Opinion
CIVIL ACTION NO. 1:01-CV-067-BG
April 4, 2002
ORDER DISMISSING CASE WITH PREJUDICE
Plaintiff Kieron Derek Penigar ("Penigar"), proceeding pro se and in forma pauperis, has filed a claim pursuant to 42 U.S.C. § 1983. Penigar brings this suit against Defendants Chaplain Patrick Klein, Chaplain Glenn Mitchell, and Captain Richard Avant. Penigar alleges that Defendants' actions failed to respect his freedom of religion, violating his First Amendment rights.
Penigar has consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c). He was ordered to answer a questionnaire prepared by the court and returned his answers on September 5, 2001. After reviewing Penigar's complaint, the answers provided to the court's questionnaire, and the authenticated records, the court is of the opinion that the case should be DISMISSED with prejudice.
I. STATEMENT OF THE CASE
Penigar states that he arrived on the French Robertson Unit of the Texas Department of Criminal Justice ("TDCJ") in May 1996 and was put in administrative segregation in January 1997. Penigar states that he took the vow of Nazarite in October 1998, and this vow requires him to let his hair grow. He claims that while in administrative segregation at the French Robertson Unit he contacted Chaplain Klein and Chaplain Mitchell and asked for their help. He claims these individuals were not helpful to him and this caused him to continue to be written up for refusing to groom. Penigar claims that he was up for re-classification in May 2000, but was denied release to general population because of disciplinary infractions for failing to follow grooming requirements. He states that he is in a state of frustration and depression over his hair.
In his answers to the court's questionnaire Penigar stated that he was denied a level promotion in May 2000, even though he had received no disciplinary infractions for five months. He stated that in a state of duress, frustration, and depression he broke his vow to cut his hair and was promoted to Level I Administrative Segregation a week later.
II. LEGAL STANDARD
Under 28 U.S.C. § 1915(e), the court is required to dismiss the complaint or any portion of the complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or in fact. Neitzke, 490 U.S. at 319, 325; Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). An evidentiary hearing may be used to assist the court in determining whether the cases should be dismissed. Spears, 766 F.2d at 179. Dismissals can be based on authenticated prison records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
Section 1915(e) of Title 28, United States Code, accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 21-32 (1992); Neitzke, 490 U.S. at 327; Schulter v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
III. DISCUSSION
Penigar's § 1983 claim charges a violation of his First Amendment right to free exercise of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The United States Supreme Court has held that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction made necessary by the considerations underlying our penal system." O'Lone v. Estate of Shabass, 482 U.S. 342, 348 (1987). The Fifth Circuit Court of Appeals has specifically held that grooming policies, including those requiring inmates to shave and keep short hair against their religious beliefs, are "reasonably related to legitimate penological interests." Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000). Therefore, Penigar's claim that the French Robertson Unit grooming policy violates his First Amendment right to free exercise of religion should be dismissed.
Additionally, Penigar's claim for damages based on mental anguish and emotional and spiritual distress must be dismissed for failure to allege any physical injury. Pursuant to 42 U.S.C. § 1997e(e) "no federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury."
Penigar also contends that the grooming policy violates the Equal Protection Clause of the Fourteenth Amendment because he believes other facilities such as the Terrell Unit allow inmates to grow their hair. In order for a plaintiff to successfully allege an equal protection claim, there must be similarly situated groups who are treated differently. See City of Cleburne, Tex. v. Cleburne Living Ctr. Inc., 473 U.S. 432 (1989). This is not the case here.
In response to Penigar's grievances concerning his disagreement with grooming policy, officials responded that TDCJ policy (not French Robertson Unit policy) does not recognize religious grooming practices due to security reasons. The Fifth Circuit Court of Appeals commented in Green that the "TDCJ grooming policy" is " obviously reasonably related to legitimate penological interests." 229 F.3d at 490 (emphasis added). Penigar's belief that other units allow exceptions to this policy is indeed unfounded, and he presents no similarly situated group that is treated differently on the facts alleged here. Additionally, the Supreme Court of the United States has cautioned courts that "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.Whitley v. Albers, 475 U.S. 312, 321-22 (1986). In light of the need for internal security, the failure to allege animus on the part of officials, and the Fifth Circuit Court of Appeals upholding of such grooming restrictions as reasonably related to penological interests, this claim should be dismissed with prejudice.
IV. CONCLUSION
It is, therefore,
ORDERED that this claim be DISMISSED with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997) ( citing In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)). It is further
ORDERED that all pending motions not previously considered by the court are DENIED as moot.
This is a consent case assigned to the undersigned United States Magistrate pursuant to 28 U.S.C. § 636(c) with authority to enter Judgment. Any appeal shall be to the Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636(c)(3).
A copy of this Order shall be mailed to all parties appearing pro se and to the Office of General Counsel, TDCJ-ID, Litigation Support, P.O. Box 13084, Austin, Texas 79711 and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629 by first class mail.
Judgment shall be entered accordingly.
SO ORDERED.