Longstreth v. Maynard, 961 F.2d 895 (10th Cir. 04/06/1992)

[1] UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT


[2] No. 91-6370, No. 91-6374, No. 91-7044


[4] Filed: April 6, 1992.


[5] CHRISTOPHER E. LONGSTRETH, PLAINTIFF-APPELLANT,
v.
GARY MAYNARD; STEPHEN KAISER; SUSAN GILBERT, UNIT MANAGER; DAVID ROWDEN, UNIT MANAGER; BOB AFFOLTER, CORRECTIONAL COUNSELOR, DEFENDANTS-APPELLEES. C. D. MOSIER, PLAINTIFF-APPELLANT, V. GARY MAYNARD, D.O.C.; DAN M. REYNOLDS, WARDEN, DEFENDANTS-APPELLEES. ALLEN JUSTUS, PLAINTIFF-APPELLANT, V. GARY N. MAYNARD, WARDEN; STEVE HARGETT, DEPUTY WARDEN; FRANK MARKS, CHAPLAIN; DONALD LANKFORD, FOOD SUPERVISOR, DEFENDANTS-APPELLEES.


[6] (D.C. No. CIV-91-1682-A). (W.D. Okla.). WAYNE E. ALLEY. (D.C. No. CIV-90-14-T). (W.D. Okla.). RALPH G. THOMPSON. (D.C. No. CIV-86-173-C). (E.D. Okla.). FRANK H. SEAY


[7] F. Browning Pipestem, Norman, Oklahoma, for Plaintiffs-Appellants Longstreth and Justus in Nos. 91-6370 and 91-7044.


[8] In No. 91-6370, Gay Abston Tudor, Assistant Attorney General, and in No. 91-7044, Guy L. Hurst, Assistant Attorney General, Deputy Chief, Civil Division (Susan B. Loving, Attorney General of Oklahoma, with them on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees Maynard, et al.


[9] No. 91-6374 was submitted on the briefs:


[10] C. D. Mosier, Pro Se, and F. Browning Pipestem, Norman, Oklahoma, for Plaintiff-Appellant C. D. Mosier.


[11] Susan B. Loving, Attorney General of Oklahoma, and Gay Abston Tudor, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendants-Appellees Maynard, et al.


[12] Before Mckay, Chief Judge, Holloway, Circuit Judge, and Belot, District Judge*fn*


[13] Holloway


[14] HOLLOWAY, Circuit Judge


[15] I


[16] The plaintiffs-appellants Justus, Longstreth, and Mosier are all prisoners in the custody of the Oklahoma Department of Corrections (the Department). Each plaintiff claims that his religious beliefs preclude the cutting of his hair. Since 1986 the Department has had a general grooming policy, stated in various regulations applying to male inmates, which forbids all beards, mustaches, and hair more than three inches in length. The original policy provided a procedure for granting exemptions to those whose religious beliefs required them to keep their hair uncut. Each of these three plaintiffs was denied an exemption under that procedure.


[17] Plaintiff Justus brought his action under 42 U.S.C. § 1983 in the Eastern District of Oklahoma, requesting injunctive relief and compensatory and punitive damages. Justus challenged the Department's grooming code and its failure to provide him with a vegetarian diet. He claimed both policies interfered with his religious observances as a member of the Holy American Church of the Essene. The district court found the dietary claim to be insubstantial and frivolous and, on the hair claim, deferred to the Department's determination that the grooming code was essential to prison security and order, and the court then dismissed the complaint. Justus appealed, and this court affirmed the dismissal of the dietary claim but remanded for more fact finding on the grooming issue. Justus v. Maynard, No. 86-2849 (10th Cir. 4-25-88) (per curiam). After further proceedings, the Department moved for summary judgment on the grooming claim. The district court granted the motion on March 7, 1991. The instant appeal in No. 91-7044 followed. Moreover, an application was made for injunctive relief by this court pending this appeal. On October 30, 1991, this court entered an order enjoining the defendants from implementing the grooming code against Justus pending this appeal. Further facts concerning this appeal will be detailed below.


[18] In October 1991 plaintiff Longstreth, having been denied a religious exemption to the grooming code, brought suit against the Department under 42 U.S.C. §§ 1981, 1983, 1985, and 1986 in the Western District of Oklahoma. He sought damages, declaratory relief, and preliminary and permanent injunctive relief to prevent the Department's grooming code from being enforced against him. The district court denied a preliminary injunction on November 1, 1991. In a memorandum opinion issued later, the court found that because the grooming code was a reasonable response to legitimate penological objectives, Longstreth was not substantially likely to succeed on the merits and thus was unable to establish that he was entitled to a preliminary injunction. The instant appeal in No. 91-6370 followed.*fn1


[19] Mosier originally applied for and was granted an exemption from the prison grooming code in 1986. In 1989 he was required to make a new application. That application was denied for failure to provide adequate documentation from sources outside of prison of the sincerity of his belief in the Native American Church. He initiated this action under 42 U.S.C. §§ 1983, 1996, and 1997 in January 1990 in the Western District of Oklahoma seeking injunctive relief, inter alia. The defendants moved for summary judgment, which the district court granted. On appeal, this court reversed and remanded, holding that genuine issues of material fact remained. Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991). Subsequently, in October 1991, Mosier sought a preliminary injunction below to prevent the enforcement of the grooming code against him. The district court denied the request, finding that the new "no exemption" policy, initiated September 11, 1991, mooted Mosier's complaint of the denial of his exemption under the earlier policy. The instant appeal in No. 91-6374 resulted.


[20] These three appeals of Longstreth, Mosier, and Justus have been consolidated by this court for briefing and argument and will all be decided by this opinion.


[21] II


[22] The defendants in Nos. 91-6370 and 91-6374, the appeals of Longstreth and Mosier, have suggested that those appeals are moot. They point out that on January 14, 1992, there was a change in the grooming code policy, reinstating provisions for seeking religious exemptions. The defendants say that in the district court Longstreth and Mosier alleged they were wrongfully denied religious exemptions under the grooming code as it was before September 11, 1991, when it was changed to remove provisions for seeking such exemptions; that Longstreth's and Mosier's claims of unlawful denial of exemptions to them remain alive below, pending adjudication on the merits; and that the only issue on appeal now in their cases is the denial of preliminary injunctive relief against the post-September 11, 1991 grooming policy permitting no exemptions, which issue is now moot because that policy was changed with the January 14, 1992 reinstatement of the availability of religious exemptions. Motion to Dismiss at 3.


[23] Plaintiffs Longstreth and Mosier respond, opposing dismissal of their appeals for mootness and arguing that the issues are capable of repetition yet evading review because of the Department's policy changes. They say the cases should be reversed so that they may obtain interlocutory relief maintaining the status quo pending an adjudication of their claims on the merits by preventing the cutting of their hair under whichever grooming policy is in effect. Plaintiffs'-Appellants' Response at 3. Other facts pertinent to the mootness issue follow.


[24] As noted, in September 1991 the grooming code was amended to eliminate religious exemptions from the code. On January 7, 1992, in LeFors v. Maynard, No. CIV-91-1521-R, Western District of Oklahoma, the court found after trial that the evidence did not support a finding that the anticipated security concerns of defendants are rationally related to the grooming code imposing a hair length regulation with no religious exemption. Memorandum Opinion at 5-6.*fn2 The court could not find that the hair length restrictions, insofar as they interfere with sincerely held religious beliefs, are rationally related to state interests in promoting order and rehabilitation in its penal institutions. Id. at 6-7. There was no evidence at trial of any widespread security problem related to long hair in any part of the prison system. Id. at 10.


[25] The LeFors opinion found the trial witnesses from the Department of Corrections to be credible and knowledgeable and that the court should give great deference to their opinions on how the prison system should be run. However, the court concluded that "the grooming policy complained of, at this time, is not rationally related to legitimate penological interests, but is instead an exaggerated response to concerns which are purely hypothetical." The court found the "current grooming policy is an unconstitutional intrusion upon religious freedom insofar as it is applied to those inmates whose sincerely held religious beliefs prohibit the cutting of their hair." Id. at 14. Citing trial testimony, the court stated: "According to the Plaintiffs' sincerely held religious beliefs, cutting the hair is a sin which can have 'serious consequences.'" (footnote omitted). The defendants were enjoined from enforcing the hair-length provisions of the grooming code against plaintiffs LeFors, Hansford and Pelley.*fn3 The district Judge retained jurisdiction for two years or until further order of the court to permit notification by defendants of any undue burden on them or that security has become a more realistic threat. Id. at 15.


[26] The defendants' motion to dismiss advises us that on January 14, 1992, one week following the LeFors opinion, a further revision was made to the Inmate Grooming Code by the Department of Corrections.*fn4 It restates the requirement generally for male inmates that hair will be cut and all facial hair removed. Hair will not touch the shirt collar, will not touch or cover the ear, and will not exceed three inches in length. Beards and mustaches are prohibited. Hair styles for female inmates will comply with prevailing community standards.


[27] This new regulation provides an exemption request process to "accommodate those inmates whose religious beliefs conflict with the requirements of the grooming code." An inmate must apply to obtain an exemption, and a review committee then consider the applications. The inmate must submit an essay stating reasons why the exemption should be granted, specifying the religion of which he is a practicing member, and detailing why he cannot comply with the grooming code and be an adherent of his faith. The committee's review includes consideration of affidavits, and an interview and evaluation whether the inmate's personal belief is sincere, meaningful and religious in nature, inter alia.


[28] In addition to furnishing us the new regulation with their motion to dismiss for mootness, the Attorney General's representatives have advised us that the State has no intention of appealing the LeFors decision. As noted, these circumstances are relied on for the suggestion of mootness by the defendants.


[29] We are unable to agree that we should dismiss the appeals of Longstreth and Mosier for mootness. These plaintiffs' complaints and applications for interlocutory relief are not confined to a challenge to the "no exemption" policy which was instituted on September 11, 1991. Longstreth and Mosier instead seek equitable relief against the cutting of hair under any circumstances, due to their religious beliefs. The Department's regulations must be taken into account, but the changing regulations do not moot the basic controversy sufficiently to justify dismissal of these appeals from the denial of preliminary injuntive relief, in our judgment.


[30] We feel Mosier's and Longstreth's claims are distinguishable from the circumstances in DeFunis v. Odegaard, 416 U.S. 312, 317-18, 40 L. Ed. 2d 164, 94 S. Ct. 1704. There a racial discrimination suit challenging law school admissions practices resulted in injunctive relief ordering the student's admission. The state and federal court litigation continued into the last term of his courses. A professional representation by the State convinced the Supreme Court that in no event could the status of the student be affected by any view the Court might express on the merits of that controversy. DeFunis recognizes, however, the continuing vitality of the proposition that the "'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" DeFunis, 416 U.S. at 318 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953)). The Court reasoned that a voluntary cessation of the admissions practices complained of could make the case moot only if it could be said with assurance that there is no reasonable expectation that the wrong would be repeated. DeFunis, 416 U.S. at 318. DeFunis was held moot because a voluntary change in policy was not involved; instead, mootness was shown because the student was in the final quarter of his course of study and the settled policy of the school permitted him to complete the term in any event. 416 U.S. at 318.


[31] Here, the circumstances do not afford such an assurance that the threatened harm may not recur. These plaintiffs, Longstreth and Mosier, were denied exemptions under the last regulation which contained exemption procedures. Moreover, the Department's policy has varied considerably.*fn5 In these circumstances, we cannot agree that we should dismiss their instant appeals as moot because we do not feel it shown to be absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L. Ed. 2d 152, 102 S. Ct. 1070 n.10 (rejecting mootness argument where language challenged as unconstitutionally vague was repealed during pendency of litigation). We feel that Longstreth's and Mosier's circumstances are within the principle stated in City of Mesquite, 455 U.S. at 289: "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Accordingly, we deny the motion to dismiss for mootness the appeals of Longstreth and Mosier.


[32] III


[33] In No. 91-7044, we review de novo the district court's grant of summary judgment against Justus. Osgood v. State Farm Mutual Automobile Ins. Co., 848 F.2d 141, 143 (10th Cir. 1988). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Rusillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).


[34] The basic standard, as the parties agree, for determining the constitutionality of prison regulations which infringe prisoners' religious practices is that enunciated by the Supreme Court in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). There the Court held that a prison regulation which burdens an inmate's constitutional rights is valid if the regulation is reasonably related to legitimate penological interests. Id. at 89. The relevant factors are: First, there must be a valid rational connection between the prison regulation and the legitimate government interest put forward to justify it. Second, we must consider whether there are alternative means of exercising the right that remain open to prison inmates. Third, a relevant factor is the impact accommodation of the asserted constitutional right will have on other inmates and guards, and on the allocation of prison resources generally. Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. Turner v. Safley, 482 U.S. at 89-90.


[35] Applying Turner, we have upheld application of the grooming code at an intake prison facility and the position of the prison officials that the average stay there of only ten days made an exemption process infeasible. Hall v. Bellmon, 935 F.2d 1106, 1114 (10th Cir. 1991). Based on an affidavit from Gary Parsons, Associate Director of the Department of Corrections, the district court here found that the grooming code was adopted to promote uniformity, discipline, and personal hygiene among the inmates and to guarantee prison security by reducing the possibility of inmates quickly altering their appearance or concealing contraband.


[36] As opposed to this showing by the defendants, Justus and the other plaintiffs rely on the findings in the LeFors case and the deficiencies in that trial record as found by the trial Judge. Opening and/or Supplemental Briefs of Plaintiffs-Appellants at 13, 14. The plaintiffs argue that the justification for the grooming policy thus failed the fourth prong of the test in Turner v. Safley, 482 U.S. 78, 89-91, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) -- whether an alternative to the general grooming code is available which would accommodate the prisoner's rights at a de minimis cost to valid penological interests. Other arguments were made that the grooming code should not be upheld because it had been adopted for political reasons and that the exemption process itself demonstrated that uniformity of hair style was not essential to prison security or discipline.


[37] We are persuaded that the defendants' showing concerning the necessity for the grooming code as a general policy was not met sufficiently by the plaintiff Justus to raise a genuine issue of material fact. While we noted earlier that we do not feel the references to the LeFors opinion are inappropriate, the evidentiary record in that case is not a part of our record. The mere references to the findings made there and the policy arguments advanced by Justus do not demonstrate a genuine fact question concerning the general validity of the grooming code. We therefore sustain the portion of the summary judgment against Justus finding the grooming code facially valid as a general penal regulation.


[38] There remains, however, the additional holding in the summary judgment against Justus which upheld the denial to Justus of an exemption from the grooming code. Order Granting Defendants' Motion for Summary Judgment at 4-5. The order rejects the plaintiff's allegations that the policy has been applied in a discriminatory fashion. The district Judge said that the prison authorities have denied Justus an exemption because he failed to provide required documentation showing that his belief is a recognized religion and that long hair and beard lengths are doctrines of such a religion. The Judge concluded that the record supports the decision made by the prison authorities denying an exemption to Justus.


[39] We have held, however, that factual findings of the prison administrative officials may not be substituted for fact finding by the court on disputed facts. Sampley v. Ruettgers, 704 F.2d 491, 493 n.3 (1983). Here we are convinced that there were genuine issues of material fact as to the religious nature of the belief of Justus and as to his sincerity in that belief. He submitted an affidavit and also a detailed brief with factual and legal analyses, verified under penalty of perjury, which meet the requirements of Fed. R. Civ. P. 56(e). Mosier v. Maynard, 937 F.2d 1521, 1524 (10th Cir. 1991). The verified statements review the history of the Holy American Church of the Essene, which is identified by Justus as his belief. Verified Brief in Support of Plaintiff's Affidavit in Opposition to Defendants' Motion for Summary Judgment at 2-5. Justus states there that at the hearing of his request for an exemption, a hearing officer merely stated that the Department of Corrections does not recognize his religion. Id. at 10. The verified complaint of Justus represented that his belief was the "cornerstone of his life." Complaint at 19-20. In such circumstances, whether religious beliefs are sincerely held is then a question of fact. Mosier v. Maynard, 937 F.2d at 1526.


[40] Accordingly, without expressing any views on the merits of Justus' claims, we hold that there were genuine issues of material fact as to the religious belief claimed by Justus and as to his sincerity in adhering to that belief. The summary judgment against Justus in No. 91-7044 must be reversed, and the case will be remanded for further proceedings on these fact issues.*fn6


[41] IV


[42] In No. 91-6370 and No. 91-6374, plaintiffs Longstreth and Mosier both appeal the denial of their motions for preliminary injunctions forbidding the Department from cutting their hair under the "no exemption" policy. As the district court in both cases correctly held, the party seeking a preliminary injunction must demonstrate:


[43] (1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.


[44] Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980).


[45] In Longstreth's case the district court assumed that the latter three factors had been satisfied. The court found that under the Turner factors, the "no exemption" policy was a reasonable response to valid penological goals. It thus concluded that there was not a substantial likelihood that Longstreth would succeed on the merits of his challenge. In Mosier's case the district court denied Mosier's motion without a full statement of findings of fact and Conclusions of law. The order denying the motion does indicate, however, that the reason for denying the motion was the court's Conclusion that Mosier had failed to establish the substantial likelihood of his success on the merits.


[46] We agree that the second, third and fourth factors set out in Lundgrin appear to be satisfied by Longstreth and Mosier. Therefore, our focus is on the first factor, the substantial likelihood that the moving party will eventually prevail on the merits. The requirement of a "substantial likelihood that the movant will eventually prevail on the merits" is relaxed in these circumstances. Where the movant prevails on the second, third and fourth factors, the first factor is relaxed to require only that the movant raise "questions so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry." Lundgrin, 619 F.2d at 63; see also Koerpel v. Heckler, 797 F.2d 858, 867 (10th Cir. 1986). The impact of a prison regulation which may impinge on tenets of an inmate's religious beliefs and practices raises a serious and substantial question.*fn7 The question of whether the threatened infringement in these circumstances is reasonable under the standards articulated in Turner seems similarly "difficult and doubtful."


[47] In their verified pleadings seeking preliminary injunctive relief from the grooming code, from which they were denied exemptions, Longstreth and Mosier made verified statements of their religious beliefs and their sincerity in adhering to them. They were denied exemptions under the earlier policy, and, under the current policy which does permit exemptions to be sought again, there are serious and substantial questions now raised by Mosier and Longstreth concerning their entitlement to injunctive relief to protect their religious beliefs and practices.*fn8


[48] While the defendants question the beliefs and sincerity of Longstreth and Mosier, we are convinced that Longstreth and Mosier have made a showing raising "questions so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry." Lundgrin, 619 F.2d at 63. The plaintiffs are entitled to preliminary injunctive relief.


[49] V


[50] In sum, in No. 91-6374, Mosier v. Maynard, the district court's order denying Mosier's application for a preliminary injunction is reversed. His case is remanded to the district court with directions that a preliminary injunction should be entered restraining the defendants from enforcing the grooming code against plaintiff Mosier until the final Disposition of his claims. The district court may, in its discretion, hold the Mosier case in abeyance and require that Mosier seek an exemption under the new code adopted by the defendants on January 14, 1992, reinstating the religious exemption procedure.


[51] In No. 91-6370, Longstreth v. Maynard, the order of the district court denying Longstreth's application for a preliminary injunction is reversed and the case is remanded to the district court. As stated in note 1, supra, the district court has stayed Longstreth's case for 90 days to allow him to apply for an exemption under the new grooming code. A temporary order was entered on February 24, 1992, restraining any adverse action against Longstreth by reason of his failure to adhere to the grooming code. The district court should continue such injunctive relief for Longstreth until the final Disposition of his claims.


[52] In No. 91-7044, Justus v. Maynard, the summary judgment against plaintiff Justus is reversed and the cause is remanded for further proceedings to determine the fact issues of the religious character of Justus' beliefs and his sincerity in asserting those beliefs. The district court may, in its discretion, hold the Justus case in abeyance and require that Justus seek an exemption under the new code adopted by the defendants on January 14, 1992, reinstating the religious exemption procedure.


[53] IT IS SO ORDERED.



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Judges Footnotes

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[54] *fn* The Honorable Monti L. Belot, United States District Judge for the District of Kansas, sitting by designation.



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Opinion Footnotes

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[55] *fn1 At argument we were advised of an order entered on February 24, 1992, which has been furnished to us. The order stated that in the interests of Justice the action should be stayed for 90 days to allow Longstreth to apply for an exemption under the new grooming code instituted on January 14, 1992. The order states that during this time period, "the defendants shall take no adverse action against plaintiff by reason of his failure to adhere to the grooming code." The order concludes that Longstreth's claims with respect to the no exemption policy that was in existence from September 4, 1991, through January 13, 1992, are dismissed as moot.


[56] *fn2 In their Answer and/or Supplemental Briefs filed March 3, 1992, in the three instant appeals, objection is made to recitations in the plaintiffs' Opening Brief to findings in the LeFors opinion. The defendants argue in their Answer Brief that LeFors was decided subsequent to the rulings on appeal here and that the Memorandum Opinion was unpublished and cannot be considered precedential; it is requested that references to LeFors be stricken. Answer Brief of Defendants-Appellees at 2.
We cannot agree that reference to the LeFors opinion is inappropriate. In their Motion to Dismiss Nos. 91-6370 and 91-6374, filed February 13, 1992, by the Attorney General's Office, a summary of the LeFors ruling was given in the motion and a copy of the LeFors opinion was furnished us by the State as an attachment to the Motion to Dismiss. The case was discussed at argument of these appeals, by both sides, with no objection to the references made to it. We find no restriction in the rules of the United States District Court for the Western District of Oklahoma respecting the citation of the court's unpublished opinions.



[57] *fn3 The court made no class action certification. Id. at 1, note 1.


[58] *fn4 We have been advised by a representation from the Attorney General's Office that the State is not appealing the LeFors ruling.


[59] *fn5 When plaintiff Justus filed his suit in April 1986, all inmates in the Oklahoma State Penitentiary were required to comply with the Grooming Policy. Thereafter, inmates were allowed to apply for and be granted a religious exemption to the policy. In September 1991, the Grooming Policy was changed again and all exemptions were abolished. In January 1992, the policy was revised again and applications for exemptions were permitted. See Appellee's Answer Brief in No. 91-7044, filed November 18, 1991.
As recognized in our Disposition herein, on remand it may be required that the plaintiffs, Longstreth, Justus, and Mosier, utilize the new exemption procedure provided for by the January 14, 1992 regulation.



[60] *fn6 Because of its judgment in favor of the defendants on Justus' underlying constitutional cause of action, the district court did not need to reach the issue of the defendants' possible qualified immunity from Justus' claim for money damages. We not reach the issue here and express no view on the merits of such a defense to the damages claims.


[61] *fn7 Although religious challenges to prison grooming codes do not always succeed, courts have consistently held that at a minimum the challenges do raise significant claims which require full evidentiary development. See, e.g., Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir. 1982) (code unconstitutional because plaintiff able to identify a less restrictive alternative); Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975) (code unconstitutional because less restrictive means available); Moskowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977) (code held unconstitutional); Wright v. Raines, 457 F. Supp. 1082 (D. Kan. 1978) (injunction granted); Dreibelbis v. Marks, 675 F.2d 579 (3d Cir. 1982) (challenge was not frivolous and required further factual development); Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) (summary judgment inappropriate because prison officials failed to prove necessity of code to prison security).


[62] *fn8 As noted, the new grooming policy promulgated in January 1992 permits exemptions to be sought. As we are now deciding these appeals, we should consider the current state of the law. See Texas Co. v. Brown, 258 U.S. 466, 474, 66 L. Ed. 721, 42 S. Ct. 375 (1922).



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Scott v. Mississippi Department of Corrections, 961 F.2d 77 (5th Cir. 05/19/1992)

[1] UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT


[2] No. 91-1538


[4] decided: May 19, 1992.


[5] LOUIS SCOTT, ET AL., PLAINTIFFS, LOUIS SCOTT, DONALD SMITH AND ELIAS CALHOUN, PLAINTIFFS-APPELLANTS,
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court For the Northern District of Mississippi.


[7] Before Wisdom, Jones, and Smith, Circuit Judges.


[8] Author: Wisdom


[9] WISDOM, Senior Circuit Judge:


[10] The plaintiffs-appellants challenge the district court's summary judgment dismissing their claim that prison hair-grooming regulations violate their free exercise of religion under the First Amendment. Because the district court gave the plaintiffs sufficient notice of its impending summary judgment, and because that summary judgment was properly granted, we affirm.


[11] I. BACKGROUND


[12] The plaintiffs are inmates of the Mississippi State Penitentiary at Parchman. Each is a member of the Rastafari religion. Its practices, based on the Biblical vow of a Nazarite,*fn1 include smoking marijuana; eating a vegetarian diet; avoiding alcohol and grapes; gathering for communal worship; and never cutting or combing one's hair, but allowing it to grow in dreadlocks.*fn2 The regulation of the last is the subject of this appeal.


[13] The Mississippi Department of Corrections issues a handbook of inmate regulations; it provides that


[14] Hair (male offenders) will be kept clean and neatly cut so the hair does not fall below the collar and is not longer than 3 inches in length. Sideburns will be trimmed even with, and not extend below the edge of the ear. Mustaches will be neatly trimmed at all times. Beards and goatees are not permitted for identification purposes.*fn3


[15] In enforcing this regulation prison officials have forcibly cut the plaintiffs' hair. The three Rastafarians contend that the regulation is an unconstitutional violation of their free exercise of religion. The district court disagreed and granted summary judgment in favor of the defendants. The prisoners appeal.


[16] II. DISCUSSION


[17] A. Notice of Summary Judgment


[18] The plaintiffs argue that the district court granted summary judgment without providing them sufficient notice; they contend that the court's order requesting additional briefing did not inform them of the harsh result -- a denial of their case on the merits -- it was contemplating. We disagree.


[19] On May 27, 1988, the district court issued the following order:


[20] In view of the recent decisions by the United States Supreme Court in Turner v. Safely [Safley, 482 U.S. 78, 107 S. Ct. 2254], 96 L. Ed. 2d 64 (1987), and O'Lone v. Estate of Shabazz [482 U.S. 342, 107 S. Ct. 2400], 96 L. Ed. 2d 282 (1987), and the Fifth Circuit Court of Appeals in Kahey v. Jones, 836 F.2d 948 (5th Cir.1988), the court is considering the appropriateness of rendering a judgment on the merits, making submission of the case to a jury unnecessary. See Rule 50(a), Fed.R.Civ.P; Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969).


[21] The parties are granted through June 30, 1988, to submit memorandum briefs on the above-mentioned issue.


[22] The district court's order failed to mention either the term "summary judgment" or Fed.R.Civ.P. 56, under which summary judgment is granted. Although the Supreme Court has noted that the standard for granting summary judgment "mirrors" the standard for granting a directed verdict under Rule 50(a),*fn4 and it was clear to all parties that the court could not at that point grant a directed verdict (because no jury had been empaneled), it is not necessary to equate Rule 50(a) and the Boeing standard with Rule 56 in order to find that the district court adequately notified the prisoners that it was, in effect, moving sua sponte for summary judgment.*fn5 The court, by stating that it was considering "rendering a judgment on the merits, making submission of the case to a jury unnecessary", made it clear that the court was was referring only to a summary judgment.


[23] The court's order of May 27, 1988, sought additional briefing on the three leading cases affecting the merits of the plaintiffs' strongest claim. It gave them 30 days to respond. On June 13 the plaintiffs moved for an extension of time; clearly they knew that they bore a burden to respond to the court's earlier order. The court granted such an extension until July 29, 1988. The court did not ultimately grant summary judgment until March 30, 1989, ten months after issuing the May 27 order.*fn6 By that time the case had been pending for more than eight years. We encourage -- we require -- district courts to give parties full notice of a possible summary judgment against them; we will reverse such a judgment when the court fails to do so. Given the facts of this case, however, we find that the court did put the plaintiffs on notice that their briefs would bear the same burden borne in responding to a motion for summary judgment; the court's ultimate order granting summary judgment did not catch them unprepared.


[24] B. Free Exercise of Religion


[25] The Supreme Court has repeatedly emphasized the deference federal courts owe to state officials in their promulgation and enforcement of prison regulations when there is a need for penal authorities to have flexibility in the daily operation of a prison.*fn7 At the same time penal authorities may need a hard and fast rule in dealing with certain continuing or recurring situations, even when that rule could be better tailored to the rights of individual prisoners through a court's flexible, case-by-case analysis. In the words of Judge Alvin Rubin, "the free exercise clause does not entitle this court to substitute its knowledge for theirs".*fn8


[26] We are therefore prevented from scrutinizing a claim such as this with any real strictness. "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest."*fn9 In this case the district court found that the hair-grooming regulations at Parchman were reasonably related to the prison's paramount security concerns. We agree.*fn10


[27] It is important for a prison to record a clear and easily identifiable photograph of a prisoner upon his admission; short hair makes the prisoner more easily identifiable at that point, and from that point onward: during his term in prison and after any potential escape. Long hair can be restyled or shorn to many different lengths, but short hair is harder to modify: the prisoner will continue to look like he did in prison for at least some time after escaping. We agree with the district court that a regulation requiring that a prisoner's hair remain short throughout his stay in prison is reasonably related to legitimate penological concerns of identification and security. "It necessarily follows"*fn11 that MDOC's hair-grooming regulation does not violate the free exercise clause of the First Amendment.*fn12


[28] The Turner case provides four factors to assist a court's rationality review. Neither Turner nor O'Lone, however, require a court to weigh evenly, or even consider, each of these factors.*fn13 The district court did not err in failing to articulate a consideration of each of these factors. Nevertheless, because we review both the facts and law behind a summary judgment de novo, we shall mention those factors and briefly state why none weighs in favor of the plaintiffs.


[29] Factor one is simply a restatement of the principle of rationality review: "[A] regulation must have a logical connection to legitimate governmental interests invoked to justify it."*fn14 As we have said, this is the controlling question posed by these cases; the other factors merely help a court determine if the connection is logical.


[30] Factor two looks to whether the regulation entirely stifles the prisoner's religious expression.*fn15 The Supreme Court has not stated that in such a case the regulation would be presumptively unconstitutional; it merely recommends increased scrutiny of the Department's justifications when a regulation leaves the prisoner no other outward means of expressing his religion. Although life in the Mississippi State Penitentiary denies to Rastafarians certain forms of expressing their religion (such as smoking marijuana and growing dreadlocks), it leaves other forms open. They may still obey their diet, they may still be addressed by their Rastafarian name by other inmates, and they may still practice limited congregation, when their behavior in prison has not otherwise forced them into isolation. This factor does not require us to declare the regulation unreasonable.


[31] Factor three is the potential "ripple effect" of striking down the regulation.*fn16 Rather than allowing prisoners to speculate that the ripple effect would not be great, the factor allows prison officials the opportunity to show what impact accommodating the prisoners' religious principles might have on their prisons.*fn17 Although the district court did not weigh this factor, and did not have to do so, it would certainly not require a decision in the appellants' favor.


[32] In factor four "the absence of ready alternatives is evidence of the reasonableness of a prison regulation". This factor also acknowledges that "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response' to prison concerns."*fn18 The prisoners contend that there are many ready alternatives to the MDOC's hair-grooming regulation. We can imagine means of achieving the prison's stated goals with less restraint on the prisoner's rights. Nevertheless, we find it unlikely that all of the penological interests satisfied by the regulation could be equally well satisfied by any of the alternatives proposed by the prisoners. They have not pointed "to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests",*fn19 and we therefore find in their argument as to factor four no additional evidence that the regulation fails the test of rationality.


[33] In their reply brief the prisoners argue -- for the first time -- that the justifications offered for the hair-grooming regulation are presumptively unreasonable because the regulation applies only to men. Female inmates of Parchman, to whom the same concerns over identification and security might apply, are not required to cut their hair short during their time in prison. Or so the appellants tell us. Unfortunately, they have not proffered -- nor did they introduce below -- any evidence of what the grooming regulations for female prisoners at Parchman are. Because there is no evidence in the record against which we can measure this argument we cannot consider it. To our eyes no material questions of fact remain,*fn20 and the regulation remains reasonable.


[34] III. CONCLUSION


[35] We assume the plaintiffs' sincere devotion to their religion, and we appreciate the spiritual pain they suffer when prison officials forcibly cut their hair. This is more than cosmetic punishment. A Rastafarian's dreadlocks are a religious symbol of a bond with God that transcends and will outlast a prisoner's captivity in the new Babylon; here, however, the cropping of that hair is a temporal symbol of the crimes he has committed, which require his captivity in the Mississippi State Penitentiary. Although we could imagine a prison that feasibly accommodated the religious expression locked into a Rastafarian's hairstyle, it is not for us to impose our own ideas about prison management upon those who attempt the reasonable regulation of that nearly impossible task. The prisoners have indeed lost a right guaranteed by the Constitution, but the loss of absolute freedom of religious expression is but one sacrifice required by their incarceration; it is a sacrifice to the reasonable management of the penal order in which they now live.*fn21


[36] The plaintiffs received full notice that the district court was preparing to grant summary judgment against their free exercise claims, the only claims on appeal. The district court correctly applied the constitutional law that requires us to uphold an infringement of First Amendment rights when it results from a prison regulation that rationally matches a legitimate penological interest. We AFFIRM.


[37] Disposition


[38] AFFIRM.



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Opinion Footnotes

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[39] *fn1 Numbers 6:1-6. Verse five of that vow reads: "All the days of the vow of his separation there shall no razor come upon his head: until the days be fulfilled, in the which he separateth himself unto the Lord, he shall be holy, and shall let the locks of the hair of his head grow." Rastafarians, like Orthodox Jews, find additional support for their hairstyles in Leviticus 21:5: "They shall not make baldness upon their head, neither shall they shave off the corner of their beard, nor make any cuttings in their flesh." See Note, Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Geo.L.J. 1605, 1608, 1627 (1984).


[40] *fn2 The Department does not contest the sincerity of the plaintiffs' beliefs or the religious nature of the Rastafarian faith.


[41] *fn3 Mississippi Department of Corrections, Rules and Regulations Inmate Handbook, Section III, Rule 6-6.


[42] *fn4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 2511-12, 91 L. Ed. 2d 202 (1986).


[43] *fn5 The prisoners concede that a court may enter summary judgment sua sponte "provided the losing party has been given adequate notice and opportunity to respond." Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 444 (5th Cir.1991).


[44] *fn6 Fed.R.Civ.P. 56(c) guarantees the nonmoving party only ten days to oppose a motion for summary judgment before the court can rule on the matter.


[45] *fn7 For example: A court's "inflexible strict scrutiny analysis would seriously hamper [prison officials'] ability to . . . adopt innovative solutions to the intractable problems of prison administration", Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64 (1987), and would lead to the "unnecessary intrusion of the judiciary into problems particularly ill-suited to "resolution by decree'." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S. Ct. 2400, 2405, 96 L. Ed. 2d 282 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974)).


[46] *fn8 Kahey v. Jones, 836 F.2d 948, 951 (5th Cir.1988) (Rubin, J., Concurring).


[47] *fn9 Turner, 482 U.S. at 89, 107 S. Ct. at 2261.


[48] *fn10 Another panel of this Court has recently reached the same Conclusion in a similar challenge to the grooming code in Texas prisons. See Powell v. Estelle, 959 F.2d 22 (5th Cir.1992) (per curiam).


[49] *fn11 O'Lone, 482 U.S. at 353, 107 S. Ct. at 2407; cf. Thorne v. Jones, 765 F.2d 1270, 1275 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S. Ct. 1198, 1199, 89 L. Ed. 2d 313 (1986) ("Security-related decisions of prison officials are to be reviewed only for reasonableness; if the decisions are rational (an exceedingly undemanding standard), courts are to look no further.").


[50] *fn12 Faced with similar challenges to similar regulations, other appellate courts have agreed. See Pollock v. Marshall, 845 F.2d 656, 658-59 (6th Cir.), cert. denied, 488 U.S. 897, 109 S. Ct. 239, 102 L. Ed. 2d 228 (1988); Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir.1988); Wilson v. Schillinger, 761 F.2d 921, 926 (3rd Cir.1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986). In each of those cases the plaintiffs also complained, under the equal protection clause, that the regulations in question had been inconsistently or discriminatorily enforced; we note that the appellants before us have not made such a complaint.
Those cases acknowledge several other reasonable justifications for prison hair-grooming regulations. Those justifications include: the prisoners' own safety; the uniformity of prison discipline; the risk that prisoners may conceal contraband in long hair; public health and safety concerns over infection and lice; and, somewhat improbably, the discouragement of homosexual activity. The plaintiffs introduced evidence into the record supporting these other justifications. We do not address them here because, like the district court, we find that the penological interests in safety and identification provide legally sufficient support for the regulation.



[51] *fn13 In O'Lone, where the Court first applied Turner's statement of the rule to a free exercise claim, the Chief Justice stated that "Turner v. Safley, drew upon our previous decisions to identify several factors relevant to this reasonableness determination." O'Lone, 482 U.S. at 350, 107 S. Ct. at 2405 (emphasis added).


[52] *fn14 O'Lone, 482 U.S. at 350, 107 S. Ct. at 2405 (citing Turner, 482 U.S. at 89-90, 107 S. Ct. at 2262).


[53] *fn15 O'Lone found alternative means even where the regulation in question entirely prevented certain prisoners from participating in one important form of Muslim religious expression: "In Turner, we did not look to see whether prisoners had other means of communicating with fellow inmates, but instead examined whether the inmates were deprived of "all means of expression.' Ante, at 92 [107 S. Ct. at 2263], Here, similarly, we think it appropriate to see whether under these regulations respondents retain the ability to participate in other Muslim religious ceremonies. The record established that respondents are not deprived of all forms of religious exercise, but instead freely observe a number of their religious obligations." 482 U.S. at 352, 107 S. Ct. at 2406.


[54] *fn16 Turner, 482 U.S. at 90, 107 S. Ct. at 2262.


[55] *fn17 In Turner the Court speaks of this factor not as imposing an additional burden on prison officials but as requiring even greater deference to those officials in certain cases: "When accommodation of an asserted right will have a significant "ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." 482 U.S. at 90, 107 S. Ct. at 2262 (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 132-33, 97 S. Ct. 2532, 2541-42, 53 L. Ed. 2d 629 (1977)).


[56] *fn18 Turner, 482 U.S. at 90, 107 S. Ct. at 2262 (citing Block v. Rutherford, 468 U.S. 576, 587, 104 S. Ct. 3227, 3233, 82 L. Ed. 2d 438 (1984).


[57] *fn19 Turner, 482 U.S. at 91, 107 S. Ct. at 2262.


[58] *fn20 "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).


[59] *fn21 A risk remains, and a suspician lingers, in such cases. The result that O'Lone virtually mandates here provides that facially neutral grooming regulations could be abused and selectively enforced as retaliation for inmate insubordination. Such discrimination would be intolerable. We still insist, and we remind prison officials, that inmates carry constitutional rights with them behind bars.



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