Hoevenaar v. Lazaroff

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0382p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
CORNELIUS WAYNE HOEVENAAR,
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No. 03-4119
v.
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ALAN LAZAROFF, -
Defendant-Appellant. -
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On Remand from the United States Supreme Court.
No. 03-00190—Algenon L. Marbley, District Judge.
Submitted: June 8, 2004
Decided and Filed: September 8, 2005
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
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COUNSEL
ON BRIEF: Todd R. Marti, Scott M. Campbell, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. David A. Singleton, Carol R. Camp, Cincinnati, Ohio, for Appellee.
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OPINION
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DANNY C. REEVES, District Judge. Plaintiff Cornelius Hoevenaar is a native American
of Cherokee ancestry currently serving a life sentence in the Ohio prison system. While
incarcerated, Hoevenaar began to practice a native religion which prohibits him from cutting his
hair. As a result, Hoevenaar claims that prison rules regulating hair length violate his right to
practice his religious beliefs and are in violation of the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq. (2000).
Following a hearing on the Plaintiff’s request for a temporary injunction, the district court
granted limited relief under RLUIPA, allowing Hoevenaar to maintain a “kouplock” (a two inch by
two inch square section at the base of the skull that is grown longer than the person’s remaining
hair). This Court reversed the district court’s decision, in light of Cutter v. Wilkinson, 349 F.3d 257
(6th Cir. 2003), rev’d, 125 S. Ct. 2113 (2005), which held that the RLUIPA was unconstitutional.
Hoevenaar v. Lazazroff, 108 Fed. Appx. 250 (6th Cir. 2004), vacated by 125 S. Ct. 2536 (2005).
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
1
No. 03-4119 Hoevenaar v. Lazaroff Page 2
Subsequently, the Supreme Court reversed this Court’s decision in Cutter and remanded the instant
matter for further consideration in light of its holding. Following remand from the Supreme Court,
this Court ordered the parties to file letter briefs to address Warden Lazaroff’s alternative arguments
for reversing, which were not addressed in this Court’s prior decision.
Again, after reviewing this matter, we conclude that the district court failed to give proper
deference to prison officials with respect to the issue of whether a kouplock presented security,
identity, or other concerns similar or in addition to those presented by the grooming regulation in
general. Therefore, we again REVERSE the decision of the district court granting injunctive relief
to Hoevenaar.
BACKGROUND
At times relevant to this proceeding, Hoevenaar was incarcerated at the Madison
Correctional Institution serving a life sentence. Beginning around 1998, Hoevenaar began following
the practices of his Native American religion, which include growing his hair long. He claims that
a fundamental tenet of this religion prohibits the cutting of his hair. This practice, however, is not
permitted by an Ohio prison regulation that provides:
Haircuts shall be provided as needed. Hair and hairstyles shall be clean, neatly
trimmed and shall not extend over the ears or the shirt collar. Hair and hairstyle shall
not protrude more than three inches from the scalp. Braids and plaits may be worn
subject to the limitations of this rule. The following hairstyles or facial hair are not
permitted: Initials, symbols, dyes, multiple parts, hair disproportionately longer in
one area than another (excluding natural baldness), weaves, wigs, dreadlocks and
shaved heads. Other hairstyles not specifically listed herein may be prohibited if
they are determined to be either a threat to security or contrary to other legitimate
penological concerns.
Ohio Admin. Code § 5120-9-25(D).
As a result of the conflict presented, Hoevenaar commenced an administrative proceeding
challenging the relevant portion of the regulation. On February 19, 2003, he was notified by the
office of Chief Inspector that his grievance had been denied and that the decision of the Inspector
was affirmed. The Chief Inspector further instructed that “unless you have a Court ordered
exemption, you are obligated to adhere to the inmate grooming code as stated in administrative rule
5120-9-25.”
After his administrative grievance was denied, Hoevenaar filed suit challenging the Ohio
regulation under the RLUIPA. Following a hearing on the Plaintiff’s request for a temporary
injunction, the district court granted limited relief allowing Hoevenaar to maintain a kouplock. In
addressing Hoevenaar’s likelihood of success, the court analyzed his RLUIPA claims as well as his
First Amendment claim.1
As the district court noted, RLUIPA is similar to the Religious Freedom Restoration Act of
1993 (RFRA) in that the court must determine whether the plaintiff is likely to succeed in
demonstrating that the regulation in issue imposes a substantial burden on his religious exercise.
Hoevenaar v. Lazaroff, 276 F. Supp. 2d 811, 818 (S.D. Ohio 2003). Assuming the plaintiff makes
this initial showing, the court next considers whether the regulations meet strict scrutiny, i.e., the
regulation must be “the least restrictive means” towards furthering “a compelling governmental
1
The district court’s conclusions regarding the First Amendment issue have not been challenged in this appeal.
No. 03-4119 Hoevenaar v. Lazaroff Page 3
interest.” Cutter, 125 S. Ct. at 2116 (quoting 42 U.S.C. § 2000cc-1(a)-(2) (2000)). Again, this test
is the same as that previously imposed under RFRA.
The district court found that Warden Lazaroff was “significantly likely” to satisfy his burden
of demonstrating that the grooming regulation furthers a compelling state interest in identifying
prison inmates and suppressing contraband in prisons. Hoevenaar, 276 F. Supp. 2d at 819.
Notwithstanding this finding, it concluded that the warden was unlikely to succeed in demonstrating
that blanket application of the regulation, without individual exceptions, would be “the least
restrictive means of furthering the government’s interest in the efficient identification of escaped
inmates.” Id. at 824. According to the district court, “an exception to the grooming regulation . . .
that would allow for the growing of a ‘kouplock’ based on sincerely held religious beliefs, and
would be granted to inmates who are determined not to pose a significant security risk, is a less
restrictive means of furthering the compelling interest in identifying inmates.” Id.
In addition to requiring prison officials to consider the particular hair style in issue, the
district court indicated that the officials should consider the inmate’s particular security
classification and any specific medical condition that would bear on his security risk. According
to the district court:
Just as the Defendant takes into consideration the fact that female inmates, as a
whole, pose less of a security risk than male inmates as a justification for allowing
female inmates to grow their hair long, so should the Defendant take into account the
different security risks of various male inmates in making the decision of whether to
allow them to grow a kouplock. In particular, here, the Plaintiff will likely succeed
in demonstrating that, as a medium security prisoner who is losing feeling in his feet
[due to neuropathy resulting from diabetes], he is unlikely to pose a security threat
by being permitted to grow a kouplock.
Id.
Based on these findings, the district court concluded that limited injunctive relief should be
granted, allowing Hoevenaar to maintain a kouplock.
STANDARD OF REVIEW
“We review the grant of a preliminary injunction for an abuse of discretion, but questions
of law are reviewed de novo.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 685 (6th Cir. 2002).
In particular, the district court’s analysis of whether the prison regulations were the least restrictive
means is a question of law, subject to de novo review. Lawson v. Singletary, 85 F.3d 502, 511-12
(11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996).
ANALYSIS
Warden Lazaroff argues that the absolute ban on long hair: (1) promotes security by
preventing inmates from hiding contraband in their hair, and (2) prevents inmates from quickly
changing their appearance after a prison-break by cutting their hair. Hoevenaar counters that these
concerns can be satisfied by less restrictive alternatives to Warden Lazaroff’s absolute kouplock ban,
such as: (1) allowing inmates to grow their hair long, but requiring them to be subjected to periodic
hair searches, conducted by the prisoners under the supervision of prison officials; (2) taking
pictures of inmates with and without long hair to distribute in the event of an escape; and (3)
permitting, on a case-by-case basis, those inmates with a low security risk to grow a kouplock. The
district court concluded that, while Hoevenaar would likely lose on his first two alternatives, he had
No. 03-4119 Hoevenaar v. Lazaroff Page 4
a significant likelihood of success on his third proposed “less restrictive” alternative. Hoevenaar,
276 F. Supp. 2d at 823-24.
In contesting Hoevenaar’s assertion that the prison could permit inmates with sincerely held
religious beliefs to grow a kouplock, provided that the inmate was low-risk, Warden Lazaroff argued
that:
escape attempts and contraband problems arise even in minimum and medium
security prisons. Thus, it would not be helpful to assume that minimum or medium
security inmates would not pose the security risks attempted to be prevented by these
regulations. Moreover, the Defendant maintains that individualized exemptions are
problematic because they cause resentment among the other inmates, a copycat
effect, and problems with enforcement of the regulations due to staff members’
difficulties in determining who is exempted and who is not.
Hoevenaar, 276 F. Supp. 2d at 822. The district court, however, discounted these concerns.
First, the district court noted that a kouplock does not provide the same opportunities to
conceal facial characteristics upon escape, because it is only a two-inch square of hair growing from
the base of the skull. Id. at 824. Second, the district court noted that “multiple pictures of an inmate
with a kouplock are not necessary as a kouplock cannot be modified or rearranged to alter the
appearance of either the inmate’s face or his profile.” Id. Regarding the issue of the difficulty of
searching inmates’ hair, the district court noted that searches of inmates’ hair performed by the
inmates, with staff supervision, is the same method employed during strip searches. Id. at 822.
Further, the district court noted that individualized, religious exceptions were permitted prior to
1991 and Warden Lazaroff did not demonstrate that contraband issues improved after removing the
warden’s discretion to grant an exception. Id. at 823. Finally, the district court noted that Ohio
prison regulations permitted women to grow their hair to the middle of their backs, Ohio Admin.
Code § 5120-9-251, due to their lower overall security risk. Id. at 823, 824. Therefore, it
determined that the warden is clearly capable of having some policy variations to account for
differing security risks. For these reasons, the district court concluded that Hoevenaar would likely
succeed on the merits in arguing that a policy of permitting kouplocks for inmates with sincerely
held religious beliefs, who pose a low security risk, was a less restrictive alternative to achieving
the state’s compelling interest in ensuring prison security.
Regarding the district court’s determination that allowing a kouplock to be grown by certain
prisoners who do not pose a significant safety risk based on their sincerely held religious beliefs,
under the guise of being the least restrictive means of furthering the government’s security and
identification interests, the court improperly substituted its judgment for that of prison officials.
Espinoza v. Wilson, 814 F.2d 1093, 1097 (6th Cir. 1987); Brown v. Johnson, 743 F.2d 408, 412-13
(6th Cir. 1984). In conducting an analysis of whether the regulation in issue was the least restrictive
means of furthering the government’s compelling security interest, the district court did just what
the Supreme Court and Congress have warned against: substituting its judgment in place of the
experience and expertise of prison officials.
As the Eighth Circuit recently noted, cases interpreting the RFRA have consistently held that
courts must give due deference to the judgment of prison officials, given their expertise and the
significant security concerns implicated by prison regulations. Murphy v. Mo. Dept. of Corr., 372
F.3d 979, 987 (8th Cir. 2004) (citing Weir v. Nix, 114 F.3d 817 (8th Cir. 1997)); Ochs v. Thalacker,
90 F.3d 293 (8th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)). Because Congress,
in passing the RLUIPA, evinced a desire to continue its goal of not “overly burden[ing] prison
operations, but rather intended to provide as much protection as possible to prisoners’ religious
rights without undermining the security, discipline, and order of those institutions,” the Murphy
No. 03-4119 Hoevenaar v. Lazaroff Page 5
court concluded that RFRA cases according deference to prison decisions were applicable to cases
brought pursuant to the RLUIPA. Murphy, 372 F.3d at 987-88 (citing 146 Cong. Rec. S6687 (daily
ed. July 13, 2000) (statement of Senator Hatch); see also Cutter, 125 S. Ct. at 2123 (noting that
Congress intended for courts to give “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.”) (quoting 146
Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Senator Hatch and Senator Kennedy
on RLUIPA) (quoting S. Rep. No. 103-111, at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892,
1899, 1900)); Hart v. CSP-Solano, No. CIV S-02-0577, 2005 WL 1683581, at *5 & n.8 (E.D. Cal.
July 8, 2005) (“Congress has consistently indicated, in passing both RFRA and RLUIPA, that giving
deference to the experience and expertise of prison officials is still appropriate.”); Ra v. Braxton, No.
7:04 CV 00637, 2005 WL 1533124, at *3 (W.D. Va. June 29, 2005) (“[C]ourts will afford prison
administrators due deference in establishing necessary regulations and procedures to maintain good
order, security and discipline consistent with considerations of costs and limited resources.”) (citing
Cutter, 125 S. Ct. at 2123).
In Espinoza v. Wilson, 814 F.2d 1093 (6th Cir. 1987), a prisoner First Amendment case
applying a least restrictive means test, id. at 1098, this Court held that, once prison officials have
provided expert testimony sufficient to justify the security regulation and resultant impingement of
prisoner rights, “the courts must defer to the expert judgment of the prison officials unless the
prisoner proves by ‘substantial evidence . . . that the officials have exaggerated their response’ to
security considerations.” Id. at 1099 (quoting St. Claire v. Cuyler, 634 F.2d 109, 114-15 (3d Cir.
1980) (citations and footnote omitted)); accord Hamilton v. Schriro, 74 F.3d 1545, 1552-54 (8th Cir.
1996). In Hamilton, the Eighth Circuit dealt with a hair length restriction challenge brought under
the RFRA, concluding that:
[t]he safety and security concerns expressed by prison officials were based on their
collective experience of administering correctional facilities. These are valid and
weighty concerns. Moreover, there is no viable less restrictive means of addressing
these concerns. Therefore, we conclude that the district court erred in its
interpretation and application of the least restrictive means prong of the compelling
interest test in RFRA. The district court failed to give due deference to the prison
officials’ testimony that long hair presented a risk to prison safety and security and
that no viable less restrictive means of achieving that goal existed.
Id. at 1555.
In this case, the district court recognized that “the Court is to accord great deference to the
views of prison administrators and officials regarding [RLUIPA] issues. This deference is mandated
by the legislative history of RLUIPA, which indicates that its framers adopted the legislative history
of the [RFRA], RLUIPA’s predecessor.” Hoevenaar, 276 F. Supp. 2d at 818. The court, however,
went on to criticize Warden Lazaroff’s numerous reasons for imposing a blanket ban on all
excessive hair growth.
While the district court is not required to blindly accept any policy justification offered by
state officials, the district court’s analysis does not reflect the requisite deference to the expertise
and experience of prison officials, as required by case law interpreting the RFRA and RLUIPA. For
instance, Warden Lazaroff noted that “individualized exemptions are problematic because they
cause resentment among the other inmates, a copycat effect, and problems with enforcement of the
regulations due to staff members’ difficulties in determining who is exempted and who is not.”
Hoevenaar, 276 F. Supp. 2d at 822. The district court discounted this concern, however, by noting
that Warden Lazaroff did not produce any evidence demonstrating that the pre-1991 regulations,
which permitted individualized exceptions, led to increased contraband or escapes.
No. 03-4119 Hoevenaar v. Lazaroff Page 6
Testimony from Major Guyton, a security specialist with 19 years experience in prisons, and
Warden Lazaroff, a 16 year veteran of the penal system, provided compelling evidence that the
district court’s solution of allowing kouplocks on an individualized basis for low-threat prisoners
was not sufficient to protect the state’s interest in safe and secure prisons. For instance, Major
Guyton noted that contraband was a problem for all types of prisoners. In fact, Hoevenaar has a
long history of possessing and hiding contraband – he has twice attempted to escape from prison,
utilizing contraband. Major Guyton further testified that contraband could be hidden in a kouplock,
including dangerous items, such as an ice pick. Warden Lazaroff testified regarding various smaller
items that could be hidden in a kouplock, including items Hoevenaar had previously been found
guilty of possessing. In addition, both men testified to the numerous problems created by allowing
individualized exceptions. Thus, the facts of this case belie the district court’s conclusions.
In summary, the district court did not give proper deference to the opinions of these veterans
of the prison system. Their testimony provided substantial evidence that the prison’s regulations
were the least restrictive means necessary of promoting prison safety and security. Although the
district court noted that the prison did not produce data demonstrating that the pre-1991 use of
discretionary exceptions to prison regulations resulted in more dangerous prisons, the testimony
from Guyton and Warden Lazaroff was sufficient to demonstrate that individualized exceptions did
not sufficiently protect the state’s interest in security and safety, particularly in light of the deference
accorded to the judgment of prison officials regarding prison operations. Hoevenaar did not rebut
the state’s expert testimony regarding the problems with his suggested alternatives “by substantial
evidence” that the officials exaggerated their response to security considerations. Espinoza, 814
F.2d at 1099.
CONCLUSION
Because the district court failed to give proper deference to prison officials with respect to
the issue of whether a kouplock presented security, identity, or safety concerns, its decision is
REVERSED and this case is REMANDED for further proceedings consistent with this opinion.