Thompson v. Scott , 86 F. App'x 17 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
January 9, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40408
Summary Calendar
AARON THOMPSON,
Plaintiff-Appellant,
versus
WAYNE SCOTT; GARY JOHNSON, Warden;
BRENDA CHANEY; RICKY DOSS;
AMADO IGLESIAS; JOSHUA MILES;
TONIA PERRY; BRUCE V. PETERSON;
LANA PODSIM; ROGER WILLIS;
DAVID WORCESTER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-01-CV-1
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Aaron Thompson, Texas prisoner #872772, appeals the grant of
summary judgment for the defendants in his civil-rights suit under
*
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 R. 47.5 the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the First Amendment and the Religious Land Use and
Institutionalized Persons Act (RLUIPA) of 2000. Thompson’s suit
seeks only injunctive relief against named individual defendants
who are officials or employees of the Texas Department of Criminal
Justice (TDCJ).
Thompson first argues that TDCJ has not updated its Native
American religion policy. He claims that this is evidenced by
TDCJ’s requirement that inmates pass a written test on Native
American practices in order to participate in Native American
services. Because Thompson has alleged no injury from the testing
policy, he has no standing to raise this claim. See Rivera v.
Wyeth-Ayerst Labs., 283 F.3d 315, 318 (5th Cir. 2002).
Thompson next argues that the confiscation of his medicine bag
and dream catcher violated his rights. Several of the cases he
cites involve the Religious Freedom Restoration Act (RFRA), which
has been declared unconstitutional as applied to the states. See
City of Boerne v. Flores, 521 U.S. 507, 536 (1997). However, the
reasoning applied in these cases may still be considered because
RLUIPA, which has taken the place of RFRA, applies a very similar
test.
At the time Thompson’s religious items were confiscated, his
travel card did not designate him as a Native American. Therefore,
Officer Schroedter confiscated his medicine bag and dream catcher.
Thompson has made no showing of anything more than negligence on
the part of any defendant with respect to his claims concerning his
medicine bag and dream catcher. Negligence does not suffice to
support a section 1983 claim. See Simmons v. McElveen, 846 F.2d
337, 339 (5th Cir. 1988). Summary judgment denying injunctive
relief respecting the claims concerning these items was proper.
Moreover, Schroedter was never served with process nor filed an
appearance and hence was not a party to the case.
Thompson also argues that the federal RLUIPA and the Texas
Religious Freedom Act overruled the “penological interest” test set
forth in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), in favor
of the “least restrictive means” test. Yet, he argues, TDCJ
continues to restrict inmates, even those who are Native American,
from wearing long hair.
We have held that prison regulations requiring prisoners to
cut their hair may withstand First Amendment free exercise claims.
Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). Additionally,
even assuming that RLUIPA is constitutional, the RLUIPA standard is
nearly the same as that under RFRA, and we upheld TDCJ’s
regulations regarding hair length under the RFRA standard. See
Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 1997).
However, Thompson also argues that his hair length was in fact
within the larger set of prison regulations. According to
Thompson, the Inmate Handbook and AD Manual both stipulate that an
inmate’s hair must be off the ears and neck and kept in a neat,
trimmed manner, as his was. Despite this policy, he alleged that
defendant Assistant Warden Iglesias of the Stevenson Unit where
Thompson is confined requires all inmates there to maintain hair
that is no more than one-eighth of an inch long. In these
circumstances, it would appear that this Stevenson Unit policy may
be invalid unless it is shown that a compelling government interest
requires the shaved, one-eighth inch hair length as opposed to a
neat, off the ears and cuff haircut, because religious interests
are implicated. See 42 U.S.C. §2000cc-1(a) (2000). The
defendant’s motion for summary judgment does not address this claim
concerning the alleged special Stevenson Unit policy.
Because the district court did not address this claim, we
partially vacate the judgment and remand to the district court for
consideration of this issue.1 We note that certain defendants,
such as Scott and Johnson, are apparently not proper defendants for
this claim, because it appears that the one-eighth inch hair length
policy may be specific to the prison in which Thompson is
incarcerated.
Thompson also argues that removal to federal court prejudiced
him and was discriminatory. However, his complaint alleged that
the defendants had violated his federal First Amendment rights and
addressed federal case law. Thus, the removal was proper. See 28
U.S.C. § 1441(b).
Thompson argues that the defendants should have recognized his
right to assert the Texas Religious Freedom Act as a defense in
1
We do not preclude the defendants from challenging the constitutionality of RLUIPA if
the district court addresses that statute on remand.
disciplinary proceedings. A federal court does not have
jurisdiction to enjoin the defendants based on state law. See
Earles v. State Bd. of Certified Pub. Accountants of La., 139 F.3d
1033, 1039 (5th Cir. 1998). The district court properly refused to
rule on the underlying merits of Thompson’s request for injunctive
relief under the Texas Religious Freedom Act.
Thompson also argues that the district court exhibited bias
against him by assessing a $2.00 initial partial filing fee and a
balance of $103.00. The district court’s assessment was in accord
with the applicable statute, and consequently, Thompson has shown
no evidence of bias. See 28 U.S.C. § 1915(b). Moreover, under the
Prison Litigation Reform Act, if a prisoner brings a civil action
in forma pauperis, he must pay the full amount of the filing fee.
§ 804(a)(3).
The judgment of the district court is VACATED in so far as it
relates to Thompson’s RLUIPA claims concerning his hair length and
that portion of the case is REMANDED for further proceedings
consistent with this opinion; in all other respects the district
court’s judgment is AFFIRMED.
AFFIRMED in part; VACATED and REMANDED in part.