                            NUMBER 13-11-003-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

KENNETH HICKMAN-BEY,                                                     Appellant,

                                         v.

AKBAR SHABAZZ, ET AL.,                                                   Appellees.


                  On appeal from the 343rd District Court
                         of Bee County, Texas.


                       MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Vela
                 Memorandum Opinion by Justice Vela
      This appeal is brought by Kenneth Hickman-Bey, appellant, from an order granting

summary judgment in favor of appellees, the Texas Department of Criminal Justice

(―TDCJ‖) and Akbar Shabazz ("Shabazz").       By his appellate issues, Hickman-Bey
argues that the trial court erred in granting appellees’ summary judgment motion because

the evidence appellees presented was false and misleading and the evidence he

submitted in response created a fact issue; TDCJ was a proper party to the suit seeking

declaratory judgment; Hickman-Bey’s suit was properly brought pursuant to 42 United

States Code section 1983, appellee Shabazz was not entitled to qualified immunity; and

Hickman-Bey was entitled to a declaratory judgment. We affirm.

                                   I. BACKGROUND

      Appellant, Kenneth Hickman-Bey is an inmate in the TDCJ, presently housed in

the McConnell Unit in Beeville.      Hickman-Bey filed a petition for injunction and

declaratory relief against TDCJ and Shabazz, an Islamic chaplain employed by TDCJ.

Hickman-Bey claimed that appellees violated his First Amendment right to freely practice

his religion, his Eighth Amendment right to be free from cruel and unusual punishment,

and his right to due process under the Fourteenth Amendment.           He also sought

declaratory relief asking the trial court to declare that the use of Muslim inmate

coordinators violates section 500.001 of the Texas Government Code. See TEX. GOV’T

CODE ANN. § 500.001 (West 2004).

      The gravamen of Hickman-Bey's claim is that while he was housed in the

Stringfellow Unit of TDCJ in early 2009, a Muslim inmate coordinator wrongfully

prevented him from attending Islamic services and programs. Hickman-Bey claimed

that he submitted a grievance to Shabazz, who ignored his concerns. Hickman-Bey then

filed a grievance against Shabazz, alleging that Shabazz had used profanity.

Hickman-Bey was ultimately successful with respect to his grievance against the inmate


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coordinator. About a month later, Hickman-Bey was transferred to the McConnell Unit of

the TDCJ, which he claims was in retaliation for his earlier-filed grievances. The Muslim

inmate coordinator was also transferred. Appellees were granted a summary judgment.

                                  II. STANDARD OF REVIEW

         We review a trial court's grant of a traditional motion for summary judgment under

a de novo standard of review. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816

n.7 (Tex. 2005) (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137

(Tex. 2004)); see also Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.—Corpus Christi

2003, no pet.).     To prevail on a summary judgment motion, a moving party must

establish that no genuine issue of material fact exists and judgment should be granted as

a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In deciding whether

there is a genuine issue of material fact, we resolve any doubt against the movant, view

the evidence in a light most favorable to the non-movant, and take as true evidence

favorable to the non-movant. Id.; see Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425

(Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985)).

                                           III. ANALYSIS

         A. Retaliation

         By issues one and eight, Hickman-Bey argues that the trial court erred in granting

summary judgment in appellees' favor because he was retaliated against for filing a

grievance. It is established that prison officials may not retaliate against an inmate for

properly exercising his or her rights. See Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.

1995).     To prevail on a section 1983 retaliation claim, an inmate must be able to


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establish: (1) a specific constitutional right; (2) the defendant's intent to retaliate against

him for exercising that right; (3) a retaliatory adverse act; and (4) causation. McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998). Retaliation against a prison inmate is

actionable only if it is capable of deterring a person of ordinary firmness from further

exercising his constitutional rights. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006)

(adopting the de minimis standard in retaliation claims because it achieves proper

balance between the need to recognize valid retaliation claims and danger of courts

―embroiling themselves in every disciplinary act that occurs in state penal institutions‖).

The Fifth Circuit Court of Appeals has called the burden placed upon the inmate to

establish retaliation ―significant.‖   Woods, 60 F.3d at 1166.          The reason for the

heightened burden is that "[t]he prospect of endless claims of retaliation on the part of

inmates would disrupt prison officials in the discharge of their most basic duties." Id.

       Here, the evidence before the trial court established that Hickman-Bey was

transferred to a new unit for the purpose of preventing violence at the Stringfellow Unit.

The evidence reflected that Hickman-Bey and another offender instigated a feud with

respect to different faiths within the Islamic community. There was evidence admitted of

an ongoing disagreement regarding the religious teachings of the Sunnis versus the

Shiites. Both offenders were transferred for security reasons. There was also evidence

submitted that Hickman-Bey is a confirmed gang member.

       In response, Hickman-Bey submitted exhibits that consisted of a complaint in

which he sought corrective action regarding the authority given to inmates. The record

reflects that Hickman-Bey filed a grievance against an inmate coordinator and was


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successful in his grievance. Both Hickman-Bey and the Muslim inmate coordinator were

transferred for the legitimate purpose of maintaining security.           Hickman-Bey’s

responsive evidence does not show any retaliatory motive on the part of appellees. The

evidence submitted by appellees establishes a legitimate reason for the transfer and

nothing Hickman-Bey submitted in response created a fact issue. We overrule issues

one and eight.

       B. Freedom of Religion

       By issues four and five, Hickman-Bey claims that he was denied access to observe

his religious practices. The evidence in support of appellees' summary judgment motion

showed that while Hickman-Bey was at the Stringfellow Unit, he missed services on only

two occasions, February 6, 2009 and February 13, 2009.           His attendance records

showed that he attended services January 2, 9, 16, 23, February 20, 27, and March 6.

He was transferred to the McConnell Unit on March 12, 2009. After he was transferred,

the records reflect that he did not attend services until May 26, 2010.

       Hickman-Bey seems to argue in his brief that he was denied his right to attend

services. He includes, as summary judgment evidence, a response to a grievance he

apparently filed in September 2009, approximately six months after he was transferred.

Apparently, he was not allowed to participate in Ramadan because he had not attended

Jumah regularly for sixty days prior to Ramadan. There is nothing in the record to

suggest that Hickman-Bey was prohibited from attending Jumah during that six month

period, and the record reflects that he regularly attended services prior to transfer. The

summary judgment evidence establishes that Hickman-Bey participated in services


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before his transfer and that he did not regularly attend after transfer and was not able to

attend holy day services because he had not complied with Chaplaincy Manual 06.02,

requiring offenders to regularly attend Jumah sixty days prior to Ramadan. He has not

raised a fact issue. We overrule issues four and five.

       C. Declaratory Relief

       Hickman-Bey argues by his second and seventh issues that TDCJ is a proper

party to the suit because he is seeking a declaration that TDCJ’s policy of allowing Islamic

inmate coordinators violates section 500.001 of the Texas Government Code, which

provides:

       (a)    An inmate housed in a facility operated by the department or under
              contract with the department may not act in a supervisory or
              administrative capacity over another inmate.

       (b)    An inmate housed in a facility operated by the department or under
              contract with the department may not administer disciplinary action
              over another inmate.

TEX. GOV’T CODE ANN. § 500.001 (a)–(b). He also complains by these issues that TDCJ

is a proper party to the declaratory judgment action.

       A declaratory judgment is appropriate only if a justiciable controversy exists as to

the rights and status of the parties and the controversy will be resolved by the declaration

sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citing Tex.

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). ―To constitute a

justiciable controversy, there must exist a real and substantial controversy involving

genuine conflict of tangible interests and not merely a theoretical dispute.‖        Id.   If

declaratory relief will not terminate a controversy between parties and would be irrelevant

at the time judgment is rendered, a declaratory judgment will amount to no more than an
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advisory opinion, which the trial court lacks power to provide. Kenneth Leventhal & Co.

v. Reeves, 978 S.W.2d 253, 259 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

       The summary judgment evidence established that TDCJ maintains a policy for the

selection and approval of Muslim offender coordinators. They assist the chaplains and

facilitate communication within the Islamic community. The chaplaincy department does

not allow offenders to act in a supervisory or administrative position. If they are caught

abusing their positions, they are disciplined and removed. In fact, here the coordinator

who Hickman-Bey complains about was disciplined and removed. On its face, the TDCJ

policy is clear that it does not allow for inmates to exercise authority over other inmates.

The summary judgment evidence shows that there is no justiciable controversy to be

decided by declaratory judgment. Thus, we need not consider whether TDCJ is a proper

party to the declaratory judgment action. We overrule issues two and seven.

       D. TDCJ as a Party

       By his third issue, Hickman-Bey argues in two sentences that governmental

agencies may be sued for constitutional ―deprivations brought about by customs.‖ The

United States Supreme Court has held that a State is not a ―person‖ under title 42, section

1983 of the United States Code. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71

(1989). Thus, a state governmental unit is not subject to section 1983 claims. See Tex.

Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001); see also Hidalgo County v.

Dyer __ S.W.3d___, 2011 WL 3850024, at *9 (Tex. App.—Corpus Christi Aug. 31, 2011,

no pet.). Accordingly, TDCJ was not a proper party to Hickman-Bey’s section 1983

claims, and the trial court did not err. See Petta, 44 S.W.3d at 581. We overrule issue


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three.

         E. Immunity

         By Hickman-Bey’s sixth issue, he urges that appellee Shabazz is not entitled to

qualified immunity because Shabazz violated his first amendment right of the free

exercise of religion. We have previously held that appellees established as a matter of

law that Hickman-Bey’s constitutional right to practice his religion was not infringed upon.

Thus we do not decide whether or not Shabazz was entitled to immunity. See TEX R.

APP. P. 47.1. We overrule issue six.

                                        IV. MOTIONS

         During the pendency of this appeal, Hickman-Bey filed a motion objecting to the

clerk's record and motion relating to information in the record, a motion to strike the clerk's

record, and a motion for judicial notice of a motion to strike clerk's record on appeal. The

first two were carried with the case. In his first and second motions, he objects that the

record did not contain his response to the defendant's motion for summary judgment, his

objections, and his "critical pleadings."         We note that Hickman-Bey's response,

amended response, and objections appear in the amended clerk's record that was filed in

this Court on June 27, 2011. In his most recent motion, he asks the Court to take judicial

notice of the record. This Court has reviewed all documents filed in this Court, which

include the documents in the amended clerk's record and supplements to the clerk's

record.    Because we have received all documents complained of in Hickman-Bey's

motions and they are properly a part of the record, we dismiss his motions as moot.




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                                      V. CONCLUSION

         Having overruled all of Hickman-Bey’s issues, we affirm the judgment of the trial

court.




                                                 ROSE VELA
                                                 Justice

Delivered and filed the
6th day of October, 2011.




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