Shabazz v. Dixon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ABDUL HAKEEN JAHMAL NASEER

SHABAZZ, aka Owen D. Denson,

Jr.,

Plaintiff,

v. Case No: 2:17-cv-648-FtM-29NPM

JOHNNY MORALES, Correctional

Officer - Colonel and SCOTT

STEWART, Adm. Lieutenant,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendant Morales’ Motion

to Dismiss Plaintiff’s Amended Complaint (Doc. 88, “Morales Motion”)

filed February 6, 2019 and Defendant Stewart’s Motion to Dismiss

Plaintiff’s Amended Complaint (Doc. #96, “Stewart Motion”) filed

May 13, 2019. Plaintiff responded to the Morales Motion on March

4, 2019 (Doc. #90) and to the Stewart Motion on June 26, 2019 (Doc.

#99). The Court finds these matters ripe for review.

I. Background and Factual Allegations

Abdul Hakeeen Jahmal Naseer Shabazz, also known as Owen D.

Denson, is a Florida state inmate proceeding pro se on his Amended

Complaint filed under 42 U.S.C. § 1983 on May 7, 2018 (Doc. #78).

By way of background, on November 21, 2017, the Tampa Division

transferred this action to this Court after issuing a Temporary

Restraining Order (Doc. #17) which enjoined the then named

defendants1 from requiring Shabazz to shave his beard or impose

discipline on Shabazz for violating the DOC grooming policy. By

operation of law, the Temporary Restraining Order expired. See

March 12, 2018 Order of Court (Doc. #71). The Court sought

clarification from Plaintiff whether he was seeking to enjoin the

current DOC grooming policy set forth in the Florida Administrative

Code which, in pertinent part, provides:

All inmates shall elect either to be clean shaven or to

grow and maintain a half-inch beard. Such a beard shall

include all the hair that grows naturally on the face and

front of the neck, excluding eyebrows and eyelashes. . ..

Those male inmates who desire to remain clean shaven shall

be clipper shaved three times per week, and those inmates

who desire to grow a half-inch beard shall have their

beards trimmed three times per week with a clipper with

a half-inch guard.

Fla. Admin. Code, Ch. 33-602.101 Care of Inmates (4)-(5) (effective

7-20-2017). (Id., ¶ 2). On April 2, 2018, Plaintiff advised the

Court that he was challenging the current DOC grooming policy under

RLUIPA. (Doc. #74). At that time, Plaintiff’s original complaint

remained pending. (See generally docket). On March 7, 2018, the

Court granted Plaintiff’s motion requesting leave to file an amended

complaint (Doc. #68), and on April 17, 2018, granted Plaintiff an

extension of time to file his amended complaint (Doc. #77). As

1 Plaintiff’s original complaint named inter alia the

Secretary, Department of Corrections (“DOC”), the Warden and

Assistant Warden, all in their official capacity. See Doc. #1.

noted above, Plaintiff filed his Amended Complaint on May 7, 2018

(Doc. #78) which sues only Desoto Correctional Officers Scott

Stewart and Johnny Morales in their individual capacities. (Id. at

2). On May 10, 2018, the Court finding the Amended Complaint the

“operative pleading for this action” denied the various pending

motions to dismiss by the original named defendants as moot. (Doc.

#79, ¶¶ 1-2). The Court then directed service of the Amended

Complaint on Defendants Morales and Stewart. (Doc. #81).

The Amended Complaint alleges that Defendants Stewart and

Morales violated Shabazz’s “First and Fourteenth Amendment rights

to the free practice of religion” by forcing him to choose between

engaging in conduct that “seriously violates Plaintiff’s religious

beliefs” or violating the DOC grooming policy that permits inmates

to grow a one-half inch beard. Shabazz contends that the DOC

grooming policy violates the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et

seq. because it prevents him “clipping the mustache and letting the

beard flow.” (Doc. #78 at 6). The Court interprets this language

to mean that Shabazz asserts that his deeply held religious beliefs

require him to grow a beard of an indeterminate length. The Amended

Complaint in passing also alleges a First Amendment retaliation

claim against Defendant Stewart for an incident that took place on

April 26, 2018 (Id. at 4, 15). Shabazz seeks declaratory relief,

monetary damages, and temporary and permanent injunctive relief.

(Id.). The Court accepts these facts as true for this motion.

Defendant Morales

In the first week of April 2018, Defendant Morales summoned

Plaintiff to his office and advised him that the assistant attorney

general notified him the temporary restraining order that had been

entered had expired. Doc. #78 at 12. Morales told Plaintiff that

he needed to comply with the DOC grooming policy and shave his beard

to a one-half inch length or he would be placed in confinement.

Id. Morales directed his officers to make sure that Plaintiff

continued to keep his beard groomed pursuant to the DOC policy.

Id. In response to Plaintiff’s objection that he had litigation

pending, Morales replied “I don’t give a damn about your religion,

you are going to shave, or you will be placed in confinement. If

you want to grow your beard it can be no longer than ½ [inch].”

Id.

Defendant Stewart

On an unspecified date in July 2017,2 Defendant Stewart forced

Plaintiff to “be shaved.” Id. at 14. Plaintiff advised Defendant

Stewart that it was against his religion to shave his beard to the

one-half inch set forth by the DOC policy because his religion

2 The Amended Complaint contains only the year (2017) but

Plaintiff claims the incident occurred in July 2017 in his reply.

Compare Doc. #78 at 14 and Doc. #99 at 2.

“requires me to ‘clip’ the moustache and let the beard flow.” Id.

Stewart replied, “he did not give a damn about [Shabazz’s] religion

that policy calls for [Shabazz] to either shave or grow a ½ [inch]

beard.” Id. Stewart then ordered Sergeant Gill to escort

Plaintiff to the barbershop “to bald his face.” Id.

Defendant Stewart states that Plaintiff’s allegation that he

“bald his face” or “shave” means “trim his beard to one-half inch

length.” Doc. #96 at 3, n.1. In response, Plaintiff states he was

forced “to bald his face or be placed in disciplinary confinement

not to a one-half inch beard in July, 2017.” Doc. #99 at 2.

Plaintiff filed a grievance about the forced shaving incident

involving Stewart and it was finally denied on August 11, 2017.

Id. at 15. Plaintiff alleges “there is a reasonable probability

that Defendant Stewart took the denial of Plaintiff’s grievance as

an [sic] carte bla[n]che to continue to violate Plaintiff’s”

constitutional rights. Id. On April 26, 2018, Defendant Stewart

came into Shabazz’s living quarters and “flipped Plaintiff’s

mattress, tipped Plaintiff’s holy Quran and other legal documents

and left them scattered.” Id. Plaintiff admits that “no grievance

was filed” for the April 26, 2018 incident “because the issue is

already in litigation” in the instant case. Id.

II. Motion to Dismiss and Standard of Review

Defendants seek dismissal of the Complaint under Fed. R. Civ.

P. 12(b)(6) and qualified immunity. See generally Doc. #88 and

#96. In deciding a motion to dismiss, the Court must accept all

factual allegations in a complaint as true and take them in the

light most favorable to the plaintiff. Bell Atlantic v. Twombly,

550 U.S. 544, 556 (2007). In general, a complaint must give the

defendants fair notice of what the plaintiff’s claim is and the

grounds on which it rests to satisfy the pleading requirements of

Fed. R. Civ. P. 8. Id. at 555. In addition, the plaintiff’s claim

must be plausible on its face to overcome a Rule 12(b)(6) motion to

dismiss. Id. at 556. The court must be able to draw a reasonable

inference from the complaint that the defendant is liable for the

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

While the facts need not be detailed, they must “raise a reasonable

expectation that discovery will reveal evidence” in favor of the

plaintiff’s claim. Twombly, 550 U.S. at 556. Labels, conclusions,

and a formulaic recitation of the elements of a cause of action are

not enough to meet the plausibility standard. Id. at 555.

Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if the alleged

claim is not supported by enough factual allegations to raise a

reasonable expectation of relief. Id.

III. Analysis

A. Amended Complaint is Operative Pleading

The Court granted Plaintiff’s motion for leave to file an

amended complaint on March 7, 2018 (Doc. #68). The Amended

Complaint supersedes Plaintiff’s original complaint. Schreane v.

Middlebrooks, 522 F. App’x 845, 847-48 (11th Cir. 2013); see also

Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada,

674 F.2d 1365, 1370 n. 6 (11th Cir. 1982(“as a general rule, an

amended complaint supersedes and replaces the original complaint

unless the amendment specifically refers to or adopts the earlier

pleading.”). The Court’s Local Rules requires “any party permitted

to amend a pleading shall file the amended pleading in its entirety

with the amendment incorporated therein.” M.D. Fla. R. 4.01(a).

Plaintiff’s pro se status does not excuse him from the Court’s

procedural or local rules. Schreane, 522 F. App’x at 847 (citing

McNeil v. U.S., 508 U.S. 106, 113 (1993)). And on May 10, 2018, the

Court made clear that the Amended Complaint was “the operative

pleading” when it denied as moot the original named defendants’

motions to dismiss Plaintiff’s original complaint as moot. (See

Doc. #79). The Amended Complaint does not refer to or incorporate

by reference the original complaint and the Court made clear that

the Amended Complaint was the operative pleading for this action.

Consequently, the Court considers only the allegations and facts

set forth in the Amended Complaint in ruling on Defendants’

respective motions.

B. RLIUPA

Plaintiff contends DOC’s grooming policy violates RLIUPA and

he seeks a temporary and permanent injunction. RLIUPA “provide[s]

greater protection for religious exercise than is available under

the First Amendment.” Holt v. Hobbs, 135 S. Ct. 853, 859

(2015) (quotation marks and citations omitted). In Holt, the

Supreme Court held the Arkansas Department of Corrections’ grooming

policy violated RLIUPA insofar as it prevented the plaintiff from

growing a one-half inch beard in accordance with his religious

beliefs. Id. at 867. The Court concedes that the RLUIPA requires

a “focused inquiry.” Id. at 863. Applying the “individualized,

context specific inquiry” required by Holt in a RLIUPA claim would

require the DOC “to demonstrate that application of the grooming

policies to [Shabazz] furthers its compelling interests.” Smith v.

Owens, 848 F.3d 975, 981 (11th Cir. 2017). However, the issue of

whether the DOC grooming policy violates RLIUPA as applied to

Shabazz is not presently before the Court. RLUIPA does not

authorize individual-capacity suits. Hathcock v. Cohen, 287 F.

App'x 793, 798 n.6 (11th Cir. 2008)(“[I]ndividual capacity RLUIPA

claims are not cognizable.”). As a result, Plaintiff cannot proceed

on his RLIUPA claim against either Defendant Stewart or Morales

because he names both defendants in their individual capacity only.

Fatal to Plaintiff’s RLIUPA claim is the fact he did not name the

Secretary of the Florida Department of Corrections (or any official)

in his official capacity in his Amended Complaint. The Court

therefore need to not address Plaintiff’s RLUIPA claim at this

time.3

C. First Amendment—Free Exercise Clause

Defendants assert that they have a right to qualified immunity

from suit in their individual capacities in connection with

Plaintiff’s First Amendment claim. Defendants argue that they were

exercising their discretionary duty when they directed Plaintiff to

adhere to the DOC grooming policy and because the DOC grooming

policy is consistent with Holt, that they did not violate clearly

establish law.

Unlike a RLIUPA claim that applies a “least-restrictive means

standard,” a First Amendment challenge to a prison regulation or

policy “alleged to infringe constitutional rights are judged under

a ‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional

rights.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).

The Turner v. Safley4 standard of review applies to claim that an

inmate’s free exercise rights have been violated by a regulation or

policy. And, courts are required to give respect and deference to

3 To the extent that Plaintiff seeks to challenge the DOC’s

grooming policy as violating RLIUPA as applied to him and seeks

injunctive relief to be exempt from the same, the proper named

defendant would be the Secretary of the Florida Department of

Corrections in his official capacity. See Ex parte Young, 209 U.S.

123 (1908).

4 Turner v. Safley, 482 U.S. 78 (1987).

the judgment of prison administrators in considering a First

Amendment challenge. O’Lone, 482 U.S. at 350.

Qualified immunity is “an immunity from suit rather than a mere

defense to liability,” and it is thus “effectively lost if a case

is erroneously permitted to go to trial.” Pearson v. Callahan, 555

U.S. 223, 231 (2009)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)). The “driving force” behind the doctrine is the “desire to

ensure that insubstantial claims against government officials

[will] be resolved prior to discovery.” Id. (alteration in

original). Even conceding that Plaintiff has plausibly stated a

First Amendment claim stemming from the DOC grooming policy,5

qualified immunity applies to bar the claim if, based on the facts

presented, “a reasonable officer could have believed [his actions]

to be lawful, in light of clearly established law and the

information the ... officers possessed.” Anderson v. Creighton, 483

U.S. 635, 641 (1987). See also Reichle v. Howards, 566 U.S. 658,

664 (2012)(“[c]ourts may grant qualified immunity on the ground that

a purported right was not ‘clearly established’ by prior case law,

without resolving the often ore difficult question whether the

purported right exists at all.”(internal citations omitted)). “To

be clearly established, a right must be sufficiently clear ‘that

5 See Robbins v. Robertson, __ F. App’x __, 2019 WL 3302229

*5(11th Cir. July 23, 2019).

every reasonable official would have understood that what he is

doing violates that right.” Id. (citations omitted).

The Court finds Defendant Morales was acting in his

discretionary duty when he ordered Plaintiff to comply with the DOC

grooming policy and Defendant Stewart was acting in his

discretionary duty when he ordered Plaintiff “to bald his face or

be placed in disciplinary confinement.” See Roberts v. Spielman,

643 F.3d 899, 903 (11th Cir. 2011) (holding that discretionary

authority includes all actions taken by an official pursuant to his

duties and within his authority). The Court next turns to whether

Defendant Morales and Defendant Stewart believed their alleged

actions violated established law.

1. Defendant Morales

As set forth above, Plaintiff acknowledges that Defendant

Morales informed him that he had received a telephone call from the

Assistant State Attorney General who had advised that the temporary

restraining order had expired so Plaintiff would have to comply with

the DOC grooming policy. Defendant points out that the DOC grooming

policy which permits inmates to grow a half-inch beard comports with

Holt, which as noted earlier was decided under RLIUPA, an act passed

to provide “greater protection” for religious liberty cases than

provided by the First Amendment. Holt, 135 S. Ct. 859-60. Thus,

the Court finds it was reasonable for Defendant Morales to believe

his actions were lawful. Even if Plaintiff eventually successfully

challenges the DOC grooming policy as violating RLIUPA as applied

to him, Plaintiff still cannot show that the constitutional right

in question was “clearly established” at the time Defendants

directed he comply with the DOC grooming policy. For a right to be

“clearly established” for qualified immunity purposes, “existing

precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Defendant Morales applied the standard facially-neutral DOC

grooming policy that applies to all inmates to Shabazz only after

learning that the temporary restraining order had expired that

temporarily exempted him from the policy. No clearly established

law suggested that applying the current DOC policy requiring Shabazz

to groom his beard to one-half inch would violate his clearly

established First Amendment rights. And Plaintiff does not

identify any statute or decision of the United States Supreme Court,

the Eleventh Circuit or Florida Supreme Court opining that inmates

have a constitutional right to grow a beard of an indeterminate

length in accordance with his religious beliefs. The Court

therefore finds that the facts as alleged in the Amended Complaint

fail to show that Defendant Morale’s conduct violated Shabazz’s

constitutional rights or that any alleged constitutional right was

then “clearly established.” Reichle, 566 U.S. at 664-65. The Court

thus finds that Defendant Morales has a right to qualified immunity

claim on Plaintiff’s First Amendment free exercise claim.

2. Defendant Stewart

Plaintiff alleges that in July 2017 Defendant Stewart ordered

Sergeant Gill to escort Plaintiff to the barbershop “to bald his

face.” Doc. #78 at 14. Plaintiff in his response disputes that he

was given the option to comply with the DOC’s one-half inch beard

policy. Doc. #99 at 2. The Amended Complaint is otherwise devoid

of any facts surrounding Defendant Stewart’s order to have Plaintiff

“bald his face.” The Court is required to accept the allegations

in the Amended Complaint as true at this stage of the pleading

process.

Prior to Holt, the Eleventh Circuit Court of Appeals had

repeatedly found that grooming regulations in correctional

facilities were reasonably related to legitimate penological

interests. Indeed, DOC’s previous forced-shaving regulation (i.e.

no beard policy) was held by the Eleventh Circuit not to violate

the First Amendment or RLIUPA. See Muhammad v. Colon, 494 F. App’x

953, 956 (11th Cir. 2012); see also Shabazz v. Barnauskas, 790 F.2d

1536, 1538 (11th Cir. 1986) (per curiam) (holding that “the state’s

no beard rule serve[s] a legitimate penological interest in

preventing escape.”). The Court recognizes that the Amended

Complaint is devoid of the circumstances surrounding the alleged

order directing Shabazz to be bald faced. Nonetheless, Holt held

that a no beard policy substantially burdened the plaintiff’s

exercise of his religion on the facts presented. Holt, 135 S. Ct.

at 863. Further, current DOC policy permits Plaintiff to grow at

a minimum a one-half inch beard. Thus, the Court cannot at this

stage of the pleadings find that Defendant Stewart reasonably

believed his order directing Shabazz to be shaved bald was

reasonably lawful. Consequently, the Court will deny Defendant

Stewart qualified immunity on Plaintiff’s First Amendment Free

Exercise claim without prejudice.

D. Fourteenth Amendment—Equal Protection Clause

The Amended Complaint makes a passing reference to the

Fourteenth Amendment. See Doc. #78 at 3-4. The Amended Complaint

lacks any factual allegations that support or give rise to a

Fourteenth Amendment violation. The Equal Protection Clause under

the Fourteenth Amendment requires that persons similarly situated

be treated alike. Plyer v. Doe, 457 U.S. 202, 216 (1982). To state

such a claim, a plaintiff must allege and be able to demonstrate

that he has been treated differently from others who are similarly

situated, and that the unequal treatment stemmed from intentional

discrimination. Muhammad v. Sapp, 388 F. App’x 892, 899 (2010).

The Amended Complaint does not allege, yet alone describe, how

Shabazz is treated differently than any other inmate who wants to

grow a beard of an indeterminate length. Instead, the Amended

Complaint complains that all inmates were required to comply with

the DOC grooming policy. Thus, the Amended Complaint fails to state

claim for relief under the Fourteenth Amendment as to either

Defendant.

E. First Amendment-Retaliation Against Defendant Stewart

The PLRA compels proper exhaustion of available administrative

remedies before a prisoner can seek relief in federal court on a §

1983 complaint. Specifically, 42 U.S.C. § 1997e(a) states that

“[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted. The Eleventh Circuit further determined that “the

question of exhaustion under the PLRA [is] a ‘threshold matter’ that

[federal courts must] address before considering the merits of the

case. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).

The “failure to exhaust is an affirmative defense under the PLRA,”

however, and “inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S.

199, 216 (2007). However, a complaint may be dismissed for failure

to exhaust if the lack of exhaustion appears on the face of the

complaint. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.2011).

Chandler, 379 F.3d at 1286. Because exhaustion is mandated by the

statute, [this court has] no discretion to waive this requirement.

Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998).” Myles

v. Miami-Dade Cty. Corr. and Rehab. Dep't, 476 F. App’x 364, 366

(11th Cir. 2012).

For these reasons, the Court will “resolve this issue first”

as it relates to Plaintiff’s retaliation claim against Defendant

Stewart. Plaintiff admits on the face of his Amended Complaint

that he did not file a grievance concerning the incident that took

place on April 26, 2018. Plaintiff appears to suggest he is exempt

from filing a grievance because he had already begun the instant

litigation. The Prison Litigation Reform Act expressly requires

exhaustion “prior to institution a § 1983 a suit.” Porter v.

Nussle, 534 U.S. 516, 524 (2002); see also Johnson v. Meadow, 418

F.3d 1152, 1156 (11th Cir. 2005). Because Plaintiff admits that he

filed “no grievance” over the April 26, 2018 incident, the Court is

mandated to dismiss this claim.

Even if the Court considered Plaintiff’s retaliation claim,

the Court finds it subject to dismissal. Admittedly, the First

Amendment forbids prison officials from retaliating against

prisoners for the exercise of their free speech rights. Farrow v.

West, 320 F.3d 1235, 1248 (2003). To prevail on a retaliation

claim, the inmate must be able to establish that “(1) his speech

was constitutionally protected; (2) the inmate suffered adverse

action such that the [official's] allegedly retaliatory conduct

would likely deter a person of ordinary firmness from engaging in

such speech; and (3) there is a causal relationship between the

retaliatory action [the disciplinary punishment] and the protected

speech [the grievance].” O’Bryant v. Finch, 637 F.3d 1207, 1212

(11th Cir. 2011).

In the alternative, even assuming Defendant Stewart learned

that Plaintiff had filed a grievance against him, (not alleged) an

eight-month period elapsed between the date when the grievance was

finally denied and the date of the alleged incident. The Court

finds this lapse in time too remote to be attributable to a

retaliatory motive. See Godwin v. Corizon Health, 732 F. App’x

805, 809 (11th Cir. 2018) (“[W]hile close temporal proximity of a

protected activity and a subsequent adverse action may be probative

of discriminatory intent, a three-month interval between the two is

insufficient to establish a causal connection, as a matter of law.”)

(citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363-64

(11th Cir. 2007)). Therefore, the Court finds Plaintiff has failed

to articulate a causal connection between Plaintiff’s filing of the

grievance and Defendant Stewart’s alleged adverse action.

Accordingly, it is hereby

ORDERED:

1. Defendant Morales’ Motion to Dismiss Plaintiff’s Amended

Complaint (Doc. #88) is GRANTED and Plaintiff’s Amended Complaint

is DISMISSED with prejudice against Defendant Morales. The Clerk

shall enter judgment in favor of Defendant Morales and correct the

caption to reflect the dismissal of Defendant Morales.

2. Defendant Stewart’s Motion to Dismiss Plaintiff’s Amended

Complaint (Doc. #96) is GRANTED in part and DENIED in part.

Plaintiff’s Fourteenth Amendment Equal Protection claim is

DISMISSED with prejudice and Plaintiff's First Amendment

retaliation claim against Defendant Stewart is DISMISSED without

prejudice due to lack of exhaustion. Plaintiff’s First Amendment

Free Exercise claim remains pending against Defendant Stewart.

3. Within twenty (20) days from the date of this Opinion and

Order, Defendant Stewart shall file an answer to Plaintiff’s First

Amendment Free Exercise claim as contained in his Amended Complaint.

4. The Court makes no ruling on Plaintiff’s RLIUPA claim

because the claim was not preserved in Plaintiff’s Amended

Complaint. Plaintiff is permitted to prosecute a RLUIPA claim to

obtain the injunctive relief he seeks but he is required to

prosecute the claim in a new action. The Clerk shall provide

Plaintiff with a blank civil rights complaint form with this Opinion

and Order for Plaintiff's use, if appropriate.

DONE and ORDERED at Fort Myers, Florida, this 27th day of

September, 2019.

I if ae FOL

□□□ E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

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