Christopher Ware v. Louisiana Department of Corr, et al

Filing

PUBLISHED OPINION FILED. [16-31012 Reversed and Rendered] Judge: CDK, Judge: ECP, Judge: LHS. Mandate pull date is 08/18/2017 [16-31012]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-31012

United States Court of Appeals
Fifth Circuit

FILED
July 28, 2017

CHRISTOPHER JEROME WARE,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
LOUISIANA DEPARTMENT OF CORRECTIONS; JAMES LEBLANC,
Defendants - Appellees

Appeal from the United States District Court
for the Western District of Louisiana
Before KING, PRADO, and SOUTHWICK, Circuit Judges.
KING, Circuit Judge:
Plaintiff–Appellant Christopher Ware is an inmate in the custody of the
Louisiana Department of Corrections and an adherent of the Rastafari
religion. As a tenet of his religion, Ware took a vow to not cut or style his hair.
In the ensuing years, Ware’s hair has formed into dreadlocks that fall past his
shoulders.

Department of Corrections grooming policies prohibit inmates

housed in a Department of Corrections prison from having dreadlocks. Ware
filed suit seeking a declaration that the Department of Corrections grooming
policies violated the Religious Land Use and Institutionalized Persons Act and
an injunction against the grooming policies being applied to him. After a bench
trial, the district court denied Ware’s requested declaratory and injunctive

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relief.

Because we conclude that the Department of Corrections failed to

satisfy its burden to show the polices are the least restrictive means of serving
a compelling interest, we REVERSE the district court’s judgment and
RENDER judgment for Ware.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Christopher Ware, an adherent of the Rastafari religion, is currently an
inmate in the custody of the Louisiana Department of Corrections (DOC). As
an exercise of his Rastafari faith, around 2011 or early 2012, Ware took a vow
not to cut or style the hair on his head. Since taking this vow, Ware has allowed
his hair to continue to grow and form dreadlocks, and he would “[n]ot willingly”
cut these dreadlocks. Ware describes his dreadlocks as compacted strands of
“coarse-feeling” and “flexible” hair.

Each dreadlock is no more than one-

quarter inch thick. At the time of the bench trial, Ware had approximately 16
dreadlocks, each of which extended in length to just below his shoulders. Ware
maintains his dreadlocks by keeping them separated at his scalp, but they form
on their own—he does not braid or otherwise style them.
Ware is in DOC’s custody while serving two concurrent sentences of 40
years of hard labor resulting from a 2014 conviction (through a guilty plea) for
two counts of sexual battery. Ware is currently incarcerated at Bossier Parish
Medium Security Jail (Bossier)—a facility run by the Bossier Parish Sheriff—
but, due to the length of his sentence, must be transferred to a prison run by
DOC. 1 Bossier permits Ware’s dreadlocks but, upon transfer to a DOC prison,
Ware will be subject to DOC regulations (the grooming policies), which the

At the request of the district court, Ware was held at Bossier throughout the
pendency of the district court proceeding and continues to be held there. Following the
district court’s ruling in favor of DOC, a magistrate judge stayed the judgment and enjoined
DOC from cutting Ware’s hair during the pendency of this appeal.
1

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parties stipulate do not permit Ware’s dreadlocks. Furthermore, the grooming
policies do not allow for any religious exemption.
B. Proceedings
Facing imminent transfer to a DOC prison, Ware filed suit against DOC
and its secretary, James LeBlanc (collectively, DOC), in June 2014.

His

complaint alleged that the grooming policies impose a substantial burden on
his religious practice of not cutting or styling his hair (resulting in his
dreadlocks) and are not the least restrictive means of achieving any compelling
interest. It sought declaratory and injunctive relief under the Religious Land
Use and Institutionalized Persons Act (RLUIPA), namely a declaration that
application of the grooming policies violated his rights and a prohibition
against DOC’s punishing him for refusing to cut his hair.
The district court held a two-day bench trial in February 2016 at which
eight witnesses testified. On September 12, 2016, the district court denied
Ware’s request for declaratory and injunctive relief and dismissed his
complaint with prejudice. The district court concluded that the grooming
policies were the least restrictive means of achieving four legitimate and
compelling DOC interests: (1) contraband control, (2) offender identification,
(3) offender hygiene, and (4) inmate and employee safety. Accordingly, the
district court concluded that the grooming policies’ prohibition on Ware’s
dreadlocks did not violate RLUIPA. Ware timely appeals.
II. STANDARD OF REVIEW
Following a bench trial, we review the district court’s findings of fact for
clear error and its conclusion of law de novo. Ali v. Stephens, 822 F.3d 776,
783 (5th Cir. 2016).

In the RLUIPA context specifically, the question of

whether the prison has met its burden is “best characterized as a mixed
question of fact and law . . . subject to de novo review” because the answer is
“highly dependent on a number of underlying factual issues.”
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(quoting Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir. 2013)). Accordingly,
we review the district court’s factual findings for clear error but review de novo
“its application of those findings in determining whether the challenged
government action is in furtherance of a compelling governmental interest and
is the least restrictive means to advancing that interest.” Id.
III. DISCUSSION
Ware argues that DOC’s grooming policies as applied to him violate
RLUIPA. As an initial matter, we lay out the statutory backdrop against which
we must evaluate Ware’s claim.
A. The Statutory Scheme
RLUIPA prohibits imposing a substantial burden on an inmate’s
religious exercise unless that burden furthers a compelling interest and is the
least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a).
RLUIPA provides a private cause of action for an inmate to enforce this right.
Id. § 2000cc-2(a). It states, in relevant part:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of general
applicability, unless the government demonstrates that imposition
of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
Id. at § 2000cc-1(a).

“Congress enacted RLUIPA to address ‘frivolous or

arbitrary’ barriers impeding [inmates’] religious exercise . . . .” Davis v. Davis,
826 F.3d 258, 264 (5th Cir. 2016) (quoting Cutter v. Wilkinson, 544 U.S. 709,
716 (2005)). The Supreme Court recently emphasized the expansive nature of
RLUIPA’s provisions: “Congress enacted RLUIPA . . . ‘in order to provide very
broad protection for religious liberty.’” Holt v. Hobbs, 135 S. Ct. 853, 859 (2015)
(quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014)).
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We analyze RLUIPA claims according to a burden shifting framework.
Ali, 822 F.3d at 782. First, the plaintiff must make two showings: “(1) the
relevant religious exercise is ‘grounded in a sincerely held religious belief’ and
(2) the government’s action or policy ‘substantially burden[s] that exercise’ by,
for example, forcing the plaintiff ‘to engage in conduct that seriously violates
[his or her] religious beliefs.’” Id. at 782–83 (alterations in original) (quoting
Holt, 135 S. Ct. at 862). If the plaintiff satisfies this two-fold burden, then the
burden shifts to the government, which must “show that its action or policy (1)
is in furtherance of a compelling governmental interest and (2) is the least
restrictive means of furthering that interest.” Id. at 783.
Analyzing whether the government has satisfied its dual RLUIPA
burden requires balancing deference to the expertise of prison officials with
our responsibility to apply RLUIPA’s demanding standard.

The Supreme

Court has acknowledged that “[p]rison officials are experts in running prisons
and evaluating the likely effects of altering prison rules.” Holt, 135 S. Ct. at
864.

Although the Court has admonished lower courts to “respect that

expertise,” it has also instructed them not to conduct this analysis with
“unquestioning deference” to the government. Id. Accordingly, “[r]ather than
deferring to the prison’s general policy regarding a matter, we have
consistently tested the prison’s asserted interests with regard to the risks and
costs of the specific accommodation being sought.”

Ali, 822 F.3d at 783

(alteration in original) (quoting Chance v. Tex. Dep’t of Criminal Justice, 730
F.3d 404, 418 (5th Cir. 2013)). For this reason, “policies grounded on mere
speculation, exaggerated fears, or post-hoc rationalizations will not suffice to
meet [RLUIPA’s] requirements.” Davis, 826 F.3d at 265 (quoting Rich v. Sec’y,
Fla. Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013)); see also Holt, 135 S. Ct.
at 867 (Sotomayor, J., concurring) (“Indeed, prison policies ‘grounded on mere
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speculation’ are exactly the ones that motivated Congress to enact RLUIPA.”
(quoting 106 Cong. Rec. 16699 (2000))).
As for the first prong of the government’s burden—compelling interest—
we recently noted that a policy’s underinclusiveness may be relevant. Ali, 822
F.3d at 785. A policy is underinclusive if it “fail[s] to cover significant tracts of
conduct implicating [its] animating and putatively compelling interest.” Id.
(quoting Yellowbear v. Lampert, 741 F.3d 48, 60 (10th Cir. 2014) (Gorsuch, J.)).
If a policy is underinclusive, this fact “can raise with it the inference that the
government’s claimed interest isn’t actually so compelling after all.”

Id.

(quoting Yellowbear, 741 F.3d at 60); see also Williams–Yulee v. Fla. Bar, 135
S. Ct. 1656, 1668 (2015) (“Underinclusiveness can . . . reveal that a law does
not actually advance a compelling interest.”).

Underinclusiveness is

problematic because “a law cannot be regarded as protecting a[] [compelling]
interest . . . when it leaves appreciable damage to that supposedly vital
interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 547 (1993) (omission in original) (quoting Fla. Star v.
B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring in part and
concurring in the judgment)). If a policy is underinclusive, the prison must
provide “an adequate explanation for its differential treatment” in order to
avoid the conclusion that the policy does not serve a compelling interest. Ali,
822 F.3d at 787. A prison can rebut a claim of underinclusiveness “by showing
that it hasn’t acted in a logically inconsistent way—by (say) identifying a
qualitative or quantitative difference between the particular religious
exemption requested and other . . . exceptions already tolerated.” Id. (omission
in original) (quoting Yellowbear, 741 F.3d at 61).
If the government succeeds in showing a compelling interest as applied
to the specific inmate, it must then show that its policy is the least restrictive
means of achieving that interest. “‘The least-restrictive-means standard is
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exceptionally demanding,’ and it requires the government to ‘sho[w] that it
lacks other means of achieving its desired goal’” other than the challenged
policy. Holt, 135 S. Ct. at 864 (alteration in original) (quoting Hobby Lobby,
134 S. Ct. at 2780). The Supreme Court has instructed that policies of prisons
in other jurisdictions are relevant, but “not necessarily controlling,” to our least
restrictive means analysis. Id. at 866 (quoting Procunier v. Martinez, 416 U.S.
396, 414 n.14 (1974)). On the one hand, RLUIPA does not “require[] a prison
to grant a particular religious exemption as soon as a few other jurisdictions
do so.” Id. On the other hand, “when so many prisons offer an accommodation,
a prison must, at minimum, offer persuasive reasons why it believes that it
must take a different course.” Id. Accordingly, in the face of evidence of
contrary policies, we may not defer to prison officials’ “mere say-so that they
could not accommodate [the plaintiff’s] request” because these other policies
indicate that a less restrictive means may be available.

Id.

“[I]f a less

restrictive means is available for the Government to achieve its goals, the
Government must use it.” Id. at 864 (alteration in original) (quoting United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)).
Having established this legal backdrop, we now turn to Ware’s claim.
B. DOC’s Burden under RLUIPA
The parties agree that Ware has met his burden to show that the
grooming policies substantially burden his sincere religious beliefs. The only
issue on appeal is whether DOC has met its burden to show that the grooming
policies serve a compelling interest and are the least restrictive means of
achieving that interest. We address each prong of DOC’s burden in turn.
1. Compelling Interest
We begin our compelling interest analysis with Ware’s argument that
the grooming policies are underinclusive.

As we mentioned, a policy’s

underinclusiveness can raise the inference that the interests allegedly served
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by that policy are not actually compelling. Ali, 822 F.3d at 785. The Supreme
Court’s decision in Holt v. Hobbs is instructive on the effect of
underinclusiveness. In Holt, the Supreme Court considered a challenge to a
prison grooming policy that prohibited the plaintiff inmate from growing a
half-inch beard. 135 S. Ct. at 859. There, the inmate alleged the policy was
underinclusive in two respects. Id. at 865. First, he noted that the prison
permitted prisoners with dermatological conditions to grow a quarter-inch
beard, even though beards of that length posed similar risks to the half-inch
beard the inmate wished to grow. Id. Second, the inmate noted that the prison
permitted prisoners to have a half-inch of hair on their head. Id. The Court
concluded that the prison had not adequately explained the policy’s
underinclusiveness. Id. at 866. Specifically, the prison had not established
that a quarter-inch difference in beard length posed “a meaningful increase in
security risk.” Id. Nor had it explained why it did not require inmates to go
about “bald, barefoot, or naked,” even though head hair, shoes, and clothing
are more plausible places to hide contraband than a beard. Id. Based in part
on this underinclusiveness, the Court concluded that the prison had failed to
satisfy its burden under RLUIPA. Id. at 866–67.
Drawing on Holt, we recently addressed an inmate’s RLUIPA challenge
to a grooming policy that prohibited the inmate from growing a fist-length
beard.

Ali, 822 F.3d at 787.

The inmate argued that the policy was

underinclusive because the prison permitted female inmates to have head hair
that was much longer than a fist-length beard. Id. at 787. We agreed that the
policy was underinclusive but concluded that the prison provided “an adequate
explanation for its differential treatment.” Id. Namely, testimony was given
at trial that “the contraband threat posed by male inmates is qualitatively
different than that of female inmates” because female inmates smuggled more
non-dangerous items, such as lipstick, whereas male inmates smuggled more
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risky items, such as weapons. Id. This testimony was further supported by
the district court’s finding that there were fewer correctional officers per male
inmate than female inmate, further aggravating the risk of contraband posed
by male inmates. Id. Given this evidence, we concluded that the policy’s
underinclusiveness did not lead to the inference that the policy did not serve a
compelling interest because the prison had demonstrated that female inmates
simply did not implicate that interest to the degree male inmates did. Id.
Here, we conclude that the grooming policies are underinclusive because
the parties agree that they do not apply to approximately half of DOC inmates:
those inmates housed in parish jails for the duration of their incarceration but
who remain in the legal custody of DOC (parish inmates). 2 Parish inmates are
those inmates in DOC’s legal custody who, following conviction, remain in the
parish jail where the inmate was held pending trial. Generally, an inmate is
transferred from a parish jail to a DOC prison upon conviction only if the
inmate’s sentence is greater than 20 years or the inmate has “particularized
medical or other special needs.” DOC keeps these inmates in parish jails due
to overcrowding at DOC prisons and pursuant to an agreement with the
Louisiana Sheriffs’ Association (LSA), which runs the parish jails. Parish
inmates “remain committed to the custody of DOC (despite physically being
held in [parish jails]),” and accordingly, DOC takes every reasonable step to
ensure their health, safety, and security.
Despite comprising about half of all of DOC inmates, parish inmates are
not subjected by DOC to the grooming policies or any similar hair length
restrictions. This is because parish jails (and, accordingly, parish inmates) are
not subject to all of the DOC regulations that apply to DOC prisons. Instead,

This figure does not account for pre-trial detainees who are housed in parish jails
and will be transferred to a DOC prison if they are convicted.
2

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parish jails are subject to a separate set of regulations promulgated by DOC,
the Basic Jail Guidelines (the BJG). The BJG address areas such as inmate
admission, contraband searches, hygiene, health screens, and communicable
disease and infection control. The BJG incorporate 35 DOC regulations by
reference.

However, the grooming policies are not among those DOC

regulations incorporated into the BJG. Nor do the BJG otherwise require
haircuts at intake or impose any hair length restrictions. In addition to the
BJG, parish jails are also subject to “any DOC regulations made applicable to
such Parish [jails] on their face.” The grooming policies are not among those
DOC regulations that apply to parish jails “on their face.” In short, the parties
agree (and the record shows) that DOC does not subject parish inmates to the
grooming policies or any similar hair length restrictions.
Having concluded that the grooming policies are underinclusive because
they do not apply to a significant portion of the inmates in DOC’s legal custody,
we

now

consider

the

adequacy

of

DOC’s

explanation

for

this

underinclusiveness. Ali, 822 F.3d at 787. As an initial matter we note that
DOC does not argue that its four asserted compelling interests apply with less
force to parish inmates than they do to inmates in DOC facilities. Indeed, it
would be difficult to do so because DOC concedes that parish inmates remain
in its legal custody and that it retains responsibility for parish inmates’ safety
and security. Further, DOC’s responsibility for parish inmates is reflected in
the BJG, which DOC crafted in order to ensure that parish inmates are housed
in a safe, secure, and healthy manner and to protect the public.
Moving on to the explanations that DOC offered for why it does not apply
the grooming policies to parish inmates, Secretary LeBlanc first testified that
parish inmates were exempt because the LSA informally requested that the
grooming policies not apply to the parish jails. He acknowledged that “there
might not be a day” when DOC felt comfortable maintaining this exemption,
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but it felt comfortable with it for the time being and did not want to simply
“impose” the grooming policies on the parish jails. However, the mere fact that
the LSA requested the exemption is not an “adequate explanation” for the
underinclusiveness of the grooming policies because it does not point to a
difference between the parish inmates and DOC inmates, as is needed to justify
the underinclusiveness. See id. To the contrary, the fact that DOC granted
the LSA’s request for an exemption from the grooming policies without protest
or consideration of alternatives gives rise to the inference that the interests
served by the grooming policies are not truly compelling. Indeed, Secretary
Leblanc testified that if parish jails refused to comply with a provision in the
BJG that was essential for security, DOC would likely no longer send its
inmates to parish jails.

DOC’s willingness to allow the parish jails an

exemption from the grooming policies, merely at the LSA’s request, raises the
inference that the grooming policies are not so important after all.
Secretary

Leblanc

next

justified

the

underinclusiveness

on

administrative grounds. He explained that requiring parish jails to comply
with the grooming policies would be administratively difficult because parish
jails house different types of inmates within one facility—pretrial detainees,
inmates in the custody of the parish jail, and parish inmates—and correctional
officers would need to enforce different grooming policies depending on the type
of inmate. But this justification fails to explain why applying the BJG (and
DOC regulations that apply to parish jails on their face) to parish inmates does
not create precisely the same administrative difficulty. The BJG consist of
approximately 100 individual provisions, spanning a multitude of topics such
as safety, security, and order. Despite this complexity, DOC requires parish
jails to comply with the BJG and informally audits parish jails for BJG
compliance on an annual basis, with a formal audit every three years. DOC
fails to explain why, if parish jails are already required to comply with the
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BJG, it would be administratively infeasible for parish jails to also comply with
the grooming policies.
Secretary Leblanc’s final justification for the underinclusiveness of the
grooming policies was that parish inmates presented less of a security risk
than DOC inmates. He testified that parish inmates “aren’t moving in and
about like [DOC] inmates are in [DOC] prisons. . . . They’re confined pretty
much to a dormitory. Maybe out a little bit during the day.” 3 He further
claimed that “the profile of the offender at the [parish] level is different than
the profile of the offender at [DOC’s] level.” Indeed, this is the only explanation
that DOC renews in its brief on appeal, where it asserts that comparing DOC
prisons with parish jails is like comparing “apples to oranges” because parish
jails are limited to “low-risk, minimum security DOC offenders” and excludes
inmates with sentences in excess of 20 years.
Although it is true that certain types of offenders in DOC’s custody are
ineligible to be parish inmates, DOC offered no evidence to support its bare
assertion that this difference resulted in dreadlocks among parish inmates
presenting less of a risk to DOC’s asserted interests than dreadlocks among
DOC inmates would. This lack of evidence distinguishes this case from Ali,
where the record supported the prison’s assertion that male inmates posed a
greater contraband risk than did female inmates. 822 F.3d at 787. In the face
of this absence of evidence on the risks posed by parish inmates, accepting
DOC’s assertion that parish inmates pose less of a security risk than DOC
inmates would afford DOC and Secretary LeBlanc the sort of “unquestioning
deference” in our RLUIPA analysis that the Supreme Court has proscribed.
Holt, 135 S. Ct. at 864. We thus conclude that the alleged greater security

Minimum and medium security inmates are typically housed in dormitory style cells
while maximum security inmates are kept in individual cellblocks.
3

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risks posed by DOC inmates compared to parish inmates are not an adequate
explanation for DOC’s decision not to subject parish inmates to the grooming
policies because it is not supported by the record.
In short, DOC has not adequately explained the grooming policies’
underinclusiveness with respect to parish inmates. The grooming policies’
underinclusiveness, unrebutted by adequate explanation, gives rise to the
inference that they do not serve a compelling interest. DOC has therefore
failed to meet the first prong of its burden under RLUIPA.
2. Least Restrictive Means
Even were we to find that DOC had met its burden of showing a
compelling interest, DOC must also show that the grooming policies are the
least restrictive means of achieving that interest. Ware argues that DOC has
failed to satisfy this burden because it failed to explain why its grooming
policies differed from those of the vast majority of other jurisdictions.
At trial, Ware introduced into evidence the grooming policies of the
prisons of 39 other jurisdictions (including the U.S. Bureau of Prisons), all of
which would either outright allow him to have dreadlocks or afford him the
opportunity to apply for a religious accommodation that would allow
dreadlocks. This figure is compared to the evidence introduced by DOC that
six jurisdictions, in addition to DOC, would not permit Ware to have dreadlocks
under any circumstances. As mentioned above, in the face of evidence that
“many prisons offer an accommodation, a prison must, at minimum, offer
persuasive reasons why it believes that it must take a different course.” Holt,
135 S. Ct. at 866. The only reason DOC offered for its failure to follow the
practice of the vast majority of jurisdictions in at least permitting religious
accommodation of dreadlocks was recent cuts to the DOC budget. The district
court found this evidence persuasive, noting that it had heard “extensive
testimony . . . as to the specific and unique issues facing DOC prison facilities
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and prison management, including cuts to the DOC budget and staff.” Based
on this testimony, the district court reasoned that “it is clear that [DOC] [is]
not in a position to allow” Ware’s dreadlocks, and thus the disparity between
DOC’s grooming policies and those of the majority of other jurisdictions was
not problematic for the least restrictive means analysis.
However, our review of the record indicates that there was no such
“extensive testimony” on the “unique issues” facing DOC. To the extent the
district court’s statement was a factual finding, it was clear error. First, to
take the only example of such “unique issues” cited by the district court—
budget and staffing cuts—the evidence on this was ambiguous. DOC asserted
throughout the trial that, because it had experienced budget cuts and staffing
reductions, allowing dreadlocks for Ware and other inmates would stretch
DOC’s resources and impede its ability to maintain safe prisons. Secretary
Leblanc testified that since 2008, DOC’s budget had decreased by $182 million
and it had lost approximately 1,500 correctional officers, resulting in an
increase to the officer-to-offender ratio.

However, Ware offered evidence

indicating that, if 2009 was used as the starting point, DOC’s budget had
actually increased in the ensuing years.

In addition, Secretary Leblanc

testified that DOC had 4,000-5,000 vacant beds, undercutting his assertions
about lack of budget and staff because these cuts were accompanied by
reductions in inmate population. In addition to Secretary LeBlanc’s testimony,
a DOC warden testified that his prison had lost 500 staff positions and had its
budget cut in half (over an unspecified time period), which had a “tremendous
impact” on its operational capacity. But, the warden acknowledged that, over
the same time period, his prison had closed two affiliated correctional
institutions, which accounted for the majority of its loss in budget. Second,
even taking the assertion that DOC had suffered significant budget and
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staffing cuts as true, DOC offered no evidence that it was unique amongst other
jurisdictions in this regard.
Aside from budget and staffing cuts, there was no evidence of any other
“unique” issues faced by DOC.

On appeal, DOC appears to rely on its

“southern” location to justify its deviation from the grooming policies of the
majority of other jurisdictions. It urges this court to “note that the grooming
policies of the southern states of Texas, Mississippi, Alabama, and Georgia are
substantially similar to that of DOC, and none of those states offer a religious
exemption to their policies.” As for those states from which it differs, DOC
states simply: “DOC should [not] be required to accept more risk simply
because other jurisdictions have chosen to do so.”

We agree that simply

because 39 other jurisdictions have adopted more lenient policies than DOC’s
grooming policies does not mean that DOC must conform to those policies in
order to satisfy RLUIPA. Holt, 135 S. Ct. at 866. However, when “so many
prisons” have different grooming policies, DOC “must, at a minimum, offer
persuasive reasons why it believes that it must take a different course.” Id.
DOC has failed to offer such persuasive reasons here. The reason it offers on
appeal, its southern location, is a distinction without meaning because DOC
offers no argument or evidence that “southern” inmates implicate its asserted
interests more than inmates from other regions do. In addition, this reasoning
ignores the fact Ware’s evidence shows that four southern states (Kentucky,
Tennessee, North Carolina, and South Carolina) impose less restrictive
policies. Because Ware offered evidence that the vast majority of jurisdictions
have a more lenient policy with regard to dreadlocks than DOC, Holt requires
that DOC offer persuasive reasons for the disparity. DOC failed to offer any
such reasons, and accordingly, it has failed to demonstrate that its grooming
policies are the least restrictive means of achieving its compelling interests.
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Document: 00514093540

Page: 16

Date Filed: 07/28/2017

No. 16-31012
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We conclude that DOC failed to meet its burden under RLUIPA of
showing both that its grooming policies serve a compelling interest and that
they are the least restrictive means of serving any such interest. DOC had a
full and fair opportunity during a two-day bench trial to satisfy this burden.
Accordingly, exercising our de novo review over this issue, Ali, 822 F.3d at 784,
we render judgment in favor of Ware.
IV. CONCLUSION
We REVERSE the district court’s judgment and RENDER judgment
granting Ware’s request for a declaration that the grooming policies, as applied
to him, violate RLUIPA and enjoining DOC from enforcing the grooming
policies against him.

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