Shabazz v. Secretary, Department of Corrections et al

Filing 199

OPINION AND ORDER denying 188 Motion for Summary Judgment. Signed by Judge John E. Steele on 4/5/2022. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABDUL HAKEEN JAHMAL NASEER
SHABAZZ aka Owen D. Denson,
Jr.,
Plaintiff,
v.

Case No:

2:17-cv-648-JES-NPM

RICKY DIXON,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Doc. #188), Plaintiff’s Response (Doc. #196),
and Defendant’s Reply (Doc. #198).

For the reasons set forth

below, the motion is denied.
I.

Background

This is a civil rights case based on the Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. § 2000cc - 2000cc-5
(RLUIPA).

Plaintiff Abdul Hakeen Jahmal Naseer Shabazz is a

prisoner of the Florida Department of Corrections (FDOC) serving
a life sentence for robbery with a deadly weapon, and he is a
devout Sunni Muslim.

He claims the FDOC’s grooming policy, which

prohibits inmates from growing beards longer than half an inch,
unlawfully

interferes

with

his

right

to

freely

practice

his

religious beliefs.

Defendant Ricky Dixon is the Secretary of the

FDOC.
Florida Administrative Code Chapter 33-602.101 sets out the
FDOC’s grooming rules.

The relevant part states, “All inmates

shall elect either to be clean shaven or to grow and maintain a
half-inch beard.”

Fla. Admin. Code Ch. 33-602.101(4).

That

chapter of the code includes other rules that limit inmates’
grooming options, but the Court will refer to the above-quoted
sentence as the “grooming policy” throughout this Order.
Shabazz’s Fourth Amended Complaint (Doc. #138) alleged that
maintenance of a fist-length beard was central to his religious
beliefs.

The Court granted Shabazz a temporary restraining order

on July 10, 2020, and a preliminary injunction on July 24, 2020,
enjoining FDOC from enforcing the grooming policy to prevent
Shabazz from maintaining a fist-length (four-inch) beard.
#142 and #152).

Then, during a deposition, Shabazz stated that

his faith requires him to grow a free-flowing beard.
#174).

(Docs.

(See Doc.

The allegations relating to a fist-length beard were the

result of a miscommunication with his counsel.

With the Court’s

leave, Shabazz filed a Fifth Amended Complaint, alleging the FDOC
violates the RLUIPA by prohibiting him from growing a free-flowing
beard.
II.

(Doc. #178).
Legal Standard

Summary

judgment

is

appropriate

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only

when

the

Court

is

satisfied “there is no genuine issue as to any material fact” and
the moving party is entitled to judgment as a matter of law.

Fed.

R. Civ. P. 56(c).

The initial burden falls on the movant, who

must

portions

identify

the

of

the

record

“which

it

believes

demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A genuine

issue of material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
defeat

summary

judgment,

the

non-movant

must

“go

beyond

To
the

pleadings, and present affirmative evidence to show that a genuine
issue of material facts exists.”

Porter v. Ray, 461 F.3d 1315,

1320 (11th Cir. 2006).
In reviewing a motion for summary judgment, the Court views
the evidence and all reasonable inferences drawn from it in the
light most favorable to the non-movant.

See Battle v. Bd. of

Regents, 468 F.3d 755, 759 (11th Cir. 2006).
III. Analysis
The RLUIPA allows prisoners to seek religious accommodations
from prison officials:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined
to an institution, as defined in section 1997 of this
title, 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

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(2) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
Congress

intended

the

liberty to be expansive.

RLUIPA’s

protection

of

religious

It defined “religious exercise” to

include “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.”
5(7)(A).

42 U.S.C. § 2000cc-

Courts must construe the RLUIPA “in favor of a broad

protection of religious exercise, to the maximum extent permitted
by the terms of this chapter and the Constitution.”
3(g).

§ 2000cc-

And the RLUIPA “may require a government to incur expenses

in its own operations to avoid imposing a substantial burden on
religious exercise.”

§ 2000cc-3(c).

A. Exhaustion of Administrative Remedies
Dixon

first

argues

administrative remedies.

Shabazz

failed

to

exhaust

his

The Prison Litigation Reform Act (PLRA)

prohibits prisoners from bringing a civil action “until such
administrative remedies as are available are exhausted.”
U.S.C. § 1997e(a).

42

It is undisputed that Shabazz exhausted the

FDOC’s grievance procedures, but Dixon claims he was also required
to challenge the grooming policy by filing a petition to initiate
rulemaking under Florida’s Administrative Procedure Act.

Florida

Statutes § 120.54 allows “Any person regulated by an agency or

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having substantial interest in an agency rule” to “petition an
agency to adopt, amend, or repeal a rule.”
To support his failure-to-exhaust argument, Dixon cites an
excerpt from Smith v. Conner:
Defendants argue that Plaintiff did not exhaust all
administrative remedies available to him because he
failed to file a petition to initiate rulemaking
pursuant to Florida Statutes, Section 120.54(7) prior to
filing his complaint in this action. Specifically,
Defendants argue that because Plaintiff seeks to
amend Florida Administrative Code Chapter 33–602.201,
which regulates inmate property, he was required to not
only exhaust the prison grievance procedure, but also
file a petition to initiate rulemaking under 120.54(7).
The Court agrees, in part, with Defendants' failure to
exhaust argument. To the extent Plaintiff requests the
Court order Defendants to make “the necessary additions
to the inmate property list to allow necessary items
[,]” the Court agrees that Plaintiff is attempting to
alter a Department rule, specifically Rule 33–602.201,
and therefore was required to initiate rulemaking under
120.54(7). To the extent, however, Plaintiff claims that
Defendants have failed to provide him with adequate
protection from the cold and wet weather, and adequate
storage space, the Court finds that Plaintiff has fully
exhausted his available administrative remedies through
the prison grievance procedure.
No. 8:12-cv-52-T-30AEP, 2014 WL 299099, at *7 n.6 (M.D. Fla. Jan.
28, 2014).
This case differs from Smith because Shabazz is not seeking
to alter an FDOC rule.

The Fifth Amended Complaint makes clear

that Shabazz seeks an exception from—not a change to—the grooming
policy.

(See Doc. #178 at 6-7).

Because Shabazz is not seeking

adoption, amendment, or repeal of a rule, he had not reason to

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file a petition to initiate rulemaking.

His exhaustion of the

FDOC

the

grievance

procedures

satisfied

PLRA’s

pre-suit

requirements.
B. Merits of Shabazz’s RLUIPA Claim
Under the RLUIPA’s burden-shifting framework, a plaintiff
must show that (1) his relevant religious exercise is “grounded in
a

sincerely

government
forcing

held

policy

the

religious

belief”

“substantially

plaintiff

“to

and

(2)

burden[s]

‘engage

violates [his] religious beliefs.’”

in

the

that

conduct

challenged

exercise”

that

by

seriously

Holt v. Hobbs, 574 U.S. 352,

361 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 720 (2014)).
show

that

its

The burden then shifts to the government to

action

or

policy

is

(1)

in

furtherance

of

a

compelling governmental interest; and (2) the least restrictive
means of furthering that interest.
restrictive-means

standard

is

Id. at 362. “The least-

exceptionally

demanding,

and

it

requires the government to show that it lacks other means of
achieving its desired goal without imposing a substantial burden
on the exercise of religion by the objecting party.”

Holt, 574

U.S. at 364 (quoting Hobby Lobby, 573 U.S. at 728) (cleaned up).
The RLUIPA requires the Court to focus its inquiry on Shabazz
and his particular circumstances, rather than the general legality
of the FDOC’s grooming policy.

Id. at 362-63.

To satisfy its

burden, the FDOC must “demonstrate that the compelling interest

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test is satisfied through application of the challenged law” to
Shabazz.

Id. at 363 (quoting Hobby Lobby, 573 U.S. at 725).

The

Court must scrutinize the asserted harm of granting a specific
exemption

to

Shabazz

and

“look

to

the

marginal

interest

in

enforcing” the FDOC’s grooming rule in this particular context.
Id.
Dixon

does

not

dispute

that

Shabazz’s

sincerely

held

religious belief requires him to maintain an untrimmed beard or
that the grooming policy substantially burdens Shabazz’s exercise
of that belief.

Rather, Dixon claims he is entitled to summary

judgment because the grooming policy is the least restrictive means
of furthering compelling governmental interests.
Shabazz

does

not

contest

that

the

compelling governmental interests.

grooming

For his part,
policy

furthers

Thus, the critical question

is whether applying the grooming policy to prevent Shabazz from
maintaining a free-flowing beard is the least restrictive means of
furthering compelling government interests.
Much of Dixon’s argument broadly defends the grooming policy
and anticipates problems that might arise if the FDOC allowed not
just Shabazz but thousands of other Muslim inmates—and perhaps
inmates of other faiths—to grow untrimmed beards.

But the issue

here is more focused—Dixon must prove that denying an exemption to
Shabazz is the least restrictive means of furthering the FDOC’s
interests.

See Smith v. Owens, 848 F.3d 975, 980 (11th Cir. 2017).

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Dixon identifies three governmental interests served by the
grooming policy.
interests

First, the policy serves security and safety

because

inmates

can

use

untrimmed

beards

to

hide

contraband—like handcuff keys, cell phone SIM cards, and razor
blades—and

can

identification.

shave

a

Shabazz

beard
is

in

after
his

an

70s

escape

and

has

to

a

avoid

checkered

disciplinary history from his 45 years of incarceration.

He has

committed dozens of disciplinary infractions, including assaults,
at least 11 instances of hiding contraband, and an escape attempt.
(Doc. #188-1 at 4).

Dixon only provides details of one recent

infraction—in May 2020, Shabazz “failed to address staff properly
and turn[ed] his back on the Chief of Security.”
Second,
interests.

the

grooming

policy

serves

(Id.)

hygiene

and

health

Officers would need to be near Shabazz to search his

untrimmed beard, which increases the risk of Shabazz catching or
spreading

COVID-19.

Also,

beards

can

make

it

difficult

properly wear a face mask, which reduces effectiveness.

to

Shabazz

is at high risk of the virus due to his age and medical history,
and he has contracted COVID-19 before.
Third,
resources.

FDOC

has

an

interest

in

(Doc. #188-2 at 1).
conserving

its

limited

Carl Kirkland, FDOC’s Deputy Director of Internal

Operations, lays out a slippery slope of expenses the FDOC might
incur if it grants Shabazz an exception to the grooming rule.

He

predicts it would cost $8 million in direct costs the first year.

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(Doc. #188-1 at 7).

Kirkland’s estimate assumes 5,000 inmates

would be allowed to grow untrimmed beards, and it accounts for
increased man hours to search beards and equipment like metal
detectors and disposable hair picks.

(Id. at 5-7).

The argument

that granting Shabazz an exception from the grooming policy would
lead to 5,000 untrimmed beard and more than $8 million in annual
costs is far too speculative to be the basis of summary judgment.
In fact, Dixon has not pointed to any evidence that Shabazz’s
Court-ordered right to grow a four-inch beard has led to the types
of expenses Kirkland predicts.
Shabazz relies primarily on his expert witness, John Clark,
to show the availability of less-restrictive measures.

Clark

reports that other prison systems have successfully implemented
alternative means of serving the interests raised by the FDOC while
allowing

inmates

to

grow

beards.

Dixon

challenges

Clark’s

qualifications because he is not an expert in FDOC policy, but he
does not challenge Clark’s expertise in prison administration
generally.

Clark need not be an expert in FDOC policy to opine

about policies adopted by other prison systems.
Clark

describes

alternative,

address the FDOC’s interests.

less-restrictive

means

to

First, prison officials can search

a beard without touching it by waiving a metal detection wand over
the

inmate

and/or

requiring

the

prisoner

vigorously through his hair and beard.

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to

run

his

fingers

(Doc. #196-3 at 16).

Such

a search can be conducted in a few seconds.

(Id.)

This search

method could satisfy the FDOC’s interest in checking Shabazz for
contraband without requiring prison officials to get closer to
Shabazz than is necessary for an ordinary search, so it also serves
the FDOC’s health concerns.

And the cumulative extra time spent

searching Shabazz’s beard would likely be less than a minute a
day.

Dixon disputes the effectiveness of this suggestion, but

that is an issue for the factfinder to resolve at trial.
Clark also provides an alternative means to address FDOC
concerns about inmates shaving beards to avoid detection during or
after

escape

attempts.

He

describes

the

Federal

Bureau

of

Prisons’ practice of taking new photos of inmates at regular
intervals and retaining all past photographs.

It follows that

FDOC could take a photograph of Shabazz without his beard—if they
do not have one already—and take and retain photographs of Shabazz
at regular intervals as his beard grows.

Clark notes that other

prison have shifted the costs of new photographs onto the inmates
and have revoked exceptions for inmates who continuously alter
their appearance.

(Doc. #196-3 at 19).

Dixon has not established that he is entitled to judgment as
a matter of law because factual disputes remain as to whether
prohibiting Shabazz from growing an untrimmed beard is the least
restrictive means of furthering the FDOC’s interests.
Accordingly, it is hereby

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ORDERED:
Defendant’s

Motion

for

Summary

Judgment

(Doc.

#188)

is

DENIED.
DONE and ORDERED at Fort Myers, Florida, this 5th day of April
2022.

SA: FTMP-1
Copies:
Counsel of Record

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