UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7548
ALLEN MCRAE; PATRICK LAHENS; DENNIS BLYDEN;
DAVID EVICK, JR.; RASHID QAWI AL-AMIN,
Plaintiffs - Appellants,
and
CHARLES STEVENSON,
Plaintiff,
versus
GENE M. JOHNSON, in his official capacity;
UNITED STATES OF AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:03-cv-00164-RLW)
Submitted: November 19, 2007 Decided: January 7, 2008
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
John Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Steven Rosenfield, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA,
Charlottesville, Virginia; Rebecca K. Glenberg, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
Appellants. Robert F. McDonnell, Attorney General, William E.
Thro, State Solicitor General, Mark R. Davis, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee Gene M. Johnson.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Five male prison inmates (the Plaintiffs), in the custody of
the Virginia Department of Corrections (the VDOC), filed this civil
action against VDOC Director Gene Johnson (Director Johnson), in
his official capacity, challenging the VDOC’s inmate grooming
policy (the VDOC’s Grooming Policy) under the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.
§§ 2000cc to 2000cc-5.1 Two of the five inmates are practicing
Rastafarians, while three are practicing Muslims. Following the
partial grant of summary judgment in favor of the Plaintiffs and a
bench trial on the remaining dispositive issues, the district court
entered judgment in favor of the VDOC. We affirm.
I.
RLUIPA provides, in relevant part, that “[n]o government shall
impose a substantial burden on the religious exercise of a person
residing in or confined to an institution . . . even if the burden
results from a rule of general applicability, unless the government
demonstrates that” the burden “is in furtherance of a compelling
governmental interest” and “is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. §
2000cc-1(a). Of relevance in the present appeal, the VDOC’s
1
For ease of reference, we will refer to the defendant in this
action as “the VDOC.”
3
Grooming Policy requires that all beards be shaved, that male
inmates wear their hair no longer than their shirt collar, and that
mustaches extend no further than the corners of the mouth. The
VDOC formulated this policy in 1999, and the most current version
is dated July 1, 2003. The VDOC’s Grooming Policy applies to all
approximately 31,000 inmates in the VDOC system, regardless of
security level and regardless of religious beliefs. An inmate who
violates the VDOC’s Grooming Policy, for whatever reason, is
charged with an infraction. If he continues to violate the VDOC’s
Grooming Policy, he is assigned to administrative segregation where
he is supervised closely and is isolated from other inmates from
whom he may receive contraband or to whom he may pass it.
Continuous violation of the VDOC’s Grooming Policy also subjects an
inmate to possible reclassification to a higher security level and
a reduction in good conduct credit.
The Plaintiffs allege that the VDOC’s Grooming Policy places
a substantial burden on their religious exercise by prohibiting
them from wearing beards. The two Rastafarian Plaintiffs
additionally allege that the VDOC’s Grooming Policy places a
substantial burden on their religious exercise, because their
religion requires them to abstain from cutting their hair. One of
the three Muslim Plaintiffs also alleges that his religion requires
that he grow out his mustache.
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The parties filed cross-motions for summary judgment. During
litigation on such motions, the VDOC conceded that it could not
disprove the sincerity of any individual Plaintiff’s belief that
his respective religion required him to wear his hair or beard in
a manner that violated the VDOC’s Grooming Policy. Based upon this
concession and on other analysis, the district court concluded that
the VDOC’s Grooming Policy substantially burdened the Plaintiffs’
exercise of religion and, therefore, granted them summary judgment
on that issue. Nonetheless, the district court held that genuine
issues of material fact still remained with respect to: (1)
whether the VDOC’s Grooming Policy furthers a compelling
governmental interest; and (2) whether the VDOC’s Grooming Policy
is the least restrictive means to further such interest.
On July 12, 2006, the district court held a bench trial on
these two issues, with each side presenting one expert witness.
The VDOC presented Director Johnson as its expert witness, while
the Plaintiffs presented James Aiken, a prison management
consultant.
Director Johnson has forty years of experience with the VDOC
at all levels of security. At trial, he testified that the VDOC’s
Grooming Policy furthers the compelling government interests of
prison security, health and safety of inmates and prison staff, and
easy identification of prisoners, especially in the case of
attempted escape or escape. Prison security is increased by an
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inmate’s lessened ability to conceal weapons and other contraband
on his person. The health and safety of inmates is increased by
allowing for better hygiene. Finally, inmates are more easily
identified because they are less able to quickly change their
appearance, for example, by shaving a beard. This is extremely
important in the case of attempted escape or escape. Director
Johnson also testified that the VDOC’s Grooming Policy is the least
restrictive means of addressing these interests.
James Aiken is a prison management consultant with a total of
fifteen years’ experience as a warden or assistant warden in South
Carolina and a total of eight years’ experience as the director or
deputy director of the prison systems of Indiana and the U.S.
Virgin Islands. James Aiken opined that two primary lesser
restrictive means than the VDOC’s Grooming Policy exist to further
the VDOC’s interests in prison security, the health and safety of
inmates and staff, and easy identification of inmates. The first
is that inmates who have sincere religious objections to the VDOC’s
Grooming Policy could be assigned to a separate, non-punitive,
living space or pod where they could wear their hair long as well
as wear beards. According to James Aiken, although these inmates
would have access to each other, such inmates could be closely
monitored to ensure that no issues relating to contraband or escape
arise. The second primary less restrictive means offered by James
Aiken is the transfer of inmates whose sincere religious beliefs
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conflict with the VDOC’s Grooming Policy to a different prison
system with no such conflicting policy.
The district court was ultimately persuaded by the VDOC’s
evidence that the VDOC’s Grooming Policy was the least restrictive
means to promote the compelling governmental interests of prison
security, the health and safety of inmates and prison staff, and
the easy identification of prisoners. Following the district
court’s entry of judgment in favor of the VDOC, the Plaintiffs
filed this timely appeal.
II.
On appeal, Plaintiffs seek reversal of the district court’s
judgment in favor of the VDOC based upon a sufficiency of the
evidence argument. Specifically, Plaintiffs argue that although
the VDOC’s Grooming Policy had been in place for seven years at the
time of trial, the VDOC failed to present sufficient evidence that
the policy prevented the concealment of contraband, made the
identification of inmates within the prison and in the event of
escape easier, or contributed to the health of inmates and staff by
allowing for better hygiene. According to the Plaintiffs, the
VDOC’s only evidence that the VDOC’s Grooming Policy has actually
had an effect in any of these areas was the conclusory statements
of Director Johnson, which statements, the Plaintiffs argue, were
completely rebutted by its expert witness.
7
On appeal from a bench trial, we review findings of fact under
the clearly erroneous standard and conclusions of law de novo.
Roanoke Cement Co., L.L.C. v. Falk Corp., 413 F.3d 431, 433 (4th
Cir. 2005). A factual finding is clearly erroneous when “the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
“Whether something qualifies as a compelling interest is a
question of law,” United States v. Hardman, 297 F.3d 1116, 1127
(10th Cir. 2002), as well as whether the challenged policy
constitutes the least restrictive means of addressing a compelling
government interest, Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th
Cir. 2005), cert. denied, 127 S. Ct. 187 (2006).
Once “a plaintiff produces prima facie evidence to support a
claim alleging a violation” of RLUIPA, “the government shall bear
the burden of persuasion on any element of the claim, except that
the plaintiff shall bear the burden of persuasion on whether [the
challenged practice or law] substantially burdens the plaintiff’s
exercise of religion.”2 42 U.S.C. § 2000cc-2(b). “In particular,
2
The Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§§ 2000bb et seq., is the precursor statute to RLUIPA, and
contained nearly identical language concerning the requirements of
a compelling interest and least restrictive means. RLUIPA was
enacted under the Spending Clause after RFRA was struck down as
applied to the states in City of Boerne v. Flores, 521 U.S. 507
(1997), as an over exercise of Congressional authority under the
Fourteenth Amendment. Thus, case law under RFRA remains helpful in
analysis of claims under RLUIPA.
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the government must prove that the burden in question is the least
restrictive means of furthering a compelling governmental
interest.” Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006).
With respect to both the compelling interest standard and the least
restrictive means standard, we owe “‘due deference to the
experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good
order, security and discipline, consistent with consideration of
costs and limited resources.’” Id. at 190 (quoting Cutter v.
Wilkinson, 544 U.S. 709, 723 (2005)). See also id. at 192
(instructing district court, in assessing a RLUIPA claim, to give
due deference to any explanation by prison officials as to why its
policy is the least restrictive means of addressing compelling
government intertest(s)).
Our careful review of the record in this case reveals no
reversible error. First, the testimony of Director Johnson, the
testimony of Plaintiffs’ expert witness James Aiken, and relevant
case law amply support the district court’s conclusions of law
that, in the prison setting, suppression of contraband, maintaining
discipline and security among the inmate population, maintaining
the health and safety of inmates and staff, and preventing
prisoners from quickly changing their appearance constitute
compelling governmental interests. See Cutter, 544 U.S. at 722
(“We do not read RLUIPA to elevate accommodation of religious
9
observances over an institution’s need to maintain order and
safety.”); Longoria v. Dretke, 2007 WL 3308856, at *5 (5th Cir.
November 9, 2007) (maintaining security in prison setting is a
compelling state interest); Washington v. Klem, 497 F.3d 272, 283
(3d Cir. 2007) (“Interests of safety and health play a particularly
important role in the institutional [prison] setting.”). See also
Hines v. South Carolina Dep’t of Corrections, 148 F.3d 353, 358
(4th Cir. 1998) (holding, pre-RLUIPA, that, in the prison setting,
suppression of contraband, limiting gang activity, maintaining
discipline and security, and preventing inmates from quickly
changing their appearance are legitimate governmental interests,
and additionally declaring in dicta that the same are compelling
governmental interests). The testimony of both experts and the
relevant case law establish far beyond any reasonable debate that
the business of running prisons is a dangerous and exceedingly
difficult task, one which cannot be successfully done without
suppressing contraband, maintaining discipline, maintaining
security, maintaining the health and safety of the inmates and
staff, and limiting inmates’ abilities to quickly change their
physical appearance.
Second, the testimony of Director Johnson and relevant case
law ably support the district court’s conclusion of law that the
VDOC’s Grooming Policy constitutes the least restrictive means of
addressing the compelling governmental interests just identified.
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Director Johnson, who has forty years’ experience in prison
management in the VDOC, testified that the VDOC’s Grooming Policy
promotes security and discipline and the health and safety of
inmates and staff by eliminating an inmate’s ability to hide
contraband or weapons in his beard and significantly limiting his
ability to hide contraband or weapons in his hair. Director
Johnson testified that, on a number of occasions prior to the
imposition of the VDOC’s Grooming Policy, inmates had hidden
contraband and/or weapons in their hair or beard, with one prison
officer being injured while “trying to shake down an inmate and
shake down his hair, and there was a razor blade or something in
the hair . . . .” (J.A. 59). Director Johnson also testified that
the VDOC’s Grooming Policy significantly cuts down on the number of
inmate shakedowns during which a prison officer must run his hands
all through an inmates hair and beard if he has one in order to
check for hidden contraband or weapons. According to Director
Johnson, prison officers are hesitant to perform shakedowns on long
haired and/or bearded inmates, “inmates don’t like you putting your
hands all through the[ir] hair to start with,” shakedowns are time
consuming, and the VDOC does “not have enough staff to continually
shake people down as they move from one area to another to prevent
transporting contraband.” Id. In sum, the less need for
shakedowns the better. This fact was illustrated by Director
Johnson’s testimony that approximately six months earlier, officers
11
shaking down an inmate placed in administrative segregation for
refusing to cut his hair “found pieces of wire and rope and rocks
and tobacco, . . . that were hidden in his hair.” (J.A. 61).
Director Johnson’s testimony also supports that inmate hygiene
is improved by compliance with the VDOC’s Grooming Policy.
According to Director Johnson, the VDOC has had a number of fairly
serious medical problems that went undetected because of long hair,
for example, tumors and lesions. Director Johnson further
testified that he knew of numerous cases over the years where
inmates with long hair and/or beards developed lice or had spiders
in them.
Critically, in contrast to James Aiken’s testimony, the
testimony of Director Johnson explained the administrative burdens
that would result from the two main alternatives suggested by
Aiken. Specifically, Director Johnson explained that a special
housing unit for persons claiming religious exemption from the
VDOC’s Grooming Policy would not be feasible because the sheer
numbers of persons who would seek exemption would not allow it.
Additionally, the separate housing suggested by Aiken would not
alleviate the security concern associated with housing all inmates
claiming religious exemption in the same facility, as those
individuals, without being isolated from each other, would have
access to each other along with the ability to hide contraband in
their long hair and/or beards. James Aiken never addressed this
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security concern nor the extra time guards with limited amounts of
time would have to spend searching for contraband on an inmate with
long hair and/or a beard as opposed to searching for contraband on
a short haired, clean shaven inmate. We note that one of the key
features of the VDOC’s Grooming Policy that supports the district
court’s least restrictive means conclusion is that the VDOC’s
Grooming Policy does not mandate the forcible cutting of an
inmate’s long hair and/or beard. Rather, an inmate is allowed to
keep his long hair and/or beard. If he does so, however, he is
quite reasonably required to live in a segregated housing unit
(without access among inmates housed in such unit) where the
safety, security, and health risks created by long hair and beards
can be lessened by more restrictions on the inmate.
Finally, the record fully supports the district court’s
conclusion that the other proffered less restricted means of
serving the compelling governmental interests at issue, i.e.,
transferring inmates whose religious beliefs conflict with the
VDOC’s Grooming Policy to other prison systems without a grooming
policy, is not workable. As the district court explained, based
upon the testimony of Director Johnson:
Arranging for prisoners to be moved out-of-state to
jurisdictions with no grooming policy creates additional
concerns for the agency. Prisoners who are awaiting
transfers for other reasons will be delayed if prisoners
get moved first because the agency has to accommodate a
religious interest of another prisoner. The sheer
numbers of prisoners who may seek transfers for religious
accommodation reasons would threaten to overwhelm the
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system. Since the VDOC only conducts prisoner transfers
to other jurisdictions on a reciprocity basis, it would
be virtually impossible to arrange exchanges. There
would also be resentment from those prisoners who see
their own transfers delayed or made impossible because
others were moved ahead of them.
(J.A. 258).
In sum, given the record before us and the requirement that
courts give due deference to the expertise and experience of prison
officials, we affirm the district court’s judgment. See Hoevenaar
v. Lazaroff, 422 F.3d 366 (6th Cir. 2005) (upholding prison ban on
long hair against RLUIPA challenge), cert. denied, 127 S. Ct. 187
(2006); Ragland v. Angelone, 420 F. Supp. 2d 507 (W.D. Va. 2006)
(upholding challenge to VDOC’s Grooming Policy under RLUIPA by
Rastafarian who wanted to maintain long hair and beard within
regular prison population and without adverse consequences), aff’d,
193 Fed. Appx. 218 (Aug. 2, 2006), cert. denied, 127 S. Ct. 1877
(2007).
AFFIRMED
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