Garner v. Morales, No. 07-41015 (5th. Cir. 3/6/2009)

• Decision Date: 06 March 2009
• Docket Number: No. 07-41015.,07-41015.
• Parties: WILLIE LEE GARNER, also known as Willi Free I Gar'ner, Plaintiff-Appellant v. PAUL MORALES, Individually and in his official capacity; ROBERT CRITES, Individually and in his official capacity; BRYAN GORDY, Individually and in his official capacity; EILEEN KENNEDY; MARTHA WEAR; ET AL.; JUAN M. GARCIA; LOUIS ROCHA; GINA K. CURRIE; SYLVIA VILLARREAL; RACHELLE RAMON, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

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WILLIE LEE GARNER, also known as Willi Free I Gar'ner, Plaintiff-Appellant v. PAUL MORALES, Individually and in his official capacity; ROBERT CRITES, Individually and in his official capacity; BRYAN GORDY, Individually and in his official capacity; EILEEN KENNEDY; MARTHA WEAR; ET AL.; JUAN M. GARCIA; LOUIS ROCHA; GINA K. CURRIE; SYLVIA VILLARREAL; RACHELLE RAMON, Defendants-Appellees.

No. 07-41015.

United States Court of Appeals, Fifth Circuit.

Filed March 6, 2009.

Appeal from the United States District Court for the Southern District of Texas. USDC No. 2:06-CV-218.

Before: JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM.^*

Willie Lee Garner, Texas prisoner # 606635, appeals the district court's adverse summary judgment on his free exercise, equal protection, and retaliation claims under 42 U.S.C. § 1983 as well as his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA or Act), 42 U.S.C. §§ 2000cc-2000cc-5. He also appeals the district court's denial of his request for appointed counsel. For the following reasons, we affirm in part and vacate in part and remand.

I. FACTS

Garner, a prisoner incarcerated in the Texas Department of Criminal Justice (TDCJ), adheres to Islam. He contends that the tenants of his Islamic faith require him to wear at all times a beard and a white head covering known as a Kufi. Impeding Garner's ability to adhere to these tenants of his faith are the TDCJ's no-facial-hair grooming policy, which requires all inmates to maintain a clean shave absent an objectively verifiable medical condition,¹ and the TDCJ's head-covering policy, which restricts Garner from wearing his Kufi to and from religious services. In 2004, Garner began refusing to comply with the TDCJ's grooming policy by not shaving; he was disciplined several times as a result. Garner admitted that he was not exempt from the policy due to a medical condition; instead, he argued that the TDCJ's inflexible grooming policy should yield to his religious beliefs.

Garner brought this suit against Lieutenant Juan Garcia, Sergeant Louis Rocha, Officer Rachelle Ramon, Commissary Manager Gina Currie, and Commissary Coordinator Sylvia Villarreal in their individual and official capacities. His suit alleges that the defendants violated his constitutional rights by refusing to allow him to maintain a quarter-inch beard and wear a Kufi to and from religious services. Specifically, Garner brought suit under § 1983, alleging violation of his First Amendment right to free exercise of religion, his Fourteenth Amendment right to equal protection of the law, and retaliation under the Eighth Amendment. Garner also claims that the TDCJ's policies violate the RLUIPA, which protects the religious practices of institutionalized persons.

The district court granted summary judgment in favor of the defendants on all of Garner's claims. The court provided a number of grounds for its judgment. First, the court concluded that sovereign immunity barred Garner from suing the defendants in their official capacities for money damages. Second, the court held that the defendants were entitled to judgment as a matter of law because Garner had not sufficiently shown a violation of either the RLUIPA or the First, Eighth, or Fourteenth Amendments. Finally, the court concluded that the defendants were entitled to qualified immunity. In a separate order, the district court denied Garner's request for appointed counsel. Garner's claims are now before this Court.

II. DISCUSSION

We review the district court's grant of summary judgment de novo applying the same standard as the district court. See Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). Summary judgment is appropriate "if the pleadings, depositions, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. CIV. P. 56(c). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curium). In making our determination, all doubts and reasonable inferences must be resolved in favor of the non-movant, here Garner. Id.

A. Sovereign immunity

Garner contends that the district court improperly held that sovereign immunity barred him from suing the defendants in their official capacities for money damages. We disagree. A suit against a government official in his or her official capacity is a suit against the entity that the individual represents, here the TDCJ. Kentucky v. Graham, 473 U.S. 158, 166 (1985). We have previously recognized that the TDCJ is an agency of the state, and is thus "shielded from suits by individuals absent its consent." Mayfield v. Tex. Dep't of Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008) (citation and internal quotations marks omitted). Moreover, we recently held that the RLUIPA does not constitute a waiver of a state's sovereign immunity. Sossamon v. Lone Star State of Texas, No. 07-50632, 2009 U.S. App. LEXIS 3701, at *28 (5th Cir. Feb. 17, 2009). Thus, the only potentially viable claims that Garner has brought against the TDCJ (through its officials) are those for declaratory and injunctive relief. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 417 (5th Cir. 2004) (recognizing that declaratory and injunctive relief are exceptions to the doctrine of sovereign immunity); see also Sossamon, 2009 U.S. App. LEXIS 3701 at *19 ("[The] RLUIPA unambiguously creates a private right of action for injunctive and declaratory relief."). Accordingly, we affirm the portion of the judgment concluding that Garner is barred from seeking money damages from the defendants in their official capacities.

B. Free exercise claims

Garner also challenges the district court's dismissal of his free exercise claims. He contends that the TDCJ policies that forbid him from wearing a quarter-inch beard and a Kufi to and from religious services violate his First Amendment rights. Garner's claims are foreclosed by this circuit's precedent. In Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000), an inmate contended that a TDCJ policy that forbid him from wearing a quarter-inch beard in accordance with his Muslim faith, yet allowed prisoners with certain medical conditions to wear three-quarter-inch beards, violated the Free Exercise Clause of the First Amendment. Id. at 488. We disagreed and held that the grooming policy was reasonably related to the TDCJ's legitimate penological interests. Id. at 490. Similarly, in Muhammad v. Lynaugh, 966 F.2d 901 (5th Cir. 1992), we rejected a free exercise challenge to a TDCJ policy restricting the use of Kufi caps, concluding that the policy bore a reasonable relationship to the legitimate penological interests of prison security. Id. at 902-03. Given these precedents the district court did not err in concluding that no fact issue exists on Garner's free exercise claims.

C. Equal protection claim

Garner further contends that the TDCJ's grooming and head-covering policies violate the Equal Protection Clause of the Fourteenth Amendment because the policy forbids Muslims from wearing a quarter-inch beard in accordance with their religion, yet does not impose a similar restriction on inmates with certain medical conditions. He also notes that adherents of other religions are permitted to wear medallions, crosses, amulets, and medical bags, and also permitted to perform ceremonial rites like smoking a tobacco pipe and participating in sweat lodges.

To maintain his equal protection claim independent of his free exercise claim, Garner "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). Discriminatory intent "implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effect on an identifiable group." Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988) (internal quotation marks omitted).

The district court correctly concluded that Garner has failed to raise a fact issue on his equal protection claim. Garner has not established that the TDCJ enacted its grooming or head-covering policy for the purpose of adversely impacting the ability of Muslim inmates to practice their faith; rather, the TDCJ enacted the policies to forward its legitimate penological interests in prison security. Nor has Garner shown that the TDCJ applies its facially-neutral grooming and head-covering policies differently among Muslims or those of other faiths. Individuals receiving an exemption from the grooming policy due to an objectively verifiable medical condition are, by definition, not similarly situated to Garner. Finally, Garner has not offered any facts demonstrating that the TDCJ intended to discriminate against him as a member of an identifiable group. Because Garner has failed to raise a fact issue on any potentially actionable theory of equal protection, the district court properly granted summary judgment on this claim. Moreover, because Garner has failed to establish that the TDCJ's grooming and head-covering policies violate his constitutional rights, he cannot establish an Eighth Amendment retaliation claim based on penalties incurred as a result of his refusal to comply with that policy. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (noting that an Eighth Amendment retaliation claim must be predicated on the violation of a specific constitutional right).

D. Appointment of counsel and the RLUIPA

Garner requested appointment of counsel in the district court; his request was denied. There is no automatic right to appointment of counsel in a civil case. Jackson v. Dallas...