Brown v. Livingston
| Decision Date | 30 April 2014 |
| Docket Number | Civil Action No. 4:69–cv–00074. |
| Citation | 17 F.Supp.3d 616 |
| Parties | Bobby R. BROWN, et al., Plaintiffs, v. Brad LIVINGSTON, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Edward A. Mallett, Mallett Saper Berg LLP, Gerald M. Birnberg, Williams Birnberg & Andersen, L.L.P., Houston, TX, for Plaintiffs.
Celamaine Cunniff, Office of the Atty. Gen., Law Enforcement Def. Div., Nadine Phillpotts, Office of the Attorney General, Austin, TX, for Defendants.
David Mains, Huntsville, TX, pro se.
MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
Before the Court are the plaintiffs', Bobby R. Brown, individually and on behalf of others similarly situated, and the defendant's, Brad Livingston, in his official capacity as Executive Director of the Texas Department of Criminal Justice (“TDCJ”), proposed findings of facts and conclusions of law. (Dkt. Nos. 356 & 357) After a careful review of the parties' various submissions and the record of the evidentiary proceedings previously held before this Court, the Court sets forth its findings of fact and conclusions of law in this Memorandum.
In light of the complexity of the issues addressed in this Memorandum of Findings of Fact and Conclusions of Law, the Court presents a summary of its ultimate findings of fact and conclusions of law. The Court finds that: (a) TDCJ's current Administrative Directive 7.30 (“AD 7.30”), which embodies TDCJ's policy that inmates may not gather in groups of more than four for religious services unless a TDCJ staff member or outside volunteer is available to provide “direct supervision,” is an ongoing violation of the Muslim inmates' federal rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment; (b) the “Scott Plan,” which is TDCJ's policy of providing TDCJ staff to supervise only one hour of religious services per week for each faith group unless an outside volunteer is present to provide direct supervision, is an ongoing violation of the Muslim inmates' federal rights under RLUIPA and the First Amendment; and (c) exempting inmates, whether adherents to a religious sect or group or not, from the strictures and restrictions of the Scott Plan1 and AD 7.302 constitutes “content” discrimination in violation of the First Amendment to the Federal Constitution.
The Court concludes that the Scott Plan and AD 7.30 do not relate to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (). As applied, these policies violate the Muslim inmates' federal rights (under the Establishment Clause of the First Amendment to the U.S. Constitution, the Free Exercise Clause of the First Amendment and RLUIPA) and further restricts adherents who engage in religious activities in ways that the general population of inmates are not restricted when they engage in secular activities. Therefore, the Court concludes that sections II, III(8) and III(15) of the Consent Decree shall remain in full force and effect.
On July 20, 1977, this Court entered a Consent Decree that prohibited the Texas Department of Corrections, now, the Texas Department of Criminal Justice (“TDCJ”), from “discriminat[ing] against adherents to the Religion of Islam in the pursuit of their right to profess their religious beliefs and to exercise their religious practices.” The Consent Decree mandated that the “[d]efendants shall treat adherents to the Religion of Islam equally and on the same basis as, and to permit Islamic religious practices under substantially the same conditions as, are afforded to and enjoyed by adherents to Catholic, Protestant and Jewish faiths incarcerated within the Texas Department of Justice.” See Consent Decree, Section II, page 2. To accomplish that objective, the Consent Decree contained some twenty-two specific provisions designed to ensure Muslim inmates equal opportunity to participate in religious activities as other religious groups.
The Consent Decree worked reasonably well to achieve its objectives, and TDCJ has done a number of things to enhance the opportunity for Muslim inmates to pursue their religious convictions. For instance, prison libraries now have copies of the Holy Qur'an, TDCJ has hired five Muslim chaplains, TDCJ provides pork-free diets for Muslim inmates, and Muslim inmates can acquire and possess Islamic literature and memorabilia, subject to established prison rules and procedures.
As a consequence, there is no longer a need to continue twenty of the twenty-two specific provisions of Section III of the Consent Decree, and the plaintiffs do not oppose termination of those twenty provisions. Two of those provisions, however-namely, Sections III(8) and III(15) along with Section II, which generally prohibits Muslim inmates from being discriminated against or treated differently from Catholic, Protestant and Jewish inmates, are still necessary to correct current and ongoing violations of the federal Constitutional and statutory rights of Muslim inmates.
Section III(15) of the Consent Decree requires TDCJ officials to “allow adherents to the Religion of Islam at each unit of the Texas Department of Corrections equal time for worship services and other religious activities each week as is enjoyed by adherents to the Catholic, Protestant and Jewish faiths.” Section III(8) requires that:
whenever an ordained Islamic minister is unavailable at a particular time regularly scheduled for Islamic worship and study, (as set forth in item No. 1 above and No. 15 hereafter), [TDCJ officials must] allow inmates professing adherence to the Religion of Islam to congregate under appropriate supervision for the purposes of worship, study in the Islamic faith, Sunday School and other religious functions and activities as set forth hereinabove and hereinafter, with a leader designated from their midst; provided, however, that such inmate leader shall have previously secured the approval of an appropriate official of the Texas Department of Corrections, and provided further, however, that the Texas Department of Corrections shall not unreasonably withhold or delay such approval.
The resulting governance, hereinafter referred to as “Brown v. Beto ” or “the Brown v. Beto regime,” was in effect from July 20, 1977, until TDCJ officials unilaterally discontinued following the mandates by implementing the “Scott Plan” effective January 1, 2013. Under Brown v. Beto , whenever a Muslim Chaplain was available at a time regularly scheduled for Jum'ah, Taleem, or Qur'anic studies, those activities were conducted with a Chaplain. However, if a Muslim Chaplain was unavailable, those activities were still conducted, generally under “indirect” prison supervision. Hence, supervision was provided by a prison official in the vicinity, checking in from time to time while engaged in other religious and/or secular activities, through windows or by other means such as video cameras and audio recordings. Generally, a prison official was not physically present inside the room where the religious activity was taking place at all times.
During the thirty-five years the Consent Decree was in effect and being adhered to by TDCJ, there has been no evidence of a single reported or known incident involving a serious security risk to the prison, its staff, inmates or the public at large involving an inmate-led Muslim religious activity. In other words, adherence to Sections III(8) and III(15) of the Consent Decree has not presented or posed a threat to the security or safety of the institution or the public. Nor has a single reported incident, episode, or event resulted in any disciplinary action or injury of any sort to any person or property.
In fact, throughout the thirty-five year history of the Consent Decree, very few minor disturbances have occurred during Muslim religious activities-all of which were dealt with by prison officials and none of which posed a threat to the security or safety of the institution or was sufficiently serious to warrant recordation as a disciplinary infraction. See, e.g., Watson v. Wakefield, No. H–08–0903, 2009 WL 3151320 (S.D.Tex. Sept. 25, 2009) ; Lemons v. Tex. Dept. of Crim. Justice, No. 2:09–CV–0102, 2012 WL 2133700 (N.D.Tex., May 17, 2012). Services of other religions, where an outside volunteer or TDCJ staff member was present, reported experiencing similar minor incidents. See, e.g., Freeman v. Tex. Dept. of Crim. Justice, 369 F.3d 854 (5th Cir.2004) (Church of Christ service).
On the other hand, there is evidence that the more serious incidents that occurred at or near religious activities occurred during Catholic and Protestant services even though a Chaplain, prison guard, or outside volunteer was present. As a result of the Consent Decree, from July, 1977 until January 1, 2013, Muslim, Jewish, Catholic, Protestant, and Native American inmates have all enjoyed an average of six hours of religious activities each week at each TDCJ unit where inmates of those faith groups were housed.
The frequency of these religious activities began to change on or around September 1, 2012. On August 1, 2012, TDCJ filed a motion to vacate the Consent Decree. Thereafter, by operation of 18 U.S.C. § 3626(e)(2)(a), the provisions of the Consent Decree were automatically stayed. Right away, TDCJ ceased complying with Sections II, III(8) and III(15) of the Consent Decree. As a result, Muslim inmates who previously had access to approximately six hours per week of religious activities found that their religious activities were reduced to one hour per week under the guise of equalization based on the availability of prison officials, Muslim Chaplains or volunteers....
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