Kuperman v. Wrenn, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [10-2083]

Case: 10-2083

Document: 00116232797

Page: 1

Date Filed: 07/14/2011

Entry ID: 5565084

United States Court of Appeals
For the First Circuit
No. 10-2083
ALBERT KUPERMAN,
Plaintiff, Appellant,
v.
WILLIAM L. WRENN, Commissioner, New Hampshire Department of
Corrections; RICHARD M. GERRY, Warden, New Hampshire State
Prison; MICHAEL A. SAMSON; STEVEN E. BRITTON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Nancy S. Tierney, and the Law Office of Nancy S. Tierney, on
brief for appellant.
Laura E. B. Lombardi, Assistant Attorney General, and Michael
A. Delaney, Attorney General, on brief for appellees.

July 14, 2011

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THOMPSON, Circuit Judge.

Entry ID: 5565084

Albert Kuperman, a former

inmate at the New Hampshire State Prison, challenges a district
court order granting summary judgment to the defendant prison
officials.

The New Hampshire State Prison system requires all

inmates to be clean-shaven, unless they obtain a waiver based on a
medical condition or on their religious beliefs.1
obtains

a

shaving

waiver

based

on

his

religious

An inmate who
beliefs

may

“maintain a 1/4-inch neatly trimmed beard.”
While incarcerated in state prison, Kuperman, an Orthodox
Jew, filed a pro se complaint claiming that he should not have been
required to shave at all, because doing so unduly impinged on his
sincerely-held religious beliefs.

More specifically, he asserted

a claim under 42 U.S.C. § 1983, alleging that the prison shaving
regulation (sometimes referred to as “PPD 7.17”) violated his
rights under the First Amendment’s Free Exercise Clause and the

1

The section of the New Hampshire Department of
Corrections Policy and Procedure Directive 7.17 which addresses
religious waivers, section IV.D., states as follows:
Shaving Waivers: Inmates declaring membership in
recognized faith groups, and demonstrating a sincerely
held religious belief in which the growing of facial hair
is of religious significance may request a shaving
waiver. If approved, the shaving waiver allows an inmate
to maintain a 1/4-inch neatly trimmed beard.
No
sculpting, shaping or selective shaving is allowed; all
facial hair must be trimmed equally. If an inmate with
a shaving waiver is found to have shaped his beard, he
must shave clean and start again. Abuse of the shaving
waiver guidelines may result in revocation of the shaving
waiver.
Violations of the shaving waiver will be
reported to the appropriate Unit Manager who will
determine what action will be taken.
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Fourteenth Amendment’s Equal Protection Clause.

Entry ID: 5565084

He also argued

that it violated the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-1 et seq.2
sought

injunctive

relief,

monetary

damages,

and

The complaint
declaratory

judgment.
The defendants are William Wrenn, Commissioner of the New
Hampshire Department of Corrections, and Richard Gerry, Warden of
the New Hampshire State Prison (collectively referred to as “Prison
Officials”).
personal

Kuperman

capacities.

sued

them

During

preliminary

official

screening

to

the

extent

claims

the

As part of that screening, it dismissed Kuperman’s
except

which

of

and

proceed.3

claims

identified

their

the

capacity

court

both

complaint,

official

district

in

they

could

sought

2

Kuperman originally asserted some additional claims, but
they will not be discussed because they were dismissed or withdrawn
before this appeal was filed.
3

Preliminary screening was required by 28 U.S.C. § 1915A,
which provides in relevant part as follows:
(a) Screening.—The court shall review, before docketing,
if feasible or, in any event, as soon as practicable
after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal.—On review, the court shall
identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
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injunctive relief.

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Kuperman does not challenge that dismissal on

appeal.
Prison Officials filed a motion seeking summary judgment
on all remaining claims.

Kuperman, who by this stage had obtained

counsel, opposed the motion, but submitted no new affidavits or
other admissible evidence to rebut Prison Officials’ arguments.4
Ultimately, the district court granted summary judgment in favor of
Prison Officials on all claims.

Kuperman filed a timely notice of

appeal.
Because our review of the record reveals no dispute of
material fact and shows that Prison Officials are entitled to
judgment as a matter of law, we affirm the judgment of the district
court.

4

Kuperman’s summary judgment opposition included a singlepage document which appears to be minutes of an Inmate
Communications Committee meeting held on June 16, 2010. Kuperman
failed to make any showing as to grounds under which the document
could be admitted as evidence. See Gorski v. N.H. Dep’t of Corr.,
290 F.3d 466, 475-76 (1st Cir. 2002).
Even overlooking that
problem, however, the content of the document (including its
reference to a discussion about a “proposal on the elimination of
the current shaving policy” and a comment allegedly made by a
prison Health Services representative that “things would be a lot
easier . . . if this policy were to be discontinued”) is
insufficient to create a dispute of material fact, when viewed in
the context of the overall record.
An affidavit submitted by
Prison Officials explained that they were considering whether to
change the shaving policy to permit all inmates to maintain a 1/4inch neatly trimmed beard, without having to obtain a shaving
waiver.
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MOTION TO DISMISS
Because Kuperman completed his sentence and was released
from state custody while his appeal was pending, Prison Officials
moved to dismiss his claims for injunctive and declaratory relief
as moot. Kuperman agrees that his claims for injunctive relief are
moot.

But he insists that his claims for declaratory relief and

monetary damages survive.

We can decide only ongoing cases and

controversies, of course.

See U.S. Const. art. III, § 2, cl. 1;

Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

So if an event

occurs that makes it impossible for us to provide some form of
meaningful

relief,

there

is,

generally

speaking,

controversy, and we must dismiss the appeal as moot.

no

case

or

See, e.g.,

Church of Scientology v. United States, 506 U.S. 9, 12 (1992).

Our

first task, then, is to see whether Kuperman’s release from prison
eliminates any possibility of further judicial relief, which would
render his claims moot.
Official Capacity Claims
During preliminary screening of Kuperman’s complaint, the
district court jettisoned his official capacity claims except to
the extent they sought injunctive relief — a ruling Kuperman does
not contest here.

Kuperman concedes that his release moots his

injunctive relief requests.

See, e.g., Rendelman v. Rouse, 569

F.3d 182, 186 (4th Cir. 2009).

That leaves us with this:

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§ 1983

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and RLUIPA claims against Prison Officials in their personal
capacities seeking monetary and declaratory relief.
Personal Capacity Claims
A claim is moot only if no relief is available.
Church of Scientology, 506 U.S. at 12.

See

Prison Officials appear to

concede that Kuperman’s claims for monetary relief survive, given
that their motion to dismiss mentions Kuperman’s request for
monetary

relief

but

asks

us

to

injunctive and declaratory relief.
alleging

a

constitutional

dismiss

only

his

claims

for

Indeed, as a former prisoner

violation

that

occurred

during

his

incarceration, Kuperman may obtain nominal and punitive damages
under § 1983.5

See, e.g., Royal v. Kautzky, 375 F.3d 720, 723 (8th

Cir. 2004); Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002);
Searles v. Van Bebber, 251 F.3d 869, 879, 881 (10th Cir. 2001).
Because some relief is available on Kuperman’s claims, they are not

5

Although neither party discussed the Prison Litigation
Reform Act, we note that it could preclude Kuperman from recovering
on his § 1983 claim seeking compensatory damages. See 42 U.S.C.
§ 1997e(e). Section 1997e(e) provides that “[n]o Federal civil
action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” Although some courts have interpreted section 1997e(e)’s
limitation not to apply to constitutional claims, see generally
Thompson v. Carter, 284 F.3d 411, 416-17 (2d Cir. 2002) (collecting
cases), we need not reach the issue. It does not matter whether
compensatory damages are available to Kuperman, because his
requests for nominal and punitive damages are enough to keep his
claims alive.
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See Powell v. McCormack, 395 U.S. 486, 496 n.8 (1969);

Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 36
(1st Cir. 2011) (citing Church of Scientology, 506 U.S. at 13).
For the same reason, Prison Officials’ argument that
Kuperman is no longer entitled to declaratory relief is beside the
point.

Our question is whether Kuperman can obtain some relief,

and he can.

Therefore, his claims are not moot.

We grant Prison Officials’ motion to dismiss Kuperman's
claims seeking injunctive relief, and analyze his remaining claims
on the merits.
STANDARD OF REVIEW
We review orders granting summary judgment de novo,
resolving all evidentiary conflicts and drawing all reasonable
inferences in favor of the nonmoving party.

Spratt v. R.I. Dep’t

of Corr., 482 F.3d 33, 37 (1st Cir. 2007) (citing Iverson v. City
of Boston, 452 F.3d 94, 98 (1st Cir. 2006)).

Summary judgment is

proper if there is no genuine issue as to any material fact and the
undisputed facts show that the moving party is entitled to judgment
as a matter of law.

Id.

6

As discussed in more detail infra, we reserve ruling on
the issue of whether personal-capacity claims are available under
RLUIPA. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
8-9 (1978) (expressing no opinion on the validity of respondents’
claim for actual and punitive damages, but noting that the request
saved the claim from mootness because it “is not so insubstantial
or so clearly foreclosed by prior decisions that this case may not
proceed”).
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MERITS
As the moving parties, Prison Officials had the initial
burden of informing the judge of the basis for their motion and
identifying the portions of the record that demonstrate the absence
of any genuine issue of material fact.

See Rivera-Colón v. Mills,

635 F.3d 9, 12 (1st Cir. 2011) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986)).

If they did that, then Kuperman had

to show, “through submissions of evidentiary quality, that a
trialworthy issue persists.”

Iverson, 452 F.3d at 98.

On issues

for which Kuperman would bear the burden of proof at trial, he had
to

introduce

judgment.

definite,

competent

evidence

to

survive

summary

See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st

Cir. 1991).
First Amendment7
Section 1983 provides a cause of action against those
who, acting under color of state law, violate federal law.

42

U.S.C. § 1983; see also Rodríguez-Cirilo v. García, 115 F.3d 50, 52
(1st Cir. 1997).

Kuperman’s § 1983 claim is based in part on his

contention that the prison shaving regulation prevented him from

7

Kuperman’s First Amendment claim proceeded against both
Prison Officials, Wrenn and Gerry. Because our analysis does not
require us to differentiate each defendant’s role, we continue to
refer to them collectively.
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practicing his religion, in violation of the First Amendment’s Free
Exercise Clause.8
A prison regulation which restricts an inmate’s First
Amendment rights is permissible if it is “reasonably related to
legitimate penological interests.”
89 (1987).

Turner v. Safley, 482 U.S. 78,

The factors relevant in deciding the regulation’s

constitutionality are: (1) whether there is a valid, rational
connection between the regulation and the legitimate government
interest put forward to justify it; (2) whether alternative means
to exercise the right exist; (3) the impact that accommodating the
right will have on prison resources; and (4) the absence of
alternatives to the prison regulation.

Id. at 89-90.

We will

refer to these as the “Turner factors.”

Of course, courts “must

accord substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining
the legitimate goals of a corrections system and for determining
the

most

appropriate

means

to

accomplish

them.”

Overton

v.

Bazzetta, 539 U.S. 126, 132 (2003); see also Brown v. Plata, 131 S.
Ct. 1910, 1928 (2011).

When contesting the reasonableness of a

prison’s regulation, the inmate bears the burden of persuasion.
See Overton, 539 U.S. at 132.

8

“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . . .”
U.S. Const. amend. I.
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Applying the first Turner factor, we consider whether the
beard-length restriction is reasonably related to the penological
interests asserted by Prison Officials to justify it.
482 U.S. at 89-90.

See Turner,

Prison Officials submitted an affidavit from

Charles Boyajian, Unit Manager of the Special Housing Unit and the
Close Custody Unit of the New Hampshire State Prison for Men,
stating that the shaving regulation promotes safety and security
interests and good hygiene.9

Prison Officials insist that the

beard-length restriction is reasonably related to prison security
because it (1) helps guards identify inmates inside the prison to
ensure they do not enter prohibited areas, (2) makes it harder for
inmates to hide weapons or contraband, and (3) prevents an inmate
from quickly changing his appearance if he escapes.
Kuperman’s evidence does not refute these contentions.
On appeal, he contends otherwise, pointing to a letter from Rabbi
Wiener of the Jewish Council of Greater Coney Island, and an
affidavit from another inmate, Wayne Sargent.

Rabbi Wiener’s

letter, which was attached to the complaint and not sworn to under
oath, establishes that wearing a full, untrimmed beard is important
in Jewish law.

Yet it says nothing which casts doubt on Prison

9

There is very little evidence in the record supporting
Prison Officials’ contention that the shaving regulation promotes
inmate hygiene. But we need not reach this question because we
conclude infra that the regulation is reasonably related to the
legitimate penological interest of prison security.
Although
Prison Officials refer to the interest asserted as “safety and
security,” we prefer the more concise term “prison security.”
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Officials’ contention that the shaving regulation promotes prison
security.10

The other document Kuperman relied on, the Sargent

affidavit, indicates that some inmates were allowed to grow beards
longer than 1/4-inch in length, but contains nothing which could be
used

to

rebut

Prison

Officials’

assertion

that

the

shaving

regulation promotes important penological interests.
Finishing up the first Turner factor, we briefly dispatch
a couple of Kuperman’s non-starters.

He argues that even if he had

been allowed to grow a longer beard, he personally would not have
posed a security risk.

But courts do not require an actual breach

of security before upholding a regulation designed to prevent it.
See, e.g., Turner, 482 U.S. at 89; O’Lone v. Estate of Shabazz, 482
U.S. 342, 349 (1987).

And his contention that Prison Officials

failed to meet their burden because they did not produce studies or
independent

expert

testimony

showing

that

this

particular

regulation promotes prison security overstates their burden.

See

Beard v. Banks, 548 U.S. 521, 531-32 (2006) (statements of prison
official to the effect that the regulation serves the function
identified were sufficient when the articulated connections between
the regulation and the penological objective are “logical ones”).
Based on Prison Officials’ explanation of the rationale for the

10

As was true of the document attached to Kuperman’s
summary judgment opposition, Kuperman failed to make any showing as
to grounds under which the letter could be admitted as evidence.
See Gorski, 290 F.3d at 475-76.
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shaving regulation, we conclude that they met their burden of
demonstrating that it is reasonably related to the legitimate
penological interest of maintaining prison security.
Proceeding to the second Turner factor, we look at
whether

alternative

means

for

exercising

the

constitutionally-protected right remain open to him.
U.S. at 90.

inmate’s

Turner, 482

Kuperman contends that because shaving is an act of

sacrilege to a member of the Orthodox Jewish faith, there were no
alternative means available to him.
Our

inquiry

is

not

into

His argument misses the mark.

whether

a

religiously-acceptable

alternative to growing a full beard existed. Instead, we consider
whether alternative means remained open for Kuperman to exercise
the constitutionally-protected right at issue — here, free exercise
of his religion.

See O’Lone, 482 U.S. at 351-52 (inmates were not

deprived of “all forms of religious exercise”); Turner, 482 U.S. at
92 (correspondence regulation did not deprive prisoners of “all
means of expression”); Freeman v. Tex. Dep’t of Criminal Justice,
369 F.3d 854, 861 (5th Cir. 2004) (“The pertinent question is not
whether

the

inmates

have

been

denied

specific

religious

accommodations, but whether, more broadly, the prison affords the
inmates

opportunities

to

exercise

their

faith.”);

Green

v.

Polunsky, 229 F.3d 486, 489 n.15 (5th Cir. 2000) (citing O’Lone,
482 U.S. at 352) (“[W]e look to whether inmates are allowed other
means to express their religious beliefs (on a general level) not

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they

were

allowed

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a

to

specific

means

express

their

religious belief in the necessity of wearing a beard.”).
Although the record is sparse on this point, PPD 7.17
itself states that “[a]ll inmates shall have access to religious
resources, services, instruction or counseling on a voluntary
basis. . . . The institutions will provide all inmates with the
opportunity to pursue any recognized belief or practice, subject to
the restrictions of their custody level” and “[t]he institution
shall extend to all inmates the greatest amount of freedom and
opportunity to pursue any recognized religious belief or practice.”
It includes specific procedures by which inmates could have access
to religious publications, religious diets, religious apparel, and
personal and group religious items.

Kuperman has introduced

nothing indicating that, other than the shaving regulation, the
prison interfered with the free exercise of his religious beliefs.
Accordingly, we find the record sufficient to demonstrate that
Kuperman had available to him alternative means to exercise his
right to free expression of his religion.
We move on to the third Turner factor — the impact on
guards, other inmates, and the allocation of prison resources
generally

if

accommodated.

the

asserted

constitutional

See Turner, 482 U.S. at 90.

right

were

to

be

In other words, we

consider how allowing some inmates to grow full beards would affect
the

prison.

The

Boyajian

affidavit

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touches

on

this

issue,

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explaining that because longer beards create opportunities for
inmates to transport contraband or weapons, staff would be required
to conduct more frequent searches of inmates, which would increase
conflicts between staff and inmates and place staff at greater risk
of assault.

It also states that a more liberal grooming policy

would make identifying prisoners more expensive and burdensome
because it is “impractical and a strain on prison resources to
issue multiple identification cards for every inmate for every
possible length or shape of beard.”
Kuperman’s response is that permitting full beards would
have only a nominal effect on prison resources.

The only document

he references in support of this contention is a magistrate judge’s
report and recommendation from a completely different case brought
by Kuperman concerning suspension of his kosher diet while in
prison.

Kuperman claims that because only a small number of

inmates requested kosher meals, only a small number of prisoners
would choose to grow full beards.

The report and recommendation

actually says nothing about how many other prisoners sought kosher
meals.

We need not credit conclusory statements made without

support in the record.

See Sutliffe v. Epping Sch. Dist., 584 F.3d

314, 325 (1st Cir. 2009).

Kuperman also fails to address the

additional burden which non-uniform rules place on prison staff.
Based on the record before us, the third Turner factor weighs in
favor of Prison Officials, who have shown that accommodating

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desire

to

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would

have

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adversely

impacted prison resources.
This brings us to the final Turner factor, whether there
were “ready alternatives” to the challenged regulation.
Turner, 482 U.S. at 90.

See

“[T]he absence of ready alternatives is

evidence of the reasonableness of a prison regulation.”

Id.

Kuperman suggests that instead of requiring inmates to shave,
Prison Officials could have required inmates with full beards to
search their own beards in the presence of correctional officers,
or staff could have used combs during beard searches.

He also

proposed that prisons use technology to digitally alter photographs
of an escaped inmate to show him without a beard.
The Boyajian affidavit demonstrates that Prison Officials
considered and rejected alternatives to PPD 7.17.

It says that

“[c]onducting ‘beard searches’ or issuing multiple identification
cards showing an inmate with or without a beard are not reasonable
or feasible alternatives to the shaving policy” because they would
unduly strain prison resources and relations between staff and
inmates, and because multiple identification cards would make it
difficult to identify inmates quickly.

Although the statements in

the record are bare-boned, Prison Officials are not required to
“set up and then shoot down every conceivable alternative method of
accommodating

the

claimant’s

Turner, 482 U.S. at 90-91.

constitutional

complaint.”

See

Rather, we look to “whether the

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prisoner has pointed to some obvious regulatory alternative that
fully accommodates the asserted right while not imposing more than
a de minimis cost to the valid penological goal.”
U.S. at 136.

Overton, 539

Kuperman has not done so, and so we find there were

no ready alternatives to the regulation at issue here.
Having found that all four of the Turner factors weigh in
favor of Prison Officials, we hold that Prison Officials are
entitled to summary judgment on Kuperman’s First Amendment claim.
Other courts considering prison grooming regulations have reached
similar conclusions.

See, e.g., Fegans v. Norris, 537 F.3d 897,

906-07 (8th Cir. 2008) (regulation prohibiting beards did not
violate First Amendment); McRae v. Johnson, 261 F. App’x 554, 558
(4th Cir. 2008) (unpublished decision) (same); Pollock v. Marshall,
845 F.2d 656, 659-60 (6th Cir. 1988) (regulation restricting
inmates’ hair length did not violate First Amendment); Oakes v.
Green, Civil Action No. 08-CV-12-HRW, 2008 WL 559683, at *4 (E.D.
Ky. Feb. 27, 2008) (unpublished decision) (regulation prohibiting
beards did not violate First Amendment); Daker v. Wetherington, 469
F. Supp. 2d 1231, 1237, 1239 (N.D. Ga. 2007) (same).11

11

We cite unpublished decisions with the recognition that
they are persuasive authority but are not binding within their
respective jurisdictions. See Fed. R. App. P. 32.1(a).
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Fourteenth Amendment12
In Kuperman’s second § 1983 claim, he argues that forcing
him to limit the length of his beard violated the Fourteenth
Amendment’s Equal Protection Clause.13

Essentially, he contends

that Gerry allowed inmates in more secure units to grow longer
beards while restricting inmates in the general population to 1/4inch beards, and that this unequal treatment was not rationally
related to a legitimate penological interest.

As did his earlier

contentions, this one falls short given the record before us.
Equal protection means that “similarly situated persons
are

to

receive

government.”

substantially

similar

treatment

from

their

Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004)

(citing Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin.
Corp., 246 F.3d 1, 7 (1st Cir. 2001)).
protection

violation,

a

plaintiff

To establish an equal

must

introduce

sufficient

evidence from which a jury reasonably could conclude that, compared
with

others

similarly

situated,

the

plaintiff

was

treated

differently because of an improper consideration, such as his
religion.
prison

See id.

staff

to

Equal protection does not, however, require
treat

all

inmate

groups

the

same

when

12

Kuperman’s Fourteenth Amendment claim proceeded against
only Warden Gerry.
13

The Fourteenth Amendment provides that states shall not
“deny to any person . . . the equal protection of the laws.” U.S.
Const. art. XIV, § 1.
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differentiation is necessary to avoid a threat to prison security.
See, e.g., Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S.
119, 136 (1977).
The Boyajian affidavit and an affidavit submitted by
Lieutenant Paul Cascio, Lieutenant of Security for the Secure
Psychiatric Unit and the Residential Treatment Unit of the New
Hampshire State Prison, show that the shaving policy applied to all
inmates, regardless of where in the prison they resided. Prisoners
in the general population who did not have shaving waivers were
required to be clean-shaven on Mondays, Wednesdays, and Fridays.
Inmates in some high-security units — who were not permitted to
have razors — were shaved by barbers once each week or shaved using
clippers once every two weeks under staff supervision.

Although

the shaving policy was implemented differently in different areas
of the prison, Gerry articulated a rational basis for allowing
inmates in high-security units to go a week or two between shaves
— the dangers arising from letting them personally possess razors
and the lack of resources necessary to shave them more frequently.
Kuperman contends on appeal that the Sargent affidavit
created a dispute of material fact on his equal protection claim.
The affidavit states that while Sargent was an inmate in the New
Hampshire State Prison, he was at one point permitted to grow his
beard to three inches long; that at another time in another unit he
was permitted to grow his beard to about two inches long; that in

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another prison he “often” had his beard up to one inch long; that
he saw one inmate living in the general population with a beard
longer than three inches; and that he saw other inmates in a highsecurity unit with full beards which appeared to be longer than
three inches.

Construing the evidence in the light most favorable

to Kuperman, as we must at this stage, the Sargent affidavit
suggests Gerry selectively enforced the shaving regulation.
To affect the summary judgment motion on his equal
protection

claim,

however,

selective-enforcement
enforced
religion.

the

shaving

claim

Kuperman
with

regulation

needed

evidence
against

See Tapalian, 377 F.3d at 5.

to

showing
him

fortify
that

because

his
Gerry

of

his

The record before us is

devoid of any such evidence. Because Kuperman failed to show that,
based on his religion, he was treated differently from other
similarly

situated

inmates

with

regard

to

shaving,

Gerry

is

entitled to summary judgment on Kuperman’s equal protection claim.14
RLUIPA Claim
As a preliminary matter, we note that some other circuits
have held that personal-capacity claims are unavailable under

14

Kuperman also contends on appeal that the prison’s
procedures for implementing its shaving policy are deficient.
Although these contentions sound like an attempt to mount a
procedural due process challenge to the shaving regulation,
Kuperman failed to raise such a claim in his complaint or anywhere
in the record before the district court. We will not consider it
for the first time on appeal. See Aguilar v. U.S. Immigration &
Customs Enforcement Div. of Dep’t of Homeland Sec., 510 F.3d 1, 12
(1st Cir. 2007).
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RLUIPA.

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See, e.g, Nelson v. Miller, 570 F.3d 868, 889 (7th Cir.

2009); Rendelman, 569 F.3d at 184; Sossamon v. Texas (Sossamon I),
560 F.3d 316, 329 (5th Cir. 2009), aff'd on other grounds, Sossamon
v. Texas (Sossamon II), 131 S. Ct. 1651, 1663 (2011); Smith v.
Allen, 502 F.3d 1255, 1275 & n.11 (11th Cir. 2007).

They reason

that because Congress passed RLUIPA under the Spending Clause,
courts should not interpret it to impose liability on individuals
who do not themselves receive federal funds.15

See Nelson, 570

F.3d at 886-88; Smith, 502 F.3d at 1273-75; see also U.S. Const.
art. I, § 8, cl. 1.

We explain briefly.

The Spending Clause permits Congress to attach conditions
designed to promote its policy objectives on the receipt of federal
funds.

See South Dakota v. Dole, 483 U.S. 203, 206 (1987).

Spending Clause legislation has been described as creating a
“contract” between the federal government and the recipient of
federal funds.

See, e.g., Sossamon II, 131 S. Ct. at 1661

(acknowledging the contract-law analogy).
[C]ourts have consistently recognized the limited reach
of Congress’ Spending Power legislation, concluding that
statutes passed under the Spending Clause may, as a
condition of funding, subject the grant recipient to
liability in a private cause of action, but that the
Spending Power cannot be used to subject individual
defendants, such as state employees, to individual
liability in a private cause of action.

15

We note that RLUIPA was also enacted pursuant to
Congress’s Commerce Clause authority. Sossamon II, 131 S. Ct. at
1656; see also 42 U.S.C. § 2000cc-1(b)(2).
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Smith, 502 F.3d at 1274 (citing Title IX cases).

Entry ID: 5565084

These courts have

concluded that because RLUIPA liability arises from receipt of
federal funds, only the grant recipient — the state — may be held
liable for a violation of RLUIPA.

See Sossamon I, 560 F.3d at 328

(citing Smith, 502 F.3d at 1272-73); see also 42 U.S.C. § 2000cc1(b).
Prison Officials have not challenged the viability of
Kuperman’s personal-capacity claim, and we need not reach the
issue.

As we explain in the next section, even assuming such a

claim to be available, Kuperman is not entitled to relief under
RLUIPA.

We therefore reserve ruling on whether personal-capacity

claims are available under RLUIPA, as have our sister courts in the
Second and Ninth Circuits.

See Hall v. Ekpe, No. 09-4492-pr, 2011

WL 2600514, at *1 (2d Cir. 2011); Florer v. Congregation Pidyon
Shevuyim, N.A., 639 F.3d 916, 922 n.3 (9th Cir. 2011).
RLUIPA provides greater protection to inmates’ freeexercise rights than does the First Amendment.
482 F.3d at 42 n.12.

See, e.g., Spratt,

It bars prisons receiving federal funds from

substantially burdening an inmate’s religious exercise unless the
regulation under attack is the least restrictive way to advance a
compelling state interest.
U.S. 709, 715-16 (2005).

See, e.g., Cutter v. Wilkinson, 544
Prison Officials conceded, for summary

judgment purposes only, that the shaving regulation substantially
burdened Kuperman’s religious exercise.

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whether

they

showed

that

Page: 22

PPD

Date Filed: 07/14/2011

7.17

furthers

a

Entry ID: 5565084

compelling

governmental interest and whether it was the least restrictive
means of doing so.
In our discussion of Kuperman’s § 1983 claims, we noted
that Prison Officials submitted evidence showing that the shaving
regulation promotes prison security in several specific ways.
Because prison security is undoubtedly a compelling state interest,
we conclude that they have met their burden of demonstrating that
PPD 7.l7 furthers a compelling governmental interest.

See, e.g.,

Spratt, 482 F.3d at 39 (citing Cutter, 544 U.S. at 725 n.13);
Fegans, 537 F.3d at 906.
But to survive challenge under RLUIPA, Prison Officials
must

also

show

that

the

shaving

regulation

was

restrictive means available to further that interest.

the

least

See Spratt,

482 F.3d at 40-41.

They rely on the Boyajian affidavit to satisfy

that requirement.

Because most of its key passages have already

been quoted in our First Amendment analysis, we refrain from
quoting them again here.

Boyajian specifically addressed concerns

about longer beards being used to conceal weapons and contraband
and about additional time and risk to staff if beard searches were
required.

He explained that issuing multiple identification cards

would be too complicated given all of the different possible types
of beards and the need for staff to be able to quickly identify

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inmates.

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And he mentioned the risk that escaped inmates with

longer beards could more quickly change their appearance.
We further note that the shaving regulation allowed
inmates whose religious beliefs value growing facial hair to
maintain 1/4-inch beards, which is less restrictive than enacting
a regulation prohibiting beards altogether, as some other prisons
have done.

Compare PPD 7.17 with Gooden v. Crain, 353 F. App’x

885, 886-87, 890 (5th Cir. 2009)(unpublished decision)(upholding
regulation prohibiting beards unless inmate obtains a medical
exception) and Fegans, 537 F.3d at 901, 907 (same).
Kuperman contends that the shaving regulation was not the
least restrictive means available to Prison Officials, but he
submitted

no

admissible

Officials’ affidavits.

evidence

to

counterbalance

Prison

Because the unrebutted Prison Officials’

affidavits show that they considered and rejected alternatives to
the shaving regulation, we find that it meets RLUIPA’s least
restrictive means test.
Accordingly, assuming for argument’s sake that Kuperman
can assert a personal-capacity claim under RLUIPA, Prison Officials
are entitled to summary judgment on his RLUIPA claim.

Once again,

our conclusion is consistent with that reached by other courts
considering even more restrictive regulations.

See Gooden, 353 F.

App’x at 886-87, 890 (regulation prohibiting beards did not violate
RLUIPA); Fegans, 537 F.3d at 901, 907 (same); McRae, 261 F. App’x

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at 558 (same); Oakes, 2008 WL 559683, at *4 (same); Daker, 469 F.
Supp. 2d at 1237 (same).

But see Mayweathers v. Terhune, 328 F.

Supp. 2d 1086, 1096 (E.D. Cal. 2004) (regulation prohibiting beards
violated RLUIPA); Gartrell v. Ashcroft, 191 F. Supp. 2d 23, 36
(D.D.C. 2002) (regulation prohibiting beards violated the Religious
Freedom Restoration Act, the predecessor to RLUIPA).
CONCLUSION
For the reasons recited above, we grant Prison Officials’
motion to dismiss Kuperman’s claims seeking injunctive relief.

We

affirm the judgment below granting summary judgment in favor of
Prison Officials on Kuperman’s remaining claims.
either party.

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No costs to