Peter Lewis v. Jerry Sternes ( 2013 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-3297
    P ETER A. L EWIS,
    Plaintiff-Appellant,
    v.
    JERRY L. S TERNES, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of Illinois, Western Division.
    No. 04 C 50160—Frederick J. Kapala, Judge.
    S UBMITTED F EBRUARY 14, 2013—D ECIDED M ARCH 28, 2013
    Before P OSNER, W OOD , and T INDER, Circuit Judges.
    P OSNER, Circuit Judge. The plaintiff is an inmate of
    the Dixon Correctional Center, an Illinois prison. He
    brought this suit under 
    42 U.S.C. § 1983
     against prison
    officials who he claims both violated his religious rights
    under the Constitution and denied him equal protection
    of the laws, but also under the Religious Land Use
    and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
    §§ 2000cc et seq. (and a parallel state law, which we need
    2                                               No. 11-3297
    not discuss), complaining that those same officials
    denied him an accommodation, to which he says the
    Act entitled him, of his religious observances. He
    appeals from the grant of summary judgment in favor
    of the defendants.
    The plaintiff is a member of a religious sect called
    the African Hebrew Israelites of Jerusalem, and consis-
    tently with the creed of that sect he took the
    Nazirite vow, which among other things committed
    him not to cut his hair. As a result he wore his hair
    in dreadlocks, which form naturally in some people
    who do not cut their hair. About the sect and its creed
    and how compliance with the Nazirite vow by an
    African Hebrew Israelite of Jerusalem can result in the
    votary’s hair forming dreadlocks see Grayson v. Schuler,
    
    666 F.3d 450
     (7th Cir. 2012).
    The present suit is a sequel to an earlier one, in which
    the plaintiff had claimed that the defendants had
    infringed his religious freedom by refusing to allow him
    to have visitors unless he consented to have his hair cut.
    That suit was settled in 2003; the parties agreed that
    the plaintiff could receive visitors, consistent however
    with the rules and regulations of the Illinois Department
    of Corrections, if he allowed prison staff to search
    his hair before and after any visit lest he be concealing
    contraband in his dreadlocks.
    The settlement turned out to do nothing for the plain-
    tiff. Although Illinois prison inmates are allowed to “have
    any length of hair” they want—provided, so far as bears on
    this case, that their hairstyle “do[es] not create a security
    No. 11-3297                                                3
    risk,” 20 Ill. Admin. Code § 502.110(a)—the prisons have,
    consistent with that proviso, adopted grooming policies
    that require haircuts for any inmate whose hairstyle
    creates a security risk, including hairstyles that prevent
    searching hair effectively for contraband. We do not
    interpret the settlement as making an exception for
    our plaintiff.
    Neither side suggests combing out the plaintiff’s hair
    without cutting, so that though long (because uncut) the
    hair would be readily searchable because it would not have
    the thickness or density of dreadlocks. It is widely believed
    that dreadlocks can be removed only by cutting, and that
    is the most common method by far. But with the aid of a
    conditioner and a degreasing shampoo they can be combed
    out without any cutting, although it takes many hours.
    E.g., Dreadlocks.Org,, “How to Remove Dreadlocks,” Oct.
    31, 2005, www.dreadlocks.org/how-to-remove-dreadlocks/
    (visited March 15, 2013). We do not know whether the
    method is feasible in a prison setting; and if it is, yet
    it might take too much time to have enabled the plaintiff
    to appear in court on schedule (a critical event in this
    case, as we’re about to see) without dreadlocks.
    In January 2004, when the plaintiff was scheduled to
    appear in federal court in a case he had filed, the prison
    gave him a choice: a haircut, or segregation as punishment
    for eluding, by refusing a haircut, his scheduled trip
    to court. (Dropping his case apparently was not an
    option; the court had ordered him to appear.) He chose
    the haircut. He claims that the court date had been post-
    poned (which is true), that the prison officials knew
    4                                               No. 11-3297
    this, and that therefore the prison had no reason
    grounded in security concerns for making him cut his
    hair. There is dispute over which prison officials knew
    what and when about the looming court date. But it is
    undisputed that Lewis was transported to court shortly
    after his haircut. And it is obvious that transporting
    prisoners and placing them in courtrooms present sig-
    nificant security concerns, warranting protective measures.
    In any event, since Lewis’s court date had merely been
    postponed, not canceled, he would have had to choose
    between the haircut and segregation eventually.
    Although his motivation for not wanting to cut his
    hair is religious, he has no evidence that the prison
    made him cut his hair because of ignorance of his
    religion or its observances, as in the Grayson case.
    He complains that his prison’s policy on dreadlocks is
    arbitrary and unjustifiable, and he also seeks an “accom-
    modation”—that is, he wants the prison to make an
    exception for him from the policy (even if the policy
    is valid as applied to prisoners who have no religious
    claim) because of his religion.
    Whether there is a constitutional as distinct from a
    statutory right to a religious accommodation is an open
    question, though one unnecessary to try to resolve in this
    case. It is open because of the tension, discussed both
    in Grayson v. Schuler, supra, 666 F.3d at 452-53, and in
    Vinning-El v. Evans, 
    657 F.3d 591
    , 592-93 (7th Cir. 2011),
    between, on the one hand, the Supreme Court’s decisions
    in O’Lone v. Shabazz, 
    482 U.S. 342
    , 348-50 (1987), and Turner
    v. Safley, 
    482 U.S. 78
     (1987), which create a First Amend-
    No. 11-3297                                              5
    ment duty of religious accommodation in prisons, and on
    the other hand Employment Division v. Smith, 
    494 U.S. 872
    (1990), which denies a constitutional duty of religious
    accommodation in broad terms yet without overruling
    O’Lone or Turner. RLUIPA, however, unquestionably
    creates a statutory right of accommodation. See 42
    U.S.C. § 2000cc-1; Sossamon v. Lone Star State of Texas,
    
    560 F.3d 316
    , 335-36 (5th Cir. 2009).
    We said that the plaintiff is both seeking an exception,
    premised on his religion, from a rule of general applica-
    bility, which is an accommodation claim, and com-
    plaining that the rule is arbitrary. To forbid a person to
    engage in a sincere religious observance without a de-
    fensible reason is a violation of the free-exercise clause
    that is distinct from a refusal to bend a valid rule of
    general applicability in recognition that it interferes
    with a religious observance. One might think that,
    given RLUIPA, no one would bother to argue for the
    denial of his constitutional right to the free exercise
    of religion. For it is easier to prove that a defendant
    failed or is failing to accommodate a valid rule to a reli-
    gious need, a determination that balances the de-
    fendant’s need to apply the rule to the plaintiff against
    the plaintiff’s interest in religious freedom, than to
    prove that the rule is invalid across the board. But
    because of differences in the remedies and procedures
    applicable to a RLUIPA case from those applicable to
    suits under 
    42 U.S.C. § 1983
    , a plaintiff will sometimes
    find it advantageous to proceed under section 1983
    rather than, or (as in this case) as well as, under RLUIPA.
    6                                               No. 11-3297
    The plaintiff has presented no evidence, however,
    either that his prison has no need to regulate hair length
    or hairstyle (a free-exercise claim) or that the need is not
    great enough to warrant interference with his religious
    observance (an accommodation claim). The case law
    recognizes the need for and validity of rules regulating
    the hairstyles of prisoners in the interest of security. See,
    e.g., Grayson v. Schuler, supra, 666 F.3d at 452, and cases
    cited there; Fegans v. Norris, 
    537 F.3d 897
    , 902-03 (8th
    Cir. 2008); Longoria v. Dretke, 
    507 F.3d 898
    , 904 (5th
    Cir. 2007) (per curiam); Hoevenaar v. Lazaroff, 
    422 F.3d 366
    , 369-72 (6th Cir. 2005); Hines v. South Carolina Dept. of
    Corrections, 
    148 F.3d 353
    , 358 (4th Cir. 1998). Although the
    plaintiff has identified a fellow prisoner who was
    allowed to wear dreadlocks similar to his, which he
    argues shows that the prison has no need to regulate
    dreadlocks, that prisoner was just receiving visitors and
    not going to court.
    We are however troubled by the difference in policies
    about dreadlocks between the Dixon Correctional
    Center and the Big Muddy River Correctional Center,
    the Illinois prison in which the prisoner in the
    Grayson case was incarcerated. Big Muddy had
    allowed Rastafarians (but not Grayson’s sect, which like
    the plaintiff’s in this case was the African Hebrew
    Israelites of Jerusalem) to wear dreadlocks. It wouldn’t
    have had to do that if the prison officials had thought
    that dreadlocks created a security risk. For there was no
    suggestion that Rastafarians are less likely to conceal
    contraband in their dreadlocks than other dreadlocked
    prisoners.
    No. 11-3297                                               7
    Both Dixon and Big Muddy are Illinois medium-security
    prisons; why would they have different policies about
    dreadlocks? But there may be a reason. Dixon (our plain-
    tiff’s prison) has a more liberal visiting policy than
    Big Muddy. Prisoners at Big Muddy, if they’re not
    in segregation, may receive visitors from 8:30 a.m. to
    5:30 p.m., but are limited to six visits per month and
    no more than two of the visits are allowed on
    weekends or holidays. Ill. Dept. of Corrections, “Facilities
    & Visitation: Big Muddy Correctional Center,”
    www2.illinois.gov/idoc/facilities/pages/
    bigmuddyriver.aspx (the websites cited in this
    opinion were visited on Feb. 20, 2013). In contrast,
    Dixon inmates may receive visitors from 9:00
    a.m. to 8:00 p.m., with no monthly, weekend, or
    holiday limitations. Ill. Dept. of Corrections, “Facilities
    & Visitation: Dixon Correctional Center,”
    www2.illinois.gov/idoc/facilities/pages/dixoncorrectional
    center.aspx. Dixon inmates are also, it seems, allowed more
    time out of their cells—“almost all day,” according to one
    web posting, Illinois Prison Talk, “Dixon Correctional
    Center,” Dec. 13, 2007, www.illinoisprisontalk.org/
    index.php?topic=7780.100—whereas it seems that inmates
    at Big Muddy are allowed out of their cells for
    only about three hours a day. Illinois Prison Talk, “Big
    Muddy Correctional Center,” Sept. 1, 2009, www.
    illinoisprisontalk.org/index.php?topic=7735.0. Dixon thus
    seems to be the more “liberal” prison. This may make its
    staff more concerned than Big Muddy’s staff is with
    the possibility of contraband being brought into or
    carried out of the prison; and a greater concern would
    justify tighter controls over hairstyle.
    8                                               No. 11-3297
    A letter from the plaintiff’s lawyer to a lawyer in the
    Illinois Attorney General’s office concerning the plaintiff’s
    previous case states that “I advised [the plaintiff] of your
    position that the state has no plans to cut his hair and
    no regulations that require a certain grooming” (emphasis
    added). This letter was sent before the suit was settled,
    however, and is misleading given the directive we de-
    scribed earlier. The letter also states that “Mr. Lewis will
    not tie his hair up so that there is no way that it can be
    searched.” That is, Lewis would not make searching
    his hair even more difficult by bundling it at the top of
    his head rather than letting the dreadlocks dangle loose.
    But even unbundled his dreadlocks might be difficult
    to search.
    The district judge quoted a district court opinion
    which says that guards may be too busy to search in-
    mates’ hair or may cut their hands on sharp objects con-
    cealed in the hair and for these and other reasons
    shouldn’t be required to allow inmates to wear dread-
    locks. But these are not concerns voiced by the de-
    fendants in the present case. The prison neither has
    nor defends a general ban against dreadlocks. But we give
    considerable weight to the defendants’ uncontradicted
    testimony that the thickness and density of the plaintiff’s
    dreadlocks made them difficult to search. This triggers
    the grooming policy that requires removal of deadlocks
    in particular cases. An ad hoc policy of this sort invites
    unequal treatment but the alternative of a flat ban
    on dreadlocks would curtail prisoners’ religious liberty
    more. Prisons are allowed, as we pointed out in Grayson,
    a broad discretion in matters of security. And that dis-
    No. 11-3297                                               9
    cretion extends to a determination that a particular in-
    mate’s dreadlocks on a particular occasion (such as a
    visit to federal court) are too thick or dense to be
    readily searchable. The plaintiff has presented no evi-
    dence that he was treated differently from any other
    inmate similarly situated—an inmate with dreadlocks
    and a court date. Nor that the prison’s security con-
    cerns are outweighed in his case by his interest in
    being permitted to engage in a sincere religious obser-
    vance. E.g., May v. Baldwin, 
    109 F.3d 557
    , 562-65 (9th
    Cir. 1997); Ragland v. Angelone, 
    420 F. Supp. 2d 507
    , 515-16
    (W.D. Va. 2006). As we explained in Grayson, the Nazirite
    vow is an optional rather than mandatory observance
    for African Hebrew Israelites of Jerusalem. And there is
    no evidence that a member of that sect is less likely to
    conceal contraband in his dreadlocks that prisoners
    who wear dreadlocks for secular rather than religious
    reasons.
    Lewis makes some other claims but we do not dis-
    cuss them because they are adequately discussed and
    properly rejected in the district court’s opinion.
    A FFIRMED.
    3-28-13