Opinion
No. 3:01-CV-0604-P
January 21, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and the Order of Reference dated July 12, 2001, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge, as evidenced by her signature hereto, are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is an inmate formerly confined in the Hutchins State Jail. He presently resides in the Powledge Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). He names Wayne Scott, Executive Director of TDCJ-ID as the sole defendant in this action. No process has been issued in this case.
Statement of the Case: In his amended complaint, plaintiff alleges that defendant has a policy of forcing inmates to cut their hair and shave. ( Am. Compl. ¶ 6.) He contends that hair length and shaving should not be subject to regulation. ( Id .) He argues that regulating his hair length violates his constitutional right to self expression. ( Id . ¶ 7.) He further contends that "[n]o penological justification exists for the act of forcing one to shave or receive haircuts." ( Id . ¶ 13.) Based on the foregoing claim, plaintiff seeks "a temporary and a final injunction enjoining defendant from further depriving plaintiff of his first and fourteenth amendment rights [regarding] disciplinary action for refusing haircuts and shaving." ( Id . ¶ 15.) He further seeks reasonable costs of this action. ( Id . ¶ 16.)
II. Screening for Frivolity
Plaintiff has paid the requisite filing fee in this action. His complaint is, nevertheless, subject to sua sponte dismissal under 28 U.S.C. § 1915A. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A whether or not he proceeds in forma pauperis. See Martin v. Scott , 156 F.3d 578, 579-80 (5th Cir. 1998). Section 1915A(b) provides for sua sponte dismissal, if the Court finds the complaint "frivolous" or "malicious" or if it "fails to state a claim upon which relief may be granted" or "seeks monetary relief against a defendant who is immune from such relief."
A claim is frivolous, when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law, furthermore, when it is "based on an indisputably meritless legal theory." Id . at 327. A claim lacks an arguable basis in fact, when it describes "fantastic or delusional scenarios." Id . at 327-28. A complaint fails to state a claim upon which relief may be granted, on the other hand, when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson , 355 U.S. 41, 45-46 (1957); Smith v. Winter , 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath , 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Plaintiff alleges violations of his constitutional rights. Section 1983 of Title 42 of the United States Code governs this case. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw , 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id .
III. Grooming
Plaintiffs complaint concerns the grooming policy at prison facilities in the TDCJ-ID. He contends that the policy violates his right to freedom of speech in that it restricts his right to express himself. He also mentions freedom of religion and equal protection, but does not specffically argue that the policy violates those constitutional clauses.
To the extent plaintiff challenges the grooming policy on the ground that it violates his free expression of religion as guaranteed under the Free Exercise Clause of the First Amendment, such claim is foreclosed by Fifth Circuit precedent. See Taylor v. Johnson , 257 F.3d 470, 472 (5th Cir. 2001); Green v. Polunsky , 229 F.3d 486, 490 (5th Cir. 2000). The Fifth Circuit has found the grooming policy of the TDCJ-ID reasonably related to legitimate penological interests — namely identification of inmates and the prevention of hiding contraband in long hair. Green , 229 F.3d at 490. In view of the preceding Fifth Circuit precedent, plaintiff's freedom-of-religion claim lacks an arguable basis in law and is thus frivolous.
Fifth Circuit precedent also forecloses plaintiffs claim that the grooming regulations violate his right to freedom of expression or speech. See Hill v. Estelle , 537 F.2d 214, 215 (5th Cir. 1976) (holding "that haircut and shaving regulations in a state prison d[o] not violate the inmates' free exercise of religion, freedom of expression, or due process of law"). The Fifth Circuit has found that such regulations promote "cleanliness and personal identification." Id . Plaintiff's freedom-of-speech claim lacks an arguable basis in law.
Plaintiffs equal-protection claim is likewise frivolous. To maintain such a claim, plaintiff "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, 472 (5th Cir. 2001). In this instance, plaintiff merely cites to three cases outside the Fifth Circuit for the proposition that, under the Fourteenth Amendment, "no State shall deny, to any person within its jurisdiction the Equal Protection of its laws." ( Am. Compl. ¶ 8.) He provides no factual basis for an equal-protection claim. He does not even specffically allege that he has been treated differently from similarly situated individuals. "Plaintiff's who assert claims under 42 U.S.C. § 1983 and other civil rights statutes . . . must plead the operative facts upon which their claim is based. Mere conclusory allegations are insufficient." Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). The Court should dismiss the equal-protection claim as conclusory.
For all of these reasons, the Court should dismiss plaintiffs civil complaint as frivolous. The Court, furthermore, should deny the request for temporary injunction. Fed.R.Civ.P.65(b) governs the granting of injunctions. A pre-requisite to obtaining an injunction is a showing that the action has a substantial likelihood of success on the merits. See Enrique Bernat F., S.A. v. Guadalajara, Inc ., 210 F.3d 439, 442 (5th Cir. 2000). For the reasons previously stated, plaintiff cannot show a substantial likelihood of success on the merits. Nor has he shown any substantial threat of irreparable injury, if the injunction is not issued.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiffs complaint as frivolous pursuant to 28 U.S.C. § 1915A(b). It is further recommended that the Court deny the request for temporary injunction.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc ).