing expert witnesses. That rule provides:
(D) Time to Disclose Expert Testimony. … absent a stipulation or a court order, the disclosures must be made:
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject identified by another party under Rule 26(a)(2)(B) or (C), within thirty days after other party’s disclosure.
FED. R. CIV. P. 26(a)(2)(D)(ii).
In this case, on September 13, 2012, Defendant disclosed her expert witnesses in
her Initial Disclosures, along with a statement of proposed testimony. (D.E. 36). (See
also D.E. 206-11, pp. 1-10). Defendant argues that Plaintiffs were thus required to
disclose the expert testimony of Mr. Sullivan that they intended to use to rebut that
testimony within thirty days, by October 13, 2012. Plaintiffs first produced Sullivan’s
testimony on October 28, 2013, fifteen days past the Rule 26 deadline. However, the
mere fact that Plaintiffs’ expert testimony was produced fifteen days late does not equate with a punishment of striking Plaintiffs’ expert witness testimony.3 The essential inquiry
is whether or not Defendant was prejudiced or harmed from this fifteen day delay. Under
Rule 37(c)(1), if a party fails to provide expert disclosures within the established
deadlines, “the party is not allowed to use the information or witness to supply evidence
3 Plaintiffs argue that they were unable to produce the expert report in full because they are indigent and were repeatedly denied requests for certified copies of Sullivan’s reports such that they had to hand-write much of the information themselves. (D.E. 217, p. 23). Defendant does not refute this, and the docket indicates that Plaintiffs were denied copies of the transcripts at the Court’s cost. 9 / 28

on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. (emphasis added).
In this case, Mr. Sullivan’s testimony posed neither surprise nor harmful error to Defendant. Mr. Sullivan’s testimony had been presented in an earlier Native American RLUIPA long-hair case to which the Director was a party. Moreover the fifteen day delay in Plaintiffs’ producing the testimony caused no harm to Defendant, and Defendant did not file a motion to strike the expert testimony, but only raised the issue in her Reply to Plaintiffs’ summary judgment motion. That is, Defendant had plenty of time to review the testimony offered by Plaintiffs and to prepare her objections thereto such that there was neither surprise nor harmful error. Defendant’s Rule 26 as well as Rule 37(c)(1)(A) objections to Plaintiffs’ expert testimony is overruled.
(b) Rule 56(c). The Fifth Circuit has held that a trial court may rely on certified transcripts of prior testimony in deciding a motion for summary judgment. See, e.g., Tremont LLC v. Halliburton Energy Services, Inc., 696 F. Supp. 2d 741, n. 22 (S.D. Tex. 2010) (citing Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n. 12 (5th Cir. 1993). Defendant maintains that un-certified transcripts are inadmissible hearsay. Generally, pro se plaintiffs are given leeway in the prosecution of their cases. The Fifth Circuit noted as such in the instant case, pointing to this Court’s December 20, 2013 order which allowed Plaintiffs to “hand copy all documents sent to the Clerk.” (D.E. 150). Defendant argues that this order should not be construed as giving permission to Plaintiffs to submit their hand-written materials as proper summary judgment evidence; 10 / 28

however, the Order has effectively already done as such. Moreover, a comparison of Plaintiff’s handwritten copies to the transcripts submitted in Odneal reveals that the copies are identical, and Defendant has failed to identify or point out any portions that incorrectly quote Mr. Sullivan or attempt to mislead the Court. It is noted that the Odneal trial was against the TDCJ-CID Director, who had an opportunity during the Odneal trial to fully cross examine Mr. Sullivan, as well as to rebut Mr. Sullivan's testimony with testimony of the Director's own experts. In this case, given the in forma pauperis status of the Plaintiffs, and the fact that the court may take judicial notice of the proceedings and the entire testimony of Mr. Sullivan,4 fairness dictates that the testimony may be examined in connection with the summary judgment motion.
(c) Federal Rule of Evidence 702 and Daubert. Defendant also challenges Mr. Sullivan’s prior testimony and expert report as inadmissible under FED. R. CIV. P. 702. When presented with expert testimony, the Court must determine at the onset if the proponent of the evidence has proven its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n.10 (citing FED. R. EVID. 104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). To prove admissibility of an expert opinion on scientific, technical, or specialized knowledge, the proponent’s evidence must satisfy
4 A court may sua sponte take judicial notice of records in related cases, as long as it judicially notices only those adjudicative facts that cannot reasonably be questioned. Moore v. Estelle, 526 F.3d 690, 694 (5th Cir. 1976); In re Base Holdings, LLC, No. 3:13-CV-1584-D, 2014 WL 895403 at n. 5 (N.D. Tex. 2014). See also In re Moity, 320 Fed. App'x 244, 249 (5th Cir. 2009)("One court may take judicial notice of another court's judicial actions.") 11 / 28

the reliability standard. FED. R. EVID. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
To determine reliability under FED. R. EVID. 702, courts consider whether the expert (1) has “sufficient facts or data” underlying the testimony; (2) applied “reliable principles and methods,” and (3) reliably applied the principles and methods to the facts of the case. Federal courts applying Rule 702 should look closely and directly at evidence, and consider a wide range of factors bearing on reliability—courts are gatekeepers and must access the validity and reliability of scientific evidence. Daubert, 509 U.S. at 590-92.
Kumho clarified Daubert’s ambit as including specialized knowledge (e.g. prison security). 509 U.S. at 590-91. The Kumho court emphasized that courts should not only consider the specific factors identified in Daubert where they reasonably measure the reliability of expert testimony, but also, given the particular nature and facts of the case, should consider other factors weighing on whether the expert’s conjectures have “a reliable basis in the knowledge and experience of the relevant discipline.” Id. at 591.
Merely qualifying an expert does not pave the way for whatever the expert might want to say about the case. Daubert, 590 U.S. at 595-96. The expert must reach conclusions that are consistent with those reached by others applying similar analyses to similar facts. Id. Disparity is a red flag—it suggests that something about the method or manner has gone wrong and that reliability has not been met.
Other “red flags … caution against certifying an expert [that] include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack 12 / 28

of testing, and subjectivity as well as whether “a purported expert’s opinion was prepared solely for litigation.” Newell Rubermaid, Inc. v. Raymond Corp., 675 F.3d 521, 527 (6th Cir. 2012). These red flags echo the Supreme Court’s reasoning in Joiner, which expanded the reliability inquiry to include an assessment of the fit between an expert’s specific opinions and the data, principles, and methods from which they are derived. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (“…[n]either Daubert [n]or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert”).
Defendant has failed to offer any evidence to refute the reliability of Mr. Sullivan’s expertise. Mr. Sullivan testified in the Odneal case that he has 55 years experience in state and federal corrections. ( See Odneal, Case No. 2:4-cv-454, D.E. 157, pp. 1-20). He worked as a warden and superintendent at the Oregon State Correctional Institution from 1969 through 1984. (Odneal, D.E. 157, p. 3). He served as a warden in a New Mexico prison until 1987, and thereafter, as Deputy Director in charge of statewide prison operations in Colorado until 1994. Id. at 3-4. While with the Oregon prison system, Sullivan implemented a Native American rights policy, including personal choice in hair length. Id. at 3. The Oregon prisons had no security incidents concerning hair length. Id. He has conducted audits of state and federal prisons, and has served as a professional corrections consultant and expert witness, having served on the accreditation special task force as well as a special committee concerning protective custody. Id. at p. 7. The uncontested summary judgment evidence establishes that Mr. Sullivan is an expert in prison operations and safety. 13 / 28

Defendant argues that she was denied the opportunity to review properly Mr. Sullivan’s prior trial testimony because Plaintiffs provided only their hand-copied and selected excerpts of Sullivan’s testimony rather than a complete certified trial transcript plus any written reports of Mr. Sullivan. This argument is without merit however because, as mentioned earlier, the Director had access to Mr. Sullivan's testimony in Odneal and in other trials held against the Director in this court.5
Moreover, Plaintiff’s contention that she did not have access to Mr. Sullivan’s report and findings is simply not true. In Odneal v. Dretke, 435 F. Supp. 2d 608 (S.D. Tex., Jun. 21, 2006) (C.A. No. 2:04-454), this Court dismissed Odneal’s claims regarding wearing a medicine bag, growing long hair, and engaging in pipe ceremonies finding the TDCJ policies prohibiting such practices were reasonably related to the TDCJ’s legitimate interest in security. On appeal, the Fifth Circuit affirmed the pipe ceremony claim but remanded the hair and medicine bag claims for further development. Odneal v. Pierce, 324 Fed. Appx. 297 (5th Cir. 2009).
On remand, Odneal was appointed counsel, and he abandoned his medicine bag claim, retaining only his long hair/kouplock claims. At summary judgment, the TDCJ produced evidence that kouplocks could present security issues concerning inmates’ identification and provide a hiding place for secreting contraband. Odneal countered this evidence with the testimony of Mr. Sullivan, and summary judgment was denied. See Odneal v. Pierce, 2010 WL 3359535 (S.D. Tex. 2010). On December 13-14, 2010, a
5 Garner v. Morales, et al., Civil Action No. 2:06-cv-0218, affirmed, Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). 14 / 28

bench trial was conducted before Magistrate Judge Owsley. Before a ruling was entered, the TDCJ transferred Odneal to a prison in Minnesota where he would be permitted to grow his hair, and therefore, the kouplock issue became moot and remains undecided. (See Odneal v. Pierce, 2011 WL 2678940 (S.D. Tex. Jul. 7, 2011) (Case No. 2:04-454, D.E. 195, Order of Dismissal). Although the Odneal case ultimately had no bearing on the merits of this case, it does show that Defendant had access to Mr. Sullivan’s testimony and reports and that this Court had found his testimony and reports sufficient to raise a genuine issue of material fact for purposes of summary judgment.
On remand, the Court now finds that Defendant’s motion to strike the testimony of George Sullivan (D.E. 200) should be denied and in all things is denied. Defendant has had ample opportunity to review Sullivan’s trial testimony and reports in certified forms and to assure herself that Plaintiffs’ hand-written submissions, though not complete, are not misleading and adequately raise a fact issue on their own. Thus, the testimony of Mr. Sullivan is admitted.
B. Issue Two: Evaluating the Marginal Interests of Each Plaintiff Under the RLUIPA.
In its Order of Remand (D.E. 191), the Fifth Circuit noted remand was also appropriate because “…the district court did not appear to consider Plaintiffs’ specific, individual status as low custody level inmates in relation to their theory that the grooming restrictions are unnecessary as applied to them." (D.E. 191, p. 16).
(1) Section 3 of the RLUIPA. Section 3 of the RLUIPA concerns institutionalized persons and states: 15 / 28

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 governmental 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. Chance v. Tex. Dep’t of Crim. Justice. 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 carries 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 of protecting the religious observances of individualized persons, the statute does not give courts carte blanche to second-guess the 16 / 28

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 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).
17 / 28

(2) Holt v. Hobbs. In Holt v. Hobbs, 135 S. Ct. 853 (2015), the Supreme Court considered a RLUIPA challenge to the Arkansas Department of Corrections’ (ADOC) no-beard policy. The policy prohibited inmates from wearing facial hair other than a “neatly trimmed mustache.” Id. at 860. The policy made no religious exceptions, but did allow inmates with diagnosed dermatological conditions to wear a ¼-inch beard. Id. In accordance with his Muslim faith, Gregory Holt sought permission to grow a ½-inch beard. Id. at 859, 861. The ADOC denied Holt’s request and he filed suit under RLUIPA. Id. at 861. Following an evidentiary hearing, the district court dismissed Holt’s complaint for failure to state a claim, and the Eighth Circuit affirmed. Id. The Supreme Court reversed, holding that ADOC’s grooming policy violated RLUIPA as applied to Holt. Id. at 867 (emphasis added). The Court reasoned that the ADOC’s stated justification for the policy, preventing the flow of contraband, would not be seriously compromised by permitting Holt to grow a ½-inch beard. Id. at 863. In reaching this conclusion, the Supreme Court noted that permitting a religious accommodation to a grooming policy may still allow prison officials to maintain security because RLUIPA allows an institution “to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.” Id. at 867. A panel of the Fifth Circuit applied Holt to affirm a decision out of the Eastern District of Texas granting a Muslim inmate the right to grow a four-inch beard and wear his kufi throughout TDCJ’s facilities in Ali v. Stephens, 2016 WL 1741573 (E.D. Tex. 18 / 28

May, 2, 2016). In affirming the bench trial decision, the Fifth Circuit reviewed the district court’s findings as to the TDCJ grooming policy and evaluated the evidence supporting the TDCJ’s concerns over preventing the transfer of contraband, facilitating inmate identification, controlling costs, and ensuring orderly program administration, all concerns that were raised in the instant litigation with Davis and Goodman. In fact, George Sullivan testified as an expert in the Ali bench trial that self-searches and visual inspections of longer beards are effective methods for revealing contraband. Ali, 2016 WL 1741573, at *8. After examining the specific exemption requested (a four-inch beard), the Fifth Circuit found that the TDCJ’s ban on the wearing of such a beard as to Ali was not the least restrictive means of furthering these interests. It was noted that Ali is a “trusty” inmate which is the lowest security level classification, and that he lives in a dormitory outside of the Michael Unit’s fence line. Id.
In light of Holt, TDCJ’s asserted compelling interests must be examined in light of the particular characteristics of each Plaintiff, including the Plaintiff’s security risk status and the particular risks of the specific exemption requested. Holt, 135 S. Ct. at 863.
(3) Plaintiffs’ Security Risk Status. The Fifth Circuit has ordered the Court to evaluate the grooming policy as to each Plaintiff, including in the context of each Plaintiff’s particular security classification. (D.E. 191, p. 19). Plaintiffs have presented their security classification. (D.E 217). Defendant objects to this evidence arguing that Plaintiffs are raising their low risk “allegation” for the first time in response to Defendant’s summary judgment motion such that it is not before the Court properly and should not be considered. (D.E. 205, pp. 1619 / 28

19). Defendant’s argument is without merit. Plaintiffs were ordered by the Fifth Circuit
and also by this Court in its July 12, 2016 order for additional briefing (D.E. 192) to
provide evidence regarding their security status, and they filed their briefing on
November 21, 2016. (D.E. 217). Moreover, the security status of Plaintiffs is a fact issue
in which their RLUIPA claim is evaluated; it is not a separate claim as suggested by
Defendant. Plaintiffs' motion to strike (D.E. 210) is denied for the same reasons. Warden Barber explains that, in evaluating an inmate’s custody level,6 several
factors are considered including (1) an offender’s current institutional behavior, (2) his
current offense and (3) his current sentence length. (D.E. 206-3, Barber Aff’t, p. 5).
Disciplinary convictions may negatively affect an inmate’s custody designation. Id.
Similarly, offenders who comply with the rules and progress without receiving a
disciplinary case may be assigned a less restrictive custody level. Id.
(a) Plaintiff Davis.
Current offense and sentence length.
Plaintiff Davis is serving a 50-year sentence for indecency with a child making
sexual contact. (D.E. 206-1, p. 2). He is currently eligible to be reviewed by the Texas
6 According to the TDCJ-CID Prisoner Handbook, upon entering the TDCJ, a prisoner is assigned both a custody classification (G1-G5, and administrative segregation), and a line class designation. See www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.pdf, p. 7-8. The custody classification indicates where and with whom the inmate can live, how much supervision he will need, and what job he will be assigned to, if any, and it is determined by a classification committee. Id. at 7. The prisoner’s line class is his time-earning status, designated as L1-3 through S1-3, indicating the rate at which he can earn good time credits. Offender Handbook, p. 7. All inmates are assigned Line Class 1 (L1) when they first arrive. Id., p. 8. Inmates can work their way into a higher time earning status or be placed into a lower time earning status, dependent upon their behavior. Id. 20 / 28

Board of Pardons and Paroles on July 23, 2017 for release on discretionary mandatory supervision. Id.
Institutional behavior. Since his arrival in the TDCJ on December 17, 1997, Plaintiff has received sixteen disciplinary cases, thus averaging less than one disciplinary case per year. (D.E. 206-3, p. 3). Of those sixteen cases, fourteen were classified as minor offenses, one was classified as major/minor, and one was classified as major. Id. In the major case, Disciplinary Case No. 200002157, Plaintiff was charged on March 15, 2000, with fighting with another offender without a weapon, no serious injury. (D.E. 206-7, pp. 5767). Plaintiff admitted that he got into a “misunderstanding” with the other inmate and began striking him with a closed fist about the face. (D.E. 206-7, p. 59). Officer Gonzales and another inmate intervened and stopped the fight. Id. A disciplinary hearing was held on March 22, 2000. (D.E. 206-7, p. 57). Based on the charging officer’s report, Plaintiff was found guilty of the major offense of fighting. Id. As punishment, Plaintiff Davis lost 45 days recreation and commissary privileges, 100 days good conduct time, and a reduction in his line classification from S-3 to L-1. Id. The major/minor case was issued for refusing to obey an order on June 15, 2004 in Disciplinary Case No.20040293107. (D.E. 206-7, pp. 37-38). A hearing was held on June 18, 2004, and Plaintiff admitted he was guilty. Id. at 37. As punishment, Plaintiff lost recreation and commissary privileges, and his contact visits were suspended. Id. at 38. 21 / 28

Since filing this lawsuit in May 2012, Plaintiff has been charged with two minor disciplinary offenses. In Disciplinary Case No. 20150300406, Plaintiff was charged with being out of place. (D.E. 206-6, pp. 7-8). More specifically, he was in the restroom area on June 19, 2015, when he had no authorization to be there. Id. Plaintiff pled guilty and as punishment received 10 days cell restriction. Id. at 7.
On June 10, 2016, Plaintiff was charged with being out of place. (D.E. 206-6, pp. 3-4. Plaintiff was at the 18/19 gate going to church, but he had no authorization to be doing so. Id. As punishment, he received a verbal reprimand. Id.
(b) Plaintiff Goodman. Current offense and sentence length.
Plaintiff Goodman is currently serving two 25-year sentences for aggravated sexual assault of a child. (D.E. 206-2, p. 2). His projected release date is March 21, 2021. Id. His custody level is G2, and his line class is S3. (D.E. 206-8).
In the past nineteen years, from September 3, 1996 through January 31, 2016, Plaintiff Goodman has received twenty-two disciplinary convictions. (D.E. 206-4, pp. 34).7 Of those cases, three were major. Id. In the first major case, Disciplinary Case No. 20020266604, Plaintiff was charged with assaulting another inmate with a roll of toilet paper. (D.E. 206-10, p. 54). No serious injuries were sustained. Id. Plaintiff pled guilty and as punishment received 45 days loss of commissary and recreation, 15 days solitary confinement, and a a reduction in his line class. Id.
7 There are actually 24 cases listed, but Warden Barber testifies that there were only 22 convictions, suggesting that two cases were dismissed. 22 / 28

Plaintiff’s next major disciplinary case, Disciplinary Case No. 20080209241,
occurred on April 5, 2008, after a homemade pipe containing a leafy substance that
tested to be marijuana was found in Plaintiff’s his cell. (D.E. 206-10, pp. 14-20).
Plaintiff was found guilty. Id. at 14. The remainder of the report is not legible and
therefore it in not known what punishment Plaintiff received.
Plaintiff’s last major disciplinary case occurred on October 31, 2008, Disciplinary
Case No. 20090061530, wherein Plaintiff was charged with possession of
contraband/child pornography. (D.E. 206-10, pp. 7-14). According to Plaintiff, he had
written the “story” by himself and it belonged to him. Nevertheless, he was found guilty
and as punishment received 45 days loss of commissary and recreation and 30 days loss
of good time credits. Id., p. 7.
The uncontested evidence shows that Davis and Goodman both have a current
custody classification of “G2.” (Davis, D.E. 206-3, p. 5; Goodman, D.E. 206-4, p. 6).
Warden Barber points out that neither Plaintiff has earned G1 status and also concludes
as to each: “He is not considered a low-risk offender.” (Davis, D.E. 206-3, p. 5;
Goodman, 206-4, p. 6). Warden Barber, however, fails to offer any evidence or authority
that equates G2 status with not being low risk. There are six levels in the custody
classification:
1. Administrative segregation. This classification is for offenders who must be separated from the general population because they are dangerous, either to other offenders or staff, or they are in danger from other offenders. Offenders who, according to the Security threat Group Management (STGMO), are members of security threat groups designated by TDCJ, may be given this custody level. These offenders leave their cells, for the most part, only for showers and limited recreation. Offenders 23 / 28

assigned to administrative segregation in expansion cellblocks shower in their cells.
2. General Population Level 5 (G5) custody refers to offenders who have assaultive or aggressive disciplinary records. G5 custody offenders must live in cells. They may not work outside the security fence without direct, armed supervision.
3. General Population Level 4 (G4) custody means the offender must live in a cell, with few exceptions, and may work outside the security fence under direct, armed supervision.
4. General Population Level 3 (G3) refers to prison offenders who may live in dorms or cells inside the main building of the unit. G3 offenders are ineligible to live in dorms outside the main building of a unit, inside the security fence. G3 offenders will generally be assigned to field force and secure jobs inside the perimeter as designated by the warden. They may work outside the security fence under direct armed supervision.
5. General Population Level 2 (G2) refers to offenders who may live in dorms or cells inside the security fence. They may work outside the security fence under direct armed supervision.
6. General Population Level 1 (G1) custody allows offenders to live in dorms outside the security fence. Offenders living in trusty camps will be classified OT custody.. They may work outside the security fence with periodic unarmed supervision.
http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.
Pdf, p.6.
There are six custody levels, and Plaintiffs are the second lowest security risk
group. In Ali v. Stephens, the prisoner was indeed a trustee, but nowhere did the Fifth
Circuit equate “low risk offender” with “G1”to the exclusion of other custody levels.
Moreover, Defendant has failed to offer any evidence to suggest that G2 inmates, by this
designation alone, are not “low risk” offenders within the TDCJ-CID.
24 / 28

Defendant has argued emphatically that Plaintiffs’ disciplinary records demonstrate they are risky inmates who should not be given the chance to wear long hair or a kouplock, and she emphasizes in particular the fact that they received cases for being out of place or for possession of contraband, and that these type of cases lead to a breach in security. (See D.E. 205, pp. 10-15). The problem with Defendant’s argument, however, is that it is the TDCJ-CID, not Plaintiff or the courts, who designated cases for contraband and being out of place as “minor.” While in in the context of the prison setting, any infraction potentially has an impact on security, and prison authorities have determined that some are major cases while some are minor. As reflected by their G2 custody level, Plaintiffs here did not participate in behavior that has prevented them from being G2.
Defendant points out that Plaintiff Goodman was in G4 custody “for about a year,” following a major disciplinary infraction. (D.E. 206-4, p. 6). In 2008, Goodman did receive his two major cases for possession of contraband; however, based on good behavior, he was returned to G2. Warden Barber testified that custody level is determined by several factors, including an offender’s current institutional behavior. (D.E.205, p. 17). Plaintiff Goodman is currently G2 with no disciplinary case within the last year. (D.E. 206-4, pp. 3, 6). This evidence could support a finding of low risk.
The specific exemption requested in this case by both Plaintiffs is to allow them to wear long hair or a kouplock. In the district court, the TDCJ presented photographs of objects small enough in size to hypothetically be hidden in a kouplock, and evidence that inmates at other institutions hide contraband in various styles of short and long hair, 25 / 28

indicating that the grooming policy does further an interest in preventing the transfer of
contraband. (D.E. 191, p. 18). But the Fifth Circuit found that the TDCJ did not
demonstrate on the present record that a total ban on the growing of kouplocks, even as to
low risk inmates such as Plaintiffs, is the least restrictive means of furthering that interest.
Were Plaintiffs caught using their full head of hair or their kouplocks to smuggle
contraband or for some other prohibited purpose, any accommodation could be
withdrawn. (D.E. 191, p. 18); Holt, 135 S. Ct. at 867; see also Ali v. Stephens, 2016 WL
1741573, at *14 (“TDCJ has not shown why it is impracticable to revoke kufi privileges
for those inmates that resist such searches.”). In addition, the Fifth Circuit found that a
fact question may be presented on this point based on George Sullivan’s testimony that,
in his experience, inmates are unlikely to hide contraband in their hair. (D.E. 191, p. 18).
This Court previously found that the TDCJ’s grooming policy provided the least
restrictive means of allowing Plaintiff’s to practice their Native American faith, even
though it did place a substantial burden on such practice. However, after Hobbs and its
emphasis on personal accommodation, the Court looks again at Mr. Sullivan’s testimony
regarding security.
Mr. Sullivan testified:
Through my personal experience as both a warden and as a deputy Director in charge of 20 prisons, over a period of 25 years, I readily attest that inmates … having long hair of personal choice length does not present any realistic, untoward security or prison operational problems. Staff time and other costs incurred in managing such programs are routinely absorbed within the prison operation. I have toured/audited 17 facilities of the U.S. bureau of prisons, all of which permit inmates to have beards and long hair, requiring only that they be kept clean and well groomed. State prison systems which I have toured/audited that also permit inmates to wear 26 / 28

beards and long hair, requiring only that they be kept clean and well groomed, have also been seen by me to present to present no correctional/security problem …Presentations made by TDCJ of possibilities of inmates carrying contraband in their long hair … are possibilities, of course, but not probabilities; inmates have too many readily available other ways to transport contraband. I have never heard or known of transporting contraband in long hair…actually happening, but such presentations seem to be convincing to non-corrections people. TDCJ’s refusal to permit inmates to wear long hair … has not prevented their inmates from carrying contraband or fashioning homemade weapons, i.e., “shanks.”
(D.E. 143-1, pp. 15-16, Davis’ typed submission of Sullivan’s deposition
testimony in Odneal).
Mr. Sullivan testified that he did not believe a kouplock would be grabbed by an
inmate during a fight. (D.E. 143-1, p. 16, Davis’ typed submission of Sullivan’s
deposition testimony in Odneal).
On remand, after considering Mr. Sullivan’s testimony in an identical case along
with the contradictory summary judgment evidence presented by Defendant, the Court
finds that Sullivan's testimony, as well as the contradictory evidence presented by all
parties as to whether Plaintiffs are lower risk offenders, create factual issues that will
require a trial.
V. CONCLUSION.
The summary judgment evidence establishes that the TDCJ grooming policy
requiring short hair imposes a substantial burden on Plaintiffs’ religious exercise.
Plaintiffs' motion to strike (D.E. 210) and Defendant's motion to strike (D.E. 200) are
denied. Moreover, Plaintiffs have established that there is a fact issue as to whether
TDCJ's grooming policy is the least restrictive means of maintaining institutional security 27 / 28

without added significant cost to TDCJ. After revisiting this issue on remand, the court finds that summary judgment in favor of Defendants on the RLUIPA grooming claim should be withdrawn and denied, and recommends that the Fifth Circuit remand this case for trial.
The Clerk shall provide a copy of this order to all parties. The Clerk shall further forward a copy of this order, as well as the entire supplemental Record on Appeal, to the Clerk for the United States Fifth Circuit Court of Appeals.
ORDERED this 7th day of March, 2017. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
28 / 28

 
 Case 2:12-cv-00166 Document 252 Filed on 03/02/18 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

Page 1 of 4
United States District Court Southern District of Texas
ENTERED
March 05, 2018
David J. Bradley, Clerk

TEDDY NORRIS DAVIS, et al, Plaintiffs,
vs.
BILLY PIERCE, et al, Defendants.

§ § § § CIVIL NO. 2:12-cv-166 § § § §

WILLIAM CASEY, Plaintiff,
vs.
LORIE DAVIS, et al, Defendants.

§ § § § CIVIL NO. 2:14-cv-13 § § § §

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

§ § § § CIVIL NO. 2:14-cv-22 § § § §

ORDER CONSOLIDATING CASES

Several inmates, who either are or were Texas inmates housed at McConnell Unit in

Beeville, Texas, have filed three civil rights cases in this Court. The plaintiffs in these cases

challenge the same policies and practices of the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ-CID), which they assert have conflicted with their

right to practice their Native American faith in violation of the Religious Land Use and

1/4

Case 2:12-cv-00166 Document 252 Filed on 03/02/18 in TXSD Page 2 of 4
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and the First Amendment. This matter is now before the Court for sua sponte consideration as to whether these actions should be consolidated for trial.
I. BACKGROUND
On May 21, 2012, Teddy Norris Davis filed a civil rights action alleging that the TDCJ has implemented policies that prevent 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. (2:12cv166, D.E. 1). Robbie Dow Goodman was later granted leave to join as a plaintiff. (2:12cv166, D.E. 16). On January 10, 2014 and January 21, 2014, respectively, William Casey and Raymond Cobb filed separate civil rights actions in which they also challenged, pursuant to RLUIPA and the First Amendment, the same policies. (2:14cv13, D.E. 1; 2:14cv22, D.E. 1).
In each of the three actions filed by inmates who practice the Native American faith, the Court only allowed the RLUIPA grooming policy claim to survive past summary judgment. (2:12cv166, D.E. 231; 2:14cv13, D.E. 91; 2:14cv22, D.E. 38). Specifically, the Court ruled in each case that a fact issue exists as to whether TDCJ' s grooming policy is the least restrictive means of maintaining the TDCJ's compelling security and costs interests. (!d.). In the first civil rights action, Plaintiff Davis's claims were dismissed for lack of subject matter jurisdiction since he had been released from TDCJ custody. (2:12cv166,
2/4

Case 2:12-cv-00166 Document 252 Filed on 03/02/18 in TXSD Page 3 of 4
D.E. 248). Each of the cases filed by Plaintiffs Goodman, Casey, and Cobb are now ready to be set for trial on their respective RLUIPA grooming policy claims. II. DISCUSSION
Federal Rule of Civil Procedure 42(a) provides that if actions "involve a common question of law or fact," the court may "join for hearing or trial any or all matters at issue in the actions," "consolidate the actions," or "issue any other order to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Consolidation does not merge the suits into a single action or change the rights of the parties; rather, consolidation is "intended only as a procedural device used to promote judicial efficiency and economy" and "the actions maintain their separate identities." See Frazier v. Garrison !.S.D., 980 F.2d 1514, 1532 (5th Cir.1993).
The decision to consolidate actions under Rule 42(a) is "entirely within the discretion of the district court as it seeks to promote the administration of justice." Gentry v. Smith, 487 F.2d 571, 581 (5th Cir.1973). Factors for the court to consider in deciding if consolidation is appropriate include the following: "( 1) whether the actions are pending before the same court, (2) whether common parties are involved in the cases, (3) whether there are common questions of law and/or fact, (4) whether there is risk of prejudice or confusion if the cases are consolidated, and if so, is the risk outweighed by the risk of inconsistent adjudications of factual and legal issues if the cases are tried separately, and (5) whether consolidation will conserve judicial resources and reduce the time and cost of trying the cases separately." In re Enron Corp. Securities, Derivative & "ERISA" Litigation, Civ. A. Nos. H-01-3624, H-04-0088, H-04-0087, H-03-5528, 2007 WL 446051, at *1 (S.D. Tex. Feb.7, 2007).
3/4

Case 2:12-cv-00166 Document 252 Filed on 03/02/18 in TXSD Page 4 of 4
In the instant matter, all three actions are pending in this Court with two of the actions assigned to the undersigned and the third action assigned to Magistrate Judge B. Janice Ellington by consent. Judge Ellington agrees the cases should be consolidated and proceed before the undersigned. The cases involve common issues of law and fact, and Defendant Lorie Davis is the common remaining defendant in each case. Should the cases proceed separately, there is a risk of inconsistent adjudications of the factual and legal Issues. Furthermore, there is little risk of prejudice or confusion if the cases are consolidated. Finally, consolidation will conserve judicial resources and reduce time and cost of trying the cases separately. The Court concludes, therefore, that these cases shall be consolidated for trial. III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Clerk of Court shall consolidate Civil Actions 2:14-CV-13 and 2:14-CV-22 with 2:12-CV-166. The consolidated action shall proceed before the undersigned with the oldest case, Cause No. 2:12-CV-166, being the lead case. The Clerk, therefore, is DIRECTED to REASSIGN 2:12-CV-166 to the undersigned and to administratively close Cause Nos. 2:14-CV-13 and 2:14-CV-22. All future pleadings shall be filed in Cause No. 2:12-CV-166.
~
SIGNED and ENTERED this ~ day ofMarch, 2018.
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 Case 2:12-cv-00166 Document 271 Filed on 07/24/18 in TXSD Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

ROBBIE DOW GOODMAN;

)

WILLIAM CASEY RAYMOND COBB,

) ) )

Plaintiffs,

)

) )

Civil Action No. 2:12-CV-166

v.

)

)

LORIE DAVIS, Director, TDCJ-CID,

)

)

Defendant.

)

PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT

Plaintiffs Robbie Dow Goodman, William Casey, and Raymond Cobb bring this

Consolidated Amended Complaint against Defendant Lorie Davis, Director, Correctional

Institution Division, Texas Department of Criminal Justice (“TDCJ”), and allege as follows:

PARTIES

1. Plaintiff Robbie Dow Goodman is an incarcerated person, TDCJ identification

number 758386, currently housed at the William G. McConnell Prison Unit.

2. Plaintiff William Casey is an incarcerated person, TDCJ identification number

683809, currently housed at the William G. McConnell Prison Unit.

3. Plaintiff Raymond Cobb is an incarcerated person, TDCJ identification number

1306425, currently housed at the William G. McConnell Prison Unit.

4. Defendant Lorie Davis is the Director of the Correctional Institution Division,

Texas Department of Criminal Justice.

Case 2:12-cv-00166 Document 271 Filed on 07/24/18 in TXSD Page 2 of 5
JURISDICTION AND VENUE 5. This court has personal jurisdiction over the Defendant because the Defendant is a citizen of the forum and because Plaintiffs’ claims arise from Defendant’s acts or omissions in the forum. 6. This court has subject matter jurisdiction over this matter under 28 U.S.C. §1331 because Plaintiffs’ claims arise under the Constitution, laws, or treaties of the United States. 7. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) because the Defendant resides in this district and a substantial part of the events or omissions giving rise to Plaintiffs’ claims have occurred and continue to occur in this district.
BACKGROUND 8. Plaintiffs are non-violent, low security risk inmates in the custody of the TDCJ. 9. Plaintiff Casey has been in the TDCJ’s custody since 1994. He is of Cherokee descent. He has been in G2 custody (the second lowest security risk group status) throughout his time in custody. He has never participated in behavior that caused his custody status level to be increased, and has received only two minor disciplinary infractions in over fifteen years. Prior to his transfer to prison, Casey was incarcerated in a Texas jail that allowed inmates to have long hair. Casey had long hair during his time in jail. 10. Plaintiff Cobb has been in the TDCJ’s custody since 1997. He was initially placed in G3 custody status, and his custody status was improved to G2 in March 2007. He has never participated in behavior that caused his custody status level to be increased, and has had only two minor disciplinary infractions in over twenty years of incarceration. Prior to his transfer to prison, Cobb was incarcerated in a Texas jail that allowed inmates to have long hair. Cobb had long hair during his time in jail.
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11. Plaintiff Goodman has been in the TDCJ’s custody since 1996. His custody level is G2. He has not participated in behavior that caused his custody status level to be increased in over a decade. Prior to his transfer to prison, Goodman was incarcerated in a Texas jail that allowed inmates to have long hair. Goodman had long hair during his time in jail.
12. Plaintiffs are sincere adherents and practitioners of traditional Native American religious beliefs. They regularly attend weekly meetings where they teach others that are new to the Native American faith, and meet monthly with visiting Native American chaplains to perform pipe ceremonies.
13. Plaintiffs sincerely believe that an important element of practicing their religion is to grow their hair long and to cut it only in times of mourning.
14. Defendant’s current grooming policy, set forth below, requires Plaintiffs to cut their hair, seriously violating their religious beliefs and prohibiting their religious practice of wearing long hair:
“Male offenders shall keep their hair trimmed up the back of their neck and head. Hair shall be neatly cut. Hair shall be cut around the ears. Sideburns shall not extend below the middle of the ears. No block style, afro, or shag haircuts shall be permitted. No fad or extreme hairstyles/haircuts are allowed. No mohawks, tails, or designs cut into the hair are allowed.” 15. The policy makes no exception for male inmates who seek to wear long, unbraided hair on religious grounds. At the same time, the TDCJ allows for female inmates to wear their hair long. Male inmates in Texas are also allowed to wear their hair long while in the custody of the Texas jails. The vast majority of prison systems throughout the country allow male prisoners to have long hair. 16. Defendant’s policy substantially burdens Plaintiffs’ religious practice of wearing long hair. Defendant’s policy requires them to engage in conduct that seriously violates their
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religious beliefs because it requires them to cut their hair and prevents them from growing their hair long. Plaintiffs face serious disciplinary action if they refuse to cut their hair in contravention of the Defendant’s policy. Among other things, these disciplinary charges can result in loss of privileges and adversely affect time-earning classifications and good time credits.
17. The TDCJ’s current policy does not further any compelling governmental interest, nor is the policy for all male inmates the least restrictive alternative to accomplish any such interest.
COUNT I1 18. Defendant’s actions violate the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000-cc-1 (“RLUIPA”). 19. Defendant’s grooming policy is a substantial burden on the religious exercise of the Plaintiffs. Specifically, Defendant’s policy seriously violates their sincerely held belief that they should not cut their hair and that their hair should be allowed to grow unrestricted in length. 20. Defendant’s grooming policy does not further a compelling governmental interest. 21. Assuming that Defendant’s policy did further a compelling governmental interest, the policy is not the least restrictive means of furthering any such interest.
PRAYER WHEREFORE, Plaintiffs seek the following relief:
a. an injunction ordering the Defendant to allow the Plaintiffs to grow their hair unrestricted in length;
1 This Court previously granted summary judgment against Plaintiffs for claims under the First Amendment, the use of a medicine bag under RLUIPA, participating in a traditional pipe ceremony under RLUIPA, insufficient number of Native American chaplains under RLUIPA, insufficient number of Native American ceremonies under RLUIPA, and violation of religious beliefs under 42 U.S.C. § 1983, and dismissed those claims with prejudice. 2:12-CV-166, D.E. 231; 2:14-CV-13, D.E. 91; 2:14-CV-22, D.E. 38. Plaintiffs reserve all rights of appeal as to the dismissed claims and incorporate all allegations, factual and legal, related to those claims in their prior complaints, as if set forth in full. Plaintiffs acknowledge, however, that the procedural effect of the court’s dismissal is that the dismissed claims will be not be included in the upcoming trial on the merits.
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b. reasonable attorney’s fees and costs pursuant to Federal Rule of Civil Procedure 54 and 42 U.S.C. § 1988(b).
c. all other relief, legal or equitable, to which the Plaintiffs are justly entitled.

Dated this 23rd day of July, 2018.

Respectfully submitted
YETTER COLEMAN LLP
/s/ Robert K. Ellis Robert K. Ellis Texas State Bar No. 24076367 Steven C. Messer Texas State Bar No. 24092829 811 Main, Suite 4100 Houston, TX 77002 713.632.8000 713.632.8002 (F) rellis@yettercoleman.com smesser@yettercoleman.com
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of July, 2018, a copy of this Consolidated Amended Complaint was served on all counsel of record through the Court’s Electronic Case Filing system.

/s/ Steven C. Messer Steven C. Messer

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 Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 23
United States District Court Southern District of Texas
ENTERED
January 24, 2019
David J. Bradley, Clerk

ROBBIE DOW GOODMAN, et al,
Plaintiffs, VS.
LORIE DAVIS, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:12-CV-166 § § § §

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs Robbie Dow Goodman (Goodman), William Casey (Casey), and Raymond

Cobb (Cobb) filed this action against Lorie Davis in her official capacity as Director of the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ).1 Plaintiffs

seek injunctive relief to require TDCJ to grant them an exemption from its male inmate hair

grooming policy so that they may grow their hair long, consistent with their Native

American religious beliefs. The case was tried to the bench on August 29 to 31, 2018.

Having considered the pleadings of the parties, evidence, and arguments of counsel, the

Court makes the following findings of fact and conclusions of law, GRANTING Plaintiffs’

requested relief.

A. Rubric and Standard of Review

Plaintiffs bring this case pursuant to the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000-cc-1 (RLUIPA). Congress enacted RLUIPA to provide

1 A lawsuit against a governmental official in her official capacity is a suit against the state office she serves. E.g., Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978). For ease of reference, Defendant will be referred to herein as TDCJ.
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broad protection for religious liberty. Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). It provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . 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 governmental interest.” 42 U.S.C. § 2000cc-1. RLUIPA protections are expansive and are to be construed broadly to favor the maximum religious liberty appropriate in an institutional setting. Holt, 135 S. Ct. at 860.
There are two phases to the adjudication of a RLUIPA claim. First, Plaintiffs bear the burden of proving that the TDCJ-CID policy implicates the exercise of a sincerely held religious belief and substantially burdens that exercise. Holt, 135 S. Ct. at 862 (citing § 2000cc–5(7)(A)). Plaintiffs testified that they had long practiced a form of Native American religion, which requires them to grow their hair long. Among other things, they testified that their hair is considered an extension of their souls, is only to be cut when in mourning, and is essential to being recognized and accepted by their ancestors in the afterlife. The TDCJ policy requires Plaintiffs to cut their hair short on a regular basis, without reference to any life event or cause for mourning. The policy clearly requires them to engage in conduct that violates their religious beliefs.
Failure to comply with the grooming policy will result in significant disciplinary action, a scenario that satisfies Plaintiffs’ burden of proof to demonstrate a substantial burden on their exercise of religion. TDCJ has stipulated that Plaintiffs have met their
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burden of proof on the initial phase of the inquiry. D.E. 281 at 3, 7. Therefore, this case focuses only on the second phase of the RLUIPA inquiry.
In the second phase, the burden of proof shifts to TDCJ to show that its refusal to allow Plaintiffs to grow long hair (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Id. at 863 (quoting § 2000cc–1(a)). Under RLUIPA, this inquiry is plaintiffspecific, requiring the Court to focus on the application of the challenged policy to the particular claimant whose religious exercise has been burdened. Id. at 863. The argument that an exemption in a particular case will lead to other exemptions was rejected by the Supreme Court in Holt as “another formulation of the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions.” Id. at 866 (internal quotation marks omitted).
The Court should give appropriate respect to the expertise of prison officials. However, this does not call for unquestioning deference. Id. at 864. The Court is free to disregard testimony of prison experts where there is conflicting evidence. Ali v. Stephens, 822 F.3d 776, 789 (5th Cir. 2016). This is especially true where conflicting testimony comes from the TDCJ’s own witnesses. Id. And any prison official’s testimony may be tested against the policies and practices of other prison systems to see whether a persuasive reason exists to deny a religious accommodation. Holt, 135 S. Ct. at 866.
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B. The Policy TDCJ’s male grooming policy requires Plaintiffs to cut their hair, violating their
religious beliefs and prohibiting the religious practice of wearing long hair. The policy states:
Male offenders shall keep their hair trimmed up the back of their neck and head. Hair shall be neatly cut. Hair shall be cut around the ears. Sideburns shall not extend below the middle of the ears. No block style, afro, or shag haircuts shall be permitted. No fad or extreme hairstyles/haircuts are allowed. No mohawks, tails, or designs cut into the hair are allowed. D.E. 281 at 3. Plaintiffs seek an exception to allow them to wear long, unbraided, loose hair in accordance with their religious beliefs. However, Defendant makes no exception for male inmates who seek to wear long hair on religious grounds. D.E. 281 at 4. In contrast, TDCJ allows all female inmates to wear their hair without length restrictions. D.E. 281 at 4. The reason TDCJ allows women to have long hair is because it views women having long hair as an accepted cultural norm. TDCJ conceded that the disparity in the male and female grooming policies is not connected to any difference in the propensity for violence, to smuggle contraband, or to facilitate proper hygiene between men and women. With respect to county jails in Texas, the Texas Administrative Code contains standards for correctional facilities. The Texas Commission on Jail Standards’ policy allows county jail inmates to wear long hair and only permits the jail to require a haircut when “clearly justified for health or sanitary reasons.” 37 Tex. Admin. Code § 277.7. This is consistent with the industry standard of incarceration throughout the country. The vast
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majority of jurisdictions in the United States allow male inmates to have long hair. D.E. 281 at 5. Only eight states in the United States ban male inmates from having long hair: Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Id.
C. Plaintiffs’ Expert, Joan Palmateer Plaintiffs offered the testimony of Joan Palmateer as an expert. She began her 32-
year career as a correctional officer in the Oregon Department of Corrections and worked her way up in the system through positions involving mentoring, training, and policy formation. She wrote post orders that instructed correctional officers and prison staffers on how to perform their daily work, including how often they search inmates, how often they perform counts, and how to respond to emergencies. She rose through the ranks and became an assistant superintendent, taking charge of different types of prison facilities.
Eventually, Ms. Palmateer became Chief of Security for the Oregon Department of Corrections, with statewide authority. She then became warden of the Oregon State Men’s Penitentiary, a super-max prison that included death row, administrative segregation, a mental health facility, as well as general population. Later, she had an opportunity to open a new women’s prison and male intake facility where she was able to define the prison culture by selecting her own staff and establishing parameters for all of the operations from inception. Upon being promoted to the central office as Administrator, she began supervising all superintendents and wardens in the Oregon Department of Corrections. She helped write the curriculum for training new wardens and superintendents on all things they need to know in the first six months of assuming their respective leadership positions.
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In connection with her associated work for the National Institute of Corrections, Administrator Palmateer created security audit policies and standards, the instruments used to conduct security audits, and audit training for her department. A security audit is a total risk assessment for an institution within an agency. She personally performed audits of prisons in forty-eight states. She also conducted staffing assessments and critical incident reviews. The Court accepted Administrator Palmateer as an expert in prison industry standards, prison administration generally, and prison security specifically, including health issues, budgetary matters, and inmate identification.
Throughout Administrator Palmateer’s work, the Oregon prisons allowed both male and female inmates to wear long hair. She is personally familiar with multiple state policies and the security status of their prisons—both those that allow and those that do not allow male prisoners to wear long hair. And while she never before testified on behalf of an inmate, she agreed to testify in this case because she understands from her personal experience and expertise that the ability to practice a religious faith is important to the correction system’s goal of rehabilitation of inmates. The practice of a religion causes inmates to actively engage in an activity that is both meaningful and provides perspective. She testified clearly and confidently, such that the Court deems her testimony to be highly credible and authoritative.
D. Compelling Governmental Interest. Defendant argues that the TDCJ male grooming policy is necessary to further the
following governmental interests: preventing the smuggling of contraband; eliminating a means to commit suicide or perpetrate violence; preventing an escaped inmate from easily 6 / 23

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changing his appearance; reducing incidents of adverse health and sanitation issues; and controlling budgetary costs associated with frequent inmate searches. The evidence did not support those arguments in the abstract or with respect to Plaintiffs. TDCJ’s claims are further undercut by the underinclusive nature of its male grooming policy as compared to the female grooming policy and TDCJ’s allowance of other religious exemptions that are more troubling than long hair.
1. Smuggling Contraband TDCJ claims that long hair is conducive to smuggling contraband. However, it has not tracked such incidents or maintained any statistics to support its claim, despite the six and one-half-year pendency of this case. Although long hair is permitted among female inmates and female inmates are known to smuggle items at higher rates than men, TDCJ has not shown how often—if at all—long hair has been found to facilitate contraband smuggling within that population. Instead, TDCJ Director Lorie Davis testified that she has never seen contraband in loose, long hair, and the only contraband she has seen in braided hair was non-dangerous or “nuisance” contraband. This is consistent with the testimony of Administrator Palmateer, who stated that prisons allowing long hair do not have higher instances of smuggling contraband than prisons that prohibit long hair. She testified that inmates prefer hiding places where contraband can be more easily and securely hidden, such as in clothing, on the body, in body cavities, or inside other objects such as books. As a result, inmates do not generally smuggle contraband in long hair, especially in the loose hair at issue here.
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TDCJ offered no factual substance to support its claim that loose, long hair facilitates smuggling. In addition, TDCJ does not, in practice, treat hair-related smuggling as a problem compelling a solution. Even though male and female inmates are equally capable of smuggling the same dangerous contraband, female inmates are permitted to wear long hair, including braids. TDCJ Director Melodye Nelson admitted that she even allows female inmates with a known pattern of smuggling contraband to wear long hair.
TDCJ allows various religious exemptions to their policies that provide the same or more significant opportunities to smuggle contraband, such as growing beards and wearing kufis or hijabs. TDCJ also freely allows inmates to carry religious texts such as the Bible or Koran around the prison despite the fact that those books are a better hiding place, are more frequently used for smuggling contraband, can accommodate larger and more dangerous items, and take longer to search. And TDCJ does not revoke religious text-carrying privileges even after an inmate uses one to smuggle contraband.
TDCJ has not demonstrated that its grooming policy furthers any compelling interest of the government to prevent the smuggling of contraband.
2. Perpetrating Violence TDCJ advances three reasons that long hair creates risks of personal injury or death. First, it claims that long hair can be used by an inmate to commit suicide. Second, long hair could be used as a way to hold on to an opponent in a struggle, thus facilitating violent confrontations and increasing injuries among inmates. Third, creating a religious privilege of wearing long hair would engender jealousy and foment more fights targeting Plaintiffs.
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Suicide. Neither of the industry experts who testified were aware of anyone using long hair to commit suicide. TDCJ produced one witness, Director Nelson, who testified that in over ten years of supervising 8,000 female inmates, she is aware of one instance where long hair played a role in an attempted suicide. The attempt was unsuccessful. And TDCJ still allows female inmates to wear long hair.
Fighting Advantage. According to the evidence, in facilities that permit male inmates to wear long hair, men have no track record of hair-pulling in their fights. Rather, it is female inmates who are known to use hair to their advantage. Despite this unquantified, yet greater incidence of the violent use of hair among females, females may wear long hair in TDCJ facilities.
TDCJ’s own witness, Director Nelson, admitted that TDCJ has not observed or made any effort to document a correlation between hair length and violence. TDCJ does not require even the most violent of women to cut their hair. This comports with Administrator Palmateer’s testimony that allowing long hair does not cause increased violence or injuries in prison. States that allow long hair have not experienced any such association. Neither does pulling hair cause greater injury than other forms of fighting that already exist in prison. Indeed, TDCJ has other rehabilitative programs that it continues, even though the programs pose greater dangers and costs, such as the craft shop that grants access to dangerous tools or outdoor work that increases the risk of smuggling dangerous contraband.
Jealousy. There are many classifications in prison that carry privileges, including the basic security classifications that determine job assignments and access to prison facilities. TDCJ is required to grant exemptions—privileges—to certain inmates for issues 9 / 23

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of grooming, dress, and spiritual practice mandated by RLUIPA. There is no evidence that these existing exemptions cause jealousy and Plaintiffs testified credibly that their requested exemption from the grooming policy would not engender jealousy. For example, Muslim inmates are allowed to observe their religious beliefs by wearing a beard, kufi, or a hijab. Inmates understand that they are not entitled to exemptions for religions that they do not practice and that they are entitled to their own religious exemptions to which others might not be entitled.
Summation. None of the reasons TDCJ proffers for resisting Plaintiff’s request to wear long hair based on suicide or an increase in violence or injury is supported by the record evidence.
3. Escape and Identification TDCJ asserts that the grooming policy is important to providing uniformity in appearance, preventing escape, and expediting recapture in the event of an escape. Long hair, it argues, makes identification within the prison more difficult and makes it easier for an escaped inmate to alter his appearance. The credible evidence does not support these arguments. Prison Identification. A male inmate having long hair does not make him more difficult to identify in prison. Instead, the rarity of long hair among male populations where long hair is permitted makes identification easier, not harder. It would not be more difficult to identify an inmate with long hair than it would be to identify an inmate with other permitted exemptions such as a beard, kufi, or hijab. And while TDCJ claims that short hair for male inmates is necessary for uniformity, TDCJ does not pursue this alleged 10 / 23

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governmental interest in female facilities. TDCJ does not require any uniformity of haircuts among women.
Escape. Successful escape attempts, where inmates escape the outer walls of the prison, are very rare. In that rare case, the inmate’s success depends on a number of complex factors. The inmate’s appearance, including altering that appearance, is rarely one of the factors that contributes to escape. Even then, the length of a prisoner’s hair is a much less significant part of their appearance than other parts, such as clothing, glasses, and facial hair. Critical incident audits reflect that staff complacency and a lack of supervision or monitoring, rather than discreet policies, are at fault in prison homicides, escapes, and riots.
Both Administrator Palmateer and Director Nelson testified that long hair does not assist an inmate in escaping prison. In fact, prisons that allow long hair do not have more escapes than prisons that prohibit long hair. And TDCJ, itself, does not require women who have escaped or attempted to escape to cut their hair.
Recapture. In the rare case where an inmate is able to escape, the inmate is almost always recaptured. There is no credible evidence that inmates delay capture or evade capture based on having long hair in prison and cutting it after escape. Moreover, any threat of an escaped inmate not matching their wanted poster because they cut their hair can be remedied by requiring inmates to take multiple photos with long and short hair or imitating short hair by pulling the hair back when the photo is taken. TDCJ already takes updated photographs of all inmates every 3 years. Wanted posters with side-by-side photos of escaped inmates with short and long hair are the industry standard response.
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TDCJ’s reasons for imposing a short hair policy on men in order to make identification easier or to prevent escape and assist recapture are not supported by the evidence. In similar situations, courts have rejected the assertion that grooming policies aid in escape or avoiding recapture. See Holt, 135 S. Ct. at 864-65; Ali, 822 F.3d at 790. The vast majority of prisons allow male inmates to have long hair without an increase in escapes or longer periods of avoiding recapture, and TDCJ does not show any compelling reason why Texas is or would be different.
4. Health and Sanitation TDCJ complains that long hair is an invitation to lice outbreaks and other undefined challenges to sanitation. However, prisons that allow long hair do not have more problems with disease or general sanitation than prisons that prohibit long hair. In particular, lice outbreaks are fairly rare, occurring primarily in intake units. The McConnell unit is not an intake unit. And prisons have effective systems in place for dealing with lice. In practice, TDCJ does not treat the risk of head lice as a reason to require female inmates to cut their hair—even when they suffer from it. The evidence does not support TDCJ’s claim that its male grooming policy furthers the government’s interest in the health of the inmates. 5. Budget and Inmate Searches TDCJ complains that long hair increases the time it takes to search prisoners. And because the security of the prison requires frequent searches as inmates move around the facility, the incremental increase in search time quickly adds up and creates significant staffing issues in a system that is already understaffed. TDCJ has overstated the problem. 12 / 23

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This case is addressing the request of only three inmates. If TDCJ relies on the alleged burden posed by other inmates, it has not supported its position with any estimate regarding how many inmates might request a long hair exemption as practitioners of the Native American faith or any other faith that calls for wearing long hair. At the time of trial, there were 5,617 inmates identifying as Native American in the entire TDCJ population of approximately 148,000, which is less than four percent of the prison population. The TDCJ testimony did not break down how many Native Americans are female and not subject to a short hair grooming policy or how many are housed in the McConnell unit, which can house 2,750 inmates.
TDCJ did not do any polling of how many males might seek to practice the faith and wear long hair in the future. In fact, the evidence was that the number of inmates practicing the Native American faith in prison is small, with even fewer attending services. The ambient climate of the McConnell Unit, which is not air conditioned in the South Texas summer, is also a natural disincentive to wearing long hair and might affect the number of men who opt to claim their exemption.
To assess the economic burden of searching long hair, TDCJ sought to show how much additional time it takes to search inmates wearing long hair. The credible evidence indicated that searching long hair takes three to ten seconds, as it involves requiring the inmate to shake his hair out while running his hands through it. However, according to Administrator Palmateer, it is not appropriate to isolate discreet parts of a search and assign them separate blocks of time. Searching is, instead, an integrated process that would not require additional staffing. Inmates can be required to prepare their hair (if it has been 13 / 23

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braided or put up) as they line up for search, such that the preparation time does not increase the search time. Searching long, loose hair is not difficult and can easily be incorporated into the structure of existing search types and the existing duties of correctional officers and their training.
TDCJ already requires both male and female inmates to bend forward and back and run their fingers through their hair in an ordinary search. And training on how to search long hair on male inmates can be easily incorporated into TDCJ’s regular, frequently conducted training sessions for correctional officers. The searches associated with long hair will not require the hiring of additional security officers or the purchase of expensive equipment. Nor would processing applications for the long hair exemption cause significant additional expense because TDCJ already employs clerks at the McConnell unit to process religious exemptions such as these, as required by law.
Any budgetary cost would be the same or less than other religious accommodations that TDCJ has allowed. For instance, Christians, which make up a much larger portion of the population than Native Americans, are permitted to carry a Bible, which takes more time to search than long, loose hair. Likewise, there is no credible evidence that more inmates (or even the same number of inmates) would request a long-hair exemption than have requested a beard exemption, which the TDCJ has already successfully allowed without significant budgetary, health, or safety costs. There is no evidence that the exemption Plaintiffs seek would pose greater costs than the beard exemption.
Many of the jurisdictions that allow long hair have the same or less money to spend per inmate than Texas. By way of example, Nevada, Oklahoma, Arkansas, Kentucky, 14 / 23

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Indiana, Idaho, Missouri, South Dakota, and Utah have the same or fewer resources on a per-capita basis than Texas. Texas does not have a lower inmate-to-guard ratio, nor is it otherwise more understaffed, than other states. And female facilities are not staffed at a higher level than male facilities on the basis that searching long hair takes more time.
On the opposite end of the spectrum, there is no evidence that states that allow long hair and have a higher budget per inmate spend more money to accommodate the grooming policy. To the contrary, industry experts on both sides indicated that there are no increased costs based on a policy allowing long hair and no saved costs based on a policy requiring short hair. Instead of a difference in staffing ratios, those jurisdictions tend to spend their funds on increased salaries and expenses. There is no competent evidence that the size and geography of Texas provides unique challenges with respect to searching long hair that requires additional funds.
Even if TDCJ were to incur some amount of cost differential to permit long hair, that, by itself, does not satisfy the TDCJ’s burden of proof to show a compelling state interest. “Congress stated that RLUIPA ‘may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’” Holt, 135 S. Ct. at 860, 866 (quoting § 2000cc–3(c)) and rejecting the argument that an exemption should be denied because of the large number of inmates who might claim it).
TDCJ has not met its burden to show that its male grooming policy furthers the government’s interest in reducing the time and cost associated with inmate searches.
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6. Underinclusiveness Defeats Compelling Interest
TDCJ’s evidence does not support the compelling interests it claimed in defending its
grooming policy. Part of the calculus, noted above, is that its claims are eroded by the fact
that its policy is underinclusive.
A policy is underinclusive if it fails to cover significant tracts of conduct implicating its animating and putatively compelling interest. If a policy is underinclusive, this fact can raise with it the inference that the government’s claimed interest isn’t actually so compelling after all. Underinclusive-ness is problematic because a law cannot be regarded as protecting a compelling interest when it leaves appreciable damage to that supposedly vital interest unprohibited. If a policy is underinclusive, the prison must provide an adequate explanation for its differential treatment in order to avoid the conclusion that the policy does not serve a compelling interest. Ware v. Louisiana Dep't of Corr., 866 F.3d 263, 268–69 (5th Cir. 2017), cert. denied, 138 S.
Ct. 1181 (2018) (citations, quotation marks, brackets, and ellipses omitted).
As noted in discussing each of TDCJ’s claims to a compelling interest, above, the
male grooming policy is underinclusive in that female inmates are not subject to the same
short-hair policy—despite their own capacity for smuggling, violence, escape, contracting
lice, and even greater search requirements, given that they are not required to wear long hair
in a loose style. The only explanation given for this divergent treatment is the
accommodation of social norms. TDCJ did not provide any evidence that its interest in
perpetuating social norms also served any penological interest or neutralized the concerns
that it claims animates its male grooming policy.
The policy is also underinclusive in that concerns regarding violence, smuggling, and
misidentification that counsel against other religious exemptions have not prevented those
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Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 17 of 23
exemptions, such as TDCJ’s allowance of beards, kufis, and hijabs. TDCJ also invoked social norms to justify allowing religious texts, which not only provide a better means for smuggling dangerous weapons and take longer to search, but can themselves be used as weapons. The evidence shows that those religious accommodations present a greater risk to prison security, but they are permitted. TDCJ did not attempt to explain why those religious exemptions were acceptable while long, loosely-worn hair is not.
The evidence also shows that Texas does not require that its jails follow the same male grooming policy used in its prisons, even though the state has the power to do so. There is nothing in the record about the difference between jails and prisons that justifies this disparity. In particular, these three Plaintiffs spent many months or years in Texas jails prior to transferring to TDCJ prisons, and were allowed to wear long hair during their respective jail incarcerations without incident. Defendant’s hair policy is, therefore, underinclusive for this additional reason. See Ware, 866 F.3d at 270 (policy underinclusive where it did not apply equally in jails and prisons).
In all of these ways, TDCJ’s male grooming policy is underinclusive. TDCJ has failed to explain why its deference to social norms is appropriate in the prison setting and overrides the penological interests it claims.
7. These Plaintiffs The request of these three Plaintiffs does not present any particular danger to TDCJ’s order or security. The Plaintiffs’ age, health, disciplinary histories, and prior experience of incarceration with long hair in Texas jails show they are not at significant risk of smuggling
17 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 18 of 23
contraband, perpetrating violence, attempting escape, contracting lice, or holding up search lines.
TDCJ separates inmates into five different custody levels based on the security risk of each inmate. Plaintiffs are each G2 custody inmates, which is the second lowest security risk group status. TDCJ uses its custody designation in determining various freedoms and privileges offered to each inmate. Inmates that are violent or that commit major disciplinary infractions are moved into a higher custody level. Because Plaintiffs are classified as G2, TDCJ has granted them significantly more privileges and freedoms than inmates of higher classifications, including freedom of movement throughout the prison, access to more types of employment, and the ability to live in dorms.
Plaintiff Casey. Plaintiff Casey is of Cherokee descent and was fifty-nine years old at the time of trial. Throughout the twenty-six years that he has been incarcerated in G2 custody, he has never received a major disciplinary infraction and never participated in behavior that caused his custody status level to be increased. More specifically, he has had no infractions for possession of drugs or weapons, fighting, or attempted escape, and has not been the target of violence. Before transferring to TDCJ, Casey spent two and a half years incarcerated in a Texas jail where male inmates are allowed to have long hair. Casey wore his hair long during that period of his incarceration, without any incidents of contraband, escape attempts, lice outbreaks, or violence from the long hair. Casey has always observed, and continues to observe, appropriate personal hygiene habits and does not present any health risks related to wearing long hair.
18 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 19 of 23
Plaintiff Cobb. Plaintiff Cobb is of Cherokee, Powhatan, and Iroquois descent and was 42 years old at the time of trial. Incarcerated for over twenty years, he was initially placed in G3 custody status, which was improved to G2 in March 2007. Throughout his incarceration, Cobb has never participated in behavior that caused his custody status level to be increased. Over the last ten years, Cobb has received only two minor disciplinary infractions, no major infractions, has had no infractions for possession of drugs or weapons, fighting, or attempted escape, and has not been the target of violence. Before transferring to TDCJ, Cobb spent a year and a half incarcerated in a Texas jail where male inmates are allowed to have long hair. Cobb wore his hair long during this period, without any incidents of contraband, escape attempts, lice outbreaks, or violence associated with his long hair. Cobb has always observed, and continues to observe, appropriate personal hygiene habits and does not present any health risks related to wearing long hair.
Plaintiff Goodman. Plaintiff Goodman is of Cherokee descent and was 53 years old at the time of trial. He has been incarcerated for over twenty-two years, with a custody level of G2. Over the last ten years, Goodman has not participated in any behavior that caused his custody status level to be increased, has no major disciplinary infractions, has had no infractions for possession of drugs or weapons, fighting, or attempted escape, and has not been the target of violence. He has had several minor infractions, none of which were demonstrated to counsel against an exemption to wear long, loose hair. Before transferring to TDCJ, Goodman spent six months incarcerated in a Texas jail where male inmates are allowed to have long hair. During this period of his incarceration, he wore his hair long, without any incidents of contraband, escape attempts, lice outbreaks, or violence associated 19 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 20 of 23
with long hair. Goodman has always observed, and continues to observe, appropriate personal hygiene habits and does not present any health risks related to wearing long hair.
Plaintiffs, Generally. Statistically speaking, these three Plaintiffs present a very low risk of violence, smuggling contraband, and attempting escape—lower than the average female inmate. Even if the evidence had supported a finding that long hair significantly increased these risks, TDCJ offered no evidence that these particular Plaintiffs would succumb to those risks. Neither is there any evidence that allowing these three Plaintiffs to wear long hair will increase the incidence of head lice or impose significant budgetary costs related to searches. Finally, the threat of an inmate’s ability to grow long hair being revoked is an effective tool for discouraging abuse of the privilege and for promoting positive behavior such as proper grooming.
8. Conclusion TDCJ has the burden to show that the male grooming policy that prohibits an inmate from growing long hair serves a compelling governmental interest. Holt, 135 S. Ct. at 863. The evidence does not support the proposition that the policy furthers any of the safety, security, health, or budgetary interests it has alleged. The Court FINDS that the policy does not serve a compelling state interest. E. Least Restrictive Means Under RLUIPA, the government’s burden is to show both (1) the policy furthers a compelling governmental interest, and (2) the policy is the least restrictive means for furthering that interest. 42 U.S.C. § 2000cc. Because the test is conjunctive, TDCJ’s failure to show that the policy furthers a compelling governmental interest obviates the need to 20 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 21 of 23
consider the least restrictive means test.2 However, because the record makes the issue abundantly clear, the Court sets out its resolution as an alternative basis for its ruling.
“The least-restrictive-means standard is exceptionally demanding, and it requires the government to show that it lacks other means of achieving its desired goal other than the
challenged policy.” Ware, 866 F.3d at 269 (citations and quotation marks omitted). Courts have recognized that revocation of a privilege is the least restrictive means of furthering interests in a number of contexts. See Holt, 135 S. Ct. at 867 (institution could withdraw beard accommodation if abused); Ali, 822 F.3d at 795 (Texas prison could revoke beard and kufi privileges as least restrictive means). A revoked privileged can no longer be abused. TDCJ has not offered any evidence or argument to suggest that the ability to revoke the privilege is insufficient to promote its interests. Rather, the credible evidence shows that the
threat of revocation can deter bad behavior because inmates value the privileges they receive.
TDCJ’s policy is also not the least restrictive means because the vast majority of states allow long hair, and TDCJ has offered no credible reason for Texas to have a different policy.
“[W]hen so many prisons offer an accommodation, a prison must, at minimum, offer persuasive reasons why it believes that it must take a different course.” Accordingly, in the face of evidence of contrary policies, we may not defer to prison officials’ “mere say-so that they could not accommodate the plaintiff's request” because these other policies indicate that a less restrictive means may be available.
2 See generally, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (after addressing identical language in the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, the Court concluded its opinion after finding no compelling governmental interest).
21 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 22 of 23
Ware, 866 F.3d at 269 (citing Holt) (quotations omitted). Evidence at trial showed that the vast majority of states, the entire Federal Bureau of
Prisons, and even jails within Texas allow inmates to wear long hair. Texas is only one of eight states that do not allow men to have long hair in their prison system. TDCJ has offered no persuasive reason why Texas is unique in needing to deny long hair. The Fifth Circuit has held that the exact same disparity in long hair policies rendered Louisiana’s hair policy not the least restrictive means. See Ware, 866 F.3d at 273.
Other measures provide solutions to some of the problems TDCJ has alleged. For instance, with respect to any health or sanitation issue, a less restrictive policy would be to allow long hair, but require recipients of the exemption to regularly wash their hair, noting that grooming issues are not a problem in female prisons. With respect to the identification issue, TDCJ could easily provide pictures of an inmate with long and short hair on escape fliers. See Holt, 135 S. Ct. 865 (“[T]he Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter.”). And as Administrator Palmateer suggested, TDCJ could take pictures of the inmates with their long hair pulled back to simulate short hair.
Even if it requires TDCJ to expend more resources to manage the male inmates that desire to wear long hair as a religious practice, “Congress stated that RLUIPA ‘may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’” Holt, 135 S. Ct. at 860.
22 / 23

Case 2:12-cv-00166 Document 322 Filed on 01/24/19 in TXSD Page 23 of 23 CONCLUSION
For the reasons set out above, Plaintiffs are entitled to judgment against Defendant enjoining TDCJ from enforcing its male grooming policy against Plaintiffs with respect to the rules preventing inmates from growing their hair long and wearing it loose. Plaintiffs are further entitled to reasonable attorney’s fees and costs as prevailing parties. Plaintiffs shall file their motion for entry of judgment with a proposed final judgment on or before February 25, 2019. Plaintiffs may file their motion for attorney’s fees in the manner and by the date permitted by the Federal Rules of Civil Procedure.
ORDERED this 24th day of January, 2019. ___________________________________ NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE
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 Case 2:12-cv-00166 Document 325 Filed on 02/26/19 in TXSD Page 1 of 1
United States District Court Southern District of Texas
ENTERED
February 26, 2019
David J. Bradley, Clerk

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
BILLY PIERCE, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:12-CV-166 § § § §

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL

Plaintiffs, proceeding pro se and in forma pauperis, are inmates incarcerated

TDCJ-CID’s McConnell Unit in Beeville, Texas. They filed this lawsuit pursuant to the

Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc,

and the First Amendment, alleging that their right to practice their Native American faith

is being violated by TDCJ-CID. Summary judgment in favor of Defendants was entered,

and Plaintiffs have appealed (D.E. 158, 159, 161). Pending is Plaintiffs’ motion for

appointment of counsel on appeal (D.E. 178).

In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right

of access to the courts requires that the access be meaningful; that is, prison officials must

provide pro se litigants with writing materials, access to the law library, or other forms of

legal assistance. Bounds v. Smith, 430 U.S. 817, 829 (1977). There is, however, no

constitutional right to appointment of counsel in civil rights cases. Akasike v.

Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Branch v. Cole, 686 F.2d 264, 266 (5th Cir.

1982). Further, Bounds did not create a "free-standing right to a law library or legal

1 / 3

assistance." Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is within the Court's discretion to appoint counsel, unless the case presents "exceptional circumstances," thus requiring the appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
A number of factors should be examined when determining whether to appoint counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of the case. Id. Though serious, plaintiffs’ allegations are not complex.
The second and third factors are whether the plaintiffs are in a position to adequately investigate and present their appeal. Plaintiffs’ pleadings demonstrate that they are reasonably intelligent, articulate, and able to describe the facts underlying their claims. They appear, at this stage of the case, to be in a position to adequately investigate and present their appellate arguments.
The fourth factor which should be examined is whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. Examination of this factor is irrelevant, as Plaintiffs’ claims were disposed of prior to trial. Plaintiffs claim to need an expert for purposes of their appeal, but the appeal must be decided on the record before the District Court, not new evidence from, as yet, unidentified experts. This factor weighs against appointment of counsel.
Plaintiffs have not shown that exceptional circumstances require the appointment of counsel. In addition, there is no indication that appointed counsel would aid in the
2 / 3

efficient and equitable disposition of the case. The Court has the authority to award attorneys' fees to prevailing plaintiffs. 42 U.S.C. § 1988. Plaintiffs are not prohibited from hiring an attorney on a contingent-fee arrangement. Plaintiffs’ motion for appointment of counsel (D.E. 178) is denied without prejudice at this time.
ORDERED this 16th day of May, 2014. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
3 / 3

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

United States District Court Southern District of Texas
ENTERED
July 26, 2016
David J. Bradley, Clerk

TEDDY NORRIS DAVIS, et al,
Plaintiffs, VS.
CLINT MORRIS, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:12-CV-166 § § § §

OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff Davis has moved for appointment of counsel (D.E. 193). The Fifth

Circuit Court of Appeals affirmed in part and reversed in part the order granting summary

judgment in favor of Defendants. An order for additional briefing and evidence was

entered July 12, 2016 as to Plaintiffs' claims pursuant to the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc (D.E. 192). The case has

not yet been scheduled for trial.

In Bounds v. Smith, the Supreme Court held that a prisoner's constitutional right of

access to the courts requires that the access be meaningful; that is, prison officials must

provide pro se litigants with writing materials, access to the law library, or other forms of

legal assistance. Bounds v. Smith, 430 U.S. 817, 829 (1977). There is, however, no

constitutional right to appointment of counsel in civil rights cases. Akasike v. Fitzpatrick,

26 F.3d 510, 512 (5th Cir. 1994); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982).

Further, Bounds did not create a "free-standing right to a law library or legal assistance."

Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996). It is within the court's discretion to

1 / 3

appoint counsel, unless the case presents "exceptional circumstances," thus requiring the appointment. 28 U.S.C. § 1915(e)(1); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
A number of factors should be examined when determining whether to appoint counsel. Jackson v. Dallas Police Department, 811 F.2d 260, 261-62 (5th Cir. 1986) (citing Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982)). The first is the type and complexity of the case. Id. This case is not overly complex. Only Plaintiff's RLUIPA claims remain for summary judgment and/or trial. At this summary judgment stage, Plaintiff's allegations are serious but not complex.
The second and third factors are whether the plaintiff is in a position to adequately investigate and present his case. Id. Plaintiff’s pleadings demonstrate he is reasonably articulate and intelligent. He has ably supported his claims before the Fifth Circuit Court of Appeals. Plaintiff appears, at this stage of the case, to be in a position to adequately investigate and present his case.
The fourth factor which should be examined is whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. Id. Examination of this factor is premature because the case has not yet been set for trial.
Finally, there is no indication that appointed counsel would aid in the efficient and equitable disposition of the case. The Court has the authority to award attorneys' fees to a prevailing plaintiff. 42 U.S.C. § 1988. Plaintiff is not prohibited from hiring an attorney on a contingent-fee arrangement. Plaintiff Davis's motion for appointment of counsel (D.E. 193) is denied without prejudice at this time. This order will be sua sponte
2 / 3

reexamined if this case is scheduled for trial after the summary judgment phase of the case is completed.
ORDERED this 26th day of July, 2016. ___________________________________ B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
3 / 3

 
 Case: 2:12-cv-169 As of: 07/25/2019 08:08 PM CDT 1 of 1
CLOSED,MEMBER,PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:12−cv−00169

Davis v. Thaler DO NOT DOCKET IN 2:12CV169. CASE CONSOLIDATED IN 2:12CV166. Assigned to: Magistrate Judge B. Janice Ellington Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 05/23/2012 Date Terminated: 06/12/2012 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Teddy Norris Davis

represented by Teddy Norris Davis William G McConnell Unit 3001 South Emily Dr Beeville, TX 78102−8583 PRO SE

V. Defendant Director Rick Thaler

Date Filed 05/23/2012 05/23/2012 05/23/2012 05/23/2012
05/23/2012 06/04/2012
06/12/2012 06/20/2012 06/21/2012 06/21/2012

# Docket Text
1 Prisoner Civil Rights COMPLAINT against Rick Thaler (Filing fee $ 350) filed by Teddy Norris Grey Hawk Davis.(amireles, ) (Entered: 05/23/2012)
2 NOTICE of Exclusion, filed. (amireles, ) (Entered: 05/23/2012)
3 NOTICE to Pro Se Litigant. Party notified, filed. (amireles, ) (Entered: 05/23/2012)
4 NOTICE OF DEFICIENT PLEADING as to Teddy Norris Grey Hawk Davis. Submit filing fee of $350.00 or a fully complete application for leave to proceed in forma pauperis together with a certified copy of the trust fund account statement Parties notified. Notice of Compliance due by 6/12/2012, filed. Copy of this notice with receipt card and IFP form mailed to T. Davis. (amireles, ) (Entered: 05/23/2012)
5 ORDER to file and Amended Complaint on proper 1983 forms (mailed by clerk) within 20 days. (sent with white card/lrs).(Signed by Magistrate Judge Brian L Owsley) Parties notified.(lsmith, ) (Entered: 05/24/2012)
6 ACKNOWLEDGMENT OF SERVICE by Teddy Norris Grey Hawk Davis re: Notice of Deficient Pleading and IFP form, filed. Clerk notes notation on receipt card "See Cause No. 2:12CV166 Control No 12051168 filed 5/21/12". (amireles, ) (Entered: 06/06/2012)
7 ORDER TO CONSOLIDATE CASES: Lead Case No. 2:12CV166 and Member Case No. 2:12CV169 (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lsmith, ) (Entered: 06/12/2012)
8 MOTION to Consolidate Lead Case No. 2:12cv166 and Member Case No. 2:12cv169Motions referred to Brian L Owsley. by Teddy Norris Grey Hawk Davis, filed. Motion Docket Date 7/11/2012. (lsmith, ) (Entered: 06/20/2012)
9 ORDER denying as moot 8 Motion to Consolidate Cases.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(lsmith, ) (Entered: 06/21/2012)
***Current docket sheet mailed to plaintiff, filed. (dperez, ) (Entered: 06/21/2012)

 
 Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 1 of 7
CLOSED,DOCSENT,PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:14−cv−00013

Casey v. Davis et al DO NOT DOCKET IN 2:14−CV−13. CASE CONSOLIDATED UNDER 2:12−CV−166 Assigned to: Judge Nelva Gonzales Ramos Referred to: Magistrate Judge Jason B Libby Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 01/10/2014 Date Terminated: 03/02/2018 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

William Casey

represented by William Casey #683809 William G. McConnell Unit 3001 South Emily Drive Beeville, TX 78102 PRO SE

V. Defendant Lorie Davis Director TDCJ−CID
Defendant Clint Morris

represented by Celamaine Cunniff Office of the Atty Gen Law Enforcement Def Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−370−9389 Email: Cela_Cunniff@txed.uscourts.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Craig McCam Jacobs Office of the Attorney General Civil Medicaid Fraud Division 9th FL 300 West 15th Street Austin, TX 78701 512−936−2769 Fax: 512−499−0712 Email: craig.jacobs@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Armstrong Huntpalmer Office of the Attorney General Law Enforcement Defense Division 300 W 15th St Austin, TX 78701 512−463−2080 Fax: 512−370−9398 Email: richard.huntpalmer@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 2 of 7

Richard Armstrong Huntpalmer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Craig McCam Jacobs (See above for address) ATTORNEY TO BE NOTICED

Defendant Lorie Davis

represented by Craig McCam Jacobs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Armstrong Huntpalmer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/10/2014 01/10/2014 01/10/2014 01/14/2014 01/14/2014 02/07/2014
02/18/2014
03/12/2014
03/12/2014 03/21/2014 03/31/2014
04/29/2014 05/16/2014 05/16/2014

# Docket Text
1 Prisoner Civil Rights COMPLAINT against Clint Morris, William Stephens (Filing fee $ 400−NOT PAID) filed by William Casey.(dterrell, 2) (Entered: 01/14/2014)
2 MOTION/APPLICATION to Proceed In Forma Pauperis by William Casey, filed. Motion Docket Date 1/31/2014. (dterrell, 2) (Entered: 01/14/2014)
3 Prisoner Trust Fund Account Statement by William Casey, filed. (dterrell, 2) (Entered: 01/14/2014)
4 NOTICE of Exclusion, filed. (dterrell, 2) (Entered: 01/14/2014)
5 NOTICE to Pro Se Litigant. Party notified, filed. (dterrell, 2) (Entered: 01/14/2014)
6 INITIAL PARTIAL FILING FEE AND COLLECTION ORDER as to William Casey; re 2 MOTION/APPLICATION to Proceed In Forma Pauperis (Signed by Magistrate Judge Jason B. Libby) Parties notified. Sent via first class mail to TDCJ− Office of the General Counsel, Austin, TX. (amireles, 2) (Entered: 02/07/2014)
7 ORDER SETTING EVIDENTIARY HEARING. Evidentiary Hearing set for 3/12/2014 at 10:30 AM before Magistrate Judge Jason B. Libby(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 02/18/2014)
Minute Entry for proceedings held before Magistrate Judge Jason B. Libby. TELEPHONIC SPEARS HEARING held on 3/12/2014. Appearances:William Casey.(Digital # 10:33:27−11:08:59)(ERO:genay rogan), filed.(kbledsoe, 2) (Entered: 03/12/2014)
Consent form mailed to plaintiff with receipt card. (kbledsoe, 2) . (Entered: 03/12/2014)
8 ACKNOWLEDGMENT OF SERVICE by William Casey on 3/11/14 re: DE# 5 Notice to Pro Se Litigant, filed.(amireles, 2) (Entered: 03/24/2014)
9 ORDER FOR SERVICE ON TX ATTORNEY GENERAL (Signed by Magistrate Judge Jason B. Libby) (Attachments: # 1 Plaintiff's original complaint) Parties notified.(mserpa, 2) (Entered: 04/01/2014)
10 NOTICE Request for Digital Copy of Telephonic Spears Hearing by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 04/29/2014)
11 ANSWER to Complaint with Jury Demand by William Stephens, filed.(Cunniff, Celamaine) (Entered: 05/16/2014)
12 MOTION to Dismiss Motions referred to Jason B. Libby. by Clint Morris, filed. Motion Docket Date 6/6/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 3 of 7

05/21/2014 06/05/2014 06/10/2014 07/10/2014 07/28/2014 07/29/2014 08/22/2014 11/13/2014 11/24/2014 12/01/2014 12/02/2014 12/31/2014 01/20/2015 01/21/2015 02/04/2015
02/06/2015
02/27/2015 03/04/2015 03/05/2015

Proposed Order)(Cunniff, Celamaine) (Entered: 05/16/2014)
13 Supplemental EXHIBITS re: 12 MOTION to Dismiss by Clint Morris, filed.(Jacobs, Craig) (Entered: 05/21/2014)
14 MOTION for Extension of Time, Response to Motion to DismissMotions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 6/26/2014. (Attachments: # 1 envelope)(lrivera, 2) (Entered: 06/06/2014)
15 ORDER granting 14 Motion for Extension of Time; Motion−related deadline set re: 12 MOTION to Dismiss . Responses due by 7/18/2014.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 06/10/2014)
16 RESPONSE to 12 MOTION to Dismiss filed by William Casey. (amireles, 2) (Entered: 07/11/2014)
17 REPLY to 16 Response to Motion 12 to Dismiss, filed by Clint Morris. (Jacobs, Craig) (Entered: 07/28/2014)
18 NOTICE of Initial Disclosure by William Stephens, filed. (Cunniff, Celamaine) (Entered: 07/29/2014)
19 RESPONSE to 17 Reply to 16 Response to Motion 12 to Dismiss, filed by William Casey. (amireles, 2) (Entered: 08/22/2014)
20 MEMORANDUM AND RECOMMENDATION ON DEFENDANT MORRIS' MOTION TO DISMISS re 12 MOTION to Dismiss (Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 11/14/2014)
21 White Card Receipt regarding DE # 20 Memorandum and Recommendation by William Casey, filed.(vrios, 2) (Entered: 11/25/2014)
22 OBJECTIONS to 20 Memorandum and Recommendations, filed by Clint Morris. (Cunniff, Celamaine) (Entered: 12/01/2014)
23 ANSWER to Complaint with Jury Demand by Clint Morris, filed.(Cunniff, Celamaine) (Entered: 12/02/2014)
24 MOTION to Amend the Complaint "Breach of Contract". Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 1/21/2015. (Attachments: # 1 Exhibits, # 2 Envelope)(lcayce, 2) (Entered: 12/31/2014)
25 NOTICE OF FIRST SUPPLEMENTAL DISCLOSURES by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 01/20/2015)
26 RESPONSE to 24 MOTION to Amend filed by Clint Morris, William Stephens. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 01/21/2015)
27 MOTION for Extension of Time to Reply to Defendants Stephens and Morris' Response to Plaintiff's Motion to Amend the Complaint for Breach of Contract; Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 2/25/2015. (lcayce, 2) (Entered: 02/04/2015)
28 ORDER re: Memorandum and Recommendation 20 . The Magistrate Judge may file a supplemental M&R and Defendant will then be allowed fourteen (14) days to file objections to the supplemental M&R.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2) (Entered: 02/06/2015)
29 SUPPLEMENTAL MEMORANDUM AND RECOMMENDATIONS re 12 MOTION to Dismiss . Objections to M&R due by 3/13/2015(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2) (Entered: 02/27/2015)
30 ADVISORY by Clint Morris, William Stephens, filed.(Cunniff, Celamaine) (Entered: 03/04/2015)
31 MOTION to Take Judicial Notice of Documents Yellowquill's Settlement Agreement; Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 3/26/2015. (lcayce, 2) (Entered: 03/05/2015)

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 4 of 7

03/05/2015 03/10/2015 03/11/2015 03/24/2015
03/27/2015 04/01/2015 04/07/2015
04/08/2015 04/27/2015 05/06/2015 05/14/2015 06/10/2015 06/23/2015 07/30/2015 08/03/2015
09/08/2015 09/18/2015 09/25/2015

32 MOTION to Stay to Exhause Remedies for a Breach of Contract; Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 3/26/2015. (Attachments: # 1 Envelope)(lcayce, 2) (Entered: 03/05/2015)
33 NOTICE of Second Supplemental Disclosures by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 03/10/2015)
34 RESPONSE to 32 MOTION to Stay filed by Clint Morris, William Stephens. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 03/11/2015)
35 ORDER DENYING PENDING NONDISPOSITIVE MOTIONS; denying 24 Motion to Amend; denying 27 Motion for Extension of Time; denying 31 Motion; denying 32 Motion to Stay.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lcayce, 2) (Entered: 03/24/2015)
36 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: granting 12 MOTION to Dismiss , adopting 29 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2) (Entered: 03/27/2015)
37 REPLY to Response to 32 MOTION to Stay, filed by William Casey. (lcayce, 2) (Entered: 04/01/2015)
38 SCHEDULING ORDER. Pltf Expert Witness List due by 7/8/2015. Deft Expert Witness List due by 7/8/2015. Dispositive Motion Filing due by 8/3/2015. Final Pretrial Conference and Trial will be set at a later date.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 04/07/2015)
39 RESPONSE in Opposition to 35 Order on Motion to Amend, Order on Motion for Extension of Time, Order on Motion for Miscellaneous Relief, Order on Motion to Stay, filed by William Casey. (lcayce, 2) (Entered: 04/09/2015)
40 MOTION for Appointment of Counsel; Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 5/18/2015. (lcayce, 2) (Entered: 04/27/2015)
41 RESPONSE to 40 MOTION for Appointment of Counsel filed by William Stephens. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 05/06/2015)
42 ORDER denying without prejudice 40 Motion to Appoint.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(arodriguez, 2) (Entered: 05/14/2015)
43 DESIGNATION OF EXPERT WITNESS LIST by William Stephens, filed.(Cunniff, Celamaine) (Entered: 06/10/2015)
44 NOTICE Defendants' Notice of Third Supplemental Disclosures by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 06/23/2015)
45 NOTICE Defendants Stephens and Morris' Notice of Fourth Supplemental Disclosures by Clint Morris, William Stephens, filed. (Cunniff, Celamaine) (Entered: 07/30/2015)
46 MOTION for Summary Judgment Motions referred to Jason B. Libby. by William Stephens, filed. Motion Docket Date 8/24/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Affidavit Expert Report of Chief Chari Bouse, # 18 Affidavit Expert Report of Robert Eason, # 19 Affidavit of Robert Lewis Williams, M.D., # 20 Proposed Order)(Cunniff, Celamaine) Modified on 10/26/2016 (lcayce, 2). Modified on 11/3/2016 (mserpa, 2). (Entered: 08/03/2015)
47 MOTION for Extension of Time to Respond to Defendant's Summary Judgment. Motions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 9/29/2015. (vrios, 2) (Entered: 09/09/2015)
48 ORDER granting 47 Motion for Extension of Time; Motion−related deadline set re: 46 MOTION for Summary Judgment . Responses due by 10/8/2015..(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 09/18/2015)
49 MOTION OPPOSING THE MAGISTRATE JUDGES DEADLINE TO RESPOND TO THE DEFENDANTS SUMMARY JUDGMENTMotions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 10/16/2015. (lrivera, 2) (Entered:

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 5 of 7

09/29/2015 09/29/2015 10/23/2015 11/18/2015
11/20/2015 12/04/2015 12/17/2015 12/31/2015 12/31/2015 02/09/2016
03/03/2016 03/07/2016
06/15/2016 06/15/2016 06/30/2016
07/11/2016 07/15/2016 07/21/2016

09/28/2015)
50 ORDER granting 49 Motion. Plaintiff shall file his response to Defendant Stephens' Motion for Summary Judgment on or before Oct. 16, 2015.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 09/29/2015)
***Reset Deadline as to 46 MOTION for Summary Judgment : Responses due by 10/16/2015. (mserpa, 2) (Entered: 09/29/2015)
51 RESPONSE to 46 MOTION for Summary Judgment filed by William Casey. (lcayce, 2) (Entered: 10/26/2015)
52 MOTION for Extension of Time to File Reply to Plaintiff's Response to the Motion for Summary JudgmentMotions referred to Jason B. Libby. by Clint Morris, William Stephens, filed. Motion Docket Date 12/9/2015. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 11/18/2015)
53 ORDER granting 52 Motion for Extension of Time Replies due by 12/4/2015.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(lrivera, 2) (Entered: 11/20/2015)
54 REPLY to 51 Response to Motion for Summary Judgment, filed by William Stephens. (Jacobs, Craig) (Entered: 12/04/2015)
55 MOTION for Extension of Time to Reply to Defendants ReplyMotions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 1/7/2016. (Attachments: # 1 Envelope)(srussell, 2) (Entered: 12/18/2015)
56 ORDER granting 55 Motion for Extension of Time; Motion−related deadline set re: 46 MOTION for Summary Judgment . Plaintiff's Sur−Reply due by 1/15/2016.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2) (Entered: 12/31/2015)
57 RESPONSE to 54 Defendant's Reply, filed by William Casey. (vrios, 2) (Entered: 12/31/2015)
58 MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; granting 46 MOTION for Summary Judgment . Plaintiff's claims are DISMISSED with prejudice. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2) (Entered: 02/09/2016)
59 MOTION of Opposition to the District Judge's Ruling on Summary JudgmentMotions referred to Jason B. Libby. by William Casey, filed. Motion Docket Date 3/24/2016. (vrios, 2) (Entered: 03/03/2016)
60 RESPONSE to 59 MOTION of Opposition to the District Judge's Ruling on Summary Judgment filed by William Stephens. (Attachments: # 1 Attachment A − Order in Davis and Goodman v. Stephens; Docket No. 14−40339, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 03/07/2016)
61 NOTICE OF SUBSTITUTION OF PARTIES by Lorie Davis, filed. (Jacobs, Craig) (Entered: 06/15/2016)
Participants edited, Lorie Davis substituted as respondent. (amireles, 2) (Entered: 06/15/2016)
62 MEMORANDUM AND RECOMMENDATIONS TO GRANT PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT re 59 MOTION of Opposition to the District Judge's Ruling on Summary Judgment. Objections to M&R due by 7/14/2016(Signed by Magistrate Judge Jason B Libby) Parties notified.(lcayce, 2) (Entered: 06/30/2016)
63 ACKNOWLEDGMENT OF SERVICE by William Casey on 7/6/16 re: M&R, filed.(lcayce, 2) (Entered: 07/12/2016)
64 Plaintiff Casey's Motion of Opposition to the Magistrate Judges Ruling on Plaintiff's Motion to Alter or Amend Judgment/Objection to 62 Memorandum and Recommendations, filed by William Casey. (srussell, 2) (Entered: 07/18/2016)
65 MOTION for Extension of Time to File Objections to Court's 6/30/16 M&RMotions referred to Jason B Libby. by Lorie Davis, filed. Motion Docket Date 8/11/2016.

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 6 of 7

07/21/2016 07/22/2016 10/25/2016
10/27/2016
11/30/2016 12/02/2016 12/07/2016
12/08/2016 12/21/2016 12/28/2016 02/06/2017 02/07/2017 02/16/2017 02/17/2017 02/17/2017 03/01/2017 04/07/2017

(Attachments: # 1 Proposed Order)(Jacobs, Craig) (Entered: 07/21/2016)
66 OBJECTIONS to 62 Memorandum and Recommendations, filed by Lorie Davis. (Jacobs, Craig) (Entered: 07/21/2016)
67 ORDER granting 65 Motion for Extension of Time.(Signed by Magistrate Judge Jason B Libby) Parties notified.(lrivera, 2) (Entered: 07/22/2016)
68 ORDER GRANTING Plaintiffs Motion of Opposition to the District Judges Ruling on Summary Judgment (D.E. 59 ), construed as a motion to alter or amend the judgment; and the Memorandum Opinion and Order on Defendants Motion for Summary Judgment (D.E. 58 ) is VACATED IN PART as to the grooming−policy RLUIPA claim only. This action is REFERRED to the Magistrate Judge for further pretrial proceedings in light of the Fifth Circuit decision in Davis v. Davis.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(sscotch, 2) (Entered: 10/25/2016)
69 ORDER SETTING DEADLINES Amended Pleadings due by 12/2/2016. Discovery due by 1/3/2017. Dispositive Motion Filing due by 2/6/2017. Responses due by 3/6/2017.(Signed by Magistrate Judge Jason B Libby) Parties notified.(lrivera, 2) (Entered: 10/27/2016)
70 MOTION to Amend Pleadings. Motions referred to Jason B Libby. by William Casey, filed. Motion Docket Date 12/21/2016. (lcayce, 2) (Entered: 12/01/2016)
71 ORDER granting 70 MOTION to Amend ( Amended Pleadings due by 12/16/2016.)(Signed by Magistrate Judge Jason B Libby) Parties notified.(lcayce, 2) (Entered: 12/02/2016)
72 MOTION Requesting that the Courts send copys of all future proceedings to Inmate Teddy Davis who is litigating my caseMotions referred to Jason B Libby. by William Casey, filed. Motion Docket Date 12/28/2016. (Attachments: # 1 envelope)(lrivera, 2) (Entered: 12/08/2016)
73 ORDER denying 72 Motion.(Signed by Magistrate Judge Jason B Libby) Parties notified.(fcarbia, 2) (Entered: 12/08/2016)
74 MOTION Opposition to Magistrate Judges Ruling Denying Inmate Davis Copies of Further Litigation in his caseMotions referred to Jason B Libby. by William Casey, filed. Motion Docket Date 1/11/2017. (dterrell, 2) (Entered: 12/21/2016)
75 ORDER denying 74 Motion. Plaintiff's appeal of the Magistrate Judges Order is DENIED.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2) (Entered: 12/28/2016)
76 MOTION for Extension of Time Or In The Alternative, Motion to StayMotions referred to Jason B Libby. by Lorie Davis, filed. Motion Docket Date 2/27/2017. (Attachments: # 1 Proposed Order)(Jacobs, Craig) (Entered: 02/06/2017)
77 ORDER granting 76 Motion for Extension of Time Dispositive Motion Filing due by 4/7/2017.(Signed by Magistrate Judge Jason B Libby) Parties notified.(sscotch, 2) (Entered: 02/07/2017)
78 MOTION Requesting a Stay on Ruling on Davis Case. Motions referred to Jason B Libby. by William Casey, filed. Motion Docket Date 3/9/2017. (srussell, 2) (Entered: 02/16/2017)
79 ORDER denying 78 Motion to Stay.(Signed by Magistrate Judge Jason B Libby) Parties notified.(dterrell, 2) (Entered: 02/17/2017)
***Set/Reset Deadlines: Amended Complaint due by 3/3/2017. (dterrell, 2) (Entered: 02/17/2017)
80 AMENDED COMPLAINT against All Defendants filed by William Casey. Related document: 1 Complaint filed by William Casey.(dterrell, 2) (Entered: 03/01/2017)
81 Supplemental MOTION for Summary Judgment Motions referred to Jason B Libby. by Lorie Davis, filed. Motion Docket Date 4/28/2017. (Attachments: # 1 Exhibit Q)(Jacobs, Craig) (Entered: 04/07/2017)

Case: 2:14-cv-13 As of: 07/25/2019 08:10 PM CDT 7 of 7

04/07/2017 06/05/2017
06/15/2017 06/15/2017 06/16/2017
09/20/2017
09/22/2017 09/28/2017 11/07/2017

82 MOTION to Strike Testimony of George Sullivan Motions referred to Jason B Libby. by Lorie Davis, filed. Motion Docket Date 4/28/2017. (Attachments: # 1 Proposed Order)(Jacobs, Craig) (Entered: 04/07/2017)
83 ORDER GRANTING ADDITIONAL TIME TO RESPOND TO DEFENDANT DAVIS'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE TESTIMONY OF GEORGE SULLIVAN ; Motion−related deadline set re: 82 MOTION to Strike Testimony of George Sullivan, 81 Supplemental MOTION for Summary Judgment Responses due by 6/19/2017.(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) (Entered: 06/05/2017)
84 MOTION for Extension of Time to respond. Motions referred to Jason B Libby. by William Casey, filed. Motion Docket Date 7/6/2017. (amartinez, 2). (Entered: 06/15/2017)
85 ACKNOWLEDGMENT OF SERVICE by William Casey on 06/09/2017 re: Order DE #83, filed.(amartinez, 2) (Entered: 06/15/2017)
86 ORDER granting 84 MOTION for Extension of Time to respond ; Motion−related deadline set re: 82 MOTION to Strike Testimony of George Sullivan, 81 Supplemental MOTION for Summary Judgment ( Responses due by 7/10/2017.) The Clerk of Court is DIRECTED to mail Plaintiff a copy of the Supplemental Motion for Summary Judgment and Motion to Strike along with a copy of this Order with proof of service. (D.E. 81 and D.E. 82).(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) (Entered: 06/16/2017)
88 MEMORANDUM AND RECOMMENDATION TO DENY DEFENDANT DAVIS'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE re 81 Supplemental MOTION for Summary Judgment , 82 MOTION to Strike Testimony of George Sullivan (Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2) (Entered: 09/20/2017)
89 NOTICE of Appearance by Richard A. Huntpalmer on behalf of Lorie Davis, Lorie Davis, Clint Morris, filed. (Huntpalmer, Richard) (Entered: 09/22/2017)
90 White Card Receipt Returned, executed on 9/25/2017 − receipt attached, access restricted to court users for privacy reasons −, filed. (AmandaZepeda, 2) (Entered: 09/28/2017)
91 ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO DENY DEFENDANT DAVIS'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE − denying 81 Motion for Summary Judgment; denying 82 Motion to Strike.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2) (Entered: 11/07/2017)

 
 Case: 2:14-cv-22 As of: 07/25/2019 08:11 PM CDT 1 of 4
CLOSED,MEMBER,PRIS
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:14−cv−00022

Cobb v. Davis et al DO NOT DOCKET IN 2:14−CV−22. CASE IS CONSOLIDATED UNDER 2:12−CV−166. Assigned to: Judge Nelva Gonzales Ramos Referred to: Magistrate Judge B. Janice Ellington Lead case: 2:12−cv−00166 Member case: (View Member Case) Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 01/21/2014 Date Terminated: 03/02/2018 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Raymond Cobb

represented by Raymond Cobb 1306425 William G. McConnell Unit 3001 S Emily Dr Beeville, TX 78102−8583 PRO SE

V. Defendant Clint Morris TERMINATED: 02/12/2018
Defendant Lorie Davis

represented by Craig McCam Jacobs Office of the Attorney General Civil Medicaid Fraud Division 9th FL 300 West 15th Street Austin, TX 78701 512−936−2769 Fax: 512−499−0712 Email: craig.jacobs@oag.texas.gov TERMINATED: 05/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon Office of the Attorney General of TX P.O. Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−370−9410 Email: Emily.Landon@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig McCam Jacobs (See above for address) TERMINATED: 05/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:14-cv-22 As of: 07/25/2019 08:11 PM CDT 2 of 4

01/21/2014 01/21/2014 01/21/2014 01/22/2014 01/22/2014 01/29/2014
01/29/2014 02/20/2014 03/06/2014
05/06/2014 06/23/2014 06/23/2014 07/22/2014 08/15/2014
10/24/2014 10/31/2014
12/09/2014 12/11/2014

1 Prisoner Civil Rights COMPLAINT against Clint Morris, William Stephens (Filing fee $ 400) filed by Raymond Cobb. (Attachments: # 1 Cover Letter, # 2 Envelope)(amireles, 2) (Entered: 01/22/2014)
2 MOTION/APPLICATION to Proceed In Forma PauperisMotions referred to B. Janice Ellington. by Raymond Cobb, filed. Motion Docket Date 2/11/2014. (amireles, 2) (Entered: 01/22/2014)
3 Prisoner Trust Fund Account Statement by Raymond Cobb, filed. (amireles, 2) (Entered: 01/22/2014)
4 NOTICE of Exclusion, filed. (amireles, 2) (Entered: 01/22/2014)
5 NOTICE to Pro Se Litigant. Party notified, filed. (amireles, 2) (Entered: 01/22/2014)
6 ORDER for INITIAL PARTIAL FILING FEE AND COLLECTIONS 2 Motion for Leave to Proceed in forma pauperis. Order mailed to Cobb with white card and TDCJ−Office in Austin(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lrivera, 2) (Entered: 01/29/2014)
7 NOTICE of Setting. Parties notified. Evidentiary Hearing set for 3/6/2014 at 03:00 PM before Magistrate Judge B. Janice Ellington, filed. (vrios, 2) (Entered: 01/29/2014)
8 ACKNOWLEDGMENT OF SERVICE by Raymond Cobb on 2/3/14 re: Order DE # 6, filed.(amireles, 2) (Entered: 02/20/2014)
Minute Entry for proceedings held before Magistrate Judge B. Janice Ellington. EVIDENTIARY HEARING BY TELEPHONE CONFERENCE held on 3/6/2014. Discussion of case. Court gives plaintiff instruction re: discovery and future filings. Appearances:Raymond Cobb, pro se (by telephone).(Digital # 2:57:55 − 3:43:14)(ERO:Judy Alvarez), filed.(dperez, 2) (Entered: 03/06/2014)
9 ORDER FOR SERVICE ON TX ATTORNEY GENERAL (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2) # 1 Petition) (Entered: 05/07/2014)
10 ANSWER to Complaint with Jury Demand by Clint Morris, William Stephens, filed.(Jacobs, Craig) (Entered: 06/23/2014)
11 ORDER. Expert Witness must be designated by 8/15/2014. Discovery ends 10/31/2014. Dispositive Motion Filing due by 10/31/2014.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, 2) (Entered: 06/23/2014)
12 NOTICE of Initial Disclosures to Plaintiff by Clint Morris, William Stephens, filed. (Jacobs, Craig) (Entered: 07/22/2014)
13 DESIGNATION OF EXPERT WITNESS LIST by Clint Morris, William Stephens, filed. (Attachments: # 1 Exhibit Bouse Expert Report, # 2 Exhibit Ginsel Expert Report, # 3 Exhibit Ginsel Attachments 1−5, # 4 Exhibit Ginsel Attachment 6a, # 5 Exhibit Ginsel Attachment 6b, # 6 Exhibit Ginsel Attachments 7−8, # 7 Exhibit Ginsel Attachment 9a, # 8 Exhibit Ginsel Attachment 9b, # 9 Exhibit Ginsel Attachments 10−18)(Jacobs, Craig) (Entered: 08/15/2014)
14 NOTICE of 2nd Supplemental Disclosures by Clint Morris, William Stephens, filed. (Jacobs, Craig) (Entered: 10/24/2014)
15 MOTION for Summary Judgment Motions referred to B. Janice Ellington. by Clint Morris, William Stephens, filed. Motion Docket Date 11/21/2014. (Attachments: # 1 Appendix Part 1 of 7, # 2 Appendix Part 2 of 7, # 3 Appendix Part 3 of 7, # 4 Appendix Part 4 of 7, # 5 Appendix Part 5 of 7, # 6 Appendix Part 6 of 7, # 7 Appendix Part 7 of 7, # 8 Proposed Order)(Jacobs, Craig) (Entered: 10/31/2014)
16 MEMORANDUM AND RECOMMENDATIONS re 15 MOTION for Summary Judgment . Objections to M&R due by 12/23/2014.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, 2) (Entered: 12/09/2014)
17 MOTION for Extension of Time To Prepare Response to Defendants Summary JudgmentMotions referred to B. Janice Ellington. by Raymond Cobb, filed. Motion Docket Date 1/2/2015. (lrivera, 2) (Entered: 12/11/2014)

Case: 2:14-cv-22 As of: 07/25/2019 08:11 PM CDT 3 of 4

12/12/2014
12/18/2014 12/19/2014 12/19/2014 06/15/2016 06/15/2016 07/26/2016
08/22/2016 08/22/2016
09/16/2016 09/20/2016 09/28/2016
10/17/2016 03/09/2017 05/19/2017 05/31/2017 11/15/2017 11/15/2017

18 ORDER STAYING CASE AND DENYING WITHOUT PREJUDICE MOTION FOR AN EXTENSION OF TIME TO FILE RESPONSE denying 17 Motion for Extension of Time.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lrivera, 2) Modified on 12/19/2014 (mserpa, 2). (Entered: 12/12/2014)
19 ACKNOWLEDGMENT OF SERVICE by Raymond Cobb on 12/15/14 re: M & R (D.E. 16), filed.(lcayce, 2) (Entered: 12/18/2014)
20 MOTION for Extension of Time for 45 DaysMotions referred to B. Janice Ellington. by Raymond Cobb, filed. Motion Docket Date 1/9/2015. (srussell, 2) (Entered: 12/19/2014)
21 ORDER denying as moot 20 Motion for Extension of Time to File Obejctions.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(sscotch, 2) (Entered: 12/19/2014)
22 NOTICE OF SUBSTITUTION OF PARTIES by Lorie Davis, filed. (Jacobs, Craig) (Entered: 06/15/2016)
Participants edited, Lorie Davis substituted as respondent. (amireles, 2) (Entered: 06/15/2016)
23 ORDER VACATING STAY AND ORDER SETTING DEADLINES. Show Cause Response due by 8/29/2016. Supplemental motion for summary judgment due by 8/29/16. Responses due by 9/23/2016. (Signed by Magistrate Judge B Janice Ellington) Parties notified.(lcayce, 2) (Entered: 07/26/2016)
24 MOTION for Extension of Time for 30 days Motions referred to B Janice Ellington. by Raymond Cobb, filed. Motion Docket Date 9/12/2016. (srussell, 2) (Entered: 08/22/2016)
25 ORDER granting 24 Motion for Extension of Time. Motion for Summary Judgment due by 9/30/16; Responses due by 10/21/2016; Show Cause Response due by 9/30/2016.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(vrios, 2) (Entered: 08/22/2016)
26 First Set of Supplemental Disclosures These Documents are being used in the actual SJR by Raymond Cobb, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(srussell, 2) (Entered: 09/16/2016)
27 RESPONSE to Defendants Motion for Summary Judgment, filed by Raymond Cobb. (Attachments: # 1 Continuation, # 2 Continuation, # 3 Continuation, # 4 Envelope)(lcayce, 2) (Entered: 09/20/2016)
28 Supplemental MOTION for Summary Judgment Motions referred to B Janice Ellington. by Lorie Davis, Clint Morris, filed. Motion Docket Date 10/19/2016. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Jacobs, Craig) (Entered: 09/28/2016)
29 RESPONSE to 28 Supplemental MOTION for Summary Judgment filed by Raymond Cobb. (lcayce, 2) (Entered: 10/17/2016)
30 ORDER TO STAY PROCEEDINGS. (Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 03/09/2017)
31 MOTION to Substitute Attorney Emily Landon in place of Craig JacobsMotions referred to B Janice Ellington. by Lorie Davis, Clint Morris, filed. Motion Docket Date 6/9/2017. (Landon, Emily) (Entered: 05/19/2017)
32 ORDER granting 31 Motion to Substitute Attorney Attorney Craig McCam Jacobs terminated.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2) (Entered: 05/31/2017)
33 ORDER LIFTING STAY(Signed by Magistrate Judge B Janice Ellington) Parties notified.(srussell, 2) (Entered: 11/15/2017)
***Set/Reset Deadlines: Any Additional Summary Judgment Evidence or Briefing, pleading and evidence due on or before 12/1/2017, as per DE #33 ORDER LIFTING STAY (srussell, 2) (Entered: 11/15/2017)

Case: 2:14-cv-22 As of: 07/25/2019 08:11 PM CDT 4 of 4

11/21/2017 11/22/2017 01/11/2018
01/24/2018 02/12/2018

34 MOTION for Extension of Time To File Additional Summary Judgment Evidence and BriefingMotions referred to B Janice Ellington. by Lorie Davis, Clint Morris, filed. Motion Docket Date 12/12/2017. (Attachments: # 1 Proposed Order)(Landon, Emily) (Entered: 11/21/2017)
35 ORDER denying 34 Motion for Extension of Time.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(lrivera, 2) (Entered: 11/22/2017)
36 MEMORANDUM AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT re 28 Supplemental MOTION for Summary Judgment Objections to M&R due by 1/25/2018(Signed by Magistrate Judge B Janice Ellington) Parties notified.(fcarbia, 2) (Entered: 01/11/2018)
37 NOTICE of Receipt of #36 re: 36 Memorandum and Recommendations, by Raymond Cobb, filed. (idavis, 2) (Entered: 01/26/2018)
38 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 36 Memorandum and Recommendations, to Grant in Part and Deny in Part 28 Supplemental MOTION for Summary Judgment . The Court further Dismisses with Prejudice all claims against Deft Clint Morris. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(srussell, 2) (Entered: 02/12/2018)

 
 Case 2:12-cv-00169UNIDTEoDcumSTeAnTtE1S DFISilTeRdIoCnT 0C5O/U2R3T/1F2OiRn TTHXESD Page 1 of 6

SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

Clerk. U.S. District Court Southern Dtstrtct of TelCIIS
FILED

MAY 2 3 2012

Court Clerk 1133 North Shoreline Blvd. Corpus Christi, Tx • 78401

CA C-12-169

David J. Bradley, Clerk of Court
05/18/12

RE:Teddy Norris Grey Hawk Davis
vs.
Rick Thaler et al,
Le3r District Clerk,
l.p::n ~ al::xJve referen:E. I an ru::rently assigrro m ~ William G. M:::C!:::nrEll p:is:::n unit. k3 of 05/16/12 IT¥ recently filed case with the 1..EIX:: Y.eS unjustly seizerl bj ~ adninistratim
(every kn::1.vn d:x:urent am piece of evi<Erx:E tErtaini!'B to ~ case) •
I an l:::eifB retaliatErl am harrassErl a:Jri,nst bt ~ adninistrator am her herrll rren(W:u:den
r:avis, M3.jor castro, 881'. M3.yor). 'lhair attarpt to unjustly :iJq::a:i= this suit was rot provoke:)
bj rre or said ro/ plaintiff Itl±>ie Gxdran # 7~.
Clearly the M::fr:.rlrell unit adni.nistratim is rot mly attarptifB b.lt s..x::ca:lin:j in with
am roldifB ~ rec:essary legal d:x::urentatim p3[ES ro ~further ~ filifB att:a.drralts
cann:>t l:::e p.lt"SlB).
I an huT:bly a:nri.n:J l:::efore the 1..EIX:: Jui;3e to :i.rrp::l3e any ~ injurrtim to cmse am 1am Ce<:::e3,se a t.aTp;:>rary restra:i.n:i.n: order fran the retaliati01 am harasarent lam ~ wit.hhJld of or :i.rrp:dirrent of allON]ng rre acc:ESS to IT¥ d:x:urent file ~k am exhiliit evi<Erx:E. PlEEse
in a::nsideratim dil.y review with~·
U). Ch 05/15/12 I filed IT¥ lawsuit against 'IIXIT Officials m this unit. (sre arove RE).
#2). Ch 05/16/12 Arrest.erl as v.ell as the jo~r /Cb-plaintiff Itl±>ie C1xrltan. All legal
am rraterials, envelq:es, writifB rraterials, carb::n p:lfBr Slrl1 were taken fran us. ve cant even write rur family am loved aes at this p:>int am tine. I am havifB to rorro.v this typifB fSP=r am envelq;e am starrp just to nail this letter to yc:u. #3). !).I Y.eS sent to the b..ri.ldifB m=(lB:ux;) adrd.nistratim at ll:OJ am am sat t:rere until
c,~\1\' 6:0Cpn with:ut anyt:hi.n:J to ffi.t for lurrll ror ~ mr any water to drink. 'iha1 I got ()~ ,,/- rrovErl to the b.ri.ldifB arrl got a jcb d1ai"lje fran cb:t:m h::usifB arrl insic:E yard (larrlscap:/ ~" G3r'd::ner) • I Y.eS p1.a.cErl m the b.ri.ldifB in v.hld1 I am cbrm eligable. I got ro case b.lt
Y.eS retaliatErl a:Jri,nst. I'm m ~(3) b.ri.ldifB (A) p:xj (2) sectim arrl I have teen p.lt.
into the l.aurdy as a folc:Er. I have teen livifB in the dorrrs for the p3St foor to five Yffi.t"S tntil I filErl this lawsuit. 'lLCJ officials irrrra:liately starterl retaliatifB against rre. I have wrote t.p a step en= grievan:::e against 'lLCJ officials for ~ir retaliatim 'cut I have rot s.:b mi.tterl it to the grievan:::e office yet tecause they will retaliate against rre further. I wanterl to mtify the cnrts of Slrl1 activities goin:j m with rre lxpin:j that the o::uts will help rre with IT¥ cElina l:::efore it gets \o.Orse. I am sen:lin:j yc:u a a:pf of the step m= I am SLbnittifB to th:m. I voil.d like to ask the said cn.rt jtrlje to have 'liXIT p.lt. rre b3ck into the cbrm h:::usin:j
arrl give rre IT¥ same jcb lEek. 'lhare is m reas:n to l:::e shif:P'rl off this unit tecause this is
IT¥ assigned N:ltive roerican unit. 'Thank yc:u for yc:ur tine in this rratter. RESPECIFUILY EDB"1l''''F.O I
(1)

Ccpy to court clerk t<... file with lawsuit
CTaseexa2:s12D-cevp-0a0r1t6m9 enDtocoufmCenrti1mi.FnilaeldJo..uns0t5i/c2e3/12 in TXSD OPFaFgIeCE2 oUfS6E ONLY

STEPl OFFENDER GRIEVANCE FORM

Offender Narne: 'll:rl:':ly N::>rris Grey H3.wk Lavis

TDCJ # -00-7f:-ffi - - -

Unit: Wj 11 jam G. 1Ytfrnrel1 Housing Assignment: 3 B1d], A raJ 29- T

Unit where incident occurred: ........,W.·.i.l..l...ia.m......,_,G.:.:.....~""""'""""""""'ll...___ _ _ _ _ _ _ __

Grievance#:----------
Date Received: -----=--......;.,..---:---
Date D u e : - - - - - - - - - - Grievance Code: - - - - - - - - Investigator ID #: - - - - - - - Extension Date: _ _ _ __ Date Retd to Offender: - - - - - -

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

appealing the results of a disciplinary hearing.

·

Who did you talk to (name, title)? Mrs. G:u:dr"er CD V.

When? ___,0'-"-5'-'(1'-'6..!...("-'12"--------

What was their response? I 1ll tell than tut ~ .scra...e:)

What action was taken?

State your grievance in the space provided. Please state who, what, when, where and the disciplinary case number if appropriate
Co C6/16/12 at 8·CQ:rn the entjre inside yam CffiJ '•AS arrestaj arr3 taken toB·Biffi for qtmtjmjrg
l:Ehin:J arother irnate. 'llley the m officers in (1) BUG. crlninistrati~ Lavis, tvajor castro, g:n' tvayor rro everycne \-kn \o.Orks in the insid= yard:; p:q::erty taken CMO.Y tetri.n:3 s::rrehti.!B amt:her imate has cl::n2.
I rave just recently filoo a lawsuit~ m - ID officials m this unit m (05/15/12) arrl t:o:E.y 05/16/12

all !!!i l:lliqqin:]s Y.ere taken CMO.y t:h:l.t Y.ere legal. I have ro writin:J r;:El!:er' envelg::es, ror adJresses or legal v.ork. 'll1e ~..JtEr crlninistratim has taken it all CMO.Y fran rre. 'The adninistratim has over $45Q.OO w::rth of certifioo legal
d:x:urents fran the I.HX:: in Cbg:us 01risti t:h:l.t are evidin::e in rw law suit ro.v.'They ansist of d::x::urents su::h as QbxU vs. Bierce I arrl Yello.qll.ll vs. m et al, . At this p:>int arrl tirre I feel t:h:l.t for Ykla.tever ~ ys::u state
):0.1 have rry b=lqqirqs is retaliatim ?:]ainst rre for fil:im the lawsuit ?:]ainst 'IIXD. At this p:>int arrl tirre ys::u are hin:Erirg rre access to the cn.rts cy havim all rry legal \o.Ork arrl legal rraterials. I vn.lld like to have all rry legal
rraterials returnerl llrrre:liately please ~ arrl in ord:r as was sent to rre fran the usrx::. S.M. 03.02 (rev.1)
referen::::e: krerican Cbrrecticn:ll Aseociatim "semdes shall te axiluct:OO in an or:darly arrl !XQfessirnal ITB1'1ra", l::eirg careful rot to urrllly disorganize, ecatter, or cmt:rqy p;g:gty. Iblic:y st:armrd 3 - 3184. My' le:aJ. rraterials rave rothirg to Cb with ya.r investigaticn m arother imate ror arother officer. I regt.mt t:h:l.t vru return !!!i legal
w:>rk l:ack to rre i.rma:liately. I am rotify:irq tre lEI:X: Jtrl:{e arrl ask for an Effer9€lFi rest!lainirq ord:r am taq:orary injurctim te place:) m the unit staff of this unit to Y.ere rur lire class, rustcdy level, jcb, h::usirq, arrl su::h canrot te taken fran us in the m.1rse of this lawsuit arrl t:h:l.t ys::u arrl your staff cam::>t take cur legal rraterials
fran us mr rur 1§931 a:pies of rur lawsuits arrl etc. • • fron us. I 1m sure t:h:l.t t:re 1:.1SOC Jtrl:Je will fi.rrl it interest@
to kroN \Jla.t lEBitirrate ~ YQ.l have for t:aki.rn rur legal rraterials away fran us.Like I have said tefore Irnate
Bill Cbckran am officer rassenblrqe if this is sp:!iloo right have rot:bi.rE to Cb with !!!i legal OOJ.cn::d.ms. I feel
that JOl are rrekin::J a:pies of rw legal d::x::urents m the CXX)l. I will let yru all explain to the usrx:: Jtrl:Je vkla1 h?/
she mtifies )?.1 all m this unit. Just b::cause I d:::n1t kiu.-1 anyt.hin:J to tell yoo a1:x:ut t:rese tv.o g:g;?le, Irnate
cx:x:::kran am officer ros::erhn:'g d::a3n 1t give ys::u the right to take rw legal v.ork arrl vka1 vru askOO rre if I was

I-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER)

Appendix F

A rative lmericCanaasred 2i:f12I -Wc3vS-0th0e16rn9e YDh::>ocfiulmooenthte1lawFsilueidt sotnil0l5d/2:e3s/1r2otingiTveXSycDu thPeargigeh3t otof 6take my telm;irqs
am retaliate cgrinst rre am rrake threats to rre sayin:j If I em' t tell ycu vtat Yru want to he3r ycu will take care of rre. 'Ihat ycu ha.ve up to this p:>int ard tirre. .anyt:hin:J else yw want to do to rre like my line class, rred.
Q..Etq:Jy, ffi:lr€:9atim ?

Action Requested to resolve your Complaint. 'That. }OJ st.cp ret:aliatiUJ <Qainst rre am give rre all IT¥ pt""qErt:y reck ard give liB IT¥ jcb ard ibrmJ:rns:irl:] tack.

Offender Signature: Grievance Response:

Date: 05~7 /12 ~)

Signature Authority: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Date: ______
If you are dissatisfied with the Step 1 response, you may subl\)it a Step 2 (1-128) to the Unit Grievance Investigator within 15 days from the date of the Step 1 response. State the reason for appeal on the Step 2 Form.

Returned because:

*Resubmit this form when the'corrections are made.

0 I. Grievable time period has expired. 0 2. Submission in excess of I every 7 days. * 0 3. Originals not submitted. *
04. Inappropriate/Excessive attachments. * 0 5. No qocumented attempt at informal resolution. * 0 6. No requested relief is stated. * 0 7. Malicious use of vulgar, indecent, or phy~ically threatening language. * 0 8. The issue presented is not grievable. 0 9. Redundant, Refer to grievance#_ _ _ _ _ _ _ _ _ _ _...,...._ _
0 10. Illegible/Incomprehensible. * 0 II. Inappropriate. *

OFFICE USE ONLY

Initial Submission

UGI Initials:

Grievance#: _ _ _ _ _ _ _ _ _ _ _ _ __

Screening Criteria Used: - - - - - - - - - Date Reed from Offender: _ _ _ _ _ _ _ _ __

Date Returned to Offender: _ _ _ _ _ _ _ __

lwLSubmjssion

UGIInitials: _ _ __

Grievance#:-------------Screening Criteria Used: - - - - - - - - - Date Reed from.Offender: _ _ _ _ _ _ _ _ __

Date Returned to Offender: _ _ _ _ _ _ _ __

UGI Printed Name/Signature: --------'---~----------'------

J_rllSubmission

· UGI Initials: _ _ __

Application of the screening criteria for this grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority:____________________

Grievance #: - - - - - - - - - - - - - . , - - - - - - ; - Screening Criteria Used: - - - - - - - - - Date Reed from Offender: _ _ _ _ _ _ _ _ __ Date Returned to Offender: _ _ _ _ _ _ __

1-127 Back (Revised 11-2010)

Appendix F

Case 2:12-cv-00169 Document 1 Filed on 05/23/12 in TXSD Page 4 of 6

HOUSE/JOB CHANGE

NAME: DAVIS, TEDDY NORRIS
1
r
DATE: 05/18/2012 12:17:54

NO: 00807688 RACE: W

THE ABOVE NAMED AND NUMBERED INMATE IS TO BE ASSIGNED AS FOLLOt~S:

OLD HOUSE: NEW HOU£E: 3A21-2':3T
OLD JOB: LAUNDRY <TEMP> 72 HR NEW JOB: FOLDER LAUNDRY

COMPLETED B Y = - - - - - - - - - - - - -
APPROVED BY: __,..,/¥Pvf?t-..:....~~c:....:;;..________

----------------------------------------------- - ·- ·- ·- ·- •

-~-.....

~¥

·~.;;:.-.·~.::::-.:::·:... ~- .... ~;...... ... ........ ~·· .... _·:::-:::.-:: ..~: ::.~::~ _.,-- -· .... -~· ................ ·-· ....

EFFECTIVE DATE: 05/09/2012 FROM-TO TJME: 04:30-10:30 STAqT DATE: 05/07/2012 END DATE: 05/09/2012
ADMIT: 00807688 DAVIS,TEDDY NORRIS
JOB: LANDSCAPE GARDENER

TITLE: CLEl~~; I I

Case 2:12-cv-00169 Document 1 Filed on 05/23/12 in TXSD Page 5 of 6

rr,a..-ruiJ't N4-rr)S Gc~~
W • I \ i fHTI (;. . f'n c(1.' n ?>o() I Scl!ih f_t"Yl;)y

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n "€· 1\ \l rl\'-1'
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~~'ft,~ 1 '1~1o2-~S~s

SColeurtkh,eurn.sD. lDstlrstctr:tlco:lfCToeuxrats
RLED
MAY 2 3 2012
David J. Bradley, Clerk of Court

uni+~J STi~1e ~ b•'s-1-•-icJ tc" td ~f..... -+1!(.

o+ ~ov-t'htC'(\ l)I'S·h ,. c.-\

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u·ss l.for+h shcr~\/1\e. 6lvcL

t~r-pv '.) t hr ,·s+i ) IX.

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!),, 'Jl,,lul,,lllu•"'U,,J,JIJ,,"J,,j,,j,J,J,J,J" J,J,J"l

Case 2:12-cv-00169 Document 1 Filed on 05/23/12 in TXSD Page 6 of 6
r·---
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I

 
 •

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN

DISTRICT OF TEXAS

CORPUS CHRISTI

DIVISION

Form To Be Used By A Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983

Cletk. U.S. District Court Southem Diltrlct of Texas
FILED
JAN 10 2014

WILLIAt-'l CASEY # 683809
Plaintiff's name and ID Number

DIMd J. Bradley, Clerk of Court

WILLIAM G. McCONNELL UNIT Place of Confinement
William Stephens (TDCJ-CID Director) p.O. Box 99 Huntsville, Texas 77340
Defendant's name and address
Clint Morris (Nat. Amer. Program Analyst)
w.o. Box 99 Huntsvilee, Texas. l'l340
Defendant's name and address

CASENO: _____________________ (Clerk will assign the number)

Defendant's name and address (DO NOT USE "ET AL.")

INSTRUCTIONS -READ CAREFULLY
NOTICE:
Your complaint is subject to dismissal unless it conforms to these instructions and this form.
I. To start an action you must file an original and one copy of your complaint with the court. You should keep a copy of the complaint for your own records.
2. Your complaint must be legibly handwritten in ink, or typewritten. You, the plaintiff, must sign and declare under penalty of perjury that the facts are correct. If you need additional space, DO NOT USE THE REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND WRITE ON IT.
3. You must file a separate complaint for each claim you have unless the various claims are all related to the same incident or issue or arc all against the same defendant, Rule 18, Federal Rules of Civil Procedure. Make a short and plain statement of your claim, Rule 8, Federal Rules of Civil Procedure.
4. When these forms arc completed, mail the original and one copy to the Clerk of the United Stdtes Court for the appropriate District of Texas in the Division where one or more namt:d defendants arc located, or where the incident giving rise to your claim for rt:lief occurred. The Ji-;t L1belcd as '·VENUE LIST" i~ posted in your unit law library. It is a list of Texas prison units indicating the appropriate District Court, the Division and an address of the Divisional Clerks.

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 2 of 13

FILING FEE AND IN FORMA PAUPERIS

l. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.

2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis (IFP), setting forth the information to establish your inability to prepay the fees and costs or give security therefore. You must also include a six (6) month history of your Inmate Trust Account. You can acquire the application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison unit.

3. 28 U.S.C. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides, " .. .ifa prisoner brings a civil action or files and appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been paid by the prisoner. If you submit the application to proceed in forma pauperis, the Court will apply 28 U.S.C. 1915 and, if appropriate, assess and collect the entire filing fee or an initial partial filing fee, then monthly installments from your Inmate Account, until the entire $350 filing fee has been paid.
4. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to
Proceed IFP, and the Certificate of Inmate Trust Account. Complete all the essential paperwork before submitting it to the Court.

CHANGE OF ADDRESS

It is your responsibility to inform the Court of any change of address and its effective date. Such notice should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any motions(s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal of your complaint pursuant to Rule 4l(b), Federal Rules of Civil Procedures.

I. PREVIOUS LAWSUITS:

A. Have you filed any other lawsuits in the state or federal court relating to

imprisonment?

YES X

NO

B. If your answer to "A" is yes, describe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, giving the same information.)
1. Approximate date of filing lawsuit: _ _ _ _ _ _ _ _ _ _ _ __

2. Parties to previous lawsuit: Plaintift1s): - - - - - - - - - - - - - - - - - - - - -

Defendant(s): - - - - - - - - - - - - - - - - - - - - 3. Court (If federal, name the district; if state, name llic county) - - - - - - - - - - -

4. DockctNumber: - - - - - - - - - - - - - - - - - - - - 5. Namt: ofjudge to whom cast: was assigned: - - - - - · - - - - - - - - - - - - 6. Disposition: (Was the case dismissed, appeakd, still pending?)

7. Arprox.imatc date of disposition:

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 3 of 13

II. PLACE OF PRESENT CONFINEMENT: Wilham G. McConnell Unit

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution? X

YES

NO

Attach a copy of the Step 2 grievance with the response supplied by the prison system.

IV. PARTIES TO THE SUIT:
A. Name of address of plaintiff: _..,W..,i._.l..l...,i""a""'m:......!.;R'-".~C:.:::a:.:::s:..:::e'-'-y_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 3001 south Emily Drive Beeville, Texas. 78102-8583

B. Full name of each defendant, his official position, his place of employment, and his full mailing address.
Defendant #I: William B. Stephens (TDCJ-CID Director)
p.o. Box 99 Huntsville, 'l'exas 77340
Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
violated u.s Canst. lst Amend. Rights and RLUIPA Defundant#2: Clint Morris (Nat. Amer. Program Analyst)
p 0 Box 99 Hnntsvi JJ e, Texas. 77340
Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
Violated us Canst. 1st wend. Rights and RLUIPA
Defundant#3: ---------------------------------------------------------

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Defundant#4: ----------------------------------------Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you. Defundant#5: __________________________________________________________

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 4 of 13
V. STATEMENTOFCLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen, when did it happen, and who was involved. Describe how each defendant is involved. You need not give any legal argument or cite any cases of statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint
must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR
COMPLAINT.
See Attachment Pg. 1-2

VI. RELIEF: State briefly exactly what you want the court to do for you. Make no legal arguments. Cite not cases or statutes.
See Attachment Pg. # 3

VII. GENERAL BACKGROUND INFORMATION:
A. State, in complete form, all names you have ever used or been known by including any and all aliases:
Willaim, Casey, Billy, White Wolf
B. List all TDCJ-ID identification numbers you have ever been assigned and all other state or federal prison or FBI numbers ever assigned to you, if know to you.
~exas (TDCJ-CID # 683809)

VIII. SANCTIONS:
A. Have you been sanctioned by any court as a result of any lawsuit you have filed? __ YES _x___ NO

B. If your answer is "yes", give the following information for every lawsuit in which sanctions were imposed. (If more than one, use another piece of paper and answer the same questions.) I. Court that imposed sanctions (If federal, give district and division): _ _ _ _ _ _ _ _ _ _ __

2. Case Number: - - - - - - - - - - - - - - - - - - - - - - -

3. Approximate date sanctions were imposed: - - - - - - - - - - - -

4. Have the sanctions been lifted or otherwise satisfied?

YES ___ NO

Pagc4of5

•

..

'l
'•

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 5 of 13

C. Has any court ever warned or notified you that sanctions could be imposed? __ YES ~ NO D. If your answer is "yes", give the following infonnation for every lawsuit in which warning was imposed.
(If more than one, use another piece of paper and answer the same questions.)
1. Court that imposed warning (if federal, give the district and division): - - - - - - - - - - 2. Case number: 3. Approximate date warning were imposed: - - - - - - - - - - - - -

Executed on: 01 I CJ ~ I 2014
(Date)

William R. Casey
(Printed Name)
of~ - ~~&e~ (Signature

PLAINTIFF'S DECLARATIONS

I. I declare under penalty ofpetjury all facts presented in this complaint and attachment thereto are true and correct.

2. I understand if I am released or transferred, it is my responsibility to keep the Court infonned of my current mailing address and failure to do so may result in the dismissal of this lawsuit.

3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit.

4. I understand I am prohibited from bringing an in forma pauperis lawsuit if I have brought three or more civil actions in a Court of the United States while incarcerated or detained in any facility, which lawsuits are dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under imminent danger or serious physical injury.

5. I understand even if I am allowed to proceed without prepayment of costs, I am responsible for the entire $350 filing fee and costs assessed by the Court, which shall be deducted in accordance with the law from the inmate account by my custodian until the filing fee is paid.

Signed this _ _,fe"'"·_,_r-L),.____ day of _ __...Jiu..._...,.:a...,rry,___ _ _ _ _ _, 20 1....,4,.____ __

(Day)

(Month)

(Year)

William R. Casey
(Printed Name)
V~/Le~ (Signature of Plainti

\YARNING: The l'bintiff is hereby advised any false or (lcliberately misleading inform:ttion provided in response to the following questions will result in the imposition of sanctions. The sanctions the Court may
impose include, but arc uot limhed to monetary sanctious and/or the dismissal or this action with prejudice.

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 6 of 13
ATTACHMENT TO COMPLAINT UNDER 42 U.S.C. § 1983
The aforementioned inaividue1ls are denyinij ana r•.?strictinc; me thE: exercise of my religion (way of life). I am bein'.;j denied consistant and meaningful
access to the practice of my reli<;;ion, which is a violation of 42 u.s.c. §
1983 by virtue of the defendants infrinyment of the Plaintiffs rights under the First Amendment to the United states Constitution; and violation
of 42 u.s.c. § 2000-cc-1, the Religious Land Use and Institutionalized Persons
Act (RLUIPA). William Stephens (Dir. of TDCJ-CID) is a policy maker and is responsible
to ensure that Plaintiffs religious requirements are met. defendant William Stephens has deliberately denied Plaintiff the right to: (1) Grow his long Hair; (2) wear his medicine bag at all times; (3) have traditional Pipe ceremonies as Plaintiff is a Native American practitioner. William Stephens is and has enforced rules and regulations that restrict Plaintiff from constitutionally protected rights to practice his religion (way of life) in the least restrictive means.
(1) TDCJ-CID has a c;roominq stan::lard that restricts Plaintit::s from qrowinq his lonq hair. it is an established way of life that Native Americans qrow their hair lonq , and that the only time that Plaintiffs cut their hair is in mourninq for the loss of a close family of friend. This could last u~ to one year. TDCJ-CID A.D. 07.30 policy # 3.83 Groominq Standards state that they are su~~osed to be enforced with no exemption based on reliqious beliefs. They state that male offenders must kee0 their hair trimmed up the back of their neck and head. Hair must be neatlv cut. Hair must be cut around the ears.
Also see TDCJ-CID disciplanary Handbook Offense Coc)e jt24.01 Refusinq to com~ly with Groominq Standards pq. # 22 Att. C-1. Also Offender Orientation Handbook states that an offender in violation of the qroominq standards are sub-lect to disciolanarv actions such as: loosinq qood time. line class. and oossiblv beino olaced into seqreoated confinement. This punishment can keep the offender from qoinq home on parole because of disciolanarv cases. Under RLUIPA this kind of punishment is what they do not allow. (2) TDCJ-CID has denied Plaintiffs the riqht to wear his medicine baq at all times even thouqh the Native American policy stated that outside the orison settinq they are worn dailv because oolicv says thev can do a visual insoection at any time for security reasons to soe if contraband is inside.
( 1)

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 7 of 13
(3) TDCJ-CID has allowed Prayer Pipe ceremonies in their prison settinq from May 1996 up to July 2012 and then took them away from the Native American oractitioners. These Pioe ceremonies were allowed per TDCJ-CID poliy 09.01-09.04 of the A.D 07.30 Chaplaincy Manual. Means TDCJ-CID cannot condone a communal pipe due to health reasons, then Plaintiff request his own personal prayer pipe as a least restrictive means under RLUIPA so he may practice his established traditional pipe ceremonies in which his tribe has been doing for the past(2) Two-Thousand years. TDCJ-CID does not allow any least restrictive means, due to policies they enforce. William stephens is beinq sued in his official capacity for implementinq policies that violate my constitutional riqhts under RLUIPA under least restricitve means.
Clint Morris is beinq sued in his individual capacity for first amendment violation for failure to act accordinq to his iob discriotion in which caused the violation of mv constitutional riahts denying Plaintiff the riqht to have traditional Pipe ceremonies per TDCJ-CID oolicies in which were in effect at the time he was hired in 2009 to oversee the Native American Units and make sure they had their required ceremonies before he played a personal role in changing the Native American policy to which led to TDCJ-CID stoppinq pipe ceremonies. Orioinally the TDCJ-CID offenders could smoke the sacred pipe per policy. Now, they are not afforded the opportunity to smoke the sacred pipe any more due to the new policy in which is a violation of my constitutional riqhts because there is no least restrictive means available to me so I can pray traditionally. From the time period of Sept. 2008 up till Julv 2012 the Plaintiff has not had his pipe ceremonies as was in effect until Julv 2012 when the new policy came into effect.
Plaintiff has shown three(3) policies in which are in effect that violate his constitutional riahts under RLTJIPA under the least restrictive means, and how he is forcefully required to cut his hair aqainst reliqious beliefs and practices or be sub-·iect to punishment for not complYinq to TDCJ-CID oroominq policies. Plaintiff reauested relief is on Paae#(3)
( 2)

•

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 8 of 13

PLAINTIFFS' REQUESTED RELIEF

Plaintiff seeks a declaratory -judqement and in-junctive relief aqainst TDCJCID prison system to allow Plaintiff to have the followinq: (l) his lonq hair/ or as a least restricitve emans a Kouplock, (2) to be able to wear his medicine baq at all times, (3) and to have his own personal prayer oioe to orav with as a least restrictive means because TDCJ-CID cannot any lonqer condone a communal prayer pipe for inmates to smoke due to serious life threatninq diseases that thev have been exposed to since 1998 N/A POlicy was implemented. Under RLUIPA there has to be a least restrictive means to orav to the Great soirit in which TDCJ-CID has not shm-m one yet. TDCJ Native American contract Chaplain stated they cannot release the prayers of the offenders from the pipe but can say a prayer on behalf of the participants. This is why it is clearly called personal prayers and a personal prayer pipe is used. The participants have to say and release their own personal prayers to be heard from the qreat soirit so their oravers can be heard and answered. Knowinq that TDCJ N/A chaplains cannot release the Plaintiffs prayers because they do not know them is not aleast restrictive means of Plaintiffs traditional beliefs and practices.
To deny the Plaintiff the riqht to say his prayers and smoke and release his own personal praver is to deny the Great SPirit (GOD) the very riqht to answer my prayer.
Plaintiff seeks monetarv damaqes aoainst Clint Morris in his indivinnal cnaacity for violatinq my constitutional riqht by personally Playinq a role in the new oolicv chanoe in which now prohibits the Native Americans the rioht to oersonallv smoke and release their own prayers. Clint Morris' own lOb was not comlpied with that he was hired to do,and the verv ommition to this non-compliance to a policy that was in effect when he was hired to oversee the Native American communities is what caused the violation of my First Amendment riqhts. Plaintiff seeks not only the requested relief above, but also any other monies entitled to him as well.

( 3)

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 9 of 13

Texas Department of Criminal Justice
STEPl OFFENDER GRIEVANCE FORM

··::·::v1 Offender Name: 11i Jl i am casei

TDCJ # 6E1809

Unit: \'/m. G. Mcconnell Housing Assignment: 19

<H

OFFICE USE ONLY

ffi~~.~\Cy.l1YL\\ Grievance#:

,}\l\;J ~ Date Received:

ht>\ 1'~'1 ~ Date Due:
Grievance Code:

_

_.,\T-~U......\;;......,.,.---_ __

\lj\J ~ Investigator ID #:

Extension Date: <6, ·lq·f~

Unit where incident occurred: li'Jilliam G. McConnell

SEP Z3 2013
Date Retd to Offender: - - - - - -

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

appealing the results of a disciplinary hearing.

Who did you talk to (name, title)? Chaplain Packard

When? 05/2.9/13

What was their response? I cannot chanJe TDCJ tJOlicies

What action was taken?

State your grievance in the space provided. Please state who, what, when, where and the disciplinary case number if appropriate TQC,J CTD Dj C.'-'ctar r!Jr .Bj ck rcbal or j s viol ai· j ny m~ Ei rst B•nend•DPDt Bj •jbt s to 12ract j ce my

Nativt> American traditional beljefs, (1) I am PpjorJ denir>d tbp apportnnitt to yrolal lony hair
and: ( 2) I a1.1 bej ny deni Pd the opportppjti to smo1>e J-he ''">acrpd prayer o; pe and (3) I
am bej n~ denj ed the rj gbt to lolear m¥ medicine hag at all times rrnder the Religim,s rand Use and Ipstitqtjooali?ed Persons Act ("RI.UTPA") TDGJ has to allow me a least restrictive means to IKact, ce mi wat of I ife (rel i gi an) .
. Accardi n\oi to TDC.J ,>ol j cv there are no Grooroi ng exemptions for rel i 'Ji ons hpJ i pfs and
tKactices, Also 1)()licy sap? that anl,i Native American contract chaplain is allowed to smoke the sacre pipe pqw and that j pmates can PO l onyer smoke the sacred Pralrer Pi 1JP AlSO I am bei n~ denied the op1,2ortqpj ti to wear my medici oe hacJ to protect me from evi J spirits and sicknesses that can stoo me from hecomi nQ seri onsl i ill , The Medicine fla1J is al '30 a prayer
tool between myself aod the Great s, >i rj t and is a verJl part of roy daily rel at i ansh; p with
creator. TDCJ's policies do oat offer any least restrictive weans to practice nry traditional wa i at l j fe and therefore viol ate my Ei rst Amendment Canst i tntt i anal ri qhts

I-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER) Appendix F

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 10 of 13

Action Requested to resolve your Complaint.
To be able to have 1°0 fJ hai~; o~; l9ast restrictive fflean~ a cou~loc1' ; ar:aa bQ i'bl9 to u&al' "'Y
Grievance Response:

Your claims has been noted. Investigation reveals all offender's must adhere with the TDCJ grooming· standards.

Signature Authority:

' n- ltt,{ ~ Warden M. Barber

a. · " 0 ~- Date:

t.AJ o.J

If you are dluadsfted with the Step 1 response, you may submit a Step 2 (1-128) to the Unit Grievance Investigator within IS days from the date oftbe Step 1 response.

State the reason for appeal on the Step 2 Form.

Returned because:

*Resubmit this form when the corrections are made.

0 l. Grlevable time period has expired. 0 2. Submission in excess of I every 7 days. • 0 3. Originals not submitted. ~
0 4. Inappropriate/Excessive attachments. • 0 5. No documented attempt at informal resolution. • 0 6. No requested relief is stated. • 0 7. Malicious use of vulgar, indecent, or physically threatening language. •
0 8. The issue presented is not grievable.
0 9:-Redundant, Refer to g r i e v a n c e # · - - - - - - - - - - - - 0 10. Illegible/Incomprehensible. • 0 II. Inappropriate: ·•

OFFICE USE ONLY

Initial Submission

UGJ Initials:_ _ __

Grievance#:-------------Screening Criteria Used: - - - - - - - - - -

Date Reed from Offender: - - - - - - - - -

Date Returned to Offender: - - - - - - - - -

1"'-Suhmlsslog

UGI Initials:_ _ __

Grievance#:-------------Screening Criteria Used: - - -·-·~-- - - - - -

Date Reed from Offender: - - - - - - - - -

Date Returned to Offender: - - - - - - - - -

UGI Printed Name/Signature:

J.r.tl.Submlsslop

UGI Initials:_ _ __

Application of the screening criteria for this grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Grievance#:-------------Screening Criteria Used: - - - - - - - - - Date Reed from Offender: - - - - - - - - Date Returned to Offender: - - - - - - - - -

1-127 Back (Revised 11-20 I0)

Appendix F

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 11 of 13

Texas Department of Crimh ...t .) tice

STEP2

OFFENDER

GRIEVANCE FORM

Offender Name: William Casey

TDCJ # 683809

Unit: Wm. G. McConnell Housing Assignment: 19 - Y - q8

Unit where incident occurred: William G. Mcconnell

FFICE USE ONL
l Gnevance#: ~01'?2 15~4(..\
UGI Reed Date: _ _.S...,E.._P_.3._,Qoi.._J.!2Qiol..l].._J_
-.y . HQ Reed Date: QCJ 2 1 2013
Date Due: \ \
Grievance Code: __._l_,O"-""~:c,..=-_ _ __
Investigator ID #rDJ...a__[l__D
t3 Extension Date:~~

You must attach the completed Step I Grievance that has heen signed hy the Warden for your Step 2 appeal to be accepted. You may not appeal to Step 2 with a Step I that has been returned unprocessed.
Give reason for appeal (Be specific). I am dissati,,:fled l:1ith the response at Step I because...
My step(l) has not been properly answered. There were Three issues addressed on this step(l) grievance in which was accepted on 05/31/13, but only one(l) issue was addressed and answered to. The grooming standard issue was answered but the investigator ID# 2040 failed to answer the 1ssue on me having my own personal prayer pipe to pray with; or even me being able to wear my
medicine bag at all times every day. Therefore I am filing this step(2) grieving and aggealing this decision or response as not being properly ans,.zered (step(l) grievance# 20]3]5444])
~ requeotca on- extent ion of time of ( 4&7 dayos.. tv .:eospond to t1 tios gr ie11a11ce and .still
didnot ans,,Jer it properly. This grievance therefore has not been exhausted properly by the Administrative grievance Depa:-tment. Warden Barber signed off on this grievance acknowledging the response, but paid no attention to the parts un-answered in which makes offender feel as
though the Wardens don't even read what they si qn. Inmate Williams is qri evi nq ( 3) i ss!les.
W lonq hair as qroominq exemption or a kouplock as a least restrictive means; (2) my own
personal prayer pipe to pray with at pipe ceremonies· (3) to be able to wear my medicine haq ~t_all times every d~---------------------------------------Inmate Williams would like to point out another problem with the grievance office on the McConnell unit. I filed this step(l) on May 29, 2013 and TDCJ recieved it on May 31, 2013. Now it would be_dlle back on .Jllly 06. 20l3 for the (35) dav to expire On .July 12,2013 in which is six Clays P~tbe (35) day time frame for responding to step(l), TDCJ requested a (40) day extention of time tq_answer. Now from July 12,2013 till August 22, 2013 would be the (40) day time limit. WHY
d-id-'l'DC.J-keeo mv ateo (1) until September= 23, 2013 in \,•hich is (32) davs after the (40) day deadline? Do the Math yourself. May 31, 2013 till Seotember 23, 2013 is 115 days. TDCJ is abusing their

l-128 Fron1 (Revised 9-1-2007) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER) Appendix G

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 12 of 13

grievance process by sitting on inmates grievances for no ligitimate reason. Inmate Williams

. . '

.

tne woodetfng ·lf~ i31iD1tsuille Grieuaoce Di t:ectot: can find out why they abuse the qrieuaoce

p~:;oc&&& on thia'Onit T.hi& i& t:ePQ&tiltiv& on thi& unit

..

Offender Signature: ~ ~
Grievance Response:

Date:

09/29/13

Your complaint has been received and investigated. The Chaplaincy Department is not permitted to authorize
exemptions to the grooming standards apart from agency approval. Agency grooming standards are well defmed and do not permit any religious exemptions. No corrective action is warranted

t' ' r-··~.P"·--,..-.:."'~~

~ •• • o.{ I

/,

.,

.I

.·-.,
,, Date:

I 0

Returned because: *Resubmit this form when corrections are made.
D 1. Grievable time period has expired. D 2. Illegible/Incomprehensible. * D 3. Originals not submitted. * D 4. Inappropriate/Excessive attachments. * D S. Malicious use of vulgar, indecent, or physically threatening language.
D 6. Inappropriate. *

OFFICE USE ONLY

Initial Submission

CGO Initials:;_ __

Date UGI Reed:_ _ _ _ _ _ _ _ _ _ _ __

Date CGO Reed:,_ _ _ _ _ _ _ _ _ _ __

(check one) _ _Screened _ _Improperly Submitted Comments:_ _ _ _ _ _ _ _ _ _ _ _ __

Date Returned to Offender::_ _ _ _ _ _ _ __

~~~~~Submission

CGO Initials: _ __

Date UGI Reed:_ _ _ _ _ _ _ _ _ _ _ __

Date CGO Reed:_ _ _,_ _ _ _ _ _ _ __

(check one) _Screened _Improperly Submitted Comments::_ _ _ _ _ _ _ _ _ _ _ _ __

CGO Staff S i g n a t u r e : - - - - - - - - - - - - - - - - - -

Date Returned to Offender:,_ _ _ _ _ _ _ __

~Submission

CGO Initials:._ _ __

Date UGI Reed::_ _ _ _ _ _ _ _ _ _ _ __

Date CGO Reed:_ _ _ _ _ _ _ _ _ _ __

(check one) _ _Screened _Improperly Submitted Comments::_ _ _ _ _ _ _ _ _ _ _ _ __

Date Returned to Offender:_ _ _ _ _ _ _ __

1·128 Back (Revised 9·1·2007)

AppendixG

Case 2:14-cv-00013 Document 1 Filed on 01/10/14 in TXSD Page 13 of 13

 
 Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 1 of 12

,.

IN THE UNITED STATES DISTRICT COURT

FOR THE souTHERN

DISTRICT OF TEXAS

CORPUS CHRISTI

DIVISION

Form To Be Used By A Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983

Clel1<. u.s. Diltrtct Court
Southern Diltrlct of Texas FILED
JAN 2 1 2014

RAYMOND COBB Plaintiff's name and ID Number

# 1306425

David J. Bradley, Clerk of Col8't

WILLIAM G. McCONNELL U~IT Place of Confinement
v.
William ·B. Stephens.-~( 'I!DCJ;-QUt:::DIEE<;TOR) P.o. Box 99 Huntsville, Texas. 77342 Defendant's name and address CLINT MORRIS (PROGRAM ANALYST NAT-AMERICAN UNIT) P.o. Box 99 Huntsville, Texas 77342 Defendant's name and address

CASENO: --CA--C---1-4--2-2-----------(Clerk will assign the number)

Defendant's name and address (DO NOT USE "ET AL.")

INSTRUCTIONS -READ CAREFULLY

NOTICE:

Your complaint is subject to dismissal unless it conforms to these instructions and this form.

1. To start an action you must file an original and one copy of your complaint with the court. You should keep a copy of the complaint for your own records.

2. Your complaint must be legibly handwritten in ink, or typew1itten. You, the plaintiff, must sign and declare under penalty of peljury that the facts are correct. If you need additional space, DO NOT USE THE REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND WRITE ON IT.

3. You must file a separate complaint for each claim you have unless the various claims are all related to the

same incident or issue or are all against the same defendant, Rule 18, Federal Rules of Civil Procedure. Make

a short and plain statement ofyour claim, Rule 8, Federal Rules of Civil Procedure.

·

4. When these forms are completed, mail the original and one copy to the Clerk of the United States Court for the appropriate District of Texas in the Division where one or more named defendants are located, or where the incident giving rise to your claim for relief occurred. The list labeled as "VENUE LIST" is posted in your unit law library. It is a list of Texas prison units indicating the appropriate District Court, the Division and an address of the Divisional Clerks.

ATC 1983 (Rev. 04/06)

Page 1 of5

I

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Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 2 of 12

FILING FEE AND IN FORMA PAUPERIS

1. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.

2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis (IFP), setting forth the information to establish your inability to prepay the fees and costs or give security therefore. You must also include a six (6) month history of your Inmate Trust Account. You can acquire the application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison unit.

3. 28 U.S.C. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides,"... if a prisoner brings a civil action or files and appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been paid by the prisoner. If you submit the application to proceed in forma pauperis, the Court will apply 28 U.S.C. 1915 and, if appropriate, assess and collect the entire filing fee or an initial partial filing fee, then monthly installments from your Inmate Account, until the entire $350 filing fee has been paid.

4. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to Proceed IFP, and the Certificate of Inmate Trust Account. Complete all the essential paperwork before submitting it to the Court.

CHANGE OF ADDRESS

It is your responsibility to inform the Court of any change of address and its effective date. Such notice should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any motions(s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal ofyour complaint pursuant to Rule 41(b), Federal Rules of Civil Procedures.

I. PREVIOUS LAWSUITS:

A. Have you filed any other lawsuits in the state or federal court relating to

imprisonment?

YES X

NO

B. If your answer to "A" is yes, desctibe each lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on another piece of paper, giving the same information.)
1. Approximate date of filing lawsuit: _ _ _ _ _ _ _ _ _ _ _ __

2. Parties to previous lawsuit: Plaintiff(s): - - - - - - - - - - - - - - - - - - - - -

Defendant(s): - - - - - - - - - - - - - - - - - - - - 3. Court (If federal, name the district; if state, name the county) - - - - - - - - - - -

4. Docket Number: - - - - - - - - - - - - - - - - - - - - 5. Name ofjudge to whom case was assigned: - - - - - - - - - - - - - - - - - 6. Disposition: (Was the case dismissed, appealed, still pending?)

7. Approximate date of disposition: _ _ _ _ _ _ _ _ _ _ _ _ _ __

ATC 1983 (Rev. 04i06}

Page 2 of5

......../"
"

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 3 of 12 II. PLACE OF PRESENT CONFINEMENT: William G• McConnell Unit

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution? X

YES

NO

Attach a copy of the Step 2 grievance with the response supplied by the prison system.

IV. PARTIES TO THE SUIT:
A. Name of address of plaintiff: _R_a_ym_o_n_d_c_o_b_b_#_l_3_0_6_4_2_5_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 3001 Santh Emi 1 y Drive Beeville, Texas. 78102-8583
B. Full name of each defendant, his official position, his place of employment, and his full mailing address. Defendant #1: William 3 ~Stephens (-TDCJ-CID DIRECTOR) P.o. Box 99 Huntsville, Texas. 77342 Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
He is denying me my first amendment rights guaranteed by the u.s Const.(RLUIPA)
Defendant#2: Clint Morris (Program Anal¥st Nat. Amer. Unit) p.o. ·Box 99 Huntsville/. texas. '77342 Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
denying me first amendment rights guaranteed by the u.s. Constitution
Derendant#3: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Derendant#4: -----------------------------------------Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.

Derendant#5: -----------------------------------------------Briefly desc1ibe the act(s) or omission(s) ofthis defendant, which you claimed harmed you.

ATC 1983 (Rev. 04i06)

Page 3 of5

.

..
'

It

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 4 of 12
V. STATEMENT OF CLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen, when did it happen, and who was involved. Desc1ibe how each defendant is involved. You need not give any legal argument or cite any cases of statutes. Ifyou intent to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR COMPLAINT.
Please see attached document of complaint (pages #l-2)

VI. RELIEF: State briefly exactly what you want the court to do for you. Make no legal arguments. Cite not cases or statutes.
Please see attached document of complaint (page #3)

VII. GENERAL BACKGROUND INFORMATION:
A. State, in complete form, all names you have ever used or been known by including any and all aliases:
Raymond Cobb B. List all TDCJ-ID identification numbers you have ever been assigned and all other state or federal prison
or FBI numbers ever assigned to you, if know to you.
TDCJ # 1306425 / TDCJ DR # 999221

VIII. SANCTIONS:

A. Have you been sanctioned by any court as a result of any lawsuit you have filed? _ _ YES _lL NO

B. If your answer is "yes", give the following information for eve1y lawsuit in which sanctions were imposed. (If more than one, use another piece of paper and answer the same questions.) 1. Court that imposed sanctions (If federal, give district and division): _ _ _ _ _ _ _ _ _ _ __

2. Case Number: - - - - - - - - - - - - - - - - - - - - - -

3. Approximate date sanctions were imposed: - - - - - - - - - - - -

4. Have the sanctions been lifted or otherwise satisfied?

YES ___ NO

ATC 1983 (Rev. 04/06)

Page 4 of5

...A ,

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 5 of 12
C. Has any court ever warned or notified you that sanctions could be imposed? __ YES ~ NO
D. If your answer is "yes", give the following information for every lawsuit in which warning was imposed. (If more than one, use another piece ofpaper and answer the same questions.)

1. Court that imposed warning (if federal, give the district and division): - - - - - - - - - - -
2. Casenumber: ----------------------------------------3. Approximate date warning were imposed: - - - - - - - - - - - - - - -

Executed on: I I 151201 4
(Date)

RAYMOND COBB #1306425 (Printed Narne)
f~;:!o~ft)

PLAINTIFF'S DECLARATIONS
1. I declare under penalty of pe1jury all facts presented in this complaint and attachment thereto are true and conect.
2. I understand if I am released or transferred, it is my responsibility to keep the Court informed of my current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit.
4. I understand I am prohibited from bringing an in forma pauperis lawsuit if I have brought three or more civil actions in a Court ofthe United States while incarcerated or detained in any facility, which lawsuits are dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief may be granted, unless I am under imminent danger or serious physical injury.
5. I understand even if I am allowed to proceed without prepayment of costs, I am responsible for the entire $350 filing fee and costs assess by the Court, which shall be deducted in accordance with the law from the inmate account by my custodian until the filing fee is paid.

Signed this _ __.1__.:.-J1.:L'-'----- day of 1.---)a·nua!'[

(Day)

-{Month)

, _ 20lli, ___
(Year)

WARNING: The Plaintiff is hereby advised any false or deliberately misleading information provided in response to the following questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limbed to monetary sanctions and/or the dismissal of this action with prejudice.

ATC 1983 (Rev. 04i06)

Page 5 of5

. ,.

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 6 of 12

ATTACHMENT '10 COMPLAINT UNDER42 U.S.C.§ 1983
The aforementioned individuals are denying and restricting me the exercise of my religion (way of life). I am being denied consistant and meaningful
access to the practice of my religion, which is a violation of 42 u.s.c.
§ 1983 by virtue of the Defendants infringrnent of the Plaintiffs rights under the First Amendment to the United States Constitution; and violation
of 42 u.s.c. § 2000-cc~l,the Religious Land Use and Institutionalized persons
Act (RLUIPA) . William Stephens (Dir. of TDCJ-CID) is a policy maker and is responsible
to ensure that Plaintiffs religious requirements are met. Defendnat William Stephens has deliberately denied Plaintiff the right to : (1) Grow his long Hair; (2) wear his medicine bag at all times; (3) have traditional Pipe ceremonies as Plaintiff is a Native American Practitioner. William Stephens is and has enforced rules and regulations that restrict Plaintiffs from constitutionally protected rights to practice his religion (way of life) in the least restrictive means.
(1) TDCJ CID has a grooming standard that restricts Plaintiffs from growing his long hair. it is an established way of life that Native Americans grow their hair long and that the only time it is cut is during a time that Plaintiffs are mourning, in which could last up to one year.
TDCJ-CID A.D. 07.30 policy # 3.83 Grooming Standards state that they are supposed to be enforced with no exemption based on religious beliefs. They state that male offenders must keep their hair trimmed up the back of their neck and head. Hair must be neatly cut. Hair must be cut around the ears.
Also see TDCJ-CID Displainary Handbook Offense Code # 24.1 Refusing to comply with Grooming standards pg.# 22 Att. C-1. Also Offender Oreintation. handbook states that an offender in violation of the Grooming Standards are subject to disciplanary actions such as : loosing good time, line class, and possibly being placed into segregated confinement. This punishment can keep offender from going horne on parole because of disciplanary cases. Under RLUIPA this kind of punishment is what they do not allow. #(2) TDCJ-CID has denied Plaintiffs the right to wear his medicine bag at all times even though the Native American policy stated that outside the prison sett1.ng they are worn daily. There is no reason why 'rDCJ CID cannot allow them to be worn daily because policy says they can do a visual inspection at any time for security reasons to see if contrabnd is inside.
( 1)

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l •

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 7 of 12
(3) TDCJ-CID has allowed Prayer Pipe ceremonies in their prison setting from 1996 up to July 2012 and then took them away from the Native American Practitioners. These Pipe Ceremonies were allowed per TDCJ-CID policy 09.0109.04 of the A.D. 07.30 Chaplaincy Manual.Means TDCJ-CID cannot condone a communal pipe due to health reasons, then Plaintiff request his own personal prayer pipe a a least restrictive means under RLUIPA so he may practice his established traditional Pipe Ceremonies in which his tribe has been doing for the past (2) thousand years. TDCJ-CID does not allow any least restrictive means due to policies they enforce.
William Stephens is being sued in his official capacity for implementing policies that violate my constitutional rights under RLUIPA under least restrictive means.
Clint Morris is being sued in his individual capacity for First Amendment violation for failure to act according to his iob discription in which caused the violation of my Constitutional rights. Denying Plaintiffs the right to have traditional Pipe Ceremonies per TDCJ-CID policies in which were in effect at the time he was hired in 2009 to over see the Native American Units and make sure they had their required ceremonies before he played a personal role in changing the native American policy to which led to TDCJ stopping Pipe ceremonies. Originally the TDCJ offenders could smoke the sacred Pipe per policy. Now they are not afforded the opportnity to smoke the :pipe any more due to the New July policy in which is a violation of my constitutional rights because there is no least restrictive means available to me so I can pray traditionally. From the time period of Sept. 2008 up till July 2012 Plaintiff has not had his pipe ceremonies as was in effect until July 2012 when the new policy came into effect.
Plaintiff has shown Three(3) policies in which are in effect that violate his constitutional rights under RLUIPA under the least restrictive means, • 1, and how he is forcefully required to cut his hair against religious beliefs
and practices or be subiect to more critical punishment for not complying to TDCJ Grooming Policies. Plaintiffs requested relief is on page # (3)

(2)

• '

• #'

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 8 of 12

..

PLAINTIFFS' REQUESTED RELIEF

Plaintiff seeks a Declratory Judgment, and Injunctive relief against TDCJ-CID prison system to allow Plaintiff to have the following : (1) his long hair/ or a least restrictive means a Kouplock, (2) to be able to wear his mediciine bag at all times, (3) and to have his own personal prayer pipe to pray with as a least restrictive means TDCJ-CID cannot condone a communal pipe for inmates to smoke due to life threatning infectious diseases that they have exposed the intire Native American community to for the past 16 years. Under RLUIPA there has to be a least restrictive means and TDCJ has not shown one yet. TDCJ Contract Chaplains cannot release the inmates own personal prayer from the prayer pipe because they don't know each persons personal prayers. However the Contract Native American chaplains can say a prayer for you and release their prayer for you. This again is not allowing each inmate to say or release their own prayers because they have to become one with the sacred pipe and smoke it and release their very own prayers to the great spirit.

Plaintiff seeks monetary damages against Clint Morris in his individual capacity for violating my Constitutional right by personally playing a role in the new policy change in which now prohibits the Native Americans the right to personaaly smoke and release their own prayers. His own job discription was not complied with that he was hired to do and the very ommition to this non compliance to a policy that was in effect when he was hired to oversee the Native American community is also what caused the violation of my First Amendment rights.

Plaintiff seek not only the requested relief above , but also seeks court cost and other monies entitled to him as well.

( 3)

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 9 of 12

Texas Department of Criminal Justice

STEP2

OFFENDER

GRIEVANCE FORM

Offender Name: Raymond cobb

TDCJ# 1306425

Unit: w; ll jam G. McConoel1 Housing Assignment: 3 - B - 62 - TOP

Unitwhereincidentoccurred: William G. MCconnell Prison Unit

FICE USE ONL
.')6 I )t5.J'J.J,~

UGI Reed Date: OCT Z8 2013

3 HQRecdDatePCT 1 20l3

\ '\-~
Date Due: --i~~cb.P--~=-"""-----

J Grievance Code:

l' ~

ID#@ bQ Investigator

Extension D a t e : - - - - - - - -

You must attach the completed Step 1 Grievance that has been signed by the Warden for your Step 2 appeal to be accepted. You may not appeal to Step 2 with a Step 1 that hqs been returned unprocessed.
Oar Give reason for appeal (Be Specific). 1am dissatisfied with the response at Step 1 because... ~_71)J 3- I Raymond Cobb # 1 30642:, fj led a grievance agaj nst the chaplaincy Dept. fot= violating my First Z\mendment rights guarenteed to me by the United States Constitution The violations are as folJows· (1) deny1ng inmate the dght to have long hair as a grooming exemption or a Koup1ock as a least restrictive means to having my long hair as I am a Native American Practitioner : (2) to be able to wear my medicine bag at all times to keep me from evil sp1rits, negativity, sicknesses, as well as other things that would expose me to serious i JJ nesses that would in turn create a spiritual imbalance j n my walk in life down the RED ROAD(good road); (3)to have his own personal prayer pipe to pray with as a least restrictive
means hecanse TDC.J-CTD New Nat, ve American policy states that we cannot smoke the commnnal pipe anymore dne to severe infections diseases that conld be passed from smoking after one another. Contract Native American Cbapl ai n Cheri Bonse has stated nnder oath in CHANCE LITIGATION that she cannot release my (our) prayers put into the Prayer pipe, but that she can say a prayer on my (Onr) behalf and release that prayer TDC.J Contract Chap-lains cannot release inmates personal prayers to the great spirit to be heard because they do not knOlr.l each inmates prayers. TDCJ allows these Native American Contract Chaplains to do this knowing it is a mockery of our ancesters way of life and our traditional beliefs and practices. This New Native &lmeri can pi pepoli cy is not the least restri ctiue means and denies N'ltive llmerican inmates the very right to pray to the Great Spirit These are substantial burdens to my (our) religious beliefs and practices and I would like to have my own prayer pipe to pray with. as well as wear my medicine daily from snn np till snn down. and have my long hair or a Konplock so I may mon:cn the loaa of my loved onea 'olhen they paaa on t.o the apirit ,,,o:cld

I-128 Front (Revised 11-2010)

YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER) Appendix G

SEP 2 3 2013

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 10 of 12

....

Step(l) one grievanct t 2013152728 has not been returned to me and it is passed the allowed
aee.a.l.i.ne of your requested extention I wonld like my step(l) returned with a response or this will be considered my final remedy to exhaust as far as grievances is concerned. As far as a am concerned you have not resolved my three(3) issues stated in my step(l) and this is

Grievance Response:

Date: 08/31 2013

Your compliant has been received and investigated. The Chaplaincy department is not permitted to authorize exemptions to the grooming standards apart from agency approval. Agency b~~u'-J .-1-;.i;~~ .Jl.Ji!dG:.l \.~-J ~~!-\~ \'·t:.ll defi?~, -.~,:: ctnd tid t.C~ PLi"ltiit urty rtiigiou~ l..Xt:liiption. i~ .J t..c:--rectt-v~c action is warranted.

Signature Authority:

L. Richey

Date: J/·/J. ·13

Returned because:

remade.

D 1. Grievable time period has expired. D 2. Illegible/Incomprehensible.* D 3. Originals not submitted.* D 4. Inappropriate/Excessive attachments.*
D 5. Malicious use of vulgar, indecent, or physically threatening language. D 6. Inappropriate.*

OFFICE USE ONLY

Initial Submission

CGO Initials: _ __

DareUGIR~: -----------------------
Date COO _ R~: _________________

(check one) __Screened ___Improperly Submitted Comments: Date Returned to Offender:._______________

1!!11 Submission

CGO Initials:----

Date UGI R~: - - - - - - - - - - - - - - - Dare COO R~:._____________________

(check one) __Screened _ _Improperly Submitted Comments:

CGO Staff Signature: - - - - - - - - - - - - - - - - - - -

Date Returned to Offender:-----'----~­

~ Submission

CGO Initials:----

DareUGIR~: ____________________

Date COO R~: _____________.:....__ _

(check one) __Screened _ _Improperly Submitted Comments:

Date Returned to Offender:----~--'------

1-128 Back (Revised 11-2010)

Appendix G

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 11 of 12
Texas Department of Criminal Justice
STEPl OFFENDER GRIEVANCE FORM

Offender Name: _R..,.?A...W.. ill....-.-........c. rm~"'--------- TDCJ # J.3ai425

Unit: rvc:::~ll uut

Housing Assignment: __3=-6=--o#_u_;l_/-=----

Unit where incident occurred: _..:..;Wn:.:.;.•;;......::;G;;.;;.·....:I\tCI:nne~==l=l-----------

Investigator ID #: --....:.....::=---'-...IC....--
Extension Date: <(;; · f7 · i2
Date Retd to Offender: SEP 252013

You must try to resolve your problem with a staff member before you submit a formal complaint. The only exception is when

appealing the results of a disciplinary hearing. Who did you talk to (name, title)? Qaplain Packard

When? Qflm! 0 5/16/13

oo What was their response? I can't anythirq to over rid2 sea.:n:ity

What action was taken? ..:;t\bc:::.::thin:::!=.=.= - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

State your grievance in the space provided. Please state who, what, when, where and the disciplinary case number if appropriate
OJ 04/J 9/J 3 I tal kffl tq c;haql ai n 03ckard atn Jt tte TIX!J (hxmj rg Starx'larrls am to.z they uj alate] uy

Cbnst:itutiooaJ First ,llrrextreJt ric;jht to lnctjcp ny 1\Ativp ffiprjran traditicml lo!ay of 1ife(Rel iqiml It is~ of 1Iti tradjtjooaJ telief aril practire to he able to awe uy mjr locg am the rux;1 qrmnin1 StarxJards
wtJjbjt rre fmn mvj~ ny lmc; hajr am pJrticirr; ny faith.

Al.;n '!IXA! p;:chjbits up fran h=mirrJ traditicml pi[P cerarrnies wherp I can inhale the very es=eoce of the <;IDBt .;Qirit arxJ n;lrnsp W¥ !_Xayers teck to hjm thm"(lh the &30J2d (mota) smke It:P are mt afforQ=d the right to ffiPke the Pra~ Pj~ in '!IXA! arJ.WQre.
re Alro I am rpt alJ~ to Wffir llti rrsrljcire !:Bg every ffiy as I SJq1ld able to so I II8)1W pmte:tfil fypn
evil soirits ard otber siclsneBf'ft? that are e'W)'fl) to up. 'Ttpre is net sroJrjty roo:=m wy I stn1ld mt lp able to wear lUi rre;';icire J:m eveQt ~ if w;nriti can cb a visBl insrectim any tiup thej want to

'Itese are all violatjws of the Reli&4ims Iard Up ard Jmtitptjmaljzed Fersms oct (RIUIJ?A) arrJ also vio1atioos of my First krerrlrEpt dc;bts . I QE1 projfhe] when I at rrw OOjr am even wm I cl-n't mt ny hajr

I-127Front(Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM

(OVER) Appendix F

Case 2:14-cv-00022 Document 1 Filed on 01/21/14 in TXSD Page 12 of 12

•

..' "\ ...

Action Requested to resolve your Complaint.
tore able to have trajjtimal pire CFremnies aJain with ny Ooll pipe ard to~ able to Voss~; my Hefficirn lsaJ daily,

Date:

~ 05/16/13

Grievance Response:

Your complaint has been investigated. Religious beliefs and practices do not allow for TDCJ-ID policies and procedures to be circumvented. Nor does the Chaplaincy Department Supersede rules and regulation regarding the issues of grooming or smoking. No further action is warranted.

ML Grievance Officer staffing was a contributing factor iri this grievance being returned to you outside of the established processing time frame. Grievanpes are now being processed in a timely manner.

_Q-=- =c.· _Lf~ Vln"-.- -"- - ~:C0'?_ L_, . C'- "oZ_.," -"'-.L. _ -_:_ Signature Authority:

C. Monroe, Assistant Warden
_ _ _ _ _ _ _ _ _ _ _ _ __

If you are dissatisfied with the Step 1 response, you may submit a Step 2 (I-128) to the Unit Grievance Investigator within 15 days from the date of the Step 1 response.

State the reason for appeal on the Step 2 Form.

Returned because:

*Resubmit this form when the corrections are made.

0 I. Grievable time period has expired. 0 2. Submission in excess of I every 7 days. * 0 3. Originals not submitted. *
0 4. Inappropriate/Excessive attachments. * 0 5. No documented attempt at informal resolution. * 0 6. No requested relief is stated. * 0 7. Malicious use of vulgar, indecent, or physically threatening language. * 0 8. The issue presented is not grievable. 0 9. Redundant, Refer to grievance#_ _ _ _ _ _ _ _ _ _ _ _ __
0 10. Illegible/Incomprehensible. * 0 11. Inappropriate. *

OFFICE USE ONLY

Initial Submission

UGI Initials: _ _ __

Grievance#: Screening Criteria Used:---------Date Reed from Offender: _ _ _ _ _ _ _ _ __

Date Returned to Offender: - - - - - - - - -

lwlSubmission Grievance #:

UGI Initials:- - - -

Screening Criteria Used:---------Date Reed from Offender: _ _ _ _ _ _ _ _ __

Date Returned to Offender: _ _ _ _ _ _ _ __

UGI Printed Name/Signature:

J.lli.Submissioo

UGI Initials: _ _ __

Application of the screening criteria for this grievance is not expected to adversely Affect the offender's health.
Medical Signature Authority: ____________________

Grievance#:·-------------Screening Criteria Csed: - - - - - - - - - Date Reed from Offender: _ _ _ _ _ _ _ _ __ Date Returned to Offender: _ _ _ _ _ _ _ __

1-127 Back (Revised 11-2010)

Appendix F