Opinion
CIVIL ACTION NO. 00-1007, SECTION "R"(4)
January 28, 2003
ORDER AND REASONS
On August 23, 2002, this matter came before the Court for non-jury trial upon the consent of the parties pursuant to Title 28 U.S.C. § 636 (c). The plaintiff, Rolando Alexander ("Alexander"), filed this pro se and in forma pauperis prisoner civil rights complaint pursuant to Title 42 U.S.C. § 1983, against Correctional Officer Dennis Roberts, Rusell Butler, Warden of the Concordia Parish Correctional Center, and Concordia Parish Sheriff Randy Maxwell, each in their individual and official capacity. Alexander alleged in his complaint and at the Spears Hearing that he was unconstitutionally placed in segregation for refusing to cut his dreadlocks, which he claims is an expression of his Rastafarian beliefs. He also alleged, under abroad construction, that the conditions of his segregated confinement were unconstitutional. He seeks declaratory, injunctive and monetary relief. The defendants answered the complaint urging that the claims are meritless and, inter alia, that they are entitled to the defense of qualified immunity.
Rec. Doc. No. 1.
766 F.2d 179 (5th Cir. 1985). The plaintiff was sworn mpriorto the commencement of the hearing. See Rec. Doc. No. 18. The purpose of the Spears Hearing is to ascertain what it is the prisoner alleges to have occurred and the legal basis for the claims. Spears, 766 F.2d at 180. The information elicited at the hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barientos, 926 F.2d 480, 481 (5th Cir. 1991). The cassette tape recording of the Spears Hearing is being placed in the custody of the Court Recording Unit along with a copy of this Order and Reasons.
Dreadlocks are defined as "long, thin braids or uncombed, twisted locks of a style worn originally by Rastafarians." WEBSTER'S NEW WORLD DICTIONARY (3d College Ed., 1988).
I. The Trial Testimony and Evidence
At trial, the Court heard the testimony of Alexander and Warden William Rusell Butler. The testimony adduced at trial established that Alexander was an Immigration and Naturalization Service ("INS") detainee who was sent to the Concordia Parish Correctional Center ("CPCC") on or about December 16, 1999 At that time, he wore Rastafarian dreadlocks in accordance with his religious beliefs.
Alexander testified that he was committed to INS custody after completion of a criminal sentence. Since the filing of this complaint, he was released from custody and now resides in Hartford, Connecticut. He participated in this non-jury trial by telephone.
Thirteen days after his arrival at CPCC, he and three other INS detainees were told that they had to cut their hair in order to comply with prison regulations. Alexander informed prison officials that his religious beliefs did not allow it. He also advised them that he had been allowed to keep his dreadlocks while housed in the Orleans Parish Prison ("OPP"). All three detainees were at first told that they could remain in general population until INS could be contacted.
Alexander testified that the dreadlocks keep him close to God and are respectful of the tenets of his religion as set forth by "King Selassie." He indicated that when he arrived at CPCC, his dreadlocks were approximately two feet long and passed his shoulder blades. He also testified that he was never given a rule book or lectured on the reasons why his hair had to be cut.
Alexander's reference was apparently to Haile Selassie, born Tafari Makonnen and who according to the WEBSTER'S NEW WORLD DICTIONARY, once used the nickname "Ras Tafari." Selassie was emperor of Ethiopia from 1930-36 and 1941-74. WEBSTER'S NEW WORLD DICTIONARY (3d College Ed., 1988).
Warden Butler, however, testified that every inmate is given an Inmate Handbook upon arrival. On page two of that book, the inmates are told that they must have a shave and a haircut upon arrival. The Warden testified that this regulation is designed to control the entry of head lice and other infectious problems in the prison. The Warden also testified that the haircut is necessary to prevent inmates from entering the prison with pills, razors and other contraband hidden in their hair. The Warden acknowledged that he had never had an inmate with dreadlocks enter his facility but inmates with cornrows had been caught with such items tucked into their braids.
Defendants' Exit. 1, p. 2 of the Inmate Handbook, Attached to Rec. Doc. No. 51.
On December 29, 1999, Officer Dennis Roberts directed Alexander and the other noncompliant inmates to cut their hair. When they again refused, Roberts placed each of them in an administrative segregation cell near the disciplinary tier. Alexander testified that, while there, he was denied several privileges inmates in general population receive, such as watching television. He stated that on one occasion in January 2000, a television was brought to the tier so that inmates could watch the Super Bowl but he was not allowed to watch.
Alexander later testified that he was never asked to cut his hair when he was transferred to Pine Prairie Correctional Center. However, when he was later sent to Catahoula Correctional Center, he was forced to cut his hair. He claims that he thereafter received an apology and was never asked to cut it again.
The Warden testified that the segregation cells are in the same area as the disciplinary cells. However, inmates in administrative segregation are placed there for reasons other than disciplinary reasons and therefore do not lose privileges. The segregation inmates retain access to the law library, legal assistance, commissary, telephone, visitation and recreation. The Warden testified that the only amenity that is not available is television because there are no television sets in that area. The Warden also testified that he was not aware of an instance in 2000 when televisions were brought into the area to allow inmates to watch the Super Bowl.
Alexander thereafter testified that he did not receive a proper diet while in CPCC. He testified that Rastafarians do not eat meat because they do not eat "anything that God breathes life into." At CPCC, he was served meals which had meat such as chicken. As a result, he could not eat anything on the plate because it was contaminated by the fleshy foods. Alexander acknowledged that the plates used were divided into sections but he complained that the meat was served over rice or other vegetables, which prevented him from eating those vegetables and starches. He also received secreted fruit from a Cuban inmate who worked in the kitchen. He stated that he would thus eat cheese and eggs because he needed something to eat. He also received multi-vitamins from the medical staff because he had been on a hunger strike at a prior facility.
Alexander testified that he received a better diet while in the OPP and that he was served peanut butter and jelly, salad, and milk. However, he also testified that, while there, he went on a 73 day hunger strike. During that time, he was given multi-vitamins to sustain him.
Alexander's trial testimony.
Alexander also testified that, after leaving CPCC, he received a proper diet at Pine Prairie Correctional Center.
Warden Butler testified that Alexander filed only one complaint on December 17, 1999 regarding the food at the prison. in that complaint, Alexander wrote:
Defendants" Exh. 2, Attached to Rec. Doc. No. 51.
I'm a no meat diet, but I can eat fish, tuna, egg or cheese, but no meat. But I can eat any white meat (poultry). I also want you to know that I just come off a 73 day hunger strike and my body is very weak and want to know if I can have some vitamins.
The complaint reflects that the request was granted on December 20, 1999.
Alexander also testified that he had limited recreation while in the segregation cell. From his cell, he was allowed to go to the sally port area to exercise. Alexander testified that he refused the opportunity to go there because the area was too small and dangerous.
Warden Butler testified that the segregation inmates were provided one hour each day for recreation, showers, phone calls and exercise, as were the inmates in general population. The outdoor exercise was provided in the sally port area which was only six feet away from the segregation cells. The sally port at CPCC is a large parking area approximately 40 feet by 75 feet with an overhead covering 25 feet high.
When inmates are present in the sally port area, they are accompanied by a guard and are monitored by three security cameras. The Warden testified that the segregated inmates can not join the general population inmates on the exercise yard because it would require too long a traverse through the prison, including several unsecured areas, to get to the exercise yard. The Warden also testified that Alexander was offered an opportunity to exercise in the sally port area but refused it because he felt it was dangerous.
Alexander thereafter testified that the area was dangerous because it was only a few feet from the main gate where cars entered regularly. He stated that he did not feel safe because he did not want to be accused of trying to get out of the gate when it was opened. He also testified that he wrote to the Sheriff on several occasions asking for assistance but received no response. Alexander contends that the Sheriff should be liable for the actions of the guards at the prison.
See liability discussion infra. The sheriff could not be held vicariously liable for the wrongful acts of the prison officials under § 1983 on a theory of respondeat superior. See Alton v. Texas AM University, 168 F.3d 196, 200 (5th Cir. 1999); Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998) (citing Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976)); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981); Watson v. Interstate Fire Casualty Co., 611 F.2d 120, 123 (5th Cir. 1980); Baskin v. Parker, 602 F.2d 1205, 1220 (5th Cir. 1979).
Warden Butler testified that he spoke with Alexander twice in his office about the hair policy. He also stated that he contacted the INS several times regarding a hair policy for INS detainees. However, he was told by the INS that it defers to the prison's policy on grooming.
The Warden further testified that his facility does make special accommodations for religious practices but Alexander was the first and only Rastafarian at the prison. He stated that because he was not familiar with the tenets of the religion, he conducted a limited research by asking the prison chaplain and reading on the internet. He indicated that his research left questions as to whether Rastafarianism is a religion or cultural sect. He also indicated that the guards at CPCC are not specifically trained on religious matters because such matters are handled by the full time chaplain.
II. Issues Presented
Alexander's § 1983 claims are two-fold: (1) whether the hair policy and diet at CPCC violated his right to exercise his religious beliefs; and (2) whether the conditions of his administrative segregation amounted to unconstitutional punishment. The Court will broadly construe Alexander's free exercise of religion claims as if specifically raised under the First Amendment to the United States Constitution and under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), Title 42 U.S.C. § 2000cc-1. The conditions of confinement claims will be addressed under the Due Process Clause for the reasons cited herein.
III. Standards for Establishing Liability in the Official and Individual Capacities
Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his constitutional rights. 42 U.S.C. § 1983. A plaintiff must prove both the constitutional violation and that the action was taken under color of state law. Polk County v. Dodson, 454 U.S. 312 (1981); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). "A person acts under color of state law only when exercising power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir. 1984) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Alexander has named the defendants in both their individual and official capacities. A state actor may be liable under § 1983 in his individual capacity only if the plaintiff can establish that he "was personally involved in the acts causing the deprivation of his constitutional rights or that a causal connection exists between an act of the official and the alleged constitutional violation." Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981); see also Watson v. Interstate Fire Casualty Co., 611 F.2d 120 (5th Cir. 1980).
However, a supervisory official like the Sheriff and Warden cannot be held liable pursuant to § 1983 under any theory of respondeat superior simply because an employee or subordinate allegedly violated the plaintiffs constitutional rights. See Alton v. Texas AM University, 168 F.3d 196, 200 (5th Cir. 1999); see also Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979). On the other hand, a sheriff, warden or other supervising official, who is not personally involved in the acts that deprived the plaintiff of his constitutional rights, can be liable under § 1983 if: (1) the supervising officer failed to train or supervise the subordinate officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiffs constitutional rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiffs constitutional rights. Thompson v. Upshur County, Tex., 245 F.3d 447, 459 (5th Cir. 2001) (citations omitted).
Proof of a single instance, rather than a pattern of similar violations, normally will not sustain a plaintiffs claim that a lack of training or supervision caused a violation of his constitutional rights. Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998) and Thompkins v. Belt, 828 F.2d 298, 304-05 (5th Cir. 1987)). Finally, the inadequacy of the training "must be obvious and obviously likely to result in a constitutional violation." Id. (citing City of Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989)).
Supervisory liability may additionally exist "without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Thompkins, 828 F.2d at 304. An official policy is:
1. a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] . . . or by an official to whom the [entity] ha[s] delegated policy-making authority; or
2. A persistent, widespread practice of . . . officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [the entity's] policy.Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). A plaintiff may also establish a custom or policy based on an isolated decision made in the context of a particular situation if the decision was made by an authorized policymaker in whom final authority rested regarding the action ordered. City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996).
It is also well settled that suit against the defendants in their official capacities is equivalent to a suit against the entity with whom they are employed, in this case Concordia Parish. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Burge v. Parish of St. Tammany, 187 F.3d 452, 467 (5th Cir. 1999). Thus, the defendants, as representatives of Concordia Parish, could be liable under § 1983 in their official capacities, only if their actions were in execution of an unconstitutional Parish policy or custom which inflicted injury or damage upon Alexander. McNeil v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978).
Official Parish policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations. Id. at 694. A policy may also be evidenced by custom, that is a persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Id. Actions of officers or employees of a Parish do not render the Parish liable under § 1983 unless they execute official policy as above defined. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.), on reh'g, 739 F.2d 993 (5th Cir. 1984); see also Bd. of County Com'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997).
While an unconstitutional official policy renders a Parish culpable under § 1983, even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the "known or obvious consequences" that constitutional violations would result. Bryan County, 520 U.S. at 407. The plaintiff must allege not merely that such an unconstitutional policy or custom exists, but that it was the proximate cause of his injury or damage. See Collins v. City of Harker Heights, 503 U.S. 115, 122-24 (1992); Berry v. McLemore, 670 F.2d 30, 33-34 (5th Cir. 1982), overruled on other grounds, Int'l Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986).
In the instant case, Alexander was segregated from the general population as a result of policies and regulations at CPCC. The Court must determine whether the defendants can be held liable, either individually or officially, for enforcement of the CPCC policies on hair, diet and segregation of inmates not in compliance with policy. To do so, the Court must determine whether the defendants' actions pursuant to the prison polices violated federal constitutional or statutory laws.
IV. Standards of the First Amendment Right to Free Exercise of Religion
The First Amendment to the United States Constitution provides in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." The Constitution requires that "reasonable opportunities must be afforded to all prisoners to exercise . . . religious freedom." Green v. McKaskle, 788 F.2d 1116 (5th Cir. 1986) ( quoting Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972)). However, this free exercise right is not an absolute one. Hudson v. Palmer, 468 U.S. 517 (1984).
The law is also clear in the Fifth Circuit that, although inmates retain their First Amendment right to exercise religion, "the right is subject to reasonable restrictions and limitations necessitated by penological goals." Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). "In fact, even outside of the prison gates, religious liberty maybe limited if overridden by a valid governmental interest, although more restrictive measures on religious practice may be imposed in the prison than in the nonprison setting and withstand constitutional muster." Udey v. Kastner, 644 F. Supp. 1441, 1442-43 (E.D. Tex.), aff'd, 805 F.2d 1218 (5th Cir. 1986).
In reconciling the prisoner's right with the prison's administrative goals, the United States Fifth Circuit Court of Appeals has recognized a test to be used in analyzing individual situations:
[C]onflicts have arisen between prisoners' exercise of this right and genuine concerns of day-to-day prison administration. Two recent Supreme Court cases have addressed this issue. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Court declared: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. 107 S.Ct. at 2261. The Court then set forth several factors for determining the reasonableness of prison regulations challenged in this respect. First, there must be a "`valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. 107 S.Ct. at 2262. Second, the governmental objective must be a "legitimate and neutral one." Id. Third, courts must consider the impact on guards, other inmates, and the allocation of prison resources that would result from accommodating the asserted right. Finally, courts must examine the available alternatives. Id.Mumin v. Phelps, 857 F.2d 1055, 1056 (5th Cir. 1988) (footnote omitted); see also Udey, 644 F. Supp. at 1442-43.
Thus, the proper inquiry in cases where prison regulations are alleged to impinge upon an inmate's First Amendment rights is whether the regulation is reasonably related to a legitimate penological interest. Thornburgh v. Abbott, 490 U.S. 401, 404 (1989); Turner v. Safley, 482 U.S. 78, 89 (1987). This reasonableness test is "less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).
A. Sincerity of Religious Belief
A threshold premise in addressing a First Amendment claim is that the free exercise protection "extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature." Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996). In this case, Alexander claims to be a Rastafarian, a religion he understands to require that he let his hair grow into dreadlocks and which prohibits him from eating "anything into which God has breathed life."
Alexander's testimony at trial.
The defendants, through the Warden's testimony, question whether Rastafarianism is a religion or merely a cultural sect. The Warden testified that he could find no precise written tenets of Rastafarianism which would require dreadlocks and a vegetarian diet.
A Rastafarian is defined as "a member of a Jamaican religious sect which holds that Haile Selassie was divine and a savior, that Ethiopia is Eden, and that blacks will eventually be repatriated to Africa." WEBSTER'S NEW WORLD DICTIONARY (3d College Ed., 1988). Many courts have struggled with the question presented by the Warden; that is, whether Rastafarianism is protected by the First Amendment as a religion.
As the Warden suggested, it is difficult to locate precise documentation describing the Rastafarian tenets. In an exhaustive study of several books on Rastafarian culture and numerous cases addressing inmates' religious rights spanning two decades, one federal court could only "give the benefit of the doubt to this plaintiff and will assume, for purposes of this opinion, that the beliefs proclaimed as Rastafari are sufficiently identifiable to be protected by the First Amendment of the Constitution of the United States." Reed v. Faulkner, 653 F. Supp. 965 (N.D. Ind. 1987).
The Reed court provides a comprehensive survey of the history and doctrines of the Rastafarian movement. Reed, 653 F. Supp. at 973.
One of the cases cited in Reed arose in this district court. In that case, the Honorable Charles Schwartz, Jr. chose not to answer the question:
Although often the subject of ethnographers and journalists, the Rastafari have been an infrequent subject of judicial scrutiny. While we are disinclined to agree with the dismissal of the group as a vegetarian sect who eat no eggs or meat and do not cut or wash their hair, but leave it in "dreadlocks," United States v. Moore, 571 F.2d 76 n. 2 (2d Cir. 1978); neither are we inclined, based on the facts of this case and the circumstances of this petitioner, to recognize the Rastafari as a religion within the meaning of the First Amendment.Robinson v. Foti, 527 F. Supp. 1111, 1113 (E.D. La. 1981) (footnotes omitted).
Judge Schwartz noted that, at the time, only eight federal cases since 1976 even acknowledged the existence of the Rastafari but none had "grappled with the complex task of characterizing or classifying the group (with possible exception of United States v. Moore, 571 F.2d 76 (2d Cir. 1978) which is quoted infra.)" Robinson v. Foti, 527 F. Supp. 1111, 1113 n. 4 (E.D.La. 1981).
In more recent years, other courts have recognized or accepted Rastafarianism to be a religion for purposes of the First Amendment without actually questioning its nature:
Rastafarianism is a Christianity-based religion that mandates a certain lifestyle based on principles stated in the Bible. A tenet of the Rastafarian religious faith requires the wearing of dreadlocks. Pursuant to Rastafarian beliefs, dreadlocks signify spiritual connection with God.Williams v. Wilkinson, 134 F.2d 373, 1997 WL 809971 at *1 (6th Cir. Dec. 18, 1997) (Table, Text in Westlaw) (footnote omitted); see Gartrell v. Ashcroft, 191 F. Supp.2d 23 (D.D.C. 2002) (citing Jackson v. District of Columbia, 89 F. Supp.2d 48, 65 (D.D.C. 2000)) ("finding Wolfe's testimony regarding his faith to be `heartfelt and sincere,' and finding that he grows his beard and dreadlocks because of [his] religious beliefs."); Hicks v. Garner, 69 F.3d 22, 23-24 (5th Cir. 1995) (finding the plaintiff to be a member of the "Rastafarian religion"); see also Hines v. South Carolina Dep't of Corr., 148 F.3d 353 (4th Cir. 1998).
The wearing of dreadlocks as a tenet of Rastafarianism is apparently based on the Biblical vow of the Nazarite which prohibits the cutting or combing of one's hair. Hicks, 69 F.3d at 22. The Biblical vow of a Nazarite also includes smoking marijuana, eating a vegetarian diet, avoiding alcohol and grapes, and gathering for communal worship. Scott v. Miss. Dep't of Corr., 961 F.2d 77 (5th Cir. 1992). These are among the tenets described by Alexander as his practices.
The Hicks court referred to the Biblical vow of the Nazarite, Numbers 6:6-1, verse five of which 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." Hicks, 69 F.3d at 22 n. 2 (citing Scott v. Miss. Dep't of Corr., 961 F.2d 77 (5th Cir. 1992)). In Scott, the Court recognized another basis for the hairstyle 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." Scott, 961 F.2d at 78 n. 1 (citing Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Geo.L.J. 1605, 1608, 1627 (1984)).
The defendants have presented nothing which would sway this Court to doubt that Alexander's beliefs are sincere and that Rastafarianism is, at least, religious in nature. For these reasons, the Court will proceed with accepting Rastafarianism as a religion entitled to First Amendment protections.
B. Neutrality of the Regulations
The next consideration is whether the governmental objective of the regulation is a neutral one. The Supreme Court has held that a neutral, generally applicable regulation does not offend the Free Exercise Clause, even if the law has an incidental effect on religious practice. Employment Division, Dep't of Human Services of Oregon v. Smith, 494 U.S. 872, 876-79 (1990). A regulation is considered neutral if it proscribes conduct without regard to whether that conduct is religiously motivated. Id. If the regulation makes no distinction between action based on religious conviction and action based on secular views, it is a generally applicable law, neutral toward religion and not violative of the First Amendment. Id.
In the instant case, the Warden testified that all incoming inmates are required to comply with the haircut requirement. The equal implementation of the policy allows for manageable security within the prison. Alexander does not dispute this. He recognizes that at least three other inmates were segregated with him for their refusal to comply with the regulation. He has not alleged or established that any other inmate was allowed to remain in general population without a haircut. There is also no indication that the regulation was enacted to burden anyone's free exercise rights or was otherwise motivated because of the religious beliefs or practices of any inmate. See id.
Thus, although the hair policy may have an incidental effect on the plaintiffs religious practices, under Smith, the policy is neutral and generally applicable. It therefore does not violate the Free Exercise Clause. Hines v. South Carolina Dep't of Corr., 148 F.3d 353, 357-58 (4th Cir. 1998).
With respect to the diet provided, the plaintiff has not indicated a particular policy which violated his rights. In fact, the evidence established at trial reflects that the prison provided the plaintiff with the specific diet requirements listed in his request to the administration. His request included white meat and eggs. The Warden testified that Alexander's dietary requirements were met as they would have been for anyone else requesting reasonable diet accommodations. Thus, Alexander has not established that the prison's diet policy was not neutral.
C. Rational Relationship Test
The final consideration under the First Amendment analysis is whether the regulation is rationally related to a legitimate governmental interest. In O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court held that a prison regulation that impinges on an inmate's free exercise right is valid if it is reasonably related to legitimate penological interests. O'Lone, 482 U.S. at 349. The Supreme Court in Turner v. Safley, 482 U.S. 78 (1987) set forth four factors to be considered in determining the reasonableness of prison regulations: 1) there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forth to justify it; 2) while remaining mindful of the judicial deference owed to prison officials, a court should inquire as to whether alternative means of exercising the right remain open to the inmate; 3) the court must consider the impact accommodating the asserted constitutional right would have on prison officials, other inmates, and prison resources; and 4) while remaining mindful that prison officials are not required to show that the regulation is the least restrictive alternative, the court must consider whether there are ready alternatives that could be substituted for the contested regulation at a de minimus cost to penological goals. Turner, 482 U.S. at 89-91.
In reaching its decision, the trial court is not required to consider all of these factors. Scott v. Miss. Dep't of Corr., 961 F.2d 77, 81 (5th Cir. 1992). The Fifth Circuit has held that the first Turner factor is simply a restatement of the underlying principle that a regulation must be logically connected to a legitimate governmental interest, while the other factors merely help a court determine if the connection is in fact logical. Id. The second factor looks to whether the regulation entirely stifles the prisoner's religious expression or allows for other practices. Id. The third factor allows the prison officials the opportunity to show what impact an accommodation of the religious principle might have on the other inmates and the prison itself. Id. Finally, the fourth factor allows for recognition of the viability of ready alternatives in reaching the institution's goals. Id.
In applying the Turner factors, the Fifth Circuit has held that, for First Amendment purposes, prison grooming regulations are presumptively reasonable:
Equally clear in this circuit is the proposition that prison grooming regulations, including specifically the requirement that a prisoner cut his hair and beard, are rationally related to the achievement of valid penological goals, such as security and inmate identification.Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995). Therefore, in the Fifth Circuit, the hair regulation at CPCC is predetermined to be reasonable. Alexander's claims must fail unless he can establish that the CPCC's policy is distinguishable and not reasonably related to a legitimate governmental interest.
In Hicks, the Court also recognized and followed "the long line of cases" which found this sort of First Amendment challenge to be legally frivolous and based on an indisputably meritless legal theory. Hicks, 69 F.3d at 25.
In this case, the Warden testified that the CPCC's grooming policy exists to prevent health and sanitation problems with incoming lice and other infectious conditions. He also testified that the hair policy was enacted in response to inmates who were found to hide contraband in long or braided hair. Because of this, all incoming inmates were required to have a haircut and shave per the written policy. These considerations are the same as those recognized as legitimate and reasonable by the Fifth Circuit and other federal courts. See e.g., Williams v. Wilkinson, 134 F.2d 373, 1997 WL 809971 at *1 (6th Cir. Dec. 18, 1997) (Table, Text in Westlaw); Hicks, 69 F.3d at 25; Scott, 961 F.2d at 80.
The evidence also establishes, in accord with the second factor, that Alexander was not prevented from actually practicing any of his religious beliefs. He was able to keep his dreadlocks. He was not forced to cut them. He also requested in writing that he be provided a diet which could include poultry, cheese and eggs. He acknowledged at trial that those things were included in his diet, although he now contends that he should not have been eating them. His dissatisfaction with the alternative diet provided is not sufficient to establish a violation of the Free Exercise clause. Williams, 1997 WL 809971 at *3. Alexander therefore has not established that he could not practice the tenets of his faith.
With regard to the third and fourth Turner factors, the evidence established that the inmates who were allowed to keep their hair for religious reasons were separated from general population so that they could be allowed to keep their hair. The Warden also suggested that the separation assisted in avoiding conflicts with other inmates who did cut their hair and assured that the sanitation goals of avoiding infestations were met.
In light of the circumstances, the segregation was a reasonable accommodation which has been sanctioned by other federal courts as an appropriate alternative to forcing compliance with grooming policies. See Hines v. South Carolina Dep't of Corr., 148 F.3d 353, 356 (4th Cir. 1998) (inmates not in compliance with the grooming policy are reclassified to a more restrictive security level and moved to a higher security cell); Hicks, 69 F.3d at 24 (plaintiff was placed in segregation for failure to comply with grooming regulations); Lawson v. Cohn, 2001 WL 1168146 (S.D. Ind. Sept. 25, 2001) (inmates not in compliance were sent to disciplinary segregation with a loss of good-time and eventually forced to cut hair).
For the foregoing reasons, Alexander has not distinguished the CPCC hair policy from those already deemed constitutionally sufficient and otherwise compliant with the First Amendment's Free Exercise protections. The hair policy and dietary provisions at the prison are reasonably related to legitimate governmental interests. Thus, Alexander has failed to establish a violation of the First Amendment. His claims are therefore without merit and he is not entitled to relief.
V. Religious Land Use and Institutionalized Persons Act
In addition to the First Amendment, an inmate may have protections through the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA" or "the Act"), Title 42 U.S.C. § 2000cc-1, which provides as follows:
(a) General rule
No Government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person —
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application This section applies in cases in which —
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with the Indian tribes.
The RLUIPA was enacted on September 22, 2000, more than five months after Alexander filed this suit on April 10, 2000. A number of federal courts have determined that the Act is, in general, constitutional, Gerhardt v. Lazaroff, 221 F. Supp.2d 827 (S.D.Ohio 2002); Charles v. Verhagen, 220 F. Supp.2d 955 (W.D.Wis. 2002); Johnson v. Martin, 223 F. Supp.2d 820 (W.D. Mich. 2002); it is, however, silent as to its retroactive application to suits filed before it was enacted. The Act has been deemed appropriate for application to claims for injunctive relief for future behavior because such an application is prospective and not retroactive. Prater v. City of Burnside, Ky., 289 F.3d 417 (6th Cir. 2002). However, the Act is not to be retroactively applied to "`attach new legal consequences' to completed conduct." Wilson v. Moore, 2002 WL 950062 at *5 and n. 3 (N.D. Fla. Feb. 28, 2002). The Supreme Court has not had an opportunity to address either aspect of the Act.
The United States Supreme Court held that a prior, similar provision known as the Religious Freedom Restoration Act ("RFRA"), Title 42 U.S.C. § 2000bb, is unconstitutional as applied to the States. City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997). A prisoner no longer has a claim against the state or a state prison under the RFRA. Williams v. Norris, 11 Fed. Appx. 656, 2001 WL 357336 (8th Cir. 2001).
In the instant case, Alexander filed this suit on April 10, 2000, more than five months before the enactment of the RLUIPA, seeking injunctive, declaratory and monetary relief. The record reflects that Alexander was transferred out of Concordia Parish Correctional Center on March 3, 2000, over one month before he filed this suit.
With respect to his claim for injunctive relief, Alexander has no entitlement under the RLUIPA. Alexander does not and would not have a claim for injunctive relief to prevent Concordia officials from cutting his hair since he was no longer in the facility. His injunction request was not prospective in nature. Instead, Alexander sought to correct behavior which had taken place prior to his transfer from Concordia Parish. Such a request was moot at the time of filing since he was no longer in the prison at the time his suit was filed and any relief could not be prospective in nature. Painter v. Whitley, 686 F. Supp. 150 (E.D. La. 1988).
Furthermore, Alexander can not have a viable claim under the RLUIPA if retroactive application of the act would "`attach new legal consequences' to completed conduct." Wilson v. Moore, 2002 WL 950062 at *5 and n. 3; see Prater, 289 F.3d at 417 (retroactive application would not be appropriate if relief sought is not prospective). In the instant case, application of the RLUIPA would do exactly that. The RLUIPA was not enacted until five months after Alexander left the custody and control of the Concordia Parish Correctional Center. Any acts taken by the prison officials were completed prior to enactment of the RLUIPA. For this reason, the Court can not retroactively apply the RLUIPA to determine whether the Concordia Parish officials' acted in violation of a statute which did not yet exist. For these reasons, the Court finds that the RLUIPA does not provide a cause of action or make relief available to Alexander.
In addition, because the statute was not enacted when Alexander was in CPCC, the defendants would be entitled to qualified immunity. Qualified immunity shields officials from individual liability for performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532-33 (5th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because the RLUIPA was enacted after the defendants' actions were completed, it was not a clearly established law to which they were bound.
VI. Segregation Without Due Process
Under a more general challenge to his confinement, Alexander alleges that he was placed in segregation without due process for failing to comply with the prison's regulation. In Sandin v. Connor, 515 U.S. 472, 481-83 (1995). the Supreme Court held that an analysis ofa prisoner's due process claim relating to prison disciplinary action begins with determining whether a constitutionally protected liberty interest exists. "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983) overruled in part by, Sandin, 515 U.S. 472 (1995).
In Sandin, the Supreme Court recognized that, although the States may create liberty interests, "these interests will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (citations omitted). Thus, in Sandin, when a convicted prisoner was placed in disciplinary segregation for 30 days and the discipline did not inevitably affect the duration of his sentence, the Court held that due process does not require that he be afforded the procedural mechanisms previously prescribed in Wolff v. McDonnell, 418 U.S. 539 (1974), and Hewitt, 459 U.S. at 460.
However, the majority of federal courts that have reached this question have held that the Sandin analysis does not apply to pretrial detainees. See Fuentes v. Wagner, 206 F.3d 335, 342 n. 9 (3d Cir.), cert. denied, 531 U.S. 821 (2000); Rapier v. Harris, 172 F.3d 999, 1003 (7th Cir. 1999); Mitchell v. Dupnick, 75 F.3d 517, 524 (9th Cir. 1996); Hightower v. Vose, 95 F.3d 1146, 1996 WL 516123 at *1 n. 3 (1st Cir. Sept. 12, 1996) (Table, Text in Westlaw); Butler v. Westchester County, 2000 WL 335539 at *4 n. 4 (S.D.N.Y. Mar. 30, 2000). A person in INS detention is treated under constitutional law with the same standards set forth for pretrial detainees. Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).
The Supreme Court in Sandin v. Connor, 515 U.S. 472 (1995) distinguished between "impermissible punishment" and "permissible regulation" of detainees, stating that the Court in Bell v. Wolfish, 441 U.S. 520 (1979), correctly noted that a pretrial detainee "may not be punished prior to an adjudication of guilt in accordance with due process of law." Sandin, 515 U.S. at 484 (quoting Bell, 441 U.S. at 535). The Court's ruling in Sandin left Bell undisturbed and controlling as to the due process rights of detainees like Alexander. Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999); Dean v. Thomas, 933 F. Supp. 600, 606 (S.D. Miss. 1996).
The Third Circuit in Fuentes recently summarized the Bell framework for analyzing a pretrial detainee's due process claim.
"[I]n evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think the proper inquiry is whether those conditions amount to punishment of the detainee.". . . . "Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention." Thus, "[r]estraints that are reasonably related to the institution's interest in maintaining jail security do not, without more. constitute unconstitutional punishment, even if they are discomforting. . . .". . . . "[W]hether . . . restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive government purpose and whether they appear excessive in relation to that purpose." Thus, there is a "distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may."
[We] must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials that determination generally will turn on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.Fuentes, 206 F.3d at 342 (quoting Bell, 441 U.S. at 535, 537, 539, 540) (emphasis added); accord Rapier, 172 F.3d at 1003.
[P]unitive restrictions or conditions may constitutionally be placed on pretrial detainees, provided that the restrictions further some legitimate governmental objective (such as addressing a specific institutional violation, ensuring a detainee s presence at trial, or maintaining safety. internal order, and security within the institution) and are not excessive in light of the seriousness of the violation.Rapier, 172 F.3d at 1004 (emphasis added) (citing Collazo-Leon v. United States, 51 F.3d 315, 318 (1st Cir. 1995)). Only punitive measures, and not nonpunitive, regulatory restrictions, are subject to due process limitations. Id. at 1005.
For example, according to the Supreme Court, administrative segregation is "used to protect the prisoner's safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer;" such segregation does "not implicate an interest independently protected by the Due Process Clause." Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (quoting Hewitt v. Helms, 459 U.S. 460, 466-470 (1983)).
Thus, no particular process is constitutionally required for nonpunitive, administrative segregation such as that experience by Alexander. Id. at 1325-27; cf. Dean, 933 F. Supp. at 607 (pretrial detainees's due process rights were violated when they were admittedly punished by administrative segregation without a hearing, the right to call witnesses or the right to appeal the finding of guilt or punishment); see Fuentes, 206 F.3d at 343 (no process required when pretrial detainee was placed in restraint chair to quell disturbance and restore order and security after prisoner kicked his cell door, swung at officers and continued to make oral threats after being restrained); Zarnes v. Rhodes, 64 F.3d 285, 291 n. 5 (7th Cir. 1995) (placement of plaintiff in administrative segregation for her protection and protection of other inmates following verbal confrontations between prisoners did not require any process; "[w]e decline Zarnes's invitation to hold that every placement in administrative segregation constitutes punishment of a pre-trial detainee"); Butler, 2000 WL 335539 at *4 (S.D.N.Y. 2000) (mere transfer of pretrial detainee to "less amenable and more restrictive quarters for nonpunitive reasons' does not amount to punishment in violation of due process") (quoting Covino v. Vermont Dep't of Corrections, 933 F.2d 128, 129 (2d Cir. 1991)); Cooper v. Bowles, 1997 WL 361879 at *2 (N.D. Tex. June 20, 1997) (no due process violation where pretrial detainee was placed in administrative segregation for five months without a hearing but failed to proffer facts demonstrating segregation was for punitive purposes); see also Eason v. Thaler, 73 F.3d at 1326-27 (5th Cir. 1996) (no due process violation under pre- Sandin analysis where convicted prisoner was placed in administrative lockdown without a hearing for security of unit following disturbance among inmates).
In the instant case, Alexander's segregation was done for non-punitive administrative purposes. He has not established otherwise. To further support this conclusion, the evidence reflects that he was not placed in the disciplinary area and was allowed to maintain the same privileges provided to the general population, except for television which will be addressed infra. For these reasons, Alexander was not entitled to any special process or hearing before being moved to the administrative segregation area. He is not entitled to relief on this claim.
VII. Conditions of Confinement in Segregation
Alexander's claims may present another general challenge to the conditions of his segregated confinement at CPCC. A person in INS detention is treated under constitutional law with the same standards applied to pretrial detainees. Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000). A pretrial detainee's claims related to conditions of confinement are considered under the Due Process Clause. Id. Thus, the Court will consider Alexander's conditions claims in light of the Due Process Clause.
Where, as here, Alexander complains of an episodic act or omission, he must establish that the officials acted with subjective deliberate indifference to his Due Process rights to be free from additional restraints on his liberty. Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (citing Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997)). The Supreme Court defines "deliberate indifference" by explaining that a prison official is not liable "unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added); see also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). "Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997); see also Bradley, 157 F.3d at 1025.
The Fifth Circuit set forth two standards of review; one for general conditions complaints and one for episodic acts or omissions. A conditions claim is one complaining of, e.g., the number of bunks in a cell or availability of privileges. Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). Where a complaint concerns a specific act or omission by an official, it is characterized as an episodic act or omission. Id. The Fifth Circuit has held that the decision to confine an inmate in administrative segregation for non-compliance with a prison regulation was an episodic act or omission. Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).
It must also be understood that "the Due Process Clause does not protect every change in conditions of confinement which has a substantial adverse effect upon a prisoner." Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). The Madison court held that a prisoner's 30-day commissary and cell restrictions imposed as punishment for disciplinary violations are "merely changes in the conditions of his confinement and do not implicate due process concerns." Id. at 768. The Court further held that such restrictions are "penalties, which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest." Id. As the Supreme Court has held, even when a prisoner is confined in segregation, when such confinement does not exceed similar confinement of other prisoners in either duration or degree, no due process liberty interest is implicated. Sandin, 515 U.S. at 485-86.
In the instant matter, the conditions of the administrative segregation also did not violate Alexander's constitutional rights under the Sandin considerations. It is evident that his placement in segregation was a direct result of his refusal to cut his hair as required by prison regulation. However, based on the Warden's testimony, the segregation was not a punishment but rather acted as an accommodation. According to the Warden, it was easier to segregate Alexander in the nonpunitive segregation area until the "hair and religion issue" could be addressed with the INS. It also allowed Alexander to keep his dreadlocks without causing problems with the other inmates who were in compliance with the regulations and prevented jeopardizing the sanitation or safety of the general population.
The segregation in that regard was not oppressive to Alexander's religious practices. For example, his segregation did not prevent him from wearing his hair in dreadlocks or eating the diet he specifically requested; nor has he alleged or proven that he was denied the ability to exercise any other facet of his Rastafarianism beliefs, except perhaps the use of marijuana.
Furthermore, the CPCC officials did not act with intentional indifference to Alexander's well-being. The action taken did not significantly alter Alexander's confinement nor was it significantly different from that of the inmates in general population. See Madison, 104 F.3d 765.
Alexander retained all of the privileges available to other general population inmates with the exception of access to a television. In that regard, the Warden explained that the television privilege was not revoked but that televisions were not available in administrative segregation because of the close proximity to the disciplinary cells. Alexander, however, testified that he recalled one occasion where televisions were brought to the area for viewing the Super Bowl but he was not allowed to watch. The Warden was unaware of such an incident and indicated that such an occurrence should not have been sanctioned. Nevertheless, even if this isolated incident occurred, it is established that inmates do not have a constitutional right to access to television. Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir. 1981); Yarclay v. Bowles, 1999 WL 151669 at *5 (N.D. Tex. Mar. 17, 1999); Manley v. Fordice, 945 F. Supp. 132, 136 (S.D. Miss. 1996) ( citing Rawis v. Sundquist, 929 F. Supp. 284, 288-89 (M.D. Tenn. 1996)). Thus, the lack of a television in the segregation area did not violate Alexander's Due Process rights.
Alexander also complained that he was denied adequate exercise opportunity while in segregation. Inmates, however, have no protected liberty interest in specific recreational opportunities. Lato v. Attorney Gen., 773 F. Supp. 973, 978 (W.D. Tex. 1991) (citing Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988)). To succeed on a claim under § 1983 for lack of exercise provisions, a prisoner must set forth facts sufficient to "support the existence of any health hazard under the specific circumstances involved." Green v. Ferrell, 801 F.2d 765, 771 (5th Cir. 1986); Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir.), amended in part, vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982).
Alexander has not met this burden of establishing a violation. He acknowledges that he was given adequate opportunity to exercise in the sally port but chose not to utilize the time. He also has not presented any evidence that he suffered a health risk in general or that any specific harm came to him personally from the recreation policy. He has therefore failed to allege a violation of his constitutional rights.
For the foregoing reasons, the Court finds that the plaintiff, Rolando Alexander, has failed to establish a constitutional violation under the First Amendment or the Due Process Clause, or a violation of the RLUIPA. Accordingly, upon trial on the merits of the plaintiffs complaint,
IT IS ORDERED that the claims raised by Rolando Alexander are DISMISSED WITH PREJUDICE as meritless.
JUDGMENT
The Court having entered reasons for the dismissal of the plaintiffs claims after trial on the merits pursuant to the consent of the parties under Title 28 U.S.C. § 636 (c); accordingly,
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of the defendants, Correctional Officer Dennis Roberts, Rusell Butler, Warden of the Concordia Parish Correctional Center, and Concordia Parish Sheriff Randy Maxwell, each in their individual and official capacity, and against the plaintiff, Rolando Alexander, dismissing the plaintiffs claims with prejudice, each party to bear its own costs.