IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40156
LOUIS RAY GREEN, also known as Habib A. K. Khidar,
Plaintiff-Appellant
versus
ALLAN POLUNSKY, Chairman, Board of Criminal Justice; TEXAS BOARD OF
CRIMINAL JUSTICE; JERRY GROOM,
Defendants-Appellees
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
___________________________________________________
October 18, 2000
Before KING, Chief Judge, CUDAHY,* and WIENER Circuit Judges.
WIENER, Circuit Judge:
In this civil rights complaint against the Texas Department of
Criminal Justice and other named individuals (collectively “TDCJ”),
Plaintiff-Appellant Louis Ray Green, also known as Habib A. K.
Khidar (“Khidar”),1 appeals the ruling of the district court
*
Circuit Judge of the Seventh Circuit, sitting by designation.
1
Khidar sought to consolidate his claim with those of four
other similarly-situated inmates. This motion was denied by the
district court which ruled that each inmate must proceed
separately.
dismissing his claim under § 1915(e) both as frivolous and as
failing to state a claim on which relief could be granted.2 In his
initial complaint, Khidar contested TDCJ’s prison grooming policy
which requires prisoners to keep their hair cut short and their
faces shaved clean. An exception is made for prisoners with
medical conditions that are aggravated by shaving; they are allowed
to wear beards not to exceed 3/4 inch in length. Khidar contends
that the grooming policy coupled with the medical exception
infringes on his religious freedom by preventing him from wearing
an even shorter (1/4 inch) beard for religious reasons than inmates
with medical reasons are allowed to wear. We grant the prison
system broad discretion to create and implement internal policies
of penological importance; and as we conclude that the TDCJ has
legitimate reasons for its policy, we affirm the ruling of the
district court.
I.
Facts and Proceedings
Khidar is a Muslim, and the wearing of a beard is a tenet of
his faith. Proceeding pro se and in forma pauperis, Khidar filed
a claim pursuant to 42 U.S.C. § 1983, alleging that his civil
rights were violated by the TDCJ grooming policy. Specifically, he
claimed that the prison grooming policy requiring inmates to be
clean-shaven violates his First Amendment right to free exercise of
2
We address only the issue of the district court’s dismissal
for failure to state a claim on which relief could be granted and
do not address whether Khidar’s claim was frivolous.
2
religion. Khidar also sought to consolidate his claim with like
claims of four other inmates.
The district court refused to consolidate the claims of the
five inmates, ruling that each should be heard individually. It
then referred Khidar’s Free Exercise claim to a magistrate judge
and, pursuant to the recommendation of that judge, dismissed the
claim pursuant to 28 U.S.C. § 1915(e). Khidar timely appealed.
II.
Analysis
A. Standard of Review
We review a district court’s decision regarding the
consolidation of cases for abuse of discretion.3 We review de novo
the court’s dismissal for failure to state a claim, pursuant to 28
U.S.C. § 1915.4
B. Consolidation of Claims
Khidar appeals the district court’s denial of his motion to
consolidate his case with those of his fellow inmates. As our
review5 of the district court’s decision regarding consolidation
satisfies us that the court acted within its discretion in denying
3
See Lightbourn v. County of El Paso, Texas, 118 F.3d 421
(5th Cir. 1997).
4
See Ruiz v. United States, 160 F.3d 273, 273 (5th Cir.
1998).
5
“[W]e review a trial court’s decision to consolidate . . .
not merely for abuse of discretion but to determine as a matter of
law whether the joinder was proper.” United States v. Park, 531
F.2d 754, 760 (1976).
3
Khidar’s motion, we affirm the court’s ruling.
C. The Grooming Policy
Khidar challenges the TDCJ’s grooming policy on the ground
that it violates his free expression of religion as guaranteed
under the Free Exercise Clause of the First Amendment.6
Specifically, he argues that the policy is discriminatory by
allowing prisoners to maintain 3/4 inch beards if necessitated by
their medical conditions but not allowing even shorter beards to be
worn for religious reasons. Wearing beards is an accepted means of
expressing religious devotion for Muslims such as Khidar. We have
addressed the issue of prisoners wearing beards on a number of
occasions. Most notably, in Powell v. Estelle,7 we rejected a
challenge to a prison policy forbidding long hair and beards,
finding the policy to fall within the discretion granted to prison
officials for legitimate penological reasons. We have not yet
addressed the specific issue of short beards, raised here by
Khidar,8 but other Circuits have done so. Every Circuit that has
considered the issue of short beards under similar circumstances
6
Under an extremely liberal reading of this pro se appeal, we
might construe Khidar as also advancing an equal protection claim.
That issue was not briefed, however, and thus we deem it to be
abandoned. See Yohey v. Collins, 985 F.2d 222, 224 (5th Cir. 1993).
7
959 F.2d 22 (5th Cir. 1992).
8
Khidar requests that he and his fellow inmates be allowed to
wear a beard of 1/4 inch.
4
has upheld the prison grooming policies9 —— and we now join them,
convinced by the logic of their opinions.
In addressing claims of prisoners who allege that their civil
rights have been violated, we must remember that “’[l]awful
incarceration brings about the necessary withdrawal or limitation
of many privileges and rights, a retraction made necessary by the
considerations underlying our penal system.’”10 When reviewing the
policies of prison officials, we do so with deference, keeping
firmly in mind the difficult task before them in fulfilling “valid
penological interests —— including deterrence of crime,
rehabilitation of prisoners, and institutional security.”11
“[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.”12 “[S]everal factors
are relevant in determining the reasonableness of the regulation at
issue,”13 including:
(1) whether there is “a ’valid, rational connection’ between the
9
See, e.g., Hines v. South Carolina Dep’t of Corrections, 148
F.3d 353,358 (4th Cir. 1998); Harris v. Chapman, 97 F.3d 499, 504
(11th Cir. 1996); Friedman v. Arizona, 912 F.2d 328, 332 (9th Cir.
1990).
10
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct.
2400, 2404 (1987).
11
Id. at 349.
12
Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261
(1987).
13
Id.
5
prison regulation and the legitimate governmental interest put
forward to justify it,”14
(2) “whether there are alternative means of exercising the right
that remain open to prison inmates,”15
(3) “the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of
prison resources generally,”16 and
(4) the availability of other alternatives to the prison regulation
in question that would accommodate the prisoners’ rights at de
minimis cost to valid penological interests.17
The TDCJ grooming policy is obviously “reasonably related to
legitimate penological interests”18 and clearly satisfies the
foregoing factors. Prisons typically require inmates to be clean-
shaven and to keep their hair cut short for a number of valid
14
Id.
15
Id. at 90. In addressing this factor, we look to whether
inmates are allowed other means to express their religious beliefs
(on a general level) not whether they were allowed a means to
express their specific religious belief in the necessity of wearing
a beard. See O’Lone, 482 U.S. at 352. Khidar has neither alleged
nor likely could he successfully show, given our experience with
the Texas prison regulations, that he has been denied “all means of
express[ing]” his religious beliefs. Id.
16
Turner, 482 U.S. at 90.
17
See id. “[T]he absence of ready alternatives is evidence
of the reasonableness of a prison regulation. . . . By the same
token, the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable, but is an ‘exaggerated
response’ to prison concerns.” Id.
18
Id. at 89.
6
reasons. This practice is necessary for identification purposes:
Without it inmates would be able to change their appearances with
ease simply by shaving off their beards or cutting their hair.
This is especially relevant given the need for guards and other
officials who are not sufficiently familiar with all prisoners to
identify them quickly and easily, as when investigating escapes or
intra-prison crimes. Additionally, contraband such as drugs and
weapons can be hidden in long hair and beards, and guards
conducting searches for such items would be exposed to unnecessary
risks of harm. Conducting such operations under dangerous
conditions would greatly increase the time and expense of running
the prison system as well.
As we have held that these are legitimate penological
interests,19 and that a policy preventing inmates from growing long
hair and beards is reasonably related to such interests,20 the only
remaining question is whether the same logic can be applied to the
instant variation on that theme. We must determine specifically
whether Khidar’s complaint —— that inmates should be able to
maintain 1/4 inch beards for constitutionally guaranteed exercise
of religion when 3/4 inch beards are allowed to be worn by those
inmates for whom shaving aggravates a medical condition —— is
cognizable. At first blush, Khidar’s claim has an intuitive
appeal, as some of the accepted rationales for proscribing the
19
See Powell, 959 F.2d at 25.
20
See id.
7
wearing of beards would not apply to the wearing of beards of only
1/4 inch length. For instance, contraband or weapons could hardly
be hidden in a beard of such a short length. Also, the level of
the identification problem would be significantly reduced. Still,
a number of our fellow Circuits have addressed and rejected nearly
identical claims, and we are convinced, as are they, that this
grooming policy meets the requirements set forth by the Supreme
Court in Turner21 and O’Lone.22 First, the policy is neutral,
affecting all inmates, regardless of their religious beliefs. The
neutral and universal application of a policy requiring short hair
and clean-shaven faces serves the state’s penological interests in
a number of ways. Beards of any length can change one’s
appearance, and thus would be detrimental to the prison’s interest
in identifying prisoners internally as well as in the event of
escape. Beards and hairstyle are also used by inmates to signal
gang affiliations. Thus, the TDCJ has a legitimate interest
generally in preventing inmates from wearing even short beards.23
Khidar contends that these interests have already been negated
in this instance by the prison’s allowing inmates for whom shaving
aggravates a medical condition to wear 3/4 inch beards, so another
less intrusive exception should be made for those whose religious
beliefs involve the wearing of a beard. However reasonable this
21
482 U.S. at 89-91.
22
482 U.S. at 348-352.
23
See Hines, 148 F.3d at 358.
8
position may initially appear, a deeper analysis demonstrates the
impracticability of a religious exception. The number of inmates
warranting a medical exemption to the grooming policy is quite
small, but the number of inmates likely to seek qualification for
a religious exception would be much greater. In addition, such a
policy would place prison administrators in the untenable position
of trying to determine which asserted religious beliefs, and even
which professed religions, are legitimate.
Although the TDCJ grooming policy may not be the least
restrictive policy available to achieve the prison’s interests,
that is not what is required here.24 So long as the penological
interests at stake could not be achieved without depriving
prisoners of their rights, the policy’s infringement on those
rights must be abided. That is clearly the case here. Any
alternatives would impose significant costs on the prison system
and would likely increase the dangers that prison guards and
inmates already face. Neither does the TDCJ grooming policy
deprive Muslim inmates of “all means of expression”25 of their
religious beliefs. It merely removes or reduces one of many
avenues by which they may manifest their faith.
III.
Conclusion
Satisfied that the TDCJ’s grooming policy is a regulation
24
See Turner, 482 U.S. at 90.
25
Id. at 92.
9
“reasonably related to legitimate penological interests”26 —— and
that the medical exception for 3/4 inch beards does require
modification of the policy —— and further satisfied that the policy
does not unduly infringe on Khidar’s rights under the Free Exercise
Clause, we decline Khidar’s invitation to invalidate the policy or
to order the TDCJ to modify its policy by permitting 1/4 inch
beards for religious observance. We therefore affirm the decision
of the district court dismissing Khidar’s claim.
AFFIRMED.
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26
Id. at 89.
10