Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nance v. Miser

United States District Court, D. Arizona

May 22, 2015

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

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On January 12 and 26, 2015, Plaintiff Keith Preston Nance filed two motions for injunctive relief. Defendants filed responses to both motions, but Plaintiff did not file replies. In a March 24, 2015 Order, the Court denied Plaintiff's requests for injunctive relief. ( See Doc. 22.)

On April 4, 2015, Plaintiff filed a "Motion to Take Judicial Notice" and "Plaintiff's Reply in Support of Motion for Temporary Restraining Order and Preliminary Injunction." (Docs. 33, 34.) In his Motion to Take Judicial Notice, Plaintiff asserts that Defendants did not serve him with their responses to his motions for injunctive relief; therefore, the Court's Order "was based upon ex parte filing by the Defendants." (Doc. 33 at 2.)

It appears that Plaintiff now wants the Court to consider his Reply in Support of Motion for Temporary Restraining Order and Preliminary Injunction. Therefore, the Court will construe Plaintiff's Motion to Take Judicial Notice as one for reconsideration of the March 24, 2015 Order. The Court will deny the motion for reconsideration.

I. Background

Plaintiff, a Muslim incarcerated at the Arizona State Prison Complex-Florence, filed a Complaint alleging in part that he had been restricted from growing a beard more than a ¼-inch long. (Doc. 1.) On January 12 and 26, 2015, Plaintiff filed two motions seeking injunctive relief from further inmate disciplinary actions regarding enforcement of ADC Department Order ("DO") Number 704, which prohibits an inmate from growing a beard longer than ¼ inch. ( See Docs. 18, 26.)

Defendants filed responses to Plaintiff's motions on January 26 and February 9, 2015. (Docs. 19, 21.) In their second response, Defendants asserted 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.) Because of this allowance, Defendants maintained that "no injunctive relief is necessary or appropriate." ( Id. )

In the March 24, 2015 Order denying Plaintiff's requests for injunctive relief, the Court noted that Plaintiff had failed to file a reply to Defendants' assertion that they will comply with the standard announced in Holt, which held that the Arkansas Department of Corrections' grooming policy violated RLUIPA "insofar as it prevents petitioner from growing a ½-inch beard in accordance with his religious beliefs." (Doc. 22 at 5 (quoting Holt, 135 S.Ct. at 867).)

The Court considered Plaintiff's motions and found that Plaintiff failed to meet his burden on each element of the test for injunctive relief announced in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). (Doc. 22 at 6.) Specifically, the Court found that because Defendants stated that they are willing to comply with Holt and refrain from disciplining Plaintiff if he keeps his beard at no more than ½ inch, Plaintiff had not shown that he is likely to succeed on the merits of his claim. ( Id. at 5-6.) The Court also found that because Plaintiff had not replied to Defendants' assertion that they will comply with Holt, Plaintiff had failed to meet his heightened burden of showing irreparable injury. ( Id. at 6.) Nor had Plaintiff shown what hardships he would suffer, if any, by Defendants allowing him to keep a ½-inch beard, and he failed to meet his heightened burden of show it is in the public interest to grant some other type of preliminary relief. ( Id. )

II. Motion to Take Judicial Notice

On April 6, 2015, Plaintiff filed his Motion to Take Judicial Notice. (Doc. 33.) In his Motion, Plaintiff asserts that Defendants never served him with their responses to his motions for injunctive relief. As support, Plaintiff attached a request he made to CO II Slade for copies of the incoming legal mail log for the South Unit for February and March 2015. (Doc. 33 at 3.) Plaintiff also attached redacted copies of "Incoming Legal/Certified Mail" logs, which apparently show he received legal mail on February 2 and 12, 2015 and on March 5, 6 and 9, 2015. ( Id. at 4-9.) Because these log pages do not reflect incoming mail from Defendants related to Plaintiff's preliminary injunction requests, Plaintiff apparently argues that Defendants did not serve their Responses on him. Plaintiff now asks the Court to impose sanctions under Federal Rule of Civil Procedure 11 in the form of an order that all future correspondence to Plaintiff from Defendants be mailed to him by certified mail requiring a signed receipt. (Doc. 33 at 2.)

Defendants respond that while the mail logs do show that Plaintiff received some mail from Defendants, there do not appear to be any entries for Defendants' January 26 and February 9, 2015 responses to Plaintiff's first and second motions for a preliminary injunction. (Doc. 36 at 1-2.) Nevertheless, Defendants argue "it does not automatically follow that Defendants and/or undersigned were in derogation of their service obligations." ( Id. at 2.) Defendants attached a Declaration from legal secretary Colleen Jordan attesting that she filed and served Defendants' responses on Plaintiff via U.S. Mail "consistent with the certificate attached, " and that neither she nor Defendants' counsel received their responses in return or undelivered mail. ( Id. and Doc. 36-1 ¶¶ 5-6.) Therefore, Defendants argue that "the missing document is not attributable to Defendants, undersigned, or Ms. Jordan" and that Rule 11 sanctions are inappropriate because Plaintiff has failed to identify how Defendants or their counsel violated the rule. (Doc. 36 at 2.)

The Court finds that Plaintiff has not demonstrated that he did not receive Defendants' responses due to any failure on Defendants' part or that Defendants have otherwise violated Rule 11. The Certificate of Service on each of Defendants' responses certifies that the responses were transmitted electronically to the Court and served by mail on Plaintiff. ( See Doc. 19 at 7, Doc. 21 at 2.) Also, Defendants' secretary has avowed, under penalty of perjury, that she served the documents on Plaintiff via U.S. Mail. Thus, Defendants' service of their responses were in compliance with Federal Rules of Civil Procedure 5(b)(2)(C), 5(d)(1) and 5(d)(3), as well as Local Rule of Civil Procedure ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.