IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40099

Summary Calendar

FREDRICK GOODEN, also known as Ma’Min Al-Naba

Plaintiff-Appellant

v.

C CRAIN; TEXAS BOARD OF CRIMINAL JUSTICE; BILLY PIERCE; 

D DRETKE

Defendants-Appellees

* * *

Consolidated with

* * *

No. 06-40184

Summary Calendar

GARRETT GIBB

Plaintiff-Appellant

v.

CHRISTINA CRAIN, Chairperson, Texas Board Criminal Justice; TEXAS

BOARD OF CRIMINAL JUSTICE; DIRECTOR TEXAS BOARD OF

CRIMINAL JUSTICE; BILLY PIERCE, Director of Chaplaincy, In His

Official and Individual Capacity

Defendants-Appellees

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2007

Charles R. Fulbruge III

Clerk
No. 06-40099 c/w 06-40184

* 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should not be published and is not precedent except under the limited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.

2

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 6:04-CV-127

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Frederick Gooden, Texas prisoner # 1013573, and Garrett Gibb, Texas

prisoner # 1104016, sued the above named defendants under the Religious Land

Use and InstitutionalizedPersons Act(RLUIPA), and under 42 U.S.C. § 1983 for

alleged violations of their equal protection rights. The plaintiffs, both of whom

are Muslim adherents, argue thatthey should be permitted to wear quarter inch

beards rather than being forced to shave completely. They argue that the Texas

Department of Criminal Justice (TDCJ) policy that forces them to be clean

shaven is a substantial burden to the practice of their religion and that the

grooming policy is not the least restrictive means of imposing such a burden.

They argue that inmates with shaving bumps can receive a “clipper shave pass”

that allows them to wear a quarter inch beard and that Muslim prisoners should

have the same privilege. They both seek damages and injunctive relief. 

Gooden consented to have his case presided over by a magistrate judge,

but Gibb did not. These cases were not consolidated in the district court. We

granted the defendants’ motion to consolidate the cases on appeal.

In Gooden’s case, the defendants and Gooden filed cross motions for

summary judgment. The magistrate judge held an evidentiary hearing which

she described as “a hearing on the motion for summary judgment on equal

protection and then [for the purpose of] taking evidence for the injunctive relief
No. 06-40099 c/w 06-40184

3

sought under RLUIPA.” After hearing witnesses from both sides, the magistrate

judge determined that the defendants were entitled to summary judgment, and

she dismissed Gooden’s complaint. Relying on her opinion in Gooden’s case, the

magistrate judge determined that Gibb’s complaint should be dismissed as

frivolous and for failure to state a claim on which relief may be granted, and she

recommended dismissing Gibb’s complaint with prejudice. The district court

accepted the recommendation and dismissed Gibb’s complaint. 

Gooden and Gibb both argue that the summary judgment in favor of the

defendants against Gooden and dismissal of Gooden’s complaint was erroneous.

Gooden argues that he was not given notice that the magistrate judge was

conducting a bench trial and that he believed that the hearing was only an

evidentiary hearing on his motion for summary judgment and to determine

whether a preliminary injunction should be issued. He argues that, as the

magistrate judge resolved genuine material facts that were disputed, the

decision dismissing his complaint was made in error. Gibb argues that it was

error for the district court to rely on the erroneous decision in Gooden’s case in

determining that his complaint should be dismissed. 

This court reviews a district court’s grant of summary judgment de novo.

Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir.

1997). Summary judgment is proper where the pleadings and summary

judgment evidence present no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute will preclude an

award of summary judgment if the evidence shows that a reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). 

Pursuant to RLUIPA, “No government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an institution,”
No. 06-40099 c/w 06-40184

1To the extent the state argues that Diaz v. Collins, 144 F.3d 69 (5th Cir.

1997), disposes of the plaintiffs’ claims, we note that Diaz is factually

distinguishable. In Diaz, the plaintiff, a Native American, wanted to grow his

hair long in accordance with his religious beliefs; here, the plaintiffs want to

grow quarter inch beards. We do not express any view as to how those facts

alter the analysis under RLUIPA, but note only that those differences must be

taken account of.

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unless the burden furthers “a compelling governmental interest,” and does so by

“the least restrictive means.” 42 U.S.C § 2000cc-1(a).

The magistrate judge determined that summary judgment should be

granted in favor of the defendants and dismissed Gooden’s RLUIPA claims,

finding that the grooming policy did not impose a substantial burden on the

practice of Gooden’s religious beliefs. Alternatively, the magistrate judge

concluded that the grooming policy “furthers the compelling governmental

interest of security and does so by the least restrictive means.” Whether the

grooming policy imposes a substantial burden on the practice of Gooden’s

religious beliefs and, if so, whether the grooming policy is the least restrictive

means of so doing were facts contested by the parties.1 Because summary

judgment is proper only when there is no genuine issue of material fact, the

magistrate judge erred in granting the defendants’ motion for summary

judgment with respect to Gooden’s RLUIPA claim and in dismissing that claim.

See Celotex Corp., 477 U.S. at 322. Because Gooden has set forth specific facts

showing the existence of a genuine issue for trial, we vacate the magistrate

judge’s decision dismissing this issue and remand the case for further

proceedings.

The dismissal of an IFP complaint as frivolous is typically reviewed for

abuse of discretion; however, where the district court also finds that the

complaint fails to state a claim, as here, it is reviewed de novo. See Geiger v.

Jowers, 404 F.3d 371, 373 (5th Cir. 2005). In light of the magistrate judge’s

error in resolving disputed facts relating to Gooden’s RLUIPA claim, it cannot
No. 06-40099 c/w 06-40184

5

be said that the district court correctly concluded that Gibb’s RLUIPA claim is

frivolous or fails to state a claim upon which relief could be granted. Therefore,

we vacate the dismissal of Gibb’s RLUIPA claim and remand the case for further

proceedings. 

Gooden does not argue that the magistrate judge improperly resolved any

disputed fact with respect to his equal protection claim; rather, he argues that

the hearing itself was improper. To the extent that the hearing was conducted

to determine whether there were disputed factual issues relating to this claim,

the magistrate judge did not err in holding a hearing. See FED. R. CIV. P. 56.

Because there were no disputed genuine issue of material fact relating to

Gooden’s equal protection claim, there was no error with respect to the grant of

summary judgment on and the dismissal of this claim. See Celotex, 477 U.S. at

322.

Gibb argues thatthe dismissal of his equal protection claim was improper.

Gibb argues that he can demonstrate that the defendants acted with a

discriminatory purpose in creating the grooming policy, but he argues that the

discrimination against him was based on his race, Caucasian, not on his religion.

Gibb’s assertion thatthe grooming policy was “designed and enacted specifically

to allow only black prisoners to wear a beard”lacks an arguable basis in fact and

is not plausible on its face. The district court did not err in dismissing this

claim. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.

2007) ; Geiger, 404 F.3d at 373. 

With respect to Gooden’s request for damages and the issue of the

defendants’ qualified immunity, the magistrate judge did not make a

determination whether damages are available under RLUIPA, and she noted

that other courts had expressed uncertainty in that regard. The magistrate

judge concluded that, “[t]o the extent that damages are potentially available in

the present case, neither prong of the qualified immunity analysis is satisfied.”

Gooden does not challenge this conclusion on appeal, and we will not consider
No. 06-40099 c/w 06-40184

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it now. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Brinkmann

v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

In Gibb’s case, the defendants argued in their motion for summary

judgment that they were entitled to qualified immunity only for the purposes of

Gibb’s equal protection claim. They did not argue that they were entitled to

qualified immunity for the purposes of Gibb’s RLUIPA claim, nor did they argue

that damages are not available under RLUIPA. Because there was no ruling on

the issue whether Gibb is entitled to damages on his RLUIPA claim, the district

court should resolve this issue when it rules on the merits of Gibb’s RLUIPA

claim.

Gooden argues that the magistrate judge erred when she denied his

motion for class certification. “[T]he district court maintains substantial

discretion in determining whether to certify a class action,” and this court

reviews such a determination only for abuse of discretion. Allison v. Citgo

Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998). “Whether the district court

applied the correct legal standard in reaching its decision on class certification,

however, is a legal question that we review de novo.” Id. Because it is unclear

that the magistrate judge considered the requirements of FED. R. CIV. P. 23, we

vacate the denial of Gooden’s motion for class certification, and, without

expressing an opinion on the merits ofthe motion, we remand for the magistrate

judge to consider it under the standard set forth in FED. R. CIV. P. 23.

Finally, Gooden argues that the magistrate judge’s failure to consider his

state law claims was an abuse of discretion. Gooden’s state law claims were set

forth in Gooden v. Stringfellow, 6:02-cv-452, a case that was dismissed prior to

his instant suit. Gooden attempted to incorporate his pleadings from that case

without attaching them as an exhibit to the pleadings in the instant case. Such

incorporation is not contemplated by FED. R. CIV. P. 10(c). The magistrate

judge’s decision to consider those claims was not an abuse of discretion. 
No. 06-40099 c/w 06-40184

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We vacate the dismissal of Gooden’s and Gibb’s claims for injunctive relief

under RLUIPA and remand for further proceedings. To the extent that Gibb

seeks damages based on the alleged RLUIPA violation, the district court should

determine whether he is entitled to the same. We vacate the order denying

Gooden’s motion for class certification and remand, without expressing an

opinion on the merits of the motion, for consideration under the standard set

forth in FED. R. CIV. P. 23. In all other respects the judgments are affirmed. 

Gooden has requested that his hearing pursuant to Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985), be transcribed atthe Government’s expense so that

he can prove that he requested a jury trial at that hearing. We have watched

the Spears tape, and Gooden did request a jury trial at that hearing. However,

on appeal, Gooden makes no legal argument with respect to his request for a

jury trial. We need not resolve the issue whether Gooden is entitled to a jury

trial on remand because he has not adequately briefed that issue on appeal. See

Hughes, 191 F.3d at 613; Brinkmann, 813 F.2d at 748. Gooden does not need

a transcript proving he requested a jury trial for us to properly dispose of his

appeal. See Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985). Gooden’s

motion for production of a transcript at the Government’s expense is denied.

AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION

DENIED.