Case 9:09-cv-00052-RC -JKG Document 159 Filed 03/29/12 Page 1 of 5 PageID #: 625

IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION


DAVID RASHEED ALI, Plaintiff,
v.
RICK THALER, DIRECTOR TDCJ-CID JUSTICE
Defendant.

)

)

)

)

Civil Action No. 9:09-cv-52

)

)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES

The United States files this Statement of Interest pursuant to 28 U.S.C. § 517 because this litigation implicates the proper interpretation and application of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”).1 RLUIPA protects the religious freedom of individuals confined to institutions by prohibiting practices that substantially burden religious exercise. The statute permits such practices only where they constitute the least restrictive means of furthering a compelling government interest. See 42 U.S.C. § 2000cc-1(a). Section 2(f) of RLUIPA confers authority upon the United States to bring suit to protect the religious rights of institutionalized persons, see 42 U.S.C. § 2000cc-2(f), including the right of prisoners to practice their religion by wearing facial hair. See, e.g., Garner v. Morales, 2009 U.S. App. LEXIS 4583, at *12 (5th Cir. Mar. 6, 2009) (wearing a quarter–inch beard “easily satisfy[ies]” RLUIPA’s “broad definition of religious exercise”). Accordingly, the United States has a strong interest in this litigation.

1 The United States acknowledges that the Defendant may need additional time to respond to this Statement of Interest, as the parties completed summary judgment briefing on March 14, 2012.

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The United States has a particular interest in this litigation because it involves issues virtually indistinguishable from those the United States just addressed in its amicus brief filed with the Fifth Circuit in the appeal of Garner v. Livingston, No. C-06-218 2011 WL 2038581 (S.D. Tex. May 19, 2011), in which the District Court for the Southern District of Texas found that Texas’s prohibition on quarter-inch beards violated RLUIPA.2 Here, the Texas Department of Criminal Justice (“TDCJ” or “Defendant”) likewise denied prisoner David Ali’s request to grow a half-inch beard, which Mr. Ali contends is a core aspect of his religious practice. Mr. Ali is an observant Muslim who believes he has a religious obligation to “embrace known Islamic customs and emulate the prophets,” including by wearing a half-inch beard. Ali’s Opp. to Def’s Mot. for Summ. J. (“Opp.”), Dkt. No. 154, at 2. TDCJ does not contest the sincerity of Mr. Ali’s beliefs or that the no-beard policy substantially burdens his religious exercise. Def’s Mot. for Summ. J. (“Def’s Mot.”), Dkt. No. 147, at 4. Thus, TDCJ’s no-beard policy contravenes RLUIPA unless the restriction furthers a compelling government interest and is the least restrictive means for furthering that interest. See 42 U.S.C. § 2000cc-2(b). The principal arguments TDCJ raises here in an attempt to satisfy this burden were found unpersuasive by the District Court in Garner, and the United States’ amicus brief urges the Fifth Circuit to likewise reject them.
Based on the undisputed facts in this litigation, the United States believes that TDCJ’s blanket prohibition on religious beards is not narrowly tailored to the generalized budgetary and security interests it asserts. As the Garner court recognized and the United States described more fully in its amicus brief, TDCJ already permits approximately 7,000 inmates to wear
2 The amicus brief filed by the United States in Garner (the “Garner Brief”) is attached here as Exhibit A.
2

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quarter-inch beards through its “clipper shave” program for inmates with certain skin conditions – a program that TDCJ operates consistently with the interests it asserts here. See Order at 4-6 and Garner Brief at 19-20. Further, the overwhelming majority of correctional facilities in the United States – including the Federal Bureau of Prisons (“BOP”) and 40 out of 50 state correctional systems – permit inmates to wear beards for religious reasons while managing interests identical to those of TDCJ. Nor do the minor financial consequences identified by TDCJ in this litigation justify imposing a substantial burden on religious practice, as RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden,” 42 U.S.C. 2000cc-3(c). TDCJ’s attempt to win summary judgment against Mr. Ali by recycling arguments rejected by the Garner court is simply unconvincing.
The United States further addressed many of the issues central to Mr. Ali’s litigation in a brief supporting a Sikh prisoner’s suit against California’s ban on beards longer than a quarter inch. See Brief Filed by the United States in Basra v. Cate, No. cv-11-01676 (C.D. Cal. May 23, 2011) (“Basra brief”), attached as Exhibit B. There, the United States relied in part upon expert affidavit by former BOP Assistant Director John Clark, who attested that facilitating inmates’ religious practices “is an essential part of good corrections management” and explained that BOP permits its 215,000 inmates to wear half–inch beards without compromising security or incurring significant costs. See Aff. of John Clark, attached as Exhibit C, at ¶¶ 7, 20-27. To settle that lawsuit, California agreed to repeal its beard length restrictions and allow all inmates to wear facial hair of “any length.” See 15 CCR § 3062(e).
The principles animating the Garner decision and Basra settlement apply with equal 
 force to Mr. Ali’s request to practice his religious faith by maintaining a half-inch beard. The 
 United States has a strong interest in ensuring that RLUIPA’s requirements are uniformly 

3

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understood and enforced. For that reason, and those explained in the attached briefing, the United States respectfully asks this Court to deny TDCJ’s motion for summary judgment.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section
Michael J. Songer T. Jack Morse Trial Attorneys United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-6255 michael.songer@usdoj.gov
4


Case 9:09-cv-00052-RC -JKG Document 159 Filed 03/29/12 Page 5 of 5 PageID #: 629

DATED: March 29, 2012

JOHN M. BALES UNITED STATES ATTORNEY
s/ Randi Russell RANDI RUSSELL Texas Bar No. 05531050 United States Attorney’s Office Eastern District of Texas 110 North College Ave, Suite 700 Tyler, TX 75702 Tel 903-590-1400 Fax 903-590-1436 randi.russell@usdoj.gov
Attorneys for the United States of America

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Statement of Interest of the United States has been served on Defendant, Rick Thaler, Director TDCJ-CID Justice, via the court's CM/ECF filing system, and Plaintiff, David Rasheed Ali at the address below on this the 29th day of March, 2012.
David Rasheed Ali 1077767 Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886

/s/ Randi Russell Randi Russell Assistant United States Attorney

5


Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 1 of 51 PageID #: 630

IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION


DAVID RASHEED ALI, Plaintiff,
v.
RICK THALER, DIRECTOR TDCJ-CID JUSTICE
Defendant.

)

)

)

)

Civil Action No. 9:09-cv-52

)

)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES

EXHIBIT A


Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 2 of 51 PageID #: 631
No. 11-40653

IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 ____________________
WILLIE LEE GARNER,
 also known as WILLI FREE I GAR’NER,

Plaintiff-Appellee
v.
EILEEN KENNEDY, in her official capacity as Director,
 Region IV, Texas Department of Criminal Justice, et al.,

Defendants-Appellants ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS ____________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
 SUPPORTING APPELLEE AND URGING AFFIRMANCE

____________________
THOMAS E. PEREZ Assistant Attorney General
MARK L. GROSS CHRISTOPHER C. WANG Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-9115

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TABLE OF CONTENTS
 PAGE
STATEMENT OF THE ISSUE.................................................................................1
 INTEREST OF THE UNITED STATES ..................................................................2
 STATEMENT OF THE CASE..................................................................................3

1. Factual Background ..............................................................................3
 2. Proceedings Below ................................................................................4
 SUMMARY OF ARGUMENT .................................................................................6
 ARGUMENT
 THE TDCJ’S BAN ON BEARDS VIOLATES RLUIPA 
 BECAUSE IT IS NOT THE LEAST RESTRICTIVE MEANS OF
 ADVANCING COMPELLING GOVERNMENTAL INTERESTS .............9
 CONCLUSION ........................................................................................................31
 CERTIFICATE OF SERVICE
 CERTIFICATE REGARDING PRIVACY REDACTIONS
 AND VIRUS SCANNING CERTIFICATE OF COMPLIANCE ADDENDUM

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TABLE OF AUTHORITIES


CASES:

PAGE

Ali v. Quarterman, 434 F. App’x 322 (5th Cir. 2011) (per curiam) (unpublished) ............................................................................17


Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) ...................10, 12


Baranowski v. Hart, 486 F.3d 112 (5th Cir.),
 cert. denied, 552 U.S. 1062 (2007)................................................................26


Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
 508 U.S. 520 (1993).......................................................................................15


Cinel v. Connick, 15 F.3d 1338 (5th Cir.),
 cert. denied, 513 U.S. 868 (1994)..................................................................22


Cutter v. Wilkinson, 544 U.S. 709 (2005) ........................................................passim


DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011)................................................ 16-17


Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997) ...........................................................16


Employment Div. v. Smith, 494 U.S. 872 (1990).....................................................10


Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) ......................................................24


Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008),
 cert. denied, 129 S. Ct. 1585 (2009)..............................................................24


Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir.),
 cert. denied, 528 U.S. 817 (1999)............................................................ 22-23


Freeman v. Texas Dep’t of Criminal Justice, 
 369 F.3d 854 (5th Cir. 2004) ...........................................................................9


Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009)
 (per curiam) (unpublished) ...................................................................... 16-17


-ii­


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CASES (continued):

PAGE

Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000)....................................................22


Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) ...........2


Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.),
 cert. denied, 519 U.S. 874 (1996)..................................................................11


Khatib v. County of Orange, 639 F.3d 898 (9th Cir. 2011) (en banc), 
 cert. denied, 132 S. Ct. 115 (2011)..................................................................2


Kuperman v. Wrenn, 645 F.3d 69 (1st Cir. 2011) ...................................................24


Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam)..............................16


Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) ........................................................23


Mayweathers v. Terhune, 328 F. Supp. 2d 1086 (E.D. Cal. 2004) .........................24


Murphy v. Missouri Dep’t of Corr., 372 F.3d 979 (8th Cir.),
 cert. denied, 543 U.S. 991 (2004)................................................ 11-12, 16, 26


Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) .........................................................2


Pugh v. Goord, 571 F. Supp. 2d 477 (S.D.N.Y. 2008) ...........................................10


S.E.C. v. Gann, 565 F.3d 932 (5th Cir. 2009) .........................................................19


Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008) .....................................................30


Sherbert v. Verner, 374 U.S. 398 (1963).................................................................10


Spratt v. Rhode Island Dep’t Of Corr., 482 F.3d 33 (1st Cir. 2007).......................25


Thunderhorse v. Pierce, No. 09-1353,
 cert. denied, 131 S. Ct. 896 (2011)..................................................................2


United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) ...................................11


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CASES (continued):

PAGE

United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011)........................................12


Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...................................passim


Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)......................................11, 15, 23


World Outreach Conference Ctr. v. City of Chicago, 
 591 F.3d 531 (7th Cir. 2009) .........................................................................10


STATUTES:

Religious Land Use and Institutionalized Persons Act (RLUIPA)
 42 U.S.C. 2000cc-1(a) (Section 3) ...................................................... 1, 5-6, 9
 42 U.S.C. 2000cc-2(b) ........................................................................... 7, 9-10
 42 U.S.C. 2000cc-2(f)......................................................................................2
 42 U.S.C. 2000cc-3(c) .............................................................................25, 30
 42 U.S.C. 2000cc-3(g) .............................................................................23, 30
 42 U.S.C. 2000cc-5(2) ...............................................................................7, 10


42 U.S.C. 1983...........................................................................................................4


REGULATIONS:

28 C.F.R. 551.2 ........................................................................................................20


Cal. Code Regs. tit. 15, § 3062(h) (2011), available at
 http://www.cdcr.ca.gov/Regulations/Adult_Operations/index.html .............20


Colo. Admin. Reg. 850-11(IV.A.3), available at
 http://www.doc.state.co.us/sites/default/files/ar/0850_11_0.pdf ..................20


N.H. Dep’t of Corr. Policy and Procedure Directive 7.17(IV.D), available at
 http://www.nh.gov/nhdoc/documents/7-17.pdf....................................... 20-21


Or. Admin. R. 291-123-0015(2)(a), available at
 http://arcweb.sos.state.or.us/pages/rules/oars_200/oar_291/291_123.h
 tml ..................................................................................................................20


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LEGISLATIVE HISTORY:

PAGE

146 Cong. Rec. 16,699 (2000)
 (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) .......13, 15, 18


S. Rep. No. 111, 103d Cong., 1st Sess. (1993)............................................13, 15, 18


RULES:

Fed. R. App. P. 29(a) .................................................................................................2


MISCELLANEOUS:

Black’s Law Dictionary 100 (7th ed. 1999) ............................................................14


Texas Department of Criminal Justice Offender Orientation Handbook,
 available at
 http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbo
 ok_English.pdf...........................................................................................3, 21


-v­


Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 8 of 51 PageID #: 637
IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 ____________________
No. 11-40653
WILLIE LEE GARNER, also known as WILLI FREE I GAR’NER,
Plaintiff-Appellee
v.
EILEEN KENNEDY, in her official capacity as Director, Region IV, Texas Department of Criminal Justice, et al.,
Defendants-Appellants ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE SOUTHERN DISTRICT OF TEXAS
 ____________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
 SUPPORTING APPELLEE AND URGING AFFIRMANCE

____________________
STATEMENT OF THE ISSUE
The United States will address the following issue:
Whether the Texas Department of Criminal Justice’s policy prohibiting
prison inmates from growing beards is the least restrictive means of advancing
compelling governmental interests under Section 3 of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc-1(a).

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INTEREST OF THE UNITED STATES This case concerns the interpretation of RLUIPA’s requirement that a State’s imposition of a substantial burden on the religious exercise of one of its prisoners must be the “least restrictive means” of furthering a compelling governmental interest. The Department of Justice is charged with enforcing RLUIPA, see 42 U.S.C. 2000cc-2(f), and is involved in several pending RLUIPA investigations and litigations that concern beard-length issues. The Department, therefore, has an interest in how courts construe the statute. At the request of the Supreme Court, the United States recently filed an amicus brief on petition for writ of certiorari in Thunderhorse v. Pierce, No. 09-1353, cert. denied, 131 S. Ct. 896 (2011), addressing a court of appeals’ application of the “least restrictive means” test in the prison context. The United States also has filed amicus briefs in appeals that addressed the interpretation of RLUIPA in the prison context more generally, and the interpretation of the “substantial burden” provision in the land-use context. See Khatib v. County of Orange, 639 F.3d 898 (9th Cir. 2011) (en banc) (prison), cert. denied, 132 S. Ct. 115 (2011), Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) (prison), and Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) (land use). The United States files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

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STATEMENT OF THE CASE 1. Factual Background

Plaintiff Willie Lee Garner is a prisoner in the custody of the Texas Department of Criminal Justice (TDCJ), assigned to the McConnell Unit in Beeville, Texas. SR 2230.1 The TDCJ’s grooming policy requires all male inmates to be clean shaven; it bars mustaches, beards, or hair under the lip. Texas Department of Criminal Justice Offender Orientation Handbook, at 10, available at http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.p df (last visited Dec. 23, 2011). Inmates with the objectively verifiable medical condition pseudofolliculitis barbae (razor bumps) are excepted from this prohibition. They may wear a beard of up to a quarter-inch in length. SR 2290­ 2291, 2293, 2366. These inmates are issued a “clipper-shave pass” to report to the prison barbershop regularly to trim their beard with electric clippers. SR 2281, 2292-2293. Approximately 7,000 inmates of the 155,000 inmates in the TDCJ possess clipper-shave passes. SR 2271, 2292.
Garner identifies himself as a Muslim and contends that his Islamic faith requires him to wear a beard. SR 2230-2231. Garner violated the TDCJ’s grooming policy by not shaving, and was disciplined several times as a result. SR
1 This brief uses the following abbreviations: “R ___” for the Record on Appeal; “SR ___” for the Supplemental Record on Appeal; and “Br. __” for defendants’ opening brief filed with this Court.

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2232, 2260. According to Garner, his punishment included loss of commissary and recreation privileges, solitary confinement, and negative treatment during the review of his parole application. SR 2232-2233. While Garner asserts that his religion prescribes a “fist-length” beard (closer to four inches than a quarter-inch), he insists only on the right to wear the same quarter-inch beard prisoners with pseudofolliculitis barbae may wear. SR 2235-2236, 2240-2241, 2243-2244. 2. Proceedings Below
In 2006, Garner filed a pro se complaint in the United States District Court for the Southern District of Texas pursuant to 42 U.S.C. 1983 and RLUIPA, alleging violations of his federal constitutional and statutory rights. R 12-53. In September 2007, the district court granted the prison summary judgment. R 724­ 726. On appeal, the Fifth Circuit affirmed the judgment with respect to Garner’s constitutional claims, but reversed and remanded Garner’s RLUIPA claims for trial. SR 40-49. On remand, counsel was appointed to represent Garner and the case was reassigned to a different district judge for trial. SR 50-52.
After holding a bench trial, the district court issued a memorandum opinion and order granting in part and denying in part Garner’s RLUPA claims.2 SR 2095­
2 Garner also contended that his faith required him to wear a head covering known as a Kufi, and that the TDCJ’s ban on wearing a Kufi while in transit from one location to another violated RLUIPA’s substantial burden provision. SR 2095­ 2096, 2234. The district court denied this claim. SR 2101-2102. Garner did not
(continued…)

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2103. Garner brought his claim pursuant to Section 3 of RLUIPA, which prohibits a State from imposing a “substantial burden” on a religious exercise of one of its prisoners unless the State demonstrates that the imposition of the burden furthers a compelling governmental interest, and does so by the least restrictive means. 42 U.S.C. 2000cc-1(a). The district court held (a) that it is undisputed that Garner’s wearing of a beard is a religious exercise, (b) that defendants did not challenge the contention that the TDCJ policies at issue impose a substantial burden on this religious exercise, and (c) that the State of Texas has compelling governmental interests in the safety and reasonably economical operations of its prison system. SR 2097-2098.
The district court then held that defendants failed to show that prohibiting all beards is the least restrictive means of satisfying its compelling interests. The district court stated that there is a lack of consensus among penologists as to whether allowing prisoners to grow beards has any significant relationship to the issue of safety. SR 2099. The district court then rejected defendants’ contention that the TDCJ’s ability to identify prisoners would be hindered by allowing the quarter-inch beard Garner sought to wear, holding that Muslim prisoners could be shown wearing beards in their identification photos. SR 2099-2100. Next, the
(…continued)
 cross-appeal this issue, and the United States takes no position on the merits of this 
 claim.


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-6 ­ district court dismissed defendants’ concern that a quarter-inch beard could be a hiding place for weapons or contraband. SR 2100. The district court also rejected defendants’ objection that a prisoner with a beard could change his appearance by shaving his beard, finding that a beardless prisoner could just as easily change his appearance by growing a beard. SR 2100. Finally, the district court rejected defendants’ economic justifications, finding that the evidence failed to show a significant cost increase for the TDCJ if Muslim inmates were allowed to grow short beards. SR 2100-2101.
SUMMARY OF ARGUMENT The TDCJ’s grooming policy violates RLUIPA. RLUIPA establishes that First Amendment protections of an individual’s exercise of his or her religious freedoms apply to inmates. Section 3 of RLUIPA, accordingly, prohibits state and local governments from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 2000cc-1(a). The TDCJ’s grooming policy bans all inmates, other than those with an objectively verifiable dermatological condition, from wearing beards, and punishes inmates who violate this prohibition with disciplinary sanctions. Defendants do not dispute that this ban imposed a substantial burden on Garner’s religious exercise.

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-7 ­ The burden thus shifted to defendants to show that their prohibition is the least restrictive means of advancing compelling governmental interests. See 42 U.S.C. 2000cc-2(b), 2000cc-5(2). To satisfy this burden, defendants must produce record evidence showing that their regulation is the least restrictive means of advancing compelling governmental interests, and that none of the proffered alternative schemes would be less restrictive while still satisfactorily advancing those interests. The pronouncements of Congress in enacting Section 3 and the Supreme Court in interpreting Section 3 establish that in order to be the least restrictive means of advancing compelling governmental interests, a prison policy that substantially burdens religious exercise must be well founded in protecting prison security, inmate health, or a similarly compelling penological interest. The district court correctly held that defendants failed to satisfy their burden. With regard to protecting prison security, the record does not support defendants’ contention that the TDCJ’s ban on beards is the least restrictive means of advancing that compelling governmental interest. The record lacks any documentation of security problems that trim beards would cause, and includes evidence that many prisons in other States, and the Federal Bureau of Prisons, allow trim beards similar to the one Garner is seeking. Defendants provide no valid reason why a religious exemption for trim beards threatens the TDCJ’s interest in inmate identification while a medical exemption does not, and provide

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-8 ­ no sound basis for their assertion that an inmate will be able to alter his appearance significantly by shaving a quarter-inch beard.
Defendants’ economic arguments also do not satisfy this standard. The record lacks any study on how feasible and costly it would be to accommodate a religious exemption for a quarter-inch beard; rather, the evidence indicates that accommodating a religious exemption will impose only the possible marginal costs of expanding the barbering services to accommodate Muslims and of taking new photographs for identification cards. Defendants’ contention that the religious exemption is distinguishable because Muslim inmates like Garner will require more frequent trips to the barbershop to maintain a beard of exactly one-quarter­ inch finds no support in the record. Rather, Garner has consistently requested the same treatment afforded to inmates with the medical exemption. No more persuasive is defendants’ assertion that allowing a religious exemption will lead to “opportunistic conversion” and excessive costs for the TDCJ. The Supreme Court has empowered a prison to question the sincerity of an inmate’s faith, thereby lowering the rate of opportunistic conversions. Even assuming, arguendo, that a religious exemption from the no-beard policy leads to a significant number of legitimate inmate requests for the right to wear a quarter-inch beard, defendants’ claim fails because they have not shown that the costs will be so excessive as to

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prevent the State from achieving other compelling interests such as security or inmate health.
ARGUMENT THE TDCJ’S BAN ON BEARDS VIOLATES RLUIPA BECAUSE IT IS NOT THE LEAST RESTRICTIVE MEANS OF ADVANCING COMPELLING GOVERNMENTAL INTERESTS Section 3 of RLUIPA prohibits state and local governments from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. 2000cc-1(a). Section 3 thus “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). This Court has recognized that this substantial burden “standard poses a far greater challenge than does [traditional free exercise analysis] to prison regulations that impinge on inmates’ free exercise of religion.” Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 858 n.1 (5th Cir. 2004). 1. Under RLUIPA, Garner bore the initial burden to show that the TDCJ’s policy prohibiting him from wearing a quarter-inch beard substantially burdens his religious exercise. See 42 U.S.C. 2000cc-2(b). Defendants do not dispute (Br. 15)

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- 10 ­
that Garner satisfied this burden. Accordingly, the burden of proof shifted to the prison to show that its policy not only furthers a compelling governmental interest, but does so by the least restrictive means. See 42 U.S.C. 2000cc-2(b), 2000cc­ 5(2).
Defendants assert (Br. 15) that the TDCJ’s grooming policy furthers compelling governmental interests. The district court found that the State of Texas has compelling governmental interests in the safety and reasonably economical operations of its prison system, and this finding is not being challenged on appeal.
2. In this case, defendants failed to show that their compelling governmental interests are furthered in the least restrictive means. See 42 U.S.C. 2000cc-2(b), 2000cc-5(2). While RLUIPA does not define the phrase “least restrictive means,” other First Amendment case law provides a definition. Under the compelling interest standard,3 the prison here must “demonstrate that no alternative forms of regulation would [accomplish the governmental interest] without infringing First Amendment rights.” Sherbert v. Verner, 374 U.S. 398, 407 (1963); see also Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004) (least
3 Several courts have observed that in RLUIPA, Congress sought to restore the compelling interest standard that the Supreme Court set forth in Sherbert v. Verner, 374 U.S. 398 (1963), but later abandoned in Employment Division v. Smith, 494 U.S. 872 (1990). See, e.g., World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 534 (7th Cir. 2009); Pugh v. Goord, 571 F. Supp. 2d 477, 504 n.11 (S.D.N.Y. 2008).

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- 11 ­ restrictive means test in free speech context requires court to compare challenged regulation to available, effective alternatives); United States v. Hardman, 297 F.3d 1116, 1145 (10th Cir. 2002) (Hartz, J., concurring) (“‘[L]east restrictive means,’ as one would naturally interpret the phrase, signifies that the imposition by the government on religious worship must be the minimal imposition to accomplish the government’s compelling ends.”).
This standard does not require prison officials to refute “every conceivable option in order to satisfy the least restrictive means prong of” RLUIPA. Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir.) (interpreting least restrictive means prong of RLUIPA’s predecessor, the Religious Freedom Restoration Act), cert. denied, 519 U.S. 874 (1996). Instead, where there is evidence that less restrictive alternatives exist, the prison officials must at least show that they have “actually considered and rejected the efficacy of” those alternatives for good reason. Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see, e.g., Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007) (prison “must consider and reject other means before it can conclude that the policy chosen is the least restrictive means”); Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th Cir.) (remanding for further proceedings where it was “not clear that [the defendant] seriously considered any other alternatives, nor were any explored before the district court”), cert. denied, 543 U.S. 991 (2004).

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- 12 ­ In determining whether prison officials have satisfied their burden, a court “ha[s] an obligation to ensure that the record supports the conclusion that the government’s chosen method of regulation is least restrictive and that none of the proffered alternative schemes would be less restrictive while still satisfactorily advancing the compelling governmental interests.” United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011) (interpreting RFRA); see also Ashcroft, 542 U.S. at 669 (“The Government’s burden is not merely to show that a proposed less restrictive alternative has some flaws; its burden is to show that it is less effective.”). In rejecting alternatives, prison officials must rely on sound evidence, and not assumptions and stereotypes. The government’s record evidence must consist of more than conclusory statements that a prison policy is the least restrictive means to further compelling governmental interests. See Warsoldier, 418 F.3d at 998-999; Murphy, 372 F.3d at 988-989. A prison’s claim that a specific restriction on religious exercise is the least restrictive means of advancing compelling governmental interests is significantly undermined by evidence that many other prisons, with the same compelling interests, allow the practice at issue. See Warsoldier, 418 F.3d at 1000 (“[T]he failure of a defendant to explain why another institution with the same compelling interests was able to accommodate the same religious practices may constitute a failure to establish that the defendant was using the least restrictive means.”).

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- 13 ­ 3. RLUIPA’s legislative history, and the Supreme Court’s decision in Cutter, provide guidance on how courts should test the State’s policy and evidence while avoiding judicial micro-management of state prisons. After stating that courts applying Section 3 should defer appropriately to the policies prison officials institute to maintain order and security, the joint statement of the lawmakers sponsoring RLUIPA also recognized that “inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or posthoc rationalizations will not suffice to meet [RLUIPA’s] requirements.” 146 Cong. Rec. 16,699 (2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 10 (1993)). Along these lines, the Supreme Court in Cutter observed that Congress enacted Section 3 to eliminate “‘frivolous or arbitrary’ barriers [that] impeded institutionalized persons’ religious exercise,” such as state prisons that served Kosher food to Jewish inmates but refused to serve Halal food to Muslim inmates; prisons that refused to provide sack lunches to Jewish inmates to allow them to break fasts after nightfall; and prisons that refused to allow Chanukah candles while allowing smoking and votive candles. Cutter, 544 U.S. at 716 & 717 n.5. The Court then stated that Congress addressed these types of unnecessary barriers to religious exercise by instituting the “compelling governmental interest” and “least restrictive means” standards into prison life. Id. at 717 (citation omitted).

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- 14 ­ The pronouncements of Congress and the Supreme Court regarding Section 3 suggest the following guiding principles for a court to follow in determining whether a prison policy that imposes a substantial burden on religious exercise is the least restrictive means to further compelling governmental interests. First, in accordance with Cutter, a prison policy cannot be arbitrary, which is defined generally as “[d]epending on individual discretion” or “founded on prejudice or preference rather than on reason or fact.” Black’s Law Dictionary 100 (7th ed. 1999). This requirement prohibits a prison from allowing one activity and disallowing another if both would have the same effect, or lack of effect, on the State’s compelling interests. In Warsoldier, for example, the Ninth Circuit held that the California Department of Corrections’ (CDC) hair-length restriction was not the least restrictive means of achieving compelling governmental interests in inmate health and prison security in part because the restriction applied only to male inmates, while the CDC’s interests in inmate health and prison security obviously applied equally to offenders of both genders. 418 F.3d at 1000. Along similar lines, in Washington the Third Circuit held that the Pennsylvania Department of Corrections’ policy limiting a prisoner to 10 books in his cell “arbitrarily limit[ed]” the property an inmate may possess, and was not the least restrictive means of achieving the prison’s valid interests in safety and health because it allowed that inmate to keep four storage boxes of personal property and

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- 15 ­ allowed more than 10 books if the books were approved for educational purposes. 497 F.3d at 285. This analysis clearly applies to prison policies that distinguish between secular and religious activities that have the same effect on a prison’s compelling governmental interests. As stated in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993), “government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief.”
Second, as Cutter held, the State must have a sound and supported basis to believe that its policy prohibiting an inmate from engaging in a particular religious practice is the least restrictive means to further compelling governmental interests. A prison may not ground the policy, as RLUIPA’s legislative history establishes, on “mere speculation, exaggerated fears, or post-hoc rationalizations.” 146 Cong. Rec. at 16,699 (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 10 (1993)). In Warsoldier, the CDC justified not applying its hair-length restrictions to female inmates on the ground that they are “much less likely” than their male counterparts to commit violent crimes, as demonstrated by data on assault rates in prison broken down by gender. 418 F.3d at 1000. The Ninth Circuit rejected this justification, holding that the small difference in assault rates “hardly suggest[ed]” that female inmates were much less likely to commit assault than male inmates, and that the data were

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- 16 ­
unclear whether it was limited to minimum security facilities like the one housing the plaintiff. Id. at 1000-1001. Evidence suggesting a religious restriction must be more precise. In Murphy, the Eighth Circuit held that “[t]he threat of racial violence is of course a valid security concern, but to satisfy RLUIPA’s higher standard of review, prison authorities must provide some basis for their concern that racial violence will result from any accommodation of [the inmate’s] request.” 372 F.3d at 989. The court deemed testimony that the inmate was racist and that his religion allowed only white inmates to participate in group worship insufficient to meet the government’s burden of showing that its limitation of the inmate to solitary practice of his religion in his cell was the least restrictive means of preventing racial violence. Ibid.
4. Defendants argue (Br. 16-18) that in rendering its decision, the district court should have acknowledged this Court’s decisions in DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011) (per curiam) and Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009) (per curiam) (unpublished), both of which addressed the quarter-inch beard issue. The district court’s omission was not error.4 In both cases, which
4 Defendants also cite (Br. 16, 18) as persuasive authority this Court’s decisions in Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam), and Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). These two cases involved challenges to the TDCJ’s ban on long hair based upon RLUIPA or its predecessor, the Religious Freedom Restoration Act of 1993. The cases are readily distinguishable
(continued…)

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- 17 ­ were litigated by pro se plaintiffs at trial and on appeal, this Court affirmed as not clearly erroneous a district court’s finding that the TDCJ’s policy prohibiting beards did not violate RLUIPA’s substantial burden provision because it was the least restrictive means of advancing the State’s compelling interests in prison security and controlling costs. DeMoss, 636 F.3d at 154-155; Gooden, 353 F. App’x at 888-890 & n.4. These holdings did not establish that such RLUIPA challenges fail as a matter of law; a subsequent decision of this Court vacated a district court’s dismissal of a prisoner’s suit alleging that this grooming policy imposed a substantial burden on his religious exercise, and remanded the case for consideration of the prisoner’s suggested alternatives. See Ali v. Quarterman, 434 F. App’x 322, 325-326 (5th Cir. 2011) (per curiam) (unpublished); see also Gooden, 353 F. App’x at 888-889 & n.3 (affirming district court’s holding that the grooming policy was the least restrictive means of achieving the State’s compelling interest in prison security, but stating, “we make no broad holding that the grooming policy, as it applies to quarter-inch beards, will always be upheld”). Accordingly, DeMoss and Gooden do not control this case, where the district court found for the plaintiff inmate.
(…continued)
 because long hair raises security concerns wholly different from security concerns 
 due to quarter-inch beards.


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- 18 ­ 5. Applying the aforementioned principles to this case demonstrates that the district court did not err in holding that barring Garner from wearing a quarter-inch beard is not the least restrictive means of furthering the State’s compelling interests in effective prison security. The evidence in the record does not support defendants’ contention that the TDCJ’s ban on beards is the least restrictive means of advancing compelling governmental interests; rather, it supports Garner’s contention that a religious exemption for a quarter-inch beard would be less restrictive while still satisfactorily advancing the compelling governmental interests. This finding is supported, in part, by the TDCJ’s grooming policy, which establishes an arbitrary distinction between inmates who are allowed to wear a quarter-inch beard for medical reasons and those who are not allowed to wear the same beard for religious reasons. The TDCJ’s ban on a quarter-inch beard Garner asks to wear for religious reasons is based upon “mere speculation, exaggerated fears, or post-hoc rationalizations.” 146 Cong. Rec. at 16,699 (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 10 (1993)). First, the record evidence does not support defendants’ policy. Defendants introduced no studies or reports showing that the TDCJ’s ban on beards is the least restrictive means of advancing compelling governmental interests. William Stephens, the TDCJ Correctional Institutions Division deputy director of prison

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- 19 ­ and jail operations, testified that he recommended to TDCJ officials, based upon his personal experience and discussions with other prison systems, that the TDCJ keep its no-beard policy to further its interests in security. SR 2257, 2283-2285, 2362-2364. Stephens acknowledged, however, that he is not aware of any studies or reports indicating that prison systems that allow inmates to wear short beards have experienced increased security problems as a result. SR 2282-2283. Both Stephens and John Moriarty, the TDCJ Inspector General, raised the possibility of an inmate shaving his short beard to create identification problems, but admitted they lacked knowledge of any incidents in the TDCJ, or even in other prison systems, in which an inmate shaved his beard or made any non-clothing-related changes of appearance to hinder identification. SR 2271, 2283-2284, 2381, 2392­ 2393, 2396. In light of the lack of documentation of security problems that trim beards would cause, the district court acted well within its discretion in finding that defendants’ evidence did not adequately support the TDCJ’s policy. See S.E.C. v. Gann, 565 F.3d 932, 939 (5th Cir. 2009).
The record evidence showed instead that Garner’s proposed religious exemption for a quarter-inch beard would be less restrictive than a total ban, while still protecting compelling governmental interests. The Federal Bureau of Prisons, and more than 40 out of the 50 States, allow their inmates to wear trim beards similar to the one Garner is requesting either as a matter of course or pursuant to a

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- 20 ­
religious exemption. See, e.g., 28 C.F.R. 551.2 (“An inmate [in the federal prison system] may wear a mustache or beard or both.”); Cal. Code Regs. tit. 15, § 3062(h) (2011) (permitting facial hair for male inmates that is no longer than onehalf inch),5 available at http://www.cdcr.ca.gov/Regulations/Adult_Operations/index.html (follow “DEPARTMENT RULES” hyperlink) (last visited Dec. 23, 2011); Colo. Admin. Reg. 850-11(IV.A.3) (allowing inmates “freedom in personal grooming,” including beards that “are kept neat and clean”), available at http://www.doc.state.co.us/sites/default/files/ar/0850_11_0.pdf (last visited Dec. 23, 2011); Or. Admin. R. 291-123-0015(2)(a) (requiring only that “facial hair * * * be maintained daily in a clean and neat manner”), available at http://arcweb.sos.state.or.us/pages/rules/oars_200/oar_291/291_123.html (last visited Dec. 23, 2011); N.H. Dep’t of Corr. Policy and Procedure Directive 7.17(IV.D) (providing shaving waiver allowing quarter-inch beard for “[i]nmates declaring membership in recognized faith groups, and demonstrating a sincerely held religious belief in which the growing of facial hair is of religious significance”), available at http://www.nh.gov/nhdoc/documents/7-17.pdf (last
5 California is in the process of amending section 3062(h) to allow facial hair of any length, consistent with the Federal Bureau of Prison’s policy. See Settlement Agreement, Basra v. Cate, No. CV11-01676 SVW (C.D. Cal. June 5, 2011) (attached as an addendum to this brief).

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- 21 ­ visited Dec. 23, 2011). Stephens conceded that the experience of prisons that allow facial hair is relevant to the issue of whether the TDCJ could adopt a religious exemption without compromising security or identification. SR 2281. Because institutions from other jurisdictions have the same compelling interest in prison security as the TDCJ, their allowance of beards firmly supports Garner’s position that the TDCJ’s grooming policy is not the least restrictive means of advancing this interest. See Warsoldier, 418 F.3d at 998-1001.
In addition, the TDCJ’s grooming policy imposes no similar limitations on inmates’ hairstyles, providing further evidence that a ban on beards is not the least restrictive means of furthering the compelling governmental interest in prison security. The TDCJ allows inmates to shave their heads, which both Stephens and his supervisor, TDCJ Correctional Institutions Division Director Richard Thaler, acknowledged interferes with identification at least as much as the possibility of an inmate shaving a quarter-inch beard. SR 2275-2276, 2465-2466. The grooming policy further provides that “[m]ale offenders must keep their hair trimmed up the back of their neck and head,” that “[h]air must be neatly cut,” and that “[h]air must be cut around the ears.” Texas Department of Criminal Justice Offender Orientation Handbook, at 10, available at http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_English.p df (last visited Dec. 23, 2011). Defendants provided no evidence that trim one­

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- 22 ­
quarter-inch beards provide any greater impediment to identification than trim
haircuts. In fact, because hair need only be neat and trim under the grooming
policy, Stephens acknowledged that inmates may grow hair to such an extent that,
unlike a quarter-inch beard, it completely hides the contours of the head. SR 2277.
The security concerns defendants raise in their opening brief do not justify
the TDCJ’s grooming policy. First, the TDCJ’s grooming policy allows inmates
with pseudofolliculitis barbae to wear a quarter-inch beard for medical reasons.
Defendants’ ostensible concern (Br. 24) that a beard will hinder identification of
inmates within the prison is just as applicable to the inmates they allow to wear
beards for medical reasons as to inmates who would do so for legitimate religious reasons.6 As the district court observed (SR 2099-2100), defendants suggested no
reason why Muslim inmates could not be shown wearing beards in their
identification photos as well. Cf. Fraternal Order of Police v. City of Newark, 170
F.3d 359, 366-367 (3d Cir.) (under standard of heightened scrutiny, police
department violated free exercise clause of First Amendment when it refused
6 In their opening brief, defendants appear to have abandoned the security argument pressed below that a quarter-inch beard will allow inmates to hide weapons or contraband. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.) (appellant abandons issues not raised and argued in initial brief on appeal), cert. denied, 513 U.S. 868 (1994). This Court has observed that “contraband or weapons could hardly be hidden in a beard of such a short length.” Green v. Polunsky, 229 F.3d 486, 490 (5th Cir. 2000). Indeed, Stephens conceded this point at trial. SR 2270.

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- 23 ­ religious exemptions from its prohibition against officers wearing beards, while allowing medical exemptions from same prohibition), cert. denied, 528 U.S. 817 (1999).
Defendants concede (Br. 25) there is no reason why a religious exemption threatens their interest in inmate identification but a medical exemption does not. See Washington, 497 F.3d at 285; Warsoldier, 418 F.3d at 1000. They distinguish (Br. 25) the medical exemption on the ground that issuing a clipper-shave pass to an inmate with pseudofolliculitis barbae advances other compelling governmental interests – avoiding inmate infections and minimizing the accompanying costs of medical treatment. These interests hardly justify the distinction defendants draw, however, as RLUIPA establishes that protection of religious exercise is a compelling governmental interest as well. See 42 U.S.C. 2000cc-3(g) (“This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”); Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006) (“Congress * * * intended to provide as much protection as possible to prisoners’ religious rights without overly encumbering prison operations.”) (internal quotation marks omitted).
Defendants’ argument (Br. 24-25) that an inmate could shave his beard to change his appearance within the prison or in order to escape is also baseless, even with appropriate judicial deference to prison officials. As noted above, TDCJ

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- 24 ­ officials could not name a single incident in which an inmate shaved his beard, or made any non-clothing-related changes of appearance, to hinder identification. See p. 19, supra. Indeed, several federal courts have observed the contrary; they held that shaving a beard of a quarter-inch length, or even one slightly longer, does not provide an escaped inmate with a sufficiently changed appearance to avoid capture. See Fegans v. Norris, 537 F.3d 897, 907 (8th Cir. 2008) (“An uncut beard creates a better disguise for an escapee than a quarter-inch beard, because it conceals the contours of an inmate’s face.”); Mayweathers v. Terhune, 328 F. Supp. 2d 1086, 1095 (E.D. Cal. 2004) (shaving a half-inch beard is unlikely to assist an escapee in eluding capture); cf. Kuperman v. Wrenn, 645 F.3d 69, 74-75 (1st Cir. 2011) (prison officials submitted an affidavit stating that grooming policy limiting inmates to quarter-inch beard prevents escaped inmate from quickly changing appearance). Accordingly, this justification is based upon “mere speculation” or “exaggerated fears.”
Finally, defendants’ contention (Br. 26 (citing Fowler v. Crawford, 534 F.3d 931, 941 (8th Cir. 2008), cert. denied, 129 S. Ct. 1585 (2009))) that “evidence of policies at one prison is not conclusive proof that the same policies would work at another institution” fails to undermine the record evidence. Defendants do not point to any evidence showing that Texas prisons are any different from those in States that allow beards. Of particular relevance are the Federal Bureau of Prisons

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- 25 ­ and the State of California, which are comparable to Texas in size and for years have permitted their inmates to grow beards even longer than the one Garner is requesting. The Federal Bureau of Prisons “has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners,” Cutter, 544 U.S. at 725 (quoting Brief for the United States at 24, No. 03-9877), suggesting that beards likewise would not compromise security in the TDCJ; defendants present no argument in their brief of significant differences between the two prison systems that would make the allowance of beards unworkable in Texas. Cf. Spratt v. Rhode Island Dep’t Of Corr., 482 F.3d 33, 42 (1st Cir. 2007) (Federal Bureau of Prisons policy allowing inmate preaching suggests such activity would not compromise prison security absent explanation by prison officials of significant differences between state unit and a federal prison that would render the federal policy unworkable).
Neither do defendants’ economic concerns justify the TDCJ’s grooming policy. RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden,” 42 U.S.C. 2000cc-3(c). Therefore, the prison must show that the additional cost of accommodating Garner’s religious exercise is so excessive that it prevents the State from achieving other compelling interests such as security or inmate health. See Baranowski v.

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- 26 ­ Hart, 486 F.3d 112, 125-126 (5th Cir.), cert. denied, 552 U.S. 1062 (2007); cf. Cutter, 544 U.S. at 726 (“Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition.”).
Based upon the record here, the district court correctly held that defendants failed to prove that their ban on beards is in any way necessary to satisfy their interest in effective prison security. The TDCJ has not offered any evidence on the adverse effect that allowing beards would have on security or inmate health. Instead, Stephens acknowledged that the TDCJ has not conducted a specific study on how feasible and costly it would to accommodate a religious exemption for a quarter-inch beard, and that he does not know of any significant cost problems beards cause for the prison systems that allow them. SR 2287-2289. Stephens’ testimony that he “know[s] one guy that’s really worried [about costs], and that’s [himself]” (SR 2289) and that barbershop equipment “would get used significantly more” if a religious exemption were allowed (SR 2368), contains precisely the type of conclusory statements that are insufficient to meet the government’s burden of proof. See Warsoldier, 418 F.3d at 998-999; Murphy, 372 F.3d at 988-989.
The uncontroverted record evidence further establishes that the costs of a religious exemption would not be excessive. The McConnell Unit already has

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- 27 ­ barbering services for inmates allowed to wear beards by virtue of their medical condition, and some of the expense of taking new photographs for prisoner identification cards would be covered by fees paid by the prisoners themselves. SR 2280, 2287. The record evidence further provides that the TDCJ Muslim population is approximately 7,100 inmates, which is about the same number of inmates who currently have clipper-shave passes. SR 2292, 2432. Even assuming, arguendo, that granting Garner the right to wear a quarter-inch beard will lead to a significant percentage of Muslim inmates requesting the same, accommodating this wish will impose upon the TDCJ only the possible marginal costs of expanding the barbering services to accommodate Muslims and of taking new photographs for identification cards, hardly a significant increase in costs.
On appeal, defendants argue (Br. 19-21) that granting Garner’s request to wear a beard will significantly increase costs associated with allowing beards because (1) Muslim inmates must maintain a beard of a quarter-inch in length, thus requiring more barbershop visits than inmates with pseudofolliculitis barbae, who receive a beard trimming approximating a clean shave; and (2) inmates will proclaim membership in religious groups that receive an exception from the nobeard policy, and the size of this group – unlike the group of inmates with a dermatological condition – is not constrained by objective criteria. These arguments either fail to provide a rational distinction between the medical and

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- 28 ­ religious exemptions or lack a sound basis. They therefore do not establish a ban on beards as the least restrictive means of advancing the TDCJ’s compelling interests in effective and economical prison security.
The record evidence does not bear out defendants’ first concern. Defendants base this argument upon Garner’s statement on cross-examination that his faith does not allow him to be clean shaven. SR 2243. In light of Garner’s understanding that the medical exemption requires an inmate’s beard to be trimmed but does not leave him clean shaven (SR 2242-2243), Garner’s response is at best ambiguous as to whether he objects to the clean shave of a razor or the approximation of a clean shave afforded by a clipper. His response is clarified by his subsequent testimony that the TDCJ “said they would have no problem with the medical exempt with wearing a quarter-of-an-inch beard. So, if I am allowed to wear a beard, that’s – that’s what I seek to wear, a quarter of an inch.” SR 2243. This statement indicates, as the district court concluded, that Garner is seeking relief no greater than the medical exception from the no-beard policy the TDCJ provides for inmates with pseudofolliculitis barbae.7 See also SR 530, 2050 (stating in district court pleadings that the TDCJ failed to consider “changing its grooming policy to permit all inmates to wear a closely trimmed beard, with a
7 The United States takes no position on the application of RLUIPA to other circumstances.

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- 29 ­ requirement that each inmate report for a clipper shave and haircut on a regular schedule similar to the schedules currently followed for inmate haircuts”). Defendants thus are mistaken in their belief that inmates with a religious exception from the no-beard policy will require more frequent trips to the prison barbershop.
Defendants’ second concern – that other inmates will opportunistically convert to a religion that has a faith exception from the no-beard policy, leading to excessive costs for the TDCJ – is equally unavailing. Defendants cite (Br. 21) the TDCJ’s prior experience of opportunistic conversion when it extended accommodations to inmates to eat a pork-free diet and participate in peace pipe ceremonies, and inmates’ ongoing requests for religious exemptions from the grooming policy. Defendants assert, therefore, that “there is good reason to suspect that many inmates would express a faith preference – whether Muslim or otherwise – in an attempt to secure an exception from the grooming code.” Br. 21. Contrary to defendants’ apparent belief that they must unquestioningly accept an inmate’s profession of faith, Cutter empowers them to challenge the sincerity of an inmate’s religious beliefs, thereby reducing the rate of opportunistic conversion. See Cutter, 544 U.S. at 725 n.13. This option does not disappear merely because defendants choose not to exercise it.
Even assuming, arguendo, that a religious exemption from the no-beard policy leads to a significant number of legitimate inmate requests for the right to

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- 30 ­
wear a quarter-inch beard, defendants’ claim fails because they have not shown
that the requests, or costs, will be so excessive that they will prevent the State from
achieving other compelling interests such as security or inmate health. See pp. 26­
27, supra. The McConnell Unit already contains a barbershop that trims the beards
of inmates with pseudofolliculitis barbae. Defendants cannot legitimately deny a
religious accommodation based solely on the possibility that the additional
marginal costs to the prison of the accommodation will be overwhelming. Such an
interpretation of RLUIPA’s substantial burden provision contravenes RLUIPA’s
mandate that a prison may have to “incur expenses in its own operations to avoid
imposing a substantial burden,” and that RLUIPA be interpreted “in favor of a
broad protection of religious exercise.” 42 U.S.C. 2000cc-3(c), 2000cc-3(g). Accordingly, speculative assertion of increased costs is unavailing.8 Cf. Shakur v.
Schriro, 514 F.3d 878, 887-890 (9th Cir. 2008) (dismissing prison’s assertion of
8 Defendants also argue (Br. 22-23) that a religious exemption to the nobeard policy will create administrative burdens in the form of enforcing the quarter-inch limit and coordinating the movements of more inmates through the barbershop. For the reasons set forth above, this argument is unavailing. The burden of enforcing the quarter-inch limit is as applicable to inmates with a medical exemption from the grooming policy as it would be to inmates with a religious exemption. See pp. 22-23, supra. And defendants fail to quantify the burden of moving additional inmates through the barbershop, much less show that it is so excessive that it would prevent the State from achieving its compelling budgetary interests. See pp. 26-27, 29-31, supra.

Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 38 of 51 PageID #: 667
- 31 ­
annual cost to provide Halal or Kosher meals to Muslim inmates, which was not
based upon personal knowledge).
CONCLUSION
This Court should affirm the district court’s ruling that the TDCJ’s ban on
beards violates RLUIPA’s substantial burden provision.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General
s/ Christopher C. Wang MARK L. GROSS CHRISTOPHER C. WANG Attorneys
Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-9115

Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 39 of 51 PageID #: 668
CERTIFICATE OF SERVICE I hereby certify that on December 27, 2011, I electronically filed the foregoing Brief for the United States as Amicus Curiae Supporting Appellee and Urging Affirmance with the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system. All participants in this case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 40 of 51 PageID #: 669
CERTIFICATE REGARDING PRIVACY REDACTIONS
 AND VIRUS SCANNING

I certify (1) that all required privacy redactions have been made in this brief, in compliance with 5th Cir. Rule 25.2.13; (2) that the electronic submission is an exact copy of the paper document, in compliance with 5th Cir. R. 25.2.1; and (3) that the document has been scanned for viruses with the most recent version of a commercial virus scanning program and is free of viruses.

Date: December 27, 2011

s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 41 of 51 PageID #: 670
CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B), because: This brief contains 6980 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), and the type style requirements of Fed. R. App. P. 32(a)(6), because: This brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman font.

Date: December 27, 2011

s/ Christopher C. Wang CHRISTOPHER C. WANG Attorney

Case 9:09-cv-00052-RC -JKG Document 159-1 Filed 03/29/12 Page 42 of 51 PageID #: 671

ADDENDUM


CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege432 ooff 5110 PaPgaegIeDID#: #6:47429

1

IN THE UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

3

4 SUKHJINDER S. BASRA,

)


5 UNITED STATES OF AMERICA, )


)

6

Plaintiffs,

)

7

)

8

v.

) )

9 MATTHEW CATE, et al.

)

10

)

Defendants.

)

11

No. CV11-01676 SVW (FMOx) SETTLEMENT AGREEMENT Judge Steven J. Wilson

12

I. Introduction

13

1. This Settlement Agreement is entered into between Plaintiff

14 Sukhinder S. Basra (“Plaintiff”) and Defendants Matthew Cate, Secretary of the

15 California Department of Corrections and Rehabilitation (“CDCR”); Terry

16 Gonzalez, Warden of the California Men’s Colony (“CMC”); the State of

17 California; Jerry Brown, Governor of the State of California; CDCR; and CMC

18 (“Defendants”).

19

2. This Settlement Agreement addresses Mr. Basra’s Complaint, U.S.

20
District Court for the Central District of California, No. CV11-01676 SVW
21
(FMOx) (“lawsuit”), brought under the Religious Land Use and Institutionalized
23
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, and resolves all claims brought by
24
Mr. Basra against Defendants in this lawsuit.
25

26

3. Plaintiff contends that Defendants violated Mr. Basra’s right under

27 RLUIPA to exercise his religion because Mr. Basra practices the Sikh faith, which

28 requires its adherents to maintain unshorn hair (Kesh) on their bodies, a

requirement that includes facial hair.

CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege443 ooff 5110 PaPgaegIeDID#: #6:47530

1 


4. California Code of Regulations Title 15, Section 3062(h) (“Section

2
 3062(h)”) prohibits inmates from wearing facial hair that extends more than one3
 half inch in length from the face. Plaintiff contends that Section 3062(h) imposes a
substantial burden on Mr. Basra’s religious exercise. Plaintiff further contends 4
 Defendants have disciplined Mr. Basra and he continues to face possible discipline 5
 in accordance with prison regulations for violating Section 3062(h). All of the

6
 allegations of wrongdoing made by Plaintiff in this lawsuit are denied by any and
7
 all Defendants who are or ever were parties to this lawsuit. 5. Plaintiff and Defendants (“the Parties”) now desire and intend by this
8
 Settlement Agreement to compromise and settle all disputes between them arising 9
 out of or relating to the claims in this lawsuit, including any rights to appeal.

10


6. Therefore, in consideration of the covenants set forth in this


11
 Settlement Agreement, the Parties agree to effect a compromise of their disputes


12
 on the terms and conditions set forth below:
 II. Terms and Conditions

13


7. The “Effective Date” of this Settlement Agreement shall mean the

14
 date that the Court grants the stipulated stay of all proceedings in this matter (see
15
 paragraph 15). Each term and condition is material to this Settlement Agreement,
16

and the absence of approval of the entirety of this Settlement Agreement, including
17

without limitation the provision contained in paragraph 15, below, or the failure of
18

the Court to enter the stipulated order of dismissal with every term agreed to by the
19

parties included, shall render this Settlement Agreement null and void, and the
20

21
 Parties agree that any order approving anything other than the entirety of this
23
 Settlement Agreement shall be unenforceable.

24


8. Beginning with the Effective Date of this Settlement Agreement,

25
 Defendants agree that they will not discipline Mr. Basra for violations of Section

26
 3062(h).

27


9. Within 30 days of the Effective Date of this Settlement Agreement,

28
 CDCR shall issue a memorandum to all its prisons instructing prison staff that the

facial hair length restrictions set forth in Section 3062(h) will no longer be

CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege454 ooff 5110 PaPgaegIeDID#: #6:47541

1 enforced. This memorandum shall remain in effect until Section 3062(h) is


2 amended or repealed to remove the facial hair length restrictions.


3

10. Within 90 days of the Effective Date of this Settlement Agreement,

4 Defendants shall begin the process of initiating a change to Section 3062(h) in

5 accordance with the Administrative Procedures Act to eliminate the facial hair

6 length restrictions. The Parties acknowledge that compliance with the

7 Administrative Procedures Act can be a lengthy process, which typically takes

8 more than a year. Defendants will act in good faith in accordance with the

9 Administrative Procedures Act to change Section 3062(h) to eliminate the facial

10 hair length restrictions. Nothing in this Agreement shall prevent Defendants from

11 requiring that inmates maintain their facial hair in a neat and clean manner. Until

12 Defendants amend Section 3062(h), Defendants shall not discipline any inmate for

13 the length of his facial hair.

14

11. The provisions of this Settlement Agreement shall apply to Mr. Basra

15 while he is incarcerated under the jurisdiction of CDCR, whether in a prison in the

16 State of California or an out-of-state prison that contracts with CDCR.

17

12. CDCR shall expunge Mr. Basra’s record of any reference to


18 violations of Section 3062(h).


19

13. CDCR shall permit Mr. Basra to wear a grey or white patka, not to

20 exceed 24” by 24,” which he may acquire from an approved vendor, subject to the

21 same limitations CDCR or the specific institution where Mr. Basra is housed

23 places on other inmates permitted to wear religious headwear or coverings.

24

14. The State shall pay $42,000 as complete resolution of all claims of

25 Mr. Basra to his counsel, the ACLU Foundation, Alston & Bird LLP and/or the

26 Sikh Coalition for attorneys’ fees and costs arising from this litigation. No interest

27 shall accrue on this amount and no other monetary sum shall be paid to Plaintifs.

28 Any amounts other than attorneys’ fees or costs paid to Mr. Basra shall be subject

to his restitution obligations under California Penal Code Section 2085.5.

CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege465 ooff 5110 PaPgaegIeDID#: #6:47552

1

15. The Parties agree to a stay of all proceedings in this action until the

2 enactment of changes to Section 3062(h) to eliminate the facial hair length

3 restrictions and will file a stipulation to stay the matter subject to the Court’s

4 approval. This agreement shall be contingent upon the Court’s agreement to stay

5 proceedings as requested by the Parties. Following the enactment of changes to

6 Section 3062(h) to eliminate the facial hair length restrictions, the Parties shall file

7 a stipulation of dismissal with prejudice of all claims against Defendants in the

8 case of Basra v. Cate, Case No. CV11-01676 SVW(FMOx) (C.D. Cal.).

9

16. By signing this Settlement Agreement, the Plaintiff agrees that it will

10 releases Defendants, and each of them, and Defendants will release Plaintiff from

11 all claims, past, present and future, known or unknown, arising from or potentially

12 arising from the facts alleged in the Complaint or Complaint in Intervention as

13 soon as Defendants have notified Plaintiff’s counsel that the enactment of changes

14 to Section 3062(h) to eliminate the facial hair length restrictions have been

15 completed, but not before. It is the Parties’ intention, in executing this Settlement

16 Agreement and in receiving and accepting the consideration referred to, that this

17 Settlement Agreement shall be effective as a full and final accord and satisfaction

18 and release of all claims Plaintiff may have against Defendants or Defendants may

19 have against Plaintiff in this lawsuit. In furtherance of this intention, Plaintiff and

20 Defendants acknowledge that they are familiar with, and expressly waive, the

21 provisions of California Civil Code section 1542, which provides as follows:

23

A general release does not extend to claims which the creditor does

24

not know or suspect to exist in his or her favor at the time of

executing the release which if known by him or her must have

25

materially affected his or her settlement with the debtor.

26

III. Representations and Warranties

27

17. This Settlement Agreement is the compromise of various disputed

28 claims and shall not be treated as an admission of liability by any of the Parties for

any purpose. The signature of or on behalf of the respective Parties does not

CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege476 ooff 5110 PaPgaegIeDID#: #6:47563

1 indicate or acknowledge the validity or merits of any claim or demand of the other

2 Party.

3

18. This Settlement Agreement is binding on the Parties and their


4 agencies, departments, successors, or independent contractors including agents


5 and/or assigns that have responsibility for implementation of the requirements of


6 this Settlement Agreement either currently or in the future.


7

19. This Settlement Agreement is not intended to impair or expand the


8 right of any person or organization to seek relief against the State, CDCR or its


9 officials, employees, or agents for their conduct or the conduct of CDCR


10 employees for issues not specifically enumerated in this settlement agreement.


11

20. If any Party believes that another Party has failed to fulfill any

12 obligation under this Settlement Agreement, the Party shall, prior to initiating any

13 court proceeding to remedy such failure, give written notice of the failure to the

14 lead counsel of record for the other Party and attempt in good faith to resolve any

15 such failure. If the Parties are unable to resolve their differences within sixty days

16 of the written notice, then any Party may request the Court to enforce compliance

17 with this Settlement Agreement. Each Party shall be responsible for his own

18 attorneys fees incurred under this paragraph except that should a motion to enforce

19 the Settlement Agreement be necessary, the prevailing party in that proceeding

20 shall be entitled to reasonable attorneys’ fees associated with drafting and filing

21 any such motion or opposition to such motion.

23

21. The undersigned signatories represent that they have full authority


24 from their respective clients to execute this settlement agreement.


25

22. This Settlement Agreement may be executed by the Parties in


26 counterparts, each of which shall be deemed to be an original executed document


27 and all of which, together, shall constitute one and the same agreement.


28

CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege487 ooff 5110 PaPgaegIeDID#: #6:47574

1 


23. This Settlement Agreement expresses the entire agreement of the

2
 Parties. No recitals, covenants, agreements, representations, or warranties of any

3
 kind have been made or have been relied upon by any Party, except as specifically

4
 set forth in the Settlement Agreement. Nothing other than this Settlement

5
 Agreement shall be relevant or admissible to supplement or vary any of its terms

6
 and provisions. All prior discussions, agreements, and negotiations are superseded

7
 by and merged and incorporated into this Settlement Agreement. This is an

8
 integrated document.

9 


10
 FOR SUKHJINDER S. BASRA

11

June ____, 2011
12


13

_____________________________ 14
 CASSANDRA E. HOOKS


15
 JONATHAN M. GORDON


16


LEIB MITCHELL LERNER
 Alston & Bird LLP


17


18
 June ____, 2011

19

20
 __________________________________ PETER J. ELIASBERG

21
 ACLU Foundation of Southern California

23

24
 June ____, 2011

25

26
 ___________________________________ DANIEL MACH

27
 American Civil Liberties Union
 28
 Program on Freedom of Religion and Belief


CCaassee92:0:191-c-cvv-0-001065726-R-SCVW-JK-FGMODoDcuomcuemnte1n5t 94-01-1 FiFleilded030/62/90/51/211 PaPgaege498 ooff 5110 PaPgaegIeDID#: #6:47585

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, II '''lnics. No recitals, covenants, agreements, representations, or warranties of any

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"7 II by and mel'ged and incorporated into this Settlement Agreement. This is an
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Case 9:09-cv-00052-RC -JKG Document 159-2 Filed 03/29/12 Page 1 of 24 PageID #: 681

IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION


DAVID RASHEED ALI, Plaintiff,
v.
RICK THALER, DIRECTOR TDCJ-CID JUSTICE
Defendant.

)

)

)

)

Civil Action No. 9:09-cv-52

)

)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES

EXHIBIT B


CaCsaese2:91:10-9c-vc-v0-10607065-2S-VRWC --FJMKGO Document 13569-2FileFdil0e5d/203/1219/1P2agPea1geof22o3f 2P4aPgaegIeDID#:#3:78 682 


1 THOMAS E. PEREZ Assistant Attorney General
2 SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General
3 JONATHAN M. SMITH (DC Bar # 396578) Chief, Special Litigation Section
4 TIMOTHY D. MYGATT (PA Bar # 90403) timothy.mygatt@usdoj.gov
5 Special Counsel, Special Litigation Section EMILY A. GUNSTON (SBN # 218035)
6 emily.gunston@usdoj.gov Samantha K. Trepel (DC Bar # 992377)
7 samantha.trepel@usdoj.gov Trial Attorneys
8 United States Department of Justice Civil Rights Division
9 Special Litigation Section 950 Pennsylvania Avenue, N.W.
10 Washington, D.C. 20530 Telephone: (202) 514-6225
11 Facsimile: (202) 514-4883

12 ANDRÉ BIROTTE JR. United States Attorney
13 LEON W. WEIDMAN Assistant United States Attorney
14 Chief, Civil Division ROBYN-MARIE LYON MONTELEONE
15 Chief, Civil Rights Unit ERIKA JOHNSON-BROOKS (SBN 210908)
16 erika.johnson@usdoj.gov Assistant United States Attorney
17 Federal Building, Suite 7516 300 North Los Angeles Street
18 Los Angeles, CA 90012 Telephone: (213) 894-0474
19 Facsimile: (213) 894-7819

20 Attorneys for the United States of America

21

UNITED STATES DISTRICT COURT

22

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

23

24 SUKHJINDER S. BASRA AND

)

UNITED STATES OF AMERICA )

25

)

No. CV11-01676 SVW (FMOx)

26

Plaintiffs,

27

v .

) UNITED STATES’ BRIEF IN ) SUPPORT OF PLAINTIFF ) SUKHJINDER S. BASRA’S

28

) MOTION FOR A

CaCsaese2:91:10-9c-vc-v0-10607065-2S-VRWC --FJMKGO Document 13569-2FileFdil0e5d/203/1219/1P2agPea2geof32o3f 2P4aPgaegIeDID#:#3:79 683


1
 MATTHEW CATE, et al.,

2


Defendants.

) PRELIMINARY INJUNCTION 
 )
 ) Honorable Stephen V. Wilson


3


)


) Hearing Date: June 6, 2011 


4


) Time: 1:30 p.m.




5


) Courtroom: 6 


6
 _______________________________) 


7


8


9


10


11


12


13


14


15


16


17


18


19


20


21


22


23


24


25


26


27


28


2 


CaCsaese2:91:10-9c-vc-v0-10607065-2S-VRWC --FJMKGO Document 13569-2FileFdil0e5d/203/1219/1P2agPea3geof42o3f 2P4aPgaegIeDID#:#3:80 684


1


Table of Contents

2

I. INTRODUCTION ...............................................................................................5 


3

II. FACTUAL BACKGROUND AND STATEMENT OF THE CASE.................5 


4
 III. APPLICABLE LEGAL STANDARDS ..............................................................7 


5
 A. Standard for Issuing a Preliminary Injunction ..............................................7 


6
 B. RLUIPA Prohibits the Government From Imposing a Substantial 


7


Burden on a Prisoner’s Religious Exercise Unless the Government’s 


8


Justification for Imposing the Burden Can Withstand Strict Scrutiny..........8 


9
 IV. ANALYSIS..........................................................................................................8


10


A. Mr. Basra Is Likely To Succeed on the Merits Because the 
 Substantial Burden Placed on His Exercise of Religion Is Not the 


11


Least Restrictive Means of Achieving a Compelling Governmental 


12


Interest. ..........................................................................................................8 


13


1. Defendants Have Placed a Substantial Burden on Mr. Basra’s 


Exercise of Religion. ...............................................................................9 


14

2. Defendants Cannot Establish a Compelling Governmental 


15


Interest or Least Restrictive Means.........................................................9


16
 B. The Public Interests Animating RLUIPA Favor Issuance of a 


17


Preliminary Injunction.................................................................................15


18
 C. Failure To Grant an Injunction Will Result in Irreparable Harm to 


Mr. Basra .....................................................................................................15 


19


D. The Balance of Equities Sharply Favor Granting Issuance of a 


20


Preliminary Injunction.................................................................................16


21
 V. CONCLUSION..................................................................................................17 


22


23


24


25


26


27


28


3 


CaCsaese2:91:10-9c-vc-v0-10607065-2S-VRWC --FJMKGO Document 13569-2FileFdil0e5d/203/1219/1P2agPea4geof52o3f 2P4aPgaegIeDID#:#3:81 685


1


Table of Authorities

2
 Cases Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 

3
 2011) .....................................................................................................................10 


4
 Benning v. Georgia, 391 F.3d 1299, 1310 (11th Cir. 2004)....................................21 
 Ch. of Scientology v. United States, 920 F.2d 1481, 1488 (9th Cir. 1990) .............22 

5
 Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) ........................................21 


6
 Cutter v. Wilkinson, 544 U.S. 709, 713 (2005)........................................................20


7
 Edmisten v. Werholtz, 287 F. App’x 728, 735 (10th Cir. 2008)..............................20 
 Guru Nanak Sikh Soc’y v. Cnty of Sutter, 326 F. Supp. 2d 1140, 1161 (E.D. 


8
 Cal. 2003) .............................................................................................................22


9
 Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009) .....................................................16 
 May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) ................................................12 

10
 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002)...............................7 


11
 Mayweathers v. Terhune, 328 F. Supp. 2d 1086, 1095-96 (E.D.Ca. 2004) ..... 19, 22 


Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988-89 (8th Cir. 2004) ....................17 
 12
 Murphy v. Zoning Comm’n of the Town of New Milford, 148 F. Supp. 2d. 


13
 173, 181 (D. Conn. 2001) .............................................................................. 21, 22 


14
 River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 380 
 (7th Cir. 2010) ......................................................................................................20 

15
 Sefeldeen v. Alameida, 238 F. App’x 204, 205-06 (9th Cir. 2007) .........................12 


16


Shakur v. Schriro, 514 F.3d 878, 881 (9th Cir. 2008) .............................................12 Warsoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir. 2005) ..................... passim


 


17
 Washington v. Klem, 497 F.3d 272, 283 (3d Cir. 2007) ..........................................16 


18
 Winter v. Natural Res. Def. Council, 555 U.S. 7, ___, 129 S. Ct. 365, 374 
 (2008) .................................................................................................................... 10

19

Statutes 20
 Cal. Code Regs., tit. 15, §3062 (h) ..................................................................... 8, 21 


21
 Religious Land Use and Institutionalized Person Act (“RLUIPA”), 42 
 U.S.C. § 2000cc et seq. (2000) ..................................................................... passim

22


23


24


25


26


27


28


4 


CaCsaese2:91:10-9c-vc-v0-10607065-2S-VRWC --FJMKGO Document 13569-2FileFdil0e5d/203/1219/1P2agPea5geof62o3f 2P4aPgaegIeDID#:#3:82 686

1

THE UNITED STATES OF AMERICA, by its undersigned attorneys,

2 hereby files this brief in support of Plaintiff Sukhjinder S. Basra’s Motion for a

3 Preliminary Injunction.

4

I. INTRODUCTION

5

Plaintiff Sukhjinder S. Basra, an inmate at the California Men’s Colony

6 Correctional Facility (“CMC”) in San Luis Obispo, California, is a lifelong

7 practitioner of the Sikh faith. As an observant Sikh, he is religiously mandated to

8 maintain unshorn hair, including facial hair. This fundamental requirement of his

9 religion signifies his respect for the will of God. Adherents to the Sikh faith

10 believe that cutting one’s hair is a grievous sin. Pursuant to these beliefs, Mr.

11 Basra always has maintained his hair and beard uncut and unshaved, including

12 during his incarceration.

13

California Department of Corrections and Rehabilitation (“CDCR”) policy

14 prohibits facial hair longer than one-half inch, without providing any exception for

15 those whose religious practices forbid cutting facial or other bodily hair

16 (“Grooming Policy”). This rule was not enforced against Mr. Basra until after his

17 transfer from Pleasant Valley State Prison (“PVSR”), a more restrictive, higher

18 security CDCR facility, to the minimum security facility in CMC. Once at CMC,

19 Defendants began enforcing this Grooming Policy against Mr. Basra, subjecting

20 him to progressively more severe disciplinary sanctions for practicing his religion.

21

Mr. Basra is now compelled either to cut his beard and violate a central tenet

22 of his religion, or suffer increasingly severe penalties, including the deprivation of

23 privileges and the risk of longer confinement in prison, in violation of his rights

24 under the Religious Land Use and Institutionalized Person Act (“RLUIPA”), 42

25 U.S.C. § 2000cc et seq. (2000). Defendants contend that the Grooming Policy is

26 justified by their interest in the security of California’s prison facilities, but the

27 security interests they assert do not justify perpetuating the substantial burden

28 imposed on Mr. Basra’s religious liberty, one of our society’s most fundamental

5 


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1 rights. See Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002)

2 (RLUIPA is designed to “guard against unfair bias and infringement on

3 fundamental freedoms”). As President Clinton said in signing RLUIPA,

4 “[r]eligious liberty is a constitutional value of the highest order, and the Framers of

5 the Constitution included protection for the free exercise of religion in the very

6 first Amendment. This Act recognizes the importance the free exercise of religion

7 plays in our democratic society.” See Statement by President William J. Clinton

8 Upon Signing S. 2869, 2000 U.S.C.C.A.N. 662 (September 22, 2000). Indeed,

9 Congress enacted RLUIPA to combat “egregious and unnecessary” restrictions on

10 religious exercise, “[w]hether from indifference, ignorance, bigotry, or lack of

11 resources.” 146 Cong. Rec. 16698-99 (2000).

12

Defendants’ Grooming Policy is precisely the type of unnecessary restriction

13 targeted by RLUIPA. The United States urges this Court to grant Mr. Basra’s

14 Motion for a Preliminary Injunction.

15 II. FACTUAL BACKGROUND AND STATEMENT OF THE CASE

16

Mr. Basra is an observant Sikh who is religiously mandated to maintain

17 unshorn hair, including facial hair. Decl. of Professor Gurinder Sigh Mann in

18 Supp. of Pl. Sukhjinder S. Basra’s Mot. for Prelim. Inj., ¶ 7, ECF No. 7-4

19 (hereinafter “Mann Decl.”). His unshorn beard is approximately six inches in

20 length. Members of the Sikh religion have five articles of faith which are worn at

21 all times. One of these five articles is the kesh, or unshorn hair. Adherents to the

22 Sikh faith believe that cutting one’s hair is a grievous sin and that uncut hair is

23 required for a Sikh to be classified as pure. Basra Decl. in Supp. of Mot. for

24 Prelim. Inj. ¶ 5, Jan. 26, 2011, ECF No. 7-2 (hereinafter “Basra Decl.”).

25

Mr. Basra currently is incarcerated in a minimum security facility within

26 CMC. He is kept in an unlocked, 90-person dormitory room. Id. ¶ 7. He initially

27 was incarcerated at PVSP, where he lived in a locked, two-man cell. Id. After one

28

6 


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1 year of discipline-free incarceration at PVSP, CDCR transferred Mr. Basra to

2 CMC on or about February 26, 2010. Id.

3

According to CDCR regulations, “facial hair, including short beards,

4 mustaches, and sideburns are permitted for male inmates and shall not extend more

5 than one-half inch in length outward from the face.” Cal. Code Regs. tit. 15,

6 § 3062(h) (2010). The regulations contain no provision for religious exemption.

7 Moreover, they apply system-wide, regardless of the level of security at an

8 individual facility.

9

When Mr. Basra was incarcerated in a more restrictive setting at PVSP, he

10 kept his beard unshorn but suffered no disciplinary action during his incarceration

11 there. Basra Decl. ¶ 9. While at PVSP, and during the initial portion of his

12 confinement at CMC, CDCR never warned Mr. Basra his beard violated any law or

13 policy, and never disciplined Mr. Basra for having his beard longer than one-half

14 inch. Id. When Mr. Basra first entered the state system through the inmate

15 reception center, he was asked to run his fingers through his beard in front of the

16 guards. Since then, however, no CMC employee has ever searched Mr. Basra’s

17 beard or asked him to run his fingers through his beard in front of them. Mr. Basra

18 has never been accused of hiding any contraband in his beard. No correctional

19 officer has ever physically manipulated Mr. Basra’s beard, run a metal detection

20 wand over it, or asked Mr. Basra to part his beard or run his fingers through it in

21 front of them, for any reason. Id. ¶ 10.

22

Beginning in March 2010, however, CDCR began disciplining Mr. Basra for

23 maintaining his beard at longer than one-half inch in length. Id. ¶ 11. Since then,

24 CDCR has subjected Mr. Basra to progressively more severe disciplinary action

25 for failing to comply with the Grooming Policy. On April 3, April 30, and June

26 28, 2010, Mr. Basra was issued administrative Rules Violation Reports (“RVR”)

27 for violating Cal. Code Regs., tit. 15, §3062 (h), “Grooming Standards,” for having

28 a beard longer than one-half inch. Basra Decl. ¶¶ 12-14. At the administrative

7 


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1 hearings on each of these violations, Mr. Basra pled not guilty and informed the

2 hearing official that he is unable comply with the grooming standard due to his

3 religious beliefs. Nevertheless, after each hearing, Mr. Basra was found guilty of

4 violating the Grooming Policy. Id. For these violations, Mr. Basra received

5 various punishments, including over 40 hours of extra duty, loss of good time

6 credits, and 10 days confinement to quarters. Id. During the confinement to

7 quarters period, Mr. Basra was required to stay in his cell and was permitted to

8 leave only to eat, use the rest room, and receive medical attention. He also lost his

9 rights to visitation, phone calls, yard access, day room, canteen, quarterly

10 packages, and accrual of excused time off. Id. ¶ 14, fn 1. Mr. Basra appealed each

11 of these charge through all three levels of administrative review, arguing that the

12 disciplinary action substantially burdened his religious exercise. Id. ¶¶ 12-14.

13

On July 19, 2010, Mr. Basra submitted to Defendant Gonzalez a request that

14 he be exempted from the Grooming Policy and allowed to maintain his beard

15 untrimmed. Id. ¶17. In this request, he informed the warden that maintaining

16 unshorn facial hair is part of his religious belief and practice. In a letter dated July

17 28, 2010, CDCR denied Mr. Basra’s request, stating in pertinent part:

18

[Y]ou are not being discriminated against, as you allude to in your

19

letter . . . . You are being treated the same as the other inmates at

20

CMC . . . . You may have a beard, but you must keep it trimmed to no

21

more than one-half inch in length. There is no provision in the CCR,

22

Title 15 for the Warden to exempt the grooming standards.

23 Id. ¶ 14.

24

Other than disciplinary procedures for violations of the grooming code,

25 Mr. Basra has a positive disciplinary record. Id. ¶ 16. The penalties for the

26 practice of his religion are becoming more severe, and he is in danger of having his

27 security classification changed. Id. ¶8. As a result of the Grooming Policy, Mr.

28 Basra has suffered and likely will continue to suffer disciplinary sanctions,

8

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1 including but not limited to the following: (1) loss of visitation rights; (2) extra

2 duties; (3) loss of assignment to particular duties; (4) extra restrictions or

3 confinement; and (5) loss of Work Time Credit or risk of loss of credits in the

4 future.

5

III. APPLICABLE LEGAL STANDARDS

6

A. Standard for Issuing a Preliminary Injunction

7

The Supreme Court has held that a “plaintiff seeking a preliminary

8 injunction must establish that he is likely to succeed on the merits, that he is likely

9 to suffer irreparable harm in the absence of preliminary relief, that the balance of

10 equities tips in his favor, and that an injunction is in the public interest.” Winter v.

11 Natural Res. Def. Council, 555 U.S. 7, ___, 129 S. Ct. 365, 374 (2008). Prior to

12 the Supreme Court’s decision in Winter, a number of circuits had employed a

13 sliding scale approach in determining whether to issue a preliminary injunction.

14 Under this approach, the elements of the preliminary injunction test are balanced,

15 so that a stronger showing of one element may offset a weaker showing of

16 another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

17 2011). The Ninth Circuit had adopted a version of this sliding scale approach

18 under which a preliminary injunction could issue where the likelihood of success

19 is such that “serious questions going to the merits were raised and the balance of

20 hardships tips sharply in [plaintiff's] favor.” Id. (quoting Clear Channel Outdoor,

21 Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). In Cottrell, the

22 court held that this approach survived the Supreme Court’s decision in Winter.

23 Under the Ninth Circuit test, then, “‘serious questions going to the merits’ and a

24 hardship balance that tips sharply toward the plaintiff can support issuance of an

25 injunction, assuming the other two elements of the Winter test are also met.” Id.

26 at 1132.

27

Accordingly, to obtain a preliminary injunction, Mr. Basra “must show

28 either (1) a likelihood of success on the merits and the possibility of irreparable

9 


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1 injury or (2) the existence of serious questions going to the merits and the balance

2 of hardships tipping in [his] favor.” Warsoldier v. Woodford, 418 F.3d 989, 993­

3 94 (9th Cir. 2005) (quoting Nike, Inc. v. McCarthy, 379 F.3d. 576, 580 (9th Cir.

4 2004)). Mr. Basra has met the standards of both of these tests. Accordingly, his

5 motion should be granted.

6

B. RLUIPA Prohibits the Government From Imposing a Substantial

7

Burden on a Prisoner’s Religious Exercise Unless the Government’s

Justification for Imposing the Burden Can Withstand Strict

8

Scrutiny.

9

RLUIPA provides that no state or locally-owned institution, including

10 correctional facilities, “shall impose a substantial burden on the religious exercise

11 of a [prisoner].” 42 U.S.C. § 2000cc-1(a). “Religious exercise” includes “any

12 exercise of religion, whether or not compelled by, or central to, a system of

13 religious belief.” 42 U.S.C. § 2000cc-5(7)(A).

14

In order to overcome this prohibition on burdening religious exercise, a

15 government must demonstrate that imposition of the burden is: (1) “in furtherance

16 of a compelling governmental interest;” and (2) “the least restrictive means of

17 furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).

18 Under RLUIPA, Mr. Basra bears the initial “burden of going forward with

19 evidence to demonstrate a prima facie claim thats [the Grooming Policy] and its

20 punitive sanctions designed to coerce him to comply with that policy constitute a

21 substantial burden on the exercise of his religious beliefs.” Warsoldier, 418 F.3d.

22 at 994. Once he has done so, Defendants must show that the substantial burden

23 placed on Mr. Basra is the least restrictive means of furthering a compelling

24 governmental interest. Id. at 995.

25

IV. ANALYSIS

26

The Grooming Policy substantially burdens Mr. Basra’s religious exercise,

27 and Defendants do not contest this point in the Opposition. Defendants attempt to

28 justify the substantial burden by claiming that it serves a compelling governmental

10 


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1 interest—the need to quickly identify inmates and to prevent the introduction, use

2 and distribution of weapons, drugs, and other contraband – and that the Grooming

3 Policy is the least restrictive means of achieving those ends. Defendants’ argument

4 fails in light of the Ninth Circuit’s decision in Warsoldier, 418 F.3d 989, in which

5 the plaintiff challenged CDCR’s Grooming Policy prohibiting long hair. Under

6 almost identical facts, the Ninth Circuit rejected these arguments and held that the

7 plaintiff had demonstrated a likelihood of success on the merits of his claim that

8 California’s grooming policy prohibiting long hair violated RLUIPA, 42 U.S.C. §

9 2000cc-1. Id.

10 A. Mr. Basra Is Likely To Succeed on the Merits Because the Substantial

11

Burden Placed on His Exercise of Religion Is Not the Least Restrictive

Means of Achieving a Compelling Governmental Interest.

12

1. Defendants Have Placed a Substantial Burden on Mr. Basra’s

13

Exercise of Religion.

14

15

A State places a substantial burden on religious exercise when it places

16 “substantial pressure on an adherent to modify his behavior and to violate his

17 beliefs.” Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Bd. of the Ind.

18 Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981)) (internal quotation marks omitted)

19 (holding that grooming policies requiring inmates to cut their hair intentionally

20 impose a substantial burden); see also Shakur v. Schriro, 514 F.3d 878, 881 (9th

21 Cir. 2008); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (finding substantial

22 burden where important benefits were conditioned on conduct proscribed by a

23 religious faith, a Rastafarian inmate undoing his dreadlocks). The Ninth Circuit

24 has found a substantial burden when the action is “oppressive to a significantly

25 great extent, such that it renders religious exercise effectively impracticable.”

26 Sefeldeen v. Alameida, 238 F. App’x 204, 205-06 (9th Cir. 2007) (quotation marks

27 omitted) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,

28 1034-35 (9th Cir. 2004)).

11 


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1

In Warsoldier, the Court held that imposing discipline such as that imposed

2 upon Mr. Basra for failing to comply with CDCR’s grooming regulations is a

3 substantial burden on religious exercise. Warsoldier, 418 F.3d at 996. Like the

4 plaintiff in Warsoldier, Mr. Basra is not being physically forced to comply with the

5 grooming standard, but he is being forced to choose between abandoning a core

6 tenant of his religion and being subjected to a variety of increasing punishments.

7 The court found such a Hobson’s choice to be a substantial burden on religious

8 exercise, noting that imposing such a dilemma “flies in the face of Supreme Court

9 and Ninth Circuit precedent that clearly hold that punishments to coerce a religious

10 adherent to forgo his . . . religious beliefs is an infringement on religious exercise.”

11 Id. The policy at issue here imposes a substantial burden on Mr. Basra’s religious

12 exercise, and Defendants do not contest that this prong of RLUIPA has been met.

13

2. Defendants Cannot Establish a Compelling Governmental

14

Interest or Least Restrictive Means

15

Because imposition of the Grooming Policy on Mr. Basra amounts to a

16 substantial burden on his religious exercise, CDCR must show that the imposition

17 of the substantial burden on Mr. Basra serves a compelling governmental interest,

18 and that the policy is the least restrictive means of advancing that interest. See 42

19 U.S.C. §§ 2000cc-1(a), 2000cc-2(b). Here, Defendants cite to prison safety and

20 security to justify depriving Mr. Basra of his fundamental right to exercise his

21 religion. In spite of evidence from other jurisdictions, and the holding in

22 Warsoldier, Defendants claim, as they did in Warsoldier, that the Grooming Policy

23 is the least restrictive means of achieving those goals. It is not, and the Ninth

24 Circuit has previously rejected these same arguments.

25

In Warsoldier, Defendants argued that their policy prohibiting long hair

26 allowed for the quick and accurate identification of inmates; prevented inmates

27 from hiding contraband or weapons in their hair or on their bodies; and prevented

28 prisoners from disguising their identity by cutting their hair upon escape.

12 


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1 Warsoldier, 418 F.3d at 997. They make the same arguments here. Defendants’

2 Opp. to Mot. for Prelim. Inj., 3-9, ECF No. 32 (hereinafter “Opposition” or

3 “Opp.”). While prison safety and security are compelling interests, CDCR could

4 achieve those goals through less restrictive means.

5

a. The Grooming Policy Is Not Necessary for Prisoner Identification and

6

Prevention of Escape

7

The prohibition on long beards does not aid in the prevention of escapes or

8 the capture of escapees because CDCR already must employ mechanisms to

9 address the changing appearance of prisoners. In response to the Ninth Circuit’s

10 decision in Warsoldier, CDCR changed its grooming policy in 2006 to allow hair

11 of any length. Decl. of Randolph Grounds in Supp. of Opp. to Mot. for Prelim.

12 Inj., ¶ 2, ECF No. 32-1 (hereinafter “Grounds Decl.”). In Warsoldier, the

13 defendants had argued that removing the hair length prohibition would help

14 prisoners escape and elude capture. Warsoldier, 418 F.3d at 997. Yet, Defendants

15 have not cited to a single instance since the regulation changed where a prisoner

16 escaped, attempted to escape, or eluded capture by changing his hair length.

17 Indeed, the last instance of escape involving a change of hair length defendants cite

18 to occurred almost fourteen years ago. Opp. Ex. 2, at 2, ECF No. 32-3. These

19 fears either proved to be unfounded, or defendants have found other, less 20 restrictive means, of addressing these dangers.1

21
22 1 Defendants cite heavily to an incident in 1997 in which an inmate escaped by 23 shaving his beard, cutting his hair, fashioning an apparently realistic identification 24 card, donning civilian clothing, and leaving through the front gates of the prison. 25 One assumes that CDCR addressed this situation by resorting to the obvious less 26 restrictive alternatives of preventing inmates from accessing printers, cameras, 27 laminating machines, and civilian clothing, and restricting access to employee 28 identification cards.

13 


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1

Because CDCR already effectively manages prisoners’ changes in

2 appearance, the beard length restriction is unnecessary. Changing hair length is

3 just one of a number of ways in which prisoners may change their appearance.

4 During a period of incarceration, prisoners may age, gain and/or lose weight, incur

5 facial scars, get tattoos, lose teeth, and suffer receding hairlines. Decl. of John

6 Clark ¶ 22 (hereinafter “Clark Decl.”). Professional correctional management

7 requires any facility to maintain safety and security in spite of these changes. Id.

8 ¶ 24. One way to accomplish this task is to require a new photograph and inmate

9 identification whenever these changes occur, and retention of all past inmate

10 photos so the facility has a series of pictures of each inmate in every state of

11 appearance. The Federal Bureau of Prisons (“BOP”) manages to administer this

12 practice while incarcerating 215,000 prisoners and facing severe budgetary

13 limitations. Id. ¶¶ 10, 22, 27. CDCR likely already has policies and practices in

14 place to maintain security in spite of these inevitable appearance changes,

15 accounting for the lack of a single escape by an inmate who altered his appearance

16 in the last fourteen years. If it does not, than it cannot credibly cite to appearance

17 change as a compelling concern.

18

Moreover, Defendants’ general citations to cost concerns in administering

19 less restrictive alternatives are unpersuasive. Congress underlined the importance

20 of eradicating burdens on religious exercise by explicitly providing that

21 compliance with RLUIPA “may require a government to incur expenses in its own

22 operations to avoid imposing a substantial burden on religious exercise.”

23 42 U.S.C. § 2000cc-3(c).

24

b. The Grooming Policy Is Not the Least Restrictive Means of Preventing

25

Prisoners From the Concealing Contraband.

26

Defendants cite to the fear that prisoners will conceal contraband in a long

27 beard. They cite to “numerous occasions” in which prisoners have concealed

28 contraband “within beards and long hair,” without offering any temporal or

14 


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1 quantitative specifics. They do not cite a single specific example of an inmate

2 concealing contraband in a beard. Opp. at 4. Moreover, Defendants raised the

3 same concern in Warsoldier, 418 F.3d at 997, but, since changing the regulation,

4 CDCR has addressed this concern by searching prisoners’ hair. Grounds Decl.

5 ¶ 14. To the extent that concealment of contraband in beards also is a concern,

6 CDCR may employ the same remedy. Any additional administrative burden

7 would be minor, and that burden is outweighed by the interest in protecting a

8 fundamental right. The BOP addresses this concern by regularly searching

9 prisoners to prevent them from concealing contraband on their person. Clark Decl. 10 ¶ 26. The search consists of requiring the prisoner to run his hands vigorously 11 through his hair and through his beard, and then inserting his fingers in his mouth 12 and pulling his cheeks back. Prisoners also are subjected to a handheld metal 13 detection wand. The entire process takes only a few seconds. Id.

14

c. The Grooming Policy Is Overly Restrictive Because It Applies to All

15

Inmates, Regardless of Security Risk.

16

CDCR has enforced the Grooming Policy against Mr. Basra despite its

17 determination, evidenced by his transfer to a minimum security prison, that

18 he poses a lower security risk. Defendants have the burden of showing that

19 security, their asserted compelling interest, is actually furthered by banning

20 this specific Plaintiff from having an unshorn beard. 42 U.S.C. § 2000cc­

21 1(a) (prohibiting government imposition of a substantial burden on “religious

22 exercise of a person” unless “the government demonstrates that imposition of

23 the burden on that person” furthers a compelling government interest)

24 (emphasis added); see, e.g., Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009)

25 (“[T]he state may not merely reference an interest in security or institutional

26 order in order to justify its actions.”); Washington v. Klem, 497 F.3d 272, 283

27 (3d Cir. 2007) (“Even in light of the substantial deference given to prison

28 authorities, the mere assertion of security or health reasons is not, by itself,

15 


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1 enough for the Government to satisfy the compelling governmental interest

2 requirement. Rather, the particular policy must further this interest.”);

3 Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988-89 (8th Cir. 2004) (“[Officials]

4 must do more than offer conclusory statements and offer post hoc

5 rationalizations.”) (citations omitted).

6

Defendants have not demonstrated how security is actually furthered by

7 prohibiting Mr. Basra from keeping his beard unshorn. When Mr. Basra was

8 housed in a medium security facility, Defendants did not require him to shorten his

9 beard, nor did Defendants punish him for maintaining a long beard. Basra Decl. 10 ¶ 9. Mr. Basra has since been transferred to a minimum security facility, where he 11 has maintained a clean disciplinary record, other than discipline he has received for 12 maintaining an unshorn beard in accordance with his religious beliefs. Id. ¶¶ 7, 16. 13 Furthermore, Defendants have not pointed to any evidence in their Opposition that 14 Mr. Basra is an escape risk or that he has attempted to conceal contraband in his 15 beard. In Warsoldier, the Ninth Circuit found that CDCR’s grooming policy 16 prohibiting long hair likely was not the least restrictive means of furthering the 17 proffered security interest, in part because Mr. Warsoldier, like Mr. Basra, was 18 housed in a minimum security facility. The Warsoldier court found that the 19 lowered security pressures at minimum security facilities may require policies that 20 are correspondingly less restrictive, and criticized CDCR for failing to address this 21 difference in its polices. 418 F.3d at 999. That same principle applies here. 22 Defendants have made no showing that the burden imposed on Mr. Basra by the 23 Grooming Policy furthers the asserted compelling government interest in security, 24 and therefore have failed to meet their burden under RLUIPA.

25

26

27

28

16 


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1

d. Because the Federal Bureau of Prisons Is Able To Maintain Safety and

Security Without Restricting Beard Length, CDCR’s Policy Cannot Be

2

the Least Restrictive Means.

3

4

The Federal Bureau of Prisons has a population of approximately 215,000

5 prisoners, Clark Decl. ¶ 10, in contrast to California’s 160,000. Grounds Decl.

6 ¶ 18. It incarcerates organized crime figures, gang leaders, international terrorists,

7 and other violent offenders. Clark Decl. ¶ 10. It must deal with gang rivalries, as

8 well as regional rivalries. Id. The BOP also must deal with constant budgetary

9 limitations and shortfalls in the face of an ever-increasing prison population. Id.

10 ¶ 27. The BOP does not tolerate escapes or the possession of contraband by

11 prisoners. Id. ¶ 11.

12

The BOP does not place any restriction on the length of prisoners’ beards or

13 hair. Id. ¶ 9. To guard against the concealment of contraband, BOP staff search

14 prisoners by running a metal detection wand over the prisoners’ bodies, and/or by

15 requiring prisoners to vigorously manipulate their hair, beards, and their mouths in

16 the presence of staff. This procedure is not an undue administrative burden. It

17 takes a matter of seconds, and much of it would need to be done even if BOP

18 restricted beard length. Id. ¶ 26.

19

Despite incarcerating some of the most inventive and escape prone prisoners

20 in American history, BOP has not found it necessary to restrict beard length to 21 maintain security. Clark Decl. ¶¶ 18, 25. BOP must manage change of inmates’ 22 appearance regardless of any grooming policies, since a prisoner’s appearance may 23 change drastically and quickly over the course of an incarceration – they may age, 24 gain or lose weight, get tattoos, receive scars, grow their hair, or lose their hair. Id. 25 ¶ 22. The existence or length of one’s beard is just one factor in this inevitable 26 appearance change, and BOP must monitor this to ensure safety and security. 27 Instituting a beard length restriction would not alleviate this burden. Id. ¶ 17.

28

17 


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1

In Warsoldier, the Ninth Circuit criticized CDCR for failing to consider less

2 restrictive grooming policies when other institutions with the same penological

3 goals were able to accommodate the same religious practices. See Warsoldier, 418

4 F.3d at 999-1000. It held that failure of an institution to distinguish itself from

5 these analogous institutions “may constitute a failure to establish that the defendant

6 was using the least restrictive means.” Id. at 1000. The court also noted that

7 prison systems such as those run by Oregon, Colorado, Nevada and the BOP have

8 all satisfied their penological interests with much broader policies or with religious

9 exemptions. Id. at 999-1000. Here, Defendants have failed to distinguish

10 themselves from the BOP.

11

Defendants’ reliance on Mayweathers v. Terhune, 328 F. Supp. 2d 1086

12 (E.D. Cal. 2004), is misplaced. There, a group of Muslim state prisoners filed suit

13 under RLUIPA challenging CDCR’s grooming policy which, at that time,

14 prohibited beards of any length. Mayweathers, 328 F. Supp. 2d at 1090-91. The

15 plaintiffs asked for an injunction to allow them to wear half-inch beards, alleging

16 that wearing this short beard was an exercise of their religion. Id. The court found

17 CDCR’s grooming standard violated RLUIPA, id. at 1096, because allowing

18 inmates to wear one-half inch beards was a less restrictive alternative. Id. at 1102.

19 The court did not find that allowing one-half inch beards was the least restrictive

20 alternative, because that question was not before it, and the court received no

21 evidence on that point. Defendants’ assertion that the court made such a finding is

22 incorrect.

23

The Ninth Circuit has made clear that grooming policies such as the one at

24 issue here violate RLUIPA because there are less restrictive and equally effective

25 alternatives to accomplish the goal of maintaining safety and security. Defendants

26 cite to no contrary Ninth Circuit authority on this point, nor could they. The

27 experience of the Federal Bureau of Prisons establishes that CDCR’s approach is

28

18 


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1 overly restrictive and needlessly deprives California prisoners of a fundamental

2 right.

3

B. The Public Interests Animating RLUIPA Favor Issuance of a

4

Preliminary Injunction

5

As explained above, elimination of the Grooming Policy will not imperil

6 public safety, contrary to Defendants’ assertions. Moreover, it is well-settled that

7 “the public has an interest in protecting the civil rights of all persons.” Edmisten v.

8 Werholtz, 287 F. App’x 728, 735 (10th Cir. 2008) (reversing denial of preliminary

9 injunctive relief). The federal government’s interest in protecting individual rights

10 is particularly salient in the context of the religious protections afforded by

11 RLUIPA, “the latest of long-running congressional efforts to accord religious

12 exercise heightened protection from government-imposed burdens . . . .” Cutter v.

13 Wilkinson, 544 U.S. 709, 713 (2005). RLUIPA passed both houses of Congress

14 unanimously and was supported by more than seventy religious and civil rights

15 groups representing a diversity of religious and ideological viewpoints. See 146

16 Cong. Rec. S7777-78. Its enactment followed a three year congressional

17 investigation into free exercise violations involving the religious practices of

18 institutionalized persons. River of Life Kingdom Ministries v. Vill. of Hazel Crest,

19 611 F.3d 367, 380 (7th Cir. 2010). As set forth in a joint statement by RLUIPA

20 co-sponsors Orrin Hatch and Edward Kennedy, Congress found that “[w]hether

21 from indifference, ignorance, bigotry, or lack of resources, some institutions

22 restrict religious liberty in egregious and unnecessary ways.” See 146 Cong. Rec.

23 16698-99 (2000).

24

Moreover, facilitating the religious exercise of incarcerated persons serves

25 the important societal interest in rehabilitation of inmates. This interest in

26 rehabilitation was one of the motivations for Congress’s passage of RLUIPA.

27 When introducing the bill that would become RLUIPA, Senator Kennedy

28 specifically noted that restrictions on the practice of religion in the prison context

19 


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1 could be counter-productive: “[s]incere faith and worship can be an indispensible

2 part of rehabilitation.” See 146 Cong. Rec. S6689. Further, this interest has been

3 repeatedly recognized by federal courts. In a decision affirming a district court’s

4 finding that a prison violated RLUIPA by denying prayer oils to a Muslim inmate,

5 the Seventh Circuit explained that “RLUIPA’s attempt to protect prisoners’

6 religious rights and to promote the rehabilitation of prisoners falls squarely within

7 Congress’ pursuit of the general welfare . . . .” Charles v. Verhagen, 348 F.3d 601,

8 607 (7th Cir. 2003); see also, e.g., Benning v. Georgia, 391 F.3d 1299, 1310 (11th

9 Cir. 2004) (“rehabilitation of prisoners is also a . . . purpose underlying RLUIPA”).

10

C. Failure To Grant an Injunction Will Result in Irreparable Harm to

11

Mr. Basra

12

Mr. Basra has been subjected to discipline for adhering to his religious

13 beliefs. Basra Decl. ¶ 18. Because Defendants have denied his religious

14 exemption, he continues to be in violation of the Grooming Policy. He is in

15 immediate danger of being deemed a program failure. 15 Cal. Code Regs. tit. 15,

16 § 3062(m). He already has received a referral to program review to determine if he

17 should be deemed a program failure. Basra Decl. ¶ 14. This kind of “chilling

18 effect” on the exercise of religion constitutes irreparable injury. See Murphy v.

19 Zoning Comm’n of the Town of New Milford, 148 F. Supp. 2d. 173, 181 (D. Conn.

20 2001) (holding that a chilling effect on religious practice was enough to satisfy the

21 irreparable harm requirement).

22

When evaluating irreparable injury in the context of RLUIPA, courts have

23 determined that the concerns are the same as those in the First Amendment

24 context. Indeed, Congress’ expressed intent to protect the free exercise of religion

25 led the court in Murphy to conclude the following:

26

Since the statute [“RLUIPA”] was enacted for the express purpose of

27

protecting the First Amendment rights of individuals, the allegation that

28

defendants have violated this statute also triggers the same concerns that led

20 


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1

the courts to hold that these violations result in a presumption of irreparable

2

harm.

3 Murphy, 148 F. Supp. 2d at 180-81.

4

The “‘loss of First Amendment freedoms, for even minimal periods of time,

5 unquestionably constitutes irreparable injury.’” Ch. of Scientology v. United

6 States, 920 F.2d 1481, 1488 (9th Cir. 1990) (quoting Elrod v. Burns, 427 U.S. 347

7 (1976)); see Guru Nanak Sikh Soc’y v. Cnty of Sutter, 326 F. Supp. 2d 1140, 1161

8 (E.D. Cal. 2003). Furthermore, Congress enacted RLUIPA to “protect the free

9 exercise of religion from unnecessary government interference.” Murphy, 148 F.

10 Supp. 2d at 180 (citation omitted).

11

Under similar facts, the Ninth Circuit found a burden like the one being

12 placed upon Mr. Basra constituted irreparable injury. Warsoldier, 418 F.3d at

13 1001-02 (“We have previously held that putting substantial pressure on an adherent

14 to modify his behavior and to violate his belief infringes on the free exercise of

15 religion . . . . Because Warsoldier has, at a minimum, raised a colorable claim that

16 the exercise of his religious beliefs has been infringed, he has sufficiently

17 established that he will suffer an irreparable injury absent an injunction barring 18 enforcement of the grooming policy against him.”) (internal quotation marks and 19 citations omitted). Therefore, a preliminary injunction is necessary to ensure that 20 Mr. Basra is not threatened with irreparable injury.

21

D. The Balance of Equities Sharply Favor Granting Issuance of a

22

Preliminary Injunction.

23

Mr. Basra is being punished for practicing his religion. He is being deprived

24 of a fundamental right. These facts alone merit the issuance of a preliminary

25 injunction.

26

The interests asserted by Defendants do not alter this balance. Defendants

27 assert that the deprivation of Mr. Basra’s fundamental right is necessary to prevent

28 inmate escape and the concealment of contraband, but enjoining Defendants from

21 


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1 enforcing this policy against Mr. Basra would place no burden upon them. For the

2 initial period of Mr. Basra’s incarceration – when he was at a more secure facility

3 – Defendants did not feel compelled to enforce the Grooming Policy against him.

4 To date, Defendants have not felt it necessary to search Mr. Basra’s beard for

5 contraband and, in fact, have housed him in minimum security facility where he

6 sleeps in an unlocked dormitory. Defendants’ past actions confirm they would not

7 be burdened by an injunction against enforcing the Grooming Policy against Mr.

8 Basra.

9

Mr. Basra has demonstrated he is likely to prevail on his claims. He has also

10 demonstrated that irreparable injury would occur, and that the balance of hardships

11 is sharply in his favor. Public safety will not be imperiled. Rather, the public

12 interest will be served by such an injunction. Accordingly, the United States urges

13 this Court to grant his Motion for a Preliminary Injunction.

14

15

V. CONCLUSION

16

The United States respectfully urges that this Court to grant Mr. Basra’s

17 Motion for a Preliminary Injunction.

18

19

Respectfully submitted,

20
21 ANDRÉ BIROTTE, JR. United States Attorney
22 Central District of California
23

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

24
LEON W. WEIDMAN 25 Assistant United States Attorney 26 Chief, Civil Division
27

SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division

28

22 


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1
 /s/ Erika Johnson-Brooks

ROBYN-MARIE LYON MONTELEONE 
 JONATHAN M. SMITH

2
 Chief, Civil Rights Unit




Chief

3
 ERIKA JOHNSON-BROOKS

Assistant United States Attorney 4
 United States Attorney 


5
 Central District of California

6
 312 North Spring Street




Los Angeles, CA 90012




7


Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section

8


/s/ Samantha K. Trepel

EMILY A. GUNSTON

9


SAMANTHA K. TREPEL

10


Trial Attorneys

11


U.S. Department of Justice




Civil Rights Division 


12


Special Litigation Section




13


950 Pennsylvania Avenue, N.W. 


Washington, D.C. 20530 


14


(202) 514-6255




15


16


17


18


19


20


21


22


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24


25


26


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23 


Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 1 of 9 PageID #: 705

IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION


DAVID RASHEED ALI, Plaintiff,
v.
RICK THALER, DIRECTOR TDCJ-CID JUSTICE
Defendant.

)

)

)

)

Civil Action No. 9:09-cv-52

)

)

)

)

STATEMENT OF INTEREST OF THE UNITED STATES

EXHIBIT C


Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 2 of 9 PageID #: 706

1 THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS rincimtl D~p!lty Assistant Attorney General
3 JONATHAN M. SMITH (DC Bar # 396578) Chie~ Sp~Qial Litigation Section TIMuTHY D. MYGATT (PA Bar # 90403) timothy .mygatt(a),usdoj. gov
5 Sp~cial Coun~~S'pecial Litigation Section EMILY A. GUJ~STON (SBN # 218035) emily. gunston(a),usd~" o v Samantha K. lr~el .C Bar # 992377) samantha.trepel@us OJ.gov Trial Attorney,s
8 United States Department of Justice Civil Rights DiVIsion Special Litigation Section 950 Pennsyrvania Avenue, N.W.
1 Washington, D.C. 20530 Telephone: (202) 514-6225
11 FacSImile: (202) 514-4883 ,1 ANDRE BIROTTE JR.
United States Attorne'y_ 13 LEON W. WEIDMAN
Assistant United States Attorney 1 Chief Civil Division
ROBYN-MARIE LYON MONTELEONE 15 Chief Civil Rights Unit
ERIKA. JOHNSON-BROOKS (SBN 210908) 1 erika.johnson@usdoj.gov
Assistant United States Attorney 1 Federal Building, Suite 7516
300 North Los Angeles Street 18 Los Angeles, CA 90012
Telephone: (213) 894-0474 1 FaCSImile: (213) 894-7819
2 Attorneys for the United States of America
21

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

SUKHJINDER S. BASRA AND )

25 UNITED STATES OF AMERICA )

)

Plaintiffs,

)

)

28

)

No. CVll-01676 SVW (FMOx)
DECLARATION OF JOHN CLARK IN SUPPORT OF BRIEF IN SUPPORT OF PLAINTIFF

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 3 of 9 PageID #: 707

1

)

v.

)

2

)

3 MATTHEW CATE, et at.,

)

)

4

Defendants.

)

·5)

6

)

)

7

)

8 __________________________)

SUKHJINDER S. BASRA'S MOTION FORA PRELIMINARY INJUNCTION
Honorable Stephen V. Wilson
Hearing Date: June 6, 2011 Time: 1:30 p.m. Courtroom: 6

9

10
JOHN L. CLARK, pursuant to 28 U.S.C. § 1746, makes the following

11 declaration under penalty of perjury:
12

13 1. My name is John L. Clark. I am a corrections professional with particular

14

expertise in the operation of a large, complex correctional system.

15 2. I have agreed to work with the United States in this matter to assess policies

16

and practices of the California Department of Corrections and Rehabilitation

17

("CDCR") that restrict the length of prisoners' facial hair.

18 3. I have been involved in corrections for over 35 years, including 25 years at

19

the Federal Bureau of Prisons ("BOP"). From 1991-1997, I served as

20

Assistant Director of BOP. As Assistant Director, I was a member of BOP's

21

Executive Staff, BOP's central decision making body on policy and

22

personnel matters. I oversaw agency policy on all detention-related issues

23

and operations, including the coordination of the operations of all federal

2

pretrial facilities. I regularly visited each federal detention center to review

25

and assess operations.

26 4. Within BOP, I have worked in seven different facilities, including serving as

27

Warden at both the Metropolitan Correctional Center in Miami, Florida

28

2

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 4 of 9 PageID #: 708

1

("MCC Miami") and the United States Penitentiary at Marion, Illinois

2

("USP Marion"), the nation's first "supermax" facility.

3 5. At the conclusion of my time serving as Assistant Director at BOP, Attorney

General Janet Reno appointed me to manage a congressionally established

5

agency tasked with closing the Lorton correctional facility in Washington,

6

DC and transferring its 7,000 inmates to federal custody. The transfer was

7

completed in 2002 and the agency was closed.

8 6. After the completion of the Lorton transfer, I worked from 2002-2009 as a

9

management consultant for several federal agencies, including the U.S.

10

Marshals Service and the Office of the Federal Detention Trustee within the

11

U.S. Department of Justice, where I helped coordinate oversight of local

12

detention facilities used by the Marshals Service for detaining federal

13

pretrial prisoners. During the course of these duties, I became generally

14

familiar with the operations of hundreds of local facilities with contracts to

15

detain federal pretrial prisoners. I also visited a number of local detention

1

facilities.

17 Importance of Religious Exercise in the Corrections Environment

18 7. Corrections professionals widely recognize that allowing prisoners to

19

exercise their religion is an essential part of good corrections management.

20

The closed environment of penal institutions inherently breeds boredom,

21

frustration, and tensions among inmates that may result in aggressive or

22

disruptive behavior. For this reason, providing the comfort of one's religion

23

is an important tool of good corrections management. Encouraging religious

exercise can often reduce management problems in correctional settings by

occupying prisoners with mental stimulation, providing structured activity

on a routine basis, and offering tools for overcoming anger or frustration

27

with the idle existence of life inside prison.

28

3

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 5 of 9 PageID #: 709

1 8. In addition, religious exercise can be an important component of prisoners'

2

and detainees' rehabilitation.

3 Federal Bureau of Prisons

4 9. BOP recognizes the integral role played by religious exercise in managing

5

prisoners in a correctional setting. BOP does not place any restrictions on

6

the length of federal prisoners' hair or beards.

7 10.BOP applies these policies to a diverse population of prisoners and pre-trial

8

detainees. Indeed, BOP incarcerates approximately 215,000 prisoners in

115 correctional facilities, encompassing a wide range of security levels and

10

presenting an array of sophisticated threats to maintaining security and good

11

order. BOP incarcerates gang members, gang leaders, international

12

terrorists, and other violent offenders. It also must manage the risk of

13

violence associated with gang and regional rivalries.

14 11.BOP's policies reflect a lack of tolerance for prisoner escapes and the

15

concealment of contraband.

16 12.BOP policies, along with those of many other correctional facilities in the

17

United States, reflect the fundamental importance of allowing prisoners to .

18

freely exercise their religion. BOP policies were not written in a vacuum;

19

rather, they have been developed and refined based on many years of

2

experience with the real world problems associated with the daily

management of a wide variety of correctional facilities.

2 13.1 have applied BOP's grooming policies as Warden of two high profile federal facilities: MCC Miami and the USP Marion "supermax" facility.
(i) Metropolitan Correctional Center in Miami, FL

25 14.1 served as Warden ofMCC Miami for two years, from 1988-1989. At that

26

time, the facility housed 800-1,100 detainees in a space designed to

2

accommodate only 400.

28

4

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 6 of 9 PageID #: 710

1 IS.Each of these detainees was charged with a federal felony. Occupants of

2

MCC Miami included many very violent offend~rs, dangerous drug dealers

3

and organized crime figures, a terrorist accused of bombing an airliner, and

4

other notorious criminals. Former Panamanian dictator Manuel Noriega was

5

sent to the facility to await prosecution after his seizure by the U.S. military

6

in 1990. After he was convicted, he served a number of years of his

7

sentence there under highly secure conditions.

8 16.Ensuring detainees' freedom of religious exercise has long been an

9

important component of corrections management at MCC Miami. During

10

my tenure there, the facility did not place any restrictions on the length of

11

prisoners' hair or facial hair. That policy remains unchanged.

12 (ii)U.S. Penitentiary, Marion, IL

13 17.1 left MCC Miami in 1989 to become Warden of USP Marion - then the

1

highest security federal prison in the United States. Marion opened in 1968

15

as an administrative maximum security penitentiary to replace Alcatraz and

16

house the nation's most dangerous federal criminals. USP Marion continued

17

to carry out this critical mission until 1993 when the construction of a new

18

administrative maximum security facility in Florence, Colorado was

19

completed and the prisoner population was transferred. At that time, Marion

20

took on the function of a high security federal penitentiary.

21 18.Marion has incarcerated some of the most inventive, escape prone and

22

violent criminals in American history, including mob bosses John Gotti and

23

Demeco Scarfo.

2 19.During my tenure at USP Marion, USP Marion did not place any restrictions

25

on the length of inmates' hair or facial hair. It remains the policy ofUSP

26

Marion to not place any restrictions on the length of inmates' hair or facial

27

hair.

28

5

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 7 of 9 PageID #: 711

1 Analysis of CDCR's Grooming Policy

2 20.I have reviewed court filings in this litigation, incidents reports produced by

3

Defendants, and the declarations of Toni Bair and Chief Deputy Warden

4

Grounds.

5 21. I understand that CDCR currently allows prisoners to wear hair of any

6

length, but restricts the length of prisoners' beards to one-half inch.

7 22.BOP must contend with the constant and sudden change of the appearances

8

of a large number of inmates. Each of the 215,000 inmates may change his

9

or her appearance dramatically and quickly over the course of an

1

incarceration. An inmate may: cut his hair, grow his hair long, change his

11

hair style, lose his hair, gain weight, lose weight, get tattoos, receive scars,

12

lose teeth, and age.

13 23.To aid quick identification of inmates, BOP requires that a new photo be

14

taken and a new identification be issued at regular intervals, and whenever

15

staff notice an inmate's appearance is changing. BOP retains past

16

photographs of each inmate, such that it possesses a series of photographs of

17

each inmate in various states of appearance.

18 24.Professional correctional management requires any facility to maintain

1

safety and security in spite of prisoners' constantly changing appearance.

20

BOP has instituted a variety of security measures that do not depend on

21

personal knowledge and quick identification of inmates to prevent their

22

escape.

23 25.Based on extensive knowledge and experience of managing the day to day

2

operations of a large correctional system, BOP has not found it necessary to

25

restrict beard length in order to maintain security.

26 26.Concealment of contraband is a serious issue in all correctional facilities,

27

and the BOP is vigilant in preventing it. BOP prisoners are searched

28

regularly, randomly, and before and after participating in certain activities,

6

Case 9:09-cv-00052-RC -JKG Document 159-3 Filed 03/29/12 Page 8 of 9 PageID #: 712

1

such as visits. Searches are conducted by running a hand-held metal

2

detection wand over a prisoner's person and/or by requiring the prisoner to

3

run his fingers vigorously through hair and beard and to insert his own

fingers in his mouth and pull cheeks back. These searches are conducted

5

quickly and can be completed in a matter of seconds.

6 27.BOP is subject to severe budgetary limitations, shortfalls, and cuts while

7

incarcerating an increasingly large population of inmates. These budgetary

8

restrictions have not prevented the BOP from administering the security

9

measures described above. Professional correctional management requires

10 . that these measures be taken in any correctional facility.

11

12

13

14

15

16

17

18

19

2

25
26
27 28
7

OSC/2a2s/e2091:109-1c4v:-30400523-0R1C987-7J5K2G3 Document 159-3STAFPiLleEdS 03/29/12 Page 9 of 9 PageIDPAG#E: 02 713
1 I declare under penalty of perjury that the foregoing is tnle and correct.
: DATED~2011
5 6

10
11
1

1

1

1

J

18

)9

23
24
25
2
2 28
7

 
 Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 1 of 33
CLOSED,CONSENT,SA7,STAYDS,STAYED
U.S. District Court [LIVE] Eastern District of TEXAS (Lufkin) CIVIL DOCKET FOR CASE #: 9:09−cv−00052−ZJH

Ali v. Quarterman Assigned to: Magistrate Judge Zack Hawthorn Case in other court: 09−40612
5th Circuit, 10−41045 5th Circuit Court of Appeals, 12−40145 5CA, 14−41165 5CA, 15−40693 Cause: 42:1983 Prisoner Civil Rights Plaintiff

Date Filed: 03/27/2009 Date Terminated: 09/26/2014 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

David Rasheed Ali 1077767 Michael Unit 2664 FM 2054 Tennessee Colony, Tx 75886

represented by Eric M. Albritton Albritton Law Firm − Longview PO Box 2649 111 W. Tyler St. (75601) Longview, TX 75606−2649 (903) 757−8449 Fax: (903) 758−7397 Email: ema@emafirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Aaron Benefield Benefield Law 633 Library Park Drive, Suite E Greenwood, IN 46142 317−887−0050 Fax: 844−637−3650 Email: michael@benefieldlaw.com TERMINATED: 01/13/2016

Shawn A. Latchford Albritton Law Firm − Longview PO Box 2649 111 W. Tyler St. (75601) Longview, TX 75606−2649 903−757−8449 Fax: 903−758−7397 Email: sal@emafirm.com ATTORNEY TO BE NOTICED

V. Defendant Nathaniel Quarterman

represented by John Robert Skrabanek Segal McCambridge Singer & Mahoney, Ltd. − Austin 100 Congress Avenue Suite 800 Austin, TX 78701 512−476−7834 Fax: 512−476−7832 Email: jskrabanek@smsm.com TERMINATED: 01/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 2 of 33

Defendant Rick Thaler, Director TDCJ−CID
Defendant William Stephens, Director TDCJ−CID
Amicus UNITED STATES OF AMERICA

represented by Celamaine Cunniff Attorney General's Office P O Box 12548 Capitol Station Austin, TX 78711 512/463−2080 Fax: 15129362109 Email: cela.cunniff@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marjolyn Carol Gardner Attorney General's Office PO Box 12548 Capitol Station Austin, TX 78711−2548 512/463−2080 Email: carol.gardner@texasattorneygeneral.gov
represented by Celamaine Cunniff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Pope Office of the Attorney General − Administrative Law Division P O Box 12548 Capitol Station Austin, TX 78711−2548 512−463−2080 Fax: 512−936−2109 Email: patrick.pope1@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Jean O'Leary Office of the Attorney General PO Box 12548 Capitol Station Austin, TX 78701 512−463−2080 Fax: 512−936−2109 Email: leah.o'leary@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Randi Davis Russell US Attorney's Office 110 N College Suite 700 Tyler, TX 75702 903/590−1400 Fax: 9035901436 Email: Randi.Russell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 3 of 33

03/27/2009 03/27/2009 03/27/2009 03/27/2009 03/27/2009 03/27/2009 03/30/2009
04/03/2009 04/08/2009 04/20/2009 04/27/2009
04/30/2009 05/19/2009
05/29/2009 06/01/2009 06/04/2009
06/05/2009

1 COMPLAINT (42:1983 Prisoner Civil Rights) against Nathaniel Quarterman, filed by David Rasheed Ali.(djh, ) (Entered: 03/27/2009)
2 MOTION to Appoint Counsel by David Rasheed Ali. (djh, ) (Entered: 03/27/2009)
3 MOTION for Preliminary Injunction by David Rasheed Ali. (djh, ) (Entered: 03/27/2009)
4 MOTION for Leave to Proceed in forma pauperis by David Rasheed Ali. (djh, ) (Entered: 03/27/2009)
ORDER REFERRING CASE to Magistrate Judge Judith K. Guthrie per General Order 05−23. Signed by Judge Thad Heartfield on 3/27/09. (djh, ) (Entered: 03/27/2009)
Magistrate Consent Form Mailed to David Rasheed Ali (djh, ) (Entered: 03/27/2009)
5 ORDER for Initial Partial Filing Fee of $4.30 within 30 days (Initial Partial Filing Fee due by 5/4/2009). Plaintiffs motion for leave to proceed in forma pauperis 2 is GRANTED. Signed by Magistrate Judge Judith K. Guthrie on 3/30/09. (ljw, ) (Entered: 03/31/2009)
6 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 5 Order for Initial Partial Filing Fee, received on 4/2/09. (ljw, ) (Entered: 04/03/2009)
7 MOTION for Leave to Proceed in forma pauperis by David Rasheed Ali. (ljw, ) (Entered: 04/09/2009)
8 Additional Attachments (GRIEVANCE FORMS) to Main Document (ljw, ) (Entered: 04/21/2009)
9 ORDER Re Collection and Payment of Full Filing Fee: Court issueed an partial filing fee of ($4.30) and pla to pay remaining balance of initial partial filing fee and to pay 20 percent of each deposit made into their trust account. Signed by Magistrate Judge Judith K. Guthrie on 4/26/09. (ljw, ) Modified on 8/3/2009 (djh, ). (Entered: 04/27/2009)
10 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 9 Order Re Collection and Payment of Full Filing Fee. (ljw, ) (Entered: 05/01/2009)
11 REPORT AND RECOMMENDATIONS re 1 Complaint filed by David Rasheed Ali. It is accordingly recommended that the above−styled lawsuit be administratively closed and placed on an inactive docket for administrative and statistical purposes. Such lawsuit may be reopened at such time as the decision in Garner v. Morales, currently pending in the Southern District of Texas, becomes final through the conclusion of direct appeal. The administrative closing of this case shall not affect the substantive rights of any party thereto. Signed by Magistrate Judge Judith K. Guthrie on 5/19/09. (ljw, ) (Entered: 05/20/2009)
12 OBJECTION to 11 Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 05/29/2009)
13 MOTION for Leave to File Plaintiff's memorandum of law and brief insupport of relief which in Excess Pages by David Rasheed Ali. (ljw, ) Modified on 6/5/2009 (djh, ). (Entered: 06/01/2009)
14 MEMORANDUM AND OPINION that the report of the Magistrate Judge is adopted as the opinion of the District Court. This case is hereby administratively closed and place on an inactive docket for administrative and statiscal purposes. Such lawsuit may be reopened at such time as the decision in Garner v. Morales, currently pending in the Southern District of Texas, becomes final through the conclusion of direct appeal. The administrative closingof this case shall not affect the substantive rights of any party thereto. It is further ORDERED that any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Thad Heartfield on 6/4/09. (djh, ) Modified on 6/5/2009 (djh, ). (Entered: 06/05/2009)
15 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 11 Report and Recommendations. (ljw, ) (Entered: 06/05/2009)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 4 of 33

06/11/2009 06/12/2009 06/22/2009 06/24/2009 07/06/2009 07/07/2009 07/07/2009
07/08/2009 07/14/2009 07/15/2009 07/20/2009 07/23/2009 07/23/2009
07/23/2009
07/27/2009 07/30/2009 07/31/2009 08/05/2009 08/21/2009 09/10/2009

16 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 14 Memorandum & Opinion. (ljw, ) (Entered: 06/11/2009)
17 NOTICE OF APPEAL by David Rasheed Ali. (ljw, ) (Entered: 06/12/2009)
18 NOTICE of Docketing Record on Appeal from USCA re 17 Notice of Appeal filed by David Rasheed Ali. USCA Case Number 09−40612 (ljw, ) (Entered: 06/22/2009)
19 MOTION for Leave to Appeal in forma pauperis by David Rasheed Ali. (djh, ) (Entered: 06/24/2009)
20 MOTION for Leave to Appeal in forma pauperis by David Rasheed Ali. (ljw, ) (Entered: 07/06/2009)
21 MOTION for Preliminary Injunction by David Rasheed Ali. (ljw, ) (Entered: 07/07/2009)
22 ORDER to Correct Application to Proceed IFP on appeal within 30 days or pay $455 filing fee. Clerk shall send the standard application to proceed ifp on appeal form to Appellant. Signed by Magistrate Judge Judith K. Guthrie on 7/7/09. (djh, ) (Entered: 07/08/2009)
23 AFFIDAVIT and Memorandum in Support by David Rasheed Ali. (Attachments: # 1 Exhibit A, # 2 Exhibit D)(ljw, ) (Entered: 07/08/2009)
24 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 22 Order to Correct Application to Proceed IFP. (ljw, ) (Entered: 07/15/2009)
25 MOTION for Leave to File Excess Pages of Exhibits by David Rasheed Ali. (ljw, ) (Entered: 07/15/2009)
26 MOTION for Leave to Proceed in forma pauperis by David Rasheed Ali. (ljw, ) (Entered: 07/21/2009)
27 ORDER denying 25 Plaintiffs motion for leave to file excess pages without prejudice to its refiling at a proper time and place. Signed by Magistrate Judge Judith K. Guthrie on 7/22/09. (ljw, ) (Entered: 07/23/2009)
28 ORDER for Initial Partial Filing Fee. The Appellant David Rasheeed Ali is assessed an initial partial appellate filing fee of $0.00. The appellant shall pay the balance of the filing fee in periodic installments. The applications for leave to proceed in forma pauperis on appeal pursuant to 28 U.S.C. §1915 19 , 20 & 26 are GRANTED. Signed by Magistrate Judge Judith K. Guthrie on 7/22/09. (ljw, ) (Entered: 07/23/2009)
29 REPORT AND RECOMMENDATIONS re 21 MOTION for Preliminary Injunction filed by David Rasheed Ali. It is accordingly recommended that the Plaintiff's motion for an injunction pending appeal be denied. Signed by Magistrate Judge Judith K. Guthrie on 7/22/09. (ljw, ) (Entered: 07/23/2009)
30 MOTION Requesting Appeal be Heard on the Full Record by David Rasheed Ali. (ljw, ) (Entered: 07/29/2009)
31 ORDER denying 30 Plaintiff's motion for transmission of the district courts record on appeal. Signed by Magistrate Judge Judith K. Guthrie on 7/30/09. (ljw, ) (Entered: 07/30/2009)
Certified Appeal Record for 5th Circuit(ljw, ) (Entered: 07/31/2009)
32 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali as to 29 Report and Recommendations, 28 Order for Initial Partial Filing Fee & 27 Order on Motion for Leave to File Excess Pages. (ljw, ) (Entered: 08/05/2009)
33 MOTION Requesting Permission to File Out of Time Objections by David Rasheed Ali. (Attachments: # 1 Objections)(ljw, ) (Entered: 08/21/2009)
34 Certified and Transmitted Record on Appeal to US Court of Appeals re 17 Notice of Appeal. Sent 1 volume of appeal record. (ljw, ) (Entered: 09/10/2009)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 5 of 33

09/30/2009 09/30/2009 10/21/2009
10/26/2009 10/28/2009 11/09/2009 11/23/2009 12/03/2009
12/15/2009 12/18/2009 12/28/2009 03/29/2010 03/29/2010 04/29/2010 04/29/2010 05/17/2010 06/02/2010
06/03/2010 06/08/2010 06/11/2010 06/14/2010 06/15/2010 06/21/2010

Forwarded copy of docket sheet to David Ali. (djh, ) (Entered: 09/30/2009)
35 ACKNOWLEDGMENT OF RECEIPT by 5th Circuit on September 14, 2009 as to 34 Appeal Record Sent to USCA. (ljw, ) (Entered: 10/01/2009)
36 MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS of the United States Magistrate Judge as the opinion for for the District Court. Further Ordered that the 21 Motion for Preliminary Injunction is denied and the Court grants the 33 Motion for for leave to file out of time objections. Signed by Judge Thad Heartfield on 10/21/09. (djh, ) (Entered: 10/21/2009)
37 NOTICE of Change of Address by David Rasheed Ali (ljw, ) (Entered: 10/26/2009)
38 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on October 23, 2009 as to 36 Order Adopting Report and Recommendations. (ljw, ) (Entered: 10/28/2009)
39 MOTION for Reconsideration re 36 Order Adopting Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 11/10/2009)
40 NOTICE of Change of Address by David Rasheed Ali from Gib Lewis Unit to Michael Unit. (djh, ) (Entered: 11/23/2009)
41 NOTICE of Change of Address by David Rasheed Ali. The Michael Unit address changed from a P O Box to 2664 FM 2054, Tennessee Colony, Texas 75886 (djh, ) (Entered: 12/03/2009)
42 NOTICE of Designation of Attorney in Charge to John Robert Skrabanek on behalf of Nathaniel Quarterman (Skrabanek, John) (Entered: 12/15/2009)
43 Appeal Record on cd sent to Office of the Attorney General(John−Robert Skrabanek). (ljw, ) (Entered: 12/18/2009)
44 ACKNOWLEDGMENT OF RECEIPT by John−Robert Skrabanek on 12/21/09 as to 43 receipt of appeal record on cd. (ljw, ) (Entered: 12/28/2009)
45 AFFIDAVIT by David Rasheed Ali. (ljw, ) (Entered: 03/31/2010)
46 AFFIDAVIT by Israel Williams, Jr.. (ljw, ) (Entered: 03/31/2010)
Partial Filing fee paid per court order: $ 24.30, receipt number 6−1−0022018 (dlk, ) (Entered: 05/10/2010)
Appeal partial filing fee paid per court order: $ 20.00, receipt number 6−1−0022018 (dlk, ) (Entered: 05/10/2010)
47 MOTION for Production of Documents by David Rasheed Ali. (ljw, ) (Entered: 05/18/2010)
48 ORDER SETTING EVIDENTIARY HEARING VIA VIDEO TELECONFERENCING. Video Spears Hearing set for 7/8/2010 10:00 AM before Magistrate Judge Judith K. Guthrie. Signed by Magistrate Judge Judith K. Guthrie on 6/2/2010. (gsg) (Entered: 06/02/2010)
49 ORDER REOPENING CASE. Signed by Magistrate Judge Judith K. Guthrie on 6/3/2010. (gsg) (Entered: 06/04/2010)
50 Request for a Copy of Unpublished Opinions by David Rasheed Ali (ljw, ) (Entered: 06/09/2010)
51 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 6/8/2010 as to 48 Order Setting Hearing. (gsg) (Entered: 06/11/2010)
55 ACKNOWLEDGMENT OF RECEIPT by Office of the General Counsel on 6/11/2010 as to 48 Order Setting Evidentiary Hearing. (gsg) (Entered: 06/23/2010)
52 MOTION to Submit Physical Evidence at the Hearing by David Rasheed Ali. (ljw, ) (Entered: 06/17/2010)
53 MOTION for the court to order the defendants to provide the pla w/ a copy of Gooden v. Crain 335 F Appx 885 (5th Cir 2009) by Nathaniel Quarterman. (Attachments: # 1 envelope)(bjc, ) (Entered: 06/22/2010)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 6 of 33

06/25/2010
07/01/2010 07/02/2010 07/06/2010
07/06/2010 07/06/2010 07/06/2010 07/06/2010 07/06/2010 07/08/2010
07/09/2010 07/13/2010 07/13/2010 07/15/2010 07/16/2010 07/20/2010 07/22/2010 07/22/2010 07/22/2010 07/26/2010

56 USCA JUDGMENT as to 17 Notice of Appeal filed by David Rasheed Ali. It is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. (ljw, ) (Entered: 06/28/2010)
57 MOTION to Appoint Counsel by David Rasheed Ali. (ljw, ) (Entered: 07/02/2010)
58 MOTION for Order to Show Cause by David Rasheed Ali. (ljw, ) (Entered: 07/02/2010)
59 REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE. Recommended that the Plaintiffs motion for reconsideration of the denial of injunctive relief be denied. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/06/2010)
60 ORDER denying 58 Motion for Order to Show Cause. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/06/2010)
61 ORDER denying 57 Motion to Appoint Counsel. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/07/2010)
62 ORDER denying 52 Motion for Physical Evidence. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/07/2010)
63 ORDER denying 47 Motion to Produce Documents. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/07/2010)
64 ORDER denying as moot 53 Motion for Copy of Unpublished Decision. Signed by Magistrate Judge Judith K. Guthrie on 7/6/2010. (gsg) (Entered: 07/07/2010)
Minute Entry for proceedings held before Magistrate Judge Judith K. Guthrie: on 7/8/2010Evidentiary Hearing held Plaintiff and others placed under oath. Plaintiff addresses the court regarding his claims. Court finds the grievance procedure has been exhausted. Consent explained and the plaintiff takes under advisement. Authenticated grievance records, classification records, and chaplincy records received by the court. (Court Reporter P Thompson.) (mpt, ) (Entered: 07/09/2010)
65 AFFIDAVIT of Isreal Williams, Jr., filed by David Rasheed Ali. (leh, ) (Entered: 07/12/2010)
66 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 6/14/2010 as to 60 Order on Motion for Order to Show Cause and 59 Report and Recommendations of US Magistrate Judge. (leh, ) (Entered: 07/13/2010)
67 Plaintiff's TRANSCRIPT REQUEST for Evidentiary Hearing held on July 8, 2010 before Judge Judith Guthrie.(leh, ) (Entered: 07/14/2010)
68 OBJECTION and Response to 59 Report and Recommendations of US Magistrate Judge on plaintiff's motion for reconsideration, by David Rasheed Ali. (leh, ) (Entered: 07/15/2010)
69 Plaintiff's Objection to 60 Order denying Motion for Order to Show Cause, by David Rasheed Ali. (leh, ) (Entered: 07/16/2010)
70 REPORT AND RECOMMENDATION that plaintiff's civil rights lawsuit be dismissed with prejudice as frivolous and for failure to state a claim. Signed by Magistrate Judge Judith K. Guthrie on 7/20/10. (leh, ) (Entered: 07/20/2010)
71 ORDER denying 67 plaintiff's request for transcript at government expense. Signed by Magistrate Judge Judith K. Guthrie on 7/22/10. (leh, ) (Entered: 07/22/2010)
72 OBJECTION to 61 Order denying 57 Motion to appoint counsel by David Rasheed Ali. Modified on 7/26/2010 (leh, ). (Entered: 07/22/2010)
73 RESPONSE by David Rasheed Ali as to the Court's inquiry at an evidentiary hearing held 7/8/10 re a 5th Circuit ruling. (leh, ) (Entered: 07/22/2010)
74 SECOND OBJECTION to 59 Report and Recommendations of United States Magistrate Judge to deny plaintiff's motion for reconsideration of injunctive relief by David Rasheed Ali. (leh, ) (Entered: 07/26/2010)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 7 of 33

07/27/2010 08/03/2010 08/05/2010 08/05/2010 08/05/2010 08/05/2010 08/07/2010 08/13/2010 08/13/2010 08/25/2010 09/08/2010 09/13/2010 09/13/2010 09/16/2010 09/24/2010
09/24/2010
10/05/2010 10/08/2010 10/19/2010 10/20/2010 10/29/2010
11/04/2010

75 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 7/22/10 as to 70 Report and Recommendations. (leh, ) (Entered: 07/27/2010)
76 OBJECTION to 70 Report and Recommendations of US Magistrate Judge by David Rasheed Ali. (leh, ) (Entered: 08/03/2010)
77 MOTION for Leave to File Excess Pages in objection to the Report and Recommendations by David Rasheed Ali. (leh, ) (Entered: 08/05/2010)
78 MOTION for Extension of Time to File Objection to Report and Recommendations by David Rasheed Ali. (leh, ) (Entered: 08/05/2010)
79 ORDER granting 77 Motion for Leave to File Excess Pages. (Guthrie, Judith) (Entered: 08/05/2010)
80 ORDER finding as moot 78 Motion for Extension of Time to File. (Guthrie, Judith) (Entered: 08/05/2010)
81 ORDER denying 39 Motion for Reconsideration. (Guthrie, Judith) (Entered: 08/07/2010)
82 CORRESPONDENCE from David Rasheed Ali re the practice of wearing Islamic headgear. (leh, ) (Entered: 08/13/2010)
83 AFFIDAVIT from David Rasheed Ali re the beard. (leh, ) (Entered: 08/13/2010)
85 Letter requesting docket sheet by David Rasheed Ali. (bjc, ) (mailed docket sheet) (Entered: 08/25/2010)
86 Letter addressed to John Skrabanek from David Rasheed Ali. (leh, ) (Entered: 09/08/2010)
Partial Filing fee paid per court order: $ 30.00, receipt number 6−1−23949 (dlk, ) (Entered: 09/15/2010)
Partial Appeal Filing fee paid per court order: $ 30.00, receipt number 6−1−23949 (dlk, ) (Entered: 09/15/2010)
87 Extraordinary MOTION by David Rasheed Ali. (leh, ) (Entered: 09/17/2010)
88 ORDER ADOPTING 70 REPORT AND RECOMMENDATIONS. This case is dismissed with prejudice for failure to state a claim which relief may be granted. All motions, specifically including but not limited to the Plaintiff's 39 motion for reconsideration of the denial of his motion for injunctive relief are denied. Signed by Judge Thad Heartfield on 9/24/10. (ljw, ) (Entered: 09/24/2010)
89 FINAL JUDGMENT that no relief is granted to the Plaintiff and this case is dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be granted. Signed by Judge Thad Heartfield on 9/24/10. (ljw, ) (Entered: 09/24/2010)
90 Letter to the Court from David Rasheed Ali re disposition of photographs. (leh, ) (Entered: 10/05/2010)
91 NOTICE OF APPEAL as to 89 Final Judgment by David Rasheed Ali. (leh, ) (Entered: 10/12/2010)
92 MOTION for Leave to Appeal in forma pauperis by David Rasheed Ali. (leh, ) (Entered: 10/19/2010)
93 NOTICE of Docketing Record on Appeal from USCA re 91 Notice of Appeal filed by David Rasheed Ali. USCA Case Number 10−41045 (ljw, ) (Entered: 10/20/2010)
94 ORDER granting 92 Motion for Leave to Appeal in forma pauperis. The appellant is assessed an initial partial appellate filing fee of $0.00. The appellant is to pay the balance of the filing fee in periodic installments. The agency having custody of the appellant is to forward 20 percent of the preceding month's income to the district court clerk. Signed by Magistrate Judge Judith K. Guthrie on 10/29/10. (leh, ) (Entered: 10/29/2010)
95 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 11/2/10 as to 94 Order on Motion for Leave to Appeal in forma pauperis. (leh, ) (Entered: 11/04/2010)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 8 of 33

11/05/2010 11/09/2010 11/09/2010 11/10/2010 11/19/2010 11/30/2010
12/09/2010 12/17/2010 12/17/2010
12/27/2010 01/14/2011 01/19/2011
01/20/2011 01/20/2011 01/31/2011
01/31/2011 02/11/2011 03/10/2011 04/04/2011 08/01/2011 08/11/2011 08/12/2011
08/23/2011

96 MOTION for Transmittal of Record to Appellate Court by David Rasheed Ali. (leh, ) (Entered: 11/05/2010)
97 ACKNOWLEDGMENT OF RECEIPT by 5th Circuit COA on 11/4/10 as to 94 Order on Motion for Leave to Appeal in forma pauperis (leh, ) (Entered: 11/09/2010)
98 ACKNOWLEDGMENT OF RECEIPT by TDCJ General Counsel on 11/3/10 as to 94 Order on Motion for Leave to Appeal in forma pauperis. (leh, ) (Entered: 11/09/2010)
NOTICE of Certification of Record on Appeal provided to 5th Circuit Court of Appeals. (leh, ) (Entered: 11/10/2010)
99 MOTION Requesting Records and Transcripts be Transmitted at Government Expense by David Rasheed Ali. (leh, ) (Entered: 11/19/2010)
100 ORDER denying 96 and 97 Motions for Transmission of Records as moot and unnecessary. Signed by Magistrate Judge Judith K. Guthrie on 11/30/10. (leh, ) (Entered: 12/01/2010)
Receipt of state court records from Tyler Division. (leh, ) (Entered: 12/27/2010)
101 REQUEST for Record on Appeal by AAG M. Carol Gardner. (leh, ) (Entered: 12/27/2010)
102 MAILED Record on Appeal consisting of one volume of record, one supplemental volume of record and one folder of state court records to AAG M. Carol Gardner. Fed Ex tracking number 8675 1116 6890. (leh, ) (Entered: 12/27/2010)
103 NOTICE of Receipt of Record on Appeal on 12/20/10 by AAG M. Carol Gardner. (leh, ) (Entered: 12/27/2010)
NOTICE of Receipt of Record on Appeal from AAG M. Carol Gardner. (leh, ) (Entered: 01/24/2011)
NOTICE of Mailing Record on Appeal consisting of one volume of record, 1 Supplemental Record on Appeal consisting of one volume, and one folder of state court records to 5th Circuit Court of Appeals. (leh, ) (Entered: 01/24/2011)
Partial Filing fee paid by TDCJ PLRA per court order: $ 20.00, receipt number 6−1523 (dlk, ) (Entered: 01/24/2011)
Partial Appellate Filing fee paid by TDCJ PLRA per court order: $ 20.00, receipt number 6−1523 (dlk, ) (Entered: 01/24/2011)
104 NOTICE of Receipt of Record on Appeal consisting of 1 volume of record and a Supplemental Record on Appeal consisting of 1 volume of record and 1 folder of state court records by 5th Circuit Court of Appeals. (leh, ) (Entered: 01/31/2011)
105 NOTICE of Mailing 2nd Supplemental Record on Appeal consisting of one DVD Spears Hearing to 5th Circuit Court of Appeals. (leh, ) (Entered: 02/01/2011)
106 NOTICE of Receipt of Supplemental Record on Appeal on 2/2/11 by 5th Circuit Court of Appeals. (leh, ) (Entered: 02/11/2011)
107 APPELLANT'S Rule 62.1 Motion by David Rasheed Ali. (leh, ) (Entered: 03/11/2011)
108 ORDER denying 107 Motion for Post−Judgment Injunctive Relief. Signed by Judge Ron Clark on 4/4/11. (leh, ) (Entered: 04/05/2011)
109 CORRESPONDENCE from David Rasheed Ali re grievance. (leh, ) (Entered: 08/02/2011)
110 NOTICE re Legal Mail by David Rasheed Ali (ljw, ) (Entered: 08/12/2011)
111 ORDER of USCA as to 91 Notice of Appeal filed by David Rasheed Ali. 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. (ljw, ) (Entered: 08/17/2011)
112 ORDER TRANSFERRING CASE. Case reassigned to Judge Ron Clark for all further proceedings. Judge Thad Heartfield no longer assigned to case. Signed by Judge Thad Heartfield on 8/23/11. (ljw, ) (Entered: 08/23/2011)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 9 of 33

09/07/2011 09/07/2011 09/08/2011 10/06/2011 10/12/2011
10/14/2011
10/24/2011 10/24/2011 10/27/2011 11/01/2011 11/10/2011 11/10/2011
11/14/2011 11/28/2011
11/28/2011 11/28/2011 12/01/2011 12/08/2011 12/08/2011 12/09/2011 12/12/2011

Partial Filing fee paid by TDCJ PLRA per court order: $ 20.00, receipt number 6−4851 (mlm, ) (Entered: 09/08/2011)
Partial Appellate Filing fee paid by TDCJ PLRA per court order: $ 20.00, receipt number 6−4851 USCA Case Number 09−40612 (mlm, ) (Entered: 09/08/2011)
113 MOTION for an Expedient Hearing by David Rasheed Ali. (leh, ) (Entered: 09/08/2011)
114 MOTION for Writ of Mandamus by David Rasheed Ali. (ljw, ) (Entered: 10/07/2011)
115 VACATED PER ORDER 164 ORDER TO ANSWER AND SCHEDULING ORDER. The Defendant shall have thirty days from the receipt hereof within which to answer or otherwise plead to the Plaintiff's complaint. Within thirty days after the answer is filed, the parties are to disclose to each other all information relevant to the claims or defenses of any party. Signed by Magistrate Judge Judith K. Guthrie on 10/12/11.(ljw, ) Modified on 4/12/2012 (ljw, ). (Entered: 10/12/2011)
116 Request for a copy of the docket sheet by David Rasheed Ali. (sent a copy on 10/18/11) (ljw, ) (Main Document 116 replaced on 10/18/2011) (ljw, ). (Entered: 10/18/2011)
117 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali om 10/18/11 as to 115 Order to Answer. (ljw, ) (Entered: 10/27/2011)
118 MOTION for Order to Show Cause & MOTION for Temporary Restraining Order by David Rasheed Ali. (ljw, ) (Entered: 10/27/2011)
119 ACKNOWLEDGMENT OF RECEIPT by the Law Enforcement Defense Division on 10/25/11 as to 115 Order to Answer & Scheduling Order. (ljw, ) (Entered: 10/28/2011)
120 ACKNOWLEDGMENT OF RECEIPT by Attorney General on 10/26/11 as to 115 Order to Answer. (ljw, ) (Entered: 11/02/2011)
121 ANSWER to 1 Complaint by Rick Thaler, Director TDCJ−CID.(Gardner, Marjolyn) (Entered: 11/10/2011)
122 RESPONSE in Opposition re 118 MOTION for Order to Show Cause MOTION for Temporary Restraining Order filed by Rick Thaler, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Gardner, Marjolyn) (Entered: 11/10/2011)
123 ORDER denying 113 Plaintiff's motion for an expedient hearing. Signed by Magistrate Judge Judith K. Guthrie on 11/11/11. (ljw, ) (Entered: 11/14/2011)
124 REPORT AND RECOMMENDATIONS re 118 MOTION for Order to Show Cause & MOTION for Temporary Restraining Order filed by David Rasheed Ali. It is recommended that the motion be denied. Signed by Magistrate Judge Judith K. Guthrie on 11/28/11. (ljw, ) (Entered: 11/29/2011)
125 MOTION Requesting an Expedient Hearing by David Rasheed Ali. (ljw, ) (Entered: 11/30/2011)
126 RESPONSE to 122 Defendant's Response in Opposition to Motion for Temporary Restraining Order by David Rasheed Ali. (ljw, ) (Entered: 11/30/2011)
127 RESPONSE to 121 Answer to Complaint by David Rasheed Ali. (ljw, ) (Entered: 12/02/2011)
128 NOTICE of First Initial Disclosure by David Rasheed Ali (ljw, ) (Entered: 12/09/2011)
129 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 12/6/11 as to 124 Report and Recommendations. (ljw, ) (Entered: 12/09/2011)
131 OBJECTION to 124 Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 12/14/2011)
130 NOTICE by Rick Thaler, Director TDCJ−CID Defendant Thaler's Notice of Initial Disclosure (Gardner, Marjolyn) (Entered: 12/12/2011)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 10 of 33

12/13/2011 12/13/2011 12/15/2011 12/16/2011
01/09/2012
01/10/2012 01/13/2012 01/20/2012 01/23/2012 01/31/2012 01/31/2012
01/31/2012 01/31/2012 01/31/2012 02/06/2012
02/17/2012
02/17/2012 02/21/2012 02/22/2012 02/29/2012 03/05/2012 03/07/2012

132 NOTICE to the Court by David Rasheed Ali (ljw, ) (Entered: 12/14/2011)
133 MOTION for Production of Documents by David Rasheed Ali. (ljw, ) (Entered: 12/14/2011)
134 First Request for Admissions by David Rasheed Ali (ljw, ) (Entered: 12/19/2011)
135 ORDER of USCA as to 91 Notice of Appeal filed by David Rasheed Ali. Order re payment of filing fee in full and denying Writ of Mandamus. (ljw, ) (Entered: 12/19/2011)
136 MEMORANDUM ADOPTING 124 REPORT AND RECOMMENDATIONS. The Plaintiff's 118 motion for an order to show cause and a temporary restraining order is denied. Signed by Judge Ron Clark on 1/8/12. (ljw, ) (Entered: 01/09/2012)
137 MOTION for Preliminary Injunction by David Rasheed Ali. (ljw, ) (Entered: 01/10/2012)
138 Witness List by David Rasheed Ali. (ljw, ) (Entered: 01/17/2012)
140 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 1/17/12 as to 136 Order Adopting Report and Recommendations. (ljw, ) (Entered: 01/24/2012)
139 NOTICE of Discovery Disclosure by Rick Thaler, Director TDCJ−CID (Gardner, Marjolyn) (Entered: 01/23/2012)
141 ORDER denying as moot 125 Plaintiff's motion for an expedient hearing. Signed by Magistrate Judge Judith K. Guthrie on 1/31/12. (ljw, ) (Entered: 02/01/2012)
142 REPORT AND RECOMMENDATIONS re 137 MOTION for Preliminary Injunction filed by David Rasheed Ali. It is recommended that the motion be denied. Signed by Magistrate Judge Judith K. Guthrie on 1/31/12. (ljw, ) (Entered: 02/01/2012)
143 ORDER denying as moot 133 Plaintiff's motion for production of documents. Signed by Magistrate Judge Judith K. Guthrie on 1/31/12. (ljw, ) (Entered: 02/01/2012)
144 NOTICE OF APPEAL as to 136 Order Adopting Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 02/02/2012)
145 MOTION for Leave to Appeal in forma pauperis by David Rasheed Ali. (ljw, ) (Entered: 02/02/2012)
146 MOTION to Stay re 115 Order to Answer, Proceedings by Rick Thaler, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Gardner, Marjolyn) (Entered: 02/06/2012)
147 MOTION for Summary Judgment by Rick Thaler, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Gardner, Marjolyn) (Entered: 02/17/2012)
148 Witness List by Rick Thaler, Director TDCJ−CID. (Gardner, Marjolyn) (Entered: 02/17/2012)
149 NOTICE of Docketing Record on Appeal from USCA re 144 Notice of Appeal filed by David Rasheed Ali. USCA Case Number 12−40145 (ljw, ) (Entered: 02/22/2012)
150 Letter requesting docket sheet by David Ali. (bjc)(mailed docket sheet 2/24/2012) (Entered: 02/24/2012)
151 NOTICE of Discovery Disclosure by Rick Thaler, Director TDCJ−CID −Second Supplemental Disclosure (Gardner, Marjolyn) (Entered: 02/29/2012)
152 Second MOTION to Appoint Counsel and Motion to Appoint Expert Witnesses by David Rasheed Ali. (ljw, ) (Entered: 03/07/2012)
154 RESPONSE to Motion re 147 MOTION for Summary Judgment filed by David Rasheed Ali. (bjc) (Entered: 03/09/2012)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 11 of 33

03/08/2012
03/13/2012 03/14/2012
03/16/2012 03/22/2012 03/29/2012
03/29/2012 04/04/2012 04/05/2012 04/05/2012 04/11/2012
04/12/2012 05/02/2012 05/03/2012 05/07/2012
05/10/2012 11/07/2012 11/07/2012 01/14/2013 01/14/2013 01/14/2013

153 ORDER granting 145 motion for leave to appeal in forma pauperis. The Appellant David Ali is assessed an initial partial appellate filing fee of $3.33. Thereafter, the appellant shall pay the balance of the filing fee, which totals $455.00, in monthly periodic installments.. Signed by Magistrate Judge Judith K. Guthrie on 3/8/2012. (bjc) (Entered: 03/08/2012)
156 Request by David Rasheed Ali for a copy of 142 Report and Recommendations. (mailed on 3/15/12) (ljw, ) (Entered: 03/15/2012)
155 REPLY to Response to Motion re 147 MOTION for Summary Judgment filed by Rick Thaler, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Gardner, Marjolyn) (Entered: 03/14/2012)
157 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali of 153 Order Directing Prisoner Payment on 3/13/2012. (bjc) (Entered: 03/16/2012)
158 MOTION to Produce Tangible Things by David Rasheed Ali. (ljw, ) (Entered: 03/23/2012)
159 Amicus Curiae APPEARANCE entered by Randi Davis Russell on behalf of UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Russell, Randi) (Entered: 03/29/2012)
160 Second RESPONSE to 147 MOTION for Summary Judgment filed by David Rasheed Ali. (ljw, ) (Entered: 04/02/2012)
161 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 3/30/12 as to 142 Report and Recommendations. (ljw, ) (Entered: 04/04/2012)
162 OBJECTION to 142 Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 04/09/2012)
163 MOTION to Conduct Discovery by David Rasheed Ali. (ljw, ) (Entered: 04/09/2012)
164 ORDER granting 146 Defendants' motion for a stay of proceedings pending resolution of the appeal. All proceedings in the case are hereby STAYED and the deadlines set out in the scheduling order (docket no. 115) are hereby VACATED. Upon resolution of the appeal, a new scheduling order will be issued if and when needed. Signed by Magistrate Judge Judith K. Guthrie on 4/11/12. (ljw, ) (Entered: 04/12/2012)
165 First Supplemental Witness List by David Rasheed Ali. (ljw, ) (Entered: 04/13/2012)
166 Request for record on appeal by Attorney General, M Carol Gardner. (ljw, ) (Entered: 05/07/2012)
NOTICE of Certification of Supplemental Record on Appeal for 5th Circuit. Doc 101−165 (ljw, ) (Entered: 05/03/2012)
Original Appeal Record sent to Attorney General, M. Carol Gardner by Fedex. Sent 1 vol appeal record, 1 vol 1st supplemental record, 1 vol 2nd supplemental record, 1 expando TDCJ records and 1 DVD Spears Hearing (ljw, ) (Entered: 05/07/2012)
167 Request for a docket sheet by David Rasheed Ali. (mailed on 5/10/12) (ljw, ) (Entered: 05/10/2012)
Partial Filing fee paid BY TDCJ PLRA per court order: $ 10.00, receipt number 6−11152 (mlm, ) (Entered: 11/08/2012)
Partial APPELLATE Filing fee paid BY TDCJ PLRA per court order: $ 10.00, receipt number 6−11152 (mlm, ) (Entered: 11/08/2012)
168 MOTION to Expedite a Hearing by David Rasheed Ali. (ljw, ) (Entered: 01/17/2013)
169 PHOTO EXHIBIT by David Rasheed Ali. (ljw, ) (Entered: 01/17/2013)
170 Request for a docket sheet by David Rasheed Ali. (mailed to plaintiff on this day) (ljw, ) (Entered: 01/17/2013)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 12 of 33

03/08/2013 03/26/2013
03/27/2013
04/09/2013 04/12/2013 04/15/2013 04/22/2013 05/15/2013
05/23/2013 06/03/2013 06/10/2013 06/11/2013
06/18/2013 06/20/2013 06/21/2013 06/26/2013

171 MOTION to Expedite Hearing by David Rasheed Ali. (ljw, ) (Entered: 03/11/2013)
172 USCA JUDGMENT that the appeal is dismissed for lack of jurisdiction. The district court is reminded of this court's prior directive that, on remand, it should reexamine Ali's motion for preliminary injunctive relief, filed in March 2009, as that motion concerns his claim challenging, pursuant to the Religious Land Use and Institutionalized Persons Act of 2000, the grooming policy of the Texas Department of Criminal Justice. (Attachments: # 1 Order)(ljw, ) (Main Document 172 replaced on 3/26/2013) (ljw, ). (Entered: 03/26/2013)
173 WITHDRAWN PER COURT ORDER 178 REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON PLAINTIFF'S MOTIONS FOR INJUNCTIVE RELIEF. It is recommended that the Plaintiff's motions for a preliminary injunction 3 , 21 and 137 , which this Court has re−examined pursuant to the opinion of the Fifth Circuit, be denied. It is further recommended that the 168 & 171 Plaintiff's motions to expedite hearing be denied. Signed by Magistrate Judge Judith K. Guthrie on 3/27/13. (ljw, ) Modified on 5/20/2013 (ljw, ). (Entered: 03/27/2013)
174 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 4/1/13 as to 173 Report and Recommendations. (ljw, ) (Entered: 04/10/2013)
175 OBJECTION to 173 Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 04/15/2013)
176 Second OBJECTION to 173 Report and Recommendations by David Rasheed Ali. (Attachments: # 1 Envelope)(bjc) (Entered: 04/15/2013)
177 NOTICE of Designation of Attorney in Charge to Celamaine Cunniff on behalf of Rick Thaler, Director TDCJ−CID (Cunniff, Celamaine) (Entered: 04/22/2013)
178 ORDER that the 173 Report of the Magistrate Judge dated March 27, 2013 is WITHDRAWN. The Defendants shall have 30 days from the date of receipt of this order in which to show cause why the Plaintiff's requested injunctive relief should not be granted or to otherwise plead as appropriate. Signed by Magistrate Judge Judith K. Guthrie on 5/15/13. (ljw, ) (Entered: 05/20/2013)
179 ORDER denying 168 & 171 Motion to Expedite. Signed by Magistrate Judge Judith K. Guthrie on 5/23/13. (ljw, ) (Entered: 05/23/2013)
180 OBJECTIONS to The District Court's Handling of this Case by David Rasheed Ali (ljw, ) (Entered: 06/05/2013)
181 RESPONSE to 178 Order, Defendant Thaler's Response to Court's Order and Opposition to Plaintiff's Motion for Temporary Restraining Order filed by Rick Thaler, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 06/10/2013)
182 ORDER that the Defendants shall have 30 days from the date of entry of this order in which to supplement their motion for summary judgment in such manner as they deem appropriate. The Plaintiff shall there upon have 20 days from the date of the Defendants' supplementation in which to file such response as he may have. Signed by Magistrate Judge Judith K. Guthrie on 6/11/13. (ljw, ) (Entered: 06/12/2013)
183 Letter requesting copy of docket sheet by David Rasheed Ali. (bjc, ) (mailed docket sheet 6/18/2013) (Entered: 06/18/2013)
184 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 6/17/2013 re 182 Order. (bjc, ) (Entered: 06/20/2013)
185 RESPONSE to 181 Response to 178 order by David Rasheed Ali. (Attachments: # 1 Envelope)(bjc, ) (Entered: 06/21/2013)
186 Notice to the Court of Motion for Writ of Mandamus filed with the 5th Circuit Court of Appeals by David Rasheed Ali. (ljw, ) (Entered: 06/26/2013)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 13 of 33

07/10/2013 07/11/2013 07/11/2013 07/11/2013
07/22/2013 07/26/2013 08/08/2013 08/15/2013 08/19/2013 08/22/2013 08/23/2013 08/29/2013 09/04/2013

187 NOTICE by Rick Thaler, Director TDCJ−CID Defendant Thaler's Notice of Substitution of Parties (Cunniff, Celamaine) (Entered: 07/10/2013)
188 NOTICE by William Stephens, Director TDCJ−CID of Third Supplemental Disclosures (Cunniff, Celamaine) (Entered: 07/11/2013)
189 Supplemental MOTION for Summary Judgment by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 07/11/2013)
190 Additional Attachments to Main Document: 189 Supplemental MOTION for Summary Judgment.. (Attachments: # 1 Appendix 001−010, # 2 Appendix 011−016, # 3 Appendix 017−026, # 4 Appendix 027−029, # 5 Appendix 030, # 6 Appendix 031−040, # 7 Appendix 041−047, # 8 Appendix 048−055, # 9 Appendix 056−059, # 10 Appendix 060, # 11 Appendix 061−062, # 12 Appendix 063−071, # 13 Appendix 072−075, # 14 Appendix 076−079, # 15 Appendix 080, # 16 Appendix 081−085, # 17 Appendix 086−088, # 18 Appendix 089−093, # 19 Appendix 094−098, # 20 Appendix 099−102, # 21 Appendix 103−105, # 22 Appendix 106−108, # 23 Appendix 109)(Cunniff, Celamaine) (Entered: 07/12/2013)
191 Request for Docket Sheet by David Rasheed Ali. (Mailed on 7/26/13) (ljw, ) (Entered: 07/26/2013)
192 RESPONSE to 189 Supplemental MOTION for Summary Judgment filed by David Rasheed Ali. (Attachments: # 1 part 2)(ljw, ) (Entered: 07/30/2013)
193 REPORT AND RECOMMENDATIONS re 189 Supplemental MOTION for Summary Judgment filed by William Stephens, Director TDCJ−CID. It is recommended that the motion be denied. Signed by Magistrate Judge Judith K. Guthrie on 8/8/13. (ljw, ) (Entered: 08/09/2013)
Case Reassigned to Magistrate Judge Zack Hawthorn pursuant to GO 13−13. Magistrate Judge Judith K. Guthrie no longer assigned to the case. (bjc, ) (Entered: 08/16/2013)
194 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 8/13/13 as to 193 Report and Recommendations. (ljw, ) (Entered: 08/21/2013)
195 MOTION for Extension of Time to File Objections to Report and Recommendations by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 08/22/2013)
196 OBJECTION to 193 Report and Recommendations by David Rasheed Ali. (ljw, ) (Entered: 08/26/2013)
197 OBJECTION to 193 Report and Recommendations by William Stephens, Director TDCJ−CID. (Cunniff, Celamaine) (Entered: 08/29/2013)
198 ORDER denying the petition for a writ of mandamus without prejudice to Ali's reinstating it if the District Court has not ruled within 180 days of the date of this order. Circuit Judges: Smith, Prado, and Graves. Attachments:

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 14 of 33

09/19/2013 09/25/2013 10/16/2013 10/16/2013 11/12/2013 11/25/2013
11/25/2013 11/27/2013
12/03/2013 12/05/2013 12/06/2013 12/09/2013 12/10/2013
12/10/2013 12/12/2013 12/19/2013
12/23/2013
01/02/2014
01/07/2014
01/15/2014

# 1 USCA Cover Letter, # 2 USCA Letter to TDCJ)(dlc, ) (Entered: 09/05/2013)
199 RESPONSE to 197 Objection to Report and Recommendations filed by David Rasheed Ali. (ljw, ) (Entered: 09/20/2013)
200 MOTION to Compel by David Rasheed Ali. (ljw, ) (Entered: 09/30/2013)
201 MOTION to Expedite Hearing by David Rasheed Ali. (ljw, ) (Entered: 10/16/2013)
202 AFFIDAVIT by David Rasheed Ali. (ljw, ) (Entered: 10/17/2013)
203 Request for a Docket Sheet by David Rasheed Ali. (Mailed on 11/14/13) (ljw, ) (Entered: 11/14/2013)
204 ORDER OVERRULING, IN PART, AND GRANTING, IN PART 196 Objection to Report and Recommendations filed by David Rasheed Ali & 197 Objection to Report and Recommendations filed by William Stephens, Director TDCJ−CID. The case is recommitted to the Magistrate Judge for further factual development and for a recommendation concerning plaintiff's motion for a preliminary injunction. Signed by Judge Ron Clark on 11/25/13. (ljw, ) (Entered: 11/25/2013)
205 AFFIDAVIT of Israel Williams, Jr. by David Rasheed Ali. (ljw, ) (Entered: 11/26/2013)
206 ORDER Setting Status Conference. Conference is set for 12/9/2013 at 11:00 AM via videoconferencing before Magistrate Judge Zack Hawthorn. Signed by Magistrate Judge Zack Hawthorn on 11/27/13. (ljw, ) (Entered: 11/27/2013)
207 MOTION for Temporary Restraining Order by David Rasheed Ali. (ljw, ) (Entered: 12/04/2013)
208 ACKNOWLEDGMENT OF RECEIPT by Program Specialist on 12/2/13 as to 206 Order Setting a Hearing. (ljw, ) (Entered: 12/06/2013)
209 ACKNOWLEDGMENT OF RECEIPT by First Assistant Attorney General on 12/4/13 as to 206 Order Setting a Hearing. (ljw, ) (Entered: 12/06/2013)
212 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: Status Conference held on 12/9/2013. (Video Op: Piper, T..) (ttp, ) (Entered: 12/11/2013)
210 FILED IN ERROR per attorney. Please ignore. NOTICE of Attorney Appearance by Leah Jean O'Leary on behalf of William Stephens, Director TDCJ−CID, Rick Thaler, Director TDCJ−CID (O'Leary, Leah) Modified on 12/10/2013 (tkd, ). (Entered: 12/10/2013)
211 NOTICE of Attorney Appearance by Leah Jean O'Leary on behalf of William Stephens, Director TDCJ−CID (O'Leary, Leah) (Entered: 12/10/2013)
213 ACKNOWLEDGMENT OF RECEIPT by David Rasheed Ali on 12/3/13 as to 206 Order Setting Hearing. (ljw, ) (Entered: 12/13/2013)
215 ORDER that Mr. Eric Albritton at ema@emafirm.com and Mr. Michael Benefield are appointed as counsel of record for the plaintiff in this proceeding. Signed by Magistrate Judge Zack Hawthorn on 12/19/13. (ljw, ) (Entered: 12/19/2013)
216 MOTION to Withdraw as Attorney by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Skrabanek, John) (Entered: 12/23/2013)
217 ORDER granting 216 Motion to Withdraw as Attorney. Attorney John Robert Skrabanek terminated. Signed by Magistrate Judge Zack Hawthorn on 1/2/14. (ljw, ) (Entered: 01/02/2014)
218 MOTION to Prohibit Defendants and Prison Officials from Harrasing, Intimidating or Retaliating Against Plaintiff's Witness by David Rasheed Ali. (ljw, ) (Entered: 01/08/2014)
220 SCHEDULING ORDER: Final Pretrial Conference is set for 4/28/2014 at 9:30 AM in Ctrm 102 (Lufkin) before Magistrate Judge Zack Hawthorn. The case is set for a bench

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 15 of 33

01/16/2014 01/17/2014 01/17/2014 01/17/2014 01/21/2014 01/21/2014 01/31/2014
02/04/2014
02/05/2014 02/13/2014 02/14/2014 02/18/2014
02/19/2014 02/21/2014 02/24/2014 02/24/2014

trial on April 28, 2014 at 1:30 p.m. at the Ward R. Burke United States Courthouse, 104 North Third Street, Lufkin, Texas. Signed by Magistrate Judge Zack Hawthorn on 1/15/14. (ljw, ) (Entered: 01/16/2014)
Bench Trial set for 4/28/2014 at 1:30 PM in Ctrm 102 (Lufkin) before Magistrate Judge Zack Hawthorn. (ljw, ) (Entered: 01/16/2014)
221 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Fourth Supplemental Disclosure (Cunniff, Celamaine) (Entered: 01/17/2014)
222 CONSENT to Proceed Before US Magistrate Judge by David Rasheed Ali, William Stephens, Director TDCJ−CID. Case reassigned to Magistrate Judge Zack Hawthorn. (bjc) (Entered: 01/21/2014)
223 ORDER assigning case to Judge Zack Hawthorn by consent of the parties for all further proceedings and entry of judgment. Signed by Judge Ron Clark on 1/17/2014. (bjc) (Entered: 01/21/2014)
224 ORDER granting 201 Motion to Expedite the Hearing. Signed by Magistrate Judge Zack Hawthorn on 1/20/14. (ljw, ) (Entered: 01/22/2014)
225 ORDER denying as moot 195 Motion for Extension of Time. Signed by Magistrate Judge Zack Hawthorn on 1/20/14. (ljw, ) (Entered: 01/22/2014)
226 RESPONSE to Motion re 218 MOTION to Prohibit Defendants and Prison Officials from Harrasing, Intimidating or Retaliating Against Plaintiff's Witness filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 01/31/2014)
227 MEMORANDUM OPINION AND ORDER. The Plaintiff's requests for a temporary restraining order and a preliminary injunction are GRANTED to the extent that William B. Stephens, his successors, and all persons acting in concert with him are RESTRAINED and ENJOINED from enforcing the TDCJ grooming policy prohibiting David Rasheed Ali from wearing and maintaining a quarter−inch beard as an exercise of his rights under the RLUIPA. In all other respects, the Plaintiff's motions for a temporary restraining order and preliminary injunction are DENIED. Signed by Magistrate Judge Zack Hawthorn on 2/4/14. (ljw, ) (Entered: 02/05/2014)
228 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Notice of 5th Supplemental Disclosure (Cunniff, Celamaine) (Entered: 02/05/2014)
230 REPLY to RESPONSE to 226 Motion filed by David Rasheed Ali. (ljw, ) (Entered: 02/18/2014)
229 Opposed MOTION Motion for Leave to Take Limited Discovery by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 02/14/2014)
231 Opposed Emergency MOTION for expedited briefing on 229 motion for leave to take limited discovery by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) Modified on 2/18/2014 (bjc, ). (Entered: 02/18/2014)
232 ORDER granting 231 motion for expedited briefing. Defendant shall file a response to plaintiff's motion for leave to take limited discovery on, or before, February 24, 2014. Signed by Magistrate Judge Zack Hawthorn on 2/19/14. (ljw, ) (Entered: 02/19/2014)
233 Joint MOTION for Leave to Take Expert Discovery by David Rasheed Ali, William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 02/21/2014)
234 RESPONSE in Opposition re 229 Opposed MOTION Motion for Leave to Take Limited Discovery filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 02/24/2014)
235 ORDER granting 233 parties' joint motion for leave to take expert discovery. The defendant shall designate expert witnesses and disclose their expert reports on or before March 3, 2014. The plaintiff shall designate expert witnesses and disclose their expert reports on or before March 28, 2014. The parties shall complete their expert

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 16 of 33

02/25/2014
02/27/2014 03/03/2014 03/03/2014 03/03/2014 03/03/2014 03/04/2014 03/04/2014
03/04/2014
03/04/2014 03/05/2014 03/06/2014 03/11/2014 03/11/2014 03/12/2014

depositions on or before April 18,2014. Signed by Magistrate Judge Zack Hawthorn on 2/24/14. (ljw, ) (Entered: 02/25/2014)
236 ORDER Setting Hearing on 229 Opposed MOTION Motion for Leave to Take Limited Discovery. Motion Hearing is set for 2/27/2014 at 3:00 PM by telephone before Magistrate Judge Zack Hawthorn. The parties shall provide the telephone numbers where they may be reached for the hearing on or before February 26, 2014. Signed by Magistrate Judge Zack Hawthorn on 2/25/14. (ljw, ) (Entered: 02/26/2014)
237 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: Motion Hearing held on 2/27/2014 re 229 Opposed MOTION Motion for Leave to Take Limited Discovery filed by David Rasheed Ali. (DCR op: Piper, T.) (ttp, ) (Entered: 02/28/2014)
ORAL ORDER − Due to network issues, counsel for the Defendant has notified the court she is unable to comply with the expert disclosure deadline that is set to expire today. As such, the court extends the deadline by three (3) days. Signed by Magistrate Judge Zack Hawthorn on 03/03/2014. (ttp, ) (Entered: 03/03/2014)
238 NOTICE of Attorney Appearance by Shawn Alexander Latchford on behalf of David Rasheed Ali (Latchford, Shawn) (Entered: 03/03/2014)
239 Unopposed MOTION for Extension of Time to File Plaintiff's Unopposed Motion for Extension of Time to Identify Inmate Witnesses by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 03/03/2014)
240 ORDER granting 229 opposed motion to take limited discovery. Signed by Magistrate Judge Zack Hawthorn on 3/3/14. (ljw, ) (Entered: 03/04/2014)
241 ORDER granting 239 plaintiff's motion for an extension of time to identify inmates witnesses. Plaintiff shall identify any inmate witnesses and their inmate numbers on, or before, March 6, 2014. Signed by Magistrate Judge Zack Hawthorn on 3/4/14. (ljw, ) (Entered: 03/04/2014)
242 NOTICE by David Rasheed Ali Plaintiff's Notice of Service of Subpoenas to the California Department of Corrections and Rehabilitation (Attachments: # 1 Exhibit Exhibit 1 − Subpoena to Produce Documents, Information or Objects or to Permit Inspection of Premises to California Department of Corrections and Rehabilitation, # 2 Exhibit Exhibit 2 − Subpoena to Testify at a Deposition to California Department of Corrections and Rehabilitation)(Albritton, Eric) (Entered: 03/04/2014)
243 NOTICE by David Rasheed Ali Plaintiff's Notice of Service of Subpoenas to the Federal Bureau of Prisons (Attachments: # 1 Exhibit 1 − Subpoena to Produce Documents, Information or Objects or to Permit Inspection of Premises, # 2 Exhibit 2 − Subpoena to Testify at a Deposition)(Albritton, Eric) (Entered: 03/04/2014)
244 NOTICE by David Rasheed Ali Plaintiff's Notice of Service of Deposition Notice to the Texas Department of Criminal Justice − Correctional Institutions Division (TDCJ−CID) (Albritton, Eric) (Entered: 03/04/2014)
245 NOTICE by William Stephens, Director TDCJ−CID Defendant Stephens Designation of Expert Witnesses (Cunniff, Celamaine) (Entered: 03/05/2014)
246 NOTICE by David Rasheed Ali Plaintiff's Notice of Inmate Witnesses (Albritton, Eric) (Entered: 03/06/2014)
247 NOTICE by David Rasheed Ali re 246 Notice (Other) Plaintiff's Amended Notice of Inmate Witnesses (Albritton, Eric) (Entered: 03/11/2014)
248 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Notice of Sixth Supplemental Disclosure (Cunniff, Celamaine) (Entered: 03/11/2014)
249 NOTICE of Attorney Appearance by Patrick Pope on behalf of William Stephens, Director TDCJ−CID (Pope, Patrick) (Entered: 03/12/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 17 of 33

03/13/2014 03/13/2014 03/14/2014 03/20/2014 03/20/2014
03/20/2014 03/20/2014
03/20/2014 03/20/2014
03/20/2014

250 Opposed MOTION for Protective Order by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(O'Leary, Leah) (Entered: 03/13/2014)
251 RESPONSE to 244 Notice (Other) Defendant Stephens Responses and Objections to Plaintiffs Notice of Rule 30(b)(6) Depositions by William Stephens, Director TDCJ−CID. (O'Leary, Leah) (Entered: 03/13/2014)
252 RESPONSE to 247 Notice (Other) of Plaintiff's Amended Inmate Witness List filed by William Stephens, Director TDCJ−CID. (Pope, Patrick) (Entered: 03/14/2014)
253 WITHDRAWN PER COURT ORDER 289 MOTION for Writ of Habeas Corpus ad testificandum issued as to David Rasheed Ali (TDCJ−ID# 1077767)and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/20/2014)
254 WITHDRAWN PER COURT ORDER 289 ORDER granting 253 Motion for Writ of Habeas Corpus ad testificandum. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of David Rasheed Ali (TDCJ−ID# 1077767) a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out.bSigned by Magistrate Judge Zack Hawthorn on 3/20/14. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/20/2014)
255 WITHDRAWN PER COURT ORDER 285 MOTION for Writ of Habeas Corpus ad testificandum issued as to Johnica Lynn Pryor, TDCJ #1256883 and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
256 WITHDRAWN PER COURT ORDER 285 ORDER granting 255 Motion for Writ of Habeas Corpus ad testificandum as to Johnica Lynn Pryor, TDCJ#1256883. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of Johnica Lynn Pryor, TDCJ #1256883 a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out.Signed by Magistrate Judge Zack Hawthorn on 3/20/14. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
257 WITHDRAWN PER COURT ORDER 287 MOTION for Writ of Habeas Corpus ad testificandum issued as to Habib Mohamed, TDCJ #1624494 and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
258 WITHDRAWN PER COURT ORDER 287 ORDER granting 257 Motion for Writ of Habeas Corpus ad testificandum as to Habib Mohamed, TDCJ #1624494. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of Habib Mohamed, TDCJ #1624494 a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out. Signed by Magistrate Judge Zack Hawthorn on 3/20/14. Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
259 WITHDRAWN PER COURT ORDER 288 MOTION for Writ of Habeas Corpus ad testificandum isued as to Maurice Baldwin Canty, TDCJ #01311118 and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 18 of 33

03/20/2014
03/20/2014 03/20/2014
03/20/2014 03/20/2014
03/24/2014 03/25/2014 03/26/2014 03/26/2014

260 WITHDRAWN PER COURT ORDER 288 ORDER granting 259 Motion for Writ of Habeas Corpus ad testificandum as to Maurice Baldwin Canty, TDCJ #01311118. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of Maurice Baldwin Canty, TDCJ #01311118 a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out. Signed by Magistrate Judge Zack Hawthorn on 3/20/14. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
261 WITHDRAWN PER COURT ORDER 284 MOTION for Writ of Habeas Corpus ad testificandum issued as to Isreal Williams, TDCJ #1163553 and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
262 WITHDRAWN PER COURT ORDER 284 ORDER granting 261 Motion for Writ of Habeas Corpus ad testificandum as to Isreal Williams, TDCJ #1163553. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of Isreal Williams, TDCJ #1163553 a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out.Signed by Magistrate Judge Zack Hawthorn on 3/20/14.(ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
263 WITHDRAWN PER ORDER 286 MOTION for Writ of Habeas Corpus ad testificandum issued as to Orlando Craig Green, TDCJ #00384043 and emailed to USM for service. (ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
264 WITHDRAWN PER COURT ORDER 286 ORDER granting 263 Motion for Writ of Habeas Corpus ad testificandum as to Orlando Craig Green, TDCJ #00384043. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of Orlando Craig Green, TDCJ #00384043 a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out.Signed by Magistrate Judge Zack Hawthorn on 3/20/14.(ljw, ) Modified on 4/23/2014 (ljw, ). (Entered: 03/21/2014)
265 RESPONSE in Opposition re 250 Opposed MOTION for Protective Order filed by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 03/24/2014)
266 Emergency MOTION to Compel Plaintiff's Emergency Motion to Compel Defendant to Designate Witnesses for 30(b)(6) Testimony by David Rasheed Ali. (Attachments: # 1 Exhibit A − Shave Pass Guidelines, # 2 Exhibit B − Vincent, Bobby Expert Report & Exhibits, # 3 Text of Proposed Order)(Albritton, Eric) (Entered: 03/25/2014)
267 NOTICE by William Stephens, Director TDCJ−CID Vacation Advisory to the Court (Cunniff, Celamaine) (Entered: 03/26/2014)
268 Emergency MOTION to Continue Plaintiff's Emergency Motion to Continue Trial by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 03/26/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 19 of 33

03/27/2014 03/28/2014 03/28/2014
03/28/2014 04/02/2014
04/03/2014 04/04/2014 04/04/2014

269 ORDER RESETTING TRIAL. Plaintiff's emergency motion for a continuance 268 is GRANTED. Final PreTrial Conference and Bench Trial are set for 7/14/2014 at 10:30 AM in Ctrm 102 (Lufkin) before Magistrate Judge Zack Hawthorn. Signed by Magistrate Judge Zack Hawthorn on 3/27/14. (ljw, ) (Entered: 03/27/2014)
270 REPLY to Response to Motion re 250 Opposed MOTION for Protective Order filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 03/28/2014)
271 RESPONSE to Motion re 266 Emergency MOTION to Compel Plaintiff's Emergency Motion to Compel Defendant to Designate Witnesses for 30(b)(6) Testimony filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Exhibit A: Affidavit of Lisa A. Lopez, Assistant Director of Health Information Management, # 2 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 03/28/2014)
272 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Notice of Seventh Supplemental Disclosure (Cunniff, Celamaine) (Entered: 03/28/2014)
273 Emergency MOTION Plaintiff's Emergency Motion for Entry of Docket Control Order by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − O'Leary Correspondence, # 3 Exhibit B − Correspondence)(Albritton, Eric) (Entered: 04/02/2014)
274 ACKNOWLEDGMENT OF RECEIPT by the Director of Classification and Records re writs on Ali, Green, Williams, Canty, Mohamed, Pryor. (bjc) (Entered: 04/04/2014)
275 ***FILED IN ERROR. PLEASE IGNORE.*** NOTICE by William Stephens, Director TDCJ−CID VACATION ADVISORY TO THE COURT (O'Leary, Leah) Modified on 4/4/2014 (bjc, ). (Entered: 04/04/2014)
***FILED IN ERROR. Document # 275, vacation advisory. Vacation letters are not filed with the court. PLEASE IGNORE.***

04/04/2014 04/04/2014 04/04/2014
04/04/2014
04/14/2014 04/14/2014 04/15/2014 04/15/2014

(bjc) (Entered: 04/04/2014)
276 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Notice of Eighth Supplemental Disclosure (Cunniff, Celamaine) (Entered: 04/04/2014)
277 ORDER denying 250 Motion for Protective Order and 266 Motion to Compel. Signed by Magistrate Judge Zack Hawthorn on 4/4/2014. (bjc) (Entered: 04/04/2014)
278 ORDER granting 273 Motion for entry of a docket control order. Plaintiff shall electronically serve his expert reports on or before May 5, 2014. The parties shall complete their expert discovery on or before May 20, 2014. Signed by Magistrate Judge Zack Hawthorn on 4/4/2014. (bjc) (Entered: 04/04/2014)
279 RESPONSE to Motion re 273 Emergency MOTION Plaintiff's Emergency Motion for Entry of Docket Control Order filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 04/04/2014)
280 Unopposed MOTION to Depose Incarcerated Persons by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(O'Leary, Leah) (Entered: 04/14/2014)
281 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Defendant Stephens' Notice of Ninth Supplemental Disclosure (Cunniff, Celamaine) (Entered: 04/14/2014)
282 NOTICE by David Rasheed Ali Plaintiff's Second Amended Notice of Inmate Witnesses (Albritton, Eric) (Entered: 04/15/2014)
283 ORDER granting 280 defendant's motion to depose plaintiff and his designated five inmate witnesses is GRANTED. The depositions shall take place on, or before, June 6, 2014. Signed by Magistrate Judge Zack Hawthorn on 4/15/14. (ljw, ) (Entered: 04/17/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 20 of 33

04/23/2014 04/23/2014 04/23/2014 04/23/2014 04/23/2014 04/23/2014 05/02/2014 05/09/2014 05/15/2014 05/27/2014 05/29/2014 05/29/2014 06/11/2014 06/12/2014 06/12/2014 06/13/2014 06/16/2014
06/16/2014 06/23/2014

284 ORDER Withdrawing 261 Writ and 262 Order on Motion for Writ of Habeas Corpus ad testificandum as to Israel Williams. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
285 ORDER WITHDRAWING 255 Writ and 256 Order on Motion for Writ of Habeas Corpus ad testificandum as to Johnica Lynn Pryor. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
286 ORDER WITHDRAWING 263 Writ and 264 Order on Motion for Writ of Habeas Corpus ad testificandum as to Orlando Craig Green. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
287 ORDER WITHDRAWING 257 Writ and 258 Order on Motion for Writ of Habeas Corpus ad testificandum as to Habib Mohamed. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
288 ORDER WITHDRAWING 259 Writ and 260 Order on Motion for Writ of Habeas Corpus ad testificandum as to Maurice Baldwin Canty. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
289 ORDER WITHDRAWING 253 Writ and 254 Order on Motion for Writ of Habeas Corpus ad testificandum as to David Rasheed Ali. Signed by Magistrate Judge Zack Hawthorn on 4/23/14. (ljw, ) (Entered: 04/23/2014)
290 NOTICE of Discovery Disclosure by William Stephens, Director TDCJ−CID Defendant Stephens' Notice of Tenth Supplemental Disclosure (Cunniff, Celamaine) (Entered: 05/02/2014)
291 Unopposed MOTION for Entry of Agreed Protective Order by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 05/09/2014)
292 ORDER granting 291 Motion for Agreed Protective Order. Signed by Magistrate Judge Zack Hawthorn on 5/15/14. (ljw, ) (Entered: 05/15/2014)
293 NOTICE by William Stephens, Director TDCJ−CID of 11th Supplemental Disclosure (Cunniff, Celamaine) (Entered: 05/27/2014)
294 NOTICE by William Stephens, Director TDCJ−CID of 12th Supplemental Disclosure (Cunniff, Celamaine) (Entered: 05/29/2014)
295 MOTION to Intervene by David Rasheed Ali. (ljw, ) (Entered: 05/30/2014)
296 NOTICE by William Stephens, Director TDCJ−CID of 13th Supplemental Disclosure (Cunniff, Celamaine) (Entered: 06/11/2014)
297 Agreed MOTION for Extension of Time to File Joint Pretrial Order by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 06/12/2014)
298 NOTICE by William Stephens, Director TDCJ−CID of 14th Supplemental Disclosures (Cunniff, Celamaine) (Entered: 06/12/2014)
ORAL ORDER granting 297 Motion for Extension of Time to File. Signed by Magistrate Judge Zack Hawthorn on 6−13−2014. (Hawthorn, Zack) (Entered: 06/13/2014)
299 MOTION to Strike PLAINTIFF'S PROPOSED EXPERT TESTIMONY UNDER DAUBERT AND RULE OF EVIDENCE 702 by William Stephens, Director TDCJ−CID. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(O'Leary, Leah) (Entered: 06/16/2014)
300 ORDER denying 295 Motion to Intervene. Signed by Magistrate Judge Zack Hawthorn on 6/16/14. (ljw, ) (Entered: 06/17/2014)
301 Trial Witness List by William Stephens, Director TDCJ−CID. (Cunniff, Celamaine) (Entered: 06/23/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 21 of 33

06/23/2014 06/23/2014 06/24/2014 06/26/2014 06/26/2014 06/26/2014 06/26/2014 06/27/2014 06/27/2014 06/27/2014
06/30/2014
06/30/2014
07/01/2014
07/01/2014
07/03/2014 07/03/2014

302 Unopposed MOTION for Extension of Time to File the Joint Final Pre−Trial Order by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 06/23/2014)
303 Exhibit List by William Stephens, Director TDCJ−CID.. (Cunniff, Celamaine) (Entered: 06/23/2014)
304 ORAL ORDER granting 302 Motion for Extension of Time to File. Signed by Magistrate Judge Zack Hawthorn on 6−24−2014. (Hawthorn, Zack) (Entered: 06/24/2014)
305 Proposed Findings of Fact by William Stephens, Director TDCJ−CID. (Cunniff, Celamaine) (Entered: 06/26/2014)
306 Exhibit List Plaintiff's Exhibit List by David Rasheed Ali.. (Albritton, Eric) (Entered: 06/26/2014)
307 Plaintff's Trial Witness List by David Rasheed Ali. (Albritton, Eric) (Entered: 06/26/2014)
308 Proposed Pretrial Order JOINT FINAL PRE−TRIAL ORDER by David Rasheed Ali, William Stephens, Director TDCJ−CID. (Albritton, Eric) (Entered: 06/26/2014)
309 NOTICE by David Rasheed Ali re 303 Exhibit List Plaintiff's Notice of Objection to Defendant's Exhibits and Exhibit List (Albritton, Eric) (Entered: 06/27/2014)
310 NOTICE by William Stephens, Director TDCJ−CID of 16th Supplemental Disclosure (Cunniff, Celamaine) (Entered: 06/27/2014)
311 MOTION to Strike Defendant Stephens' Motion to Strike Plaintiff's Proposed Expert Testimony of Roy Gravette Under Daubert and Rule of Evidence 702 by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(O'Leary, Leah) (Entered: 06/27/2014)
312 Additional Attachments to Main Document: 311 MOTION to Strike Defendant Stephens' Motion to Strike Plaintiff's Proposed Expert Testimony of Roy Gravette Under Daubert and Rule of Evidence 702.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(O'Leary, Leah) (Entered: 06/30/2014)
313 RESPONSE to 306 Exhibit List, 307 Witness List OBJECTIONS TO PLAINTIFF'S WITNESS & EXHIBIT LISTS by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 06/30/2014)
314 ORDER that the parties shall confer regarding the proposed exhibits and, on or before July 9, 2014, notify the court which exhibits will be introduced without objection. The parties shall identify the exhibits to which they have objections and explain their objections. Signed by Magistrate Judge Zack Hawthorn on 7/1/14. (ljw, ) (Entered: 07/01/2014)
315 MOTION to Strike PLAINTIFF'S PROPOSED EXPERT TESTIMONY OF GEORGE SULLIVAN UNDER DAUBERT AND RULE OF EVIDENCE 702 by William Stephens, Director TDCJ−CID. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(O'Leary, Leah) (Entered: 07/01/2014)
316 MOTION for Writ of Habeas Corpus ad testificandum issued as to David Rasheed Ali (TDCJ−ID# 1077767)and emailed to USM for service.(ljw, ) (Entered: 07/03/2014)
317 ORDER granting 316 Motion for Writ of Habeas Corpus ad testificandum. The Clerk of Court is ordered to issue and the United States Marshal for the Eastern District of Texas serve a Writ of Habeas Corpus Ad Testificandum to the Director, Texas Department of Criminal Justice, Institutional Division, and the Michael Unit, directing and commanding said officers, or either of them, to bring and produce the body of David Rasheed Ali (TDCJ−ID# 1077767) a prisoner incarcerated at the Michael Unit, before the United States District Court sitting in Lufkin, Texas by delivering the said person to the custody of the United States Marshal for the Eastern District of Texas, or

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 22 of 33

07/03/2014 07/07/2014 07/07/2014 07/08/2014
07/08/2014 07/08/2014 07/09/2014 07/09/2014 07/09/2014 07/10/2014

his authorized agents, at Courtroom No.102, Ward R. Burke Federal Building, 104 North Third Street, Lufkin, Texas, on or before the date here in above set out. Signed by Magistrate Judge Zack Hawthorn on 7/3/14. (ljw, ) (Main Document 317 replaced on 7/3/2014) (ljw, ). (Entered: 07/03/2014)
318 RESPONSE in Opposition re 299 MOTION to Strike PLAINTIFF'S PROPOSED EXPERT TESTIMONY UNDER DAUBERT AND RULE OF EVIDENCE 702 filed by David Rasheed Ali. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Albritton, Eric) (Entered: 07/03/2014)
319 Exhibit List Defendant Stephens' Amended Identification of Trial Exhibits by William Stephens, Director TDCJ−CID.. (Cunniff, Celamaine) (Entered: 07/07/2014)
320 Unopposed MOTION Unopposed Motion to Provide Plaintiff with Meal Accommodation During Trial by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 07/07/2014)
321 RESPONSE to Defendant's Objections to Plaintiff's Deposition Designation for Trial filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Text of Proposed Order)(Cunniff, Celamaine) (Entered: 07/08/2014)
322 RESPONSE in Opposition re 311 MOTION to Strike Defendant Stephens' Motion to Strike Plaintiff's Proposed Expert Testimony of Roy Gravette Under Daubert and Rule of Evidence 702 filed by David Rasheed Ali. (Attachments: # 1 Exhibit 1 − (Guidelines for Clipper Shave Pass), # 2 Exhibit 2 − (Offenders Who Refuse to Comply with Grooming Standards), # 3 Text of Proposed Order)(Albritton, Eric) (Entered: 07/08/2014)
323 RESPONSE in Opposition re 315 MOTION to Strike PLAINTIFF'S PROPOSED EXPERT TESTIMONY OF GEORGE SULLIVAN UNDER DAUBERT AND RULE OF EVIDENCE 702 filed by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 07/08/2014)
324 FIrst Amended Trial Witness List by David Rasheed Ali. (Albritton, Eric) (Entered: 07/09/2014)
325 Exhibit List Plaintiff's First Amended Exhibit List by David Rasheed Ali.. (Albritton, Eric) (Entered: 07/09/2014)
326 NOTICE by David Rasheed Ali, William Stephens, Director TDCJ−CID re 314 Order, Parties' Joint Notice Regarding Exhibits (Albritton, Eric) (Entered: 07/09/2014)
327 REPLY to Response to Motion re 311 MOTION to Strike Defendant Stephens' Motion to Strike Plaintiff's Proposed Expert Testimony of Roy Gravette Under Daubert and Rule of Evidence 702 filed by William Stephens, Director TDCJ−CID. (O'Leary, Leah) (Entered: 07/10/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 23 of 33

07/10/2014 07/10/2014 07/11/2014
07/14/2014
07/15/2014 07/16/2014 07/17/2014 07/18/2014 07/18/2014 07/18/2014 07/24/2014 07/28/2014 08/14/2014

328 REPLY to Response to Motion re 315 MOTION to Strike PLAINTIFF'S PROPOSED EXPERT TESTIMONY OF GEORGE SULLIVAN UNDER DAUBERT AND RULE OF EVIDENCE 702 filed by William Stephens, Director TDCJ−CID. (O'Leary, Leah) (Entered: 07/10/2014)
329 ORDER granting 320 plaintiff's unopposed motion for meal accommodations. Defendant shall provide plaintiff with pork−free meals prior to dawn and after dusk,and with water with plaintiff's dusk meal for each day of trial. Signed by Magistrate Judge Zack Hawthorn on 7/10/14. (ljw, ) (Entered: 07/10/2014)
330 MEMORANDUM OPINION AND ORDER. The Defendant has not demonstrated that the expert opinions of Abed Awad, Roy Gravette,and George Sullivan are unreliable or irrelevant. Accordingly, it is ORDERED that the motions to strike the expert witnesses testimony (document nos. 299, 311, and 315) are DENIED. Signed by Magistrate Judge Zack Hawthorn on 07/11/14. (ttp, ) (Entered: 07/11/2014)
332 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: 1st Day of Bench Trial held on 7/14/2014. Plaintiff's exhibits 4−9, 11−14, 18−23, 25−37, 41−51, 54−58, 60−62, 67−68, 71−72, 74, 83−92, 94−105, 107−117 marked and admitted. Defendant's exhibit 1−40, 42−126, 128,−145, 147−168 marked and admitted. (Court Reporter Tamera Derouen.) (ttp, ) Modified on 8/20/2014 (ttp, ). (Entered: 07/25/2014)
333 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: 2nd day of Bench Trial held on 7/15/2014. Plaintiff's exhibits 119−120 marked and admitted. (Court Reporter Tamera DeRoeun.) (ttp, ) (Entered: 07/25/2014)
334 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: Bench Trial held on 7/16/2014. (Court Reporter Tamera Derouen.) (ttp, ) (Entered: 07/25/2014)
335 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: Bench Trial held on 7/17/2014. Court's exhibits 1A, 1B, 1C, and 1D marked and admitted. (Court Reporter Tamera Derouen.) (ttp, ) (Entered: 07/25/2014)
336 Minute Entry for proceedings held before Magistrate Judge Zack Hawthorn: Bench Trial completed on 7/18/2014. (Court Reporter Ed Reed.) (ttp, ) (Entered: 07/25/2014)
343 Witness List for bench trial on 7/14/2014 − 07/18/2014.(ttp, ) (Entered: 08/20/2014)
416 Joint Trial Exhibit List. (ttp, ) (Main Document 416 replaced on 11/4/2014) (ttp, ). (Entered: 11/04/2014)
331 Unopposed MOTION to Seal Trial Exhibits Designated as Confidential Under the Protective Order by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 07/24/2014)
337 ORDER granting 331 plaintiff's unopposed motion to seal trial exhibits PTX 99 to PTX 104, DTX 62, DTX 133, and DTX 148 to DTX 168. Signed by Magistrate Judge Zack Hawthorn on 7/28/14. (ljw, ) (Entered: 07/28/2014)
338 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Bench Trial, Volume 1, held on 7/14/2014 before Judge Zack Hawthorn. Court Reporter/Transcriber: Tamara Castille Derouen, Telephone number: 409.654.2833.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (tj, ) (Entered: 08/14/2014)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 24 of 33

08/14/2014 339 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Bench Trial, Volume 2, held on 7/15/2014 before Judge Zack Hawthorn. Court Reporter/Transcriber: Tamara Castille Derouen,Telephone number: 409.654.2833.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

08/14/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (tj, ) (Entered: 08/14/2014)
340 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Bench Trial, Volume 3, held on 7/16/2014 before Judge Zack Hawthorn. Court Reporter/Transcriber: Tamara Castille Derouen,Telephone number: 409.654.2833.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

08/14/2014 08/14/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (tj, ) (Entered: 08/14/2014)
341 Bench Trial, Day 3, sealed portion of the record. (tj) (Entered: 08/14/2014)
342 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Bench Trial, Volume 4, held on 7/17/2014 before Judge Zack Hawthorn. Court Reporter/Transcriber: Tamara Castille Derouen,Telephone number: 409.654.2833.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

09/12/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (tj, ) (Entered: 08/14/2014)
344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Bench Trial, Volume 5, held on 7/18/14 before Judge Zack Hawthorn. Court Reporter/Transcriber: Ed Reed, Telephone number: 409/330−1605.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 10/6/2014. Redacted Transcript Deadline set for 10/17/2014. Release of Transcript Restriction set for 12/15/2014. (dlc, ) (Entered: 09/12/2014)

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09/26/2014 09/26/2014 10/03/2014 10/09/2014 10/14/2014 10/14/2014 10/16/2014 10/17/2014 10/20/2014 10/20/2014 10/20/2014
10/20/2014
10/21/2014 10/27/2014 10/28/2014 10/29/2014

345 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Magistrate Judge Zack Hawthorn on 9/26/14. (ljw, ) (Entered: 09/26/2014)
346 FINAL JUDGMENT. A declaratory judgment is ENTERED in favor of the Plaintiff. All motions not previously ruled on are DENIED. Signed by Magistrate Judge Zack Hawthorn on 9/26/14. (ljw, ) (Entered: 09/26/2014)
347 Opposed MOTION to Stay Judgment Pending Appeal by William Stephens, Director TDCJ−CID. (Attachments: # 1 Appendix Appendix A, # 2 Text of Proposed Order)(O'Leary, Leah) (Entered: 10/03/2014)
348 Unopposed MOTION for Extension of Time to File Plaintiff's Bill of Costs by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Benefield, Michael) (Entered: 10/09/2014)
349 ORDER granting 348 plaintiff's unopposed motion for an extension of time to file a bill of costs. Plaintiff shall file his bill of costs on, or before, October 17,2014. Signed by Magistrate Judge Zack Hawthorn on 10/13/14. (ljw, ) (Entered: 10/14/2014)
350 Joint MOTION for Expedited Briefing by David Rasheed Ali, William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(Benefield, Michael) (Entered: 10/14/2014)
351 NOTICE OF APPEAL by William Stephens, Director TDCJ−CID. Filing fee $ 505, receipt number 0540−4886363. (O'Leary, Leah) (Entered: 10/16/2014)
352 ORDER granting 350 Parties' Joint Motion for Expedited Briefing. Signed by Magistrate Judge Zack Hawthorn on 10/17/14. (ljw, ) (Entered: 10/20/2014)
353 Opposed MOTION to Stay Defendant Stephens' Opposed Motion for A Stay of Judgment Pending Appeal by William Stephens, Director TDCJ−CID. (Attachments: # 1 Text of Proposed Order)(O'Leary, Leah) (Entered: 10/20/2014)
354 RESPONSE in Opposition re 347 Opposed MOTION to Stay Judgment Pending Appeal filed by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) (Entered: 10/20/2014)
355 NOTICE by David Rasheed Ali Plaintifff's Bill of Costs (Attachments: # 1 Exhibit A − Bill of Cost, # 2 Exhibit 1 − Clerk, # 3 Exhibit 2 − Subpoena, # 4 Exhibit 3 − Transcript, # 5 Exhibit 4 − Exemplification & Copie, # 6 Exhibit 5 − Attorney Hours and Fee, # 7 Exhibit 6 − Expenses)(Albritton, Eric) (Entered: 10/20/2014)
356 Opposed MOTION for Taxation of Costs by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Garner Bill of Costs, # 3 Exhibit 2 − Aff in Supp BOC, # 4 Exhibit 3 − Appearance Sheet Ali Deposition)(Albritton, Eric) (Entered: 10/20/2014)
NOTICE of Docketing Notice of Appeal from USCA re 351 Notice of Appeal filed by William Stephens, Director TDCJ−CID. USCA Case Number 14−41165 (dlc, ) (Entered: 10/21/2014)
357 TRANSCRIPT REQUEST by William Stephens, Director TDCJ−CID indicating transcripts are on file in the clerk's office as to proceedings held on July 14−18, 2014 before Judge Mag. Judge Zack Hawthorne, (Cunniff, Celamaine) Modified on 10/27/2014 (dlc, ). (Entered: 10/27/2014)
358 DESIGNATION of Record on Appeal by William Stephens, Director TDCJ−CID re 351 Notice of Appeal (Cunniff, Celamaine) (Entered: 10/28/2014)
359 RESPONSE to Motion re 353 Opposed MOTION to Stay Defendant Stephens' Opposed Motion for A Stay of Judgment Pending Appeal filed by David Rasheed Ali. (Attachments:

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10/29/2014 10/30/2014
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# 1 Text of Proposed Order)(Albritton, Eric) (Entered: 10/29/2014)
360 RESPONSE to Motion re 356 Opposed MOTION for Taxation of Costs DEFENDANT STEPHENS' RESPONSE AND OBJECTIONS TOPLAINTIFF'S MOTION TO TAX COSTS filed by William Stephens, Director TDCJ−CID. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Text of Proposed Order)(O'Leary, Leah) (Entered: 10/29/2014)
361 Exhibit List Defendant−Appellant Stephens' Admitted Trial Exhibits by William Stephens, Director TDCJ−CID.. (Attachments: # 1 Defendant's Admitted Exhibit No. 1, # 2 Defendant's Admitted Exhibit No. 2, # 3 Defendant's Admitted Exhibit No. 3, # 4 Defendant's Admitted Exhibit No. 4, # 5 Defendant's Admitted Exhibit No. 5, # 6 Defendant's Admitted Exhibit No. 6, # 7 Defendant's Admitted Exhibit No. 7, # 8 Defendant's Admitted Exhibit No. 8, # 9 Defendant's Admitted Exhibit No. 9, # 10 Defendant's Admitted Exhibit No. 10, # 11 Defendant's Admitted Exhibit No. 11, # 12 Defendant's Admitted Exhibit No. 12, # 13 Defendant's Admitted Exhibit No. 13, # 14 Defendant's Admitted Exhibit No. 14, # 15 Defendant's Admitted Exhibit No. 15, # 16 Defendant's Admitted Exhibit No. 16, # 17 Defendant's Admitted Exhibit No. 17, # 18 Defendant's Admitted Exhibit No. 18, # 19 Defendant's Admitted Exhibit No. 19, # 20 Defendant's Admitted Exhibit No. 20, # 21 Defendant's Admitted Exhibit No. 21, # 22 Defendant's Admitted Exhibit No. 22, # 23 Defendant's Admitted Exhibit No. 23, # 24 Defendant's Admitted Exhibit No. 24, # 25 Defendant's Admitted Exhibit No. 25)(Cunniff, Celamaine) (Entered: 10/30/2014)
362 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 26, # 2 Defendant's Admitted Exhibit No. 27, # 3 Defendant's Admitted Exhibit No. 28, # 4 Defendant's Admitted Exhibit No. 29, # 5 Defendant's Admitted Exhibit No. 30)(Cunniff, Celamaine) (Entered: 10/30/2014)
363 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 1 of 18), # 2 Defendant's Admitted Exhibit No. 31 (Part 2 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
364 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 3 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
365 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 4 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
366 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 5 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
367 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 6 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)

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10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014
10/30/2014

368 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 7 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
369 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 8 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
370 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 9 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
371 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 10 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
372 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 11 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
373 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 12 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
374 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 13 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
375 Exhibit List Plaintiff's Admitted Trial Exhibits by David Rasheed Ali.. (Albritton, Eric) Modified on 11/14/2014 (dlc, ). (Entered: 10/30/2014)
376 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 14 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
377 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit Plaintiff Trial Exhibits − PTX0004, PTX0005, PTX0007, PTX0008)(Albritton, Eric) (Entered: 10/30/2014)
378 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit Plaintiff Trial Exhibits PTX0009, PTX0011, PTX0012, PTX0013)(Albritton, Eric) (Entered: 10/30/2014)
379 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 15 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
380 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 16 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
381 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit Plaintiff Trial Exhibits − PTX0014, PTX0018 to PTX0023, PTX0025 to PTX0036)(Albritton, Eric) (Entered: 10/30/2014)
382 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit Plaintiff Trial Exhibits − PTX0037 Part One of Two)(Albritton, Eric) (Entered: 10/30/2014)
383 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 31 (Part 17 of 18), # 2 Defendant's Admitted Exhibit No. 31 (Part 18 of 18))(Cunniff, Celamaine) (Entered: 10/30/2014)
384 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit Plaintiff Trial Exhibits − PTX0037 Part Two of Two)(Albritton, Eric) (Entered: 10/30/2014)

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10/30/2014
10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014
10/30/2014

385 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 32, # 2 Defendant's Admitted Exhibit No. 33, # 3 Defendant's Admitted Exhibit No. 34, # 4 Defendant's Admitted Exhibit No. 35 (Part 1 of 5))(Cunniff, Celamaine) (Entered: 10/30/2014)
386 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 35 (Part 2 of 5), # 2 Defendant's Admitted Exhibit No. 35 (Part 3 of 5))(Cunniff, Celamaine) (Entered: 10/30/2014)
387 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 35 (Part 4 of 5), # 2 Defendant's Admitted Exhibit No. 35 (Part 5 of 5))(Cunniff, Celamaine) (Entered: 10/30/2014)
388 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 36 (Part 1 of 2))(Cunniff, Celamaine) (Entered: 10/30/2014)
389 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 36 (Part 2 of 2))(Cunniff, Celamaine) (Entered: 10/30/2014)
390 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 37, # 2 Defendant's Admitted Exhibit No. 38)(Cunniff, Celamaine) (Entered: 10/30/2014)
391 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 39 (Part 1 of 4))(Cunniff, Celamaine) (Entered: 10/30/2014)
392 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 39 (Part 2 of 4))(Cunniff, Celamaine) (Entered: 10/30/2014)
393 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 39 (Part 3 of 4))(Cunniff, Celamaine) (Entered: 10/30/2014)
394 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 39 (Part 4 of 4))(Cunniff, Celamaine) (Entered: 10/30/2014)
395 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 40)(Cunniff, Celamaine) (Entered: 10/30/2014)
396 Additional Attachments to Main Document: 375 Exhibit List.. (Attachments: # 1 Exhibit PTX0041 − PTX0051, # 2 Exhibit PTX0054 Part One, # 3 Exhibit PTX0054 Part Two, # 4 Exhibit PTX0055 − PTX0058, PTX0060 − PTX0062, PTX0067 − PTX0068, PTX0071 − PTX0072, PTX0074, # 5 Exhibit PTX0083 − PTX0086, # 6 Exhibit PTX0087 − PTX0092, PTX0094 − PTX0097, # 7 Exhibit PTX0098, PTX0105, PTX0107 − PTX0108, # 8 Exhibit PTX0109 − PTX0117, PTX0119 − PTX0120, # 9 Exhibit Plaintiff Page and Line)(Albritton, Eric) (Entered: 10/30/2014)
397 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 42, # 2 Defendant's Admitted Exhibit No. 43, # 3 Defendant's Admitted Exhibit No. 44, # 4 Defendant's Admitted Exhibit No. 45, # 5 Defendant's Admitted Exhibit No. 46, # 6 Defendant's Admitted Exhibit No. 47, # 7 Defendant's Admitted Exhibit No. 48,

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10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014 10/30/2014

# 8 Defendant's Admitted Exhibit No. 49, # 9 Defendant's Admitted Exhibit No. 50, # 10 Defendant's Admitted Exhibit No. 51, # 11 Defendant's Admitted Exhibit No. 52, # 12 Defendant's Admitted Exhibit No. 53, # 13 Defendant's Admitted Exhibit No. 54, # 14 Defendant's Admitted Exhibit No. 55, # 15 Defendant's Admitted Exhibit No. 56, # 16 Defendant's Admitted Exhibit No. 57, # 17 Defendant's Admitted Exhibit No. 58, # 18 Defendant's Admitted Exhibit No. 59, # 19 Defendant's Admitted Exhibit No. 60)(Cunniff, Celamaine) (Entered: 10/30/2014)
398 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 61, # 2 Defendant's Admitted Exhibit No. 63, # 3 Defendant's Admitted Exhibit No. 64, # 4 Defendant's Admitted Exhibit No. 65, # 5 Defendant's Admitted Exhibit No. 66, # 6 Defendant's Admitted Exhibit No. 67, # 7 Defendant's Admitted Exhibit No. 68, # 8 Defendant's Admitted Exhibit No. 69)(Cunniff, Celamaine) (Entered: 10/30/2014)
399 SEALED ADDITIONAL ATTACHMENTS to Main Document: 375 Exhibit List. (Attachments: # 1 Exhibit Sealed PTX0099 − PTX0102, # 2 Exhibit Sealed PTX0103 Part One, # 3 Exhibit Sealed PTX0103 Part Two, # 4 Exhibit Sealed PTX0104) (Albritton, Eric) (Entered: 10/30/2014)
400 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 70)(Cunniff, Celamaine) (Entered: 10/30/2014)
401 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 71, # 2 Defendant's Admitted Exhibit No. 72)(Cunniff, Celamaine) (Entered: 10/30/2014)
402 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 73 (Part 1 of 6), # 2 Defendant's Admitted Exhibit No. 73 (Part 2 of 6), # 3 Defendant's Admitted Exhibit No. 73 (Part 3 of 6))(Cunniff, Celamaine) (Entered: 10/30/2014)
403 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 73 (Part 4 of 6), # 2 Defendant's Admitted Exhibit No. 73 (Part 5 of 6), # 3 Defendant's Admitted Exhibit No. 73 (Part 6 of 6))(Cunniff, Celamaine) (Entered: 10/30/2014)
404 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 74 (Part 1 of 11), # 2 Defendant's Admitted Exhibit No. 74 (Part 2 of 11))(Cunniff, Celamaine) (Entered: 10/30/2014)
405 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 74 (Part 3 of 11), # 2 Defendant's Admitted Exhibit No. 74 (Part 4 of 11), # 3 Defendant's Admitted Exhibit No. 74 (Part 5 of 11))(Cunniff, Celamaine) (Entered: 10/30/2014)
406 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 74 (Part 6 of 11), # 2 Defendant's Admitted Exhibit No. 74 (Part 7 of 11), # 3 Defendant's Admitted Exhibit No. 74 (Part 8 of 11), # 4 Defendant's Admitted Exhibit No. 74 (Part 9 of 11))(Cunniff, Celamaine) (Entered: 10/30/2014)

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10/30/2014 10/30/2014 10/30/2014
10/30/2014

407 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 74 (Part 10 of 11), # 2 Defendant's Admitted Exhibit No. 74 (Part 11 of 11), # 3 Defendant's Admitted Exhibit No. 75 (Part 1 of 5), # 4 Defendant's Admitted Exhibit No. 75 (Part 2 of 5))(Cunniff, Celamaine) (Entered: 10/30/2014)
408 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 75 (Part 3 of 5), # 2 Defendant's Admitted Exhibit No. 75 (Part 4 of 5), # 3 Defendant's Admitted Exhibit No. 75 (Part 5 of 5), # 4 Defendant's Admitted Exhibit No. 76, # 5 Defendant's Admitted Exhibit No. 77, # 6 Defendant's Admitted Exhibit No. 78, # 7 Defendant's Admitted Exhibit No. 79, # 8 Defendant's Admitted Exhibit No. 80, # 9 Defendant's Admitted Exhibit No. 81, # 10 Defendant's Admitted Exhibit No. 82, # 11 Defendant's Admitted Exhibit No. 83, # 12 Defendant's Admitted Exhibit No. 84, # 13 Defendant's Admitted Exhibit No. 85, # 14 Defendant's Admitted Exhibit No. 86, # 15 Defendant's Admitted Exhibit No. 87, # 16 Defendant's Admitted Exhibit No. 88, # 17 Defendant's Admitted Exhibit No. 89, # 18 Defendant's Admitted Exhibit No. 90)(Cunniff, Celamaine) (Entered: 10/30/2014)
409 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 91, # 2 Defendant's Admitted Exhibit No. 92, # 3 Defendant's Admitted Exhibit No. 93, # 4 Defendant's Admitted Exhibit No. 94, # 5 Defendant's Admitted Exhibit No. 95, # 6 Defendant's Admitted Exhibit No. 96, # 7 Defendant's Admitted Exhibit No. 97, # 8 Defendant's Admitted Exhibit No. 98, # 9 Defendant's Admitted Exhibit No. 99, # 10 Defendant's Admitted Exhibit No. 100, # 11 Defendant's Admitted Exhibit No. 101, # 12 Defendant's Admitted Exhibit No. 102, # 13 Defendant's Admitted Exhibit No. 103, # 14 Defendant's Admitted Exhibit No. 104, # 15 Defendant's Admitted Exhibit No. 105, # 16 Defendant's Admitted Exhibit No. 106, # 17 Defendant's Admitted Exhibit No. 107, # 18 Defendant's Admitted Exhibit No. 108, # 19 Defendant's Admitted Exhibit No. 109, # 20 Defendant's Admitted Exhibit No. 110, # 21 Defendant's Admitted Exhibit No. 111, # 22 Defendant's Admitted Exhibit No. 112, # 23 Defendant's Admitted Exhibit No. 113, # 24 Defendant's Admitted Exhibit No. 114, # 25 Defendant's Admitted Exhibit No. 115, # 26 Defendant's Admitted Exhibit No. 116, # 27 Defendant's Admitted Exhibit No. 117)(Cunniff, Celamaine) (Entered: 10/30/2014)
410 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 118, # 2 Defendant's Admitted Exhibit No. 119, # 3 Defendant's Admitted Exhibit No. 120, # 4 Defendant's Admitted Exhibit No. 121, # 5 Defendant's Admitted Exhibit No. 122, # 6 Defendant's Admitted Exhibit No. 123,

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 31 of 33

10/30/2014
10/30/2014 10/30/2014
10/30/2014

# 7 Defendant's Admitted Exhibit No. 124, # 8 Defendant's Admitted Exhibit No. 125, # 9 Defendant's Admitted Exhibit No. 126)(Cunniff, Celamaine) (Entered: 10/30/2014)
411 Additional Attachments to Main Document: 361 Exhibit List,,,,,.. (Attachments: # 1 Defendant's Admitted Exhibit No. 128, # 2 Defendant's Admitted Exhibit No. 129, # 3 Defendant's Admitted Exhibit No. 130, # 4 Defendant's Admitted Exhibit No. 131, # 5 Defendant's Admitted Exhibit No. 132, # 6 Defendant's Admitted Exhibit No. 133, # 7 Defendant's Admitted Exhibit No. 134, # 8 Defendant's Admitted Exhibit No. 135, # 9 Defendant's Admitted Exhibit No. 136, # 10 Defendant's Admitted Exhibit No. 137, # 11 Defendant's Admitted Exhibit No. 138, # 12 Defendant's Admitted Exhibit No. 139, # 13 Defendant's Admitted Exhibit No. 140, # 14 Defendant's Admitted Exhibit No. 141, # 15 Defendant's Admitted Exhibit No. 142, # 16 Defendant's Admitted Exhibit No. 143, # 17 Defendant's Admitted Exhibit No. 144, # 18 Defendant's Admitted Exhibit No. 145, # 19 Defendant's Admitted Exhibit No. 147)(Cunniff, Celamaine) (Entered: 10/30/2014)
412 Exhibit List Defendant−Appellant Stephens' Admitted and Sealed Trial Exhibits by William Stephens, Director TDCJ−CID.. (Cunniff, Celamaine) (Entered: 10/30/2014)
413 SEALED ADDITIONAL ATTACHMENTS to Main Document: 412 Exhibit List. (Attachments: # 1 Defendant's Admitted and Sealed Exhibit No. 62, # 2 Defendant's Admitted and Sealed Exhibit No. 133, # 3 Defendant's Admitted and Sealed Exhibit No. 148, # 4 Defendant's Admitted and Sealed Exhibit No. 149, # 5 Defendant's Admitted and Sealed Exhibit No. 150, # 6 Defendant's Admitted and Sealed Exhibit No. 151, # 7 Defendant's Admitted and Sealed Exhibit No. 152, # 8 Defendant's Admitted and Sealed Exhibit No. 153, # 9 Defendant's Admitted and Sealed Exhibit No. 154, # 10 Defendant's Admitted and Sealed Exhibit No. 155, # 11 Defendant's Admitted and Sealed Exhibit No. 156, # 12 Defendant's Admitted and Sealed Exhibit No. 157, # 13 Defendant's Admitted and Sealed Exhibit No. 158, # 14 Defendant's Admitted and Sealed Exhibit No. 159, # 15 Defendant's Admitted and Sealed Exhibit No. 160, # 16 Defendant's Admitted and Sealed Exhibit No. 161, # 17 Defendant's Admitted and Sealed Exhibit No. 162, # 18 Defendant's Admitted and Sealed Exhibit No. 163, # 19 Defendant's Admitted and Sealed Exhibit No. 164, # 20 Defendant's Admitted and Sealed Exhibit No. 165, # 21 Defendant's Admitted and Sealed Exhibit No. 166, # 22 Defendant's Admitted and Sealed Exhibit No. 167, # 23 Defendant's Admitted and Sealed Exhibit No. 168)(Cunniff, Celamaine) (Entered: 10/30/2014)
414 ***FILED IN ERROR, only admitted exhibits are filed electronically pursuant to Local Rule CV−79(a)(4), PLEASE IGNORE*** Exhibit List Defendant−Appellant Stephens' Offered but Not Admitted Trial Exhibits by William Stephens, Director TDCJ−CID.. (Attachments: # 1 Defendant's Offered Exhibit No. 41, # 2 Defendant's Offered Exhibit No.127, # 3 Defendant's Offered Exhibit No. 146, # 4 Defendant's Offered Exhibit No. 169)(Cunniff, Celamaine) Modified on

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 32 of 33

10/30/2014
11/03/2014 11/10/2014 11/10/2014 11/21/2014 12/03/2014 12/03/2014
02/11/2015
03/03/2015 04/29/2015
05/18/2015 05/26/2015 06/08/2015 06/08/2015 06/08/2015 06/10/2015 08/14/2015 12/07/2015

11/14/2014 (dlc, ). (Entered: 10/30/2014)
***FILED IN ERROR. Document # 414, Defendant−Appellant Stephens' Offered but Not Admitted Exhibits. Only admitted exhibits are filed electronically pursuant to Local Rule CV−79(a)(4), PLEASE IGNORE*** (dlc, ) (Entered: 11/14/2014)
415 REPLY to Response to Motion re 356 Opposed MOTION for Taxation of Costs filed by David Rasheed Ali. (Albritton, Eric) (Entered: 11/03/2014)
Partial Filing fee paid by TDCJ PLRA per court order: $ 12.00, receipt number 6−21470 (mlm, ) (Entered: 11/17/2014)
Partial appellate Filing fee paid by TDCJ PLRA per court order: $ 12.00, receipt number 6−21470 (mlm, ) (Entered: 11/17/2014)
Certified and Electronically Transmitted Record on Appeal to US Court of Appeals re 351 Notice of Appeal (pad, ) (Entered: 11/21/2014)
417 ORDER denying 353 defendant's opposed motion to stay a judgment for attorney's fees and costs. Signed by Magistrate Judge Zack Hawthorn on 12/3/14. (ljw, ) (Entered: 12/03/2014)
418 MEMORANDUM AND OPINION ORDER. Defendant's motion to stay the judgment as to the enforcement of the TDCJ religious head wear policy pending appeal is DENIED. Signed by Magistrate Judge Zack Hawthorn on 12/3/14. (ljw, ) (Entered: 12/03/2014)
419 NOTICE by David Rasheed Ali Plaintiff's Notice of Developments on Appeal (Attachments: # 1 Exhibit 1 − Holt v. Hobbs, # 2 Exhibit 2 − Stephens' Moton to Stay, # 3 Exhibit 3 − Order Denying Motion to Stay)(Albritton, Eric) (Entered: 02/11/2015)
Supplemental Record on Appeal electronically transmitted to US Court of Appeals re 351 Notice of Appeal (pad, ) (Entered: 03/03/2015)
420 MEMORANDUM OPINION AND ORDER. The Plaintiff's motion for taxation of costs and attorney's fees 356 is GRANTED in part and DENIED in part. It is ORDERED that the Defendant shall pay the Plaintiff $16,312.72 in costs and $214,160.44 in attorney's fees and expenses. Signed by Magistrate Judge Zack Hawthorn on 4/29/15. (ljw, ) (Entered: 04/30/2015)
421 NOTICE OF APPEAL as to 420 Memorandum & Opinion, by William Stephens, Director TDCJ−CID. Filing fee $ 505, receipt number 0540−5203329. (O'Leary, Leah) (Entered: 05/18/2015)
NOTICE of Docketing Notice of Appeal from USCA re 421 Notice of Appeal filed by William Stephens, Director TDCJ−CID. USCA Case Number 15−40693 (dlc, ) (Entered: 05/26/2015)
422 DESIGNATION of Record on Appeal by William Stephens, Director TDCJ−CID re 421 Notice of Appeal (Cunniff, Celamaine) (Entered: 06/08/2015)
423 TRANSCRIPT REQUEST by William Stephens, Director TDCJ−CID for proceedings held on July 14−18, 2014 before Judge Hon. Zach Hawthorne, (Cunniff, Celamaine) (Entered: 06/08/2015)
NOTICE of certification of eROA provided to 5th Circuit Court of Appeals. (dlc, ) (Entered: 06/08/2015)
USCA 5th Circuit Notice − Original record on appeal is accepted (dlc, ) (Entered: 06/10/2015)
Partial Filing fee paid per court order: $ 2.00, receipt number TXE600025808 (klc, ) (Entered: 08/18/2015)
Partial Filing fee paid per court order: $ 4.00, receipt number TXE600027634 (klc, ) (Entered: 12/07/2015)

Case: 9:09-cv-52 As of: 07/05/2017 12:59 PM CDT 33 of 33

12/07/2015 01/11/2016
01/11/2016 01/11/2016 01/13/2016 05/16/2016
05/24/2016
06/02/2017 06/02/2017

Appeal Partial Filing fee paid per court order: $ 2.00, receipt number TXE600027634 (klc, ) (Entered: 12/07/2015)
424 Unopposed MOTION to Withdraw Michael Benefield as Counsel, and terminate CM/ECF Notices by David Rasheed Ali. (Attachments: # 1 Text of Proposed Order)(Albritton, Eric) Modified on 1/11/2016 (ljw, ). (Entered: 01/11/2016)
Partial Filing fee paid per court order: $ 5.00, receipt number TXE600028134 (klc, ) (Entered: 01/12/2016)
APPEAL Partial Filing fee paid per court order: $ 5.00, receipt number TXE600028134 (klc, ) (Entered: 01/12/2016)
425 ORDER granting 424 Motion to Withdraw as Attorney. Attorney Michael A. Benefield terminated. Signed by Magistrate Judge Zack Hawthorn on 1/13/16. (ljw, ) (Entered: 01/13/2016)
426 USCA JUDGMENT as to 421 Notice of Appeal filed by William Stephens, Director TDCJ−CID. Under FED R. APP. P. 42(b), the appeal is dismissed as of May 16, 2016, pursuant to appellant's motion. (Attachments: # 1 USCA Cover Letter)(pkb, ) (Entered: 05/16/2016)
427 USCA JUDGMENT affirming the judgment of the District Court as to 351 Notice of Appeal filed by William Stephens, Director TDCJ−CID. Issued as Mandate: May 24, 2016. Circuit Judges: Prado, Southwick, and Graves. (Attachments: # 1 USCA Opinion, # 2 USCA Cover Letter)(dlc, ) (Entered: 05/25/2016)
428 Letter from James A. Harris regarding the status of case. (ksd ) (Entered: 06/02/2017)
In response to letter received from James A. Harris, a copy of the docket sheet was forwarded to Mr. Harris via U.S. Postal Service. (ksd ) (Entered: 06/02/2017)

 
 Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 1 of 19 PageID #: 1

IN THE UNITED STATES DISTIUCT COURT

L FOR

THE

_,_t...,c_::,_;JA_.-!=.-.-.'.:)-:y:'r.'.·9-'-"'-~'-txNCL,<"._:.l:._._ _

__ DISTRICT __ _ DIVISION

OEFAsTr~fix~·~lp"s,jsrR1c'~tf::

D

DISTRicrCOURr

2 7 2009 Form To Be Used By A Prisoner in Filing a Complaint 44AR

Under the Civil Rights Act, 42 U .S.C. § 1983

1'7/i

OF TEXAs

BY 0 AVID J M

,D.'I-i•~ R;v·}bo>c\ A\'• .:fl lv'1'1il ldl
Plaintiffs name and ID Number
Place of Confmemen t
v.

· ALAND

DcPU;y

' CLI;t-{K

~-----
--------· quv5J CASENO:Cfo
JtT5 J i~Genumber)

tl.l~l'.'\'1•1-.\ 0-J,C\~\~,'\'100. : (\_ 0t-;. l\ (I~
Defendant's name and address l iH\:-~ .1\t. ,l;..fl'l.~-1,).

.JJR,) TilJ..<-\1- Db'11·1JJ l) t_~

Defendant's name and address

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

i\OTICE :

INSTRUCTIONS ~ READ CAlillFULLY

Your complaint is subject to dismissal .unless it conforms to these instructions and this form.
1. To start an ac tion you must file an original and one copy of your com plaint wiih the court. You should keep a copy of the complaint fo r your own records.
2. Your complain t must be kgjQly handwritten in ink, or typewri tten. You, the plaintiff, must sign and decla re
under penalty of perjury that the facts are correct If you need additional space, DO NOT TJSE THE REVERSE SIDE OR RACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK Pt\GE AND WRITE ON IT. 3. You must fil e a separate complaint for each claim you have unless the various claims arc all related to the
same incident or issue or arc all against the same defendant, R ule 18, F ederal R ules of Civil Procedure. Make
a short and plain state ment of your claim, Rule 8, Federal Rules of Civil Procedure.
4 . ·when these fonns are co mple ted, mail the original and on e copy to the C lerk o r the United Staks Cou rt fu r the appropriate D istrict of Texas in the Division where one or more named defendants arc located, or where the incident giving rise to your claim for relief occun·cd. The Jist labeled as "VEl\TUE 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.

Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 2 of 19 PageID #: 2 FILING FEE AND IN FORMA PAUPERIS

I. 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 (JFP), setting forth the information to establish your inability to prepay the fees and costs or give security therefore. You musl also include a six (6) month history of your Inmate Trust Account. Yoi1 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 of1995 (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, tmtil 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 JFP, and the Certificate of Inmate Tmst Account. Complete all the essential paperwork before submitting it to the Court.

CHANGE OF ADDRESS

It is your responsibility to infom1 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: -'"""co""··,.b~---------

2. Parties to previous lawsuit: Plaintiff(s): }),:,,,;(\ R,-d1m\ (\\', J\ IO'J'J~•)~td~·-"l_ _ __

Defendant(s): (ili,"'.~'f'=•->->t~r~''•~N~,\I,.c\,\,'"',~;"')1""'~"''',_,c\"''""'"'"\,_._________
3. Court (If federal, name the district; if state, name the county) f,J<>ltc" i),,,\,"\ ,\ '\eJ<\-, , Lv\kn 1\," ;,,;o,)

4. Docket Number: •:--~-------------5. Name ofjudge to whom case was assigned: .:J",\,\h \<. Gv<::·'"'''"(;"<:~.__________

6. Disposition: (Was the case dismissed, appealed, still pending?)

Q;WL ,z,. I I., '"\

7. Approximate date of disposition: _,2:..:v_v-"'o'--------

Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 3 of 19 PageID #: 3

~ J II. PLACE OF PRESENT CONI<INEMENT: T.DcT · c.r,y, (z. b L,.,.,, u,

III. EXHAUSTION OF GRIEVANCE PROCEDURES:

Have you exhausted both steps of the grievance procedure in this institution? '/..

YES

NO

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

IV. PARTIES TO THE SUIT:

A. Nameofaddressofplaintiff: 1\,.lv•cl r<AdlK-'d AI: "/v•N)'d//O()·tJQ:(?,lJLi'fJ•~. PvJ/f.,, ll,c-;..!Jccz·,

\.J<~"-\/•1\t Jt"il\~ ')")(]40

------- ··-----

B. Full name of each defendant, his official position, his place of employment, and his full mailing address.

Defendant #I : Jrl\\ID,.zl Cw\~i.,J~n: 0.r<ctvr "~ \vw I ~Ill., 'D>;w\w.~ v~ 0,,,.,)(,\ ;:50~\,, e : \.Icc.\ v~!:10 Fn> qq ; ILNt•>v,l\f, 'ln1h [)0">'17

Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
\)\f-l,.AK,YJ3o0'~""'>~cv-j 1\,"'l"c R~~""'?-1n11A'WI Au•/ Rc\.8";., l,;cq\w.) -\v \l•\.c-J '"

Defundant#2: ____________________________

---------

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

Defendant #3: ------------------ ______

- - -~ - .. - - - - - -

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

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

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

?CII>t_
"'Jctl'\

Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 4 of 19 PageID #: 4
V. STATEMENT OF CLAIM:

State here in a shOit 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 illY

kgal 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 STRlKE YOUR

Ol)

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7 - . - - - - - - - ---~-~-------
(

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

( 1) T:'bC\:: A DJL,'\\l.iWiiZ~ .JJ;)(;zhllf>ll -JJ,),.,j'fh.J {),~me\.'\~\ I>) f:,k;i'in~nf of 1h' lJJC)(l(~W"n:J S~>o<)Mt\_,.)o fk

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VJT. GENERAL BACKGROUND INFORI'VIATION:

A. State, in complete form, all names you have ever used or been known by including any and all aliases:

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.

VIII. SANCTIONS:

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

QN,-1.-CL\ u~ iC\

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. Cotut that imposed sanctions (If fcdera1, give district and div-ision): _.:.,IV"-'/._,A.___ __

2. · Case Number: --''"VlL'"J"----------------------
3. Approximate date sanctions were imposed: NM,__________

4. Have the sanctions been lifted or otherwise satisfied?

YES ;v)rj NO

Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 5 of 19 PageID #: 5
C. Has any court ever warned or notified you that sanctions could be imposed? __ YES !<l/ij NO D. If your answer is "yes", give the following information for every lawsuit in which waming was imposed.
(If more than one, use another piece of paper and answer the same questions.)

1. Court that imposed warning (iffederal, give the district and division): _j'J-1/10_,____ __ 2. Case number: --"''J.J·li_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
3. Approximate date waming were imposed: --''-"Vl.!/1_,_1_ _ _ _ _ __

Executed on:

() · ;)6-oc\
(Date)

PLAINTIFF'S DECLARATIONS

(Printed Name)
/!'1 {t_!, ('cj-
(Signature of Plaintiff)

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 piior 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 fiivolous, 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, Tam 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 -"-CJ<c=.J---,-_day of \ ,IV\\tcV\

(Day)

(Month)

_, 20 Cl~
(Year)

m: _]).~" ic\ Q"'~;httll

,

(Printed Name)

r ----.J~"~-= ~ L(..·L,(,l/1___, ________

(Signature of Plaintiff)

WA&\'ING: The Plaintiff is hereby advised any false or delibemtely 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.
(l\%·(_
\) ~) 0(: \1,,

Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 6 of 19 PageID #: 6

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Case 9:09-cv-00052-ZJH Document 1 Filed 03/27/09 Page 19 of 19 PageID #: 19

 
 Case 9:09-cv-00052-ZJH Document 14 Filed 06/04/09 Page 1 of 3 PageID #: 70

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

DAVID RASHEED ALI v. NATHANIEL QUARTERMAN

§

§

CIVIL ACTION NO. 9:09cv52

§

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff David Ali, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Ali seeks the right to grow a beard, as he says is called for by his Muslim faith. After review of the pleadings, the Magistrate Judge issued a Report on May 19, 2009, recommending that the lawsuit be administratively closed. The Magistrate Judge observed that the Fifth Circuit had remanded the very same issue to the U.S. District Court for the Southern District of Texas in a case called Garner v. Morales, slip op. no. 07-41015 (5th Cir., March 6, 2009) (unpublished). The Magistrate Judge stated that any declaratory or injunctive relief issued by the Southern District will affect the prison system as a whole, and so rather than risking potentially inconsistent adjudications, the Magistrate Judge recommended that this case be closed pending the outcome of Garner.
Ali filed objections to the Magistrate Judge’s Report on May 29, 2009. In his objections, Ali says first that he did not consent to proceed before the Magistrate Judge. Consent to proceed before the Magistrate Judge is only required when the parties agree to have the Magistrate Judge serve as

1

Case 9:09-cv-00052-ZJH Document 14 Filed 06/04/09 Page 2 of 3 PageID #: 71
presiding judge in the case. No consent is necessary for a referral of pre-trial matters, which is what has happened in this case.
Ali says that Garner is not a class action, and so the Magistrate Judge’s statement that the outcome of that case will affect the prison system as a whole is “presumptuous.” Garner’s complaint seeks, inter alia, an injunction declaring that “the current grooming standards, as applied, violated the RLUIPA.” The granting of such relief would obviously affect the prison system as a whole. Thus, while it is true that Garner has not been certified as a class action, such certification is unnecessary, because the requested injunctive relief, if granted, would have the same effect. See Fairley v. Forrest County, Mississippi, 814 F.Supp. 1327, 1329-30 (where declaratory and injunctive relief sought would have the same effect as a class action regardless of whether or not a class is actually certified, class certification is unnecessary); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir. 1974). The Magistrate Judge did not err in determining that the possibility of inconsistent adjudications exists.
However, Ali says that under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the State is “not required to make a system-wide change,” but is only prohibited from “imposing a substantial burden upon the religious exercise of a person.” He says that this is done on a case-by-case basis; however, the TDCJ grooming code is system-wide, as is its application to prohibit Muslims from wearing beards. Ali appears to contend that if Garner prevails, the relief would be to allow Garner and only Garner the right to wear a beard, but this is incorrect; were Garner to prevail, he would obtain an injunction to the effect that the TDCJ grooming code violated RLUIPA, Ali’s objection on this ground is without merit.
Next, Ali says that his claim not only concerns RLUIPA, but also the First and Fourteenth Amendments, which Garner’s claim does not. In fact, Garner’s claim did raise the First and Fourteenth Amendments, but the dismissal of these claims was affirmed by the Fifth Circuit. Ali’s objection on this ground is without merit.
2

Case 9:09-cv-00052-ZJH Document 14 Filed 06/04/09 Page 3 of 3 PageID #: 72
Finally, Ali asserts that his case should stand alone and not be dependent on the outcome in Garner because of his contention that RLUIPA requires accommodation of religious exercises on a case-by-case basis, and so the facts of the cases can be distinguished. However, the heart of the cases is the assertion that the TDCJ grooming code, which prohibits prisoners from wearing facial hair, violates the Religious Land Use and Institutionalized Persons Act. An injunction to this effect in the Garner case would affect Ali as well. His objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this case, the Report of the Magistrate Judge, and the Plaintiff’s objections thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and that the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is ADMINISTRATIVELY CLOSED and placed on an inactive docket for administrative and statistical purposes. Such lawsuit may be reopened at such time as the decision in Garner v. Morales, currently pending in the Southern District of Texas, becomes final through the conclusion of direct appeal. The administrative closing of this case shall not affect the substantive rights of any party thereto. It is further
ORDERED that any and all motions which may be pending in this action are hereby DENIED.
SIGNED this the 4 day of June, 2009.
____________________________ Thad Heartfield United States District Judge
3

 
 Case 9:09-cv-00052-ZJH Document 36 Filed 10/21/09 Page 1 of 2 PageID #: 153

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

DAVID RASHEED ALI v. NATHANIEL QUARTERMAN

§

§

CIVIL ACTION NO. 9:09cv52

§

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ON PLAINTIFF’S POST-JUDGMENT MOTION FOR INJUNCTIVE RELIEF

The Plaintiff David Ali, proceeding pro se, filed this lawsuit concerning the grooming policies of the Texas prison system. The lawsuit has been administratively closed pending the outcome of an identical lawsuit which is proceeding in the Southern District of Texas. Ali has appealed this administrative closing.
After the filing of the appeal, Ali filed a motion for a preliminary injunction, essentially seeking the same relief as was sought in his complaint. The Magistrate Judge to whom the case was referred issued a Report recommending that the request for injunctive relief be denied. Ali has filed a motion for leave to file objections out of time.
In his objections, Ali says that the fact that an essentially identical case is pending in the Southern District “appears to ensure that there is a substantial likelihood” that he will succeed on the merits of his claim. He indicates that similar claims have been accepted in other circuits and reargues the merits of his claims, saying that growing a beard is a fundamental tenet of his religious faith, that the grooming standards are discriminatory, that beards may be worn consistent with the prison interests in safety and security, a short beard would not facilitate the secreting of contraband, and the granting of the injunction would not disserve the public interest.
As noted above, however, Ali is requesting the same relief in his motion for injunctive relief as he did in his complaint. As a general rule, preliminary injunctions and temporary restraining
1

Case 9:09-cv-00052-ZJH Document 36 Filed 10/21/09 Page 2 of 2 PageID #: 154
orders are designed to preserve the status quo prior to the court's consideration of a case on its merits, and are not intended as a substitute for relief on the merits of the case. See generally Federal Savings & Loan Insurance Corp. v. Dixon, 835 F.2d 554, 558 (5th Cir. 1987); Shanks v. City of Dallas, Texas, 752 F.2d 1092, 1096 (5th Cir. 1985). Otherwise, the normal procedures would be shortcircuited by the simple vehicle of trying a case by way of a motion for injunctive relief. Ali cannot try his case through the vehicle of a request for injunctive relief.
In addition, Ali’s case was on appeal at the time that he sought the injunction. The Fifth Circuit has held that the taking of an appeal divests the district court of jurisdiction except as to those matters in aid of the appellate court's jurisdiction. Willie v. Continental Oil Co., 746 F.2d 1041 (5th Cir. 1984). Ali has made no showing that his request for injunctive relief is a matter in aid of the appellate court’s jurisdiction.
The Court has conducted a careful de novo review of the pleadings in this cause, the Report of the Magistrate Judge, and the Movant’s objections thereto. Upon such review, the Court has concluded that the Movant’s objections are without merit. It is accordingly
ORDERED that the Movant’s objections are overruled and that the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Movant’s motion for leave to file out-of-time objections (docket no. 33) is GRANTED. It is further
ORDERED that the Movant’s application for a preliminary injunction (docket no. 21) is DENIED.
SIGNED this the 21 day of October, 2009.
____________________________ Thad Heartfield United States District Judge
2

 
 Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 1 of 8 PageID #: 346

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

DAVID RASHEED ALI v. NATHANIEL QUARTERMAN

§

§

CIVIL ACTION NO. 9:09cv52

§

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

The Plaintiff David Ali, proceeding pro se, filed this civil action under 42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Ali seeks the right to grow a beard, as he says is required by his religious faith. He also seeks the right to wear Islamic headgear, and argues that the TDCJ grooming policies unconstitutionally differentiate between male and female inmates. Similarly, Ali argues that TDCJ policies violate equal protection by creating an exception to the grooming standards for medical reasons but not religious reasons and by permitting special meals for non-Muslim inmates but not Muslim prisoners.
An evidentiary hearing was conducted on July 8, 2010. At this hearing, Ali stated that he wished to dismiss his claim concerning the special meals. He testified concerning his remaining claims.
Following this hearing, the Magistrate Judge issued a Report on July 20, 2010, recommending that the lawsuit be dismissed. The Magistrate Judge first noted that in a previous opinion in this case, the Fifth Circuit had pointed to Gooden v. Crain, 353 Fed.Appx. 885 (5th Cir. 2009), as a case which “the district court may find illuminating in how to best further handle this
1

Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 2 of 8 PageID #: 347
case.” In Gooden, the plaintiff sought the right to grow a beard, as dictated by the tenets of his faith, but the Fifth Circuit upheld the trial court’s finding that the TDCJ grooming policy, including the prohibition against growing a beard for non-medical reasons, furthers a compelling governmental interest and is the least restrictive means of furthering this interest. The Magistrate Judge also discussed a number of other pertinent decisions regarding religious freedom, including: Cutter v. Wilkinson, 125 S.Ct. 2113 (2005); Longoria v. Dretke, 507 F.3d 898 (5th Cir.2007); Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004); Freeman v. TDCJ-CID, 369 F.3d 854 (2004); and Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997).
In addressing Ali’s specific claims, the Magistrate Judge first took up the issue of the beard. In Gooden, the Magistrate Judge said, the district court credited testimony that the grooming code addresses a “significant security concern,” and the Fifth Circuit held that the findings of fact made by the district court in Gooden were not clearly erroneous. The district court in Gooden also made findings that: the shaving requirement is the least restrictive means of addressing the prison’s security concerns; significant administrative difficulties would arise if Muslim inmates were allowed to receive clipper shave passes for religious reasons; and contraband can be concealed in beards. These findings were upheld by the Fifth Circuit. Based on these findings, the Magistrate Judge in the present case concluded that Ali’s claims regarding the growing of a beard were foreclosed by Gooden. Although Ali correctly pointed out that the Fifth Circuit had specified that it was making no broad holding that the grooming policy would always be upheld, the Magistrate Judge concluded that he had offered no evidence to warrant a different conclusion.
Second, the Magistrate Judge addressed Ali’s claims concerning the wearing of headgear, specifically a Kufi cap. The Magistrate Judge noted that in Muhammed v. Lynaugh, 966 F.2d 901 (5th Cir. 1992), the Fifth Circuit upheld a TDCJ prohibition against the wearing of such caps outside of the chapel or their cells. Based on this decision, the Magistrate Judge concluded that this prohibition was the least restrictive means of addressing the prison’s security concerns while providing the means to wear the caps in certain circumstances.
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Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 3 of 8 PageID #: 348
The Magistrate Judge next turned to Ali’s discrimination claims. With regard to the claim that TDCJ policies were discriminatory in that they allowed medical exemptions but not religious exemptions to the grooming policy, the Magistrate Judge pointed to an unpublished Fifth Circuit decision called Garner v. Morales, slip op. no. 07-41015, 2009 WL 577755 (5th Cir., March 6, 2009), which held that “individuals receiving an exemption from the grooming policy due to an objectively verifiable medical condition are, by definition, not similarly situated” to persons claiming a religious exemption. The Magistrate Judge thus concluded that Ali’s equal protection claim on this point lacked merit.
Similarly, the Magistrate Judge observed that the Fifth Circuit has routinely upheld the TDCJ grooming policies against equal protection challenges based on the alleged disparity between the treatment of male and female inmates. Longoria v. Dretke, 507 F.3d 898, 904 (5th cir. 2007); Hill v. Estelle, 537 F.2d 214, 215-16 (5th Cir. 1976). The Magistrate Judge determined that this claim lacked merit as well.
Finally, the Magistrate Judge reviewed Ali’s Free Exercise Clause claims. In Green v. Polunsky, 229 F.3d 486, 489 (5th Cir. 2000), the Fifth Circuit held that the TDCJ grooming policies did not violate the Free Exercise Clause with respect to a prisoner challenging these policies on religious grounds.
Ali filed timely objections to the Magistrate Judge’s Report. In his objections, Ali acknowledges that on July 28, 2010, he was given a clipper shave pass for medical reasons, allowing him to grow a quarter-inch beard. To the extent that Ali seeks injunctive relief allowing him to grow a beard, his complaint is moot.
In the remainder of his objections, Ali first argues that he has demonstrated that the TDCJ policies impose a substantial burden upon his exercise of his religious faith. He concedes that the TDCJ policies further compelling state interests, but argues that these policies are not the “least restrictive means” to do so. Ali says that the TDCJ has not yet been ordered to show that the substantial burden imposed on his religious exercise is the least restrictive means of furthering these
3

Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 4 of 8 PageID #: 349
interests. He quotes Beard v. Banks, 126 S.Ct. 2572, 2589 (2006) as saying that “the fact that most states and the federal government run their prisons without resorting to the ban at issue casts serious doubt upon the need for the challenged constitutional deprivation,” but fails to note that the quote he cites is from Justice Stevens’ dissenting opinion in Beard, not the opinion of the Court, nor that the ban at issue in that case referred to access to publications and photographs for inmates in segregation, rather than grooming standards.
Ali goes on to assert that he has cases constituting binding authority, as well as “persuasive” cases from other circuits. He cites a number of cases from other circuits, and as the Magistrate Judge recognized, some courts outside of the Fifth Circuit have indeed sided with the challenges raised by Muslim inmates to their prisons’ grooming standards. However, until the Fifth Circuit reverses itself, or the Supreme Court definitively decides the issue, this Court is bound by the precedents established by the Fifth Circuit.
Ali cities two district court cases, Lewis v. Scott, 910 F.Supp. 282 (E.D. Tex. 1995), reversed 127 F.3d 33, 1997 WL 589183 (5th Cir.,September 2, 1997), and Taylor v. Cockrell, civil action no. 4:00cv2809, 2002 WL 34423557 (S.D.Tex., September 25, 2002). He concedes that Lewis was reversed by the Fifth Circuit and that the injunction in Taylor was vacated, but says that the legal reasoning used by the district courts in those cases was valid and should be followed. However, the reasoning in those cases is contrary to the decisions of the Fifth Circuit which the Magistrate Judge cited. Ali’s objection on this point is without merit.
After citing a number of cases from other circuits, Ali seeks to distinguish Diaz v. Collins by saying that unlike the plaintiff in that case, he is not a gang member and is not confined to administrative segregation. However, these facts were not dispositive in Diaz. Instead, the Court found that the TDCJ grooming standards did not violate the Religious Freedom Restoration Act, the predecessor statute to the Religious Land Use and Institutionalized Persons Act which applied essentially the same standards. Ali also acknowledges that in Green, the Fifth Circuit joined other circuits in upholding the grooming policy, but argues that those other circuit cases should not have
4

Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 5 of 8 PageID #: 350
been followed. He argues that Gooden should not be followed because he, Ali, has offered alternatives and has presented evidence in support of his claims.
Ali contends that a photograph of him with facial hair is no different than a photograph of him without facial hair. Because TDCJ already has a photograph of him without facial hair, he says that this meets the prison’s security concerns. Ali further contends that the TDCJ search procedures should alleviate the security concerns regarding the concealment of contraband, and that the use of such searches, not a ban on facial hair, is the “least restrictive means.” He argues that the Court cannot accept the prison officials’ “mere speculative, exaggerated fears, or post hoc rationalizations.” However, the prison officials’ security concerns have been accepted by the Fifth Circuit in the numerous decisions upholding the TDCJ grooming regulations. This objection is without merit.
Ali says that even if all Muslims or even every inmate were allowed to use clipper shavers, this would not impose any additional administrative burdens on TDCJ nor require the construction of additional barbershops. He points to the statement in Powell v. Estelle, 959 F.2d 22, 25 (5th Cir. 1992), in which the Fifth Circuit noted that the district court rejected the argument that elimination of the grooming code would cost millions of dollars for such items as the purchase of additional cameras. However, in Gooden, the district court found that the suggested alternative of allowing quarter-inch beards was not administratively or financially feasible, a holding which was upheld by the Fifth Circuit. Ali offers nothing to show that this holding in Gooden was in error. This objection is without merit.
The Magistrate Judge noted that if Muslim prisoners are allowed to grow beards, other prisoners may change their religious preferences for the sake of obtaining this privilege. Ali says that this concern is grounded in “mere speculation and exaggerated fears, “ even though, as the Magistrate Judge detailed, the number of Muslim inmates jumped when pork-free diets were instituted, and the number of prisoners claiming adherence to Native American religion increased by a factor of almost 100 when those practitioners were allowed to use tobacco in their pipe ceremonies. Furthermore, he says that even if this does happen, there are other ways to appropriately
5

Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 6 of 8 PageID #: 351
handle the situation, even as the prior incidents were handled by TDCJ. As the Magistrate Judge pointed out, though, the issue with increased conversions for the sake of obtaining privileges concerns the increase in administrative costs. Ali’s argument fails to rebut the Magistrate Judge’s conclusion, based on Fifth Circuit precedent, that the grooming code represents the least restrictive means of addressing the prison’s security concerns. His objection on this point is without merit.
Ali contends that the State cannot “advance its interests solely by targeting religiously motivated conduct.” However, he makes no showing that the TDCJ grooming policy is an advancement of the State’s interest solely by targeting religiously motivated conduct; the grooming policy is applicable to all inmates under all circumstances, with the sole exception of inmates with a specific medical need. Ali points to no evidence that TDCJ adopted its grooming policy with the intent of targeting religiously motivated conduct. Prisoners who wish to grow beards for reasons unrelated to religion are also prohibited from doing so. This contention is without merit.
Next, Ali argues that in Green v. Polunsky, the Fifth Circuit left open the question of whether the grooming regulation unconstitutionally treated similarly situated prisoners differently. In fact, Green states in a footnote that “under an extremely liberal reading of this pro se appeal, we might construe Khidar [Green’s Muslim name] as also advancing an equal protection claim. That issue was not briefed, however, and thus we deem it to be abandoned.” Green, 229 F.3d at 489 n.6. That case thus did not address the equal protection issue at all; those cases which have addressed the issue, as cited by the Magistrate Judge, have held that the TDCJ grooming standards do not violate equal protection. Ali’s objection on this point is without merit.
Ali goes on to argue that the grooming code is applied differently between religious and nonreligious inmates, but he offers nothing to show that non-religious inmates are permitted to grow beards or are otherwise exempted from the code. As the Magistrate Judge observed, the Fifth Circuit has specifically held that inmates who are allowed to grow beards for medical reasons are not similarly situated to inmates seeking to grow beards for religious reasons, and a claim of an equal
6

Case 9:09-cv-00052-ZJH Document 88 Filed 09/24/10 Page 7 of 8 PageID #: 352
protection violation requires a showing of discrimination among similarly situated persons. Muhammed v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992). This claim is without merit.
Ali contends that his case is “significantly different” from Gooden, and that Gooden is not precedential, despite the fact that the Fifth Circuit specifically pointed to Gooden in remanding Ali’s own case. In fact, Gooden and the other Fifth Circuit cases cited by the Magistrate Judge represent clear precedent which is contrary to Ali’s assertions. While it is true that Gooden was unpublished, the Fifth Circuit clearly considered the decision to carry some weight, in stating that “the district court may find [Gooden] illuminating in how to best further handle this case.” Ali’s objection on this point is without merit.
Ali complains that he did not consent to have the Magistrate Judge decide his case and that he is being denied a jury trial. The Magistrate Judge has not decided his case, but is simply acting under the terms of the referral for pre-trial matters pursuant to 28 U.S.C. §636(b). Ali seeks only declaratory and injunctive relief in his complaint and so a trial by jury is not available. Baum v. Blue Moon Ventures, LLC., 513 F.3d 191, 193 (5th Cir. 2008).
Next, Ali says that the fact that this identical issue was remanded to the U.S. District Court for the Southern District of Texas in a case called Garner v. Morales shows that he has stated a claim upon which relief may be granted. Garner was remanded prior to the decision by the Fifth Circuit in Gooden, and the Court offers no opinion as to the effect of Gooden upon the Garner case now pending in the Southern District. This objection is without merit.
Ali complains that the TDCJ justification regarding headgear is “crippled” by the fact that inmates are allowed to walk around wearing personal (i.e. commissary-purchased) items such as Tshirts, thermal pants and shirts, socks, and shorts, while at the same time wearing TDCJ-issued boxers and uniforms with two pockets. He argues from this that inmates should be able to walk around wearing Islamic headgear; he says that he would be willing to give up his commissarypurchased T-shirt and socks to be able to wear a Kufi cap. However, as the Magistrate Judge
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observed, the Fifth Circuit has already upheld the TDCJ policies regarding Kufi caps. Muhammed v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992). This objections is without merit.
Finally, Ali says that on July 28, 2010, he was granted a medical exemption to wear a quarterinch beard for medical reasons. He says that this “cripples” TDCJ’s interest in preventing him from growing a beard for religious reasons. The Fifth Circuit said in Garner v. Morales that inmates who must grow beards for medical reasons are not similarly situated to those who wish to grow beards for religious reasons, and so an Equal Protection claim must fail. As noted above, this granting of the exemption to Ali renders moot his request for injunctive relief regarding the growing of a beard. Ali’s objection on this point is without merit.
Ali has also sought injunctive relief separately from his complaint. This relief was denied, and Ali has filed a motion for reconsideration. On July 6, 2010, the Magistrate Judge issued a Report recommending that reconsideration be denied. Ali has filed objections, but these have no merit.
The Court has conducted a careful de novo review of the pleadings and testimony in this cause, including the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate Judge (docket no. 70) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice and frivolous and for failure to state a claim upon which relief may be granted. It is further
ORDERED that any and all motions, specifically including but not limited to the Plaintiff’s motion for reconsideration of the denial of his motion for injunctive relief (docket no. 39) are hereby DENIED.
SIGNED this the 24 day of September, 2010.
8 ____________________________ Thad Heartfield United States District Judge

 
 Case 9:09-cv-00052-ZJH Document 136 Filed 01/09/12 Page 1 of 4 PageID #: 489

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

DAVID RASHEED ALI v. NATHANIEL QUARTERMAN, ET AL.

§ § CIVIL ACTION NO. 9:09cv52 §

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ON PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF

The Plaintiff David Ali, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this lawsuit under 42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc-1, complaining of alleged violations of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Ali’s lawsuit concerns the TDCJ grooming code, specifically with regard to the growing of beards for religious reasons. The district court dismissed the case, but the Fifth Circuit remanded the case.
On October 24, 2011, Ali filed a motion for an order to show cause and for a temporary restraining order, arguing that in a prior order, the Court had said that if another inmate named Garner were to prevail in a lawsuit which he had filed concerning the grooming code, then he, Ali, could obtain an injunction. He says that Garner has in fact prevailed and so he, Ali, should also be entitled to injunctive relief.
On November 28, 2011, the Magistrate Judge issued a Report recommending that Ali’s motion be denied. The Magistrate Judge noted that the prior order to which Ali referred stated that

1

Case 9:09-cv-00052-ZJH Document 136 Filed 01/09/12 Page 2 of 4 PageID #: 490
if injunctive relief were granted to Garner, and the TDCJ grooming code declared unconstitutional, such relief would operate to Ali’s benefit as well. Garner was in fact awarded declaratory and injunctive relief authorizing him to wear a quarter-inch beard as a religious exercise, but the judgment was stayed when the case went on appeal, where it is now. Hence, the Magistrate Judge said, the decision in Garner’s case is not final.
The Defendants have filed a response to Ali’s motion noting that on March 2, 2011, the Fifth Circuit upheld the TDCJ grooming policy, saying that it is the least restrictive means of serving the compelling interests of prison security and controlling costs, and that this policy does not violate the Religious Land Use and Institutionalized Persons Act. In that same decision, the Fifth Circuit held that the plaintiff, who like Ali is a Muslim inmate of TDCJ, was not entitled to relief on his request for a quarter-inch beard. DeMoss v. Crain, 636 F.3d 145, 155 (5th Cir. 2011).
In reviewing Ali’s request for injunctive relief, the Magistrate Judge concluded that Ali had failed to show that he had a substantial likelihood of success on the merits. Although Ali pointed to the district court’s unpublished decision in Garner’s case, which decision has been stayed pending appeal, a virtually identical claim was rejected by the Fifth Circuit in DeMoss. The existence of recent, contrary Fifth Circuit authority shows a lack of any substantial likelihood of success.
In addition, the Magistrate Judge said, Ali did not show that his proposed injunction would not disserve the public interest. The Magistrate Judge noted that prison authorities are accorded wide-ranging deference in their adoption and execution of policies and practices which are needed to preserve internal order and discipline and to maintain internal security, and so federal district courts should avoid becoming “enmeshed in the minutiae of prison operations.” Lewis v. Casey, 116 S.Ct. 2174, 2182 (1979). Thus, the Magistrate Judge recommended that Ali’s request for injunctive relief be denied.
Ali filed objections to the Magistrate Judge’s Report on December 9, 2011. In these objections, Ali says first that he did not file a request for “injunctive relief,” as the Magistrate Judge had termed it, but rather a motion for an order to show cause and a temporary restraining order. A
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temporary restraining order is a form of injunctive relief, and so the Magistrate Judge did not err in referring to Ali’s motion as a request for injunctive relief.
Next, Ali argues that DeMoss was decided after the case was remanded and cannot be binding precedent because if it was, the Fifth Circuit would not have remanded his case. However, the fact remains that in DeMoss, a published decision, the Fifth Circuit rejected a challenge to the TDCJ grooming standards which is almost identical to Ali’s. As the Magistrate Judge said, the existence of recent precedent directly contrary to Ali’s claims is sufficient to show that Ali lacks the substantial likelihood of success needed to obtain a temporary restraining order, whether or not he is able to distinguish or overcome this precedent when his case is considered on the merits.
Ali argues that he has consistently put forward less restrictive alternatives to the TDCJ grooming standards, and that the Supreme Court has held that plaintiffs “must be deemed likely to prevail” unless the government shows that the proposed less restrictive alternatives are less effective than the challenged regulations, citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). In that case, the Supreme Court affirmed a decision by the Third Circuit upholding the grant of an injunction enjoining the Child Online Protection Act. In the present case, however, Ali seeks the issuance of an order enjoining the TDCJ grooming standards, but these standards have been repeatedly upheld by the Fifth Circuit in the face of challenges under RLUIPA. Whether Ali can prevail on the merits of his claim is a matter for another day, but it is clear that he has not met the burden of proof required for the issuance of a temporary restraining order. Ali’s objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including the Plaintiff’s motion for an order to show cause and a temporary restraining order, the response to this motion by the Defendants, the Report of the Magistrate Judge, and the Plaintiff’s objections thereto. Upon such de novo review, the Court has determined that the Report of the Magistrate Judge is correct and that the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 124) is ADOPTED as the opinion of the District Court. It is further
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Case 9:09-cv-00052-ZJH Document 136 Filed 01/09/12 Page 4 of 4 PageID #: 492 ORDERED that the Plaintiff’s motion for an order to show cause and a temporary restraining
order (docket no. 118) is hereby DENIED. So ORDERED and SIGNED this 8 day of January, 2012. ___________________________________ Ron Clark, United States District Judge
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 Case 9:09-cv-00052-ZJH Document 227 Filed 02/04/14 Page 1 of 9 PageID #: 1187

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

DAVID RASHEED ALI

§

VS.

§ CIVIL ACTION NO. 9:09-CV-52

WILLIAM B. STEPHENS

§

MEMORANDUM OPINION AND ORDER

Plaintiff David Rasheed Ali, an inmate currently confined at the Michael Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed this civil rights

action pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. § 2000cc, against the Director of TDCJ-CID. The Plaintiff challenges prison policies that

prohibit him from wearing a full-length beard and from wearing a Kufi cap throughout the prison

facility.

The Fifth Circuit remanded the case for further proceedings on the merits of the Plaintiff’s

RLUIPA claims and for a ruling on the Plaintiff’s motion for a preliminary injunction on his

RLUIPA claim challenging the grooming policy. Ali v. Quarterman, 434 F. App’x 322 (5th Cir.

2011). The Plaintiff subsequently filed a motion for a temporary restraining order allowing him to

wear a full-length beard and to wear his white Kufi cap throughout the prison at all times.

Standard of Review

A party seeking a temporary restraining order or preliminary injunction must establish the

following elements: (1) there is a substantial likelihood the party will prevail on the merits; (2) a

substantial threat exists that irreparable harm will result if the injunction is not granted; (3) the

threatened injury outweighs the threatened harm to the defendants; and (4) the granting of the

Case 9:09-cv-00052-ZJH Document 227 Filed 02/04/14 Page 2 of 9 PageID #: 1188

preliminary injunction will not disserve the public interest. Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012). Relief should be granted only if the party seeking relief has clearly carried the burden of persuasion as to all four elements. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003).
Analysis The RLUIPA prohibits a government from imposing a substantial burden on a prisoner’s religious exercise, even if the burden results from a rule of general applicability, unless the burden is: (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a).1 The plaintiff bears the initial burden of proving the challenged government action substantially burdens his religious exercise. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011). The statute defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The RLUIPA does not define “substantial burden,” but the Fifth Circuit has held that a government regulation places a substantial burden on a religious exercise if it pressures the prisoner to significantly modify his religious

1

The Supreme Court has noted that the RLUIPA reinstated the “compelling government interest”/ “least

restrictive means” standard set by the Religious Freedom Restoration Act (RFRA). The RFRA was enacted in response

to Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 878-882 (1990), in which the Supreme Court

held that the Free Exercise Clause is not offended by the enforcement of laws of general application that incidentally

burden religious conduct. See Cutter v. Wilkinson, 544 U.S. 709, 714-15 (2005). The RFRA prohibited a government

from substantially burdening a person’s exercise of religion unless the government demonstrated that the burden is the

least restrictive means of furthering a compelling government interest. 42 U.S.C. §§ 2000bb, et seq. The Supreme Court

invalidated the RFRA as applied to States and their subdivisions, holding that it exceeded Congress’ powers under the

Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).

In response to City of Boerne, Congress passed the RLUIPA. Cutter, 544 U.S. at 715. Invoking its powers under the Spending and Commerce Clauses, Congress largely reprised the provisions of the RFRA, but limited its scope to laws and regulations governing land use and institutions, including prisons, that receive federal funds. Id.; Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).

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behavior and significantly violate his beliefs. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). A government regulation does not pose a substantial burden to religious exercise “if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed.” Id.
If the plaintiff shows that the challenged government action substantially burdens his religious exercise, the burden shifts to the defendant to prove a compelling state interest, and that the government action is the least restrictive means of furthering that interest. DeMoss v. Crain, 636 F.3d at 150. The court must give due deference to the expertise of prison officials in establishing regulations and procedures to maintain order, security and discipline, taking into consideration costs and limited resources. Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). I. Grooming Policy
The Plaintiff argues that, as a Muslim, his faith requires him to wear a full beard, which he asserts is equal to one-fist length. The Plaintiff seeks injunctive relief during the pendency of this lawsuit enjoining the Defendant from enforcing the grooming policy preventing him from wearing a beard.
A. Substantial Likelihood of Prevailing on the Merits The Defendant argues that the grooming policy does not substantially burden the Plaintiff’s religious exercise. In support of this contention, the Defendant submitted the affidavit of TDCJ Chaplain Haywood Talib, an Imam or Muslim religious leader. Chaplain Talib states that the Quran does not mandate followers to wear a beard. Chaplain Talib calls the wearing of a beard a personal practice, not a religious mandate. However, Chaplain Talib acknowledges that Muslim scholars have differing opinions as to whether wearing a beard is required.
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Because courts are “ill-suited to resolve issues of theology,” the court must not inquire whether a religious practice is central to the adherent’s religious belief system. See Adkins, 393 F.3d at 570. A plaintiff is only required to demonstrate the “honesty and accuracy of his contention that the religious practice at issue is important to the free exercise of his religion.” Id. For the Plaintiff, wearing a beard is clearly a “religious exercise” as defined by the RLUIPA, regardless of whether other Muslims or religious scholars feel that the Quran compels them to wear a full beard. It is undisputed that the Plaintiff’s failure to comply with the TDCJ grooming policy requiring inmates to be clean-shaven subjects him to disciplinary action. The policy creates a substantial burden on the Plaintiff’s religious exercise because it forces him to choose between being clean-shaven or exercising his religious beliefs and facing disciplinary action. Thus, the burden shifts to the Defendant to demonstrate that enforcing the grooming policy against the Plaintiff furthers a compelling governmental interest, and that it is the least restrictive means of furthering that interest.
Cases brought pursuant to the RLUIPA require a “fact-specific inquiry that takes into account the special circumstances of the individual prisoner and prison.” Chance v. TDCJ, 730 F.3d 404, 411 (5th Cir. 2013). Nevertheless, in determining whether there is a substantial likelihood that a plaintiff will prevail on the merits, the court must consider the Fifth Circuit’s opinion in Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). In Garner, a Muslim inmate challenged the application of TDCJ’s grooming policy as it applied to him. Id. at 240. Initially, the district court granted the defendant’s motion for summary judgment and dismissed Garner’s claims. Id. at 241. The Fifth Circuit reversed the district court’s judgment on Garner’s requests for declaratory and injunctive relief. Id. On remand, the district court appointed counsel for the plaintiff and conducted a bench trial. Id. The district court considered the defendant’s claims that the no-beard policy was essential
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to TDCJ’s compelling interest in safety because: (1) the identification of prisoners would be hindered, (2) contraband and weapons could be hidden in a beard, and (3) a prison escapee could change his appearance by shaving his beard. Garner v. Livingston, 2011 WL 2038581, at *2 (S.D. Tex. May 19, 2011). The district court also considered cost-related interests concerning the extra expense in changing photographs on prisoner identification cards and paying for additional barbers and clippers to trim the beards of Muslim prisoner to a quarter-inch. Id. The district court found these arguments unpersuasive, and found that TDCJ failed to show that the no-beard policy is the least restrictive means of furthering a compelling government interest. Id. at *2-3. Therefore, the court enjoined the defendants from enforcing the grooming policy that prohibited Garner from wearing a quarter-inch beard.2 Id. at *3.
On appeal, the Fifth Circuit found that two prior cases, in which TDCJ’s no-beard policy was upheld,3 did not control the result in Garner. Garner, 713 F.3d at 244. The Fifth Circuit noted that the record in Garner was substantially different than the prior cases because Garner was represented by counsel, thoroughly cross-examined the defense witnesses, proposed different alternatives to the policy, and presented expert testimony. Id. The Court found that the defendants did not meet their burden of showing that the policy was the least restrictive means of advancing their compelling interests in controlling costs and security. Id. at 245, 247.
As the parties note, the record in this case is different than the record in Garner. For example, the Plaintiff points out that Garner does not address his contentions that he should be

2

Although Garner asserted that the Quran prescribes a fist-length beard, he only sought declaratory and

injunctive relief allowing him to maintain a quarter-inch beard. Garner v. Livingston, 2011 WL 2038581, at *2 n. 2

(S.D. Tex. May 19, 2011).

3

See DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011) (per curiam); Gooden v. Crain, 353 F. App’x 885

(5th Cir. 2009) (per curiam).

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allowed to wear a full beard of three to four inches in length. The Defendant has submitted summary judgment evidence that was not available to the Court in Garner, such as: the cost of identification pictures, the cost of maintaining the same inmate to correctional officer ratio as the Bureau of Prisons, security problems caused by the unrestricted beard policy in the Bureau of Prisons and California, the cost to install a video surveillance system equivalent to the Bureau of Prisons, the cost of installing electric fences around Texas prisons, and the estimated cost of enforcing a changed grooming standard for Muslim prisoners. While this evidence supports the Defendant’s argument that TDCJ has compelling security, safety and cost interests in banning full beards, it is far less persuasive regarding the Plaintiff’s alternate request to be allowed a quarter-inch beard. With respect to the Plaintiff’s request to wear a quarter-inch beard, the Defendant has not met his burden of proving that the no-beard policy is the least restrictive means of achieving a compelling government interest with respect to wearing a quarter-inch beard.
In light of Garner and the evidence currently before the court, the Plaintiff has shown a substantial likelihood that he will prevail on the merits of his RLUIPA claim regarding his request to wear a quarter-inch beard. See Hickman-Bey v. Livingston, 2013 WL 6817309, at *5 (S.D. Tex. Dec. 20, 2013); Strong v. Livingston, 2013 WL 6817095, at *11-12 (S.D. Tex. Dec. 20, 2013).
B. Substantial Threat of Irreparable Harm The Plaintiff is not entitled to a temporary restraining order or preliminary injunction unless he shows there is a substantial threat he will suffer irreparable harm if injunctive relief is not granted. The loss of freedoms granted by the First Amendment and the RLUIPA are sufficient to satisfy the irreparable harm requirement. Opulent Life Church, 697 F.3d at 295-96 (citing Elrod v. Burns, 427
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U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”) ).
C. Threatened Injury Outweighs Threatened Harm to the Defendant In addition to proving that there is a substantial threat he will suffer irreparable harm, the Plaintiff must show that the threatened harm to him outweighs the threatened harm to the Defendant. Because the Plaintiff has shown that the harm to him is irreparable, the Defendant would need to present “powerful evidence of harm to [his] interests” to prevent the Plaintiff from meeting this requirement. Id. at 297. The Defendant has not produced powerful evidence of any threatened harm if the Plaintiff is permitted to grow a quarter-inch beard during the pendency of this action. Therefore, the Plaintiff has met his burden of demonstrating that the threatened harm to him outweighs any threatened harm to the Defendant. Hickman-Bey, 2013 WL 6817309, at *6; Strong, 2013 WL 6817095, at *11. D. Public Interest The public certainly has an interest in the safety and security of their prisons and the costs to operate them. However, the court has already concluded, on the record before it, that the no-beard policy is not the least restrictive means of achieving these compelling interests. Injunctions protecting First Amendment and RLUIPA rights are always in the public interest. Opulent Life Church, 697 F.3d at 298. Therefore, this requirement is met if the Plaintiff has shown a substantial likelihood of success on the merits, which the Plaintiff has done. Id.
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E. Conclusion The Plaintiff has met his burden for a temporary restraining order and preliminary injunction with respect to wearing a quarter-inch beard, but has not met the burden with respect to his request to wear a full beard. II. Kufi Cap The Plaintiff is currently permitted to wear a Kufi cap in his cell and at religious services. He requests a temporary restraining order allowing him to wear his Kufi cap throughout the prison at all times. For purposes of this Memorandum Opinion, the court assumes that the prison policy substantially burdens the Plaintiff’s religious exercise. The Defendant has asserted compelling safety and security interests in the policy limiting the use of Kufi caps. In addition, on the record before the court, the policy is the least restrictive means of furthering those interests. As the district court noted in Garner:
Unlike facial hair, the Kufi is easily capable of being donned in one location and doffed in another. In addition to the removability, the Kufi is distinguished from the quarter-inch beard in its potential for the concealment of a weapon or contraband. Given the State’s compelling interest in the safety and security of prisoners and prison staff, requiring a Muslim prisoner to remove his Kufi and to make it available for inspection while on route to and from his religious service appears to qualify as the least restrictive way of furthering that compelling interest. Garner, 2011 WL 2038581, at *3. The Plaintiff has not demonstrated a substantial likelihood of prevailing on his claim concerning the Kufi cap. Therefore, he is not entitled to a temporary restraining order allowing him to wear a Kufi cap throughout the prison at this stage in the litigation.
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Case 9:09-cv-00052-ZJH Document 227 Filed 02/04/14 Page 9 of 9 PageID #: 1195 ORDER
The Plaintiff’s requests for a temporary restraining order and a preliminary injunction are GRANTED to the extent that William B. Stephens, his successors, and all persons acting in concert with him are RESTRAINED and ENJOINED from enforcing the TDCJ grooming policy prohibiting David Rasheed Ali from wearing and maintaining a quarter-inch beard as an exercise of his rights under the RLUIPA. In all other respects, the Plaintiff’s motions for a temporary restraining order and preliminary injunction are DENIED.
SIGNED this 4th day of February, 2014. _________________________ Zack Hawthorn United States Magistrate Judge
9

 
 Case 9:09-cv-00052-ZJH Document 345 Filed 09/26/14 Page 1 of 36 PageID #: 3431

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

DAVID RASHEED ALI

§

VS.

§

CIVIL ACTION NO. 9:09-CV-52

WILLIAM B. STEPHENS

§

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff David Rasheed Ali, an inmate currently confined at the Michael Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed this civil rights

action pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. § 2000cc, against the Director of TDCJ-CID. The Plaintiff challenges prison policies that prohibit him from wearing a fist-length beard1 and from wearing religious head wear, specifically

a Kufi, throughout the prison facility. The Defendant contends that the grooming and religious head

wear policies are the least restrictive means of furthering the compelling interests of the Texas

Department of Criminal Justice (TDCJ) in maintaining safety and security in the prisons, as well as

operating within its budget. Trial Transcript (Tr.), Vol. 1 at 30.

On January 17, 2014, pursuant to the written consent of all parties, this case was referred to

the undersigned United States Magistrate Judge for trial and entry of judgment. The case proceeded

1

In his complaint, the Plaintiff asserts that a fist-length beard is 3-4 inches in length. On February 4,

2014, the court enjoined the Defendant from enforcing the grooming policy to the extent that it prohibited the Plaintiff

from wearing and maintaining a quarter-inch beard. At trial, the Plaintiff testified that a quarter-inch beard is

unacceptable according to his religious beliefs, and that he is no longer asking for a quarter-inch beard. Tr. Vol. 2 at 422-

23, 476.

The Plaintiff has essentially waived any claim concerning wearing a quarter-inch beard. Because he does not have a sincere religious belief that he is required to maintain a quarter-inch beard, he has failed to meet the first prong of the RLUIPA analysis.

Case 9:09-cv-00052-ZJH Document 345 Filed 09/26/14 Page 2 of 36 PageID #: 3432
to a five-day bench trial before this court. Pursuant to Federal Rule of Civil Procedure 52, the court announces and adopts the following final findings of fact and conclusions of law.
Findings of Fact (1) At the time he filed this lawsuit, the Plaintiff was an inmate at the Eastham Unit of the TDCJ-CID. The Plaintiff was transferred to the Michael Unit of TDCJ-CID while this lawsuit was pending. (2) The Michael Unit is a maximum security prison that can house 3,304 inmates. Tr. Vol. 2 at 510. (3) The Plaintiff is currently assigned to live in a dormitory in the trusty camp outside the gates at the Michael Unit of TDCJ-CID. Tr. Vol. 2 at 412, 428, 450. (4) The custody levels in TDCJ range from G-1 through G-5 for general population and from Level 1 through Level 3 for administrative segregation. Tr. Vol. 1 at 161. (5) Trusties have the lowest TDCJ custody classification. Tr. Vol. 2 at 536. Their classification is G-1, which means that they can be supervised by indirect supervision. Tr. Vol. 3 at 544. (6) The Plaintiff works in the law library inside the gates at the Michael Unit. Tr. Vol. 2 at 450. On a typical workday, the Plaintiff might be searched ten times in one day, if he delivers legal materials to inmates in administrative segregation. Tr. Vol. 2 at 455-56. Some of the searches are strip searches and some are pat searches. Tr. Vol. 2 at 450-56. (7) The Plaintiff is a Sunni Muslim, who follows the Hanafi school of Sunni law. Tr. Vol. 1 at 46, 49; Tr. Vol. 2 at 416-17.
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(8) The Hanafi school of Islam requires men to wear a beard. The Hanafi school teaches that it is permissible for Muslim men to trim the mustache area, but it is considered a sin to trim the beard shorter than fist-length. Tr. Vol. 1 at 50, 53.
(9) There are some Hanafi scholars who believe it is a recommended act of piety to wear a Kufi at all times, which will be rewarded by God. Tr. Vol. 1 at 55. The Plaintiff’s Kufi is a white, seamless, knit cap with small holes. Tr. Vol. 1 at 100; Tr. Vol. 2 at 427; Tr. Vol. 3 at 603; Pl. Ex. 119.
(10) The Plaintiff seeks religious counsel from Sadiq Ahmed, an Islamic scholar, and his students. Tr. Vol. 2 at 416. Those scholars have advised the Plaintiff that he has an obligation to wear a fist-length beard and an obligation to wear a Kufi at all times. Tr. Vol. 2 at 419-21.
(11) The Plaintiff sincerely believes that he must wear a Kufi at all times and he must wear a fist-length beard, and that his failure to comply with these obligations constitutes a sin. Tr. Vol. 2 at 421-22. The Plaintiff believes that being able to practice his religion by having a fist-length beard and wearing a Kufi throughout the prison facility will help him repent for his sins. Tr. Vol. 2 at 426.
(12) The Plaintiff has a Kufi and a prayer rug. Def. Ex. 43. The Plaintiff is currently allowed to carry his prayer rug and Kufi from the trusty camp to religious services held inside the facility. Services are typically held once a week and daily during the month of Ramadan. The prayer rug and Kufi are searched when the Plaintiff brings them through the back gate of the Michael Unit. Tr. Vol. 2 at 428.
(13) TDCJ does not provide religious items to inmates cost-free. Tr. Vol. 3 at 642-43; Pl. Ex. 45. An inmate who wants a religious item must send a request to the chaplain. If the request
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is approved, the inmate will be allowed to purchase the item in the commissary or receive it from an outside source. The chaplain takes the item to the property officer who issues a property slip for the item and then gives the item to the inmate. Tr. Vol. 3 at 642.
(14) The chaplain’s office maintains records concerning the religious preferences of inmates. Tr. Vol. 3 at 587. If a correctional officer thinks that an inmate carrying a Kufi is not Muslim, the officer will stop the inmate and call the chaplain’s office to see if the inmate is authorized to have a Kufi. Tr. Vol. 3 at 585-87.
(15) The property papers maintained by TDCJ document that an inmate has a Kufi. Tr. Vol. 3 at 587-88. Inmates are issued property slips that they can carry on their person to document their ownership of certain items of property, such as watches. Tr. Vol. 3 at 607.
(16) Some inmates are permitted to wear hats, depending on their work assignments. Tr. Vol. 2 at 243-47; Pl. Ex. 117; Def. Ex. 82.
(17) The TDCJ grooming policy does not allow inmates to have a beard or mustache. Some inmates are permitted to shave with clippers. Inmates who do not follow the grooming standards are subject to disciplinary action. Tr. Vol. 1 at 197; Pl. Ex. 55; Def. Ex. 2.
(18) It costs TDCJ $46.32 to process one disciplinary case. Tr. Vol. 2 at 410. In 2012, male inmates in TDCJ were found guilty of 6,568 disciplinary cases for violations of the grooming standards. Pl. Ex. 72; Def. Ex. 23.
(19) Most inmates comply with TDCJ’s grooming standards, at least in part, because it is very hot in TDCJ’s prisons, except during the winter. Tr. Vol. 3 at 578-79, 582.
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(20) A clipper shave pass is a piece of paper issued by a medical provider to allow an inmate with certain medical conditions to shave with clippers. Tr. Vol. 3 at 614-15, 628; Pl. Ex. 89; Def. Ex. 7. As of February 26, 2014, there were 6,615 inmates in TDCJ with clipper shave passes. Tr. Vol. 3 at 616; Pl. Ex. 74.
(21) Inmates with clipper shave passes go to the barbershop where they are given clippers to shave their own faces. Tr. Vol. 3 at 617. A fresh clipper shave will leave some stubble, but gives a fairly clean-shaven appearance. Tr. Vol. 3 at 617. The maximum beard length for an inmate with a clipper shave pass is a quarter inch. Tr. Vol. 3 at 615-16; Pl. Ex. 89.
(22) There are two sets of clippers in the barbershops. One pair is for the barber and one pair is for inmates with clipper shave passes. Tr. Vol. 2 at 494-95.
(23) To maintain a quarter-inch beard, the Plaintiff goes to the barbershop every two weeks to use the clippers. Tr. Vol. 2 at 468. The Plaintiff trims his beard himself, using the clippers with a blade. Tr. Vol. 2 at 494. To maintain a fist-length beard, the Plaintiff would clasp his hand around the beard and use the clippers without a blade to trim it. Tr. Vol. 2 at 495.
(24) Inmates who are classified as G-1, G-2, and G-3 are allowed to go to the barbershop by themselves. Tr. Vol. 3 at 571. G-4, G-5, and administrative segregation inmates must be escorted to the barbershop by correctional officer. Tr. Vol. 3 at 571. At the Michael Unit, there are 265 G-4 inmates, 91 G-5 inmates, and 452 inmates in administrative segregation. Tr. Vol. 3 at 571; Def. Ex. 20.
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(25) As of January 31, 2014, there were 150,935 inmates confined in TDCJ and private prisons in Texas. Tr. Vol. 1 at 83; Tr. Vol. 4 at 1096; Plaintiff’s Ex. 71. Private prisons are operated by private correctional vendors, but TDCJ owns the facility itself. Tr. Vol. 4 at 1096.
(26) Approximately 8 percent of TDCJ’s inmate population is female. Tr. Vol. 1 at 84. (27) Female inmates commit the same disciplinary infractions as men, but at a slightly lower rate on a per capita basis. Def. Ex. 22. (28) As of January 2014, there were 6,446 male inmates who identified themselves as Muslim, or approximately 4.6 percent of the male population in TDCJ. Tr. Vol. 2 at 87-88; Defendant’s Ex. 19. (29) There are 3,281 inmates at the Michael Unit. Tr. Vol. 2 at 530; Def. Ex. 12. (30) In 2014, there were 260 Muslim inmates at the Michael Unit. Tr. Vol. 2 at 531; Def. Ex. 19; Pl. Ex. 67. In 2011, there were 274 Muslim inmates at the Michael Unit. Tr. Vol. 2 at 531; Def. Ex. 19; Pl. Ex. 67. (31) As of January 2014, there were 301 female inmates in TDCJ who identified themselves as Muslim, or approximately 2.5 percent of the female inmate population. Tr. Vol. 1 at 95; Def. Ex. 131. (32) A Hijab is a headscarf worn by Muslim women in observance of their faith. Under TDCJ policy, Muslim women are permitted to own two Hijabs, and they are permitted to wear them throughout the prison facility. Tr. Vol. 1 at 103. A Hijab consists of a piece of cloth which is 40.9 inches by 40.9 inches. Tr. Vol. 1 at 96; Pl. Ex. 68. Muslim women who choose to wear a Hijab must purchase it from a vendor approved by TDCJ. Tr. Vol. 1 at 102.
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(33) Of the 301 female Muslim inmates, 59 choose to wear a Hijab. Tr. Vol. 1 at 95. Staffing at female prisons is not based on the religious preferences of inmates or whether they wear a Hijab. Tr. Vol. 1 at 110-11.
(34) Hijabs have not presented a security risk for TDCJ. Tr. Vol. 1 at 130, 200. (35) Institutional guidelines regarding searches, including guidelines regarding the minimum amount of searches, apply to both female and male prisons. Hijabs can be, and are, searched. Tr. Vol. 1 at 130. (36) Under TDCJ policy, female inmates are permitted to have long hair, as long as it is neatly groomed. Tr. Vol. 1 at 104. Female inmates are not permitted to have a shaved or partially shaved head. Tr. Vol. 1 at 186. (37) Identification photographs are taken when an inmate is processed into TDCJ, and then at 5 year intervals. Tr. Vol. 1 at 130. On a case-by-case basis, identification photographs may be taken at less than five-year intervals if the inmate’s appearance has changed. Tr. Vol. 4 at 1073. (38) Female inmates who wear a Hijab take their identification photographs without a Hijab. Tr. Vol. 1 at 131. (39) An identification card is a plastic card with the inmate’s photograph, name, TDCJ number, and date of birth on the front. A magnetic strip on the back or bar code on the front enables machine identification. Pl. Ex. 26 at 1658. The identification card is used for identification, commissary purchases, dispensing medication, issuance of indigent supplies, serving meals, and for other security requirements. Pl. Ex. 26 at 1659. The identification card system is used to maintain a database of inmate front and profile photographs in the Agency Mainframe. Pl. Ex. 26 at 1660.
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(40) Each identification card costs TDCJ approximately $3.15. Pl. Ex. 28. An identification card is expected to last for 2 years. Pl. Ex. 26; Def. Ex. 77. Inmates are charged $5 for identification cards that must be replaced in less than 2 years. Pl. Ex. 26; Def. Ex. 77.
(41) Possession of contraband by inmates is one of the largest security issues in TDCJ. Tr. Vol. 1 at 154-55. Contraband can be hidden in any article of clothing, in an inmate’s genitals or anus, or it can be swallowed. Tr. Vol. 2 at 240-43.
(42) In 2012, the following contraband was found at the Michael Unit: 39 cell phones, 37 phone chargers, 4 cell phone batteries, 1 SIM card, 14 occasions of money, 25 occasions of tobacco, 23 occasions of marijuana, 76 occasions of weapons, and 28 miscellaneous items of contraband. Tr. Vol. 2 at 534; Pl. Ex. 43; Def. Ex. 24.
(43) In 2013, the annual cost of disposable razor blades was $2.52 per inmate. Pl. Ex. 31. (44) Inmates are permitted to keep disposable razors, except prisoners assigned to administrative segregation who are required to return the razor after using it. Tr. Vol. 2 at 249. (45) A pair of clippers without clipper blades costs TDCJ $64.95. Pl. Ex. 31. (46) The Michael Unit is authorized to have 576 full-time correctional officers and 39 parttime correctional officers. Pl. Ex. 49. As of the time of trial, 495 of the full-time positions were filled and 31 of the part-time positions were filled. Tr. Vol. 3 at 752; Def. Ex. 52. The numbers for authorized correctional officers do not include any higher-ranking officers or other prison employees Tr. Vol. 3 at 756. (47) There are a certain number of Priority 1 positions that must be filled every day. Tr. Vol. 2 at 518-20. There are 51 Priority 1 positions on the day shift at the Michael Unit and 52 on the night shift. Tr. Vol. 2 at 521. On occasion, other programs must be canceled for the day to fill
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the Priority 1 positions. Sometimes, correctional officers are paid overtime to cover the positions. Tr. Vol. 2 at 518-20.
(48) The staffing formulas in TDCJ are based on the design, custody, and mission of the facilities. Tr. Vol. 2 at 264. There are more prisoners per correctional officer at TDCJ’s male prisons than female prisons, regardless of whether you consider authorized positions or filled positions. Tr. Vol. 2 at 261-62.
(49) Prisons across the United States are rarely staffed at 100 percent of authorized positions. They typically are staffed at 90 to 95 percent of authorized correctional officers. Tr. Vol. 2 at 301.
(50) Staffing shortages can affect the building schedule and cause programs to be canceled. Tr. Vol. 2 at 522-23.
(51) The total operating budget for TDCJ is $3.1 billion for 2014. Tr. Vol. 2 at 376; Pl. Ex. 14 at 1484.
(52) For fiscal year 2014, TDCJ had 26,112 authorized correctional officer positions. Tr. Vol. 2 at 382; Def. Ex. 50. As of February 2014, 22,903 of those positions were filled. Tr. Vol. 2 at 381; Def. Ex. 50.
(53) The average hourly wage of a correctional officer in TDCJ is $16.66. Pl. Ex. 19 at 1295.
(54) Under TDCJ policy, inmates may be denied religious devotional items if they misuse them or if they present a security risk based on documented behavior. Def. Ex. 6.
(55) It takes a chaplain approximately 15 minutes to process an inmate’s request to change his religious preference. Tr. Vol. 3 at 668. Inmates are allowed to designate a religious preference
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during the intake process, and then once at any time. After they change their religious preference the first time, inmates are only allowed to change their religious preference once per year. Tr. Vol. 3 at 645.
(56) The average hourly wage of a prison unit chaplain is $19.60. Pl. Ex. 18 at 1292. (57) Beards and Kufis do not help an inmate breach a fence. Tr. Vol. 2 at 270-71. (58) When an inmate escapes from TDCJ, the Office of the Inspector General (OIG) assembles a bulletin that is released to local law enforcement. The bulletin has a description of the inmate, the crime for which he was incarcerated, and any information that would help locate the inmate. Typically, there is one photograph on the bulletin, and the inmate’s TDCJ identification photograph is the one that is used. Tr. Vol. 3 at 779-80. (59) The OIG opens approximately 5,000 cases each year; the majority of those cases are investigations of criminal acts by inmates. Tr. Vol. 3 at 811. In most of those cases, the identity of the perpetrator is known. Tr. Vol. 3 at 811-12. When the perpetrator is not known, the OIG assembles a photographic array to try to identify the inmate. The OIG conducts approximately 20 photographic arrays each year. Tr. Vol. 3 at 811-12. (60) An inmate who is in compliance with the grooming policy can alter his appearance by changing hairstyles or hair color, by wearing a cap or taking one off, and by growing facial hair. Tr. Vol. 2 at 273-75; Tr. Vol. 3 at 591-92; Tr. Vol. 3 at 806; Def. Ex. 30; Def. Ex. 32. (61) The Texas Department of Criminal Justice chooses to follow the Texas Establishment Food Regulations (TEFR), although the agency is not required to comply with those regulations. Tr. Vol. 4 at 970. To ensure that food is free from hair, TDCJ requires hair nets or hats to be worn within the food service area. Tr. Vol. 4 at 971; Def. Ex. 78. Food service employees wearing nail
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Case 9:09-cv-00052-ZJH Document 345 Filed 09/26/14 Page 11 of 36 PageID #: 3441
polish or fake nails are required to wear gloves. Def. Ex. 78. An inmate with a beard would be required to wear a beard guard. Tr. Vol. 4 at 974. A disposable beard guard, which is worn for a single shift, costs $0.03. Tr. Vol. 4 at 975; Pl. Ex. 21 at 2150. Approximately 6,600 inmates work in the prison kitchens operated by TDCJ. Tr. Vol. 4 at 971. There are 283 food service employees at the Michael Unit. Tr. Vol. 4 at 972; Def. Ex. 79.
(62) Inmates with clipper shave passes are not required by TDCJ to wear beard covers if they work in the kitchen. Tr. Vol. 4 at 982.
(63) During inmate searches, the procedure requires inmates with longer hair to shake out their own hair with their fingers. Tr. Vol. 2 at 258; Tr. Vol. 3 at 557. If the inmate has short hair, the correctional officer will often do a visual inspection. Tr. Vol. 3 at 557.
(64) An average pat down search takes 7 seconds. Tr. Vol. 4 at 1042. A search of a full beard takes up to 5 seconds. Tr. Vol. 4 at 1042-43. A search of a Kufi takes 3 seconds. Tr. Vol. 5 at 53. On average, a TDCJ inmate would be searched 4 times each day. Tr. Vol. 4 at 1044.
(65) Inmates who are in administrative segregation or have a custody status of G-5 must be strip searched whenever they leave their cell. Tr. Vol. 4 at 1046. Administrative segregation is a restrictive classification where inmates typically only come out of their cell for recreation and to shower. Tr. Vol. 3 at 843.
(66) Inmates in TDCJ are counted 8 times each day. Tr. Vol. 3 at 549. (67) There are 96 pending lawsuits filed by inmates seeking religious exemptions to TDCJ’s grooming policy. Tr. Vol. 3 at 671; Def. Ex. 48.
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(68) The Muslim population in TDCJ has decreased every year since 2011, when a Muslim inmate was granted an injunction allowing him to wear a quarter-inch beard in Garner v. Livingston, 2011 WL 2038581, at *2 (S.D. Tex. May 19, 2011). Tr. Vol. 3 at 681-84.
(69) There are 4 designated Jewish prison units in TDCJ Tr. Vol. 3 at 698. One of those units, the Stringfellow Unit, operates a kosher kitchen for Jewish inmates. Tr. Vol. 3 at 698. It costs nearly twice as much for kosher meals as regular meals–approximately $6 per inmate per day for kosher meals and $3 for regular meals. Tr. Vol. 3 at 700.
(70) Inmates who sincerely practice their religion are less likely to violate prison rules than other prisoners. Tr. Vol. 2 at 309; Tr. Vol. 3 at 729-30; Tr. Vol. 5 at 19-20; Kugler Deposition at 15-16; Pl. Ex. 61.
(71) Four inmates have escaped from TDCJ since 2011. Tr. Vol. 3 at 815. (72) There are 12 security threat groups in TDCJ. Confirmed members of 7 of those groups are assigned to administrative segregation upon identification because they pose a threat to the safety of the unit, staff and other inmates. Members of the other 5 security threat groups and gang members are confined in general population. Tr. Vol. 842-45. (73) The court finds that the Plaintiff’s expert witnesses, Mr. George Sullivan and Mr. Roy Timothy Gravette, are more credible than the Defendant’s witnesses because they both have significant experience working in prisons where beards are allowed and Kufi’s are allowed to be worn at all times.
Legal Standard The RLUIPA, in part, protects the religious rights of institutionalized persons who require government permission and accommodation to practice their religion. Cutter v. Wilkinson, 544 U.S.
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709, 721 (2005). The statute prohibits a government from imposing a substantial burden on a prisoner’s religious exercise, even if the burden results from a rule of general applicability, unless the government demonstrates2 the burden is: (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a).3 Cases brought pursuant to the RLUIPA require a “fact-specific inquiry that takes into account the special circumstances of the individual prisoner and prison.” Chance v. TDCJ, 730 F.3d 404, 411 (5th Cir. 2013). The court must give due deference to the expertise of prison officials in establishing regulations and procedures to maintain order, security and discipline, taking into consideration costs and limited resources. Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). However, there are limits to the deference owed to the judgment of prison officials. Chance, 730 F.3d at 419. Otherwise, prison officials could prohibit all religious practices by citing a generally-applicable policy. Id.
The Plaintiff bears the initial burden of proving the challenged government action substantially burdens his religious exercise. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011). The statute defines “religious exercise” as “any exercise of religion, whether or not compelled by,

2

The RLUIPA assigns the government the burden of going forward with the evidence and of persuasion

on whether the policy furthers a compelling governmental interest and is the least restrictive means of furthering that

interest. 42 U.S.C. § 2000cc-5(2).

3

The Supreme Court has noted that the RLUIPA reinstated the “compelling government interest”/ “least

restrictive means” standard set by the Religious Freedom Restoration Act (RFRA). The RFRA was enacted in response

to Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 878-882 (1990), in which the Supreme Court

held that the Free Exercise Clause is not offended by the enforcement of laws of general application that incidentally

burden religious conduct. See Cutter v. Wilkinson, 544 U.S. 709, 714-15 (2005). The RFRA prohibited a government

from substantially burdening a person’s exercise of religion unless the government demonstrated that the burden is the

least restrictive means of furthering a compelling governmental interest. 42 U.S.C. §§ 2000bb, et seq. The Supreme

Court invalidated the RFRA as applied to States and their subdivisions, holding that it exceeded Congress’ powers under

the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).

In response to City of Boerne, Congress passed the RLUIPA. Cutter, 544 U.S. at 715. Invoking its powers under the Spending and Commerce Clauses, Congress largely reprised the provisions of the RFRA, but limited its scope to laws and regulations governing land use and institutions, including prisons, that receive federal funds. Id.; Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004).

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or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). The RLUIPA does not define “substantial burden,” but the United States Court of Appeals for the Fifth Circuit has held that a government regulation places a substantial burden on a religious exercise if it pressures the prisoner to significantly modify his religious behavior and significantly violate his beliefs. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). A government regulation does not pose a substantial burden to religious exercise “if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed.” Id. Because courts are “ill-suited to resolve issues of theology,” the court must not inquire whether a religious practice is central to the adherent’s religious belief system. See Adkins, 393 F.3d at 570. A plaintiff is only required to demonstrate the “honesty and accuracy of his contention that the religious practice at issue is important to the free exercise of his religion.” Id. He is not required to demonstrate strict doctrinal adherence to all the standards set by his religious authorities to prove his sincerity. Moussazadeh v. TDCJ, 703 F.3d 781, 791 (5th Cir. 2012).
If the Plaintiff shows that the challenged government action substantially burdens his religious exercise, the burden shifts to the Defendant to prove a compelling state interest, and that the government action is the least restrictive means of furthering that interest. DeMoss v. Crain, 636 F.3d at 150. General statements are insufficient to show that the government has a compelling interest because the government interest must be closely tailored to the policy. McAllen Grace Brethren Church v. Salazar, F.3d , 2014 WL 4099141, at *4 (5th Cir. 2014). The Defendant must explain how burdening the Plaintiff’s exercise of religion furthers the compelling government interest. Id.
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The least-restrictive-means standard places a heavy burden on the Defendant. Burwell v. Hobby Lobby Stores, U.S. , 134 S. Ct. 2751, 2780 (2014); McAllen Grace Brethren Church, 2014 WL 4099141, at *7. The Defendant must provide actual evidence, not conjecture, proving that the policy is the least restrictive means. McAllen Grace Brethren Church, 2014 WL 4099141, at *7. “The very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less-restrictive alternatives could exist.” Id. Prison policies from other jurisdictions may provide some evidence of potentially lessrestrictive means, although they do not automatically outweigh the deference given to prison officials who have more knowledge of the operations of their own prisons than outsiders. Chance, 730 F.3d at 411.
Analysis I. Plaintiff’s Burden
The Plaintiff bears the initial burden of proving the challenged government action substantially burdens his religious exercise. In this case, the Defendant does not challenge the sincerity of plaintiff’s religious beliefs. Tr. Vol. 2 at 496. However, the Defendant asserts that the policies, which prohibit the Plaintiff from wearing a full-length beard and from wearing a Kufi throughout the prison, do not place a substantial burden on the Plaintiff because he is allowed to practice his religion by attending religious services, possessing religious items, and eating special meals. Tr. Vol. 2 at 498.
Although the Defendant notes that Muslim inmates are allowed to practice their religion in other ways, there is no question that TDCJ policies ban practices that are important to the Plaintiff. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 333 (5th Cir. 2009) (rejecting TDCJ’s
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argument that an inmate cannot claim that his religious practice is substantially burdened if TDCJ makes alternative means available for him to practice his religion). For the Plaintiff, wearing a fistlength beard and wearing his Kufi at all times are religious exercises as defined by the RLUIPA. The Plaintiff has sincere religious beliefs that he must wear a fist-length beard and a Kufi at all times, and that his failure to do so constitutes a sin. It is undisputed that the Plaintiff’s failure to comply with TDCJ’s policies subjects him to disciplinary action. The policies create a substantial burden on the Plaintiff’s religious exercise because they force him to choose between following the prison policies or exercising his religious beliefs and facing disciplinary action. II. Defendant’s Burden
Because the Plaintiff has shown that the polices create a substantial burden on his religious exercise, the burden shifts to the Defendant to demonstrate that enforcing the grooming and religious head wear policies against the Plaintiff furthers a compelling governmental interest, and that the polices are the least restrictive means of furthering that interest.
A. Kufi In TDCJ, inmates are allowed to wear a Kufi in their cell and at religious ceremonies. Inmates are not allowed to wear a Kufi in other areas of the prison. Although they are allowed to bring their Kufis to religious services, inmates are not allowed to wear them until they arrive at the location where the service is held.
1. Compelling Interest The Defendant contends the policy restricting the use of a Kufi furthers TDCJ’s compelling interests in maintaining security by allowing for easier identification of inmates and preventing the concealment of contraband. The Defendant also contends the policy furthers compelling interests
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in containing costs and in the orderly operation of its prisons. There is no question that these are compelling state interests. Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13 (2005); Garner v. Kennedy, 713 F.3d 237, 245 (5th Cir. 2013). However, the Defendant must also show that the challenged policy furthers the asserted compelling state interests.
a. Security The Defendant’s argument that prohibiting inmates from wearing Kufis throughout the prison aids in the identification of inmates is unpersuasive. Under TDCJ policy, a male inmate can permissibly change his appearance by shaving his head. Caps, which are authorized for certain job positions, also could change an inmate’s appearance as much as a Kufi. Female inmates are allowed to wear a variety of hairstyles, except for a shaved head, and Hijabs with no apparent concerns about correctional officers being able to identify them. Wearing a Kufi does not change an inmate’s appearance more than the types of head coverings that are currently permitted by TDCJ policies. A Kufi changes an inmate’s appearance less than a change in hairstyle because the Kufi can be removed for identification purposes, if necessary. It might actually be easier to identify an inmate who wears a Kufi, because relatively few inmates would be wearing them. The Defendant presented evidence that a Kufi could be used to cover tattoos of gang symbols. The Defendant contends that it is necessary for prison officials to be able to see and document the tattoos so they can identify the inmate’s gang affiliation or identify the inmate if he commits an offense in the prison. Defendant’s Exhibit 31 consisted of 35 photographs of inmates with facial and head tattoos, some of which could conceivably be covered by a Kufi. However, each of the inmates with tattoos that could be covered by a Kufi could have been identified with other facial tattoos that could not be covered by a Kufi. Further, correctional officers can always demand
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that an inmate remove his Kufi to examine him for tattoos, to document tattoos, or to otherwise identify the inmate.4
Mr. Joseph Buttitta, the Director of Investigations for the Office of the Inspector General, testified that inmates committing crimes can be identified by visible tattoos. Of the 5,000 cases opened each year by the Office of the Inspector General (OIG), photographic arrays to identify a perpetrator are only necessary in about 20 cases. In the vast majority of cases, the identity of the perpetrator is known by the victim. Normally, there are witnesses to prison incidents because they take place out in the open. There was no evidence presented that in the remainder of the cases, identification was actually made by a tattoo on an inmate’s head.
It is undisputed that an inmate could hide contraband in or under a Kufi.5 As the witnesses repeatedly testified, contraband can be hidden anywhere by inmates–whether it is in their clothing or hidden in body cavities. However, the Kufi may be searched, just as any other item worn by an inmate. Muslim men already are allowed to possess Kufis, to wear them in their cells and at religious services, and to transport the Kufis from their cells to religious services. The Defendant argued that Muslim women are allowed to wear Hijabs throughout the facilities because female inmates do not present the same security risks as male inmates. Although they commit fewer disciplinary offenses on a per capita basis, female inmates still pose a security risk. The evidence shows that female inmates do violate prison rules and they do hide contraband, yet female Muslim

4

Mr. Robert Grant, the Program Supervisor for the Security Threat Group Office of TDCJ, testified that

it would be just as easy to remove a Kufi to document tattoos as it is to have an inmate remove his shirt or jacket. Tr.

Vol. 3 at 852.

5

Although fictional, the court is reminded that, in The Shawshank Redemption, Andy Dufresne was able

to secrete a rock hammer in his Bible, which he used to dig a tunnel out of prison to effect his escape. No one would

ever suggest Bibles should be prohibited by TDCJ.

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inmates are allowed to wear Hijabs, even though they are larger, cover more of the head, and are more amenable to hiding contraband than a Kufi. Finally, despite the access inmates currently have to religious head coverings, the Defendant failed to produce evidence of a single incident where contraband was hidden in or under a religious head covering, or even under a work cap.6
None of the Defendant’s witnesses had experience in correctional systems that allow Kufis to be worn throughout the prison.7 The witnesses simply offered their speculation as to what might happen if TDCJ allows Kufis to be worn throughout the prison. In contrast, both of the Plaintiff’s expert witnesses spent their correctional careers in prison systems that allow Kufis.8 Both witnesses expressed the opinion that allowing inmates to wear Kufis does not adversely affect the security of a prison. Tr. Vol. 2 at 304.

6

Chaplain Bill Pierce testified that he recalled only two instances of religious devotional items being

misused. Gang members used different color rosaries to identify themselves. As a result, TDCJ changed the policy to

only allow black rosaries. In an incident at the Terrell Unit, a Native American inmate was caught with a tattoo needle

in his medicine bag. Tr. Vol. 3 at 723-24.

7

With one exception, the Defendant’s witnesses were current or former employees of TDCJ. Mr.

Ronald Angelone has many years of corrections experience in Virginia, Oklahoma, Texas and Nevada. Mr. Angelone

expressed an opinion that Kufis could present security problems in a prison setting, but he did not testify that he has any

experience working in prison systems where Kufis are allowed to be worn throughout the prison. Mr. Angelone’s

testimony was primarily concerned with his experience with beards in correctional facilities.

Mr. Angelone has testified or given a deposition as an expert in seven cases. Pl. Ex. 63. Mr. Angelone has mainly been hired by defendants; he was hired one time on behalf of an inmate. Tr. Vol. 4 at 879.

8

Mr. George Sullivan worked in corrections for over 40 years in Oregon, New Mexico and Colorado.

Mr. Sullivan also toured or audited 179 prison facilities for the American Correctional Association (ACA), including

prisons operated by the California Department of Corrections and Rehabilitation (CDCR) and the Bureau of Prisons

(BOP). He has been hired an expert on prison security in 154 cases, by both plaintiffs and defendants almost equally.

Mr. Roy Timothy Gravette was employed by the BOP for 20 years, starting as a correctional officer and retiring as an Associate Warden. Mr. Gravette worked at BOP facilities in Texas, Alabama, and three other states. Mr. Gravette has been hired as an expert in prison security in 34 cases, and has worked for both plaintiffs and defendants.

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The record reflects that 41 states and the Federal Bureau of Prisons (BOP) allow inmates to wear Kufis. Of those correctional systems, the California Department of Corrections and Rehabilitation (CDCR) and the BOP have comparably large prison populations.9 Although those

9

The Defendant presented a considerable amount of evidence trying to differentiate TDCJ from CDCR

and the BOP. Defendant’s Exhibit 85 reflects that, in 2014, CDCR had a prison population of 135,089, with a budget

of $8.9 billion in 2014. The exhibit reflects that TDCJ’s population was 150,935, with a budget of $3.1 billion. The

testimony clarified that the inmate population of 150,935 included inmates confined in private prisons owned, but not

operated, by TDCJ. Finally, the exhibit shows the BOP had a population of 173,800, with a budget of $6.9 billion. In

fact, Defendant’s Exhibit 89 shows that there are 173,726 inmates in facilities operated by the BOP. If you include

inmates housed in private facilities and other types of facilities, as the Defendant did for its own inmate population, the

total number of federal inmates was 216,265. Def. Ex. 89. Clearly, the BOP has a much larger inmate population than

TDCJ, in addition to having a bigger budget.

The Defendant also compared the number of correctional officers employed by the three correctional systems. As of February 28, 2014, TDCJ had 26,112 authorized correctional officer positions, and 22,903 of those positions were filled. Citing Wikipedia, the Defendant asserts that CDCR employed 27,000 correctional officers as of 2013. The court does not view Wikipedia as an accurate source, as evidenced by the fact that it now reflects that CDCR employed approximately 24,000 correctional officers as of 2013. Big Shun Li v. Holder, 400 F. App’x 854, 857 (5th Cir. 2010) (agreeing with the United States Court of Appeals for the Eighth Circuit that Wikipedia is an unreliable source of information). Defendant’s Exhibit 85 shows that the BOP requested funding for 20,911 correctional officers for Fiscal Year 2014, but there is no evidence concerning how many positions were authorized or filled. At any rate, it is clear that the BOP has more offenders per correctional officer than TDCJ. The Defendant points out that all BOP employees have been through correctional officer training, including BOP attorneys, secretaries, case managers, and filing clerks. However, although those employees are able to respond in an emergency, they are not involved in routine searches and supervision of inmates.

The Defendant argues that TDCJ is not comparable to the BOP and CDCR because those prison systems have electrical fencing and they have more advanced surveillance equipment, such as comprehensive video surveillance, parcel scanners, and more walk-through metal detectors than TDCJ. Mr. Gravette testified that, in fact, the BOP does not have electric fences around each facility. Mr. Eason testified that TDCJ is increasing its own surveillance equipment to improve security, unrelated to whether the Plaintiff prevails in this lawsuit. Mr. Eason testified that TDCJ has installed comprehensive video surveillance in some units, and the legislature budgeted $10 million for additional video surveillance equipment. Mr. Eason testified that TDCJ is currently requesting additional walk-through metal detectors and body orifice scanning chairs, and applying for grants to help pay for them. Mr. Eason also testified that TDCJ is installing some electrical fencing, and that he would like to have lethal fencing because it would pay for itself by reducing the necessity for staff. Because those improvements are being made prior to a ruling in this case, it is clear that those devices are installed to improve security in general, and they are not necessitated by beards or Kufis.

Mr. Gravette testified that the BOP follows building schedules, houses gang members and violent inmates, investigates prison crimes, and conduct roughly the same amount of pat searches daily. Mr. Gravette also testified that the BOP has not needed additional metal detectors, electrical fencing, staff, or other security measures to accommodate inmates with beards and Kufis.

While there are clearly differences between the prison systems, those differences do not preclude comparisons between the prison systems and how they handle inmates with beards and Kufis. How California and the BOP operate their prisons is not dispositive in this case, but it is certainly informative, and it is evidence that the court may consider.

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prison systems allow Kufis to be worn throughout the prison, it does not present a security issue. Kugler Deposition at 5; Greilick Deposition at 6-7; Tr. Vol. 4 at 1118; Tr. Vol. 5 at 15. In the BOP, inmates with Kufis are part of the daily routine, and they do not require additional security measures, metal detectors, or electrical fencing. Tr. Vol. 5 at 14-16. The security concerns expressed by the Defendant, in reality, turn out to be insignificant, and they are not shared by the experts who worked in facilities that allow Kufis.
b. Prison Operations There was testimony from defense witnesses that the added time for correctional officers to search Kufis could have an effect on the operations of the prison by causing the facility to get off the building schedule.10 Multiple witnesses testified about the importance of a prison’s ability to stay on schedule. Although the witnesses gave varying estimates about the amount of time it would take to search a Kufi, the most reliable evidence was the in-court demonstration, which took a maximum of three seconds. The testimony at trial established that the Plaintiff is searched up to ten times each day. Thus, it would take a maximum 30 seconds of correctional officer time each day to search the Plaintiff’s Kufi if he were allowed to wear it throughout the prison. The Defendant presented testimony that if the Plaintiff is allowed to wear a Kufi, every other Muslim inmate will also want to wear a Kufi. This testimony was pure conjecture, not based on any studies or surveys conducted by TDCJ. In the experience of Mr. George Sullivan, an expert witness for the Plaintiff, approximately 20 to 30 percent of Muslim inmates choose to wear a Kufi. In TDCJ’s experience, only 20 percent of female inmates choose to wear a Hijab. Assuming that 30

10

A building schedule is a 24-hour schedule that lists all the prison activities that will occur during the

day and the times those activities will occur at the facility. Tr. Vol. 1 at 165.

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percent of the Muslim inmates at the Michael Unit chose to wear a Kufi, it would take an additional 15 minutes of correctional officer time each day to search each inmate wearing a Kufi.11 Even assuming that each of the 260 Muslim inmates at the Michael Unit chose to wear a Kufi, which is highly unlikely, it would take an additional 52 minutes each day for correctional officers to search Kufis. In light of the evidence presented, it is clear that the time required to search Kufis is minimal and would have little impact on prison operations.12
c. Costs Finally, the Defendant argues that the policy prohibiting inmates from wearing Kufis throughout the prison furthers a compelling interest in controlling costs. Controlling costs is certainly a compelling government interest, but in some cases the RLUIPA may require the State to incur some expenses to avoid substantially burdening a religious exercise. 42 U.S.C. §2000cc-3(c); Garner v. Kennedy, 713 F.3d 237, 245 (5th Cir. 2013). The Defendant presented a number of cost estimates for security, but they mainly pertain to the alleged costs for beards. The only expense directly related to inmates wearing Kufis is the time

11

The Plaintiff is searched more often than most inmates because he lives in a dormitory outside the

prison walls, but works inside the walls in the law library, and he is searched when entering housing areas to deliver legal

materials. The average inmate is searched four times each day.

12

There was no evidence presented concerning the number of correctional officers it takes to fully staff

the Michael Unit. There was evidence about Priority 1 positions, which must be filled even if correctional officers have

to be shifted from other assignments. There are 51 Priority 1 positions on the day shift and 52 at night. Obviously, it

takes more correctional officers to fully staff the Unit, but, assuming only the Priority 1 positions are staffed, that is

74,160 minutes of correctional officer time each day. Correctional officers would spend only a small fraction of that time

searching Kufis.

The Defendant would argue that the effects of a ruling for the Plaintiff will extend beyond the Michael Unit. While it is possible to calculate the amount of time required to search inmates with Kufis for all of TDCJ, there is no evidence in the record for the court to determine the amount of correctional officer hours worked state-wide on a daily basis. Without that information, it is not possible to determine the actual burden on correctional officer time.

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needed to search them. Given that it would only take 30 seconds each day to search the Plaintiff’s Kufi, or 15 minutes each day to search the other Muslim inmates, additional staff would not be needed to conduct those searches because the search time would almost certainly be absorbed by existing staff members. Even assuming additional staff was hired, it would cost $0.14 per day for correctional officers to search the Plaintiff’s Kufi and $4.20 to search other Muslim inmates at the Michael Unit, assuming 30 percent of them chose to wear Kufis. This corresponds with Mr. Sullivan’s opinion that any added cost from allowing Kufis would be insignificant. Tr. Vol. 2 at 304-5.
2. Least Restrictive Means Although the court finds that TDCJ’s policy prohibiting Muslim inmate’s from wearing a Kufi throughout the prison does not further a compelling governmental interest, it is worth noting that there are less-restrictive alternatives. Whether a prison policy is the least restrictive means of furthering a compelling government interest is a case-specific inquiry, which means the court must determine if the burden on that person is the least restrictive means of furthering that compelling interest. Chance, 730 F.3d at 411. It is the Defendant’s burden to prove that TDCJ’s policy is the least restrictive means among available, effective alternatives. Moussazadeh v. TDCJ, 703 F.3d 781, 795 (5th Cir. 2012). From the record before the court, it appears that TDCJ never seriously considered whether there were lessrestrictive alternatives to the current Kufi policy that would accommodate the Plaintiff’s religious exercise. None of the Defendant’s witnesses testified that they examined the existing policy or
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considered possible alternatives to the policy.13 There were no exhibits showing the issue was studied by TDCJ or that alternatives were considered. The Defendant’s expert witness, Mr. Angelone, testified that, in forming his opinions, he did not consider whether there were any lessrestrictive alternatives to the policy. Tr. Vol. 4 at 942-43, 945-48. Thus, the Defendant’s argument that the Kufi policy is the least restrictive means seems to be a post hoc rationalization justifying the current policy, rather than a decision made by prison officials after a thoughtful examination of the issue.
There are currently procedures in place in TDCJ to keep track of inmates who are permitted to have Kufis. If a Muslim inmate has a Kufi, it is noted on his property papers in the property room. For some items of property, inmates are issued property slips that they can carry on their person. The Defendant failed to offer an explanation why those property slips, which are issued to inmates for watches and other property, could not be also issued to inmates with Kufis. Also, the chaplain’s office keeps track of each inmate’s religious designation. If a correctional officer is uncertain whether an inmate is allowed to have a Kufi, the officer can call the chaplain’s office to verify the inmate’s religious designation. Kufis could be searched during pat searches and strip searches, and inmates can be directed to remove their Kufis for identification purposes, if necessary. Finally, TDCJ could revoke the privilege of wearing a Kufi if an inmate is found guilty after a disciplinary proceeding of abusing the privilege by hiding contraband. These are all less-restrictive alternatives to the current policy.

13

It is worth noting that, according to Chaplain Pierce, Kufis and prayer rugs were prohibited altogether

by TDCJ until Muslim inmates filed a lawsuit to enforce their constitutional rights. Tr. Vol. 3 at 681.

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B. Fist-Length Beard The Texas Department of Criminal Justice’s grooming policy requires inmates to be cleanshaven. Because this policy substantially burdens the Plaintiff’s religious exercise, the Defendant must show that the policy is the least restrictive means of furthering a compelling governmental interest.14
1. Compelling Interest The Defendant contends the policy banning facial hair furthers TDCJ’s compelling interests in maintaining security by allowing for easier identification of inmates and preventing the concealment of contraband. The Defendant also contends the policy furthers compelling interests in containing costs, and in the orderly operation of its prisons. There is no question that these are compelling state interests, but the Defendant must show that the challenged policy furthers the asserted compelling state interest.
a. Security Escapes from TDCJ are rare–only 4 inmates have escaped from TDCJ since 2011. Nevertheless, Mr. Buttitta and Mr. Robert Eason15 both testified that TDCJ’s biggest concern with beards was that inmates could change their appearance after escaping by shaving their beards. After an escape, the OIG releases a bulletin to local law enforcement agencies with a photograph of the escapee, a physical description, and other relevant information. The bulletins typically contain one

14

The United States Supreme Court has granted certiorari in Holt v. Hobbs, 509 F. App’x 561 (8th Cir.

2013), to consider whether the Arkansas Department of Corrections’ (ADC) grooming policy violates the RLUIPA to

the extent that it prohibits an inmate from growing a half-inch beard in accordance with his religious beliefs. Holt v.

Hobbs, U.S. , 134 S. Ct. 1512 (2014). The Respondents have been enjoined from enforcing the ADC’s grooming

policy, to the extent that it prohibited Mr. Holt from wear a half-inch beard, until the Supreme Court enters its judgment.

Holt v. Hobbs, U.S. , 134 S. Ct. 635 (2013).

15

Mr. Robert Easton is the Correctional Institutions Division Deputy Director of TDCJ.

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picture because news media prefer to show one picture and the size of the photographs would have to be reduced to fit two photographs on one page. The Defendant’s witnesses also expressed concerns about confusing the public if more than one photograph of an escapee was released. Clearly, prisoners who escape can change their appearance in many ways. An inmate with longer hair could shave it, or an inmate could wear a hat. Defendant’s Exhibit 32 shows examples of escapees changing their appearance by growing their hair, dyeing their hair, growing facial hair and wearing glasses. Because appearances can be changed in so many ways, including by growing beards as seen in the Defendant’s Exhibit, banning beards does not further a compelling interest in identification of escaped inmates.
Identification is also important on a daily basis, throughout the facility. Mr. Eason testified that inmates in TDCJ are identified by their identification cards 8 times each day at count and several other times throughout the day. Correctional officers identify the inmates by looking at their faces and then looking at the photograph on the identification card. The Defendant presented testimony that beards can cover identifying features, such as gang tattoos, acne, scars and moles.16 But their

16

As an example of how inmates can change their appearance after escaping, the Defendant submitted

photographs of “The Texas Seven,” a group of inmates who escaped from the Conally Unit. Five of the inmates were

apprehended after 40 days and 2 were apprehended 42 days after their escape. The photographs consisted of their prison

photographs, which were released to the public, showing how they looked before their escape, and photographs of how

they looked when they were apprehended. Def. Ex. 32. The photographs reflect that the inmates attempted to change

their appearance by growing their hair, dyeing their hair, growing facial hair, and/or wearing glasses.

Mr. Buttitta also testified that one of the inmates, Larry Harper, was identified by a pin point mole visible in his prison photograph that would have been covered if he was allowed to have a beard. Tr. Vol. 3 at 792. In fact, the prison photograph of Larry Harper produced by the Defendant did not show a pin point mole. The Defendant subsequently produced additional photographs of Larry Harper, consisting of autopsy photographs and a sketch made by law enforcement in Colorado based on a citizen’s description. Court’s Ex. 1-A to 1-D. These photographs showed something on his face near his mouth, which was not visible on the prison photograph purportedly released by TDCJ to the public. Mr. John West from the Office of the General Counsel for the Office of the Inspector General later testified that Larry Harper was not, in fact, identified by a prison photograph showing a mole. Tr. Vol. 4 at 1136-37.

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own witness, Mr. Grant, testified that it would be possible to document existing facial tattoos during the intake process if the inmates were clean shaven. Tr. Vol. 3 at 858. An inmate could subsequently get a new facial tattoo after intake, but he would need to be clean-shaven to get the tattoo and it could be documented before his beard covers it. Tr. Vol. 3 at 863-64. If an inmate grows a beard, a new identification card could be issued with a current photograph, as is done for other inmates whose appearance has changed.
The Defendant contends that contraband could be hidden in an inmate’s beard. The Plaintiff presented the credible testimony of Mr. Sullivan and Mr. Gravette that beards do not pose a security problem, and that the Defendant has exaggerated the potential problems. Although contraband is occasionally found in inmates’ hair and beards, the BOP and CDCR do not consider it a problem and it is not found frequently.17 Neither agency provided the Defendant with photographs or reports of contraband found in beards. They only provided photographs of inmates hiding contraband in braided hair and dreadlocks.18 There may well be security issues associated with those hairstyles, but braids and dreadlocks are not at issue in this case.
When Mr. Angelone was the Director of the Virginia Department of Corrections, he changed the grooming policy to require male inmates to be clean-shaven and to have short hair. Mr. Angelone described several incidents that, in his opinion, necessitated the policy change. In one instance, an inmate was killed by his cell mate because he smelled. Spiders were found in inmates’

17

In his notes from his trip to the Federal Correctional Complex in Beaumont, Mr. Eason commented,

“Very little contraband is discovered in offender’s hair.” Pl. Ex. 105.

18

The Defendant produced reports of three instances where prisoners concealed contraband in dreadlocks

or braids and other instances where law enforcement agencies arrested individuals who were transporting drugs in their

hair or under wigs. Def. Ex. 35-37. Mr. Eason testified that prison officials from CDCR gave him a photograph with

a cell phone and other contraband hidden in his hair.

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hair. One inmate set fire to his head and was found to have a black widow spider in his hair.19 These are hygiene issues, unrelated to security issues caused by having beards. Mr. Angelone did not testify as to one example of an inmate hiding contraband in a beard.20 Further, the court notes that the Virginia Department of Corrections changed the grooming policy to allow inmates to wear a quarter-inch beard after Mr. Angelone retired. Mr. Angelone was the Assistant Director of the Nevada Department of Corrections for 4 years and the Director for 5 years. Nevada allowed beards throughout this time period, and Mr. Angelone did not change the policy when he was in a position to do so. Because Mr. Angelone did not ban beards in Nevada and changed the Virginia policy primarily due to hygiene issues, the court does not find his testimony to be persuasive. The testimony of Mr. Sullivan and Mr. Gravette, who both have extensive experience with beards in correctional facilities, was much more credible.
b. Prison Operations and Costs The Defendant asserts that “equity among offenders” is a correctional philosophy that requires all inmates be treated in the same manner so that nobody is perceived to have a special benefit. In theory, that principle makes sense, but religion is different according to the RLUIPA. Where religious exercise is involved, the practice must be allowed unless banning or limiting the practice is the least restrictive means to further a compelling government interest. In practice, different religious groups are not treated exactly the same by TDCJ. For instance, Native Americans

19

Mr. Angelone also testified that long hair and beards caused problems with lice. This argument is not

persuasive. The Defendant’s medical expert, Dr. Bobby Vincent, testified that lice is not a problem in TDCJ, beards do

not cause lice, and having longer hair does not increase the incidence of lice. Tr. Vol. 3 at 632-334.

20

Mr. Angelone did note one instance where an inmate cut his long hair and beard, put the hair on a wax

replica he made, left it covered in his bed, and escaped from prison. Tr. Vol. 3 at 899. The inmate was gone for a week

or two, but he was apprehended, even though he looked different than before his escape. Tr. Vol. 3 at 899-900.

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are allowed to have medicine bags, Jewish inmates can be housed in a Jewish-designated unit and eat kosher food, female Muslim inmates are allowed to wear Hijabs, and inmates are allowed to possess religious devotional items specific to their religion.
The Defendant contends it would be difficult to enforce a grooming standard that allows for a certain length beard. While it is possible that inmates would try to exceed the allowed beard length, it is currently the case that some inmates refuse to follow the existing grooming policy.21
The Defendant’s witnesses repeatedly expressed the opinion that, if Muslim inmates are allowed to wear beards, other inmates will designate their religion as Muslim so they can wear beards. The witnesses referenced incidents in their experience where inmates changed their religious preference to be able to take advantage of a benefit given to a religious group, such as special meals, sweat lodges, and pipe smoking. Although it may have happened in the past, it has not been an issue with respect to beards. To the contrary, the number of Muslim inmates in TDCJ has decreased every year since 2011, when a district court first granted an inmate the right to wear a quarter-inch beard. Mr. Sullivan testified that, in his experience, approximately 30 to 40 percent of Muslim inmates wore beards. Further, Mr. Foxworth testified that most inmates comply with the grooming standards because of the heat in TDCJ’s prisons. Based on the record before the court, there is no evidence that inmates will change their religious preference to wear a beard.
Chaplain Billy Pierce, the Director of Chaplains for TDCJ, testified that it would be necessary for the chaplaincy department to spend a considerable amount of time generating a daily roster of the Muslim inmates who are permitted to wear a beard so the security staff would know

21

In 2012, male inmates committed 6,658 violations of the grooming policy. Those disciplinary cases

cost TDCJ $304,229 to process.

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who has a religious exemption to the grooming policy. No explanation was given why inmates with religious exemptions to the grooming policy would need to be treated any differently than the 6,615 inmates who have clipper shave passes. The medical department issues clipper shave passes for inmates who have medical reasons for not shaving. Those passes are carried on the inmate’s person, and there is apparently no need for a master list of those inmates. Religious exemptions could be handled in the same manner.
Chaplain Pierce also testified that inmates who are Roman Catholics, Jewish, Messianic Jews, non-Roman Catholic Christians, Sabbatarians, Druids, Mormons, offshoots of Islam, and New Omianism would also have a religious basis to request an exemption from the grooming policy. Chaplain Pierce’s estimate that 125,000 inmates will request religious exemptions to TDCJ’s grooming policy is purely conjecture. Once again, TDCJ failed to conduct any meaningful inquiry as to how many inmates realistically would request to wear a beard for religious reasons. There are no studies or surveys of inmates, simply a worst-case scenario based on nothing but speculation. What is undisputed is that, three years after the district court decision in Garner, there are 96 pending lawsuits filed by inmates seeking religious exemptions to the grooming policy, and there is no indication that any of those inmates changed their religious preference to obtain a religious exemption.
The Defendant’s claims concerning the anticipated costs of changing the beard policy are grossly exaggerated, primarily because the Defendant makes the assumption, unsupported by the evidence, that all inmates would grow a beard or change their religion to be allowed to grow a beard. The most egregious example of over-inflating costs was the Defendant’s estimate that it would cost
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$117 million to install lethal fences around all TDCJ prison units.22 There was no testimony that TDCJ would actually install such fences if the Plaintiff or other Muslim inmates were granted injunctions allowing them to wear beards. Nor was there testimony that lethal fencing is necessary for security reasons if inmates are allowed to wear beards. Actually, Mr. Eason testified that electric fences are a good security device, in general; and there was testimony that TDCJ has begun installing stun fences around some of its units, apparently unrelated to this case.
The record is full of examples of over-estimated costs. The Defendant’s cost estimates for building and supplying additional barbershops to accommodate Muslim inmates trimming their beards were not tied to any realistic projection of increased demand. Rather, the predictions were based on the amount of space available to add barber chairs and the assumption that the vast majority of TDCJ inmates would grow a beard. It is possible that TDCJ would need to purchase additional clippers to trim fist-length beards, but it is impossible to determine how many from the record before the court.23 Mr. Easton testified he believed it would be necessary to hire 6 to 8 additional correctional officers at the Michael Unit to escort administrative segregation inmates to the barbershop. Again, this estimate was based on the assumptions that all offenders would choose to wear a beard, and it is mere speculation.24
Likewise, the estimated costs for beard covers for kitchen workers assumed that all kitchen employees would need a beard cover. The actual costs, from the evidence presented, are much less.

22

The estimate included the costs of installing lethal fences around women’s facilities.

23

The cost of purchasing clippers would be offset, at least in part, by the savings from reduced purchases

of disposable razors.

24

The barbershop and clipper estimates were also based on the need to trim beards to a quarter-inch.

Since a quarter-inch beard is no longer an issue in this case, the estimates are largely irrelevant.

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The Plaintiff in this case would not require a beard cover because he does not work in the kitchen. Assuming that 4.5 percent of the 283 inmates assigned to the kitchens at the Michael Unit were Muslim, there would be roughly 13 Muslim inmates working in the kitchens. Even if those 13 inmates worked every meal and wore fist-length beards,25 they would only require 39 beard covers each day, at a total cost of $1.17 per day.
There are other costs associated with allowing the Plaintiff, or other Muslim inmates to wear beards, but the RLUIPA may require the State to incur some expenses. As far as searches of beards, it would take 50 seconds each day to search the Plaintiff’s beard, at a cost of $0.23. If 40 percent of Muslim inmates choose to grow a beard,26 it would take 34 minutes each day to search their beards, at a cost of $9.52 each day. Of course, these cost estimates are only valid if additional staff is actually hired. If the existing staff conducts the searches, there is no added cost. The cost to update the Plaintiff’s identification card with a current photograph would be $3.15. The cost to update identification cards for 40 percent of male Muslim inmates in TDCJ would be $20,304. These expenses are only a small fraction of TDCJ’s $3 billion budget.
2. Least-Restrictive Means As with the Kufi policy, Mr. Angelone testified that he did not consider any possible alternative to TDCJ’s beard policy. Mr. Eason testified that he toured the TDCJ unit at Tennessee Colony, the Folsom prison facilities in California, and the BOP facility in Beaumont, Texas to consider the feasibility of allowing inmates to wear quarter-inch beards as a less restrictive

25

Inmates with medical clipper shave passes do not wear beard covers in the kitchen, even though they

may have facial hair as long as a quarter-inch.

26

The estimate that 40 percent of Muslim male inmates would wear a beard is based on Mr. Sullivan’s

experience that 30 to 40 percent of inmates wear beards.

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alternative to the current policy. Although prison officials from CDCR and the BOP told Mr. Eason that they do not have problems with their policy, Mr. Eason does not believe beards could be accommodated for Muslim inmates in TDCJ. Mr. Eason did not explain why less restrictive means would not be workable in TDCJ; his testimony focused on differences between the prison systems that would justify TDCJ’s decision to maintain its current no-beard policy. Once again, the Defendant’s evidence concerning least-restrictive means is more of an attempt to defend TDCJ’s current no-beard policy than an unbiased examination of potential alternatives.
In fact, there are alternatives to the current no-beard policy. Taking an intake photograph with the inmate clean-shaven would reveal identifying marks and tattoos that could be covered by a beard. A new photograph could be taken if an inmate grows a beard. Maintaining copies of all prison photographs, which TDCJ currently does, would ensure that the agency has photographs of inmates with a beard and without.27 During a search, the correctional officer could visually inspect an inmate’s beard. If there is any concern that contraband might be in the beard, the inmate could be directed to run his fingers through his beard, as is done with searches of hair. The Department of Criminal Justice could issue a pass, similar to the clipper shave pass, to Muslim inmates who are permitted to wear a beard. Finally, TDCJ could revoke the privilege of wearing a beard if an inmate creates a security risk by abusing the policy.28

27

Mr. Eason testified that inmate photographs are updated every five years, or in some cases more

frequently if an inmate’s appearance has changed. Tr. Vol. 4 at 1072-73.

28

The Defendant contends that this is not a viable option if an inmate has an injunction allowing him to

wear a beard. This argument ignores the fact that such a policy could have been considered and/or implemented prior

to litigation.

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Conclusions of Law (1) Wearing a fist-length beard and wearing a Kufi are religious exercises. (2) The Plaintiff sincerely believes that he must wear a fist-length beard and that he must wear a Kufi at all times. (3) The Texas Department of Criminal Justice’s policy prohibiting inmates from wearing a Kufi throughout prison facilities substantially burdens the Plaintiff’s religious exercise. (4) The Texas Department of Criminal Justice’s grooming policy, which prohibits inmates from wearing a beard, substantially burdens the Plaintiff’s religious exercise. (5) The Texas Department of Criminal Justice has compelling interests in maintaining security, containing costs, and in the orderly operation of its prisons. (6) The Texas Department of Criminal Justice’s policy prohibiting inmates from wearing a Kufi throughout the prison does not further TDCJ’s compelling interests in maintaining security, containing costs, or in the orderly operation of its prisons. (7) There are less-restrictive alternatives to the current policy prohibiting Muslim inmates from wearing a Kufi throughout the prison units, such as: calling the property officer or the Chaplain’s Office to see if an inmate is permitted to have a Kufi; issuing the inmate a property pass authorizing him to wear a Kufi to keep on his person; having an inmate remove his Kufi for identification purposes, if necessary; having the inmate remove the Kufi to be searched during strip searches and pat searches; and revoking the privilege of wearing a Kufi if it has been misused in a manner that affects security.
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(8) The Texas Department of Criminal Justice’s policy prohibiting inmates from wearing a fist-length beard throughout the prison does not further TDCJ’s compelling interests in maintaining security, containing costs, or in the orderly operation of its prisons.
(9) There are less-restrictive alternatives to the current policy prohibiting Muslim inmates from wearing a fist-length beard, such as: taking an intake photograph with the inmate clean-shaven and then taking a new photograph and issuing a new identification if an inmate grows a beard; maintaining copies of all prison photographs; searching the beard by having an inmate run his fingers through it; issuing a pass to Muslim inmates who are permitted to have a beard; and revoking the privilege of wearing a beard if it is abused.
(10) The Plaintiff is entitled to a declaratory judgment that the TDCJ policy regarding religious head wear, which prohibits him from wearing a Kufi throughout the prison, imposes a substantial burden on his religious exercise, is not justified by a compelling governmental interest, and is not the least restrictive policy.
(12) The Plaintiff is entitled to an injunction restraining and enjoining the Defendant from enforcing the TDCJ policy regarding religious headwear in such a way that it violates the Plaintiff’s rights under the RLUIPA.
(13) The Plaintiff is entitled to a declaratory judgment that the TDCJ grooming policy, which prohibits him from wearing a fist length beard, imposes a substantial burden on his religious exercise, is not justified by a compelling governmental interest, and is not the least restrictive policy.
(14) The Plaintiff is entitled to an injunction restraining and enjoining the Defendant from enforcing TDCJ’s grooming policy in such a way that it violates the Plaintiff’s rights under the RLUIPA.
35

Case 9:09-cv-00052-ZJH Document 345 Filed 09/26/14 Page 36 of 36 PageID #: 3466 Conclusion
The Plaintiff has met his burden of proving that the grooming policy and religious headwear policy substantially burden his religious exercise. The Defendant has not met his burden of proving the policies are the least restrictive means of furthering compelling governmental interests. Therefore, the Plaintiff is entitled to a judgment in his favor, granting declaratory and injunctive relief. A final judgment will be entered in accordance with these Findings of Fact and Conclusions of Law.
SIGNED this 26th day of September, 2014. _________________________ Zack Hawthorn United States Magistrate Judge
36

 
 Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 1 of 13 PageID #: 7656

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

DAVID RASHEED ALI

§

VS.

§

CIVIL ACTION NO. 9:09-CV-52

WILLIAM B. STEPHENS

§

MEMORANDUM OPINION AND ORDER

Plaintiff David Rasheed Ali, an inmate currently confined at the Michael Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed this civil rights

action pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. § 2000cc, against the Director of TDCJ-CID. The Plaintiff challenged prison policies that

prohibited him from wearing a fist-length beard and from wearing religious head wear, specifically

a Kufi, throughout the prison facility. Following a five-day bench trial, the court found that the

policies violated plaintiff’s rights under the RLUIPA. The court also found that the Plaintiff was

entitled to declaratory and injunctive relief. As the prevailing party in the action,1 the Plaintiff seeks attorney’s fees and costs in the

amount of $292,420.35. The Defendant opposes and objects to $101,307.30 of the attorney’s fees

and costs.

Legal Standard

Unless prohibited by statute, Federal Rule of Civil Procedure 54(d) allows the court to award

costs, other than attorney’s fees, to prevailing parties. Title 28 U.S.C. § 1920 allows the court to tax

1

The Defendant does not contest that Plaintiff is a prevailing party. To the extent that the Plaintiff

remains a prevailing party following the appeal, the Defendant does not contest certain fees and expenses requested by

the Plaintiff.

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 2 of 13 PageID #: 7657
as costs: fees of the clerk and marshal; fees for transcripts necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and the costs of making copies where the copies are necessarily obtained for use in the case; docket fees; and compensation for court-appointed experts and interpreters. Title 28 U.S.C. § 1821 limits witness fees to $40 per day for each day of attendance and travel time, plus travel expenses. 28 U.S.C. § 1821(b)-(d).
The court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs in an action to enforce the RLUIPA. 42 U.S.C. § 1988(b). In addition, “all reasonable out-of-pocket expenses, including charges for photocopying, paralegal assistance, travel, and telephone, are plainly recoverable in fee awards under 42 U.S.C. § 1988 because they are part of the costs normally charged to a fee-paying client.” Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish School Bd., 919 F.2d 374, 380 (5th Cir. 1990).
Application The Plaintiff submitted a Bill of Costs requesting $18,973.98 in taxable costs under 28 U.S.C. § 1920. The Plaintiff also requests $273,446.37 in attorney’s fees and expenses under 42 U.S.C. § 1988. The Defendant objects to $101,307.30 of the amount requested by the Plaintiff. I. Fees of the Clerk The Plaintiff incurred $1,260.00 in filing fees during the course of this litigation. Filing fees are a recoverable cost under 28 U.S.C. § 1920. The Defendant is unopposed to paying these fees. Accordingly, the Plaintiff is awarded $1,260.00 in filing fees. II. Fees for Service of Summons and Subpoenas The Plaintiff seeks $420.00 in fees for a private process server to serve subpoenas on the Bureau of Prisons (BOP) and the California Department of Corrections and Rehabilitation (CDCR).
2

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 3 of 13 PageID #: 7658
The Defendant does not object to $250.00 in fees for serving the BOP if the court finds that the depositions of the BOP officials were reasonable and necessary. The court find that the depositions of the BOP officials were reasonable and necessary, and the court notes that excerpts from those depositions were admitted at trial.
The Defendant objects to $170.00 in fees for serving the CDCR. The Defendant argues that the subpoena was fruitless because the CDCR is outside of subpoena range. This argument lacks merit. Although the place for compliance is limited to within 100 miles of where the person resides, is employed, or regularly transacts business, the subpoena may be served at any place in the United States. FED. R. CIV. P. 45(b),(c). At the time the subpoena was issued, it was reasonable and necessary to obtain discovery. Therefore, the Plaintiff is awarded $420.00 in fees for a process server to serve the subpoenas. III. Transcripts
The Plaintiff seeks to recover the costs for printed or electronically recorded transcripts in the amount of $15,136.28. The Defendant objects to some of the charges, alleging that the depositions of some of the witnesses were not reasonable or necessary.
A. Tracy Bailey The Defendant objects to the costs and attorney’s fees associated with the deposition of Warden Tracy Bailey. The Defendant contends that Warden Bailey’s testimony regarding female prison units and religious policies was improperly offered at trial because the Plaintiff’s equal protection claim had previously been dismissed. The court has repeatedly ruled that the testimony regarding female offenders and their prison units was admissible because it was relevant to whether the Defendant’s policies were the least restrictive means for furthering a compelling government
3

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 4 of 13 PageID #: 7659
interest. Thus, this objection is overruled, and the Plaintiff will be allowed to recover the costs and attorney’s fees associated with the deposition of Warden Bailey.
B. Rule 30(b)(6) Depositions The Defendant designated eighteen officials from the Texas Department of Criminal Justice (TDCJ) to answer questions regarding thirty deposition topics pursuant to Federal Rule of Civil Procedure 30(b)(6). The Defendant contends that time was needlessly wasted during the depositions and requests a fifteen percent reduction in attorney’s fees for the depositions and transcript costs. To the extent that the Defendant contends that time was wasted due to the number of depositions, the wasted time was of the Defendant’s own making. Rule 30(b)(6) does not require that the deponent have personal knowledge of the matters for examination. Rather, the designated person “must testify about information known or reasonably available to the organization.” FED. R. CIV. P. 30(b)(6); see also Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006). The Defendant chose to designate eighteen officials, instead of preparing one person to testify on behalf of the agency on all topics. The Defendant should not be permitted to avoid the costs associated with deposing the eighteen officials. The Defendant argues that the Plaintiff wasted time by asking “every designee about all matters.” Although the Defendant requests a fifteen percent reduction in attorney’s fees and transcripts related to the depositions, the Defendant cites only two examples of allegedly wasted time, encompassing portions of twelve pages of the transcripts. The court finds that the Plaintiff did not waste time during the depositions, and that the depositions were necessary and reasonable. Therefore, the Defendant’s objections regarding the Rule 30(b)(6) depositions are overruled.
4

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 5 of 13 PageID #: 7660
C. Deposition Topic Number One The Defendant objects to the payment of fees and costs associated with the Plaintiff’s Rule 30(b)(6) deposition topic number one, which required an official to testify as to TDCJ’s understanding of the Plaintiff’s religious exercise, specifically whether the Plaintiff is a Muslim and whether his beliefs require him to wear a beard and/or a Kufi. The Defendant contends that it was logically impossible to testify about the Plaintiff’s beliefs. However, rather than choosing not to contest the sincerity of the Plaintiff’s religious beliefs, the Defendant designated Chaplains Bill Pierce and Omar Shakir to testify on that topic. Therefore, this objection lacks merit. D. Deposition of Dr. Bobby Vincent The Defendant contends that the Plaintiff should bear the cost of the transcript, $516.35, and the attorney’s fees, $1,890.00, for the deposition of Dr. Bobby Vincent. The Defendant designated Dr. Vincent to testify on three Rule 30(b)(6) topics, and Dr. Vincent had also been designated as an expert witness for the defense. The Defendant argues that Dr. Vincent should have been deposed in his expert capacity at the same time he was deposed as a Rule 30(b)(6) designee. The Defendant fails to cite any case law in support of this contention. Further, Dr. Vincent was only deposed once, as the Plaintiff decided to forego the expert deposition. The Defendant also argues that the Plaintiff should bear the costs and fees of the deposition because Plaintiff’s counsel spent five pages of the deposition asking Dr. Vincent about how hygiene impacts security and asked two questions that were outside of Dr. Vincent’s expertise. The amount of time spent on issues the Defendant claims were outside the scope of Dr. Vincent’s designation was minimal, at best. Moreover, the effects of a beard on inmate hygiene and security were
5

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 6 of 13 PageID #: 7661
contested matters in the trial. As a result, the court finds Defendant’s objections to the costs and fees associated with Dr. Vincent’s deposition lack merit.
E. Rough Drafts of Depositions The Defendant objects to payment of fees totaling $283.40 for rough drafts of transcripts for the depositions of Bradley Freilick and Heidi Kugler. The Defendant asserts that the rough draft of the depositions taken on April 25, 2014 was not necessary for use in the case, as required by 28 U.S.C. § 1920(2) because the trial was nearly three months later. The Defendant contends the Plaintiff should not be reimbursed for both the rough drafts and the final certified transcripts. In this case, the expedited rough drafts of the transcripts were necessarily obtained for use in the case because the Plaintiff’s experts needed to review the depositions before submitting their expert reports, which were due on May 5, 2014. See Holmes v. Cessna Aircraft Co., 11 F.3d 63 64 (5th Cir. 1994) (allowing recovery of cost for daily transcripts because they were not obtained primarily for the convenience of the parties, but were necessarily obtained for use in the case). IV. Exemplification and Copies The Defendant objects to payment of $2,157.70 for copying costs and three hours of a graphic artist’s services. The Defendant argues that the $375.00 payment to the graphic artist who created demonstrative exhibits that were used at trial is not recoverable under § 1920. The Defendant also contends that the copy costs, $1,782.70, should not be recoverable under § 1920 because the Plaintiff did not detail what was copied and whether each copy was necessary and reasonable, and multiple copies of documents were created. In the alternative, the Defendant contends the copy costs should be reduced by fifty percent.
6

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 7 of 13 PageID #: 7662
Regardless of whether the copying and graphic artist fees are recoverable under § 1920, they are recoverable under § 1988 as fees generally charged to a paying client. The services of the graphic artist were reasonable and necessary. The graphic artist created computer enhanced images, which were used as demonstrative exhibits at trial, showing how the Plaintiff would look with a beard and a Kufi. The Plaintiff’s photocopying expenses were also reasonable and necessary for trial. The Defendant produced nearly 5,000 pages of documents, and the BOP produced several hundred pages of documents. The Plaintiff photocopied 12,391 pages of both black and white and color documents, at an average cost of $.14 per copy. The Plaintiff prepared copies of the BOP’s documents for production to the Defendant. Copies of documents were made for use in depositions. Finally, the Plaintiff prepared copies of the exhibits for counsel, the court, and the witnesses to use at trial. Therefore, the Plaintiff is awarded $2,157.70 for copying costs and the services of a graphic artist. V. Attorney Hours and Fees
As the prevailing party, the Plaintiff is entitled to recover attorney’s fees. To determine the appropriate award of attorney’s fees, the court must calculate a lodestar fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). The court must then determine whether the lodestar amount should be adjusted in light of the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Under Johnson, the court must consider: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service; (4) the preclusion of other employment due to the attorney’s acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience,
7

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 8 of 13 PageID #: 7663
reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Prior to submitting his request for attorney’s fees, counsel deleted from the record time spent not directly on the issues on which the Plaintiff prevailed. Counsel also deleted attorney travel time and paralegal expenses. After making these voluntary deductions, the Plaintiff seeks attorney’s fees in the amount of $198,552.60. This amount is based on 66.6 hours billed at $165 per hour and 992.4 hours at $189 per hour. Although the three attorneys for the Plaintiff customarily bill at much higher rates, the Prison Litigation Reform Act limits the hourly rate for attorney’s fees to 150 percent of the hourly rate established under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, for courtappointed counsel. 42 U.S.C. § 1997e(d)(3). Thus, the hourly rates are capped at $165 from December 19, 2013 to February 27, 2014, and $189 from February 27, 2014 until the present. The court finds that these rates are reasonable in light of the experience of the attorneys.
The Defendant does not dispute that the Plaintiff is entitled to attorney’s fees, or the rate at which those hours were billed. Instead, the Defendant argues that the fees should be reduced for duplicative billing and block billing.
First, the Defendant argues that the Plaintiff’s attorney’s fees should be reduced by $13,679.03 for duplicative billing. The Defendant argues that time spent conferring between the attorneys should not have been billed by each attorney. However, consultation between attorneys is essential to effective litigation. Lewallen v. City of Beaumont, 2009 WL 2175637, at *10 (E.D. Tex. July 20, 2009). The time spent conferring was not excessive and should be compensated. The Defendant also contends that time spent in depositions by two attorneys should not have been billed by both. The Plaintiff argues that having more than one attorney present allowed the Plaintiff to take
8

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 9 of 13 PageID #: 7664
multiple depositions each day for multiple days, which ultimately expedited discovery and saved money in travel expenses. The Plaintiff notes that the Defendant had multiple attorneys present at most depositions, and the Defendant had five attorneys present for the Plaintiff’s deposition. Given the circumstances, it was reasonable for the Plaintiff to have more than one attorney present at the depositions. Thus, their work on the case was not duplicative.
The Defendant argues that the attorney’s fees should be reduced by $1,814.45 for “block billing,” which lists several tasks performed during a block of time, instead of itemizing how long each task took. Although the billing records could have been more detailed, they were sufficiently detailed for the court to determine how the attorneys’ time was spent. In this case, it is not necessary for the court to have more detailed records because the Plaintiff prevailed on both of his claims; there is no need to reduce the attorney’s fees to disallow fees for unsuccessful claims.
After considering all relevant factors, the court concludes that the lodestar amount, $198,552.60 is the appropriate amount to award the Plaintiff in attorney’s fees. VI. Attorney Expenses
The Plaintiff seeks $74,893.77 in out-of-pocket expenses recoverable as attorney’s fees under § 1988. The Defendant objects to payment of attorney travel costs, charges for postage and collect telephone calls, expert fees above the standard allowance for witness fees and travel, and the cost of trial supplies.
A. Attorney Travel Expenses The Defendant argues that attorney’s travel expenses are not recoverable under § 1920. While this is true, attorney travel expenses are recoverable under § 1988 as fees generally charged to a paying client. Lewallen, 2009 WL 2175637, at *16. The Defendant also objects to the costs of
9

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 10 of 13 PageID #: 7665
meals on several occasions during trial and depositions. The cost of those meals ranged from $46.15 to $83.82. While the cost of those meals appears high, the court notes that only one attorney turned in a receipt for each of those meals although there were multiple attorneys traveling. Thus, it appears that the attorneys ate together and paid together rather than requesting separate bills. The court finds the cost of the meals was not excessive. The Plaintiff is entitled to recover $7,823.88 in attorney travel expenses.
B. Postage and Telephone Charges The Plaintiff seeks $528.36 in expenses for postage and collect calls. These are the type of expenses which are normally charged to a fee-paying client, and they are recoverable under § 1988. Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 529 (5th Cir. 2001). C. Expert Fees The Plaintiff seeks reimbursement for $65,943.37. The Plaintiff argues that expert fees are recoverable under § 1988 because they are normally charged to fee-paying clients. Expert fees, in excess of the fees allowed for witnesses by 28 U.S.C. §§ 1920 and 1821, may only be recovered by the prevailing party if the fee shifting statute involved specifically allows it. W. Va. Univ. Hosp. v. Casey, 499 U.S. 83 (1991). In response to the Supreme Court’s decision in Casey, Congress added subsection (c) to 42 U.S.C. § 1988. Section 1988(c) allows expert fees in actions brought pursuant to 42 U.S.C. §§ 1981 and 1981a, but does not allow for recovery of expert fees in other civil rights cases. 42 U.S.C. § 1988(c). As a result, the Plaintiff may only recover the witness fees allowable under § 1821. Title 28 U.S.C. § 1821 provides that witnesses shall be paid $40.00 for each day of attendance and travel. 18 U.S.C. § 1821(b). A witness who travels by common carrier is paid for
10

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 11 of 13 PageID #: 7666
the actual expenses, at the most economical rate reasonably available and shall provide a receipt or other evidence of actual cost. 18 U.S.C. § 1821(c)(1). If the witness travels by privately-owned vehicle, mileage is paid pursuant to Title 5 U.S.C. § 5704. Finally, a subsistence allowance shall be paid to the witness if an overnight stay is required. 18 U.S.C. § 1821(d)(1).
1. Fees for Tim Gravette For the deposition of Mr. Tim Gravette, which necessitated travel from June 16, 2014, through June 17, 2014, the Plaintiff should be reimbursed for two days of witness fees for travel and the deposition, which totals $80. Because Mr. Gravette traveled 568 miles by a privately-owned vehicle, the Plaintiff is entitled to be reimbursed for mileage at $.56 per mile. Also, the cost of Mr. Gravette’s hotel, $102.35 should be reimbursed. Mr. Gravette spent four days traveling to and attending the trial from July 14, 2014, through July 17, 2014, for a total of $160 in witness fees for trial. His mileage to and from Lufkin was 519 miles at $.56 per mile. Also, his hotel expenses of $523.30 should be reimbursed. The Plaintiff is entitled to recover $1474.37 for Mr. Gravette’s witness fees and expenses.
2. Fees for Abed Awad The Defendant argues that no fees should be paid for Mr. Awad because his testimony was not relevant. The court disagrees and finds that the Plaintiff is entitled to recover witness fees and expenses for the testimony of Mr. Awad. The Plaintiff should be reimbursed for two days of travel and trial attendance from July 13, 2014, through July 14, 2014, for a total of $80. The Plaintiff is entitled to be reimbursed for Mr. Awad’s basic plane fare, $1,186.50, but not the upgrades totaling $124.00. The Plaintiff is also
11

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 12 of 13 PageID #: 7667
entitled to reimbursement for the cost of airport parking, $66.00; the hotel in Lufkin, $129.95; and Mr. Awad’s rental car and gas, $353.10.
The Plaintiff is entitled to recover $1815.55 for Mr. Awad’s witness fees and expenses. 3. Fees for George Sullivan
Mr. George Sullivan spent two days traveling to and from his deposition and one day for his deposition on June 17, 2014. He also spent two days traveling to and from the trial and attended trial for two days. Thus, the Plaintiff should be reimbursed $280.00 for Mr. Sullivan’s witness fees. Mr. Sullivan submitted hotel receipts of $307.05 for his deposition and $519.80 for his attendance at trial. Those expenses are recoverable. Mr. Sullivan claimed a total of 352 miles to and from the airport for travel. Those miles are reimbursable at $.56 per mile, but Mr. Sullivan’s air fare and other expenses are not recoverable because the Plaintiff did not submit receipts for those expenses.
The Plaintiff is entitled to recover $1304.42 for Mr. Sullivan’s witness fees and expenses. D. Trial Supplies The Plaintiff requests reimbursement for the cost of notepads, pens, calculators, binders, and other materials that were used at trial. The trial supplies are ordinary office supplies and equipment. Most, if not all, of the items can be reused. Following the appeal, the binders in the court’s possession can be returned to counsel. The cost of the items was de minimis and not the sort of expenses normally charged to a paying client. Thus, the Plaintiff may not recover the cost of trial supplies.
12

Case 9:09-cv-00052-ZJH Document 420 Filed 04/29/15 Page 13 of 13 PageID #: 7668 ORDER
The Plaintiff’s motion for taxation of costs and attorney’s fees (document no. 356) is GRANTED in part and DENIED in part. It is ORDERED that the Defendant shall pay the Plaintiff $16,312.72 in costs and $214,160.44 in attorney’s fees and expenses.
SIGNED this 29th day of April, 2015. _________________________ Zack Hawthorn United States Magistrate Judge
13

 
 Case: 09-40612 Document: 00511124824 Page: 1 Date Filed: 05/28/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

May 28, 2010

No. 09-40612

Lyle W. Cayce Clerk

DAVID RASHEED ALI,

Plaintiff - Appellant v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Defendant - Appellee

Appeal from the United States District Court for the Eastern District of Texas
Before JOLLY and GARZA, Circuit Judges, and MILLER, District Judge.* E. GRADY JOLLY:
This interlocutory appeal challenges the district court’s order administratively closing the case pending the outcome of a similar case in a different district, and also denying all outstanding motions. We vacate the order and remand the case to the district court for further consideration and such proceedings as it deems appropriate.

* District Judge, Southern District of Texas, sitting by designation.

Case: 09-40612 Document: 00511124824 Page: 2 Date Filed: 05/28/2010
No. 09-40612 I.
David Rasheed Ali claims his Muslim faith requires him to wear a beard and a Kufi,1 and he wants the Texas Department of Criminal Justice (“TDCJ”) to allow him to do so. On March 27, 2009, he filed suit against TDCJ through its director under 42 U.S.C. § 1983, complaining its policies violate this claimed right under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1. On the same day, he requested preliminary injunctive relief. The district court referred the case to a magistrate judge, who recommended sua sponte that the district court administratively close2 the proceedings pending the outcome of a similar case in the Southern District of Texas, Garner v. Morales.3 The cases appear materially identical, except that Garner seeks only a quarter-inch beard, whereas Ali says he must grow a “fistlength” beard. On June 4, the district court adopted the magistrate judge’s report and recommendations, administratively closing the case until Garner’s resolution, including appeals, and denying “any and all” outstanding motions, among which was the motion for a preliminary injunction. The district court cited its concern for potentially inconsistent verdicts relating to the Texas prison system as justification for the stay. It is unclear, however, when Garner will be resolved, although the parties in Garner are to file dispositive motions by May 24, 2010. Ali timely appealed to this court, specifying the administrative closure and the denial of his motion for a preliminary injunction.
1 A Kufi is a white cloth head covering. 2 An administrative closure is a docket-management tool to maintain an accurate count of active cases. CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250 (5th Cir. 2006). 3 Our court remanded the case to the district court on March 6, 2009. Garner v. Morales, No. 07-41015, 2009 WL 577755, at *6 (5th Cir. Mar. 6, 2009) (per curiam).
2

Case: 09-40612 Document: 00511124824 Page: 3 Date Filed: 05/28/2010
No. 09-40612 II.
We first consider our appellate jurisdiction. Generally, our court has jurisdiction to review only final judgments of the district courts. 28 U.S.C. § 1291. Exceptions to the rule are strictly construed to prevent piecemeal appeals. Sherri A.D. v. Kirby, 975 F.2d 193, 201 (5th Cir. 1992). One exception allows appeals of “[i]nterlocutory orders . . . refusing . . . injunctions, except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1292(a)(1); Sherri A.D., 975 F.2d at 202 (reviewing denial of a preliminary injunction under § 1292(a)(1)). “Orders which explicitly grant or deny injunctive relief are immediately appealable as of right; no additional finding of immediate, irreparable injury is required.” Sherri A.D., 975 F.2d at 203. In its June 4 order, the district court denied “any and all” outstanding motions, necessarily including the motion for a preliminary injunction. Although the order does not specifically reference the motion for a preliminary injunction, it clearly denies the motion. Thus, we have jurisdiction to consider the preliminary injunction’s denial.
We also have jurisdiction to review the district court’s administrative closure of the case. “[A]n order granting or refusing an injunction brings before the appellate court the entire order, not merely the propriety of injunctive relief, and the appellate court may decide the merits so long as concerned only with the order from which the appeal is taken.” Magnolia Marine Transport Co. v. Laplace Towing Corp., 964 F.2d 1571, 1580 (5th Cir. 1992) (quotations omitted). Our cases are inconsistent on the question whether additional issues presented in the same order must be “inextricably intertwined” for our court to consider them along with the issues that give rise to our jurisdiction. Gates v. Cook, 234 F.3d 221, 228 n.5 (5th Cir. 2000) (reviewing unrelated issue decided in an order that also granted injunction without requiring the issue to be inextricably intertwined); Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998) (per curiam) (reviewing a district-court action that would not be appealable on
3

Case: 09-40612 Document: 00511124824 Page: 4 Date Filed: 05/28/2010
No. 09-40612 its own upon finding that it was inextricably intertwined with another districtcourt action in the same order). We need not settle this inconsistency, as the preliminary injunction’s denial and the case’s administrative closure are inextricably intertwined insofar as the district court will have to reopen the case to reconsider the preliminary injunction. We address each issue in turn.
III. When denying a motion for a preliminary injunction, a district court must offer findings of fact and conclusions of law to justify the denial. Fed. R. Civ. P. 52(a)(2). The district court did neither here. We hold that the district court erred in denying the motion for a preliminary injunction without findings of fact and conclusions of law and in its administrative closure of the case. We therefore remand the motion for preliminary injunction to the district court for further consideration and to provide reasons for its ruling. See Chandler v. City of Dallas, 958 F.2d 85, 90 (5th Cir. 1992) (per curiam). Turning to the administrative closure, which is equivalent to a stay, CitiFinancial Corp., 453 F.3d at 250, we hold the court abused its discretion by administratively closing the case by merely citing the pending outcome in Garner as dispositive. Although district courts have inherent authority to control their dockets, “only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). Whether such a circumstance exists depends on a balance between the harm of moving forward and the harm of holding back. Here, the district court should consider the potential harm to Ali of a stay and weigh that with the considerations supporting a stay. We do not gainsay the consideration of contradictory rules applying to the Texas prison system, but that is only one element of the equation. For example, the court may find it reasonable to allow Ali to develop the factual basis of his claim, including especially his evidence
4

Case: 09-40612 Document: 00511124824 Page: 5 Date Filed: 05/28/2010
No. 09-40612 that the grooming regulations are not the least restrictive means to further the compelling interest asserted by the state. The court may have the state at least give its reasons for the necessity of the rule and its reasons why a decision in Garner would serve to expedite rather than delay the resolution of Ali’s claim or why judicial economy might thereby be served in a way reasonable to all concerned. Furthermore, since the district court’s administrative closure, our court decided Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009), which, although unpublished, the district court may find illuminating in how to best further handle this case. In sum, the district court should move forward with the case so far as is practicable, and if it chooses to stay proceedings, it should do so in the light of the considerations set forth in Landis as they might apply to the circumstances of this case.
IV. For the foregoing reasons, the order of the district court is vacated and the case is remanded for further proceedings.
VACATED and REMANDED.
5

Case: 09-40612 Document: 00511124862 Page: 1 Date Filed: 05/28/2010

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 28, 2010
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc
No. 09-40612, David Ali v. Nathaniel Quarterman, Director USDC No. 9:09-CV-52
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals . 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases . If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Sincerely,
LYLE W. CAYCE, Clerk

Enclosures Mr. Greg Abbott Mr. David Rasheed Ali Mr. John-Robert Skrabanek Mr. James Patrick Sullivan

By:_________________________ Joseph M. Armato, Deputy Clerk 504-310-7651

 
 Case: 10-41045 Document: 00511542705 Page: 1 Date Filed: 07/18/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

No. 10-41045

July 18, 2011

Summary Calendar

Lyle W. Cayce Clerk

DAVID RASHEED ALI,

Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN,

Defendant-Appellee

Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:09-CV-52

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:*
David Rasheed Ali, Texas prisoner # 1077767, appeals from the district court’s dismissal pursuant to 28 U.S.C. § 1915A of his civil rights complaint as frivolous and for failure to state a claim. Ali contends that the district court erred in dismissing his claims that the Texas Department of Criminal Justice (TDCJ), through its director, violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1, the Equal Protection Clause of the Fourteenth Amendment, the Free Exercise
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case: 10-41045 Document: 00511542705 Page: 2 Date Filed: 07/18/2011
No. 10-41045 Clause of the First Amendment, and the Establishment Clause of the First Amendment. He also claims that the district court abused its discretion in denying his motion for a preliminary injunction, that the district court erred in denying him a jury trial, and that the district court erred in failing to allow the parties to consider a stay of the proceedings pending the resolution of a similar case filed in the Southern District of Texas. At the heart of Ali’s claims is his contention that his Muslim faith requires him to wear a fist-length beard and a white head covering known as a Kufi and that the TDCJ grooming and headcovering policies impede and infringe on his right to practice his religion.
A court should dismiss a complaint filed by a prisoner if the complaint is frivolous or fails to state a claim upon which relief may be granted. See § 1915A(b)(1). We review the dismissal of a complaint under § 1915A de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous if it has no arguable basis in law or fact. Id. When reviewing a dismissal for failure to state a claim, all well-pleaded facts are accepted as true and are viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
Under RLUIPA, the government shall not impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. § 2000cc-1(a). Ali bears the initial burden of proving that “the challenged government action ‘substantially burdens’ [his] ‘religious exercise.’” Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 613 (5th Cir. 2008). If he meets this burden of proof, the burden shifts to the government to “demonstrate that its action was supported by a compelling interest and that the regulation is the least restrictive means of carrying out that interest.” Id.
2

Case: 10-41045 Document: 00511542705 Page: 3 Date Filed: 07/18/2011
No. 10-41045 Through his pleadings and his Spears hearing testimony, Ali alleged that the TDCJ grooming policy, which requires that all inmates be clean-shaven except for those who have been granted a medical exemption, imposed a substantial burden on his religious exercise. He also responded to the state’s interest in security and identification with alternatives to the grooming policy. For instance, he suggested that TDCJ could place two photographs on the identification card, one with a beard and one clean-shaven. He also suggested that, during routine searches, he could be required to run his fingers through his beard, as he is required to do through his hair, and that prison officials could use their hand-held metal detectors on his beard. Similarly, Ali alleged that the TDCJ head-covering policy, which allows inmates to wear religious caps within their cell and during religious services, imposed a substantial burden on his religious exercise, and he responded to the state’s purported security concerns by proposing, inter alia, that prison officials could use hand-held metal detectors over his Kufi. The respondent had the burden of disproving Ali’s assertion by explaining why [Ali’s] alternative policy would be unfeasible, or why it would be less effective in maintaining institutional security.” See 42 U.S.C. § 2000cc-2(b); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 335 (5th Cir. 2009) (“Some of these options might not prove feasible. . .”), affirmed, Sossamon v. Texas, 131 S.Ct. 1651 (2011). Here, the respondent did not answer the complaint, nor did any TDCJ official at the Spears hearing respond to the alternatives proposed by Ali and explain why same would be unfeasible or less effective in maintaining institutional security. See id. Thus, accepting Ali’s allegations as true, it does not appear beyond doubt that Ali could prove no set of facts which would entitle him to relief on these allegations. See Katrina Canal Breaches Litigation, 495 F.3d at 205. Accordingly, we vacate the dismissal of Ali’s RLUIPA claims and remand this issue for further proceedings.
3

Case: 10-41045 Document: 00511542705 Page: 4 Date Filed: 07/18/2011
No. 10-41045 To establish a Fourteenth Amendment Equal Protection Clause violation, Ali “must allege and prove that he received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001). Here, the district court did not err in dismissing Ali’s claim that the grooming policy impermissibly discriminates on the basis of religion because it allows an exemption for medical reasons but not religious reasons. An inmate claiming a religious exemption from the TDCJ grooming policy is not, by definition, similarly situated to inmates receiving a medical exemption from the grooming policy. Additionally, the district court did not err in dismissing Ali’s claim that the grooming policy impermissibly discriminates on the basis of gender. See Longoria v. Dretke, 507 F.3d 898, 904-05 (5th Cir. 2007) (rejecting argument that TDCJ’s grooming policies violate male prisoners’ equal protection rights because female prisoners are allowed to grow longer hair than male prisoners); Hill v. Estelle, 537 F.2d 214, 215-16 (5th Cir. 1976) (holding that disparate grooming policies for male and female inmates did not violate the Equal Protection Clause because the regulations did not impinge on a fundamental right or create a suspect classification). Ali also appeals the dismissal of his First Amendment free exercise challenges to TDCJ’s grooming and head-covering policies. In support, he argues that each policy is not neutral because inmates with a medical reason are given an exemption, while inmates with a religious reason are not so exempted, and further that there are obvious, easy alternatives available to TDCJ that do not impose a significant burden upon the department. However, Ali’s First Amendment claim challenging the grooming policy is precluded by circuit precedent. Green v. Polunsky, 229 F.3d 486, 489-90 (5th Cir. 2000). His claim that the head-covering policy violates the Free Exercise Clause also fails. Nothing in the record supports Ali’s contention that the TDCJ regulations allow for a medical exemption to the head-covering policy. Moreover, this court has
4

Case: 10-41045 Document: 00511542705 Page: 5 Date Filed: 07/18/2011
No. 10-41045 upheld TDCJ’s restrictions on when and where a prisoner may wear a Kufi. Muhammad v. Lynaugh, 966 F.2d 901, 902 (5th Cir. 1992). Thus, Ali does not have a First Amendment right to wear a Kufi at times or in areas not permitted by prison rules. Id.
The record demonstrates that, until he filed his objections to the magistrate judge’s report, Ali did not raise any claim challenging the policies at issue as violating the Establishment Clause of the First Amendment. Nevertheless, Ali’s argument on appeal regarding his purported Establishment Clause claim is entirely conclusory, and he fails to address the issues relevant to such a claim. His failure to brief arguments renders the Establishment Clause issue abandoned. Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
In denying Ali’s request for preliminary injunctive relief with respect to the TDCJ grooming policy, the district court determined, inter alia, that the request was moot because Ali had been granted a temporary medical exemption to the grooming policy. However, the temporary nature of the medical exemption, which may have expired in January 2011, reveals the continued presence of a live controversy between the parties over the validity of the grooming policy. See Hope Medical Group for Women v. Edwards, 63 F.3d 418, 422 (5th Cir. 1995). Because the district court’s decision to deny injunctive relief rests, at least in part, on its erroneous conclusion that the request was moot, the district court’s denial of Ali’s motion for a preliminary injunction with respect to his RLUIPA claim challenging the grooming policy is vacated for the district court, on remand, to reexamine Ali’s motion for preliminary injunctive relief. However, Ali fails to address the denial of injunctive relief regarding the headcovering policy: he therefore has abandoned that issue. Hughes, 191 F.3d at 613.
Ali has not demonstrated that he is entitled to a jury trial because he sought only declaratory and injunctive relief. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 193 (5th Cir. 2008) (“[U]nless Congress has expressly provided to the contrary, an injunction is an equitable remedy that does not
5

Case: 10-41045 Document: 00511542705 Page: 6 Date Filed: 07/18/2011 No. 10-41045
invoke a constitutional right to a jury trial.”). Even if Ali had prayed for damages, he would not be entitled to a jury trial on remand as he is not entitled to monetary relief under RLUIPA. See Sossamon v. Texas, 131 S. Ct. 1651, 1663 (2011).
Finally, for the first time on appeal, Ali argues that the district court abused its discretion in dismissing his case without allowing the parties to consider a stay of the proceedings pending the resolution of a similar case. This court generally does not consider claims raised for the first time on appeal. See Jennings, 602 F.3d at 657 & n.7; see also Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000) (“It is a bedrock principle of appellate review that claims raised for the first time on appeal will not be considered.”).
For the foregoing reasons, we AFFIRM the district court’s dismissal of Ali’s Equal Protection and First Amendment claims as frivolous and for failure to state a claim and the district court’s denial of his motion for a preliminary injunction with respect to his RLUIPA claim challenging the head-covering policy. We VACATE and REMAND the dismissal of Ali’s RLUIPA claims and his motion for preliminary injunction with respect to his RLUIPA claim challenging the grooming policy for further proceedings consistent with this opinion. We express no view as to the ultimate resolution of these issues.
6

Case: 10-41045 Document: 00511542706 Page: 1 Date Filed: 07/18/2011

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

July 18, 2011
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc No. 10-41045, David Ali v. Nathaniel Quarterman
USDC No. 9:09-CV-52 --------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Sincerely, LYLE W. CAYCE, Clerk

Enclosure(s) Mr. David Rasheed Ali Ms. Marjolyn Carol Gardner Mr. John-Robert Skrabanek

By:_________________________ Rhonda M. Flowers, Deputy Clerk

 
 Case: 12-40145 Document: 00512101008 Page: 1 Date Filed: 01/04/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

No. 12-40145

January 4, 2013

Summary Calendar

Lyle W. Cayce Clerk

DAVID RASHEED ALI,

Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:09-CV-52

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:*
David Rasheed Ali, Texas prisoner # 1077767, appeals from the district court’s denial of the motion for temporary restraining order that he filed in this civil rights action. He also moves this court for an expedited appeal or, alternatively, for the appointment of counsel.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case: 12-40145 Document: 00512101008 Page: 2 Date Filed: 01/04/2013 No. 12-40145
This court must examine the basis of its jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Because Ali seeks to appeal the denial of a temporary restraining order, we lack jurisdiction to entertain the appeal. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999); In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990).
The district court is reminded of this court’s prior directive that, on remand, it should reexamine Ali’s motion for preliminary injunctive relief, filed in March 2009, as that motion concerns his claim challenging, pursuant to the Religious Land Use and Institutionalized Persons Act of 2000, the grooming policy of the Texas Department of Criminal Justice. See Ali v. Quarterman, 434 F. App’x 322, 326 (5th Cir. 2011).
APPEAL DISMISSED; MOTION DENIED.
2

Case: 12-40145 Document: 00512101009 Page: 1 Date Filed: 01/04/2013

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

January 04, 2013
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc No. 12-40145, David Ali v. Nathaniel Quarterman, et al
USDC No. 9:09-CV-52 --------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Sincerely, LYLE W. CAYCE, Clerk

Enclosure(s) Mr. David Rasheed Ali Ms. Marjolyn Carol Gardner Mr. Gerald O'Ryan McMillan Mr. John-Robert Skrabanek

By:_________________________ Rhonda M. Flowers, Deputy Clerk

 
 Case: 13-40732 Document: 00512337850 Page: 1 Date Filed: 08/12/2013

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

August 12, 2013

Mr. David Maland Eastern District of Texas, Lufkin United States District Court 104 N. 3rd Street Lufkin, TX 75901-0000

No. 13-40732,

In re: David Ali USDC No. 9:09-CV-52

Enclosed is a copy of the judgment issued as the mandate.

Sincerely, LYLE W. CAYCE, Clerk

cc w/encl: Mr. David Rasheed Ali

By:_________________________ Christina A. Gardner, Deputy Clerk 504-310-7684

Case: 13-40732 Document: 00512337849 Page: 1 Date Filed: 08/12/2013

LYLE W. CAYCE CLERK

United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

August 12, 2013

Texas Department of Criminal Justice Litigation Support Program P.O. Box 13084 Capitol Station Austin, TX 78711

Texas Department of Criminal Justice Inmate Trust Fund Department P.O. Box 629 Huntsville, TX 77342

No. 13-40732,

In re: David Ali USDC No. 9:09-CV-52

The enclosed order directs the petitioner to pay an initial partial filing fee, and consistent with 28 U.S.C.§ 1915 (b)(2) thereafter to make periodic payments, until a total fee of $ $450 is paid.

Within 45 days of the date of this letter, the petitioner must pay the initial partial filing fee directly to this court by check or money order and make arrangements for further direct periodic payments, or take necessary actions and execute any required forms to permit the collection of fees from his prison trust fund account. Failure to comply may result in denial of permission to proceed in forma pauperis before this court in any future action.

If the petitioner elects to have funds withdrawn from his account, the agency having custody will collect the initial partial filing fee, if funds are immediately available, and forward the payment within 30 days of the date of this letter. Thereafter, the agency will follow its standard procedures and periodically forward payments each time the petitioner's account balance exceeds $10.

All payments should be made payable to "Clerk of Court", include the petitioner's name, prisoner number and case number, and be sent to:

Clerk of Court United States Court of Appeals
for the Fifth Circuit ATTN: Fiscal Department 600 S. Maestri Place New Orleans, LA 70130

Case: 13-40732 Document: 00512337849 Page: 2 Date Filed: 08/12/2013

In the event the petitioner is transferred to another facility, or is released from confinement, the agency having custody at the time of transfer or release must notify this office of a forwarding address.
Sincerely,
LYLE W. CAYCE, Clerk

cc: Mr. David Maland Mr. David Rasheed Ali

By:_________________________ Christina A. Gardner, Deputy Clerk 504-310-7684

Case: 13-40732 Document: 00512337738 Page: 1 Date Filed: 08/12/2013

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13-40732 USDC No. 9:09-CV-52

In re: DAVID RASHEED ALI,

Petitioner

Petition for a Writ of Mandamus to the United States District Court
for the Eastern District of Texas

Before SMITH, PRADO, and GRAVES, Circuit Judges. PERCURIAM:
David Rasheed Ali, Texas prisoner# 1077767, has filed in this court a pro se petition for a writ of mandamus and a motion requesting leave to file his mandamus petition in forma pauperis (IFP) under the Prison Litigation Reform Act (PLRA). 1 The application for leave to proceed IFP is GRANTED. Ali is not assessed an initial partial filing fee because he lacks the requisite funds; however, he must pay the balance of the filing fee in installments. The agency having custody of Ali is ORDERED to forward funds from his prison trust fund account to the clerk of this court on a regular basis as provided in 28 U.S.C. § 1915(b)(2) until the full filing fee of $450 is paid.

1 The nature of the underlying action determines whether the fee requirements of the PLRA are to apply in mandamus cases. In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). Because the underlying action in the present matter is a civil case, we must apply the PLRA fee requirements. See 28 U.S.C. § 1915(b).

Case: 13-40732 Document: 00512337738 Page: 2 Date Filed: 08/12/2013
No. 13-40732
The history of Ali's district court suit can be gleaned from the three appeals and one prior mandamus petition in this court. See Ali v. Quarterman, 607 F.3d 1046 (5th Cir. 2010) (Ali[); Ali v. Quarterman, 434 F. App'x 322 (5th Cir. 2011) (Ali I[); In re Ali, No. 11-41114 (5th Cir. Dec. 7, 2011) (unpublished); Ali v. Quarterman, 505 F. App'x 369 (5th Cir. 2013) (Ali Ill). In a suit filed in 2009, Ali sought to challenge, in part under the Religious Land Use and Institutionalized Persons Act (RLUIPA), certain policies of the Texas Department of Criminal Justice-Institutional Division. The district court originally closed the suit administratively pending the outcome of another case, which ultimately was decided on appeal as Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). In 2010, we vacated and remanded for further proceedings. Ali I, 607 F.3d at 1049. The district court then dismissed the case as frivolous and for failure to state a claim. In 2011, we vacated and remanded as to the RLUIPA claims, including Ali's motion for a preliminary injunction, as they pertained to grooming policies. Ali II, 434 F. App'x at 327. The grooming-policy issue has been complicated by the issuance of differing opinions from our court. See Garner v. Kennedy, 713 F.3d at 244-45 (holding that DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011), and Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009), were not controlling based on the better-developed record and fact findings in the Garner case).
In our most recent op1n10n dismissing Ali's third appeal for lack of jurisdiction, issued on January 4, 2013, we reminded the district court that it should rule on Ali's motion for a preliminary injunction. See Ali Ill, 505 F. App'x at 370. In his mandamus petition, Ali asserts that the district court still has not ruled.
The mandamus remedy is an extraordinary one, granted only in the clearest and most compelling cases in which a party seeking mandamus shows that no other adequate means exist to attain the requested relief and that the right to the issuance of the writ is "clear and indisputable." In re Willy, 831 F.2d
2

Case: 13-40732 Document: 00512337738 Page: 3 Date Filed: 08/12/2013 No. 13-40732
545, 549 (5th Cir. 1987). Mandamus is a possible remedy when the district court has unduly delayed in deciding a case.
In Novemher 2011, the magistrate judge recommended denying injunctive relief, based in part on DeMoss. It was that recommendation that Ali appealed, not to the district court, but to this court, resulting in our dismissal for lack of jurisdiction and our reminder to the district court. Nor has that court been idle since our opinion in Ali III. On March 27, 2013, the magistrate judge again recommended denying Ali's motion for a preliminary injunction, again relying in part on DeMoss. On Mayl5, 2013, she withdrew that recommendation based on our opinion in Garner, which suggested that DeMoss would not be controlling. The magistrate judge then directed the respondent to show cause why injunctive relief should not be granted or to "otherwise plead as appropriate." That response was filed on June 10, 2013; in it, the respondent argued that Garner was not controlling in Ali's case. We also note that, in March 2013, the Department of Justice filed a "Statement of Interest of the United States" on Ali's behalf. Given the activity on Ali's case, we cannot say that there has been undue delay.
The petition for a writ of mandamus is DENIED without prejudice to Ali's reinstating it ifthe district court has not ruled within 180 days ofthe date ofthis order.
3

 
 Case: 14-41165 Document: 00513487896 Page: 1 Date Filed: 05/02/2016

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14-41165
DAVID RASHEED ALI, Plaintiff–Appellee,

United States Court of Appeals Fifth Circuit
FILED
May 2, 2016
Lyle W. Cayce Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Texas
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges. EDWARD C. PRADO, Circuit Judge:
Plaintiff–Appellee David Rasheed Ali is an observant Muslim and in the custody of the Texas Department of Criminal Justice (“TDCJ”). This appeal concerns his suit seeking permission to grow a “fist-length” (i.e., four-inch) beard and wear a kufi, a knit skullcap, as required by his religious beliefs. Ali alleges that, as applied to him, TDCJ’s grooming policy, which bans four-inch beards, and religious headwear policy, which prohibits kufis to be worn outside of an inmate’s cell or religious services, violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. After a five-day bench trial, the trial court granted declaratory and injunctive relief

Case: 14-41165 Document: 00513487896 Page: 2 Date Filed: 05/02/2016
No. 14-41165 enabling Ali to grow a four-inch beard and wear his kufi throughout TDCJ’s facilities. Defendant–Appellant William Stephens, in his capacity as TDCJ Director, appealed. Finding no reversible error, we AFFIRM.
I. BACKGROUND Ali is confined to TDCJ’s Michael Unit, a maximum security prison. He is a “trusty” inmate, which is the lowest security level classification, and lives in a dormitory outside of the Michael Unit’s fence line. Ali is also an observant Muslim. According to Ali, his faith requires him to have a beard that is not shorter than a fist’s length, which is approximately four inches, and to wear his kufi at all times. A. Procedural Background In March 2009, Ali brought this suit, proceeding pro se, against the Director of TDCJ.1 Ali asserted that TDCJ’s grooming and religious headwear policies violated RLUIPA to the extent they prevented him from growing a fistlength beard and wearing his kufi in accordance with his religion.2 At the time he filed suit, TDCJ’s grooming policy required male inmates to be clean shaven. The sole exception was for inmates who had been diagnosed with certain dermatological conditions. This medical exemption allowed an inmate to shave with clippers rather than a razor and, depending on the nature of the condition, grow a quarter-inch beard. TDCJ did not provide any exemption to its grooming policy for religious reasons. Inmates that violated the grooming policy were subject to disciplinary action. In addition, TDCJ’s religious
1 Because this case is against William Stephens in his official capacity as TDCJ Director, we refer to Ali’s claims as against TDCJ itself.
2 In his complaint, Ali also brought claims under the Equal Protection Clause and the Free Exercise Clause of the United States Constitution, which the district court dismissed. See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir. 2011). We affirmed the dismissal of those claims and rejected a claim under the Establishment Clause that Ali raised for the first time on appeal. Id. at 325–26. Ali’s constitutional claims are not at issue here.
2

Case: 14-41165 Document: 00513487896 Page: 3 Date Filed: 05/02/2016
No. 14-41165 headwear policy permitted male inmates to wear religious caps, such as kufis, only when they were within their housing area, such as a cell or dormitory, or at religious services.
In his suit, Ali sought declaratory judgment, as well as preliminary and permanent injunctions requiring TDCJ to exempt Ali from its beard and kufi restrictions. In 2010, the district court denied Ali’s motion for a preliminary injunction and dismissed his complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A. See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir. 2011). This Court, however, vacated the dismissal of Ali’s RLUIPA claims concerning both the grooming and headwear policies and remanded for further proceedings. Id. at 325–26. It also vacated the denial of the preliminary injunction as to the grooming policy but held that Ali had abandoned his appeal of the denial of the preliminary injunction as to the headwear policy. Id. at 326.
In February 2014, the trial court3 granted in part a preliminary injunction that allowed Ali to grow a quarter-inch beard, relying on our intervening decision in Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). See Ali v. Stephens, No. 9:09-CV-52, 2014 WL 495162, at *2 (E.D. Tex. Feb. 4, 2014). In Garner, a Muslim inmate brought a RLUIPA challenge seeking to grow a quarter-inch beard and wear his kufi while traveling to and from services. 713 F.3d at 241. After a bench trial, the district court in that case granted an injunction permitting the inmate to grow a quarter-inch beard but denied his kufi request. Id. TDCJ appealed, and we affirmed.4 Id. at 240.
3 In August 2013, the district court assigned the case to Magistrate Judge Zack Hawthorn for pretrial proceedings. Ali was appointed counsel thereafter. In January 2014, the parties agreed to refer the case to Magistrate Judge Hawthorn for trial, entry of final judgment, and all post-judgment matters.
4 Because the inmate in Garner did not appeal, we did not address the denial of the injunction in regard to the headwear policy. See 713 F.3d at 241.
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No. 14-41165 In this case, the trial court cited Garner to explain why it was denying Ali a preliminary injunction to grow a fist-length beard. As it noted, “the record in this case is different than the record in Garner” in part because Ali was requesting a longer beard than the one sought in Garner. Ali, 2014 WL 495162, at *3. The court also explained that TDCJ had submitted evidence that it had not in Garner, such as estimates regarding the cost of changing its grooming policy. Id. In July 2014, the trial court held a five-day bench trial. Ali called three expert witnesses, including George Sullivan and Roy Timothy Gravette, who between them had over 60 years of experience working for and auditing correctional facilities. They testified about the impact of beards and kufis based on their experience with prisons that already permitted them. TDCJ’s expert witness, Ronald Angelone, testified primarily about his experience with beards in the prison systems in which he had served as the director. Robert Eason, TDCJ’s Deputy Director, testified about TDCJ’s security interests associated with Ali’s requested exemptions and his findings related to his tours of other prisons that allow inmates to have beards and wear kufis throughout their facilities. In September 2014, the trial court granted an injunction allowing Ali to have a beard not to exceed four inches and to wear his kufi throughout TDCJ’s facilities. See Ali v. Stephens, 69 F. Supp. 3d 633, 654–55 (E.D. Tex. 2014). Among its findings of fact, it concluded that Ali’s expert witnesses were “more credible” than TDCJ’s witnesses because Ali’s witnesses “both have significant experience working in prisons where beards are allowed and [kufis] are allowed to be worn at all times.” Id. at 642. TDCJ timely appealed. B. Post-Trial Developments While this appeal was pending, the Supreme Court decided Holt v. Hobbs, 135 S. Ct. 853 (2015). The Court in Holt held that the grooming policy
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No. 14-41165 of Arkansas’s prison system violated RLUIPA to the extent it prevented a Muslim inmate from growing a half-inch beard in accordance with his religious beliefs. Id. at 859. The policy at issue—like TDCJ’s policy at the time of trial— banned inmates from growing beards, with the sole exception that inmates with dermatological needs could grow facial hair no longer than a quarter-inch. Id. at 860. In response to Holt, TDCJ moved to stay its appeal while it developed a new grooming policy. We denied the stay, and TDCJ implemented its new policy prior to oral argument. Under its current grooming policy, inmates “with religious belief who want to grow a beard” are permitted, subject to TDCJ’s approval, to have a beard that is not longer than “one-half (1/2) inch in length.”5 There is no evidence that TDCJ has changed its religious headwear policy in any pertinent respect. C. The Statutory Scheme
Section 3 of RLUIPA, which concerns institutionalized persons, states: 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— (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). RLUIPA, which provides a private cause of action, id. § 2000cc–2(a), implements a burden-shifting framework, Chance v. Tex. Dep’t of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013). The plaintiff’s initial burden is two-fold: he or she must show that (1) the relevant religious exercise
5 TDCJ’s current grooming policy is contained in its Offender Orientation Handbook (“Handbook”), which is available online. See Tex. Dep’t of Criminal Justice, Offender Orientation Handbook (Sept. 2015), available at http://www.tdcj.state.tx.us/documents/ Offender_Orientation_Handbook_English.pdf. We have previously taken judicial notice of the Handbook, and we do so here. See Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015).
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No. 14-41165 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, 135 S. Ct at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 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.
The Supreme Court recently emphasized that “[s]everal provisions of RLUIPA underscore its expansive protection for religious liberty.” Holt, 135 S. Ct. at 860. Courts must construe RLUIPA “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. (quoting 42 U.S.C. § 2000cc–3(g)). In addition, RLUIPA “may in some circumstances require [a] [g]overnment to expend additional funds to accommodate [inmates’] religious beliefs.” Hobby Lobby, 134 S. Ct. at 2781 (citing 42 U.S.C. § 2000cc–3(c)); see also Holt, 135 S. Ct. at 860. Finally, the law defines “‘religious exercise’ capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” Holt, 135 S. Ct. at 860 (quoting 42 U.S.C. § 2000cc–5(7)(A)).
Although RLUIPA subjects governmental action to exacting scrutiny, “it also affords prison officials ample ability to maintain security.” Id. at 866. When applying RLUIPA, “courts should not blind themselves to the fact that the analysis is conducted in the prison setting.” Id. In particular, we must recognize that “[p]rison officials are experts in running prisons and evaluating the likely effects of altering prison rules.” Id. at 864. Yet our deference is not unyielding: courts are not “bound to defer” to a prison system’s assertions. Id. “[I]t is the obligation of the courts to consider whether exceptions are required
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No. 14-41165 under the test set forth by Congress.” Id. (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434 (2006)). Thus, while we “should respect” the prison officials’ expertise, we cannot abandon “the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.” Id. Even before Holt clarified the deference owed to prison officials under RLUIPA, we observed that “[r]ather than deferring to the prison’s general policy regarding a matter, we have consistently tested the prison’s asserted interests with regard to the risks and costs of the specific accommodation being sought.” Chance, 730 F.3d at 418; see also id. at 419 (emphasizing that the deference owed to “TDCJ’s expertise in prison administration and security . . . does have limits” (internal citation omitted)).
II. STANDARD OF REVIEW After a bench trial, we review a trial court’s findings of fact for clear error and its conclusions of law de novo. Garner, 713 F.3d at 242. Under clear error review, if the trial court’s factual findings are “plausible in light of the record viewed in its entirety, we must accept them, even though we might have weighed the evidence differently if we had been sitting as a trier of fact.” Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008) (quoting Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991)); see also Ogden v. C.I.R., 244 F.3d 970, 971 (5th Cir. 2001) (per curiam) (“Clear error exists when this court is left with the definite and firm conviction that a mistake has been made.”). “When reviewing a district court’s factual findings, this court may not second-guess the district court’s resolution of conflicting testimony or its choice of which experts to believe.” Grilletta v. Lexington Ins. Co., 558 F.3d 359, 365 (5th Cir. 2009) (per curiam). Credibility determinations are “peculiarly within the province of the district court.” Id. (quoting League of United Latin Am. Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997)). Accordingly, “the clearly erroneous standard of review
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No. 14-41165 following a bench trial requires even ‘greater deference to the trial court’s findings when they are based upon determinations of credibility.’” Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (quoting Luhr Bros. Inc. v. Shepp (In re Luhr Bros. Inc.), 157 F.3d 333, 338 (5th Cir. 1998)).
In the context of RLUIPA, determining whether a prison system has satisfied its statutory burden is “highly dependent on a number of underlying factual issues” and, as such, is “best characterized as a mixed question of fact and law, which is subject to de novo review.” Garner, 713 F.3d at 242. Thus, although we review the court’s factual findings for clear error, we review de novo its application of those findings in determining whether the challenged government action is in furtherance of a compelling governmental interest and is the least restrictive means to advancing that interest. Id.
III. DISCUSSION On appeal, TDCJ does not challenge the trial court’s holding that its grooming and religious headwear policies substantially burden Ali’s religious exercise. We therefore decline to address this issue. See Garner, 713 F.3d at 244. TDCJ instead contends the trial court erred by holding that its policies violate RLUIPA as applied to Ali because they (1) do not further any compelling governmental interests and (2) are not the least restrictive means. We first address whether the grooming policy complies with RLUIPA. A. TDCJ’s Grooming Policy TDCJ first argues that a four-inch beard constitutes “long hair” and that Fifth Circuit precedent establishes that TDCJ’s grooming policy complies with RLUIPA as a matter of law to the extent it bans long hair. In support, TDCJ relies on Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam). In that case, a Texas inmate alleged that his religion barred him from cutting his head hair and sought an exemption from TDCJ’s short-hair policy. Id. at 900. This
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No. 14-41165 Court dismissed his RLUIPA claim as frivolous, explaining that it was bound by Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). See Longoria, 507 F.3d at 904. The Longoria court noted that in Diaz, after an evidentiary hearing, the district court had found that “long hair . . . facilitates the transfer of contraband and weapons into and around TDCJ institutions” and “requiring prisoners to have short hair makes it more difficult for escaped prisoners to alter their appearance.” Longoria, 507 F.3d at 904 (alteration in original) (quoting Diaz, 114 F.3d at 72–73). This Court then concluded that the evidentiary showing in Diaz was “sufficient to preclude [the inmate’s] RLUIPA claim” to grow long, unshorn head hair. Longoria, 507 F.3d at 904.
Longoria, however, does not foreclose Ali’s request for a four-inch beard. As we observed, RLUIPA compels a “fact-intensive inquiry” into the particular costs and risks that the requested exemption engenders. Chance, 730 F.3d at 418 (quoting Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 795– 96 (5th Cir. 2012)). We, in turn, have repeatedly conducted “case-specific inquiries” when addressing a RLUIPA claim. Id. at 411 (citing Garner, 713 F.3d at 245–46 and Moussazadeh, 703 F.3d at 795–96); see id. (“[O]ur RLUIPA analysis requires a careful consideration of each case’s specific facts . . . .”). For instance, we have even recognized that a holding against an inmate that assembled a “thin” record does not “foreclose” another inmate from subsequently demonstrating less restrictive means are available. Moussazadeh, 703 F.3d at 795; see also Yellowbear v. Lampert, 741 F.3d 48, 62 (10th Cir. 2014) (“[T]he feasibility of requested exceptions usually should be assessed on a ‘case-by-case’ basis, taking each request as it comes.” (quoting O Centro, 546 U.S. at 436)). Therefore, in assessing Ali’s request for a four-inch beard, we focus on the record before us to analyze whether TDCJ has “not merely . . . explain[ed] why it denied the exemption [to its grooming policy] but . . . prove[d] that denying the exemption is the least restrictive means of
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No. 14-41165 furthering a compelling governmental interest.”6 Holt, 135 S. Ct. at 864. For the reasons provided, we conclude that TDCJ has not met this burden.
1. The “Compelling Interest” Test In deciding whether TDCJ has stated a compelling interest, the court does not ask if the challenged policy, in general, furthers a compelling governmental interest in security and costs. Id. at 863; see also Chance, 730 F.3d at 418. Instead, the government must show 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). This requires “scrutiniz[ing] the asserted harm of granting specific exemptions to particular religious claimants” and “‘look[ing] to the marginal interest in enforcing’ the challenged government action in that particular context.” Id. (quoting Hobby Lobby, 134 S. Ct. at 2779). Applied in this case, we assess TDCJ’s interests in preventing Ali from having a four-inch beard. Moreover, determining whether TDCJ’s policy is “substantially underinclusive” may “implicate the RLUIPA analysis.” Id. at 865. As the Tenth Circuit elaborated in the RLUIPA context, “[a] law’s underinclusiveness—its failure to cover significant tracts of conduct implicating the law’s animating and putatively compelling interest—can raise with it the inference that the government’s claimed interest isn’t actually so compelling after all.” Yellowbear, 741 F.3d at 60; see also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015) (“Underinclusiveness can . . . reveal that a law does not actually advance a compelling interest.”). We have similarly observed that a prison
6 A case-specific approach comports with our observation that the hair length requested by an inmate can affect the RLUIPA analysis. See Odneal v. Pierce, 324 F. App’x 297, 301 (5th Cir. 2009) (per curiam) (unpublished); Gooden v. Crain, 255 F. App’x 858, 861 n.1 (5th Cir. 2007) (per curiam) (unpublished).
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No. 14-41165 system’s justification for denying an inmate’s requested privilege is “dampened” where it affords other inmates a similar privilege. Moussazadeh, 703 F.3d at 795–96.
The Supreme Court’s analysis in Holt is instructive. The Court found the prison system’s grooming policy “substantially underinclusive” in two respects. Holt, 135 S. Ct. at 865. First, although the prison system did not allow inmates to grow half-inch beards as the plaintiff requested, it “permit[ted] inmates to grow more than a [half]-inch of hair on their heads.” Id. Yet the prison system’s policy did not require inmates to “go about bald” even though head hair is “a more plausible place to hide contraband than a [half]-inch beard.” Id. at 866. An inmate’s clothing and shoes similarly were better hiding places for contraband yet inmates were not required to be “barefoot[] or naked.” Id. Second, in light of the fact that the prison already permitted quarter-inch beards for inmates with dermatological conditions, it had failed to establish “that a [quarter]-inch difference in beard length poses a meaningful increase in security risk.” Id.
2. The “Least Restrictive Means” Test The least-restrictive-means test “‘is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].’” Id. at 864 (alterations in original) (quoting Hobby Lobby, 134 S. Ct. at 2780). The challenged policy cannot stand if “available, effective alternatives” are less restrictive of the inmate’s religious exercise. Moussazadeh, 703 F.3d at 795 (quoting Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004)). Moreover, courts “must not ‘assume a plausible, less restrictive alternative would be ineffective.’” Holt, 135 S. Ct. at 866 (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803, 824 (2000)). The state’s burden is not to show that it considered the claimant’s proposed alternatives
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No. 14-41165

but rather to demonstrate those alternatives are ineffective. See Yellowbear,

741 F.3d at 63.

3. Analysis

TDCJ argues that a blanket prohibition on four-inch beards is the least

restrictive means of furthering its compelling interest in (1) preventing the

transfer of contraband within prison; (2) facilitating identification of inmates

within prison and in the event an inmate escapes; and (3) controlling costs and,

relatedly, maintaining orderly prison administration. The trial court rejected

each of these arguments, holding that TDCJ did not prove that any of its

asserted interests satisfied either the compelling-interest or least-restrictive-

means test as applied to Ali. We analyze each interest in turn.

a.

Preventing contraband

TDCJ contends its grooming policy is the least restrictive means of

furthering its compelling interest in combatting the transfer of contraband

within its facilities. The trial court found that “[p]ossession of contraband by

inmates is one of the largest security issues in TDCJ.” It also found that, based

on testimony from both Ali’s and TDCJ’s witnesses, contraband has been

discovered in inmates’ beards at prisons that permit longer beards, specifically,

the Federal Bureau of Prisons (“BOP”) and the California Department of

Corrections and Rehabilitation (“CDCR”). The court observed, however, that

TDCJ had failed to introduce documentary evidence in support of its position

and held that banning Ali’s four-inch beard would not further a compelling

interest in preventing contraband.

We disagree with the trial court’s application of its factual findings to

the compelling-interest test in this case. TDCJ clearly has “a compelling

interest in staunching the flow of contraband into and within its facilities.”

Holt, 135 S. Ct. at 863. While “prison officials’ mere say-so” may be insufficient

to satisfy RLUIPA, id. at 866, the trial court erred by overemphasizing the lack 12

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No. 14-41165 of documentary evidence, particularly given the fact that Ali’s own expert, Tim Gravette, testified that contraband had been found in beards in BOP facilities where he has worked. More importantly, the record indicates that a fist-length beard poses a greater risk with regard to contraband than a half-inch beard, which is the length Holt sanctioned and TDCJ permits under its current policy. In Holt, none of the witnesses testified to “any instances . . . in Arkansas or elsewhere” in which an inmate hid contraband in a half-inch beard. Id. at 861. The Supreme Court, in turn, rejected the prison system’s argument that banning such beards furthered a compelling interest in rooting out contraband. Id. at 863. In contrast, the record here indicates that inmates can and do hide contraband in longer beards. Thus, the difference in length between the beard permitted under TDCJ’s current policy and the beard requested here poses a meaningful increase in security risks vis-à-vis the threat of contraband smuggling.
Ali responds that TDCJ’s grooming policy is underinclusive because it permits an entire class of persons—female inmates—to have hair that is “much longer and thicker than a fist-length beard.” TDCJ’s female inmates are permitted to grow long hair, which must be neatly groomed, yet TDCJ did not introduce any evidence of finding contraband in a female inmate’s hair. According to Ali, the underinclusiveness of TDCJ’s grooming policy is substantial because of the trial court’s finding that female inmates commit the same type of disciplinary infractions as men, although at a slightly lower rate on a per capita basis.
Even though TDCJ’s policy concerning its female inmates is relevant to our analysis, we find that TDCJ has an adequate explanation for its differential treatment. As the Tenth Circuit has noted, a government can rebut a claim that its policy is underinclusive “by showing that it hasn’t acted in a logically inconsistent way—by (say) identifying a qualitative or quantitative
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No. 14-41165 difference between the particular religious exemption requested and other . . . exceptions already tolerated.” Yellowbear, 741 F.3d at 61. At trial, TDCJ introduced evidence indicating that the contraband threat posed by male inmates is qualitatively different than that of female inmates. TDCJ’s Senior Warden, Elizabeth Bailey, testified that the type of contraband female inmates smuggle is a lesser security concern because they tend to be non-dangerous items such as eyeliner or lipstick whereas men are more likely to smuggle cell phones or weapons. Further, as the trial court found, there are fewer correctional officers (“COs”) per prisoner for its male prisons than its female prisons. In light of the record, we cannot say that TDCJ’s stricter hair-length policy for male inmates is so inconsistent with its asserted interest in security that the challenged policy is substantially underinclusive.
Consequently, we hold the trial court erred in concluding that TDCJ’s ban on four-inch beards did not satisfy the compelling-interest test. Our inquiry, however, does not end here. TDCJ must also prove that its current grooming policy is the least restrictive means, a burden the trial court concluded TDCJ did not meet. We agree given the record before us.
The trial court found that when searching male inmates, TDCJ’s procedure is to have COs visually inspect short hair and “require inmates with longer hair to shake out their own hair with their fingers.” It also found that TDCJ policy is to deny an inmate a religious devotional item if an inmate misuses that item or “present[s] a security risk based on documented behavior.” The court then held that an effective alternative to banning all fourinch beards would be to have the CO perform the same search of a beard “as is done [for] searches of hair”: the CO can visually inspect the beard and, if necessary, have the inmate run his fingers through his beard. The court also noted that, in conjunction with these searches, TDCJ could revoke an inmate’s beard privilege if he abused it or refused to comply with the searches.
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No. 14-41165 The trial court did not err in light of the record. Ali’s expert witness, George Sullivan, testified that, based on his experience auditing prisons that allow longer beards and personally conducting searches as a CO, a visual inspection accompanied by having the inmate shake his own beard, if needed, effectively reveals contraband. Tim Gravette, Ali’s other expert, similarly testified that COs can search long beards by having an inmate shake out his beard hair, which is the technique used by BOP.7 Finally, Holt bolsters the court’s conclusions. In that case, the Supreme Court found that a less restrictive alternative to prohibiting beards would be to require inmates to conduct a self-search, albeit with a comb rather than his fingers, and that an institution could revoke an accommodation should an inmate abuse it. Holt, 135 S. Ct. at 864, 867. TDCJ responds that the trial court committed reversible error because it did not “afford any level of deference” to the testimony of its witnesses. Specifically, it argues that the trial court should have deferred to two TDCJ officials, Director Robert Eason and Warden Todd Foxworth, who it claims testified that having inmates shake out their own beards would be unworkable because an inmate can manipulate the self-search in a way that avoids
7 The parties dispute the applicability of the policies of BOP and CDCR. The trial evidence indicated that both prison systems allow four-inch beards and kufis to be worn throughout their facilities. TDCJ argues that the trial court “attached unprecedented weight to [the] evidence of other prison systems’ grooming and kufi policies,” specifically, that of BOP and CDCR. The trial court, however, acknowledged the differences among systems, especially with regard to BOP’s and CDCR’s larger budgets and different surveillance equipment. The court also noted that, although BOP has a bigger budget, it also has “a much larger inmate population” and “more offenders per correctional officer than TDCJ.” The court did not err in concluding that, although there are “clearly differences” among the systems, it “[does] not preclude comparisons” and that the other policies are pertinent evidence that inform its analysis. See, e.g., Holt, 135 S. Ct. at 866 (“While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” (quoting Procunier v. Martinez, 416 U.S. 396, 414, n.14 (1974))); Garner, 713 F.3d at 247.
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No. 14-41165 revealing contraband.8 We find that the trial court did not so err. To begin,
contrary to TDCJ’s characterization of Director Eason’s testimony, his
testimony is consistent with that of Ali’s experts. In discussing how he would
search fist-length beards, he testified that he would have inmates “run their
fingers through that beard.” Importantly, he did not express any concern that
such searches would fail to reveal contraband, although he averred that self-
searches would “take a little more time” than visual inspections. Such
testimony—while relevant to TDCJ’s separate interest in administrative costs,
which we address below—does not support TDCJ’s argument that selfsearches would not uncover contraband.9
As for Warden Foxworth, he testified that having inmates run their
fingers through their beards was not “feasible . . . simply because of the
consistency of beards” in that “[s]ome people have very thick beards.” He also
testified that some inmates “can’t really grow a beard” and that “each [inmate]
is going to be different.” We cannot say that the trial court failed to adequately
defer to this testimony. In its holding, the court found that beard hair can be
searched in the same way as head hair—which does not have a prescribed
8 TDCJ also argues that the “sole alternative to prohibiting long beards” would be to have the CO physically touch the inmate’s beard and that this technique would seriously compromise the CO’s safety because it requires the CO to stand in the inmate’s “strike zone,” which, according to TDCJ, is “a proximity considered to be dangerous and is avoided when possible.” Because we find no clear error in the trial court’s findings regarding self-searches, we do not address TDCJ’s contention regarding searches in which the CO touches an inmate’s beard.
9 Director Eason also raised the possibility that if the CO discovered contraband in an inmate’s beard, the inmate may refuse to take the contraband out of the beard, leading to a confrontation with the inmate. However, as the district court found, contraband can be discovered “in any article of clothing, in an inmate’s genitals or anus, or it can be swallowed.” Director’s Eason testimony is unconvincing to the extent that TDCJ fails to explain why an inmate would be reluctant to hand over contraband that has been found in his beard but not contraband found in or on any other part of the inmate’s body. See Holt, 135 S. Ct. at 864 (refusing to find that search of a beard would be an ineffective alternative where the prison system’s assertion regarding risks to guard safety would be “no less true for searches of hair, clothing, and [quarter]-inch beards”).
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No. 14-41165

length limit under TDCJ’s policy so long as it is “neatly cut.” Although we must

respect a prison official’s expertise, the trial court in this case did not exceed

its prerogative as a fact finder in resolving competing testimony in Ali’s favor

where, as here, its finding was supported by testimony from both Ali’s experts

and TDCJ’s own witness. Cf. Knight v. Thompson, 797 F.3d 934, 945 (11th Cir.

2015) (noting that, in the RLUIPA context, the trial court “as the finder of fact,

remain[s] free to reject” witnesses’ testimony that is contradicted).10

b.

Inmate identification

TDCJ contends that its grooming policy is necessary to further a

compelling interest by aiding in the identification of inmates within the prison

and inmates who escape. As to within-prison identification, the evidence

introduced at trial indicated that inmates are provided an identification card

containing their photograph and biographical information. Director Eason’s

testimony was that inmates “are identified by their identification cards [eight]

times each day at count and several other times throughout the day.” TDCJ,

citing this policy, claims that its ban on four-inch prevents an inmate from

10 In Knight, the plaintiffs, a group of Native American inmates, brought a RLUIPA challenge against the Alabama prison system, seeking a “complete religion-based exemption” from its short-hair policy for male inmates that would allow them to grow long, unshorn hair. 797 F.3d at 937. The district court, after a bench trial, found that Alabama had carried its burden under RLUIPA, and the Eleventh Circuit affirmed. Id. Although the Eleventh Circuit ruled in favor of the prison system, much of its reasoning helps Ali. The court repeatedly emphasized that its RLUIPA analysis was tied to the district court’s particular factual findings and resolution of competing evidence. See, e.g., id. at 941, 944 (“[Appellants] merely mount an attack on the District Court’s factual findings and choice to credit the testimony of [appellee’s] witnesses.”). Our RLUIPA analysis, like that of the Eleventh Circuit, is specific to the record and the trial court’s findings, including those based on its assessment of conflicting testimony. In addition, the Knight opinion is distinguishable because the case involved a request for a complete exemption in order to wear head hair unshorn, which raises factual issues that are distinct from a request for a beard that is four-inches. Id. at 937. As the Eleventh Circuit observed in a related opinion, “RLUIPA requires us to scrutinize the asserted harm of granting [the] specific exemption of long, unshorn hair.” Knight v. Thompson, 796 F.3d 1289, 1292 (11th Cir. 2015) (emphasis added) (referencing Holt, 135 S. Ct. at 863).
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No. 14-41165 being able to shave his beard and thereby no longer resembling the picture on his card. It also contends that it is especially reliant on identification cards because, according to Director Eason, officers are often rotated within their units to prevent the staff from becoming “overly familiar” with inmates and “complacent.” Further, TDCJ introduced evidence that beards hinder identification because they can cover identifying marks and facial tattoos.
The trial court rejected TDCJ’s arguments that banning Ali from having a four-inch beard satisfies the compelling-interest test with respect to inmate identification. In light of the governing case law and the record below, we agree. In Garner, we considered a similar contention with respect to quarterinch beards. 713 F.3d at 247. Rejecting this argument, we reasoned that even though TDCJ “presented evidence that allowing inmates to have beards hinders inmate identification,” it failed to carry its burden because “TDCJ allows inmates to shave their heads, and there was testimony that shaved heads pose just as many identification problems as allowing prisoners to grow and shave beards.” Id. In Holt, the Supreme Court rejected a similar argument concerning the risk that inmates would shave to disguise themselves and even swap identification cards with each other. 135 S. Ct. at 865. The Court responded that the prison system “failed to establish why the risk that a prisoner will shave a [half]–inch beard to disguise himself is so great that [half]–inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or [quarter]–inch beards for medical reasons.” Id. These other kinds of hair “could also be shaved off at a moment’s notice, but the [the prison system] apparently does not think that this possibility raises a serious security concern.” Id.
The reasoning of Garner and Holt apply with equal force based on the record here. The parties’ evidence establish that an inmate can alter his appearance in many ways under TDCJ’s current policy. An inmate, for
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No. 14-41165 instance, could shave his head, shave his quarter-inch beard (if he is permitted to grow one for medical reasons), or change his hairstyle. Further, Ali’s expert, Tim Gravette, disagreed with TDCJ’s witnesses who testified that permitting inmates to wear beards would create problems with identification, stating that there are many ways an inmate could alter his appearance. Because of the various ways an inmate can permissibly change his appearance, TDCJ has not shown that denying Ali’s request for a four-inch beard furthers a compelling interest as to within-prison inmate identification. Cf. Schlemm v. Wall, 784 F.3d 362, 366 (7th Cir. 2015) (observing in response to a prison system’s asserted interest in suppressing gang identification that “it is difficult to depict as ‘compelling’ a desire to cut out one potential means of [gang] identification” where other means of identification were “widely available already”).
TDCJ’s change in grooming policy—which now permits inmates to grow half-inch beards for religious reasons—also undermines its position. See Moussazadeh, 703 F.3d at 795–96 (accounting for TDCJ’s change in policy in assessing a RLUIPA challenge). As noted, the compelling-interest test focuses on TDCJ’s “marginal interest” in denying the accommodation. Holt, 135 S. Ct. at 863. We abided by this principle in Garner: in analyzing an inmate’s request for a quarter-inch beard, we looked to whether there was “evidence that TDCJ would encounter greater or added difficulty if it enforced a one-quarter-inch as opposed to a clean-shaven rule.” 713 F.3d at 246 (emphasis added). Here, we focus on the additional risk of permitting a four-inch beard instead of enforcing a half-inch limit. TDCJ’s arguments concern how beards in general hinder identification, namely, they cover face tattoos and allow an inmate to change his appearance by shaving. Yet the testimony of TDCJ’s officials indicated that half-inch beards, which TDCJ presently allows, also pose such risks. TDCJ in fact concedes that “easy identification of an inmate with a facial tattoo would be hampered whether there was a short beard or a long beard.” Therefore, with
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No. 14-41165 respect to its interest in within-prison identification, TDCJ fails to adequately address the risks associated with the three-and-a-half-inch difference in beard length.11 See Holt, 135 S. Ct. at 866.
In addition, even if we assumed that banning all beards over a half-inch furthered a compelling interest by facilitating within-prison identifications, TDCJ has not proved its policy is the least restrictive means. The trial court found that a less restrictive alternative would be to maintain two photographs of the inmate, one with the beard and one without. In Holt, the Supreme Court condoned the “dual-photo method” in which prison officials would have “a bearded and clean-shaven photo to use in making identifications.” Id. at 865. The Court highlighted that Arkansas, “like many other States,” already had a policy of “photographing a prisoner both when he enters an institution and when ‘his appearance changes at any time during [his] incarceration.’” Id. (alteration in original). Just so here. TDCJ’s policy—like that of Arkansas and the other prison systems referenced in Holt—is to photograph an inmate during intake and to take a new photograph if his appearance changes while in TDCJ custody. Therefore, as we held in Garner, TDCJ’s identification concerns can be “addressed by requiring an inmate to have his identification picture changed if he grows or shaves his beard” given that TDCJ already requires a new picture when an inmate alters his appearances “in any way.” 713 F.3d at 247. Indeed, TDCJ has incorporated this method into its new grooming policy—TDCJ will issue a new identification card to an inmate permitted to grow a half-inch beard for religious reasons. TDCJ has not explained why it cannot use the same technique for a beard that is four inches.
11 It is worth noting that Ali does not seek permission to consistently change the style or shape of his beard. He seeks only to maintain a four-inch beard, which, as the trial court found, he can do by clasping his hand around his beard and using clippers to trim the protruding hair.
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As to identifying escaped prisoners, TDCJ argues that its policy prevents

an inmate from significantly changing his appearance by shaving upon escape.

TDCJ also claims that because it publicly releases a photograph when an

inmate escapes, it would cause confusion and impede identification if TDCJ

had to release multiple photographs, such as one photograph with the beard

and one without.

The trial court acknowledged but ultimately rejected TDCJ’s assertions

and, on this record, we cannot say that it was incorrect. The evidence adduced

at trial indicated that after escaping, an inmate can change his appearance in

many ways, such as by growing or cutting his hair or facial hair, dyeing his

hair, wearing a hat, or donning glasses. TDCJ’s witness Senior Warden Bailey

agreed that such steps would alter an inmate’s appearance. Further, Ali’s

expert, George Sullivan, testified that having to release more than one picture

of the inmate if he escaped would not pose a security risk. Sullivan explained

that law enforcement officials already release both the most recent picture of

the inmate and one that projects his potential change in appearances, and such

a practice does not confuse the public. Thus, as in Garner, we are unpersuaded

by TDCJ’s argument regarding identifying escaped inmates where the

evidence established an inmate could “chang[e] his appearance outside of the

prison” in many ways. Id. Holt also bolsters this conclusion: the prison system

there argued that inmates could change their appearance by shaving in order

“to escape[] and to evade apprehension after escaping,” but the Court found

that the prison system did not carry its burden, emphasizing the other ways

an inmate could change his appearance. 135 S. Ct. at 864.

c.

Cost control and prison operations

TDCJ also argues that its policy is the least restrictive means of

advancing its compelling interests in controlling costs and ensuring orderly

program administration. “[C]ost reduction, as a general matter, is

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No. 14-41165 unquestionably a compelling interest of TDCJ.” Moussazadeh, 703 F.3d at 795. TDCJ relatedly has a compelling interest in maintaining the orderly administration of its operations. See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). RLUIPA, however, “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” Garner, 713 F.3d at 245 (quoting 42 U.S.C. § 2000cc–3(c)). In determining whether a cost is compelling, a court may need to “put th[e] amount in perspective” by measuring the projected expense against the resources devoted to that interest. Moussazadeh, 703 F.3d at 795. For instance, in Moussazadeh, the inmate requested kosher food, which TDCJ denied citing cost concerns. Id. at 794. In the subsequent RLUIPA challenge, the evidence indicated that the annual cost to provide the accommodation at most would be “about $88,000” whereas TDCJ’s total food budget was $183.5 million. Id. at 795. We responded by noting our “skeptic[ism] that saving less than .05% of the food budget constitutes a compelling interest,” although “we decline[d] to draw a bright-line rule.” Id.
TDCJ argues that if four-inch beards were allowed, then staff would spend additional time searching those beards. The added time, according to TDCJ, would disrupt its daily schedule and impose significant costs because it would have to pay staff for the search time. Further, TDCJ asserts that because it is responsible for statewide policies, its costs must be measured on a statewide basis. It contends that its cost estimates should be based on the number of inmates statewide who belong to a faith group “that ha[ve] requested or ha[ve] a religious basis to request a beard.” That number, according to TDCJ, is 131,478 inmates, which represents 94% of TDCJ’s total male inmate population. TDCJ claims that if 25% of those inmates—which totals 32,870 inmates—requested and were granted permission to grow a four-
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No. 14-41165 inch beard, then COs would spend 182.6 hours searching beards every day.12 It claims that 182.6 hours of staff salary equals $1,110,372.34 annually and that its interest in saving that amount is compelling.13
The trial court rejected TDCJ’s projections. It noted that Ali’s expert, George Sullivan, testified that, in his experience in prisons that allow beards, 30 to 40% of Muslim inmates grew beards. Relying on this testimony, the court considered the time spent searching four-inch beards if 40% of Muslim inmates in the Michael Unit chose to grow such a beard and found that it would take 34 minutes each day. The court found that any additional time spent searching beards would either be absorbed by existing staff, thus costing TDCJ nothing, or, even if new staff was hired to search beards, amount to $3,445.84 each year, an insignificant fraction of TDCJ’s $3 billion budget.
The trial court did not commit clear error in rejecting TDCJ’s estimates regarding the number of inmates that are likely to request a fist-length beard. TDCJ officials admitted there had been no studies or surveys to determine the number of inmates that would seek to grow beards. See Garner, 713 F.3d at 245–46 (holding that the district court’s “finding that any increased costs would be insignificant” was not “clearly erroneous” where TDCJ had conducted “no studies concerning the costs of allowing inmates to grow beards”). Nor was the trial court bound to accept TDCJ’s predications in light of the speculative nature of the testimony of TDCJ’s witnesses. TDCJ’s cost estimates were based on 25% of inmates that belong to a faith group that, according to TDCJ Chaplain Billy Pierce, may have a religious basis for requesting an exemption if those inmates chose to request one. However, Chaplain Pierce’s testimony
12 TDCJ’s estimates are based on the trial court’s finding that a search of a four-inch beard takes five seconds and that, on average, an inmate would be searched four times daily, thus totaling twenty seconds per day per inmate.
13 To estimate costs, the TDCJ multiplied (1) the COs’ average hourly wage—$16.66— and (2) the time it takes per day to search a beard.
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No. 14-41165 concerned the number of inmates that “could possibly ask” for a beard. TDCJ did not present any evidence that many of the faith groups identified by Chaplain Pierce have in fact petitioned for a beard similar in length to Ali’s request. Warden Foxworth similarly stated in a conclusory manner that if the “privilege” to grow a long beard “is out there,” an inmate is “go[ing to] do it.” He then “speculate[d]” that if Ali’s request was granted, there would be “a lot of . . . [one]-inch, inch and a half, [two]-inch beards.” Such conjecture does not satisfy TDCJ’s burden. See id. at 246; cf. Hobby Lobby, 134 S. Ct. at 2783 (rejecting, in the analogous context of the Religious Freedom Restoration Act of 1993, the government’s argument that ruling in favor of the plaintiff “will lead to a flood of religious objections” when the government fails to “substantiate this prediction”).
Further, we cannot disturb the trial court’s finding that existing staff will absorb the time spent searching beards because we are not left with “the definite and firm conviction” that this finding is a mistake. Ogden, 244 F.3d at 971. The trial court’s finding was based on its estimations regarding the time that would be spent searching beards requested by Muslim inmates in the Michael Unit. The estimated 34 minutes each day spent searching beards was compared to the roughly 74,160 minutes of CO time spent staffing Michael Unit each day. TDCJ responds that the proper scope of the cost inquiry is not the Michael Unit but rather all TDCJ’s facilities. Although we agree that TDCJ must be able to consider statewide ramifications when responding to a RLUIPA challenge, the magistrate judge did not err in refusing to engage in such an analysis given the record. As it noted, “there [was] no evidence in the record for the court to determine the amount of correctional officer hours worked state-wide on a daily basis.” RLUIPA does not require “unquestioning acceptance” of a prison system’s assertions. Holt, 135 S. Ct. at 864. Therefore, in order for a court to evaluate whether the time spent searching statewide
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No. 14-41165 inmates would be absorbed by existing staff, TDCJ must provide some concrete evidence regarding its statewide resources allocated to its asserted interest.
Lastly, TDCJ’s contentions regarding the costs and disruption caused by four-inch beards are undercut by its change in policy. For instance, TDCJ introduced evidence concerning the costs associated with providing a religious exemption to its no-beard policy, such as having to issue new identification cards with updated photographs, provide beard covers for kitchen workers, and process an inmate’s request to grow a beard. Yet TDCJ’s current grooming policy allows inmates to grow a half-inch beard for religious reasons. Therefore, TDCJ already must bear many of the administrative costs it cited at trial. TDCJ has not shown it will bear a significantly greater burden in this respect by permitting an inmate to grow a beard that is three-and-one-half-inches longer than is currently permitted.
Accordingly, based on the record before us, we conclude that TDCJ has not carried its burden under RLUIPA with respect to its denial of Ali’s request for a fist-length beard not to exceed four inches.14 B. TDCJ’s Religious Headwear Policy
TDCJ argues that its religious headwear policy, like its grooming policy, furthers its compelling interest in (1) preventing the spread of contraband, (2) allowing for rapid identification of inmates within prison, and (3) controlling
14 TDCJ also argues that the trial court clearly erred by discounting the testimony of its expert, Ron Angelone, concerning inmate hygiene and that hygiene is a compelling state interest that TDCJ’s grooming policy furthers. It specifically points to the fact that Angelone, TDCJ’s expert, implemented a clean-shaven grooming policy for hygienic reasons when he was director of Virginia’s correctional facilities. We find the trial court did not clearly err in this regard. In addressing Angelone’s testimony, the trial court noted that part of his testimony was contradicted by TDCJ’s medical expert, Dr. Bobby Vincent. Specifically, the court noted that Angelone had expressed concerns with lice, but Dr. Vincent’s testimony indicated that “having longer hair does not increase the incidence of lice.” Further, Angelone’s testimony regarding the hygienic benefits of a clean-shaven policy is insufficient to carry TDCJ’s burden that its grooming policy—which allows for shorter beards—is the least restrictive means to further a compelling interest in inmate hygiene.
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costs and maintaining orderly operations. The trial court rejected these

arguments and held that none of TDCJ’s assertions satisfied either the

compelling-interest or the least-restrictive-means test as applied to Ali. As

explained below, we conclude that TDCJ has not satisfied its burden.

1. Analysis

TDCJ’s religious headwear policy allows inmates to wear a kufi in their

cells and at religious ceremonies but prohibits them from wearing them in

other areas of the prison. As such, we address each of TDCJ’s assertions by

focusing on TDCJ’s interest in enforcing its religious headwear policy to

prohibit Ali from wearing his kufi outside of his cell and religious services.

a.

Preventing contraband

The trial court held that, although an inmate “could hide contraband in

or under a [k]ufi,” TDCJ had failed to carry its burden to show that its

headwear policy furthered a compelling interest in combatting contraband. In

support, it noted that although TDCJ already permits inmates to wear kufis

in their cell and at religious ceremonies and that some inmates are allowed to

wear hats for work assignments, it failed to produce evidence of a single

incident in which contraband was hidden “in or under a religious head

covering, or even under a work cap.” TDCJ responds that the testimony of its

witnesses established that inmates will hide contraband in kufis if they are

allowed to wear them throughout the facilities, despite the fact that a kufi, as

TDCJ notes, “is not the easiest place to hide something.”

Even assuming that TDCJ’s headwear policy furthers a compelling

interest in combatting contraband, TDCJ did not carry its burden to show that

its current policy is the least restrictive means. The trial court found that Ali,

like many Muslim inmates, are already allowed to possess a kufi, to wear them

in their housing areas and at religious services, and to transport the kufis to

and from religious services. Ali also owns another religious item, a prayer rug,

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No. 14-41165

which he carries to and from services. TDCJ’s policy is to search Ali’s kufi and

prayer rug when he returns from services. TDCJ also frequently searches other

items of clothing, such as hats or jackets. The trial court, in turn, concluded

that a lesser restrictive alternative would be to search the kufis during routine

inmate searches and, as it already does for religious devotional items, revoke

any kufi privilege if it is abused.

TDCJ claims that searching the kufi would be ineffective because

inmates will resist searches of a religious item and even threaten to sue.

According to TDCJ, inmate resistance will deter COs from conducting

searches, and inmates will then use kufis to smuggle contraband. We find

TDCJ’s argument unavailing in light of the district court’s findings and the

record below. TDCJ permits inmates to have kufis and prayer rugs and

inmates are already required to make them available for inspection by COs.

TDCJ fails to adequately explain why it can search an inmate’s kufi when he

is traveling with it to and from religious services but not if he was to wear it at

other times. Further, TDCJ has not shown why it is impracticable to revoke

kufi privileges for those inmates that resist such searches. See id. at 866–67

(“[A]n institution might be entitled to withdraw an accommodation if the

claimant abuses the exemption in a manner that undermines the prison’s

compelling interests.”).

b.

Inmate identification

The trial court rejected TDCJ’s assertion that its policy regarding kufis

satisfies the compelling-interest test with respect to within-prison

identification. It provided three reasons. First, male inmates could still alter

their appearance by shaving or changing their hairstyle. Second, other types

of head coverings that TDCJ permits, such as caps that are authorized for

certain jobs, change how an inmate looks “as much as a [k]ufi.” Third, female

inmates that are Muslim are permitted to wear a hijab throughout its facilities.

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No. 14-41165 As the district court found, a hijab is a headscarf that is “larger” and “cover[s] more of the head” than a kufi. The court then concluded that kufis may actually help rather than hamper identification.
TDCJ contends that, contrary to the trial court’s conclusion, kufis will hinder rather than facilitate inmate identification. TDCJ asserts that an inmate may wear a kufi sporadically and that, in turn, kufis will impede rapid identification should an inmate choose to wear his kufi one day and then remove it the next day. However, in light of Holt and Ali’s evidence, we are unpersuaded that TDCJ has met its burden on this point. The prison system in Holt asserted that identification concerns are “particularly acute” because inmates “live in barracks and work in fields.” 135 S. Ct. at 865. As noted, the Court rejected this argument because of the other ways that an inmate can disguise himself “at a moment’s notice,” including shaving his head hair or his quarter-inch beard. Id. TDCJ’s policies permit an inmate to take similar steps that would change his appearance. Additionally, the prison also permits male inmates to wear other garments that impede identification, such as hats while working in the kitchen or outdoors and jackets when it is cold.
Further, TDCJ argues that kufis hinder identification by covering tattoos on the top of an inmate’s head, including tattoos that are used as gang identifiers. It cites the testimony of Robert Grant, an official in TDCJ’s Security Threat Group, who stated that a kufi would potentially hide a gangrelated tattoo. TDCJ argues that it is crucial that it monitor tattoos so it can identify an inmate’s gang affiliation.
We acknowledge TDCJ’s compelling interest in identifying inmates’ gang affiliation. However, on this record, TDCJ has not shown its kufi restriction is the least restrictive means to furthering this interest or its interest in identification generally. At trial, TDCJ introduced photographs of inmates with tattoos that would be covered by a kufi. The trial court found such
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evidence unconvincing, explaining that for each photograph the inmate could

have been identified by facial tattoos that a kufi would not cover. Equally

important, the trial court also held that a less restrictive alternative would be

to have the inmate remove his kufi should the CO need to identify the inmate

or his gang affiliation and, if necessary, revoke the privilege if it is misused.15

TDCJ’s witness, Robert Grant, agreed that he would be able to determine the

necessary gang-related information by requiring the inmate to remove the kufi.

Finally, the court found that TDCJ’s current policy is to document whether an

inmate is allowed to have a kufi. It concluded that TDCJ could track which

inmates were allowed to have a kufi by issuing property slips that an inmate

must carry on his person, as it already does for other personal property such

as watches. We hold that the trial court’s conclusions are not erroneous.16

c.

Cost control and prison operations

The trial court found that the only kufi-related expense or disruption to

operations arise from the additional staff time needed to search kufis. The

court reasoned that if 30% of Muslim inmates at the Michael Unit wore kufis,

it would take an extra 15 minutes each day to search them, which is spread

across 74,160 minutes of correctional officer time each day.17 It concluded that

this additional search time would be absorbed by the existing staff. Even if

15 The only evidence concerning an instance in which a religious item was misused for gang-related purposes occurred when inmates began using colored rosaries to affiliate with different gangs. TDCJ responded by changing its policy to permit only black rosaries. In this case, TDCJ’s argument addresses the opposite concern: it contends that kufis will be used to conceal rather than promote gang affiliation.
16 TDCJ also argues that the trial court erred by relying on evidence concerning female inmates being allowed to wear hijabs. However, because we hold that TDCJ has failed to prove that its ban is the least restrictive means without regard to evidence concerning female inmates, we decline to address the issue.
17 The trial court found, based on an in-court demonstration, that it takes three seconds to search a kufi and that it will be searched on average four times a day, totaling 12 seconds per inmate per day. As of 2014, there were 260 Muslim inmate at the Michael Unit. If 30% of those inmates wore kufis, it would equal 78 inmates.
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No. 14-41165 additional staff had to be hired, it would cost at most $1,533 each year in staff salary. Ali’s expert agreed that any added costs from kufis would be insignificant.
TDCJ responds that the trial court erred in limiting its analysis only to Muslims in the Michael Unit. It argues that the time and costs associated with Ali’s request must account for all male inmates statewide, specifically, if 25% of male inmates wore a religious cap at all times, then it would entail 115.53 hours of CO time to search those kufis and other religious garments, which equals $702,526.37 in CO salary annually. TDCJ argues alternatively that every Muslim inmate will wear a kufi if Ali is permitted to wear one. It claims that searching all Muslim inmates who wear kufis would take 21.48 hours each day and cost $130,658.27 annually.
The trial court, however, rejected these estimates as “pure conjecture,” and its conclusion is not clearly erroneous. TDCJ’s claim that all Muslim inmates will want to wear a kufi was not based on any study or survey. See Garner, 713 F.3d at 246. Further, Ali’s expert, George Sullivan, who had spent much of his career in prison systems that allow kufis, testified that around 20 to 30% of Muslim inmates chose to wear a kufi. The court noted that, in contrast to Ali’s witness, none of TDCJ’s witnesses “had experience in correctional systems that allow [k]ufis to be worn throughout the prison.” Thus, while TDCJ may have presented testimony that was inconsistent with Sullivan’s testimony regarding the number of Muslim inmates that would wear a kufi, we will not second-guess the trial court’s resolution of competing evidence. See Anderson, 517 F.3d at 296.
We also cannot accept TDCJ’s cost estimates based on its assertion that 25% of all male inmates would choose to wear some kind of religious headwear should Ali be granted the requested accommodation. Under RLUIPA, we have found it appropriate to “tak[e] an object-specific approach to requests for
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No. 14-41165 religious items.” Chance, 730 F.3d at 418. TDCJ, however, fails to specify what other religious headwear inmates would request or point to any evidence regarding the search procedure required for such headwear. Without any concrete evidence regarding which items will be requested, the risk these items would pose, and the methods required to search them, we cannot conclude TDCJ has met its statutory burden on this point. See, e.g., id.; Schlemm, 784 F.3d at 366 (“On this record the cost of accommodating Navajo inmates [by providing special religious meals] appears to be slight, and the costs of accommodating other inmates’ requests (should any be made) can be left to future litigation.”).
Finally, TDCJ has not shown it has a compelling interest in the costs associated with allowing Muslim inmates statewide to wear kufis. As of 2014, there were 6,446 male TDCJ inmates that identified as Muslim. Given the record, we find no clear error in the trial court’s finding that the cost of searching 30% of Muslim inmates would be absorbed by existing staff. However, even if none of the search time was absorbed by existing staff, then under TDCJ’s methodology, it would cost $39,221 per year to search all the kufis.18 The record below indicates that TDCJ’s budget for staff salary and wages was $1.045 billion in 2014, which is roughly one-third of its total operating budget of $3.1 billion. TDCJ has not shown it has a compelling interest in saving less than .004% of its budget that is dedicated to CO compensation. See Moussazadeh, 703 F.3d at 795 (expressing doubt that TDCJ had a compelling interest in saving $88,000 in food-related expenses where that cost amounted to “less than .05% of the food budget”).
18 Thirty percent of all male Muslim inmates equals 1,934 inmates. If, as the district court found, it takes 12 seconds to search a kufi per day, then it would take approximately 6.45 hours per day statewide.
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Therefore, we conclude that, based on the record, TDCJ has not carried its burden under RLUIPA with respect to its denial of Ali’s request to wear his kufi throughout TDCJ facilities.
IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment and permanent injunction.
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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 02, 2016
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc
No. 14-41165 David Ali v. Nathaniel Quarterman USDC No. 9:09-CV-52
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.

Case: 14-41165 Document: 00513487902 Page: 2 Date Filed: 05/02/2016
Sincerely, LYLE W. CAYCE, Clerk
By: _______________________ Joseph M. Armato, Deputy Clerk Enclosure(s) Mr. Eric M. Albritton Ms. April J. Anderson Ms. Celamaine Cunniff Mr. Mark Lenard Gross Mr. Shawn Alexander Latchford Mr. Daniel Mach Mrs. Victoria Fishman Maroulis Ms. Leah O'Leary Mr. Derek L. Shaffer Ms. Carolyn Homer Thomas