Omar Grayson v. Harold Schuler , 666 F.3d 450 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3256
O MAR G RAYSON,
Plaintiff-Appellant,
v.
H AROLD S CHULER,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-00335-MJR—Michael J. Reagan, Judge.
S UBMITTED N OVEMBER 22, 2011—D ECIDED JANUARY 13, 2012
Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, a former inmate
of the Big Muddy Correctional Center, an Illinois prison,
brought this suit under 42 U.S.C. § 1983 against a correc-
tional officer who ordered the forcible shearing of the
plaintiff’s dreadlocks. The plaintiff argues that the
order (which was carried out) violated the free exer-
cise clause of the First Amendment. The district judge
granted the defendant’s motion for summary judg-
ment and dismissed the case.
2 No. 10-3256
Inmates’ complaints that prison authorities have in-
fringed their religious rights commonly include a
claim under the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §§ 2000cc et seq., which confers
greater religious rights on prisoners than the
free exercise clause has been interpreted to do. See 42
U.S.C. § 2000cc-1; Cutter v. Wilkinson, 544 U.S. 709, 714-17
(2005). The plaintiff doesn’t mention the Act, but he is
proceeding pro se and in such cases we interpret the
free exercise claim to include the statutory claim. Ortiz
v. Downey, 561 F.3d 664, 670 (7th Cir. 2009). But the Act
can no longer do him any good. Although his complaint
is none too clear, he appears to be seeking damages
against the defendant in both the latter’s official
capacity and his personal capacity, and the former claim
is barred by the state’s sovereign immunity, Sossamon v.
Texas, 131 S. Ct. 1651, 1658-61 (2011); Vinning-El v.
Evans, 657 F.3d 591, 592 (7th Cir. 2011), and the latter
claim cannot be based on the Act because the Act does
not create a cause of action against state employees in
their personal capacity. Nelson v. Miller, 570 F.3d 868, 886-
89 (7th Cir. 2009). It does authorize injunctive relief,
which the plaintiff initially sought along with damages,
but he’s since been released from prison, so his injunctive
claim is moot and he is left with his personal-capacity
damages claim under section 1983.
Illinois prison inmates are allowed to “have any length
of hair” they want, provided, so far as bears on this case,
that it “do[es] not create a security risk.” 20 Ill. Admin.
Code 502.110(a). The defendant ordered the plaintiff’s
dreadlocks cut off on the ground that they posed a security
No. 10-3256 3
risk, though he did not explain why. The plaintiff com-
plained to the prison chaplain, who informed him that
only inmates who are Rastafarians are permitted to
wear dreadlocks. The plaintiff is not a Rastafarian, but a
member of the African Hebrew Israelites of Jerusalem;
and according to the chaplain the members of that sect
are not required by their faith to wear dreadlocks (this
appears to be correct), and therefore, he concluded, the
plaintiff was not entitled to wear them. (It’s the “there-
fore” that’s the issue in this appeal.) The plaintiff filed
an internal prison grievance, but it was denied on the
basis of the chaplain’s theological opinion.
Dreadlocks can attain a formidable length and density,
as shown in this photograph of the late Jamaican
musician Bob Marley (a Rastafarian):
4 No. 10-3256
One can see why prison officials might fear that a
shank or other contraband could be concealed in an in-
mate’s dreadlocks, or why they might want inmates to
wear their hair short because inmates with long hair
can more easily change their appearance, should they
escape, by cutting their hair. Short hair is also more
hygienic than very long, braided hair. The case law indi-
cates that a ban on long hair, including dreadlocks, even
when motivated by sincere religious belief, would pass
constitutional muster. See Fegans v. Norris, 537 F.3d 897,
906 (8th Cir. 2008); Henderson v. Terhune, 379 F.3d 709, 712-
15 (9th Cir. 2004); Harris v. Chapman, 97 F.3d 499, 503-04
(11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th
Cir. 1996); see also Reed v. Faulkner, 842 F.2d 960, 963 (7th
Cir. 1988); cf. Green v. Polunsky, 229 F.3d 486, 489-90 (5th
Cir. 2000).
Regulations of general applicability, not intended to
discriminate against a religion or a particular religious
sect, were held in Employment Division v. Smith, 494 U.S.
872 (1990), not to violate the free exercise clause. Its
holding should apply to prison inmates along with every-
one else—as indeed assumed in Cutter v. Wilkinson,
supra, 544 U.S. at 714-17—and therefore authorize any ban
on long hair as long as it is not motivated by religious
prejudices or opinions. But the applicability of Smith to
prisoners is uncertain because of an earlier Supreme Court
decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), not
expressly overruled by Smith or Cutter, which re-
quires prison authorities to “accommodate” an inmate’s
religious preferences if consistent with security and other
legitimate penological concerns. See also Turner v. Safley,
No. 10-3256 5
482 U.S. 78 (1987). Accommodation is what Smith
says the free exercise clause does not require; and it’s
hard to believe that prisoners have more rights than
nonprisoners. But we’re not supposed to declare a
decision by the Supreme Court overruled unless the
Court makes clear that the case has been overruled, even
if we’re confident that the Court would overrule it if
the occasion presented itself. State Oil Co. v. Khan, 522
U.S. 3, 20 (1997); see Vinning-El v. Evans, supra, 657 F.3d
at 592-93; Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.
1999). No matter. This as we’ll see is a case of outright
arbitrary discrimination rather than of a failure merely
to “accommodate” religious rights.
Prison officials might sometimes actually want on
security grounds to exempt from a ban on long hair
inmates whose motivation was religious, cf. Cutter v.
Wilkinson, supra, 544 U.S. at 724-25; accommodating a
genuine religious observance might reduce rather than
increase the risk of prisoner misconduct. At the same
time the prison officials might want to distinguish
between religiously motivated practices that are
required by the prisoner’s religion and those that are
optional, a distinction we discuss below. But nowhere
in the record can we find this or any other articulated
ground for the prison’s Rastafarian exception to a ban
on long hair. Nor could such a ground be easily squared
with the language of the Illinois statute that we quoted.
Permitting prisoners to “have any length of hair . . . so long
as” it “do[es] not create a security risk” doesn’t sound
like “prisoners must have short hair unless they are
Rastafarians.” The defendant suggests that the prison
6 No. 10-3256
could ban all prisoners from wearing dreadlocks but
does not argue that that’s the prison’s policy; he
tacitly accepts the Rastafarian exception announced to
the plaintiff by the prison chaplain.
The prison would be hard pressed to defend a rule
that only Rastafarians may wear dreadlocks (though for
all we know that is the prison’s rule, or at least its de
facto rule, declared by the chaplain), unless it were
certain that no other sect, and not even any individual
prisoner’s private faith, considers wearing dreadlocks
a religious observance; barring such an exception, such
a rule would discriminate impermissibly in favor of one
religious sect. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per
curiam); Vinning-El v. Evans, supra, 657 F.3d at 595.
We can imagine religious discriminations that could be
justified by security concerns: a ban on Thuggee, the
notorious Indian cult stamped out by the British whose
votaries believed they were the children of the Hindu
goddess Kali (created from her sweat) and that she had
commanded them to commit mass murder—a command
they followed with enthusiasm. But the Big Muddy
Correctional Center allows Rastafarians to wear dread-
locks and has failed to give a reason for thinking
that the plaintiff but not they would be a security risk
if allowed to wear them.
Nor could the prison permit only members of sects
(even if not limited to Rastafarians) that “officially” require
the wearing of dreadlocks to wear them. Heretics have
religious rights. Frazee v. Illinois Dep’t of Employment
Security, 489 U.S. 829, 834 (1989); United States v. Ballard,
No. 10-3256 7
322 U.S. 78, 86-87 (1944); Ortiz v. Downey, supra, 561 F.3d
at 669. The founders of Christianity (Jesus Christ, the
Apostles, and St. Paul) were Jewish heretics; Luther and
Calvin and the other founders of Protestantism were
Catholic heretics. Religious belief must be sincere to be
protected by the First Amendment, but it does not have
to be orthodox. And anyway the plaintiff is not a
heretic; there is no suggestion that orthodox African
Hebrew Israelites of Jerusalem think it wrong to take
and abide by the Nazirite vow, the basis of the plaintiff’s
claim that wearing dreadlocks is for him a religious
observance, though dreadlocks do not have the
symbolic significance for African Hebrew Israelites of
Jerusalem that they do for Rastafarians.
Since heresy is not excluded from the protection of the
free exercise clause, optional as distinct from mandatory
religious observances aren’t excluded either. Which
brings us to the plaintiff and his vow. Believing as they
do that the original Jews—the Jews of the Old Testa-
ment—were black and that black people today are
the descendants of those Jews, African Hebrew Israelites
of Jerusalem venerate the Old Testament. African
Hebrew Israelites of Jerusalem, “Our Philosophy,” www.
africanhebrewisraelitesofjerusalem.com/Our_Philosophy
.htm (visited Dec. 16, 2011). And in Numbers 6:2-5 God
is reported as saying to Moses (in the King James transla-
tion): “Speak unto the children of Israel, and say unto
them, When either man or woman shall separate them-
selves to vow a vow of a Nazirite, to separate them-
selves unto the LORD, . . . all the days of his separation
there shall no razor come upon his head . . . . [He] shall
let the locks of the hair of his head grow long.” The
8 No. 10-3256
word “Nazirite” (or “Nazarite”) is from the Hebrew nazir,
meaning “set apart,” and the Old Testament states in
several places besides Numbers that Nazirites must not
cut their hair. The most celebrated statement is in the
Book of Judges and concerns Samson, who recklessly
explains to Delilah that if his hair were shorn, his
strength would go with it. Judges 13:5, 16:17. Samson
had seven braids, Judges 16:19, which could well have
been dreadlocks.
The plaintiff told the defendant that he was taking
“the Nazarite vow of separation,” and while the vow
does not appear to require dreadlocks, which are not the
only form that uncut hair can take, the parties agree
that “due to his African ancestry, Plaintiff’s hair naturally
forms into dreadlocks when it grows long.” African
Hebrew Israelites of Jerusalem might well deem taking
the Nazirite vow an appropriate supplemental observ-
ance, cf. Swift v. Lewis, 901 F.2d 730, 731 (9th Cir. 1990),
and a religious believer who does more than he is
strictly required to do is nevertheless exercising his
religion. A Catholic who vows to obey the Rule of
St. Benedict and therefore avoid “the meat of four-
footed animals” is performing a religious observance
even though not a mandatory one. Nelson v. Miller, supra;
see also Employment Division v. Smith, supra, 494 U.S. at 886-
87; Ortiz v. Downey, supra, 561 F.3d at 669; Teterud v.
Burns, 522 F.2d 357, 360 (8th Cir. 1975).
True, there is more to the Nazirite vow than just not
cutting one’s hair, such as not eating or drinking any
grape product or going near dead bodies, Numbers 6:4-6,
No. 10-3256 9
and perhaps someone who took the vow and let his
hair grow but ignored the other proscriptions could be
thought insincere—though we repeat our warning in
Reed v. Faulkner, supra, 842 F.2d at 963, that a sincere
religious believer doesn’t forfeit his religious rights
merely because he is not scrupulous in his observance;
for where would religion be without its backsliders,
penitents, and prodigal sons? On this record there is no
basis for doubting that the plaintiff’s taking the Nazirite
vow was religiously motivated.
Prison authorities are always entitled to balance
security concerns against religious practices, and the need
to do so may be greater with regard to optional than
to mandatory practices. In Koger v. Bryan, 523 F.3d 789,
794 (7th Cir. 2008), the inmate was an adherent of
Thelema, a spiritual philosophy (a religion in the broad
sense in which the term is used in First Amendment
cases) that “has as its central tenet ‘Do what thou
wilt.’ ” Thelema’s single mandatory tenet invites an
infinity of optional observances. And in New Rider v.
Board of Education of Independent School Dist. No. 1, 480
F.2d 693, 696 (10th Cir. 1973), we learn that the Pawnee
Indians believe “that everything the Pawnee does each
day has religious significance” (emphasis in original).
Inmates can drive their keepers crazy by multiplying
observances, as when Muslim prisoners refuse to step
forward at roll call, precipitating a futile search (futile
because they are present) because, without telling the
prison authorities, they have adopted a Muslim name,
Azeez v. Fairman, 795 F.2d 1296, 1298-99 (7th Cir. 1986),
which Islam encourages but does not require.
10 No. 10-3256
But there is no suggestion that allowing this plaintiff
to have grown dreadlocks would have created a wildfire
of idiosyncratic observances, and so we are left with
what appears to be discrimination (though a trial might
cast the facts in a different light). Prison chaplains may
not determine which religious observances are permis-
sible because orthodox. Vinning-El v. Evans, supra, 657
F.3d at 595. We held in Reed v. Faulkner, supra, 842 F.2d
at 964, that a prison could not forbid Rastafarians to
wear long hair while permitting American Indians to do
so. No more can the prison permit Rastafarians to
wear long hair and without justification forbid a sincere
African Hebrew Israelite of Jerusalem to do so, even if
he is more zealous in his religious observances than
his religion requires him to be.
Since, however, “[qualified] immunity protects
public employees who make reasonable errors in
applying even clearly established law,” Vinning-El v.
Evans, supra, 657 F.3d at 594, the defendant is entitled
to immunity if he committed a reasonable error in failing
to apply clearly established law—that is, if he rea-
sonably thought the plaintiff insincere in his religious
belief, or a security threat. But there is no suggestion
that the defendant ordered the plaintiff’s dreadlocks
shorn because of a reasonable belief in either of these
possibilities. He seems just to have been applying the
Rastafarian exception, which could not reasonably be
thought constitutional.
So neither on substantive nor immunity grounds can
the grant of summary judgment be upheld. The judg-
No. 10-3256 11
ment is reversed and the case remanded for further
proceedings consistent with this opinion.
R EVERSED AND R EMANDED.
1-13-12