Iron Eyes v. Henry

907 F.2d 810, 1990 WL 91042

Opinions

JOHN R. GIBSON, Circuit Judge.

Robert Iron Eyes appeals from the district court’s¹ order dismissing his complaint for damages and injunctive relief under 42 U.S.C. § 1983 (1982). Iron Eyes is a Sioux Indian and was an inmate at Missouri’s Farmington Correctional Center.² He challenges a prison grooming regulation which requires all prisoners to wear their hair above their collars. Iron Eyes has had his hair cut twice under this rule. After a non-jury trial, the district court entered an order denying him all relief and dismissing his complaint with prejudice. This appeal followed. We affirm the district court.

I.

Iron Eyes was born on the Standing Rock Reservation in Fort Yates, North Dakota, and is an enrolled member of the Standing Rock Sioux Tribe. He was raised in the ways of the Sioux culture and has followed the traditional practices of Sioux religion since his youth. Iron Eyes identifies his religion as the pipe religion. Among the tenets of his religion are the pipe ceremony, the sun dance, the ghost dance, and the use of a sweat lodge. These last two tenets are prohibited at Farming-ton. Iron Eyes also follows other traditional practices of his religion, including the wearing of long hair.

This case revolves around Iron Eyes’ desire to grow his hair longer than is allowed under the prison regulation. He believes that his hair is a gift from the Great Spirit, and he considers cutting his hair, except to symbolize grief for the loss of a loved one, to be an offense to the Creator. Iron Eyes has had his hair cut five times during his twenty-seven years. The first three times he cut his hair by choice, in mourning for the loss of a loved one, consistent with the Sioux religion. The last two times his hair has been forcibly cut because of a Missouri prison grooming regulation.³ These last two instances gave rise to the lawsuit currently before us.

Iron Eyes’ most recent incarceration began in October, 1987.⁴ During an earlier one-year term at Farmington, no attempt was made to cut his hair. At the start of his second term, however, Iron Eyes was directed to cut his hair by a Corrections Supervisor, Captain Joe Rosenberg. Iron Eyes protested, arguing that his religious beliefs, as a Native American, required him to wear long hair. Captain Rosenberg then requested that Iron Eyes’ record be reviewed for proof of his heritage. According to Captain Rosenberg, this search uncovered no indication that Iron Eyes was a Native American.

Nothing further was done concerning Iron Eyes until December of 1987. At that time he was again ordered to have his hair cut to conform with the requirements of the grooming regulation. When he refused, he was removed to disciplinary segregation and, while shackled and handcuffed, his hair was cut by a prison barber. On March 3, 1988, Iron Eyes instituted this action by filing a pro se complaint under 42 U.S.C. § 1983.

Ten months passed before Iron Eyes’ hair again became an issue. On September 22, 1988, he was again ordered to have his hair cut to conform with the grooming regulation. Four days later he obtained a temporary restraining order barring prison officials from cutting his hair.

On October 13, 1988, Iron Eyes filed a second amended complaint which prayed for injunctive relief to prevent any further cutting of his hair and compensatory and punitive damages for the hair cutting incident in December of 1987. Until this preliminary injunction hearing, Iron Eyes had not attempted to gain permission to wear his hair long under the exception for Native Americans in the grooming regulation. See Div. Rul. 116.050(3)(A). After the hearing, Iron Eyes provided Farmington officials with written proof that he was an enrolled member in the Standing Rock Sioux Tribe. Dennis Dowd, Superintendent of Farmington, then forwarded this information, pursuant to Rule 116.050(3)(A), to the Zone Director of the Division of Adult Institutions, who denied Iron Eyes permission to wear his hair long under the exception to the regulation. Following this denial, a bench trial was held, after which the district court entered an order in favor of the Farmington officials. Iron Eyes then requested a temporary injunction, pending appeal, which the district court denied. Soon thereafter, he filed a similar motion with this court. While this motion was pending before us, Iron Eyes was once again given the choice of disciplinary segregation or cutting his hair. Again, he complied with the officials’ order rather than face further punishment. Iron Eyes appeals the district court’s judgment.⁵

II.

Initially we recognize “that issues of prison management are, both by reason of separation of powers and highly practical considerations of judicial competence, peculiarly ill-suited to judicial resolution, and that, accordingly, courts should be loath to substitute their judgment for that of prison officials and administrators.” Pitts v. Thornburgh, 866 F.2d 1450, 1453 (D.C.Cir.1989). See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987). Nevertheless, because prison inmates “do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979), “federal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner, 482 U.S. at 84, 107 S.Ct. at 2259. Valid constitutional claims include actions based on an inmate’s free exercise rights under the first amendment. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).

To support his position, Iron Eyes relies primarily on Teterud v. Burns, 522 F.2d 357 (8th Cir.1975), in which we held that a prison hair regulation impermissibly infringed upon a Native American’s first amendment right to freely exercise his religious beliefs because “[t]he proof at trial established that the legitimate institutional needs of the penitentiary can be served by viable, less restrictive means which will not unduly burden the administrator’s task.” Id. at 362. While Teterud has not been expressly overruled, we have limited it to its facts. See Butler-Bey v. Frey, 811 F.2d 449, 451 (8th Cir.1987) (upholding a prison ban on fezes because of the risks of concealed contraband); Hill v. Blackwell, 774 F.2d 338, 347-48 (8th Cir.1985) (upholding a prison regulation on beard length). Further, the least restrictive means test we applied in Teterud has been rejected by the Supreme Court. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 350, 107 S.Ct. 2400, 2405, 96 L.Ed.2d 282 (1987); Turner, 482 U.S. at 89, 107 S.Ct. at 2261.

A prisoner’s free exercise claim is currently “judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404. The specific standard of review for such a claim was set out by the Court in Turner: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89, 107 S.Ct. at 2261. These penological objectives include rehabilitation, deterrence, and security. O’Lone, 482 U.S. at 348, 107 S.Ct. at 2404. In Turner the Court discussed several factors for determining the reasonableness of the regulation at issue: (1) whether there is a valid, rational connection between the prison regulation and the legitimate, neutral governmental interest used to justify it; (2) whether there exist alternative means for prisoners to exercise the constitutional right at issue; (3) the impact that would be caused by accommodation of the right on prison staff, inmates, and allocation of prison resources; and (4) whether any alterative exists that would fully accommodate the prisoner’s rights at de min-imis cost to valid penological interests. Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63.

III.

Before the Turner factors are applied to a prisoner’s free exercise claim, the inmate must first establish the existence of a sincerely held religious belief, and that the challenged regulation infringes upon that belief. See Hill, 774 F.2d at 342-43. On appeal, Farmington officials contend that Iron Eyes did not sincerely hold a religious belief against the cutting of his hair. To support this position, they argue first that Iron Eyes’ belief was not sincerely held, and second that wearing long hair is not an essential tenet of his religion. The district court considered both the sincerity of Iron Eyes’ belief and the basis for that belief, and held that his need to wear his hair long was religious in nature and sincerely held. The court noted that Iron Eyes had maintained Sioux religious beliefs throughout his life, and that he had participated in religious ceremonies whenever possible. The court also recognized the importance of wearing long hair to Native Americans, citing Teterud, 522 F.2d at 360 n. 6. The court’s determination that Iron Eyes’ desire to abstain from cutting his hair was based on a sincerely held religious belief is factual in nature and thus is subject to the clearly erroneous standard of review. See Butler-Bey, 811 F.2d at 450. From our review of the record, we cannot conclude that this determination is clearly erroneous. Therefore, we now review the questioned regulation under the factors discussed in Turner. Since the district court’s application of these factors is based upon the application of legal principles to subsidiary facts, we undertake a de novo review. See Hill, 774 F.2d at 343; Salaam v. Lockhart, 856 F.2d 1120, 1122 (8th Cir.1988).

A.

Under the first Turner variable, “we must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective.” Thornburgh v. Abbott, — U.S. -, 109 S.Ct. 1874, 1882, 104 L.Ed.2d 459 (1989). Farmington officials advance two reasons for the grooming policy at issue in this case: (1) to prevent prisoners from concealing contraband; and (2) to alleviate confusion in prisoner identification. These are both security concerns, and security is clearly a valid penological objective. See O’Lone, 482 U.S. at 348, 107 S.Ct. at 2404. Further, in light of the Native American exception to the regulation, we believe it is neutral. It is true that Iron Eyes was denied his request for exemption from the regulation, but that denial is not the issue before us today, and we do not consider it. Thus, since the grooming regulation is legitimate and neutral, the only remaining issue concerning the first Turner factor is whether the regulation is rationally related to the security objectives identified by the Farmington officials. The district court found that there was a logical connection between the regulation and objectives; we see no reason to disagree.

The Farmington officials contend that long hair would facilitate the smuggling of contraband. Iron Eyes counters by arguing that numerous other options exist for prisoners who wish to smuggle contraband, such as bonnets, handkerchiefs, and large boots, all of which are allowed by Farming-ton officials. (Tr. 112). The mere existence of other options for smuggling, however, does not sever the link between the regulation and the officials’ security concerns. We are also not convinced by Iron Eyes’ argument that contraband could be smuggled in an inmate’s hair within the length set by the regulation, nor by his argument that contraband has never been found in an inmate’s hair at Farmington. Therefore, we conclude that there is a logical connection between the grooming regulation and the Farmington officials’ desire to prevent the smuggling of contraband. See Pollock v. Marshall, 845 F.2d 656, 658-59 (6th Cir.), cert. denied, 488 U.S. 987, 109 S.Ct. 239, 102 L.Ed.2d 228 (1988); Martinelli v. Dugger, 817 F.2d 1499, 1506 n. 23 (11th Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988); Cole v. Flick, 758 F.2d 124, 126-27, 131 (3d Cir.), cert. denied, 474 U.S. 921, 106 S.Ct. 253, 88 L.Ed.2d 260 (1985).

Farmington officials also argue that long hair would enable a prisoner to quickly alter his appearance to avoid detection upon escape or within the Farmington facility. They state that if a prisoner escapes, photocopies of his prison photograph are distributed to law enforcement officials to aid in the escapee's apprehension. Farm-ington officials contend that a prisoner with long hair could either keep it long or cut it off, possibly changing significantly his appearance from his initial prison photograph, and thus necessitating multiple pictures to ensure that law enforcement officials have at least one photograph matching the prisoner’s appearance. Iron Eyes argues that rephotographing is simply a nuisance, which could be achieved easily, and further that he was never photographed with short hair, despite the fact that his hair was forcibly cut twice while incarcerated. We cannot deny the strength of Iron Eyes’ argument here. If identification concerns are so important for security, it is incredulous that the prison officials, after forcibly cutting Iron Eyes’ hair, failed to rephotograph him. Regardless, the officials’ security fears concerning identification create a rational link between that objective and the regulation. Allowing prisoners to wear long hair would enable them to quickly alter their appearance, and could conceivably hinder their identification, whether inside or outside the walls of the Farmington facility. See Pollock, 845 F.2d at 658-59; Cole, 758 F.2d at 126, 128-29.

Accordingly, we hold that the district court properly found a rational nexus between the short hair regulation and the valid neutral penological concerns behind it.

B.

The second factor that “the Court in Turner held to be ‘relevant in determining the reasonableness of a prison restriction ... is whether there are alternative means of exercising the right that remain open to prison inmates.’ ” Abbott, — U.S. -, 109 S.Ct. at 1883 (quoting Turner, 482 U.S. at 90, 107 S.Ct. at 2262). Iron Eyes argues that the right in this case is to grow his hair in conformity with his religion. We cannot adhere to such a narrow definition of “the right” at issue. “As has already been made clear in Turner and O’Lone, ‘the right’ in question must be viewed sensibly and expansively.” Id. Accordingly, the actual “right” in this case concerns Iron Eyes’ ability to freely practice his religion. Although several of the practices important to his religion are not permitted by the regulations at Farmington, including the ghost dance, the use of a sweat lodge, and allowing one’s hair to grow, others are allowed. These include meeting with other Native Americans to perform pipe ceremonies and the sun dance. Certainly, the short hair regulation places hardship on Iron Eyes, but by breaking the law, a prisoner brings upon himself “the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” O’Lone, 482 U.S. at 348, 107 5.Ct. at 2404 (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)). Since the regulation at issue does not preclude Iron Eyes from practicing some of the tenets of his religion, this factor also favors the prison officials.

C.

The next Turner factor concerns the impact that accommodating Iron Eyes would have on the guards, other inmates, and allocation of prison resources at the Farm-ington facility. Farmington officials indicate that prisoners with long hair would require more attention, including additional pat-down searches, because of the increased risk of contraband smuggling. They state that these searches would also take longer because of the necessity of carefully searching the longer hair. This would stretch already scarce prison resources by forcing guards to spend more time monitoring a small number of inmates. Further, it would increase the risk to guards, because of the close proximity required and the animosity generated by such searches. The cost of these searches cannot be easily measured, but we cannot find error in the district court’s finding that striking this regulation would come at the cost of a significant loss of safety to others.

Farmington has only a small number of Native Americans.⁶ The Farmington officials argue that exempting Iron Eyes from the grooming regulation could create prisoner friction and unrest at their facility. The danger of prisoner friction and unrest resulting from giving, or appearing to give, special treatment to one group of prisoners has been recognized by several courts. See Fromer v. Scully, 874 F.2d 69, 76 (2nd Cir.1989); Martinelli, 817 F.2d at 1506 n. 23; cf. O’Lone, 482 U.S. at 353, 107 S.Ct. at 2406. We believe that these concerns are valid, and that this is a situation where it is appropriate for courts to defer to prison officials “who are actually charged with and trained in the running of the particular institution under examination.” Id. at 349, 107 S.Ct. at 2404 (quoting Bell, 441 U.S. at 562, 99 S.Ct. at 1886).

D.

Under the final Turner factor, we must ascertain whether an obvious, easy alternative to the current regulation exists, and if one does exist, if it can be implemented at a de minimis cost to valid penological interests. See Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262-63. The only viable alternative, in light of our consideration of the previous factors, the Native American exception to the grooming regulation, has already been implemented.⁷ Any other solution would come at more than a de min-imis cost to valid penological interests.

The regulation allowed Native Americans, with permission of prison officials, to grow their hair longer than allowed by the short hair regulation. Iron Eyes sought such an exemption and failed. It is not clear if he had any administrative appeal option of that decision. Regardless, the exemption option was open to him. This option allowed the zone director to make an exception to the short hair rule if he deemed it appropriate for the prisoner and the prison. As set out previously, any prisoner with long hair would create problems; this exception simply allows the corrections officials to decide when such problems would be outweighed by the resultant benefits. According to the record, three Native Americans at the Farmington facility, including Iron Eyes, have applied for this exemption, and none have been granted. Again, we believe that this is an area where courts should defer to the “informed discretion of corrections officials.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262.

IV.

Although we recognize how important the growing of his hair is to Iron Eyes, we simply cannot, under the Turner factors, justify striking the short hair regulation at issue. This does not mean that in the future Iron Eyes, or an inmate similarly situated, could not administratively appeal a denial by the zone director of a hair length exemption, or challenge the constitutionality of the regulation as applied to him.

Recently two of the other circuits have faced somewhat similar issues with differing results. See Fromer v. Scully, 874 F.2d 69 (2d Cir.1989) (prison regulation which prohibited inmates from wearing beards longer than one inch in length did not violate the free exercise rights of an Orthodox Jew), and Whitney v. Brown, 882 F.2d 1068 (6th Cir.1989) (prison policy which eliminated Jewish inmates’ intercom-plex travel to weekly Sabbath services and annual Passover Seders was an impermissible infringement upon the Jewish inmates’ free exercise rights).

Although we affirm the district court, we have serious concerns regarding the position of the State in two respects. First, Iron Eyes was initially required to present proof that he was a Native American. Iron Eyes' prison photographs, which were in evidence in this case, together with his name, make this request an action just short of harassment. Second, we were deeply concerned that, while a motion for temporary injunction pending appeal was pending before this court, Iron Eyes was given the choice of disciplinary segregation or a hair cut, and he elected to comply with the order rather than face punishment. Such action in appropriate circumstances may require that we consider sanctions for contempt.

In this case the impingement of Iron Eyes’ right to free exercise of religion is outweighed by the validity of the regulation under the Turner criteria. Accordingly, we affirm the district court’s order.

1 . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri.

2 . Iron Eyes was released from Farmington on June 2, 1989.

3 . The regulation states that:

(3) Hair will be clean, neatly groomed and no longer than the base of the rear of the shirt collar. Neither extremely long hair nor artificial hairpieces for men will be permitted with the exception indicated below. Afro styles will be of moderate length.

(A) Those inmates belonging to an indian tribe, who have received a court ruling permitting them to grow long hair, will be allowed to do so. Other inmates who claim to belong to an indian tribe must present written documentation of such to the institution head. The institution head will submit the item to the zone director [of the Division of Adult Institutions] for a final decision as to whether that inmate will be permitted to wear long hair.

Div.Rul. 116.050(3), Mo.Admin.Code Tit. 14, Div. 20, Ch. 16.

4 . Iron Eyes was also incarcerated in another Missouri prison, from July, 1986 to July, 1987. He was imprisoned in October, 1987 for violation of parole.

5 . Since Iron Eyes has been released from Farm-ington during this appeal, the issue of injunctive relief is no longer relevant in this case.

6 . At the time of this litigation only four of Farmington's 1700 inmates were Native Americans. (Tr. 11) (Injunction Hearing Tr. 46).

7 . The Native American exception was removed by the State after this case was taken under submission.