Ricky Knight v. Leslie Thompson , 723 F.3d 1275 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11926
________________________
D. C. Docket Nos. 2:93-CV-01404-WHA-CSC,
2:96-cv-00554-WHA-CSC
RICKY KNIGHT, et al.,
Plaintiffs-Appellants,
versus
LESLIE THOMPSON, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 26, 2013)
Before HULL and ANDERSON, Circuit Judges, and SCHLESINGER,* District
Judge.
*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
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SCHLESINGER, District Judge:
Plaintiffs-Appellants (hereinafter “Plaintiffs”) are male inmates in the
custody of the Alabama Department of Corrections (“ADOC”). They wish to wear
their hair unshorn in accordance with the dictates of their Native American
religion, but an ADOC policy forbids them from doing so. Plaintiffs brought this
suit against the ADOC and several other defendants (collectively “ADOC”),
challenging the ADOC’s hair-length policy on various constitutional grounds and
under the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. The United States has intervened on
Plaintiffs’ behalf. After a full evidentiary hearing and bench trial, the District
Court made several findings of fact and entered judgment in favor of the ADOC.
Because the ADOC carried its RLUIPA burden to demonstrate that its hair-length
policy is the least restrictive means of furthering its compelling governmental
interests, we affirm.
I. BACKGROUND
The ADOC requires all male prison inmates to wear a “regular hair cut,”
defined as “off neck and ears.” Dkt. 471. The ADOC does not grant any
exemptions to this policy, religious or otherwise. Dkt. 474 p. 146. Plaintiffs seek
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a complete religion-based exemption to the male hair-length policy.1 Plaintiffs
seek this exemption because wearing long hair is a central tenet of their religious
faith. No plaintiff is a maximum-security inmate.
A. Procedural History
This is the third time that this case has come before this Court. Plaintiffs
initially filed suit on November 24, 1993, challenging on various constitutional
grounds and under the Religious Freedom Restoration Act (“RFRA”) the ADOC’s
policies restricting hair length and prohibiting sweat lodge ceremonies. After entry
of summary judgment for the ADOC, Plaintiffs appealed to this Court. Dkt. 218.
During that appeal’s pendency, Congress responded to the Supreme Court’s partial
invalidation of the RFRA by enacting the RLUIPA, and this Court therefore
remanded this case to allow Plaintiffs to amend their complaint. Dkt. 235. After
Plaintiffs amended the complaint to add claims under the RLUIPA and the Parties
engaged in a brief period of additional discovery, the District Court again granted
summary judgment to the ADOC. Dkt. 317.
Plaintiffs appealed again, and this Court affirmed the judgment of the
1
Three of Plaintiffs seek, in the alternative, a more narrow exemption to wear a kouplock—a
two-inch wide strip of hair beginning at the base of the skull and stretching down the back.
However, because Plaintiffs first raised their kouplock argument in their objections to the
magistrate judge’s report and recommendation, and because the District Court did not consider
the kouplock argument when it ruled on the report and recommendation, Plaintiffs have waived
the issue. Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009) (district courts have
discretion to decline to consider arguments that are not presented to the magistrate judge).
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District Court as to all but Plaintiffs’ hair-length restriction claims. As to the hair-
length claims, however, this Court concluded:
[O]n the present record factual issues exist as to whether, inter alia,
the defendants’ total ban on the wearing of long hair and denial of an
exemption to the plaintiffs based on their Native American religion is
“the least restrictive means of furthering [the defendants’] compelling
governmental interest[s]” in security, discipline, hygiene and safety
within the prisons and in the public’s safety in the event of escapes
and alteration of appearances. In addition, we note that the
evidentiary record relating to the hair-length claims is over ten years
old and that, in the intervening time, prison staffing and
administration, prison safety and security, and the prison population in
Alabama have changed.
Lathan v. Thompson, 251 Fed. App’x 665, 667 (11th Cir. 2007) (internal citation
omitted, second and third alterations in original). This Court, therefore, vacated
the District Court’s judgment as to the hair-length claims and remanded the case
for a full evidentiary hearing and bench trial, “following which the district court
shall make detailed findings of fact and conclusions of law.” Id.
B. The Evidentiary Hearing and Bench Trial on Remand
On remand, Magistrate Judge Charles S. Coody held an evidentiary hearing
and bench trial. Dkts. 471, 474–76. Plaintiffs proffered undisputed testimony
regarding the burden that the ADOC hair-length policy placed on their religious
practices. They also presented undisputed testimony that a strong majority of U.S.
jurisdictions permit inmates to wear long hair, either generally or as an
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accommodation for religious inmates.2 A witness for Plaintiffs skilled in the use of
Photoshop, a computer program used to digitally alter images, testified that
corrections officers could easily be trained to alter inmate images to assist in the
identification of escaped long-haired inmates. Finally, George Sullivan, Plaintiffs’
main witness, testified that his tours and audits of 170 correctional facilities and
extensive past employment experience in several prison systems that permit long
hair led him to conclude that the ADOC does not need to deny religious
exemptions to accomplish its stated goals for its short-hair policy. In support of his
conclusion, Sullivan opined that inmates have many other locations where they can
more easily store contraband (e.g., socks, stitching areas in clothes, gloves, jackets,
etc.), long hair does not impede inmate identification, and long hair does not pose
any health risks if inmates follow basic hygiene procedures. Dkt. 474 at pp.
121–38, 143–44; Dkt. 475 at pp. 6–29, 118–58; Dkt. 476 at pp. 7–9, 11–29.
The ADOC’s witnesses nonetheless asserted that its policy is necessary to
accomplish several compelling goals, including the prevention of contraband,
facilitation of inmate identification (both during the usual course of prison business
and after escapes), maintenance of good hygiene and health, and facilitation of
2
These jurisdictions are: the Federal Bureau of Prisons, the correctional systems of
approximately 38 states, and the District of Columbia Department of Corrections. Dkt. 475 at p.
133.
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prison discipline through uniformity. Aside from figures demonstrating that
Alabama’s prisons have become increasingly over-crowded, under-funded, and
under-staffed in recent years, the ADOC’s witnesses offered little statistical
evidence to support their claims. But they did offer elucidating expert opinions,
lay testimony, and anecdotal evidence based on their decades of combined
experience as corrections officers.
For example, Warden Grantt Culliver testified that permitting long hair
would slow the process of searching inmates for contraband, increase the risk that
inmates could grab each other by the hair during fights, and give inmates an
additional location to hide small items like handcuff keys on their person. He also
testified that granting religious exemptions to Native American inmates would
erode discipline and likely cause the ADOC’s over-worked staff to stop enforcing
the policy against non-exempt inmates. As to hygiene, Culliver recounted an
incident in which an inmate developed a fungus on his scalp that remained hidden
from view until his hair was cut. Dkt. 474 at pp. 124–32, 144–46, 162–68.
Gwendolyn Mosley, institutional coordinator of the ADOC’s southern
region and past warden of various ADOC institutions, similarly testified that the
hair-length restrictions reduce inmates’ ability to hide contraband, assist inmate
identification, reduce the time and difficulty of conducting shake-downs and
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searches, and prevent inmates from pulling each other’s hair during fights. She
further testified that exempting only certain inmates from the policy would allow
them to identify as a special group and form gangs, eroding order and control.
Finally, like Warden Culliver, Mosley testified that the grooming policy promotes
health and hygiene. Dkt. 475 at pp. 5–10, 16–38.
Warden Tony Patterson echoed many of Culliver’s and Mosley’s concerns
about Plaintiffs’ requested exemption from the short-hair policy. Patterson
testified that the hair-length policy facilitates the detection of contraband and
assists with prompt inmate identification, both during day-to-day operations and in
the event of an escape. He further testified that a generally applicable policy with
no exemptions fosters discipline, and if the ADOC were required to grant
exemptions, officers would have trouble enforcing the policy due to the difficulty
of readily identifying which inmates are entitled to the exemption. Finally,
Patterson testified concerning a September 2008 escape of two inmates, whose
subsequent capture was accomplished by distributing pictures of the inmates to the
public. Dkt. 475 at pp. 92–97, 103–05.
However, it was Ronald Angelone, former director of several state prison
systems, who provided the most thorough defense of the ADOC’s hair length
policy. While serving as the director of Virginia’s then-chaotic prison system,
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Angelone had begun enforcing, in response to security and health concerns, an
exceptionless grooming policy for male inmates that required all haircuts to be one
inch or shorter.3 Angelone specified several reasons for why he chose to enforce
the grooming policy, chief among which was the 1999 escape of a “very
dangerous” Virginia prison inmate who had cut his hair to alter his appearance.
The inmate was discovered three or four days after his escape, but the haircut had
so significantly changed his appearance that Angelone would not have been able to
identify him from the photograph that the prison released to local police
departments. Angelone also testified that a review of institutional reports
confirmed that inmates had hidden ice picks, handcuff keys, wires, bolts, and other
contraband items in their hair. He further recounted one incident in which prison
staff cut their hands on a hidden razor blade while searching an inmate’s hair.
Angelone testified that the short-hair policy reduced the time needed to search
inmates, and inmates were aware that officers often will not run their hands
through their hair for fear of sharp objects. Angelone further asserted that inmates
can grab each other by the hair during fights, and non-exempt inmates might attack
exempted inmates out of jealousy for their special long-hair privilege. Turning to
the asserted health and hygiene hazards of long hair, he described an incident in
3
The policy had allowed female inmates to wear shoulder-length hair, however, on the rationale
that they posed a lesser risk of violence and escape than male inmates.
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which a black widow spider wove a nest in an inmate’s dreadlocks, and he noted
that long hair had also concealed some inmates’ scalp sores, cysts, and tumors. In
sum, Angelone opined that his short-hair policy was a factor in his successful
restoration of order and control in Virginia’s prison system. Dkt. 475 at pp. 46–54,
64–68, 73–74.
Although the ADOC’s witnesses combined to offer a strong defense of the
short-hair policy, they did make several concessions on cross-examination. They
admitted that the ADOC allows female inmates to wear shoulder-length hair. They
also conceded that they had never worked in—or reviewed the policies of—prison
systems that allow long hair, either generally or as a religious exemption. Finally,
none of the ADOC’s witnesses could point to any instances where an inmate had
attacked an exempted long-haired inmate out of jealousy or grabbed long hair
during a fight. Dkt. 475 at pp. 46–54, 64–68.
C. The District Court’s Decision
After the evidentiary hearing and bench trial, Magistrate Judge Coody issued
a report and recommendation (“R&R”) that recommended entry of judgment in
favor of the ADOC. Dkt. 530. On the basis of exhibits admitted during the trial
and in accordance with this Court’s directions on remand, the Magistrate Judge
made several factual findings that painted the current context of this case. First, he
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found that in September 2008, the ADOC housed 25,303 inmates—almost 189%
of the statewide design capacity of the ADOC’s facilities. Second, he found that
disciplinary actions increased by 62% in 2007 alone, and nearly 50% of the
ADOC’s inmates were serving time for felonies against persons. Third, he found
that the ADOC’s overcrowded prisons are also under-staffed and under-funded,
with approximately one in every four correctional personnel positions remaining
vacant. Finally, he found that between 1997 and 2007, the number of admissions
to the ADOC outpaced the number of releases by almost 5000 inmates each year,
except for the years 2000 and 2004.
Judge Coody also made specific factual findings with regard to male
inmates’ hair length, resolving disputes largely in the ADOC’s favor. He found
that inmates can use long hair to alter their appearances, long hair impedes the
ability of officers to quickly identify inmates in the prisons, and inmates can use
long hair to identify with special groups, including gangs. Implementing a
Photoshop program for logging and manipulating digital photographs of inmates
would raise practical concerns of cost and training, he found, and in any event
would not assist in the identification of inmates inside the prisons. He further
found that long hair provides an additional location for inmates to conceal weapons
and contraband, and correctional officers risk injury from hidden weapons when
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searching long hair. He also found that inmates can manipulate self-searches of
their hair, and permitting inmates to have long hair would make searches for
contraband more difficult and more lengthy. In addition, he found that uniformity
within the ADOC’s institutions instills discipline and promotes order by allowing
officers to exercise control over inmates, and maintaining discipline and order is
important because violence is prevalent in the ADOC’s prisons. He specifically
found, quoting Mosley’s conclusory testimony, that the inmates incarcerated in the
ADOC today are “younger, bolder and meaner” than those of previous years. He
concluded that inmates can grab other inmates’ long hair during fights. All these
security problems are worse for male inmates than female inmates, he found,
because male facilities are more over-crowded than female facilities, and males
pose greater security risks than females. Finally, Judge Coody found that requiring
inmates to keep their hair short enables corrections officers to more easily detect
infections and infestations and prevent their proliferation.
As to his conclusions of law, Judge Coody concluded that the ADOC’s hair-
length policy substantially burdens Plaintiffs’ religious exercise. He went on to
conclude, however, that the ADOC had carried its RLUIPA burden and shown that
its hair-length policy is the least restrictive means of furthering its compelling
interests in security, safety, control, order, uniformity, discipline, health, hygiene,
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sanitation, cost-containment, and reducing health care costs. That conclusion was
compelled, he reasoned, by this Court’s decision in Harris v. Chapman, 97 F.3d
499 (11th Cir. 1996), which upheld a Florida Department of Corrections short-hair
policy under the statutory predecessor to the RLUIPA. Judge Coody additionally
noted that several of our sister circuits have, in a variety of contexts, sustained
prison grooming regulations in the face of RLUIPA challenges. Magistrate Judge
Coody then rejected Plaintiffs’ argument that the widespread adoption of
permissive grooming policies in other jurisdictions should, by itself, invalidate the
ADOC’s grooming policy. He reasoned that the practices of other jurisdictions are
some evidence—but are by no means dispositive evidence—of the feasibility of
less restrictive measures, and the Supreme Court has cautioned lower courts to
defer to the reasoned judgments of prison officials when applying the RLUIPA.
The District Court adopted Magistrate Judge Coody’s Report and
Recommendation (“R&R”) and overruled Plaintiffs’ objections, noting that
“context matters,” “what happens in other prison systems is beside the point,” and
Judge Coody appropriately took into account staffing and funding shortages as part
of the “context” of the case. Dkt. 549 at pp. 2–3. Furthermore, according to the
District Court, Plaintiffs’ heavy reliance on the practices of other jurisdictions
mistakenly “decouple[s] deference [to prison officials] from [the RLUIPA’s] least
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restrictive alternative” prong. Id. at 2. The District Court therefore adopted the
R&R and entered judgment in favor of the ADOC. Dkts. 549, 550. Plaintiffs then
initiated this appeal. Dkt. 556.
II. STANDARDS OF REVIEW
We review the District Court’s factual determinations for clear error and its
legal conclusions de novo. In particular, we will conduct a de novo review of the
District Court’s overall legal determination that the ADOC’s hair policy comports
with the RLUIPA. Cf. Lawson v. Singletary, 85 F.3d 502, 511–12 (11th Cir. 1996)
(“Whether the Rule comports with [the Religious Freedom Restoration Act] is a
pure question of law, and is subject to de novo review by this Court.”); accord
Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996); Hoevenaar v. Lazaroff,
422 F.3d 366, 368 (6th Cir. 2005); McRae v. Johnson, 261 Fed. App’x 554, 557
(4th Cir. 2008); United States v. Friday, 525 F.3d 938, 949 (10th Cir. 2008);
Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir. 2013).4
A factual finding is clearly erroneous “if the record lacks substantial
4
We acknowledge that Lawson identified a policy’s validity under the statutory predecessor to
the RLUIPA as a “pure question of law.” Lawson, 85 F.3d at 512. In this appeal, however,
Plaintiffs attack not only the District Court’s overall legal determination that the ADOC’s short-
hair policy comports with the RLUIPA, but also the factual findings upon which the District
Court rested its ultimate legal conclusion. This appeal, therefore, presents a mixed question of
law and fact, and we will review the District Court’s factual findings for clear error and its
application of the law to those facts de novo. Accord Garner, 713 F.3d at 242; Hamilton, 74
F.3d at 1552; McRae, 261 Fed. App’x at 557; Fegans v. Norris, 537 F.3d 897, 905 and n.2 (8th
Cir. 2008).
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evidence to support it” or we are otherwise “left with the impression it is not the
truth and right of the case”—“a definite and firm conviction that a mistake has
been committed.” Lincoln v. Bd. of Regents of Univ. Sys. of Georgia, 697 F.2d
928, 939–40 (11th Cir. 1983) (internal quotation marks omitted). As to the
weighing of evidence, a District Court may weigh competing expert testimony but
may not arbitrarily ignore expert testimony; rather, “some reason must be
objectively present for ignoring expert opinion testimony.” United States v. Hall,
583 F.2d 1288, 1294 (5th Cir. 1978).5 In addition, an evidentiary error is harmless
if it “had no substantial influence on the outcome and sufficient evidence
uninfected by error supports the verdict.” United States v. Dickerson, 248 F.3d
1036, 1048 (11th Cir. 2001) (internal quotation marks omitted).
III. DISCUSSION
A. The RLUIPA Standard
Congress enacted the RLUIPA as a response to the Supreme Court’s
decisions in Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990), and City of Boerne v. Flores, 521 U.S. 507 (1997). In
Smith, the Court held that the Free Exercise Clause typically does not shield
religiously motivated conduct from the burdens of generally applicable laws. 494
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
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U.S. at 878–79. Congress responded three years later by enacting the Religious
Freedom Restoration Act (“RFRA”). In an effort to restore the level of protection
that religious observances enjoyed before Smith, the RFRA commanded that
“government”—including state and local governments—“shall not substantially
burden a person’s exercise of religion even if the burden results from a rule of
general applicability” unless such a burden met a “compelling governmental
interest” and “least restrictive means” test. 42 U.S.C. § 2000bb-1. In Flores, the
Supreme Court declared the RFRA’s application to the States unconstitutional
because it exceeded Congress’s Fourteenth Amendment enforcement power. 521
U.S. at 532–36.
Mindful of the adage “where there’s a will, there’s a way,” Congress
responded to Flores with the RLUIPA, predicating its enactment not only on its
power to enforce the Fourteenth Amendment, but also on its Spending and
Commerce powers. Less sweeping than the RFRA, the RLUIPA targets only two
areas: land-use regulation and institutions that receive federal funds. Borrowing
the RFRA standard almost entirely, with respect to its protection of
institutionalized persons, the RLUIPA commands that:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person—
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(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). The Act broadly defines “religious exercise” to include
“any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” Id. § 2000cc-5(7)(A). Under the RLUIPA, the plaintiff bears the
burden to prove that the challenged law, regulation, or practice substantially
burdens his exercise of religion. Once a plaintiff has made this prima facie
showing, the defendant bears the burden to prove that the challenged regulation is
the least restrictive means of furthering a compelling governmental interest. Id. §
2000cc-2(b); Smith v. Allen, 502 F.3d 1255, 1276 (11th Cir. 2007), abrogated on
other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011).
Although the RLUIPA protects, to a substantial degree, the religious
observances of institutionalized persons, it does not give courts carte blanche to
second-guess the reasoned judgments of prison officials. Indeed, while Congress
enacted the RLUIPA to address the many “frivolous or arbitrary” barriers
impeding institutionalized persons’ religious exercise, it nevertheless anticipated
that courts entertaining RLUIPA challenges “would accord ‘due deference to the
experience and expertise of prison and jail administrators.’” Cutter v. Wilkinson,
544 U.S. 709, 716–17 (2005) (quoting 146 Cong. Rec. 16698, 16699 (2000) (joint
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statement of Sens. Hatch and Kennedy on the RLUIPA)). The Supreme Court has
cautioned that “[w]e do not read RLUIPA to elevate accommodation of religious
observances over an institution’s need to maintain order and safety,” and “an
accommodation must be measured so that it does not override other significant
interests.” Id. at 722. The Court further instructed:
We have no cause to believe that RLUIPA would not be applied in an
appropriately balanced way, with particular sensitivity to security
concerns. While the Act adopts a “compelling governmental interest”
standard, context matters in the application of that standard.
Lawmakers supporting RLUIPA were mindful of the urgency of
discipline, order, safety, and security in penal institutions. They
anticipated that courts would apply the Act’s standard with due
deference to the experience and expertise of prison and jail
administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with
consideration of costs and limited resources.
Id. at 722–23 (internal quotation marks and citations omitted). This deference is
not, however, unlimited, and “policies grounded on mere speculation, exaggerated
fears, or post-hoc rationalizations will not suffice to meet the act’s requirements.”
Rich v. Secretary, Florida Dep’t of Corrections, 716 F.3d 525, 533 (11th Cir. 2013)
(internal quotation marks omitted).
B. Application of the RLUIPA Standard to this Case
The ADOC does not dispute that its hair-length policy substantially burdens
Plaintiffs’ religious exercise, nor could it. Plaintiffs’ expert on Native American
spirituality offered extensive, undisputed testimony that long hair has great
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religious significance for many Native Americans, and each Plaintiff confirmed
that his desire to wear unshorn hair stemmed from deep religious convictions.
Plaintiffs’ expert further gave an uncontradicted opinion that forcing Native
Americans to cut their long hair would amount to an “assault on their sacredness.”
The sincerity of these firmly-held beliefs—and the gravity of preventing their
exercise—should come as no surprise to anyone familiar with Biblical Scripture.6
It is also beyond dispute that the ADOC has compelling interests in security,
discipline, hygiene, and safety within its prisons and in the public’s safety in the
event of escapes and alteration of appearances. Lathan, 251 Fed. App’x at 667.
The crux of this appeal, then, is simply whether the ADOC’s blanket short-hair
policy furthers those goals and is the least restrictive means of doing so.
i. In Furtherance of a Compelling Governmental Interest
As to the first RLUIPA prong, Plaintiffs merely mount an attack on the
District Court’s factual findings and choice to credit the testimony of the ADOC’s
witnesses. This attack must surely fail, as the detailed record developed during the
trial of this case amply supports the District Court’s factual findings about the risks
6
See, e.g., Judges 16:4–30 (chronicling Delilah’s betrayal of Samson, the forced cutting of
Samson’s hair in contravention to his Nazirite vow, and Samson’s subsequent destruction of the
Philistine temple); Numbers 6:1–21 (describing the Nazirite vow, which included a promise to
refrain from cutting one’s hair unless it became defiled by a sudden death that occurred in the
Nazirite’s presence, and which entailed the shaving of one’s head and sacrifice of the hair at the
close of one’s period of dedication).
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and costs associated with permitting male inmates to wear long hair. Ronald
Angelone described specific incidents in which male inmates had used long hair to
conceal weapons and contraband, as well as a situation in which a male inmate had
cut his long hair to significantly change his appearance after a successful escape.
Angelone further testified that prison staff have cut their hands on hidden razors
when searching male inmates’ long hair. In addition, Angelone and Grantt
Culliver testified that long hair had concealed male inmates’ fungus outbreaks,
sores, cysts, and tumors, and even a spider’s nest. The ADOC’s witnesses also
offered credible opinions, based on decades of combined correctional experience,
that inmates can grab long hair during fights, long hair impedes the ability of
prison staff to readily identify inmates inside the prison, and an exceptionless
short-hair policy promotes order and discipline while removing a physical
characteristic that inmates can use to form gangs. Plainly, the ADOC’s witnesses
offered more than simply “speculation, exaggerated fears, or post-hoc
rationalizations.” Rather, they offered a reasoned and fairly detailed explanation of
how the ADOC’s short-hair policy addresses genuine security, discipline, hygiene,
and safety concerns.
Plaintiffs point out that their witnesses offered competing testimony, but the
District Court, as the finder of fact, remained free to reject it. We cannot say that
the District Court clearly erred in its material factual findings with regard to male
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inmate hair-length.7 Nor can we say that it arbitrarily ignored the testimony of
Plaintiffs’ expert when the ADOC’s witnesses contradicted his testimony.8 Given
the District Court’s factual findings, it is apparent that the ADOC’s short-hair
policy furthers its compelling interests in security, discipline, hygiene, and safety
within its prisons and in the public’s safety in the event of escapes and alteration of
appearances.
ii. Least Restrictive Means of Furthering the Interest
Plaintiffs cannot prevail on their RLUIPA claim because the ADOC has
shown that its exceptionless short-hair policy for male inmates is the least
restrictive means of furthering the compelling governmental interests that we have
mentioned. The ADOC has shown that Plaintiffs’ proposed alternative—allowing
an exemption for Native American inmates, requiring exempted inmates to search
their own hair, and using a computer program to manipulate inmate
7
Plaintiffs direct their most vociferous objection toward the District Court’s somewhat
conclusory finding that the ADOC’s current inmate population is “younger, bolder and meaner”
than in previous years. We cannot say that this finding was wholly unsupported by the record,
since the District Court also found that disciplinary actions increased markedly in 2007. But to
the extent that the record was insufficient to support this particular factual finding, the error was
harmless because it had no substantial influence on the outcome and sufficient evidence
uninfected by error supports the District Court’s determination that the ADOC’s policy furthers
compelling governmental interests. Dickerson, 248 F.3d at 1048.
8
As the ADOC points out in its brief, the District Court may have chosen to discredit George
Sullivan’s testimony because he has testified in many prisoner religious rights cases, but never
on behalf of a prison system, and because he admitted a lack of familiarity with the ADOC’s
prisons.
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photographs—does not eliminate the ADOC’s security, discipline, hygiene, and
safety concerns. As the District Court found, inmates can manipulate searches of
their own hair to conceal weapons and contraband, and using a computer program
to alter photographs does nothing to address the impediments that long hair causes
for the identification of inmates within the prisons. Plaintiffs’ proposed alternative
also does nothing to assuage the ADOC’s concerns about gang-formation and hair-
pulling during fights, or the concealment of infections and infestations. Plaintiffs
cannot point to a less restrictive alternative that accomplishes the ADOC’s
compelling goals, and neither can we. The ADOC has carried its burden on both
RLUIPA prongs.
We agree with the District Court that Harris v. Chapman, 97 F.3d 499 (11th
Cir. 1996), compels the foregoing analysis. In Harris, this Court confronted a
Rastafarian inmate’s RFRA challenge to the Florida DOC’s grooming policy,
which, like the policy at-issue here, categorically forbade male inmates from
wearing long hair.9 This Court upheld the short-hair policy, reasoning in regards to
the first RFRA prong that “[i]t is well established that states have a compelling
interest in security and order within their prisons,” and “[t]his general interest in
security clearly includes other specific interests . . . such as the identification of
9
As already mentioned, the RLUIPA essentially borrowed the RFRA standard, and the
reasoning in Harris therefore applies with equal force in the RLUIPA context.
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escapees and the prevention of the secreting of contraband or weapons in hair or
beards.” Id. at 504. This Court then held that “a reasonable hair length regulation
satisfies the least restrictive means test” because neither we nor the plaintiff could
conceive of any lesser means that would satisfy these compelling interests. Id. So
it is in this case. Plaintiffs have not presented any less restrictive alternative that
can adequately contain the risks associated with long hair; they have merely argued
that the ADOC should volunteer to assume those risks. The RLUIPA places upon
the ADOC no such duty.
In response, Plaintiffs make three arguments that are worth addressing.
First, they argue that the ADOC has failed to satisfy the “least restrictive means”
standard because all its witnesses admitted that the ADOC never considered any
less restrictive alternatives to its short-hair policy before adopting it. Second,
Plaintiffs argue that the widespread adoption of permissive grooming policies in
other jurisdictions demonstrates the viability of a religious exemption as a less
restrictive alternative. Third, Plaintiffs argue that the ADOC’s choice to allow
female inmates to wear shoulder-length hair proves that it is able to accommodate
their requested religious exemption. All of these arguments are unavailing, and we
respond to them in turn.
It is true, as Plaintiffs point out, that some of our sister courts have focused
on the RLUIPA’s command that prison administrators “demonstrate” the
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lawfulness of their policies and have held that notwithstanding Cutter’s deference
mandate, prison administrators must show that they “actually considered and
rejected the efficacy of less restrictive measures before adopting the challenged
practice.” See, e.g., Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005);
Spratt v. Rhode Island Dep’t of Corrections, 482 F.3d 33, 41 (1st Cir. 2007)
(adopting Warsoldier’s heightened proof requirement); Washington v. Klem, 497
F.3d 272, 284 (3d Cir. 2007) (same). This, however, is not the law in this circuit,
and none of this Court’s cases have adopted Warsoldier’s more strict proof
requirement. The language of the RLUIPA directs us to inquire merely whether
the policy under review is the least restrictive means of furthering a compelling
governmental interest. It is certainly possible—though perhaps relatively less
common—for prison administrators to promulgate an appropriately tailored policy
without first considering and rejecting the efficacy of less restrictive measures.
The RLUIPA asks only whether efficacious less restrictive measures actually exist,
not whether the defendant considered alternatives to its policy. As already
explained, the ADOC has shown that no efficacious less restrictive measures exist
and has therefore carried its RLUIPA burden.
Plaintiffs’ heavy fixation on the policies of other jurisdictions similarly
misses the mark. While the practices of other institutions are relevant to the
RLUIPA analysis, they are not controlling—the RLUIPA does not pit institutions
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against one another in a race to the top of the risk-tolerance or cost-absorption
ladder. See Rich v. Secretary, Florida Dep’t of Corrections, 716 F.3d 525, 534
(11th Cir. 2013) (practices of other institutions are relevant but not controlling);
see also Daker v. Wetherington, 469 F. Supp. 2d 1231, 1239 (N.D. Ga. 2007)
(interpreting the RLUIPA to leave “room for a particular prison to decline to join
the ‘lowest common denominator’ when, in the discretion of its officials, the
removal of a challenged restriction poses an appreciable risk to security”). The
ADOC has shown that Plaintiffs’ requested exemption poses actual security,
discipline, hygiene, and safety risks. That other jurisdictions choose to allow male
inmates to wear long hair shows only that they have elected to absorb those risks.
The RLUIPA does not force institutions to follow the practices of their less risk-
averse neighbors, so long as they can prove that they have employed the least
restrictive means of furthering the compelling interests that they have chosen to
address. The ADOC has shown that its departure from the practices of other
jurisdictions stems not from a stubborn refusal to accept a workable alternative, but
rather from a calculated decision not to absorb the added risks that its fellow
institutions have chosen to tolerate. This cannot amount to an RLUIPA violation.
Finally, Plaintiffs’ focus on the ADOC’s different grooming standards for
female inmates ignores the District Court’s factual finding—supported by Ronald
Angelone’s testimony—that men pose greater safety and security risks than women
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in prison populations. We are not the first court of appeals to uphold a grooming
policy that treats male and female inmates differently when the record shows that
there are valid reasons for the different treatment. See, e.g., Fegans v. Norris, 537
F.3d 897, 905 (8th Cir. 2008). Given the District Court’s finding that male inmates
pose a greater threat than female inmates, the RLUIPA does not require the ADOC
to enforce a sex-blind hair-length policy.
C. Plaintiffs’ Additional Legal Rights
In a mere two pages at the end of their initial brief, Plaintiffs assert that the
ADOC’s hair-length restrictions violate their “additional legal rights.”
Specifically, Plaintiffs claim that the ADOC’s hair-length policy violates their free
exercise and freedom of association rights under the First Amendment, their
constitutional rights to due process and equal protection of the laws, the
Establishment Clause of the First Amendment, and their rights under 42 U.S.C. §
1985. Except for their equal protection claim, Plaintiffs provide no supporting
discussion and have therefore abandoned these additional issues in this appeal. See
Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (issues mentioned in
passing but without supporting argument or discussion are abandoned).
Plaintiffs do present a cursory equal protection argument, but it is wholly
meritless. Plaintiffs claim that the ADOC’s hair-length policy treats them
differently than other inmates on the basis of race, religion, and sex. There is
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absolutely no evidence in the record to support the contention that the hair-length
policy—which applies to all male inmates without exception—discriminates on the
basis of race or religion. Furthermore, while the policy does establish different
standards for male and female inmates, the record unmistakably shows that the
ADOC has valid reasons for the different hair-length standards and the regulations
are not arbitrary or unreasonable. See Hill v. Estelle, 537 F.2d 214, 215–16 (5th
Cir. 1976) (upholding differential prison grooming regulations against an equal
protection challenge because “[t]he disparity between the regulations for male and
female inmates is not so grievous as to make them arbitrary or unreasonable, cruel
or unusual, and the wisdom of the disparate regulations will be left to the judgment
of state penologists”); accord Fegans, 537 F.3d at 906 (upholding differential
prison grooming regulations against an equal protection challenge under a
“reasonableness” standard).
IV. CONCLUSION
In the end, Plaintiffs ask us to hold that because many other prison systems
have chosen to accept the costs and risks associated with long hair, the ADOC
must accept them as well. This we cannot do. Although many well-run
institutions have indeed decided that the benefits of giving inmates more freedom
in personal grooming outweigh the disadvantages, the RLUIPA does not prevent
the ADOC from making its own reasoned assessment. Allowing male inmates to
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wear long hair carries with it established costs and risks, and the RLUIPA does not
require the ADOC to embrace them merely because other institutions have.
The ADOC may, of course, decide in the future that these costs and risks
might be worth absorbing, especially in view of the high value that long hair holds
for many religious inmates. And the ADOC might also find persuasive James
Madison’s admonition that “[i]t is the duty of every man to render to the Creator
such homage and such only as he believes to be acceptable to him,” and “[t]his
duty is precedent, both in order of time and in degree of obligation, to the claims of
Civil Society.” James Madison, Memorial and Remonstrance Against Religious
Assessments (June 20, 1785), in 5 THE FOUNDERS’ CONSTITUTION, at 82 (Philip B.
Kurland & Ralph Lerner eds., 1987). But that is a decision that the RLUIPA
leaves to the discretion of the ADOC’s policy-makers.
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
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