Peter Lewis v. Jerry Sternes , 712 F.3d 1083 ( 2013 )

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