Brown v. Davis

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

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VERNARD BROWN, JR., §

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Plaintiff, §

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v. § Case No. 6:19-CV-332-JDK-JDL

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LORIE DAVIS, ET AL., §

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Defendants. §

ORDER ADOPTING REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Vernard Brown, Jr., an inmate proceeding pro se and in forma pauperis, filed this

civil rights lawsuit pursuant to 42 U.S.C. § 1983. The case was referred to United States Magistrate

Judge John D. Love pursuant to 28 U.S.C. § 636. On March 18, 2020, the Magistrate Judge issued

a Report and Recommendation (Docket No. 37), which recommends denying Plaintiff’s motion

for a temporary restraining order and preliminary injunction (Docket No. 36). Plaintiff timely filed

objections on April 3, 2020. Docket No. 40. As explained below, the Court OVERRULES the

objections and ADOPTS the Report and Recommendation of the Magistrate Judge.

I.

This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a

party objects within fourteen days of service of the Report and Recommendation. 28 U.S.C.

§ 636(b)(1). In conducting a de novo review, the Court examines the entire record and makes an

independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430

(5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1)

(extending the time to file objections from ten to fourteen days). The standard of review for all

other findings and conclusions is “clearly erroneous, abuse of discretion and contrary to law.”

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989).

II.

Plaintiff raises two objections to the Report and Recommendation. First, Plaintiff

objects to the Magistrate Judge’s finding that his amended complaint did not raise a RLUIPA

claim. Docket No. 40 at 1–2. Plaintiff states that his “amended complaint did not change the

nature of this action from the original complaint, but merely added another defendant.” Id. at 2.

The Court agrees with the Magistrate Judge.

On January 9, 2020, Plaintiff filed an amended complaint. Docket No. 25. Plaintiff added

a new defendant to his lawsuit, but he did not reiterate all the claims presented in his original

pleadings. As the Magistrate Judge previously noted in a prior order, an amended complaint

entirely supersedes and takes the place of an original complaint. Docket No. 22 at 1 (Clark v.

Tarrant Cty., Tex., 798 F.2d 736, 740 (5th Cir. 1986)). Plaintiff’s amended complaint thus

effectively extinguished the claims and facts alleged in his original pleadings. Plaintiff may have

intended only to add a new defendant to his lawsuit, but the Court is bound by the facts and claims

found in the four corners of Plaintiff’s amended complaint.

Plaintiff’s amended complaint raises at most only § 1983 claims against Defendants; it

does not state a colorable RLUIPA claim or even assert that he is bringing a RLUIPA claim.

Instead, Plaintiff’s amended complaint states that he is suing Defendants Davis, Barnett, and

Meador because of their supervisory roles within the prison system. Docket No. 25 at 5. He

alleges Defendant Sparkman denied Plaintiff a religious accommodation for his religious diet. Id.

And he asserts that Defendants Taylor, Sherman, Bisco, Fite, Gossett, Morrow, Brasher, Farris,

Thompson, Toon, Totty, and Raheem refused to feed him according to his religious diet, when

approved, and discriminated against him because of his religion. Id. at 5–6. Nowhere, however,

does Plaintiff cite RLUIPA or state that Defendants or their policies are “impos[ing] a substantial

burden” on his religious exercise. See 42 U.S.C. § 2000cc-1.

Compare this to Plaintiff’s original complaint, in which he specifically mentioned RLUIPA

in a grievance form attached to his complaint and therefore incorporated as part of his pleadings.

Docket No. 11, Ex. 2 at 1; United States ex. rel Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370,

375 (5th Cir. 2004) (“The exhibits attached to the complaint . . . are part of the complaint.”). The

original complaint also specifically alleged his religious practices and stated that Defendants were

imposing a substantial burden on his religious exercise. See Docket No. 1 at 6 (“There was not a

special johnnie for me in accord to my religious diet”); Id. at 7 (“[I] am still being brought mashed

potatoes and other foods that are against my religious beliefs to eat.”); Id. (“They often give me a

gluten free johnnie at breakfast, but I do not eat peanut butter or corn tortillas, yet this is what the

gluten free breakfast johnnies consist of.”). These allegations are entirely missing from the

amended complaint. The Court therefore overrules Plaintiff’s first objection.

2. Plaintiff’s second objection attempts to raise new arguments to “fully address” the

four elements necessary for a temporary restraining order and preliminary injunction because he

did not “effectively address” them in his motion. Docket No. 40 at 2–7. However, “[n]ew claims

and issues may not . . . be raised for the first time in objections to a Report and Recommendation.”

Andrews v. United States, 4:16-CV-846, 2019 WL 913873, at *1 (E.D. Tex. Feb. 22, 2019) (citing

United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992)). Further, the Court agrees with the

Magistrate Judge that Plaintiff failed in his original motion to carry his burden of persuasion as to

the four elements for a TRO or preliminary injunction. Docket No. 37 at 2 (citing Libertarian

Party of Tex. v. Fainter, 741 F.2d 728, 729 (5th Cir. 1984)). His motion fails to address all of the

requirements, let alone make a clear showing that he has satisfied them. As the Fifth Circuit has

repeatedly held, a preliminary injunction “is ‘an extraordinary remedy’ which should only be

granted if the party seeking the injunction has ‘clearly carried the burden of persuasion’ on all four

requirements.” Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,

335 F.3d 357, 363 (5th Cir. 2003) (quoting Miss. Power & Light Co., 760 F.2d at 621). The Court

thus overrules Plaintiff’s second objection.

III.

The Court liberally construes pleadings and arguments from pro se parties like Plaintiff.

See Chriceol v. Phillips, 169 F.3d 313, 315 (5th Cir. 1999). But Plaintiff’s amended complaint

narrowed his claims, and his motion for a temporary restraining order and preliminary injunction

simply did not provide the kind of showing necessary to be entitled to that extraordinary relief.

See, e.g., Ali v. Stephens, No. 9:09-CV-52, 2014 WL 495162, at *2–4 (E.D. Tex. Feb. 4, 2014)

(granting preliminary injunction where plaintiff showed a substantial likelihood of success on the

merits under Fifth Circuit precedent and a loss of religious freedom because of TDCJ’s no-beard

policy); Gonzalez v. Corrections Corp. of Am., 344 F. App’x 984, 986 (5th Cir. 2009) (vacating

and remanding district court order denying preliminary injunctive relief where plaintiff alleged

that he was “being denied religious meals, which resulted in his being denied all food on certain

occasions” and often was provided “nutritionally inadequate food”).

IV.

Having made a de novo review of the objections raised by Plaintiff to the Magistrate

Judge’s Report, the Court is of the opinion that the findings and conclusions of the Magistrate

Judge are correct and Plaintiff’s objections are without merit. The Court therefore adopts the

findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court.

Accordingly, it is hereby ORDERED that the Report and Recommendation (Docket No.

37) be ADOPTED. It is further

ORDERED that Plaintiff's motion for preliminary injunction and temporary restraining

order (Docket No. 36) is DENIED WITHOUT PREJUDICE.

So ORDERED and SIGNED this 20th day of April, 2020.

ety

UNITED STATES DISTRICT JUDGE

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