Benning v. State of Georgia et al
Filing
92
ORDER GRANTING IN PART and DENYING IN PART 71 Motion for Summary Judgment; DENYING 72 Motion for Summary Judgment. Ordered by Judge Marc Thomas Treadwell on 1/13/2012. (tlh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RALPH HARRISON BENNING,
)
)
Plaintiff,
)
)
v.
)
)
STATE OF GEORGIA, et al.,
)
)
Defendants.
)
________________________________)
CIVIL ACTION NO. 5:08-CV-435(MTT)
ORDER
This matter is before the Court on the Defendants’ Motion for Summary
Judgment (Doc. 71) and the Plaintiff’s Motion for Summary Judgment (Doc. 72). For
the reasons set forth below, the Defendants’ Motion is granted in part and denied in
part, and the Plaintiff’s Motion is denied.
I. Factual and Procedural Background
Pro se Plaintiff Ralph Harrison Benning is currently an inmate at Autry State
Prison in Pelham, Georgia. Benning filed his complaint on December 11, 2008, against
the State of Georgia, the Georgia Board of Corrections (the “Board”), the Georgia
Department of Corrections (“GDOC”), and Commissioner Brian Owens, in his official
capacity, contending that the Defendants, by the enactment and enforcement of
grooming policies, violated the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1. (Doc. 1).
In his complaint, Benning states that he is a “Torah-Observant Jew.” By virtue of
his religion, Benning claims that he is forbidden from removing his earlocks.1 He
alleges that the Defendants’ refusal to allow him to grow his earlocks imposes a
substantial burden on his religious exercise and that their refusal serves no compelling
governmental interest.
Benning also claims that he is forbidden by his religion from using any type of
razor or blade to remove his facial hair. He is permitted, however, to use a depilatory to
remove his facial hair.2 In light of Board of Corrections Rule 125-2-3-.04 and the GDOC
grooming policy, which prohibit beards, Benning requested that the Defendants provide
him with a depilatory in the same manner razors are provided to other prisoners for the
purpose of removing his facial hair. The Defendants refused to provide the depilatory,
and Benning contends this refusal imposes a substantial burden on his religious
exercise. He also contends that there is no compelling governmental interest in
refusing to provide him with a depilatory.
Benning bases his beliefs and understanding of Jewish laws and customs on the
Code of Jewish Law, generally referred to as the Kitzur Shulhan Arukh. (Doc. 87-1). It
is undisputed that the Kitzur Shulhan Arukh is an authoritative source of Jewish laws
and customs. Benning claims that Chapter 170 provides the basis for his beliefs at
issue in this case. Chapter 170 provides:
1
In the context of this action, an earlock is a lock of hair worn in front of each ear by Hasidic and
Yemenite Jewish males in accordance with a Biblical prohibition against clipping the hair at the
temples.
2
A depilatory is a preparation, usually a liquid or cream, that is used to remove unwanted hair
from the body.
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1. It is forbidden to shave off the hair of the temples on both sides of the
head at their juncture with the cheeks at the ears. According to some
authorities, it is forbidden to cut them even with scissors, close to the
skin, as with a razor. Therefore, if it is necessary to shave off the hair
from the temples for the sake of health, one must take care not to
shave close to the skin. The length of the earlocks is estimated to be
from the forehead as far as below the ear, where the cheeks widen.
2. The Torah has forbidden to shave the “corners” of the beard with a
razor only. The beard has five “corners,” and there are many opinions
as to what they are. Therefore, he who fears God, should not use a
razor on any part of the beard, even on his upper lip or under the chin.
There is no difference between a razor and a sharp stone which cuts
the hair, such as a pumice stone; they are both forbidden. Those who
remove their beard by means of a salve, should be careful not to
scrape it off with a knife which might cut the hair; but they should use
instead a strip of wood.
(Doc. 87-1). Initially, it seemed that Benning contended that his religious beliefs
prohibited cutting his earlocks at all. However, he now acknowledges that Chapter 170
only prohibits shaving or closely cutting the hair of the temples and beard. It is
acceptable to trim the earlocks with scissors, for example, so long as the earlocks are
not cut close to the skin.
Benning asks the Court to order the Defendants to allow him to grow his earlocks
and to provide him with a depilatory free of cost in the same manner razors are provided
to other inmates. Both parties have moved for summary judgment.
II. DISCUSSION
Summary judgment must be granted if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material facts and that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). “A factual dispute is genuine only if ‘a reasonable jury could return a
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verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop.,
941 F.2d 1428, 1437 (11th Cir. 1991)). The district court must “view all evidence in the
light most favorable to the nonmoving party, and resolve all reasonable doubts about
the facts in its favor.” Id. The burden rests with the moving party to prove that no
genuine issue of material fact exists. Id.
If the moving party discharges this burden, the burden then shifts to the
nonmoving party to go beyond the pleadings and present specific evidence showing
that there is a genuine issue of material fact or that the moving party is not entitled to
judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ.
P. 56(e). This evidence must consist of more than mere conclusory allegations or legal
conclusions. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Ultimately,
summary judgment must be entered where “the nonmoving party has failed to make a
sufficient showing on an essential element of [his] case with respect to which [he] has
the burden of proof.” Celotex, 477 U.S. at 323.
The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion. Am. Bankers Ins. Group
v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). “Cross-motions for summary
judgment will not, in themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984).
The Court will consider each motion on its own merits, resolving all reasonable
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inferences against the party whose motion is under consideration. Am. Bankers Ins.
Group, 408 F.3d at 1331.
A.
RLUIPA
In a broad bipartisan effort, Congress enacted RLUIPA, in part, to protect and
accommodate the religious exercise of prisoners. Under section 3 of RLUIPA,
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.
42 U.S.C. § 2000cc-1(a). Section 3 of RLUIPA “affords to prison inmates a heightened
protection from government-imposed burdens by requiring that the government
demonstrate that the substantial burden on the prisoner’s religious exercise is justified
by a compelling, rather than merely a legitimate, governmental interest.” Smith v. Allen,
502 F.3d 1255, 1266 (11th Cir. 2007) (internal quotation marks and citation omitted),
abrogated on other grounds by Sossamon v. Texas, __ U.S. __, 131 S. Ct. 1651 (2011).
RLUIPA contains an express private cause of action allowing a person to assert “a
violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain
appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). The statute further
defines “government” to include states, counties, municipalities, departments, agencies,
their instrumentalities and officers, and persons acting under color of state law. 42
U.S.C. § 2000cc-5(4)(A).
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Because Benning has not asserted claims for money damages, but rather seeks
only injunctive relief, this Court need not address the issue which, until recently, has
divided the courts of appeals—whether states waived their sovereign immunity to claims
for monetary relief by accepting federal funds. See Sossamon, 131 S. Ct. 1651.
However, because the Defendants have, perhaps only in passing, asserted
claims of immunity, the Court will address those arguments before addressing the
substance of Benning’s RLUIPA claim. Although the Supreme Court recently held in
Sossamon v. Texas, that states, by accepting federal funds, do not consent to waive
their immunity to suits for monetary damages under RLUIPA, that decision does not
shield states from all potential suits and liability. RLUIPA unambiguously creates a
private cause of action for “appropriate relief” against a “government,” which is
specifically defined to include states, state departments and agencies, and officials
acting under color of state law. Thus, Benning’s RLUIPA claim for injunctive relief is
properly asserted against the State of Georgia, the Board, the GDOC, and
Commissioner Brian Owens in his official capacity.3
To succeed on a claim under RLUIPA, a plaintiff must first establish a prima facie
case. To establish a prima facie case under section 3 of RLUIPA, a plaintiff must
demonstrate (1) that he engaged in a religious exercise; and (2) that the religious
exercise was substantially burdened. Smith, 502 F.3d at 1276. If a plaintiff meets his
burden of showing that the challenged government action substantially burdens the
3
The Defendants also argue that the State of Georgia and the GDOC are not “persons” within
the meaning of 42 U.S.C. § 1983, and therefore are not proper parties to this action. However,
Benning has not asserted a section 1983 claim.
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exercise of his religious beliefs, the government must then demonstrate that the
imposition of the burden or refusal to accommodate a plaintiff’s belief furthers a
compelling government interest by the least restrictive means. 42 U.S.C. § 2000cc1(a); 42 U.S.C. § 2000cc-2(b). “[I]f the plaintiff fails to present evidence to support a
prima facie case under RLUIPA, the court need not inquire into whether the
governmental interest at stake was compelling.” Smith, 502 F.3d at 1276.4
i.
Religious Exercise
The Supreme Court has cautioned that it is “not within the judicial ken to question
the centrality of particular beliefs or practices to a faith, or the validity of particular
litigants’ interpretation of those creeds.” Hernandez v. C.I.R., 490 U.S. 680, 699 (1989).
Thus, RLUIPA defines “religious exercise” broadly to include “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C.
§ 2000cc-5(7)(A). “Although RLUIPA bars inquiry into whether a particular belief or
practice is ‘central’ to a prisoner’s religion … the Act does not preclude inquiry into the
sincerity of a prisoner’s professed religiosity.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.
4
The Defendants claim that Benning’s RLUIPA claim is barred by the statute of limitations.
(Doc. 71-1 at 6). However, at oral argument, the Defendants agreed that because Benning
seeks only injunctive relief, their statute of limitations defense was not applicable. They
maintain, however, their defense of laches which is mostly based on the same facts.
Specifically, they claim that Benning was aware or should have been aware of the religious
beliefs which form the basis of this action when he obtained his copy of the Kitzur Shulhan
Arukh in the early 2000s. Yet he did not request accommodation for the beliefs at issue here
until many years later and after he had litigated other issues. Benning argues that RLUIPA
protects only sincerely held religious beliefs and that he did not hold these beliefs until
approximately March 2008. (Doc. 71-22 at 1-2). The Court recognizes the potential for inmates
to abuse rights afforded to them by RLUIPA. However, the Defendants can point to little
evidence that Benning has abused or sat on his rights and there certainly is insufficient
evidence for the Court to hold as a matter of law that Benning’s claims are barred by laches.
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13 (2005). Therefore, to be protected, a plaintiff must show that the practice he wishes
to engage in is both sincerely held and rooted in religious belief. Id. (citation omitted).
Here, because the Defendants dispute that Benning’s religious beliefs are sincerely
held, the Court must first address this threshold inquiry before deciding whether
Benning has established the remaining element of his prima facie case.
The source of Benning’s understanding of the requirements and practices of
Judaism is the Kitzur Shulhan Arukh, or Code of Jewish Law, which Benning has had in
his possession since at least the early 2000s. (Doc. 87-1). As noted, Benning finds the
beliefs at issue here in Chapter 170, which addresses shaving.
The Defendants do not dispute, nor could they, that the principles of growing
earlocks and refraining from shaving with a razor or blade are “religious” in nature. The
prohibition against shaving one’s earlocks is one of the more recognizable, although
perhaps not common, tenets of Torah-Observant Judaism, and the Plaintiff has
produced sufficient documentation that both of these beliefs are “rooted in religion.”
(Doc. 71-2 at 18-20; Doc. 87-1). Rather, the Defendants dispute, quite vigorously, that
Benning is in fact Jewish, as he claims, and that he sincerely holds these beliefs.
In support of this argument, the Defendants offer a detailed history of Benning’s
and his family’s religious backgrounds. It is undisputed that Benning’s mother and
father, Elizabeth Estelle Ramsey Benning and Bishop Francis H. Benning, were both
devout Christians and members of Benning’s father’s church. Although Benning claims
his mother was Jewish by birth, thereby making him Jewish by birth as well, he does not
dispute that she practiced Christianity her entire life. (Benning 2005 Dep. at 13, 19-21).
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In addition, the Defendants point out that upon entering the Georgia prison
system in 1985, Benning was a self-proclaimed practicing Episcopalian. (Benning 2005
Dep. at 28). In 1989, the Defendants note, Benning’s Christian beliefs were so strong
that he challenged prison rules which required him to be housed with a non-Christian.
(Benning 2005 Dep. at 60-61). In further support of their claim that Benning’s Jewish
beliefs are not sincere, the Defendants cite the affidavit of Rabbi Ilan D. Feldman, an
Orthodox Jewish rabbi who minsters to an Orthodox congregation in Atlanta, Georgia.
(Feldman Aff. ¶ 5). After reviewing several of Benning’s depositions, Rabbi Feldman
concluded that Benning “has not established that he is Jewish.” (Feldman Aff. ¶ 10).
According to Rabbi Feldman, “Judaism does not allow one to convert simply by
declaring him/herself to be Jewish,” (Feldman Aff. ¶ 11), and Benning has admitted that
he has not gone through a formal conversion process (Benning 2005 Dep. at 13). The
Defendants claim that Benning has a “track record of using his religion to garner special
treatment” and that his “chosen religion varies depending upon what [he] feels he is
able to get out of the situation.” (Doc. 71-1 at 9).
The Defendant’s argument, however, is misplaced. As the Second Circuit stated,
“the question whether [a plaintiff’s] beliefs are entitled to … protection turns on whether
they are ‘sincerely held,’ not the ‘ecclesiastical question’ whether he is in fact a Jew
under Judaic law.” Jackson v. Mann, 196 F.3d 316, 321 (2nd Cir. 1999) (dealing with a
prisoner’s claim under the Free Exercise Clause of the First Amendment). In the
Court’s view, and for the reasons set forth in more detail below, there can be no
question that Benning’s beliefs are sincerely held.
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In May 1998, Benning filed affidavits with the GDOC changing his religion of
record to Judaism. (Doc. 71-4). Contrary to the Defendants’ assertions, he has not
changed his religion since then, and there is no material evidence of any conduct
inconsistent with or contrary to his professed Jewish religiosity. On the contrary,
Benning has spent much of that time grieving and litigating issues related to his Jewish
faith.5
Although the Court recognizes the very real possibility of an inmate adopting a
particular religion or belief to obtain more favorable treatment or rather simply to harass
prison staff with demands to accommodate his new faith, there is no evidence that
Benning has been motivated by anything other than sincerely held beliefs.6
Accordingly, the Court concludes that Benning’s religious beliefs—that he is forbidden
from shaving his earlocks and from shaving his beard with a razor or blade—are
sincerely held.
5
This is not Benning’s first RLUIPA complaint. In 2002, he filed suit against the State of
Georgia and Department of Corrections officials claiming that they violated RLUIPA when they
refused to allow him to wear a yarmulke and provide him with a kosher diet. After the Eleventh
Circuit ruled in Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004), that RLUIPA was
constitutional, the parties reached a settlement agreement that apparently allowed Benning to
wear a yarmulke and the State began serving kosher food. According to Benning, the State
accommodates all his religious beliefs except those at issue in this case.
6
The Court does not suggest that an inmate’s religious beliefs cannot be questioned or
examined. For example, in Gardner v. Riska, __ Fed. Appx. __, 2011 WL 4389709 (11th Cir.
2011), an inmate who claimed to be Jewish alleged that prison officials violated RLUIPA when
they refused to provide him with a kosher diet. While asserting this claim, however, the inmate
was purchasing non-kosher food from the prison commissary. That, the Eleventh Circuit held,
was sufficient to establish that the inmate’s claimed religious beliefs were not sincerely held.
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ii.
Substantial Burden
As to the second element of the prima facie case, Benning alleges that the
Defendants’ refusal to accommodate his requests in light of Board Rule 125-2-3-.04 and
the GDOC grooming policy effectuates a “substantial burden” on the exercise of his
religion. Board Rule 125-2-3-.04 states, in relevant part:
Inmates shall be furnished the basic necessities to maintain a high
standard of personal cleanliness. Necessities shall include, but not be
limited to, soap, razor blades or other shaving devices…. Each inmate
shall have a conventional haircut. Hair shall not be longer than three (3)
inches; shall not extend beyond a point which would reach the collar on an
ordinary shirt; and shall not cover any part of the ears or eyebrows.
Inmates may wear sideburns no longer than a point even with the bottom
of the ear canal. Mustaches are permitted, but shall not extend beyond
the edge of the mouth and must be kept neat and trimmed at all times.
Goatees, beards, and similar facial adornments are prohibited, unless
medically indicated.
(Doc. 71-17). Inmates with medical profiles are allowed to shave with clippers, which
are provided free of cost, and inmates may purchase a depilatory cream from the
inmate commissary. (Sumner Aff. ¶ 11). Neither the Board Rules nor GDOC policy
allows for a religious exception to the grooming policy. (Doc. 71-10 at 5).
Based on Board Rule 125-2-3-.04, the GDOC established Standard Operating
Procedure IIB01-0011, which mirrors, word for word, the relevant portion of the Board
Rule quoted above. (Doc. 71-19). Although the two rules or policies are identical, the
Court would be remiss if it did not point out that Benning is challenging the Board Rule,
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rather than the GDOC SOP.7 However, because the Board Rule and the SOP are
identical, and because both serve to establish the GDOC grooming policy, the Court is
satisfied that the two are, for purposes of this action, interchangeable.
The Eleventh Circuit has defined a “substantial burden” as being “significant
pressure which directly coerces the religious adherent to conform his or her behavior
accordingly.” Smith, 502 F.3d at 1277 (quotation marks and citation omitted). “Thus, a
substantial burden can result from pressure that tends to force adherents to forego
religious precepts or from pressure that mandates religious conduct.” Midrash
Sephardi, Inc., v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). “[T]o
constitute a ‘substantial burden’ on religious practice, the government’s action must be
‘more than … incidental’ and ‘must place more than an inconvenience on religious
exercise. That is, to constitute a substantial burden under RLUIPA, the governmental
action must significantly hamper one’s religious practice.” Smith, 502 F.3d at 1277
(quoting Midrash, 366 F.3d at 1227).
With regard to Benning’s earlock claim, the Defendants appear to accept that the
grooming policy imposes a substantial burden on the exercise of that specific tenet of
his religion. They argue, however, that Benning’s religion cannot be substantially
burdened by their refusal to allow earlocks because he is allowed to practice his religion
7
Indeed, this Court previously held that because the rule was established by the Board, as
opposed to the Department, of Corrections, Benning was not required to exhaust his
administrative remedies prior to filing suit. This is because the Board, which is comprised of
individuals appointed by the Governor, has the legal responsibility to adopt, establish, and
promulgate rules and regulations governing the operation of the GDOC. See O.C.G.A. § 42-2-6
and O.C.G.A. § 42-2-11. Thus, rules established by the Board constitute matters over which the
GDOC has no control and are therefore non-grievable.
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in other ways. This argument operates on the assumption that all aspects of Judaism
are interchangeable, and it effectively asks the Court to weigh the “centrality” of one
religious belief against another, a task RLUIPA expressly cautions against. Accordingly,
the Court concludes that Board Rule 125-2-3-.04 and its application to Benning
substantially burdens the exercise of his religious beliefs. Benning has therefore
established a prima facie case with respect to the earlock claim.
With regard to the depilatory claim, Benning’s argument is as follows: The Board
Rule requires inmates, with very limited exceptions, to remove all facial hair. The Board
Rule further states that inmates will be provided the basic necessities, including razors
and other shaving devices, needed to comply with the Rule. Thus, because a depilatory
is the only means for Benning to comply with the Board Rule without violating the tenets
of his faith, Benning argues, the Defendants must provide him with a depilatory free of
cost.
The Defendants deny that they should be required to purchase a depilatory for
Benning. First, citing the Supreme Court’s decision in Cutter v. Wilkinson, the
Defendants correctly note that “RLUIPA does not require a State to pay for an inmate’s
devotional accessories.” 544 U.S. at 720 n. 8. The Defendants claim that all religious
materials that are required for observance of an individual’s faith are donated to the
GDOC from religious organizations and then given to the inmate free of charge.8
(Horne Aff. ¶ 6). Then, the Defendants claim that a depilatory is not a religious or
devotional item, thus perhaps weakening their argument that, pursuant to Cutter, they
8
Jewish inmates are provided religious materials through the Aleph Institute, a non-profit
organization that provides support to Jewish prisoners throughout the United States.
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are not required to purchase or subsidize the purchase of a depilatory for Benning.
(Doc. 71-1 at 11). In the end, no party contends that a depilatory is a devotional
accessory.
The Defendants real argument is that they have neither hindered nor restricted
Benning from possessing, purchasing, or using a depilatory. Because the GDOC offers
two types of depilatories for sale to inmates at its inmate commissaries, the Defendants
contend, they have not obstructed Benning from complying with the dictates of his faith.
The question then becomes whether forcing Benning to pay for a depilatory or to
obtain it from outside sources amounts to a substantial burden on the exercise of his
religious beliefs. On this question, the Court concludes that Benning has not produced
sufficient evidence to create a genuine issue of material fact. With regard to his
financial status, Benning states in a conclusory fashion that he has “no source of
income other than charity, which [ ] is not guaranteed or assured.” (Doc. 81 at 6).
However, the Defendants have produced evidence that Benning spent a total of
$2,026.53, or on average $28.95 per month, at inmate commissaries from January 2005
until October 2010. (Doc. 71-2 ¶ 60-61; Doc. 71-13 ¶ 12-13). Whether these funds
were received via charitable donation or whether Benning has a prison job is not clear.
It is clear, however, at least insofar as Benning has admitted as much and has offered
no evidence in rebuttal, that he regularly purchases items from the inmate commissary,
thus suggesting that requiring him to purchase a depilatory would not “significantly
hamper” his religious practice. (Doc. 81-1 ¶ 60-61).
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In Patel v. U.S. Bureau of Prisons, 515 F.3d 807 (8th Cir. 2008), the Eighth
Circuit addressed a similar question when Patel, a prison inmate, was given the option
of purchasing meals from the inmate commissary that complied with his religiousmandated diet. “While this option places a financial burden upon [Patel],” the court
stated, “Patel has not shown that it is substantial. He only offers his single, vague and
unsupported statement about the potential [prohibitive] cost, and the record offers no
evidence regarding Patel’s financial status.” Patel, 515 F.3d at 814. The court found
Patel had not offered sufficient evidence to create a question of material fact sufficient
for a jury to find that his religious exercise had been substantially burdened. Id. (noting
also that the record did not establish that Patel had exhausted alternative means of
exercising his religious belief before seeking accommodation from the prison).
While it may seem to many, and to some courts,9 that requiring an inmate to
purchase his own food would work a substantial burden, the rationale of Patel is clearly
applicable here. Benning has failed to show that requiring him to purchase a depilatory
would impose more than an incidental burden upon the exercise of his religious beliefs.
Moreover, he has not shown, nor has he alleged, that he has pursued any alternative
means of acquiring a depilatory, such as through donations from the Aleph Institute, the
non-profit organization that provides support to Jewish prisoners throughout the United
States.
9
See, e.g., Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317-18 (10th Cir. 2010) (rejecting the
notion that an indigent plaintiff was required to exhaust alternative means of practicing his
religion by purchasing or obtaining donated kosher foods).
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Nor does it necessarily follow from the fact that the Defendants provide razors to
inmates that prison officials must provide a depilatory to Benning. Under RLUIPA, the
question is not whether Benning is being treated the same as other prisoners. Rather,
the question is whether the Defendants have substantially burdened the exercise of his
religious beliefs. Although a policy requiring prisoners to pay or receive by donation a
requested accommodation so they can comply with GDOC regulations without running
afoul of their religious beliefs might raise concerns in other situations, those concerns
are not present here. The burden at this stage of the RLUIPA analysis lies with
Benning, and he has not shown that the Defendants have denied him a reasonable
opportunity to practice his religion. Accordingly, Benning has failed to establish a prima
facie case with regard to the depilatory claim, and the Defendants are therefore entitled
to summary judgment.
iii.
Compelling Government Interests & Least Restrictive Means
Even though Benning has established a prima facie case with regard to his
earlock claim, it does not necessarily follow that he is entitled to summary judgment or
that he may proceed to trial. Rather, the burden of proof shifts to the Defendants to
demonstrate that the “imposition of the burden on that person is in furtherance of a
compelling government interest.” 42 U.S.C. § 2000cc-1(a). Context is important in the
application of the compelling government interest standard. Cutter, 544 U.S. at 723. In
adopting RLUIPA, Congress “anticipated that courts would apply the Act’s standard with
due deference to the experience and expertise of prison and jail administrators in
establishing necessary regulations and procedures to maintain good order, security and
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discipline, consistent with consideration of costs and limited resources.” Id. (quotation
marks and citation omitted). “At the same time, however, inadequately formulated
prison regulations and policies grounded on mere speculation, exaggerated fears, or
post-hoc rationalizations will not suffice to meet the act’s requirements.” 146 Cong.
Rec. S7774-01, *S7775 (July 27, 2000) (joint statement of Sens. Hatch and Kennedy on
RLUIPA) (quotation marks omitted).
In addition to identifying compelling government interests, the Defendants must
establish that their Rule and accompanying decisions are the least restrictive means of
furthering those interests. 42 U.S.C. § 2000cc-1(a). 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 adopting the challenged practice.”
Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); Spratt v. R.I. Dep’t of Corr.,
482 F.3d 33, 40-41 (1st Cir. 2007) (reversing summary judgment in favor of the
defendant because it failed to show that a blanket ban on all inmate preaching was the
least restrictive means available to achieve its interest).
As noted, context is critical and it is important to make clear exactly what
Benning contends. The grooming policy allows inmates to grow sideburns to the bottom
of the ear canal. Earlocks are essentially sideburns that extend “as far as below the
ear, where the cheeks widen.” Thus, the primary point of disagreement between the
parties is the area between the bottom of Benning’s ear canal and the bottom of his ear
lobe, an area estimated, based on discussion and observation at oral argument, to be
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less than one half inch in length. The Defendants’ alleged justification for seeking to
regulate this area must be considered in this light.
The Defendants have identified several compelling interests they claim are
furthered by strict adherence to the GDOC grooming policy and their refusal to allow
Benning to grow his earlocks, including security, safety, and hygiene. Although it is well
established that security and safety, and perhaps even hygiene, are compelling
government interests, the Defendants must do more than simply offer conclusory
statements that a limitation on religious freedom is required for security, health, or
safety in order to satisfy their burden. See Cutter, 544 U.S. at 722-23.
Here, the Defendants argue that the grooming policy furthers the Defendants’
interest in security by aiding prison officials’ ability to easily identify inmates. According
to Steve Upton, the GDOC Facilities Operations Manager, “it is essential that every
inmate be positively identified at all times. An inmate’s positive identification is essential
(1) to monitor disciplinary infractions, (2) to ensure the correct inmates are transferred to
a different prison or released, and (3) to assist in the prompt recapture of escapees.”
(Upton Aff. ¶ 9-12). Upton testified that the grooming policy helps both in preventing
inmates from hiding contraband and in achieving uniformity in dress and grooming,
which he claims reduces gang activity. (Upton Aff. ¶ 17-18). Finally, the Defendants
argue, the grooming policy promotes cleanliness and hygiene and reduces the risk of
spreading head lice or other infectious disease. (Upton Aff. ¶ 21). According to Upton,
“eliminating the Department of Corrections grooming policy [would not] adequately
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address any of the[se] security concerns … but would instead make the prisons and the
general public less safe.” (Upton Aff. ¶ 23).
The manner in which the Defendants have asserted the governmental interests
they seek to protect highlights an important, yet often overlooked, issue in RLUIPA
cases. The Defendants mostly argue what compelling interests they have generally in
the implementation of a grooming policy in their prisons. By its express language,
however, RLUIPA states that prisons cannot “impose a substantial burden on the
religious exercise of a person … even if the burden results from a rule of general
applicability, unless the government demonstrates that imposition of the burden on that
person,” i.e., Benning, furthers a compelling government interest by the least restrictive
means. 42 U.S.C. § 2000cc-1(a). RLUIPA therefore contemplates that claims brought
under section 3 be analyzed similarly to “as-applied” constitutional challenges rather
than facial challenges. See Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 430-31 (2006) (concluding that RFRA, RLUIPA’s predecessor,
requires individualized review); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 39 (1st Cir.
2007) (finding that the prison “must … establish that prison security is furthered by
barring [the individual] from engaging in” the disputed conduct); Washington v. Klem,
497 F.3d 272, 285 (3d Cir. 2007) (finding the appropriate inquiry to be whether the
government action is the least restrictive means as applied to the individual); Koger v.
Bryan, 523 F.3d 789, 796, 800 (7th Cir. 2008) (noting that RLUIPA, unlike the First
Amendment, requires individualized review). Thus, the Defendants must not only justify
the Board Rule and accompanying grooming policy as a whole, but they must also
justify their refusal to grant Benning a religious-based exception.
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The Court concludes that the Defendants have not met their burden of
establishing that their refusal to allow Benning to grow his earlocks is the least
restrictive means of furthering their interests in security, safety, and hygiene. The
Defendants cited justifications, in the form of affidavit testimony from Steve Upton, note
only the broad interests served by the GDOC grooming policy in general. They do not
make the necessary individualized review required by RLUIPA. General citations to
other decisions from this and other circuits for the proposition that security is a
compelling government interest, without more, do not satisfy the Defendants’ burden.10
Although persuasive and instructive, none of the cases cited by the Defendants
address the issues encountered by Georgia prisons when confronted with a Jewish
inmate’s request to grow earlocks. While a request to grow a beard or long hair is,
perhaps, similar to a request to grow earlocks, the reasoning applicable to a challenge
concerning long hair or beards may not be applicable to a challenge concerning
earlocks. See Odneal v. Pierce, 324 Fed. Appx. 297, 301 (5th Cir. 2009) (noting that
the differences between long hair and quarter inch beards altered the RLUIPA analysis
and that the reasoning concerning one is not necessarily dispositive of the other). This
lack of clear precedent only amplifies the Defendants’ failure to give Benning’s
10
For example, Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996), which is now over fifteen
years old, dealt with a Rastafarian inmate’s challenge under the RFRA to the hair-length
restrictions imposed by a maximum security facility within the Florida Department of
Corrections.
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requested accommodation the narrowly tailored, individualized review it deserves.11
Thus, while the Defendants undoubtedly have a compelling interest in the safety and
security of their prisons, they have not offered a sufficient basis to justify their concern
that these interests will be compromised if they accommodate Benning’s request.
Indeed, they do not specifically address at all why Benning’s earlocks will threaten their
proposed governmental interests.
For the same reasons, the Defendants have not established that a uniform
hairstyle policy for all GDOC inmates, with no allowance for religious-based exceptions,
is the least restrictive means to further their interests in security, safety, and hygiene.
The Defendants have addressed the least restrictive means test with little more than a
citation to Harris v. Chapman and the cursory statement that “it is well settled that the
State’s shaving policy furthers a compelling interest in security and uses the least
restrictive method to promote this compelling interest.” (Doc. 71-1 at 18; Doc. 79 at 17).
The Defendants do not purport to have considered the efficacy of any less restrictive
measures, nor have they explained, other than by citing to the same governmental
interests, why inmates with certain medical profiles are exempted from compliance with
the grooming policy but no religious exemptions are allowed. Moreover, the Court notes
merely by way of example that the Federal Bureau of Prisons permits inmates to select
11
At one point, the Defendants even state that “the growth of even a short beard would obscure
facial features and makes hundreds of decisions that correctional officials have to make each
day more difficult. When the prison staff must constantly be aware of the status of inmates
beard length, certainly, the job of identification would be made more difficult.” (Doc. 71-1 at 16).
Benning has not requested to grow a beard. The Defendants’ reference thereto was likely an
error brought about by the fact that the majority of RLUIPA cases dealing with prison grooming
policies have dealt with Muslim inmates’ requests to grow beards and Native American inmates’
requests to grow long hair.
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the hairstyle of his or her personal choice, with no restrictions on either length or facial
hair, so long as the hairstyle is kept “neat and clean” and does not interfere with food
service or increase the likelihood of a work injury. See Federal Bureau of Prisons Policy
No. 5230.05. The Court is not suggesting that the existence of a less restrictive policy
in another prison is conclusive proof that the Defendants’ policy is not the least
restrictive means, but it does suggest that the Defendants have failed to seriously
consider any possible alternatives.12
In short, the Defendants have once again failed to meet their burden, even in
light of this Court’s nearly identical ruling on the Defendants’ motion to dismiss that they
“certainly ha[d] not met [their] burden…, which requires more than mere assertions or
conclusory statements that there is no less restrictive means available.” (Doc. 22 at 7).
The Defendants must “demonstrate, and not just assert, that the rule at issue is the
least restrictive means of achieving a compelling governmental interest.” O’Bryan v.
Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (emphasis in original). The
Defendants in this case have failed to do so.
Although the Defendants have clearly not met their burden and thus they are not
entitled to summary judgment on this issue, neither is Benning. He likely has
established that the Defendants’ blanket refusal to allow him to grow hair at his temples
to the bottom of his ear lobe is not the least restrictive means to serve the Defendants’
12
The Defendants did consider Benning’s proposed amendment to Board Rule 125-2-3-.04,
which proposed abolishing the GDOC grooming policy in its entirety. (Doc. 71-21). The Court
agrees with the Defendants that Benning’s proposed alternative is likely unworkable, but the
Court is not convinced that the Defendants’ duty to consider possible alternatives starts and
stops with the lone alternative suggested by Benning.
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interests. If Benning were seeking damages only, he would likely be entitled to
summary judgment on the issue of liability. However, he has requested injunctive relief,
and the record is not sufficient to allow the Court to determine the extent to which
Benning can grow his earlocks without compromising the Defendants’ legitimate
interests.13 Accordingly, neither party is entitled to summary judgment.
III. Conclusion
For the reasons set forth above, the Defendants’ Motion for Summary Judgment
is granted in part and denied in part. With regard to the depilatory claim, the
Defendants’ Motion is granted, and with regard to the earlock claim, their Motion is
denied. Benning’s Motion for Summary Judgment is denied. This matter will be
scheduled for a non-jury trial in accordance with this Order.
SO ORDERED, this 13th day of January, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
13
Indeed, at oral argument, Benning conceded that there may be a point at which the
Defendants would have an interest in regulating the length of his earlocks.
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