Aiello v. Wainewright

□ Southern District of Texas

ENTERED

March 31, 2023

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

DANIEL AIELLO, §

§

Plaintiff, §

V. § CIVIL ACTION NO, 2:22-CV-00018

§

BRIAN COLLIER, ef al., §

§

Defendants. §

ORDER ADOPTING AS MODIFIED MEMORANDUM & RECOMMENDATION

Before the Court is Magistrate Judge Julie Hampton’s Memorandum and Recommendation

(““M&R”). (D.E. 36). The M&R recommends that the Court grant in part and deny in part

Defendants’ motion to dismiss. (D.E. 36, p. 23). Specifically, the M&R recommends that the

Court:

e Grant Defendants’ motion to dismiss to the extent that Plaintiffs equal protection

claims should be dismissed with prejudice against Defendants in their official

capacities; and

e Deny Defendants’ motion to dismiss to the extent that Defendants seek

dismissal of Plaintiff s: (1) claims seeking prospective injunctive relief as either

barred by the Eleventh Amendment or outside the scope of the Prison Litigation

Reform Act (““PLRA”); (2) Religious Land Use and Institutionalized Persons

Act (“RLUIPA”) claim against Defendants in their official capacities; and (3)

First Amendment claim against Defendants in their official capacities.

Id. The M&R further recommends that the Court deny Plaintiff's motion for summary judgment

without prejudice. Jd, at 23. Defendants and Plaintiff timely filed objections to the M&R. (D.E.

37; D.E. 38). Plaintiff filed a response to Defendants’ objections. (D.E. 41).

Having reviewed the proposed findings and conclusions of the M&R, the record, the

applicable law, and having made a de novo review of the portions of the M&R to which the parties’

objections were directed, 28 U.S.C. § 636(b)(1)(C), the Court SUSTAINS in part and

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OVERRULES in part Defendants’ objections, (D.E. 37); OVERRULES Plaintiff's objection,

(D.E. 38); and ADOPTS as modified the findings and conclusions of the M&R, (D.E. 36). As

such, the Court ORDERS the following:

e The Court GRANTS in part and DENIES in part Defendants’ motion to dismiss.

(D.E. 13).

e The Court DENIES without prejudice Plaintiff's motion for summary judgment.

(D.E. 27).

e The Court DISMISSES without prejudice: (1) Plaintiffs claims against Defendant

Texas Department of Criminal Justice (“TDCJ”) for lack of subject matter jurisdiction;

and (2) Plaintiff's RLUIPA and First Amendment claims against Defendants Patrick

O’Daniel and Bryan Collier in their official capacities to the extent Plaintiff seeks

injunctive relief. (D.E. 1).

e The Court DISMISSES with prejudice Plaintiff's Equal Protection claims against

Defendants Patrick O’Daniel and Bryan Collier in their official capacities. (D.E. 1).

e The Court RETAINS Plaintiff's RLUIPA and First Amendment claims against

Defendants Patrick O’Daniel and Bryan Collier in their official capacities to the extent

Plaintiff seeks declaratory relief. (D.E. 1).

e The Clerk of Court is ORDERED to TERMINATE the following parties as

defendants in this case: (1) TDCJ; and (2) “the eight unnamed board member[s]” of

TDCI. See (D.E. 1, p. 1, 6).

I. Legal Standard

When a party objects to the findings and recommendations of a magistrate judge, the

district judge “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). As

to any portion to which no objection is filed, a district court reviews for clearly erroneous factual

findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per

curiam).

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II. Background

A. Procedural History

Plaintiff, an inmate proceeding pro se and in forma pauperis, brings this prisoner civil

rights suit against Defendants Brian Collier and Patrick O’ Daniel in their official capacities and

TDCJ. See (D.E. 1, p. 3, 8).! Plaintiff asserts violations of his First and Fourteenth Amendment

rights pursuant to 42 U.S.C. § 1983 and violations of RLUIPA, 42 U.S.C. §§ 2000cc—2000cc-5.

(D.E. 1, p. 6). According to Plaintiff, TDCJ policy mandates that Plaintiff work without

compensation, which inhibits him from tithing one-tenth of his labor as his Christian faith requires,

“thereby placing a ‘substantial burden’ on a religious exercise and Plaintiff].]” Jd. at 8-10. Plaintiff

also asserts that his Equal Protection rights are being violated because other prisons and jails pay

offenders, but TDCJ only pays offenders through its Prison Industries Enforcement Certification

Program. Jd. at 14. Plaintiff seeks a “[d]Jeclaration that Defendants have arbitrarily and

capriciously” violated Plaintiff's First Amendment, Fourteenth Amendment, and RLUIPA rights;

“Tp]lermanent injunctive relief awarding Plaintiff compensation or a value for labor performed,

thereby endorsing Plaintiff[’s] right to [exercise] the religious belief of tithing”; and “[a|ny

additional relief the Court deems just, proper[,] and equitable.” Jd. at 16-17.

Defendants filed a motion to dismiss Plaintiff’s claims pursuant to Federal Rules of Civil

! Plaintiff originally sued Dale Wainwright, chairman of TDCJ, and “eight unnamed board member(s]” of

TDCJ; Brian Collier; Miguel Martinez; and TDCJ. (D.E. 1, p. 3). Subsequently, Patrick O’Daniel □□□□

substituted for Wainwright, (D.E. 12; D.E. 17; D.E. 18), and Plaintiff voluntarily terminated his suit against

Martinez, (D.E. 32; D.E. 33). While not explicitly stated, Plaintiff removed his claims against the unnamed

TDCJ board members when he moved to amend the defendants in his case. See (D.E. 17, p. 1) (moving to

amend the defendants in his case and listing “Patrick O’ Daniel, Br[iJan Collier, Miguel Martinez, and the

T.D.C.J.” as defendants). This motion was granted, (D.E. 18), and the instant M&R did not include the

unnamed board members in listing the defendants in this matter, see (D.E. 36, p. 2-3). Neither party

objected to the M&R’s list of defendants. See (D.E. 37; D.E. 38). For clarity of the record, Plaintiff's claims

against the “eight unnamed board member[s]” of TDCJ were dismissed when Plaintiff amended the

defendants in his case. See (D.E. 1, p. 3; D.E. 18).

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Procedure 12(b)(1) and 12(b)(6). (D.E. 13). The motion argues that Plaintiff's claims are barred

by Defendants’ Eleventh Amendment immunity; the Ex parte Young, 209 U.S. 123, 159-60 (1908)

exception to Eleventh Amendment immunity does not apply; Plaintiffs requested relief is

impermissible under the PLRA; and Plaintiff failed to state a valid RLUIPA or constitutional

claim. (D.E. 13, p. 3-14; D.E. 37, p. 2). Plaintiff, in turn, filed a motion for summary judgment.

(D.E. 27). Subsequently, the M&R underlying this order was issued. (D.E. 36).

B. The M&R

The M&R first recommends denying Plaintiff's motion for summary judgment without

prejudice to allow Plaintiff to renew his motion after a scheduling order is issued and discovery is

conducted. Id. at 3-4. The M&R next recommends denying Defendants’ motion to dismiss to the

extent Defendants argue that Plaintiff’s claims are barred by the Eleventh Amendment. Jd. at 11—

12. According to the M&R, Plaintiff's claims could fall under the Ex parte Young exception

because Plaintiff seeks declaratory relief, and when “liberally construing” Plaintiff's request for

injunctive relief, it targets a TDCI “policy change” that would “modify and change TDCJ policies

which control his use of time and require him to work while incarcerated without any

compensation for his labor.” Jd. at 11. The M&R also finds that the PLRA’s mandate that relief be

narrowly drawn does not bar Plaintiff's claims at this stage in the proceeding, id. at 12-13

(referencing 18 U.S.C. § 3626(a)(1)(A)), and that Plaintiff has plausibly alleged a RLUIPA claim,

id. at 19. Further, the M&R finds that Plaintiff has sufficiently alleged a First Amendment claim.

Id. at 20-21. Lastly, the M&R recommends granting Defendants’ motion to dismiss with respect

to Plaintiff's Equal Protection claim because Plaintiff failed to allege that any named defendant

acted with discriminatory purpose in enacting or implementing the policy excluding the majority

of inmates from compensation for their labor. Jd. at 22-23.

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C. Defendants’ Objections

Defendants timely objected to the M&R. (D.E. 37). Defendants’ objections can be

summarized as follows: (1) The M&R erred in concluding that the Ex parte Young exception

applies in this case because the plain language of Plaintiff's complaint seeks payment rather than

a policy change, the effect on the state treasury would be direct rather than ancillary or incidental

to any equitable relief requested, and the Ex parte Young exception cannot be invoked against

TDCJ, id. at 4~7; (2) regardless of whether Plaintiff seeks payment or a policy change, the Court

cannot grant Plaintiff's requested relief because doing so would violate the PLRA, the First

Amendment’s Establishment Clause, or both, id. at 8-9; (3) the M&R erred in concluding that

Plaintiff stated a RLUIPA claim, id. at 9-11; and (4) the M&R erred in concluding that Plaintiff

stated a First Amendment claim, id. at 11-12. Plaintiff timely responded to Defendants’ objections.

(D.E. 41); see also Fep. R. Crv. P. 72(b)(2) (permitting response to another party’s M&R

objections).

D. Plaintiff’?s Objection

Plaintiff timely objected to the M&R’s recommendation that his Equal Protection claim be

dismissed. (D.E. 38). Plaintiffs objection largely reiterates his Equal Protection claim, arguing

that Defendants have failed to show a “rational reason” for denying Plaintiff compensation for

mandated labor when other prisoners “are paid for work they are compelled to perform.” Jd. at 2.

Plaintiff did not object to the M&R’s recommendation that his motion for summary judgment be

denied without prejudice. See id.; (D.E. 36, p. 3-4)?

2 Neither party objected to the M&R’s recommendation that Plaintiffs summary judgment motion, (D.E.

27), be denied, see (D.E. 37; D.E. 38), and the Court finds that the M&R’s recommendation that the Court

deny without prejudice the summary judgment motion is not clear error, see (D.E. 36, p. 3-4); Wilson, 864

F.2d at 1221. Accordingly, Plaintiff's motion for summary judgment is DENIED without prejudice. (D.E.

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IIL Analysis

A. Defendants’ Objections Are Sustained in Part and Overruled in Part

i, Defendants’ First Objection

Defendants first object to the M&R’s determination that the Eleventh Amendment does

not bar Plaintiff's suit at this time. See (D.E. 37, p. 4-7). Specifically, Defendants’ first objection

argues that: (1) Plaintiff's “complaint seeks payment, not a policy change” making the Ex parte

Young exception inapplicable to Plaintiff's claims; (2) granting Plaintiff's request for injunctive

relief would have a “direct, not ancillary or incidental[,]” “effect on state coffers”; and (3) “TDCJ

is an improper Ex parte Young defendant.” Jd.

a. Applicable Sovereign Immunity Law

When the Eleventh Amendment sovereign immunity bar applies, it implicates the Court’s

subject matter jurisdiction. See Warnock v. Pecos Cnty., 88 F.3d 341, 343 (Sth Cir. 1996). Federal

courts have limited jurisdiction and must “presume[] that a cause lies outside this limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “[T]he burden

of establishing the contrary rests upon the party asserting jurisdiction.” Jd “The Eleventh

Amendment bars an individual from suing a state in federal court unless the state consents to suit

or Congress has clearly and validly abrogated the state’s sovereign immunity.” Perez v. Region 20

Educ. Sery. Ctr., 307 F.3d 318, 326 (Sth Cir. 2002). Sovereign immunity extends to “state officials

sued in their official capacity for monetary relief],]” Swindle v. Livingston Par. Sch, Bd., 655 F.3d

386, 399 (Sth Cir. 2011), and bars a suit against a state or state entity regardless of the relief sought,

see Briggs v. Mississippi, 331 F.3d 499, 503 (Sth Cir. 2003) (citing Voisin’s Oyster House, Inc. v.

Guidry, 799 F.2d 183, 186 (Sth Cir. 1986)).

The Ex parte Young exception to sovereign immunity “allows private parties to bring ‘suits

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for injunctive or declaratory relief against individual state officials acting in violation of federal

law.” City of Austin v. Paxton, 943 F.3d 993, 997 (Sth Cir. 2019) (quoting Raj v. La. State Univ.,

741 F.3d 322, 328 (Sth Cir. 2013)). “There are three basic elements of an Ex parte Young lawsuit.

The suit must: (1) be brought against state officers who are acting in their official capacities; (2)

seek prospective relief to redress ongoing conduct; and (3) allege a violation of federal, not state,

law.” Williams ex rel. JE. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020) (citing NiGen Biotech,

L.L.C. v. Paxton, 804 F.3d 389, 394 (Sth Cir. 2015)); see also Verizon Mad. Inc. v. Public Serv.

Comm’n of Md., 535 U.S. 635, 646 (2002) (explaining that a court can determine whether a claim

fits into the Ex parte Young exception by conducting a “straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” (citation and internal quotations omitted)). Stated differently, for the Ex parte Young

exception to apply, the plaintiff must seek “equitable relief—telief that is ‘declaratory or injunctive

in nature and prospective in effect.”’ Reeves, 954 F.3d at 736 (quoting Aguilar v. Tex. Dep’t of

Crim. Just., 160 F.3d 1052, 1054 (Sth Cir. 1998)).

“IR ]egardless of the nature of the relief [sought], ‘a suit by private parties seeking to impose

a liability which must be paid from public funds in the state treasury is barred by’ state sovereign

immunity.” Fontenot v. McCraw, 777 F.3d 741, 753 (Sth Cir. 2015) (quoting Edelman v. Jordan,

415 U.S. 651, 663 (1974)). Nonetheless, some courts have permitted this type of equitable relief

suit under the Ex parte Young exception if the liability sought imposes only an “ancillary effect’

on the state treasury[,]” meaning the effect is only “‘incidental to the declaratory or injunctive

relief” that Ex parte Young permits. Stollings v. Tex. Tech Univ., No. 5:20-CV-250, 2022 WL

824842, at *5 (N.D. Tex. Mar. 18, 2022) (Hendrix, J.) (quoting Fontenot, 777 F.3d at 753). Seeking

“ancillary relief? alone, however, is not permissible under the Ex parte Young exception. Fontenot,

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777 F.3d at 753. The payment from the state treasury must “accompany and further some other—

and otherwise appropriate—telief.” Id.

Appropriate ancillary relief in this context does not include compensating a plaintiff for a

defendant’s past violation of law. See id.; Edelman, 415 U.S. at 668 (noting relief is inappropriate

under Ex parte Young when it is practically indistinguishable from a damages award against the

state and will “be paid from state funds,” rather than by individual state official defendants).

However, appropriate ancillary relief does include incidental payment from the state treasury to

the extent necessary to comply with a court’s decrees that are prospective in nature and seek to

remedy an ongoing violation of federal law. See Edelman, 415 U.S. at 667-68; Fontenot, 777 F.3d

at 754—55.

b. Applicable Law in Determining What Relief a Plaintiff Seeks

In determining what relief a plaintiff seeks, courts look to the substance of a pleading—not

its label. See, e.g., Armstrong v. Capshaw, Goss & Bowers, LLP, 404 F.3d 933, 936 (Sth Cir. 2005).

In doing so, courts are required to construe a pro se plaintiff's pleadings liberally, Estelle v.

Gamble, 429 U.S. 97, 107 (1976), but the court may not act as a pro se plaintiff's advocate, see

Republic Techs. (NA), LLC v. Gross, No. 1:20-CV-00390, 2022 WL 18232137, at *10 (E.D. Tex.

Dec. 8, 2022) (Hawthorn, Mag. J.), report and recommendation adopted by No. 1:20-CV-00390,

2023 WL 160221, at *1 (E.D. Tex. Jan. 11, 2023) (Crone, J.); Alonso v. Agrigenetics, No. Civ.A.B-

04-005, 2004 WL 2668801, at *1 (S.D. Tex. Nov. 15, 2004) (Tagle, J.). District courts “cannot

create a cause of action from pleadings where none exists.” United States v. Addington, No. 91-

1394, 1993 U.S. App. LEXIS 40452, at *10 (Sth Cir. Jan. 26, 1993) (citing Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991)).

c. Plaintiffs Claims Against TDCJ Are Barred by Sovereign Immunity

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In this case, the Eleventh Amendment and the Ex parte Young exception are implicated

because Plaintiff brings claims pursuant to RLUIPA and 42 U.S.C. § 1983 against a state entity

and state officials in their official capacities. See (D.E. 1, p. 6-7); Martinez v. Tex. Dep’t of Crim.

Just., No. 3:21-cv-258, 2022 WL 16950279, at *3 (S.D. Tex. Nov. 15, 2022) (Brown, J.)

(designated for publication) (“TDCI is a state agency.”). Neither the State of Texas nor Congress

has waived sovereign immunity or consented to suit under these statutes. See Sossamon vy. Texas,

563 U.S. 277, 285-91 (2011) (finding that RLUIPA did not waive sovereign immunity); Copeland

Livingston, 464 F. App’x 326, 330 (Sth Cir. 2012) (“Texas and its state employees in their

official capacities enjoy sovereign immunity from RLUIPA damages actions.”); Carver v. Atwood,

18 F.4th 494, 498 (5th Cir, 2021) (Section 1983 claims “for money damages . . . are indeed barred

by sovereign immunity.”); Ross v. Tex. Educ, Agency, 409 F. App’x 765, 768 (Sth Cir. 2011)

(Sovereign immunity “applies to a party’s § 1983 claims against a state or its agents.”).

Accordingly, for Plaintiff's case to proceed, the Ex parte Young exception must apply.

As Defendants correctly argue, “TDCJ is an improper Ex parte Young defendant.” (D.E.

37, p. 7); see, e.g., Paxton, 943 F.3d at 1004 (holding the Ex parte Young exception does not apply

to state agencies, regardless of the relief sought). TDCJ has not consented to suit nor has Congress

abrogated the state’s immunity in a manner allowing Plaintiff to bring claims against TDCJ in this

context. Accordingly, TDCJ has Eleventh Amendment sovereign immunity from Plaintiff's suit in

its entirety, and Defendants’ objection that Plaintiff's claims against TDCJ are barred by the

Eleventh Amendment is sustained. See (D.E. 37, p. 7-8).

d. Plaintiff's Request for “Injunctive Relief’ Fails

Further, Ex parte Young does not apply to Plaintiff's request for “permanent injunctive

relief[,]” (D.E. 1, p. 17), because Plaintiff does not actually seek injunctive relief, and even if he

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did, the relief Plaintiff requests has more than an ancillary effect on the state treasury. Plaintiff has

not rebutted the presumption that his request for so-called injunctive relief lies outside of the

Court’s limited jurisdiction. See Kokkonen, 511 U.S. at 377.

Plaintiff states he seeks “permanent injunctive relief awarding Plaintiff compensation or a

value for labor performed[.]” (D.E. 1, p. 17). However, the complaint’s substance and other

language indicate that this is actually a request for monetary damages, which must be paid from

the state treasury and cannot be paid by any individual state official. See id. at 6-7, 17; Fontenot,

777 F.3d at 753; Edelman, 415 U.S. at 668; see also Council 31 of the Am. Fed. of State, Cnty, &

Mun. Emp. v. Quinn, 680 F.3d 875, 883 (7th Cir. 2012) (noting that courts should look “not at the

type of relief sought, but the effect the relief would have on the State if it were afforded to the

plaintiff’ and that “merely labeling the relief sought as injunctive does not defeat the eleventh

amendment bar to suits that seek relief from the state treasury” (citation and internal quotations

omitted)). Notwithstanding its obligation to liberally construe pro se complaints, the Court is

constrained by its “legitimate advisory role” and cannot find that Plaintiff seeks a policy change

or other form of injunctive relief when nothing beyond his conclusory labels suggests so, and the

substance of his complaint suggests the opposite. See Gross, 2022 WL 18232137, at *10.

Plaintiff's request for “permanent injunctive relief’ seeks compensation for his labor so

that he may tithe. (D.E. 1, p. 1, 17). Despite using the phrase “injunctive relief[,]” Plaintiffs

complaint does not indicate, even liberally construed, that he requests a policy change or other

form of injunctive relief that would result in his receiving compensation. Rather, Plaintiff's

complaint indicates that he seeks payment to support his religious beliefs. See id, at 17. The effect

of granting this relief would be paying Plaintiff from the state treasury for work performed while

in prison. See id. (seeking “compensation or a value for labor performed”). This type of

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compensatory relief does not fall under the Ex parte Young exception, nor is it appropriate ancillary

relief? As such, the Court finds that it lacks subject matter jurisdiction over Plaintiffs request for

injunctive relief. See (D.E. 1, p. 17). The Court sustains Defendant’s first objection asserting that

the Ex parte Young exception does not apply to Plaintiffs request for “injunctive relief.” See (D.E.

37, p. 4-8).

e. Sovereign Immunity Does Not Bar Plaintiff's Request for Declaratory

Relief

In addition to “permanent injunctive relieff,]” (D.E. 1, p. 17), which is actually a request

for monetary damages, supra section III.A.i.d, Plaintiff seeks a “[d]eclaration that Defendants have

[arbitrarily] and capriciously by malfeasance of official duty under color of law did by fact violate

Plaintiff[’ ]s rights secured in [RLUIPA] and the U.S. Constitution Ist and 14th Amendments,” id.

at 16. Neither Defendants’ objections nor their motion to dismiss address this portion of Plaintiffs

requested relief. See (D.E. 13; D.E. 37). As discussed above, see supra section IJI.A.i.a, the Ex

parte Young exception permits private parties to bring suits for declaratory relief against individual

state officials in their official capacities if the party is seeking prospective relief addressing

ongoing conduct that violates federal law. See Reeves, 954 F.3d at 736. Apart from Plaintiffs

claims against TDCJ, see supra section III.A.i.c, Plaintiff's request for declaratory relief fits into

the Ex Parte Young exception. See (D.E. 1, p. 16).

Plaintiff's request for a “declaration” that Defendants have violated his federal rights, id.,

is a request for declaratory relief. See 28 U.S.C. § 2201 (a); Daves v. Dallas Cnty., 22 F. Ath 522,

3 As discussed below, infra section III.A.ie, Plaintiff also requests declaratory relief, (DE. 1, p. 16). To the

extent the parties contend that Plaintiff’s request for “injunctive relief” (i.e., compensation so that he may

tithe) is “ancillary” to his request for declaratory relief, this argument fails. Compensation is not

“incidental,” Stollings, 2022 WL 824842, at *5; Fontenot, 777 F.3d at 753, to Plaintiff's requested

“declaration that Defendants have . . . violate[d] [his] rights secured in [RLUIPA] and the U.S.

Constitution[,]” (D.E. 1, p. 16).

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544 (5th Cir, 2022) (noting that plaintiffs seeking a declaration that defendants violated their

constitutional rights were seeking declaratory relief). Further, Plaintiff sues state officials

Defendants Brian Collier and Patrick O’Daniel in their official capacities, see (D.E. 1, p. 3, 8; D.E.

12; D.E. 18), and Plaintiff seeks relief for alleged violations of federal law, specifically RLUIPA

and the First and Fourteenth Amendments, see (D.E. 1). While Plaintiff requests a “[d]eclaration

that Defendants have . . . violate[d]” his rights, his complaint in its entirety alleges ongoing

violations as well. Id. at 16 (emphasis added). For example, Plaintiff alleges he is incarcerated and

“is [currently] assigned a mandatory job” that “provides work time but no compensation . . . forcing

Plaintiff to choose an activity that does not provide an income to tithe or be confronted with

disciplinary consequences|.]” Jd. at 8-9. Plaintiff's complaint also indicates that Defendants “are

violating” his rights. Jd. at 6 (emphasis added). Because Plaintiff seeks declaratory relief regarding

ongoing violations, his request is not barred by state sovereign immunity pursuant to the Ex parte

Young exception. See id. at 16; Paxton, 943 F.3d at 997; Reeves, 954 F.3d at 736; Mayfield v. Tex.

Dep’t of Crim. Just., 529 F.3d 599, 603, 604-05 (Sth Cir. 2008) (finding Ex parte Young exception

applied where plaintiff asked “the court to declare” that defendants’ actions—only allowing

members of plaintiffs religion to meet when an approved volunteer could visit the prison—

“violated the plaintiff's rights” (cleaned up)); cf Mahan v. Tex. Dep’t Pub. Safety, No. 9:20-CV-

119, 2020 WL 6935555, at *2 (E.D. Tex. Oct. 29, 2020) (Hawthorn, Mag. J) (finding that Ex parte

Young exception did not apply to extent plaintiffs sought a declaration that state employees’ “past

adherence” to a state agency policy was unconstitutional), recommendation adopted by No. 9:20-

CV-119, 2020 WL 6889006, at *1 (E.D. Tex. Nov. 23, 2020) (Clark, J.), Because Plaintiff's

request for declaratory relief is not barred by sovereign immunity, Defendants’ first objection is

overruled to the extent that it asserts that Plaintiffs claims are entirely barred. See (D.E. 37, p. 4—

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8).

In sum, Defendants’ first objection is OVERRULED in part and SUSTAINED in part.

(D.E. 37).

ii, Defendants’ Second Objection

Defendants’ next objection argues that “the Court should dismiss [Plaintiffs] action as

legally untenable” because “[n]o matter how the Court interprets [Plaintiffs] requested relief...

it could not actually grant that relief without violating the PLRA, the First Amendment’s

Establishment Clause, or both.” Jd. at 8-9. Defendants pose this argument, however, in the context

of Plaintiffs request for injunctive relief. See id. Defendants argue that “[i]f the Court were to

mandate that TDCI pay [Plaintiff] for his labor as an accommodation for his religious practice of

tithing, such an injunction would violate the First Amendment’s Establishment Clause.” Jd. at 8.

Defendants alternatively argue that “if the Court were to mandate a policy change requiring that

pay all inmates for their labor, such a broad sweeping injunction would plainly violate the

PLRA,” id; and “if the Court were to mandate a policy change requiring that TDCJ pay all

Christian inmates—or all Christian inmates of a particular sect which practices tithing—for their

labor, such an injunction would violate both the PLRA and the Establishment Clause,” id. at 9. As

stated above, Plaintiff? s putative claim for injunctive relief, (D.E. 1, p. 17), is barred by sovereign

immunity. Supra section Ill Aid. Plaintiffs remaining request for relief seeks neither

compensation from TDCJ nor a policy change. See (D.E. 1, p. 16). As such, Defendant’s second

objection is OVERRULED as moot. (D.E. 37).'

4 If Plaintiff were to prevail on his request for declaratory relief, TDCJ’s policy regarding payment to

inmates could be collaterally affected. However, Plaintiffs request for declaratory relief is not seeking a

policy change or payment, and the declaratory relief is the only requested relief before the Court, supra Part

IIl.A.i.d-e. Defendants do not raise the specific effects of Plaintiff's request for declaratory relief on

TDCJ’s policies, see, e.g., (D.E. 37), and similarly the M&R discusses only the PLRA’s limits on Plaintiffs

request for injunctive relief, see (D.E. 36, p. 12-13). As the Court’s review is limited at the motion to

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iii. Defendants’ Third Objection

Defendants’ third objection is that Plaintiff fails to state a RLUIPA claim. (D.E. 37, p. 9-

11). The M&R concludes that “Plaintiff has alleged sufficient facts to state a plausible RLUIPA

claim” because “Plaintiff's allegations, accepted as true, adequately state that TDCJ’s policies and

practices substantially burden the exercise of his religious faith to tithe an appropriate amount for

his labor.” (D.E. 36, p. 18-19).

Under RLUIPA, “[n]o government shall impose a substantial burden on the religious

exercise of a person. . . confined to an institution . . . unless the government demonstrates that

imposition of the burden on that person” furthers “a compelling governmental interest” and “is the

least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-

1(a)(1)-(2). “RLUIPA unambiguously creates a private right of action for... . declaratory relief.”

Sossamon v. Texas, 560 F.3d 316, 326 (Sth Cir. 2009), aff'd, Sossamon, 563 U.S. at 293. Whether

a government action substantially burdens a plaintiffs religious exercise is determined on “a case-

by-case, fact-specific” basis. Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004).

Defendants’ objection to the M&R’s recommendation to retain Plaintiff's RLUIPA claim

reiterates their arguments posed in their motion to dismiss, which the M&R addressed, and

challenges the M&R’s reliance on Johnson v. Wainwright, No. 2:19-CV-341, 2021 WL 2472929,

at *1 (S.D. Tex. June 17, 2021) (Ramos, J.). See (D.E. 37, p. 10). Defendants contend that Johnson

was wrongly decided, and that “Johnson is factually distinguishable,” meaning “its findings need

not dictate the outcome here.” Jd. However, Defendants fail to support their assertion that Johnson

dismiss stage, see Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (Sth Cir.

2014), and in reviewing objections toa M&R, see 28 U.S.C. § 636(b)(1)(C), the Court finds that speculating

further as to the prospective effects a potential declaratory judgment may have on TDCJ’s policies is

improper at this juncture. Should Defendants wish to raise a PLRA or Establishment Clause argument as

□□ s request for declaratory relief, they may do so in later dispositive motions.

was wrongly decided, and their argument that the two cases are factually distinguishable—and -

thus Johnson’s analysis should not apply—is unavailing. See id. at 10-11.

The plaintiff in Johnson, a TDCI inmate, asserted a RLUIPA claim alleging he was forced

to work at the prison’s garment factory without compensation. Johnson v. Wainwright, No. 2:19-

CV-341, 2021 WL 2935073, at *2 (S.D. Tex. Jan. 25, 2021) (Libby, Mag. J.), recommendation

adopted by 2021 WL 2472929, at *3. According to Johnson, receiving no compensation prevented

him from tithing, a “religious exercise.” Johnson, 2021 WL 2472929, at *1. Defendants argue that

Johnson is factually distinguishable from this case because the Johnson plaintiff alleged both a

religious obligation to tithe and a religious prohibition against working without compensation,

while Plaintiff only alleges a substantial burden on his ability to tithe. (D.E. 37, p. 10-11).

However, the Johnson M&R and subsequent order adopting it found that the Johnson plaintiff had

stated a RLUIPA claim by alleging that he could not tithe after receiving no compensation for his

labor. See Johnson, 2021 WL 2935073, at *4; Johnson, 2021 WL 2472929, at *2 (“[T]he Court

reads [p]laintiff’s pleading . . . not as treating the receipt of money as a religious exercise, but as

recognizing tithing as a religious exercise. And [d]efendants control that religious exercise by

requiring [plaintiff to work while depriving him of compensation for labor.”) (emphasis added).

Thus, while there may be some factual dissimilarities, Johnson remains markedly similar to this

case, and the Court finds it persuasive in determining whether Plaintiff has minimally stated a

RLUIPA claim. See (D.E. 1, p. 13) (stating that Plaintiff is forced to work without “compensation

or value for his labor, thereby forcing [] Plaintiff to violate his religious exercise of tithing”).

Accepting Plaintiffs allegations as true, which the Court must do at this stage in the

proceedings, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009), Plaintiff adequately states that

Defendants’ policy of not compensating inmates for their labor imposes a substantial burden on

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Plaintiff s religious exercise of tithing,’ and Defendants fail at the pleading stage to show that the

imposition of this burden furthers a compelling governmental interest and is the least restrictive

means of doing so. See 42 U.S.C. § 2000cc-1(a). As such, Defendant’s third objection is

OVERRULED. (D.E. 37).

iv. Defendants’ Fourth Objection

Defendants’ last objection argues that Plaintiff fails to state a First Amendment claim. See

id. at 11-12. The M&R concludes that “Plaintiff's allegations, accepted as true, reflect that TDC]

policies have denied him the opportunity to exercise his religious belief associated with tithing”

and that “[t]hese allegations are sufficient at this early stage in the litigation to warrant further

factual and legal development of his First Amendment claim[.]” (D.E. 36, p. 20-21).

The First Amendment provides that “Congress shall make no law . . . prohibiting the free

exercise” of religion. U.S. CONST. amend. I. Prison inmates retain their right to their free exercise

of religion while incarcerated; however, this right is “subject to reasonable restrictions stemming

from legitimate penological concerns.” DeMarco v. Bynum, 50 F.4th 479, 482 (Sth Cir. 2022)

(internal quotations omitted). In determining whether a prison policy is reasonable, courts

consider:

(1) whether there is a “valid, rational connection” between the regulation and the

government interest; (2) whether there are alternative means of exercising the rights

that remain open to prisoners; (3) the impact that accommodation of the asserted

constitutional rights would have on other prisoners, guards, and prison resources;

and (4) the presence or absence of ready alternatives that fully accommodate a

prisoner's rights at de minimis cost to valid penological interests.

Id. (citing Turner v. Safley, 482 U.S. 78, 89-91 (1987)). These factors need not be weighed equally,

> Defendants argue that it is “unclear” whether the religious exercise Plaintiff is asserting is being violated

is receiving compensation to tithe or the receipt of money generally. See (D.E. 13, p. 9). Construing

Plaintiff's complaint in his favor, as the Court must at this stage in the proceedings, see Iqbal, 556 U.S. at

678, 681, the Court finds that Plaintiff states that his religious exercise is being violated by not receiving

compensation to tithe. (D.E. 1, p. 10, 13, 16, 17).

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and “rationality is the controlling factor[.]” Mayfield, 529 F.3d at 607. “Moreover, the

governmental [interest] must be a legitimate and neutral one.” Turner, 482 U.S. at 90. Prison

officials are entitled to deference in exercising their professional judgment. Jd. at 90-91.

In objecting, Defendants again reiterate their motion to dismiss arguments, which the M&R

addressed; specifically, Defendants posit that TDCJ has a legitimate interest in limiting the costs

for housing and caring for inmates, and TDCI applies its policy of not compensating inmates for

their labor neutrally. See (D.E. 13, p. 13-14; D.E. 37, p. 11-12). At this stage in the proceedings,

the Court agrees with the M&R’s conclusion that Plaintiff's allegations are sufficient to warrant

further factual and legal development of his First Amendment claim. See (D.E. 36, p. 20);

Fernandez-Montes vy. Allied Plots Ass’n, 987 F.2d 278, 284 (Sth Cir. 1993). While Defendants

correctly state that “financial considerations” are a legitimate government interest, see Freeman v.

Tex. Dep’t of Crim. Just., 369 F.3d 854, 861 n.10 (5th Cir. 2004); (D.E. 37, p. 12), and TDCI’s

inmate compensation policy appears to be applied in a “neutral fashion[,]” see Turner, 482 U.S. at

90, the Court cannot analyze the remaining factors at this time. See DeMarco, 50 F.4th at 482.

Because the Court must take Plaintiffs factual allegations as true and resolve any ambiguities or

doubts regarding the sufficiency of the claim in Plaintiff's favor, Fernandez-Montes, 987 F.2d at

284, the Court cannot grant Defendant’s motion to dismiss on this claim. As such, Defendants’

fourth objection is OVERRULED. (D.E. 37).

B. Plaintiff?s Objection Is Overruled

Plaintiffs objection to the M&R asks that the Court retain his Equal Protection claim. (D.E.

38, p. 3). To the extent Plaintiff's equal protection claim is not barred by sovereign immunity, see

supra section III.A.i, his objection must still be overruled on the merits.

Plaintiff's objection largely reargues the merits of his Equal Protection claim. See (D.E.

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38, p. 2). To establish a § 1983 claim for an equal protection violation, “the plaintiff must

demonstrate that prison officials acted with a discriminatory purpose.” Woods v. Edwards, 51 F.3d

577, 580 (Sth Cir. 1995), In the equal protection context, discriminatory purpose “implies that the

decisionmaker selected a particular course of action at least in part because of, and not simply in

spite of, the adverse impact it would have on an identifiable group.” Jd. (internal quotations

omitted), Here, Plaintiff's complaint fails to allege that any named defendant acted with

discriminatory purpose in enacting or implementing the policy that excludes most inmates from

compensation for their labor. See (D.E. 1, p. 14; D.E. 38, p. 2). As such, after conducting a de novo

review, the Court agrees with the M&R’s conclusion that “Plaintiffs allegations, accepted as true,

fail to state an equal protection claim.” (D.E. 36, p. 23). Plaintiff's objection is OVERRULED.

(D.E. 38).

IV. Conclusion

In summation, the Court agrees with the M&R’s recommendation that Plaintiffs RLUIPA

and First Amendment claims requesting declaratory relief be retained at this juncture. See (D.E. 1;

D.E. 36, p. 13-21). Further, the Court agrees with the M&R’s recommendation that Plaintiff's

Equal Protection claim be dismissed. (D.E. 1; D.E. 36, p. 21-23). The Court finds, however, that

it lacks subject matter jurisdiction over Plaintiff's request for “injunctive relief’ because Plaintiff

is actually seeking compensatory relief—meaning the claims are barred by sovereign immunity

and not subject to the Ex parte Young exception. See (D.E. 1). The Court further finds it lacks

subject matter jurisdiction over all of Plaintiffs claims against TDC] as it is not a proper Ex parte

Young defendant. See id. Lastly, as neither party objected to the M&R’s recommendation that

Plaintiff's motion for summary judgment be denied without prejudice, and the Court finds no clear

error in that recommendation, the Court agrees that Plaintiff's summary judgment motion should

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be denied. (D.E. 27; D.E. 36, p. 3-4).

Thus, having reviewed the proposed findings and conclusions of the M&R, the record, the

applicable law, and having made a de novo review of the portions of the M&R to which the parties’

objections were directed, 28 U.S.C. § 636(b)(1)(C), the Court SUSTAINS in part and

OVERRULES in part Defendants’ objections, (D.E. 37); OVERRULES Plaintiff's objection,

(D.E. 38); and ADOPTS as modified the findings and conclusions of the M&R, (D.E. 36). As

such, the Court ORDERS the following:

e The Court GRANTS in part and DENIES in part Defendants’ motion to dismiss.

(D.E. 13).

e The Court DENIES without prejudice Plaintiff's motion for summary judgment.

(D.E. 27).

e The Court DISMISSES without prejudice: (1) Plaintiffs claims against Defendant

TDCJ for lack of subject matter jurisdiction; and (2) Plaintiff's RLUIPA and First

Amendment claims against Defendants Patrick O’Daniel and Bryan Collier in their

official capacities to the extent Plaintiff seeks injunctive relief. (D.E. 1).

e The Court DISMISSES with prejudice Plaintiff's Equal Protection claims against

Defendants Patrick O’ Daniel and Bryan Collier in their official capacities. (D.E. 1).

e The Court RETAINS Plaintiff's RLUIPA and First Amendment claims against

Defendants Patrick O’ Daniel and Bryan Collier in their official capacities to the extent

Plaintiff seeks declaratory relief. (D.E. 1).

e The Clerk of Court is ORDERED to TERMINATE the following parties as

defendants in this case: (1) the TDCJ; and (2) “the eight unnamed board member[s]”

of TDCJ. See (D.E. 1, p. 1, 6). ]

f / fi

SO ORDERED, f/f jj

\ (/ fA Agi

Lx}

DAVIN §. MORALES-7

. UNITED STATES DISTRICT JUDGE

Signed: Corpus Christi, Texas

March$/5'2023

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