PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM R. COUCH,
Plaintiff-Appellant,
v.
No. 11-6560
JOHN M. JABE; DANIEL A.
BRAXTON; STEVE HOLLAR,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, District Judge.
(5:10-cv-00072-SGW-JGW)
Argued: March 23, 2012
Decided: May 11, 2012
Before Sandra Day O’CONNOR, Associate Justice
(Retired), Supreme Court of the United States, sitting by
designation, TRAXLER, Chief Judge, and SHEDD,
Circuit Judge.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Justice O’Connor and
Judge Shedd joined.
2 COUCH v. JABE
COUNSEL
ARGUED: Jeffrey Edward Fogel, Charlottesville, Virginia,
for Appellant. Earle Duncan Getchell, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellees. ON BRIEF: Kenneth T. Cuccinelli, II,
Attorney General of Virginia, Charles E. James, Jr., Chief
Deputy Attorney General, Wesley G. Russell, Jr., Deputy
Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
OPINION
TRAXLER, Chief Judge:
William R. Couch, a Sunni Muslim currently incarcerated
in a state correctional facility, brought this action alleging that
prison officials violated the Religious Land Use and Institu-
tionalized Persons Act ("RLUIPA") by refusing to permit him
to grow a one-eighth-inch beard in compliance with the
requirements of his faith. The district court granted summary
judgment to the prison officials, and Couch appeals. Because
the prison officials did not explain how a one-eighth-inch
beard would implicate health or security concerns, they failed
to satisfy their burden under RLUIPA of showing that the
general grooming policy that they rely upon is the least
restrictive means of furthering a compelling governmental
interest. Accordingly, we vacate the grant of summary judg-
ment and remand for further proceedings.
I.
Couch is a prisoner in the Augusta Correctional Center in
Craigsville, Virginia. He has been incarcerated since 1990 and
is serving multiple life sentences. As a Sunni Muslim, Couch
claims that his religion requires that he grow a beard. Prior to
COUCH v. JABE 3
1999, he continuously maintained a beard in compliance with
his faith.
In 1999, however, the Virginia Department of Corrections
("VDOC") instituted a grooming policy ("Policy"), which
applies to the Augusta Correctional Center. The purpose of
the Policy is "to facilitate the identification of offenders and
to promote safety, security, and sanitation." J.A. 18. Under the
policy, "[n]o beards . . . are allowed." J.A. 20. The policy fur-
ther states that "beards that could conceal contraband; pro-
mote identification with gangs; create a health, hygiene, or
sanitation hazard; or could significantly compromise the abil-
ity to identify an offender are not allowed." J.A. 19. Excepted
from the prohibition on beards, however, are inmates who
receive a "No Shave Pass" from a prison’s medical authority
based on a medical condition that is aggravated by shaving.
Prisoners with a "No Shave Pass" are permitted to maintain
a one-fourth-inch beard.
Prisoners without a "No Shave Pass" who nonetheless grow
a beard are first given an order to shave. If they refuse to com-
ply with the order, they are initially segregated from the gen-
eral prison population. Continued refusal to comply with the
grooming standards results in a transfer to the Graduated Priv-
ilege Program ("GPP"), which is located in a separate facility.
The GPP is a program in which prisoners "have certain privi-
leges restricted for a short term so that they may focus on
more appropriate behaviors to enter regular general popula-
tion." J.A. 36. Some of the privileges that are restricted or
limited as part of the GPP include access to personal property,
movement rights, the right to eat and associate with others,
recreation time, and visitation time.
In December of 2009, Couch requested permission to grow
a one-eighth-inch beard in order to comply with his religious
obligations.1 He suggested that the prison’s ability to accom-
1
Although the record is not clear on this point, Couch appears to have
complied with the Policy from the time it went into effect in 1999 until
his request in December of 2009.
4 COUCH v. JABE
modate medically exempt prisoners who grow one-fourth-
inch beards shows that a shorter one-eighth-inch beard would
not be problematic. Couch’s initial request and all of his sub-
sequent requests, including an Informal Complaint, a Regular
Grievance (Level I), and an appeal from the Regular Griev-
ance (Level II), were denied.
Having exhausted his administrative remedies, Couch filed
a civil action in the Western District of Virginia against John
Jabe, the Deputy Director of Operations for the VDOC; Dan-
iel Braxton, the Warden of the Augusta Correctional Center;
and Steve Hollar, the Assistant Warden of the Augusta Cor-
rectional Center (collectively the "Prison Officials"). In his
two-count complaint, Couch alleged a violation of his First
Amendment right to free exercise of religion and a violation
of RLUIPA. The parties filed cross-motions for summary
judgment, and the district court granted summary judgment to
the Prison Officials. On appeal, Couch challenges this grant
of summary judgment, raising his RLUIPA claim only.
II.
"We review a district court’s grant of a motion for sum-
mary judgment de novo, applying the same legal standards as
the district court." Nader v. Blair, 549 F.3d 953, 958 (4th Cir.
2008). Summary judgment is proper where there is no genu-
ine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
RLUIPA provides, in pertinent part, that
[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or
confined to an institution . . . unless the government
demonstrates that imposition of the burden . . . (1) is
in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering
that compelling governmental interest.
COUCH v. JABE 5
42 U.S.C. § 2000cc-1(a). A plaintiff bears the burden of per-
suasion on whether the policy or practice substantially bur-
dens his exercise of religion. See 42 U.S.C. § 2000cc-2(b). If
the plaintiff satisfies this requirement, the government must
then prove that the challenged policy is the least restrictive
means of furthering a compelling governmental interest. Id.
§ 2000cc-1(a); Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.
2009). "As to those elements on which it bears the burden of
proof, a government is only entitled to summary judgment if
the proffered evidence is such that a rational factfinder could
only find for the government." Smith, 578 F.3d at 250.
A. Substantial Burden on Religious Exercise
RLUIPA defines the term "religious exercise" broadly to
include "any exercise of religion, whether or not compelled
by, or central to, a system of religious belief." 42 U.S.C.
§ 2000cc-5(7)(A). Couch testified that the primary religious
texts of Islam command that he grow a beard and that the
refusal to maintain a beard is a sin comparable in severity to
eating pork. Accordingly, we find that maintaining a beard is
a qualifying religious exercise under RLUIPA in this case.
See Smith, 578 F.3d at 249, 251 (Rastafarian’s desire to grow
hair was qualifying religious exercise); Warsoldier v. Wood-
ford, 418 F.3d 989, 991, 996 (9th Cir. 2005) (Native Ameri-
can’s desire to grow hair was qualifying religious exercise).
RLUIPA does not define the term "substantial burden";
however, we have explained that a substantial burden
is one that put[s] substantial pressure on an adherent
to modify his behavior and to violate his beliefs, or
one that forces a person to choose between following
the precepts of h[is] religion and forfeiting [govern-
mental] benefits, on the one hand, and abandoning
one of the precepts of h[is] religion . . . on the other
hand.
6 COUCH v. JABE
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (internal
citation and quotation marks omitted). The stated purpose of
the GPP is "to guide the offender to more appropriate behav-
iors," J.A. 36, a purpose that is achieved, in part, by limiting
or taking away governmental benefits. The practices imple-
mented through the GPP fit squarely within the accepted defi-
nition of "substantial burden." See Warsoldier, 418 F.3d at
995-96 (removing privileges in effort to compel compliance,
despite not physically forcing inmate to cut his hair, qualifies
as substantial burden). Therefore, Couch has satisfied his obli-
gation of showing a substantial burden on his religious exercise.2
B. Compelling Governmental Interest
Because Couch has demonstrated a substantial burden on
his religious exercise, we turn next to the Prison Officials’
burden under RLUIPA. We first address whether the Prison
Officials can establish that the denial of Couch’s request was
in furtherance of a compelling governmental interest. See 42
U.S.C. § 2000cc-1(a)(1).
Although RLUIPA must "be construed in favor of a broad
protection of religious exercise," 42 U.S.C. § 2000cc-3(g), it
must be applied "with particular sensitivity to security con-
cerns," Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). In this
regard, "RLUIPA [is not meant] to elevate accommodation of
religious observances over an institution’s need to maintain
order and safety." Id. We must "apply the Act’s standard with
due deference to the experience and expertise of prison and
jail administrators in establishing necessary regulations and
procedures." Id. at 723 (internal quotation marks omitted).
However, "a court should not rubber stamp or mechanically
accept the judgments of prison administrators." Lovelace, 472
2
The district court assumed, for the purpose of the parties’ cross-
motions for summary judgment, that the Policy substantially burdens
Couch’s religious beliefs. J.A. 53 n.3. The Prison Officials have not con-
tested that finding on appeal.
COUCH v. JABE 7
F.3d at 190. Rather, due deference will be afforded to those
explanations that sufficiently "take[ ] into account any institu-
tional need to maintain good order, security, and discipline."
Id.
We have explained that the burden of justifying a policy in
terms of security concerns is an "unremarkable step." Id.
However, we have also found some attempts to demonstrate
compelling governmental interests to be insufficient. See
Smith, 578 F.3d at 252 (justification that policy was "‘for
security reasons’ . . . does not, by itself, explain why the
security interest is compelling" (internal citation omitted));
Lovelace, 472 F.3d at 190 (bare assertion of a "‘legitimate
interest’" without further explanation is "superficial" and
insufficient). These results are consistent with the notion that
"the mere assertion of security or health reasons is not, by
itself, enough for the Government to satisfy the compelling
governmental interest requirement." Washington v. Klem, 497
F.3d 272, 283 (3d Cir. 2007). "Rather, the particular policy
must further th[e asserted] interest." Id.
To satisfy this burden, the Prison Officials relied on an affi-
davit from John M. Jabe, the Deputy Director of Operations
for the VDOC. Jabe explained that the Policy furthers various
health and security interests:
Hair styles and beards that could conceal contra-
band; promote identification with gangs; create a
health, hygiene or sanitation hazard; or could signifi-
cantly compromise the ability to identify an offender
are not allowed.
...
Regarding facial hair, no beards or goatees are
allowed. In addition to security concerns, positive
identification of each inmate is important in the
event of escape from confinement. Prisoners with
8 COUCH v. JABE
long hair and beards can rapidly change their appear-
ance so as to compromise the need for rapid identifi-
cation. Even inside the prison, positive, quick
identification of inmates facilitates the orderly opera-
tion of each facility.
J.A. 13-14.
Unlike the explanations deemed insufficient in Smith and
Lovelace, Jabe’s affidavit connected the Policy’s restrictions
to specific health and security concerns and showed that those
concerns are furthered by the Policy. See Jova v. Smith, 582
F.3d 410, 416 (2d Cir. 2009) (finding a compelling interest
based on "affidavits and exhibits which showed that the
restrictions imposed . . . were justified by powerful security
and administrative interests"). Giving due deference to Jabe’s
experience and expertise, as we must, see Cutter, 544 U.S. at
723, we find that the Policy, which prohibits Couch from
growing a beard, is in furtherance of compelling governmen-
tal interests. Cf. DeMoss v. Crain, 636 F.3d 145, 153-54 (5th
Cir. 2011) (per curiam) (finding no clear error in district
court’s conclusion at bench trial that grooming policy fur-
thered compelling interests within a prison based on security
concerns such as easy identification, gang affiliation, and the
ability to conceal contraband within a beard).
C. Least Restrictive Means
The Prison Officials must also establish that the Policy is
the least restrictive means of furthering the compelling gov-
ernmental interests that they identify. See 42 U.S.C. § 2000cc-
1(a)(2). Couch proposed a less restrictive alternative to the
Policy: a religious exemption from the Policy, which would
permit him to grow and maintain a one-eighth-inch beard.3 To
3
The Prison Officials argue on appeal that Couch never proposed a less
restrictive alternative to the Policy and that they are, therefore, not obli-
gated to explain why less restrictive measures would be inadequate. With-
COUCH v. JABE 9
satisfy their burden of showing that the Policy, rather than
Couch’s proposed less restrictive alternative, was the least
restrictive means of furthering the identified compelling inter-
ests, the Prison Officials merely deferred to the Policy’s pro-
scriptions and the associated compelling interests without
addressing whether those interests would be furthered or frus-
trated by the less restrictive measure proposed by Couch.4
More specifically, Jabe testified in his affidavit that beards
create health and security problems and that the Policy pro-
out weighing in on the legal merits of this argument, we note that the
record belies the contention that Couch did not propose a less restrictive
alternative. Couch made several requests for a religious exemption, see
J.A. 7 (alleging in his complaint the "request[ ] that, due to his sincerely
held religious beliefs, he be permitted to maintain facial hair not to exceed
1/8" in length"); J.A. 22 (explaining in grievance, "I want to be allowed
to grow a beard, as mandated by my Islamic faith, which comports in all
respects to the beard permitted under the VDOC’s medical exemption"),
and the Prison Officials understood that Couch was requesting a religious
exemption, see J.A. 13 ("[H]is request to grow a 1/8 inch beard in obser-
vance of his religious beliefs has been denied."); J.A. 22 (Couch explain-
ing that a prison official "said VDOC doesn’t have a religious exemption
for beards"); J.A. 23 (a prison official explaining that "[t]he only Policy
[that permits beards] is . . . only for medical reasons"). Moreover, a reli-
gious exemption from a broad grooming policy has been found to qualify
as a proposed less restrictive measure under the RLUIPA framework. See
DeMoss v. Crain, 636 F.3d 145, 154 (5th Cir. 2011) (per curiam).
4
Counsel for the Prison Officials also asserted, in his Response to Plain-
tiff’s Motion for Summary Judgment, that a religious exemption would
raise several security concerns. As support for this assertion, however,
counsel does not rely on an affidavit from a prison official that is in the
record of this case. Rather, he bases his assertion on an affidavit that was
in the record of a separate, unrelated case from an alleged former director
of VDOC. Counsel then claims, without support, that this alleged director
was the director at all relevant times in the instant case. This is not evi-
dence that is sufficient to satisfy the Prison Officials’ burden. See Clifford
v. Crop Prod. Servs., 627 F.3d 268, 273 n.6 (7th Cir. 2010) ("[T]he state-
ments of lawyers are not evidence."); see also Cardoso v. Calbone, 490
F.3d 1194, 1197 (10th Cir. 2007) ("Unsubstantiated allegations carry no
probative weight in summary judgment proceedings." (internal quotation
marks omitted)).
10 COUCH v. JABE
hibits beards unless an inmate has a "No Shave Pass." Gary
Bass, the Chief of Operations for Offender Management Ser-
vices for the VDOC, testified in his affidavit that prisoners
who do not comply with the Policy are transferred to the GPP.
Counsel for the Prison Officials suggested at oral argument
that the testimony in these affidavits was sufficiently respon-
sive to satisfy the Prison Officials’ burden of showing least
restrictive means. We disagree.
"RLUIPA adopts a . . . strict scrutiny" standard. Lovelace,
472 F.3d at 198 n.8; see also Vision Church v. Vill. of Long
Grove, 468 F.3d 975, 996 (7th Cir. 2006) ("RLUIPA pro-
vide[s] that, if a facially-neutral law . . . imposes a substantial
burden on religion, it is subject to strict scrutiny."); Grace
United Methodist Church v. City of Cheyenne, 451 F.3d 643,
661 (10th Cir. 2006) ("RLUIPA sets up a strict scrutiny stan-
dard . . . ."). In strict scrutiny contexts other than RLUIPA,
"the Supreme Court has suggested that the Government must
consider and reject other means before it can conclude that the
policy chosen is the least restrictive means." Washington, 497
F.3d at 284. Requiring the same consideration in the RLUIPA
context is sensible in light of the statute’s plain language. See
id. ("[T]he phrase ‘least restrictive means’ is, by definition, a
relative term. It necessarily implies a comparison with other
means."). Consistent with this reasoning, several circuits have
held that the government, in the RLUIPA context, "cannot
meet its burden to prove least restrictive means unless it dem-
onstrates that it has actually considered and rejected the effi-
cacy of less restrictive measures before adopting the
challenged practice." Warsoldier, 418 F.3d at 999; accord
Washington, 497 F.3d at 284; Spratt v. Rhode Island Dep’t of
Corr., 482 F.3d 33, 41 (1st Cir. 2007).
Although we have not explicitly set out that requirement,
we have required that the government, consistent with the
RLUIPA statutory scheme, acknowledge and give some con-
sideration to less restrictive alternatives. For instance, in
Smith, we vacated a grant of summary judgment in favor of
COUCH v. JABE 11
several prison officials on the ground that the affidavit they
relied upon was insufficient to show that forcibly shaving
inmates was the least restrictive means of furthering the iden-
tified compelling governmental interest. See 578 F.3d at 253-
54. We found the Smith affidavit to be deficient, in part,
because it was general and did not indicate consideration of
less restrictive alternatives. See id. at 253 (noting that affida-
vit "makes the conclusory argument that uniform application
of the forced grooming policy is necessary"); id. at 253-54
(explaining that the affidavit "makes no attempt whatsoever to
explain that hygiene and security concerns . . . cannot be
accommodated without forcibly shaving the heads of prison-
ers who wear long hair due to religious belief"). The Smith
affidavit was also deficient because it failed to explain how
the prison could accommodate other exceptions to the groom-
ing policy but could not accommodate a religious exception.
See id. at 254 (noting that the affidavit "does not explain why
the [department of corrections] is able to deal with hygiene
and security concerns with respect to female inmates who
must keep their hair at least one (1) inch long" (internal quota-
tion marks and emphasis omitted)).5
The affidavits relied upon by the Prison Officials in this
case suffer from many of the same deficiencies identified in
the Smith affidavit. For instance, the affidavits of Jabe and
5
The district court relied on McRae v. Johnson, 261 F. App’x 554 (4th
Cir. 2008) (per curiam), and DeMoss, cases in which the Fourth and Fifth
Circuits, respectively, found that the challenged policy was the least
restrictive means of furthering the asserted interests. We do not find those
cases to be particularly helpful. Unlike Smith and the instant case, those
cases involved government testimony that specifically addressed the least-
restrictive-means issue. See DeMoss, 636 F.3d at 154 ("The district court
heard testimony from several prison officials explaining why neither of
DeMoss’s proposed alternatives to the grooming policy—allowing a reli-
gious exemption or allowing all inmates to grow one-quarter-inch
beards—satisfied the prison’s compelling security concerns."); McRae,
261 F. App’x at 557 ("Director Johnson . . . testified that the VDOC’s
Grooming Policy is the least restrictive means of addressing the[ ] inter-
ests" identified.).
12 COUCH v. JABE
Bass set forth the prison’s general rules and procedures as
they relate to the Policy. Apart from merely reiterating
Couch’s request, neither affidavit addresses the feasibility of
implementing a religious exemption or discusses whether a
one-eighth-inch beard would in fact implicate the identified
health and security concerns in the Policy. The affidavits are
also similar to the Smith affidavit insofar as they fail to
explain how the prison is able to deal with the beards of medi-
cally exempt inmates but could not similarly accommodate
religious exemptions.6 Moreover, at no point did Jabe or Bass
even assert that the Policy was the least restrictive means of
furthering the identified compelling interests.
In sum, the Prison Officials failed to indicate any consider-
ation of whether Couch’s proposed alternative might be
equally as successful as the Policy in furthering the identified
compelling interests, and they failed to provide any acknowl-
edgment that a religious exemption for a one-eighth-inch
beard would implicate the identified compelling interests. The
Prison Officials, therefore, did not satisfy their burden of
showing that the Policy was the least restrictive means of fur-
thering the identified compelling interests.
We note in conclusion that this result is not inconsistent
with our obligation to defer to the wisdom and judgment of
prison officials on matters of security. See Cutter, 544 U.S. at
723. In this case, the Prison Officials simply failed to provide
any explanation to which this court could defer. "That expla-
nation, when it comes, will be afforded due deference." Love-
lace, 472 F.3d at 190.
6
To be certain, the affidavit in Smith suffered from additional deficien-
cies that are not present in the instant matter. For example, that affidavit
was initially prepared and submitted in another case and dealt solely with
a housing unit in which Smith was not incarcerated. See 578 F.3d at 252.
This factual distinction does not diminish the relevance of that case to the
instant matter.
COUCH v. JABE 13
III.
For the foregoing reasons, we vacate the district court’s
grant of summary judgment and remand for further proceed-
ings consistent with this opinion. On remand, the Prison Offi-
cials may, if appropriate, renew their motion for summary
judgment.
VACATED AND REMANDED