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Nance v. Miser

United States District Court, D. Arizona

March 24, 2015

Keith Preston Nance, Plaintiff,
v.
Allen Miser, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Keith Preston Nance, who is incarcerated in the Arizona State Prison Complex-Florence, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 1). On January 12, 2015, Plaintiff filed a "Motion for Temporary Restraining Order and Preliminary Injunction." (Doc. 18.) On January 26, 2015, Plaintiff filed a "Motion for Emergency Temporary Restraining Order and Preliminary Injunction." (Doc. 20.) Defendants Ryan, Linderman and Miser filed Responses to Plaintiff's Motions. (Docs. 19, 21.) Plaintiff did not file replies.

The Court will deny Plaintiff's Motions without prejudice.

I. Background

A. Plaintiff's Complaint

In his Complaint, Plaintiff alleges one count for violation of his religious exercise rights and names as Defendants Arizona Department of Corrections ("ADC") Director Charles Ryan, Pastoral Administrator Mike Linderman, and Florence Complex Senior Chaplain Allen Miser. (Doc. 1.) Plaintiff seeks injunctive, compensatory, and punitive relief.

Plaintiff alleges that he has been denied halal religious oils and has been restricted from growing a beard more than a ¼-inch long, even though at least one other inmate has been permitted to grow a beard several inches long. Plaintiff contends that policies concerning halal religious oils and beard restrictions substantially burden his religious exercise and the policies are not the least restrictive means to further any legitimate, compelling penological interest. He also alleges that the beard-length policy has not been equally enforced as to similarly situated inmates and thereby violates his equal protection rights. Plaintiff seeks damages and an order allowing him to grow a beard longer than ¼-inch in length and to purchase halal religious oils.

On screening, the Court found that Plaintiff sufficiently alleged a violation of his First Amendment religious exercise rights, his Fourteenth Amendment equal protection rights, and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") and ordered all three Defendants to respond to the Complaint. (Doc. 11.)

B. The Motions

In his first Motion, Plaintiff seeks an order restraining Defendants and their subordinates "from further inmate disciplinary actions against" Plaintiff regarding enforcement of ADC Department Order ("DO") 704, which prohibits Plaintiff from growing a beard longer than ¼ inch. (Doc. 18 at 1-2.)

Plaintiff avers that in December 2014, he was questioned by Lieutenant Silvas about trimming his moustache and growing his beard. (Doc. 18 at 2.) Plaintiff explained to Silvas that he is a practicing Muslim and that growing a beard was his sincerely held religious belief. Plaintiff also told Silvas that he was in litigation challenging the ADC's grooming policy and that in 2012 the ADC settled a similar case involving an inmate's religious beard.

On January 7, 2015, Lieutenant Silvas again spoke to Plaintiff about ADC's grooming policy and informed Plaintiff that he was on disciplinary report as this was the second time addressing Plaintiff's beard. (Doc. 18 at 3.) Plaintiff asserts that he faces irreparable harm because disciplinary action can lead to a loss of privileges and reclassification. Plaintiff cites to another case involving an inmate's religious beard in which the court issued a temporary restraining order prohibiting officials from further disciplining that inmate "where the disciplinary action had led to reclassification and a transfer from a security level III to a security level IV unit." ( Id. (citing Doc. 104 in Abdullah v. Ryan, CV 08-255-TUC-CKJ).)

In his second Motion, Plaintiff again seeks an order restraining Defendants and their subordinates "from further disciplinary actions, retaliation, and harassment" regarding DO 704. (Doc. 20 at 2.) Plaintiff asserts that on January 14, 2015, he appeared before Disciplinary Officer CO III Staab and was found guilty of violating DO 704.02 regarding his beard. ( Id. at 3 and Pl.'s Ex. 40.) On January 21, 2015, Plaintiff encountered Lieutenant Silves[1] and explained that the Supreme Court had issued a decision on January 20 allowing inmates "to grow beards in compliance with sincerely held religious beliefs." (Doc. 20 at 3.) Silves told Plaintiff that she will enforce ADC policy until the chaplain informs her of the Supreme Court decision. Plaintiff states that he was placed on report a second time and faces irreparable harm because the disciplinary actions by Silves will lead to Plaintiff losing privileges and being reclassified to a higher custody unit.

In response to Plaintiff's Motions, Defendants assert that in light of the Supreme Court's decision in Holt v. Hobbs, 135 S.Ct. 853, ___ U.S. ___ (Jan. 20, 2015), they "are prepared to maintain the status quo, allow [Plaintiff] a ½-inch religious shaving waiver, and refrain from disciplining, withdrawing privileges, or reclassifying him for keeping a beard up to that length." (Doc. 21 at 1.) Defendants assert that the Disciplinary Report attached to Plaintiff's second Motion does not specify the length of Plaintiff's beard and only states that it "was grown past authorized lengths." ( Id. at 1-2.) Defendants aver that as long as Plaintiff "maintains facial hair no greater than ½ inch in ...


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