Benning v. State of Georgia et al

Filing 22

ORDER denying in part 11 Motion to Dismiss Complaint; adopting in part Report and Recommendations re 18 Report and Recommendations. The case is remanded to the Magistrate Judge for further consideration. Ordered by Judge Hugh Lawson on 02/10/10. (mbh)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA M AC O N DIVISION R AL P H HARRISON BENNING, P l a i nti ff, v. S TATE OF GEORGIA, et al., D e f e n d a n ts . ______________________________ : : : : : : : : :

C i v i l Action No. 5:08-CV-435 (HL)

ORDER T hi s matter is before the Court on the Recommendation of United States M a g i s tra te Judge Claude W . Hicks Jr., entered on January 14, 2010 (Doc. 18), in w hi c h he recommends that Defendants' Pre-Answer Motion to Dismiss (Doc. 11) be g ra nte d , in part, and denied, in part. Both parties have filed objections to the R e c o m m e nda tio n. R e c o m m e nd a ti o n After to de novo consideration is made, of the the portions of the the

which

objection

Court

accepts

R e c o m m e nd a ti o n, in part, but remands the case to the Magistrate Judge for further c o ns i d e ra ti o n. A. B a c k g ro u n d P l a i nti ff contends that Defendants have violated the Religious Land Use and Ins t i t u t i o na l i ze d Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1. In his complaint, P l a i nti ff states that he is a Torah Observant Jew. Plaintiff is forbidden by his religion fro m removing his earlocks. He alleges that Defendants' refusal to allow him to grow

hi s earlocks imposes a substantial burden on his religious exercise. Plaintiff states tha t there is no compelling governmental interest in refusing to allow him to grow his e a r l o c k s . Plaintiff's religion also forbids him from using any type of blade to remove his facial hair. He is permitted, however, to use a depilatory to remove his facial hair. In light of the Department of Corrections' facial hair policy, Plaintiff requested that D e fe nd a nts provide him with a depilatory in the same manner razors are provided to other prisoners for the purpose of removing facial hair. Defendants refused to p ro v i d e the depilatory, and Plaintiff contends this refusal in light of the grooming p o l i c y imposes a substantial burden on his religious exercise. He also contends that t he re is no compelling governmental interest in refusing to provide him with a d e p i l a to ry . Plaintiff has asked that Defendants be ordered to allow him to grow his e a rlo c k s , and to provide him with a depilatory in the same manner as razors are p ro v id e d to the other inmates. He has also asked for declaratory relief in the form o f a decree that states he has a protected interest in growing his earlocks and a p ro te c te d interest in not using any type of blade to remove his facial hair. The M a g i s tra te Judge recommends dismissal of the earlock claim, but believes the d e p i l a to ry claim should be allowed to move forward. B. Analysis O n a Rule 12(b)(6) motion to dismiss, the Court accepts as true all the a l l e g a ti o ns in the complaint and construes them in the light most favorable to the 2

p la i n tiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). A plaintiff is required, however, to provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual a l l e g a ti o ns must be enough to raise a right of relief above the speculative level." Bell A tl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). 1. RLUIPA

R L U IP A was enacted, in part, to protect inmates who face substantial burdens i n practicing their religions. 42 U.S.C. § 2000cc-1(a) states that N o government shall impose a substantial burden on the re l i g i o us exercise of a person residing in or confined to an i ns ti tuti o n, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unl e s s the government demonstrates that imposition of the b urd e n on that person: (1 ) is in furtherance of a compelling governmental i nte re s t; and (2 ) is the least restrictive means of furthering that c o m p e l l i ng governmental interest. 4 2 U.S.C. § 2000cc-1(a) T o succeed on a RLUIPA claim, a plaintiff must first establish a prima facie case. To establish a prima facie case under section 3 of R L U IP A , a plaintiff must demonstrate 1) that he engaged i n a religious exercise; and 2) that the religious exercise w a s substantially burdened. The plaintiff bears the burden o f persuasion on whether the ... government practice that i s challenged by the claim substantially burdens the 3

e x e r c i s e of religion. If the plaintiff succeeds in d e m o ns tr a t i n g a prima facie case, the government must the n demonstrate that the challenged government action i s in furtherance of a compelling governmental interest and i s the least restrictive means of furthering that compelling g o v e rnm e nta l interest. In contrast, if the plaintiff fails to p re s e nt evidence to support a prima facie case under R L U IP A , the court need not inquire into whether the g o v e rnm e nta l interest at stake was compelling. S m i th v. Allen, 502 F.3d 1255, 1276 (11th Cir. 2007) (internal citations, quotation m a rks , and alterations omitted). R L U IP A is to be construed broadly in favor of the inmate, 42 U.S.C. § 2000cc3 (g ), but at the same time must be applied with due deference to prison officials and the i r need to maintain order and security. Cutter v. W i l k i ns o n, 544 U.S. 709, 723, 1 2 5 S.Ct. 2113, 2123 (2005). a. E a r lo c k s

D e fe nd a nts do not dispute that Plaintiff has established a prima facie case und e r RLUIPA with regard to his earlocks. Defendants do argue that the Georgia D e p a rtm e nt of Corrections' ("GDOC") grooming policy is in furtherance of the c o m p e l l i ng governmental interests of prison security and identification of inmates, a nd is the least restrictive means of furthering those interests. The Magistrate Judge a g re e d , stating that his conclusion that dismissal was required "is premised upon the fa c t that prison policies prohibiting inmates from wearing facial hair have repeatedly

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b e e n found to be the least restrictive means of achieving the compelling government i nte re s ts of, inter alia, inmate identification and security." (Doc. 18, p. 4). T he re is no question that prison security is a compelling governmental i nte r e s t. Cutter, 544 U.S. at 725 n. 13, 125 S.Ct. at 2124. W ha t is not so clear is w he the r a uniform hairstyle policy for all GDOC inmates is the least restrictive m e a ns available to maintain the security of the prisons. Under RLUIPA, the burden i s on Defendants to show a compelling governmental interest and that the policy is the least restrictive means of achieving the interest. D e fe nd a n ts do not devote much argument to the least restrictive means test i n their Motion to Dismiss. They state that "[a]s it is well established that the growth o f facial hair can affect identification of inmates and security within the prison, the g ro o m i ng policy is the least restrictive means to achieve compelling state interests." (D o c . 11, p. 14). This conclusory statement is presumably based on the Eleventh C i rc ui t's decision in Harris v. Chapman, 97 F.3d 499, 504 (11th Cir. 1996), which i nv o l v e d a challenge under RLUIPA's predecessor, the Religious Freedom and R e s to r a ti o n Act, to the hair-length regulations contained in the Florida Administrative C o d e , and enforced by the Florida Department of Corrections. The appellate court fo und that "a reasonable hair length regulation satisfies the least restrictive means te s t." Id. T he last time the Eleventh Circuit addressed a hair-length policy under R L U IP A was in 2007, in the unpublished case of Lathan v. Thompson, 251 Fed. 5

A p p x . 665 (11th Cir. 2007). There, the plaintiffs, who adhered to Native American re l i g i o n, presented a RLUIPA challenge to the Alabama Department of Corrections' p o l i c y restricting hair length. The district court granted summary judgment in favor o f the defendants. The Eleventh Circuit, however, reversed the decision, finding that o n the present record factual issues exist as to whether, in te r alia, the defendants' total ban on the wearing of long ha i r and denial of an exemption to the plaintiffs based on the i r Native American religion is `the least restrictive m e a ns of furthering [the defendants'] compelling g o v e rnm e nta l interest[s]' in security, discipline, hygiene a nd safety within the prisons and in the public's safety in the event of escapes and alterations of appearances. See 4 2 U.S.C. § 2000cc-1(a)(2). Id . at 667. T he appellate court remanded the case to the district court for a bench trial, a fte r which the district court was to make detailed findings of fact and conclusions o f law. Id.1 A number of circuit courts have determined that in order to meet its burden on the RLUIPA least restrictive means test, the government must demonstrate that it has "actually considered and rejected the efficacy of less restrictive measures before a d o p ti ng the challenged practice." W a rs o l d i e r v. W o o d fo rd , 418 F.3d 989, 999 (9th C i r. 2005) (challenge to the California Department of Corrections' grooming policy,

According to the docket for the case in the district court, a bench trial has been held, but no order has been issued. Knight, et al. v. Thompson, et al., case no. 2:93-CV1404, Middle District of Alabama. 6

1

w hi c h required male inmates to maintain hair no longer than three inches); see also W a s hi ng to n v. Klem, 497 F.3d 272, 284 (3d Cir. 2007) (reversing summary judgment in favor of the defendants because they did not show that a policy limiting prisoners to ten books in their cells was the least restrictive means of furthering the interests o f safety and security); Spratt v. R. I. Dept. of Corr., 482 F.3d 33, 40-41 (1st Cir. 2 0 0 7 ) (reversing summary judgment in favor of the defendant because it failed to s ho w that a blanket ban on all inmate preaching was the least restrictive means a v a i l a b l e to achieve its interest). Defendants certainly have not met this burden here, w hi c h requires more than mere assertions or conclusory statements that there is no l e s s restrictive means available. W hi l e there is no doubt that prison officials may, und e r certain circumstances, substantially burden a prisoner's ability to engage in re l i g i o us exercises, "in light of RLUIPA, no longer can prison officials justify re s tri c ti o ns on religious exercise by simply citing to the need to maintain order and s e c uri ty in a prison. RLUIPA requires more." Greene v. Solano County Jail, 513 F.3d 9 8 2 , 989-90 (9th Cir. 2008). T hi s Court has not found any Eleventh Circuit case that specifically addresses the GDOC's grooming and hair-length policies. The Lathan opinion, even though unp ub l i s he d , combined with Defendants' failure to properly address the least

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re s tri c ti v e means test, leads the Court to believe that dismissal of the earlock claim a t this stage of the litigation is inappropriate.2 T he re is another issue that must be addressed, however. Defendants contend tha t Plaintiff's earlock claim should be dismissed because he failed to exhaust his a d m i ni s tra ti v e remedies. The Magistrate Judge did not make a ruling on the e xha us ti o n issue, but rather determined that even if the exhaustion issue was re s o l v e d in Plaintiff's favor, the earlock claim should still be dismissed. In light of the Court's findings with regard to the earlocks, the exhaustion issue m us t be resolved. Since exhaustion of administrative remedies is a matter in a b a te m e nt, a motion to dismiss is the appropriate forum to decide an exhaustion c l a i m . Bryant v. Rich, 530 F.3d 1368, 134-75 (11th Cir. 2008), cert denied, --- U.S. ---, 129 S.Ct. 733 (2008). Accordingly, the Court remands this matter to the M a g i s tra te Judge for a determination on the question of whether Plaintiff properly e xha us te d his administrative remedies with regard to the earlocks.

The Magistrate Judge cited to Brunskill v. Boyd, 141 Fed. Appx. 771 (11th Cir. 2005), in support of his conclusion that the earlock claim does not survive under RLUIPA. The Brunskill court found that the Florida Department of Corrections' policy requiring male inmates to have short hair did not violate RLUIPA. That case, however, was on appeal after summary judgment was granted by the district court, which means that the district court and appellate court both had evidence before them on the issue of least restrictive means. This Court does not have the benefit of any evidence on that issue. 8

2

b.

D e p ila t o r y

T he Magistrate Judge found that Plaintiff stated a prima facie claim under R L U IP A with regard to the depilatory claim, because he demonstrated that his re l i g i o us exercise was substantially burdened by a government action, policy, or p r a c ti c e . This conclusion was based on the facts that Plaintiff's religion prohibits him fro m using a blade to remove facial hair, that the GDOC policy requires Plaintiff to ro uti ne l y remove his facial hair, and that the only instrument provided by Defendants fo r this purpose is a razor, which Defendants concede Plaintiff is religiously p ro hi b ite d from using. D e fe nd a nts argue in their objection that there is no substantial burden on P l a i nti ff's religious exercise because Plaintiff is not being forced to modify his b e ha v i o r or violate his religious beliefs. Defendants argue that Plaintiff is not p ro hi b ite d from possessing, purchasing, or using a depilatory, and that they are not re q ui re d to provide him a depilatory free of charge. T he Eleventh Circuit has defined a "substantial burden" as being "significant p re s s ure which directly coerces the religious adherent to conform his or her behavior a c c o rd i ng l y ." Smith, 502 F.3d at 1277 (quoting Midrash Sephardi, Inc. v. Town of S u rfs i d e , 366 F.3d 1214, 1227 (11th Cir. 2004)). "In order to constitute a `substantial b urd e n ' on religious practice, the government's action must be `more than . . . i nc i d e nta l ' and `must place more than an inconvenience on religious exercise.' That i s , to constitute a substantial burden under RLUIPA, the governmental action must 9

s i g n i f i c a n t l y hamper one's religious practice." Id. (quoting Midrash, 366 F.3d at 1 2 2 7 ). T he Court agrees with the Magistrate Judge that Plaintiff's allegations, liberally c o ns true d , are sufficient to allow him to move forward with the depilatory claim. The fac t-intens i v e inquiry necessary in a RLUIPA case has not yet been made, and there a number of questions that have to be answered before the Court can determine if a RLUIPA violation has occurred. For instance, does Plaintiff have the option of p urc ha s i ng a depilatory from the prison's store? W o ul d having to purchase a d e p i l a to ry in order to abide by the grooming policy place a substantial financial b urd e n on Plaintiff? Is a depilatory in this situation considered a religious or d e v o ti o na l accessory, like runestones or firewood? Is Plaintiff requesting that D e fe nd a n ts subsidize his purchase of religious materials? Does a depilatory fall und e r the category of basic necessities which are to be provided to inmates free of c ha rg e , which include "razor blades or other shaving devices?" Ga. Comp. R. & R e g s . 125-2-3-.04(1).3 These are just some of the questions the Court believes ne e d to be addressed in further detail. T he issues relating to the depilatory are best decided on a motion for s um m a ry judgment. They should not be resolved on a motion to dismiss. Insofar as

Defendants did not provide a copy of the GDOC's grooming policy. The quoted language is taken from the personal hygiene rule found in the Rules and Regulations of the State of Georgia. 10

3

D e fe nd a nts contend that the depilatory claim should be dismissed for failure to state a claim, the Motion to Dismiss is denied. C. CONCLUSION T he Court accepts the Magistrate Judge's recommendation on the depilatory i s s ue , and denies the Motion to Dismiss on that issue. The Court remands the e a rl o c k issue to the Magistrate Judge for a determination of whether Plaintiff e xha us te d his administrative remedies.

SO ORDERED, this the 10th day of February, 2010.

/s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE m bh

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