Petition for Writ of Certiorari — Noel Turner, Petitioner v. Texas Department of Criminal Justice

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No.

Supreme Court, U.S.

FILED

MAS 0 3 2m

OFFICE OF THE CLEF;,<

IN THE

SUPREME COURT OF THE UNITED STATES

Noel Christopher Turner

— PETITIONER

(Your Name)

vs.

Texas Dep't of Criminal Justice- RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Aooedals for the Fifth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

MorI. f!hri stnphRr Tiirnpr

(Your Name)

Pouledge Unit - TDCU

iL.nn FM

(Address)

Palestine, Texas 75B03

(City, State, Zip Code)

N/A

(Phone Number)

j

QUESTION(S) PRESENTED

1)

Has Turner's constitutional Due Process rights been violated under the

"evading review" and "capable of repetition" standards? Despite the many

claims of the Texas Department of Criminal Justice that they have changed

their own policy to give him the very relief that he soughij:... the fact

of the matter, no written policy has been changed, amended, or instituted

in the span of over two years since these claims were made to the courts

by the Texas Department of Criminal Justice. And Turner has since been

denied these very rights by the Texas Department of Criminal Justice's

Administration. Thus, were not Turner's Due Process rights violated? Is

he not afforded equal protection under the law?

2)

Were Turner's Constitutional Due Process rights violated by not being

awarded the "cost of suit" as in the relief of his Original Complaint,

since as per common law/case law, Turner has reached the standards set

by various U.5. Courts, to be the "Prevaling Party" to recover the Cost

of this suit?

I

1

LIST OF PARTIES

Ecxl All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

Noel Turner v. Texas Department'of Criminal Justice, 4:17-CV-00297, U.S. District

Court for the Southern District of Texas, Houston, Division. Judgment entered:

December 06, 2018

Noel Turner v. Texas Department of Criminal Justice, No. 18-20832, U.S. Court

of Appeals for the Fifth Circuit. Judgment entered: November 10, 2020.

» t

u

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

z

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

ll

CONCLUSION

Z\

INDEX TO APPENDICES

APPENDIX A Decision of U.S. Court of Appeals - Fifth Circit (No. 18-20832)

Order of Final Judgment

APPENDIX B U.S. District Court, Southern District of Texas, Houston Division

(4:17-CV-00297) Memorandum and Order

APPENDIX C U.S. District Coourt, Southern District of Texas, Houston Division

(4:17-CV-00297) Final Judgment

APPENDIX D STEP 1 Grievance #2021042434

APPENDIX E STEP 2 Grievance #2021042434

APPENDIX F

Hi

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Already y. Nike, 568 U'.S. 85, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013).................... 11

City of Mesquitre v. Aladdin's Castle, INC, 455 U.S. 283, 289, 102 S.Ct. 1070

71 L.Ed.2d 152 (1982)

11

Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 571, 121 L.Ed.2d 494(1992)..,

17,18,20

Friends of the Earth INC, v. Laidlauj Environmental Servcices (TOC), INC.,

528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).................................

11

Heuitt v. Helms, 282 U.S. 755, 760-61, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654

(1987)...................................................................................

17,20

Illinois Elections Bd. v. Socialist Workers Party, 404 U.S. 173, 187, 99 S.Ct.

983, 991, 59 L.Ed.2d 230 (1979)...........................................................................

12

Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 Q..Ed.2d 653 (

). 17

Main v. Thiboutot, 448 U.S. 122, 100 S.Ct. 2502, 65 L.Ed.2d 555 (

17

)

Posada v. Lamb County, 716 F.2d 1066, 1072 (5th Cir. 1983).............

Rhodes v. Stewart, 488 U.S. 1

18

3-4, 109 S.Ct. 2020, 102 L.Ed.2d 1 (1988)

Scham v. District Courts Trying Criminal Cases, 148 F.3d 554

17

v

557 (5th Cir. 1998)

17

Sosna v. Iouja, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)

12

Texas State Teachers v. Garland Indep. School Dist •5 489 U.S. 782, 791-92,

109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989).............

17

Watkins v. Fordice, 7 F.3d 454, 456 (5th Cir. 1993)

18,20

Weinstein v. Bradford. 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d

350 (1976)...................................................................................................................................

12

Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir. 19B2)...........................

18

iv

STATUES AND RUliES

42 U.S.C. § 1983

4,13

42 U.S.C. § 198B

17

42 U.S.C. § 20DDCC-1(a)

4

v

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

*X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

ft

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix B £ n to

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

D<] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

Was Nov/emhRr 1f1, 711711________

[x] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

AMENDMENT V [1791]: No person shall be held to answer for a capital, or other­

wise infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces

or in trhe Militia, when

in actual service in time of War or public danger; nor shall any person be subject

for the same offensce to be twice put in jeopardy of life or limb; nor shal

be compelled in any criminal case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation.

AMENDMENT XIV [1B6B]: SECTION 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

3

STATEMENT OF THE CASE

Turner filed his original complaint against the Texas Department of Criminal

Justice ("TDCJ"). USDC-DE l\ on January 30, 2017. He brings this civil action

pursuant to 42 § 1983 and the Religious Land Use and Institutionalized Persons

Act ("RLUIPA") 42 U.5.C. § 2000cc-1(a), claiming that the TDCJ violated his

federal constitutional and statutory religious rights of the tenets of his Jewish

faith, in particularly, that he should wear a fout-inch beard and a Yarmulke

(AKA: "Kippa") at all times. Turner sought declatory and injunctive relief in

the form of " [immediately allow plaintiff to grow and keep a four-inch beard

in all TDCJ facilities and keep in perpetuity;" and "[i]mmediately allow plaintiff

to wear his Yarmulke in all TDCJ facilities, in perpetuity," and "cost of suit".

On March 17, 2017, the TDCJ filed [USDC-DE 9]: (1) a partial motion to dismiss

Turner's First Amendment claim based on Eleventh Amendment Immunity, (2) a motion

to stay his religious headwear claim based on an impending "NOTICE TO OFFENDERS"

allowing offenders to wear religious headwear at all times throughout the TDCJ

facilities [USDC-DE 64, Exhibit A], (3) a motion to dismiss his religious beard

claim as moot under the new TDCJ "NOTICE TO OFFENDERS" [USDC-DE 67, Exhibit D]

dated February 1, 2017 that gives notice to Offenders that they - with approval

from TDCJ Unit Administration - to grow religious beards "not to exceed fourinches in length", and (4) an original answer. [USDC-DE 10].

On March 30, 2017, Turner responded in apposition to the TDCJ's partial motion

to dismiss [USDC-DE 12]. Turner then filed a motion for leave to file an amended

complaint [USDC-DE 15], to which the TDCJ responded in opposition [USDC-DE 17].

1 "USDC-DE" stands for "United States District Court" and "DE" Stands for the

Docket Entry Number within this court.

V

On ''lay 24, 2017, Turner moved for a Rule 11 sanctions [USDC-DE 18] against

the TDCO and replied to the TDCO's response in opposition [USDC-DE 19] to his

motion for leave to file an amended complaint. TDCO responded to Turner's motion

for a Rule 11 sanctions [USDC-DE 20] and moved to stay the dispositive motion

deadline [USDC-DE 21]. On October 25, 2017, Turner filed a motion for summary

judgment [USDC-DE 55].

On December 1, 2017, the district court denied Turner's motion for summary

judgment and granted TDCO's partial motion to dismiss Turner's First Amendment

claim without prejudice for want of jurisdiction as barred by the Eleventh Amend­

ment immunity. [USDC-DE 58 & 59]. In these orders, the district court also

conditionally dismissed Turner's request to wear a four-inch beard in perpetuity,

allowing Turner to submit a supplemental complaint [USDC-DE 66] to plead

sufficient facts to support his claims, and stayed the determination of Turner's

religious headwear claim pending its review of TDCO's alleged forthcoming

religious headwear policy.

□n May 16, 2018, Turner filed a motion to set Trial date [USDC-DE 72]. On

May 22, 2018, Turner entered a motion for Temporary Restraining Order to stop

him from being forced to comply with the Annual Shave requirment of the TDCO

[USDC-DE 73]. On Ouly 11, 2018, Turner filed a motion to subpoena of Designated

Documents, [USDC-DE 81]. Then on Oulu 11, 2018 Turner filed a motion to Produce

and Disclose Policies [USDC-DE 85]. On Ouly 12, 2018, Turner submitted a proposed

settlement agreement [USDC-DE 88] which the TDCO rejected. On December 5, 2018,

the district court denied Turner's motions [USDC-DE 72, 73, 81 & 85].

On Oune 20, 2018, the TDCO filed a motion for summary judgment based on

mootness [USDC-DE 75], Turner objected to the TDCO's motion for summary judgment

on Ouly 11, 2018, and moved to strike. [USDC-DE 83].

The district court grnated summary judgment in favor of the TDCO and issued

a final judgment dismissing Turner's claims against the TDCO without prejudice

5

as moot. [U5DC-DE 96 & 97]. Turner then filed a timely notice of appeal. [USDCDE 100].

□n December 20, 2018 Turner filed a motion for appointment of counsel with

a declaration in support [USDC-DE 102 & 103], due to complexity of the case.

The district court denied this motion. [USDC-DE 106].

On March 22, 2019, Turner filed his appeal in the United States Court of

Appeals for the Fifith Circuit. Presenting the following ISSUES FOR REVIEW:

(1) Is this case "moot" or is it still live and Turner continues to have a "legally

cognizable interest in its outcome"?; (2) Is TDCO's claims of policy changes

and that Turner is getting "exactly what he sought", a way for TDC3 to be:

"capable of repetion yet evading review"?; (3) Is TDCO's current "NOTICES" and

policies "void due to vagness"?; (4) Is TDCO's denial of wearing a single ply/

layer, white cloth Yarmulke that is donated from a religious organization as

per the current TDC0 policy [Chaplaincy Manual 05.01], but allowing other faiths

to do so, a violation of Turner's rights to Equal Protection and of RLUIPA (an

undue burden on Turner's right) due to his being poor (indigent)?; (5) Is Turner

the "prevailing Party" and due the filing cost [District Court] and cost of Indigent

Supplies levied against his Trust Fund Account for: paper, carbon paper, business

envelopes, writ envelopes, pens and postage; pursuant to this case?; and (6)

Was Turner denied his Due Process? Attached to this appeal brief were the following

exhibits: Exhibit A) "Standards of Behavior" from the TDCO's Uffender Orientation

Handbook, p.11 in which it states that Turner would have to shave once a year.

(II)(A)(4)(e); Exhibit B) Unit Classification Procedure, Policy No. 6.01, which

on page 2, (II)(E)(a-f) clearly states that Turner will have to shave for a photo

update; Exhibit C) TDCO's Commissary Rules from the Offender Handbook pp. 171B which prohibits Turner from seeking a donanted Yarmulke on the Unit; Exhibit

D) TDCO's definition of "Contrabnand" from the Offender Orientation Handbook

p. 21; Exhibit E) TDCO's displinary offense code for Possession of Contraband

(o

from the "Displinary Rules and Procedures for Offenders" [as Turner having another

offender on the unit to purchase a Yarmulke for him would become "contraband"

as per TDCO's definition].(a); and Exhibit F) Safe Prisons/PREA SEXUAL ABUSE

PREVENTION STRATEGIES from the Offender Orientation Handbook pp. 2B&29 [clearly

warns that to accept commissary item(s) from another could lead to Sexual Assault].

On Flay 6, 2019, the TDCO filed in opposition to Turners appeal.

On Oune 7, 2019, Turner filed his response to TDCO's brief in opposition

to his appeal.

On April 5, 2020, Turner filed a motion for an Emergency Preliminary Injunction

due to the violations of his religious rights; with four affidavits in exhibit.

On Oune 8, 2020, Turner filed a second motion for Preliminary Injunction

due to violaitons of his religious rights.

On July 15, 2020, TDCO filed its opposition to Turner's motion for Preliminary

Injunction which he filed on Oune B, 2020.

On Ounce 30, 2020, the U.S. Coaurt of Appeals - Fifth Circuit, ordered that

Turner's Emergency Flotion for Preliminary Injunction is "Carried with the Case".

On Ouly 16, 2020, Turner filed a motion to "Have Appellee's attorney to

produce and serve claimed documents that do not exist in the record". As the

TDCO's response in opposition to Plaintiff-Appellants motion for Injunction pending

appeal (DOC.#005115469221) is based upon eight exhibits in the Record which in

fact do not exist.

On Ouly 24, 2020, the Fifth Circuit Court ordered that Turner's "Flotion to

have Appellee's attorney to produce and serve claomded documents that do not

exist in the record is GRANTED."

On August 26, 2020, Turner filed a motion to enforce court's order, to have

the TDCO produce and serve thses non-existing documents. Turner also

on this

date, filed a motion for Panel Rehearing on the Preliminary Injunction filed

on Oune 26, 2020.

7

On September 3, 2020, the Fifth Circuit court Ordered that appellant's motion

to enforce courts' order of Oune 30, 2020 is GRANTED. Documents should be produced

by September 9, 2020.

On September 10, 2020, TDCD filed a motion for leave and extention of time

to produce documents [evidently they also, could not locate these in the Record

filed in the Courts].

On September 15, 2020 the court granted the extention of time and gave TDC0

"to and including, September 18, 2020 to comply with the courts' order of September

3, 2020 to produce documents that to not exist in the record is GRANTED".

On September 16, 2020, Turner filed his "objections for leave and extention

of time to produce documents by appellee's" and on September 23, 2020, Turner

filed his "objections for extentions of time to appellee and appellant's moption

for judgment due to Dilitory Conduct by appellee".

On Septmeber 24, 2020, the court denied Turner's mo tion to strike appellee's

response filed on Oune 26, 2020, incorporated within the response to appellee's

motion for an extention of time to comply with the court's order of September

3, 2020 to produce documents, is DENIED."

On September 25, 2020, TDC0 files a motion for leave to file response in

opposition to plaintiff-appellant's motion for Injunction pending appeal out

of time."

On September 28, 2020, Turner filed a second motion to enforce courts order,

to have TDC0 produce and serve the non-existing documents..

On September 29, 2020, the court ordered...."motion to withdraw the response

in opposition filed Oune 26, 2020 to Appellan ts_motion for injunction pending

appeal is GRANTED. It is further ordered that appellee's motion for injunction

pending appeal is GRANTED".

On October 1

2020, Turner filed a motion to enforce courts's order with

'L.

the request for judgment for intrinsic fraud by appellee.

6

□n October 7, 2020, Turner filed his objection to courts

order with notice

of writ of mandamus.

On October 12, 2020, Turner filed a motion to remove appellee's filings for

manifiest noncompliance with the rules governing the Fifth Circuit and Federal

Rules of Appellate Procedures.

On Octover 15, 2020, Turner filed a motion for leave to file response to

appellee's amended response in opposition to appellant's motion for injunction

pending appeal out of time. And filed a motion for the court to enter ruling

on appellant's second Emergency Preliminary Injunction Pending Appeal.

On October 20, 2020, the court ordered, "that Appellant's motion to remove

Appellee's filing for manifiest non-compliance with the Rules governing the Fifth

Circuit and Federal Rules of Appellate Procedures is DENIED".

On October 26, 2020, the court ordered, "that Appellant's motion for leave

to file response to appellee's amended response in opposition to appellant's

motion for injunction pending appeal out of time is DENIED".

On November 10, 2020, the court entered judgment against Turner. See

Appendix A, this petition.

On December 2, 2020, Turner uas transfered from the Oester 3 Unit - a "Oeuiish

Host Unit" as per TDC0 Chaplaincy Policy No. 07.01 & 07.02 - to the Pouledge

Unit [not a "Oeuish Host Unit"] and uas told by the unit's Major Harbin, that

as per TDC3 policy, Turner could not uear his Yarmulke until authorized by the

Unit Chaplain. On December 3, 2020, The Unit Chaplain confirmed uhat the Major

had said on December 2, 2020.

On December 6, 2020, Turner filed a STEP 1 Grievance regarding his being

"prohibited from uearing my uhite Yarmulke/Kippa (that is approved) on the Pouledge

unit" at all times and in all places". See Appendix D, this petition.

On Oanuary 18, 2021, Turner receives the STEP 1 Grievance back (#20201042434)

and its response stated: "The Chaplaaincy Policy states that the Kippa/Yarmulke

<?

shall be stored in the offender's locker box and used only in the cell, in an

area immediately around the offender's bunk in a dormitory and in designated

uorhsip areas. No further action." This was processed by the Unit Grievance

Investigator - Ms. T. Rainey and verified and signed by Mr. Vernon Mitchell,

Assistant Warden, Powledge Unit.

On January 14, 2021, Turner filed his STEP 2 Grievance regarding this matter.

See Appendix E, this petition. On March 5, 2021, this STEP 2 was returned with

the following respponse: "

An investigation has been conducted into your complaint. Per Chaplaincy Policy

Procedures "Notice to Offenders: Change in General Rules, "Effective January

1, 2020.stantes, "The following rules pertain to approved yarmulkes and

religious headgear for offenders: 1. Donanted, Non-white in color: May only

be worn in the offenders' cell or at religious programming; Must be carried,

and not work, and from religious programming. 2. Commissary purchased or

donated, Whitde with holes: May be worn at any time. 3. Yarmulkes and religiuos

headgear are subject to search by staff at any time. Refusal to subnmit to

searches will result in disciplinary action. 4. Yarmulkes or religious head

gear found to be altered in any way will be confiscated and will result in

disciplianry action." No further action from this office is warranted.

Signed: C.F. HAZI_EW00D, Director of Religious Service

Please note, that Turner was denied by the Unit Major, the Unit Chaplain, and

had to process a STEP 1 Grievnace to get what the TDCJ had certified to the Courts

that Turner was alredy receiving... but was denied for a month this very thing.

io

REASONS FOR GRANTING THE PETITION

QUESTION 1. Has Turner’s constitutional Due Process rights been violated under

the "evading review" and "capable of repetition" standards? Despite the many

claims of the Texas Department of Criminal Justice ("TDC3") that they have

changed their own policy to give him the very relief that he sought__the

fact of the matter, no written policy has been changed, amended, or instituted

in the span of over two years since these claims were made to the courts by

the TDC3. And Turner has since been denied these very rights by the TDC3

Administration. Thus, were not Turner's Due Process rights violated? Is he

not afforded equal protection under the law?

STANDARD OF REVIEW

In Already v. Mike, 568 U.S. 85, 133 S.Ct. 721, 184.L.Ed.2d 553 (2013)

said: "We have recognized, however that a defendant cannot automatically moot

a case simply by ending its unlawful conduct once sued. City of Mesquite v.

Aladdin's Castle, Inc •5 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152

(1982). Otherwise, a defendant could engage in unlawful conduct, stop when

sued to have the case declared moot, then pick up where he left off, repeating

this cycle until he achieves all his unlawful ends. Given this concern, our

cases have explained that "a defendant cdlaiming that its voluntary compliance

moots a case bears the formidable burden at showing that it is absolutely

clear the allegedly wrongful behavior could not reasonabley be expected to

recur." Friends of the Earth, INC, v. Laidlaw Enviornmental Services (TOC),

INC •5 528 U.S. 167, 190, 120 S.Ct. 693, 145 U.Ed.2d 610 (2000)." The court

has also said: "[W]e said that in the absence of a class action, the "capable

of repetition, yet evading review" doctorine was limited to the situation

where two elements combined: (1) the challehged action was in its duration

u

too short to be fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same complaining party would

be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147,

149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); See Illinois Elections Bd.

v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 991, 59 L.Ed.2d

230 (1979); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 Ll.Ed.2d 532 (1975).

ARGUMENT

Turner filed his STEP 1 and STEP 2 Grievances [USDC-DE 20, Exhibit A]

requesting "to wear a 4 inch beard and kippa at ALL! times & places", and in

the STEP 1 Response proves, that the Yarmulke/Kippa was not even addressed

in their response/denial. In Turners comfplaint [USDC-DE 1] he asked to "grow

and keep a 4 inch beard in all of TDCO facilities and keep in perpurtuity";

and "to wear his Yarmulke in all TDCO facilities in perpurtuity". TDCO files

a motion [USDC-DE 9, Exhibit B] in which they submitted a sworn affidavit

of Mr. Tony O'Hare, Region I Director that states:

As a result of recent litigation, TDCO is developing a religious headwear

policy for all offenders who believe they must wear some type of religious

headwear for their faith preference. Currently, TDCO is in the process

of writing these new policies. As TDCO's offenders have designated over

247 religious preferences, the development of a uniform policy is not

easy or quick as TDCO must identify and determine how to describe the

many types of religious headwer; determine the size, colors, and materials

of each approved headwear; the searching procedures; and the other details

of the policy to ensure a safe and secure prison environment. TDCO expects

that the religious headwear policy to be released within the year.

This was dated March 2, 2017. As of the March 5, 2021, NO policy exists in

writing to allow Turner to wear his religoius headwear outside of his cell/

cubical and/or Religious Services. Despite the word "policy" being used in

this one paragraph abouve in his sworn affidavit, the ONLY thing that occured

was a "NOTICE TO OFFENDERS" - NO policy number, no signatures, and it is not

located in the Chaplaincy Manual or Approved Policies/Adminstrative Directives

as of this date. On the Powledge Unit, this "NOTICE" is not in any Housing

Area, ther Units Chaplaincy Bullitin Board in the Main Hallway, or anywhere;

the Unit Administration was even uanaware of it, as Turner will show within

this petition. TDCO has released a "NOTICE TO OFFENDERS" [USDC-DE 64 Exhibit

A] that only allows offenders who are not indigent to wear a yarmulke at all

times and in all places... despite that they have a single ply white cloth

yarmulke obtained as Per Chaplaincy Policy 05.01 which has to be approved

by the Unit Chaplain, Unit Warden, and then Property Registration Papers

issued. Again, Turner is still not getting "exactly what he sought" despite

the TDCO claims that he is.. In Exhibit A [USDC-DE 75, Exhibit A] Tony O'Hares

sworn affidavit claims that Turner can use "charitable donations throught

out the prison unit" to get a yarmulke from the Unit commissary. In the TDCO

Offender Orientation Handbook (Feb.2017)(Pp. 17-18)(H) it states: "(3) Any

item bought from the commissary shall be for personal use only.". In the TDCO's

Offender Orientation Handbook (p. 21)(K)(2)(a) it states: "Contraband is:

a. Any item not allowed when the offender came to the TDCO, not given or assigned

to an offender by the TDCO, and not bought by an offender for his use from

the Commissary." . Then in the TDCO's Displinary Rules and Procedures for

Offenders (Att. B) Level 2 Offense Code 16.0 Possession of Contraband, it

states: "(a)... Not bought by an offender for their own use from the commissary".

In the TDCO's Offender Orientation Handbook, PREA (Pp. 28-29)(2) it states':.

"Do not accept commissary items or other gifts from offendeers. Placing yourself

in debt to another offender can lead to the expectations of repaying the debt

with sexual favors".

TDCO's own policies and the Prison Rape Elemination Act (PREA) passed

by Congress prevents Turner from donations on the Unit. Due to the amount

owed for State Copurt cost of $887.96 (three convictions), Federal Court Cost

of $700 (two 42 U.S.C. §1983 suits), and Indigent Supplies owed ($470.00)...

-i

Turner would have to have $942.50 deposited on his TRUST FUND account to have

13

just $1.25 left to buy a.yarmulke. (Dr depending if they take all of the Federal

Court Cost, then if so, he would need $1,571.71 deposited into his TRUST FUND

account in order to have $1.25 remaining in his account.) Thus, TDCJ's claims

are not in fact grounded in TRUTH. The TDCJ allows many Religious Items from

prayer rugs, turbans, crosses, combs, etc, to be purchased or donated from

outside of the TDCJ

as long as the offender does so according to the TDCJ

Chaplaincy Manual approveal process. Indigent Jewish Offenders have in the

past and still could if allowed by the TDCD, to receive donanted, white cloth

yarmfule from one of the TDCO Contract Rabbi's, from The Aleph Institute or

from the Jewish Prisoner Services International - both which are used by the

TDCJ to verify as to wheather an offender is born Jewish or has undergone

a conversion prior to incarceration, as per the TDCJ Chaplaincy Manual Policy

07.02. As these small light weight yarmule can be lost and do become worn

due to repeated washing to clean them, thus need to be replaced at times.

These Yarmulke look exactly like the ones sold in the TDCJ's Commissaries.

On June B, 2020, Turner filed to the U.S. Court of Appeals - Fifth Circuit

("5th Circuit") a motion for an EmergencyPreliminary Injunction Due To The

Violations Of'His Religious Rights, with attached affidavits, that the Jester

3 Unit Chaplain - Ms. I_. Limitchell - informed us that as per a "New Directive

from Huntsville", the only religious headwear authrized for us to wear now

has to have "holes" in them.

On June 26, 2020, the TDCJ filed its response in opposition (Doc.#00515469221

at p. 9) and stated:

...Turner seeks injunctive relief in the form of a Court order enjoining

TDCJ to allow him to wear his yarmulke in all TDCJ prison facility areas • • •

however, Turner already enjoys his requested relief...Becasue Turner is

already permitted to wear his yarmulke as requested in the instant motion,

on injunction - his instant motion's sole requested relief - is neither

necessary nor proper.

lY

Then on p. 10 of this same Document

the TDCJ states: "Turner provides no

competent evidence that TDCJ has implemented any change to the religious Policy

at issue. There is no evidence that TDCJ will revoke Turner's privilege to

this relief." The 5th Circuit denied Turners motion.

On July 27, 2C2C, Turner filed a second motion for a Preliminary Injunction

with an attached handmade copy of the new policy as exhibit A; with five affidavits

of Offenders attesting to the acuracy and valdity of the handmade copy of

this new policy. TDCJ claims that this "policy" which was/is ONLY a "NOTICE

TO OFFENDERS", See USDC-DE 6k, Exhibit A and USDC-DE 75, Exhibit D. Turner

offered proof to the court that it in fact had been changed. But in the 5th

Circuit judment (Appendix A of this petition) on p.3, the court even stated

that "After Turner filed suit, TDCJ twice changed its religious headgear policy

to accommodate a Jewish inmates need to always wear a yarmulke". Then on the

STEP 2 Grievance (Appendix E of this petition), the response from C.F. Hazlewood,

Director of Religious Service, even conceeds that "...Commissary Purchased

or donated, white with holes: may be worn at any time.". These are the ONLY

ones [with holes] that is allowed to be worn at all times and in all places

of the TDCJ as Turner has sought since this litigation even started. And,

in fact, the TDCJ Commissary continues to sell the exact same type/style of

yarmulke today that it started selling years ago... a white yarmulke with

NO HOLES in it! The Muslims Kuffi is nitted and has holes... but not the

approved and sold by the TDCJ Jewish Religious Headgear. Thus, there is NO

yarmulke available for Turner to utilize that will even satisfy this new

"NOTICE" and/or the response to the STEP 2 Grievance from C.F. Hazlewood,

Director of Religious Services.

Turner was transfered from a "Jewish Host Unit" (TDCJ Chaplaincy Policy

07.01 and 07.02) to the Powledge Unit (NOT a "Jewish Host Unit") on December

2, 2020. At this time, the Powledge Unit's Major informed Turner that according

IB

!>

to current TDCO policy, he could not wear his white cloth kippa until approved

by the Unit Chaplain. Turner Filed a STEP 1 Grievance (Appendix D, this petition)

and its written respans, investigated by Ms. T. Rainey - Unit Grievance Investigator,

then verified and signed off on by the Unit's Assistnat Warden, Mr. Vernon

Mitchell, clearly states:

The Chaplaincy Policy states that the kippa/yarmulke shall be stored in

the offenders locker box and used only in the cell, in an area- immediately

around the offender's bunk in a dormitory, and in designated worship areas.

No further action.

This was dated January 1, 2021... two years and one month after the release

of the TDCO's "NOTICE TO OFFENDERS" (dated December 1, 2017) regarding the

wearing- of religious headgear in all places and at all times. [USDC-DE 75,

Exhibit D].

When in fact, there is NO new "policy" allowing the wearing of Religious

headgear outside of immediate living area or services, in the TDCO Chaplaincy

Poliocy Manuel. On the Powledge

Unit, there is no pasted "NOTICE" anywhere...

as the STEP 1 Grievance clearly shows taht: 1) the current Policy prohibits

Turner from wearing his yarmulke at all times and in all palces of the TDCO,

and 2) taht any "NOTICE" contrary to this was/is unkown to the Powledge Units

Administration - Unit Warden, Assistant Warden, Major, Grievance Investigator,

and the Chaplain.

So, yes, TDCO is evading review by it's many claims which their own policies

prove that these claims to be false. It is easy to see that Turner is under

TDCO total authority and by lack of an induction from the court, this is capable

of repetition.

QUESTION 2. Were Turner's Constitutional Due Process rights violated by not

being awarded the "cost of suit" as in the relief of his Origianl Complaint,

since as per common law/case law, Turner has reached the standards set by

various U.S. Courts, to be the "Prevailing Party" to recover

the cost of

this suit?

STANDARD OF REVIEW

In Hewitt v. Helms, 2B2 U.S. 755, 760-61, 107 S.Ct. 2672, 2676, 96 L.Ed.2d

654 (19B7) "It is settled law, of course, that relief need not be judicially

decreed in order to justify a fee award under §1988, A lawsuit sometimes produces

voluntary actioan by the defendant that affords the plaintiff all or some

of the relief he sought through a judgment - e.g., a monetary settlement or

a change in conduct that redresses the plaintiff's grievances. When that occurs,

trhe plaintiff is deemed to have prevailed despite the absence of

a formal

judgment in his favor. See Flaher vc. Gagne, 44B U.S. 122, 129, 100 S.Ct. 2570,

2575, 65 L!.ED.2d 653 (19B0). Main v. Thiboutot, 44B U.S. 1, 100 S.Ct. 2502,

65 Li.Ed.2d 555, (decided this day, we hold that §1988 applies to all types

of §1983 actions.); Texas State Teachers v. Garland Indep. School Dist • ? 489

U.S. 782, 791-92, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (19B9)(__ the plaintiff

must be able to point to a resolution to the dispute which changes the legal

relationship between itself and the defendant); Rhodes v. Stewart, 488 U.S.

1, 3-4, 109 S.Ct. 2020, 203,102 Li.Ed.2d 1 (1988) (... affect the behavior of

the defendant toward the plaintiff.); Farrar v. Hobby, 506 U.S. 103, 109,

113 S.Ct. 566, 571, 121 L.Ed.2d 494 (1992)(Under our "generous formulation"

of the term, Plaintiffs may be considered "prevailing parties" for attorney

fees purpose, if they succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing suit.); Scham

v. District Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir. 1998)

17

(to attain prevailing party status the plaintiff must shou 1) the goals of

the lawsuit were achieved, and 2) the suit caused the defendants to remedy

the [defendant's behavior].(quoting Uakins v. Fordice, 7 F.3d 453, 456 (5th

Cir. 1993) quoting: Farrar v. Hobby,__ JJ.S.___ ,___ , 113 S.Ct. 566, 573, 121

l_.Ed.2d 494 (1992)).

In Uatkins v. Fordice, 7 F.3d 453, 456 (5th Cir. 1993) the court clearly

stated "tdhe lawsuit must be "substantial factor or' significant catalyst

in motivating the defendants to end their unconstitutional behavior, (quoting

Posada v. Lamb County, 716 F.2d 1066, 1072 (5th Cir. 1983)(quoting Williams

v. Leatherbury, 672 F.2d 549, 551 (5th Cir. 1982).

ARGUMENT

Uhen Turner filed his STEP 1 Grievance [USDC-DE 2, Exhibit A] on November

20, 2016, TDCO's response was "Inaccordance with SM-06.16, Religious beards

shall not extend more than one-half (j) inch in length outward from the face."

When he filed his STEP 2 Grievance [USDC-DE 2, Exhibit A] on December 17,

2016, it was answered by "Vance Drum Director of Chaplaincy Operations". He

would have been in the loop on Religious Policy changes thus when he denied

Turner's STEP 2, he would have indicated policy was forthcoming

yet he

did not. Uhen Turner filed his suit, he was not allowed to grow a four-inch

beard, he was not allowed allowed to keep itj^in perpurtuity, this is proven

by the STEP 1 and STEP 2 Grievances,/it is also provable by TDCO's SM-06.16

[USDC-DE 9, Exhibit A] (II)(D)(3)^that clerly states a clean shaven yearly

photo, with the threat of displinary and Use of Force if Turner did not comply.

As for Religious headwear, until Turner filed, there was NO way TDC0 would

allow him to wear any yarmulke outside of his cell and services. Proof of

, this is Mr. Tony O'Hare's Sworn Affidavit [USDC-DE 9, Exhibt B] dated March

lw

2, 2017, that claims a policy to allow Turner to do so was forthcoming in

18

a years time.

As now, after litigating for more than three (3) years, Turner is allowed

to grow a four-inch beard. TDCO claims that he no longer has to shave for

photo updates, See Mr. Tony O'Hare's sworn affidavit [USDC-DE 77, Exhibit

A] dated 19 Dune, 2018 that states such. But all written policy still has

Turner shaving each third year.... policy hidden by the TDCO. They sent the

first SM-06.16 to Turner - NO Security Issues doing that... but once they

revised it, they claim it has to be "sealed" becasue of security issues. Once

Turner receive dthe Record on loan, he saw the redated part taht was sucha

security issue.... it was the: GROOMING STANDARDS. B. FEMALE OFFENDERS. This

sur would have cause a great calamity in the Male population to know such

rules existed for FEMALE OFFENDERS. This was a ploy to hidge behind, by referecingf

to unit classification procedures Manual 6.01, "Updating Offender Photographs".

See Turner's 5th Circuit Appeal Briefs Addundem Exhibit B. (H)(3)(C), that

requires a three year clean shaven photo. It is longer than the annual but

not what Turner sought in his complaint. Despite TDCO claiming that he is

getting such [USDC-DE 9].

On Oanuary 2, 2018, TDCO sent Turner a NOTICE TO OFFENDERS [USDC-DE 6k,

Exhibit A] that was Turners first time seeing this notice. This notice allowed

Turner to wear a yarmulke at all times in all places if he purchased it from

the TDCO's Commissary, otherwise, the one he had, by approval and issued

Property Regestration Papers for, he can only wear in his cell and sercies.

This yarmulke was peresonally donated to Turner by Rabbi David Goldstein TDCO's Lead Contract Rabbi.

Despite NOT getting exactly what Turner sought, despite TDCO's claims

that he is [USDC-DE 9] which states: "there is no longer exists any live

controversly between parties with respect to the frowing of a four-inch beard

11

/t

J

because Turner has been granted exactly what he sought",; but as Turner has

shown in the course of this litigation, this is NOT TRUE. But it does prove

that Turner is the "prevailing party" as per the courst standard (see Standard

of Review for trhis Question) he did get some of the relief he sought by a

change of conduct that redressed his complaint. See Heuiitt v. Helms, 282 U.S.

755, 760-61, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987). Turner did achieve

some of what he sought and caused the defendant to remedy their behavior.

Farrar v. Hobby, 113 S.Ct. 566, 573, 121 Li.Ed.2d 494 (1992). See liJatJ<ins_^/.

Fordice, 7 F.3d 453, 456 (5th Cir. 1993).

Thus Turner is owed the "cost of suit" [USDC-DE 1] as

in Origianal Complaint.

Federal Court Fees: $350.00

INDIGENT SUPPLIES: $125.00

,

TOTAL: 480.00 (to be removed from charges/fees levied against Turner's TDC0

TRUST FUND account)

20

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

r

Date:

2/