Shabazz v. Dixon

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, Secretary,

Florida Department of

Corrections,

Defendant.

OPINION AND ORDER

This matter is before the Court on Plaintiff Abdul Hakeen

Jahmal Naseer Shabazz’s (“Shabazz”) Fifth Amended Complaint

(“FAC”) (Doc. #178), the operative pleading. The FAC sets forth

a single count alleging that the portion of the current Florida

Department of Corrections (“FDOC”) grooming policy prohibiting

male inmates from growing beards longer than half an inch

unlawfully interferes with his statutory right under the Religious

Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§

2000cc-2000cc-5, to practice his Sunni Muslim religion. The FAC

seeks injunctive and declaratory relief, but no monetary relief.

Specifically, the FAC seeks a declaration that enforcement of this

portion of the FDOC grooming policy as applied to Shabazz violates

his rights under the RLUIPA, and an injunction (a) barring the

FDOC from enforcing the grooming policy against Shabazz, (b)

compelling the FDOC to lift all disciplinary sanctions that have

been imposed on Shabazz as a direct consequence of his non-

compliance with the grooming policy, and (c) requiring the FDOC to

expunge Shabazz’s record of any reference to his having engaged in

violations of the grooming policy. (Doc. #178, ¶6.)

I.

While this case has been pending for approximately six years,

only a portion of the procedural history is relevant. Shabazz

filed a pro se Complaint (Doc. #1) on September 14, 2017.

Eventually, the Court requested counsel for Shabazz from local bar

associations (Doc. #125), and an attorney entered his appearance

(Doc. #127) and filed a Fourth Amended Complaint (Doc. #138). The

Fourth Amended Complaint asserted that Shabazz, as an observant

Sunni Muslim, was required to “grow at least a fist-length beard”

(Doc. # 138, ¶4). Counsel also filed a Motion for Temporary

Restraining Order (Doc. #141), which the Court granted on July 10,

2020. The Temporary Restraining Order (“TRO”) (Doc. # 142)

enjoined FDOC officials from enforcing the grooming policy against

Shabazz to the extent Shabazz was permitted to maintain a fist-

length beard of at least four inches and prohibited the FDOC from

disciplining Shabazz for violating the grooming policy while the

TRO was in effect.

The TRO expired on July 24, 2020, and on that date the Court

granted Plaintiff’s Motion for a Preliminary Injunction (Doc.

#141). (Docs. ##152, 153.) The Court enjoined FDOC officials

from enforcing the grooming policy against Shabazz to the extent

Shabazz was permitted to maintain a fist-length beard of at least

four inches and the FDOC was prohibited from disciplining Shabazz

for violating the grooming policy while the Preliminary Injunction

Order was in effect. (Doc. #153.)

Through counsel, Shabazz filed his operative Fifth Amended

Complaint and Demand for Jury Trial (Doc. #178) (“FAC”) on August

11, 2021. The FAC alleged that Shabazz’s faith requires him to

“trim his mustache and allow his beard to grow freely” (Doc. #178,

¶10). The FDOC filed an Answer and Affirmative Defenses (Doc.

#179) to the FAC. The Court denied Dixon’s Motion for Summary

Judgment. (Docs. ##188, 199.) In due course the parties filed a

motion to withdraw jury demand, which the Court granted. (Doc.

#206.)

The Court conducted a two-day bench trial on November 30 and

December 1, 2022. The Court received various exhibits and heard

testimony from plaintiff Shabazz, Ronald Angelone, Carl Kirkland,

Jr., Lance Neff, and John Clark. The parties filed post-trial

proposed findings and legal memoranda. (Docs. ##226, 227.)

The Court now makes the findings of facts and conclusions of

law set forth below.

II.

A. The Witnesses and Their Credibility

First, some observations concerning the credibility of the

witnesses. Shabazz testified about his Sunni Muslim faith and the

requirement that men “clip the mustache and let the beard flow.”

Shabazz believes it is a sin to cut his beard, except to remove

dead hairs. His faith also dictates that he prepare for prayer

five times a day, a process that includes washing his beard.

Shabazz has allowed his beard to grow untrimmed since the Court’s

July 24, 2020 preliminary injunction and is not aware of any

problems within the FDOC caused by his beard. The Court finds

Shabazz credible on these topics.

Three witnesses testified for defendant Ricky Dixon, the

Secretary of the FDOC. Ron Angelone (“Angelone”) appeared as an

expert witness. Angelone worked in corrections for decades as an

officer, warden, and administrator. As the former director of

Virginia’s prison system, he addressed the issue of inmate beards

by implementing a policy that assigned all inmates who grew beards

to administrative segregation.1 Angelone did not have experience

in prisons or prison systems that allowed inmates in the general

population to grow beards, or knowledge or experience relating

specifically to Florida prisons. The Court finds that Angelone

1 In the FDOC, administrative segregation is roughly

comparable to being in “jail” while incarcerated.

is qualified as an expert in prison administration, but not in

FDOC polices or in strategies to mitigate risks associated with

beards in prisons. The Court found him to be credible in the

sense that he believes the opinions he stated, but the Court is

not convinced by many of those opinions.

Dixon’s other two witnesses are FDOC employees. Carl

Kirkland, Jr. (“Kirkland”) is the Deputy Director of Institutional

Operations, and Lance Neff (“Neff”) is the General Counsel. Both

testified about the FDOC’s rules and policies, finances, and

staffing issues, and they both spoke about the reasoning behind

the FDOC grooming policy. The Court found Kirkland and Neff

credible on these topics. Neither claimed to have experience in

prisons that allow beards generally or as a religious

accommodation. Therefore, the Court found their testimony about

the risks of beards in prison and the strategies to mitigate those

risks less credible because the testimony was largely speculative

and not supported by the limited experience gained from the

approximately three years that Shabazz has had his beard while

incarcerated.

Shabazz called John Clark (“Clark”) as an expert rebuttal

witness. Clark spent decades working in state and federal

corrections as an officer, warden, and administrator, including

six years as the Assistant Director of the federal Bureau of

Prisons (“BOP”). He worked at the BOP when it removed restrictions

on prisoners’ beard and hair length. Clark testified about the

concerns raised by Dixon’s witnesses regarding beards in prisons

and best practices for addressing those concerns (or in RLUIPA

parlance, less restrictive means). Clark was the only witness

with experience in a prison system that allows beards. The Court

finds his testimony on these topics more credible than Dixon’s

witnesses. Clark is not, and did not purport to be, an expert on

FDOC policies and practices.

B. Findings of Fact

The FDOC operates a large prison system currently housing

over 80,000 inmates, many of whom have a history of violence.

(Doc. #217, pp. 6-7.) Almost 65% of the FDOC budget is spent on

security and institutional operations, and there is a high vacancy

rate among correctional officers of various ranks. (Id. at 7.)

As may be expected, the operation of such a system is often

challenging.

For approximately the last 45 years, plaintiff Shabazz has

been one of the inmates in the custody of the FDOC. At the time

of trial, Shabazz was 73 years old and serving a life sentence for

robbery with a deadly weapon. Shabazz has a lengthy disciplinary

history with the FDOC, although most violations occurred more than

ten years ago. According to Defendant’s Exhibit 4, Shabazz has

been the subject of 54 disciplinary actions2, including assaults,

nine instances of possession of contraband or stolen goods, and an

escape attempt. Only three of the disciplinary actions occurred

within the last decade.

During his imprisonment Shabazz became a Sunni Muslim, and he

has been a devout practitioner for a number of years. The parties

agree that a fundamental requirement of Shabazz’s faith is that he

allow his beard to freely grow. (Doc. #217, p. 2.) Shabazz

testified that his religion requires him to clip his mustache and

let his beard grow freely. Shabazz has been seeking to grow a

beard for decades, and while the FDOC has not questioned the

sincerity of his religious beliefs, it has repeatedly denied his

requests. See, e.g., Shabazz v. Barnaukas, 600 F. Supp. 712, 715

(M.D. Fla. 1985), aff’d, 790 F.2d 1536, 1537 (11th Cir. 1986)

(Defendants stipulated Shabazz’s faith is sincere and growing a

beard is deeply rooted in religious beliefs.) The FDOC continues

to agree that Shabazz’s “beliefs are sincere that he must have an

untrimmed beard” and that the grooming policy “is a substantial

burden on the exercise of Plaintiff’s belief that he needs an

untrimmed beard.” (Doc. #217, p. 9, ¶¶20-21.)

2 The Revised Joint Final Pretrial Statement states there were

59 instances of misconduct. (Doc. #217, p. 7.) The difference

is immaterial.

Florida Administrative Code Chapter 33-602.101 sets out the

FDOC’s grooming rules. While the grooming rules regarding facial

hair for male inmates have changed over the years3, the relevant

current provision 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). While this chapter of the Code

includes other rules which limit inmates’ grooming options, the

Court will refer to the above-quoted sentence as the “grooming

policy” throughout this Opinion and Order. Shabazz only

challenges the half-inch beard restriction.

There is currently one other prisoner in the FDOC with an

exemption from the grooming policy. Durrell Sims won the right

to grow a fist-length beard in Sims v. Inch, 400 F. Supp. 3d 1272

(N.D. Fla. 2019). The Eleventh Circuit recently upheld that

decision in Sims v. Sec’y, Dep’t of Corr., --- F.4th ----, 2023 WL

4858535 (11th Cir. 2023).

The TRO of July 10, 2020, and the Preliminary Injunction of

July 24, 2020, allowed Shabazz to grow a fist-length beard while

this case progressed. A fist-length beard was the requested

relief in the Fourth Amended Complaint, but the FAC modified the

requested accommodation to a beard of unrestricted length.

Shabazz asserts that the request for a fist-length beard had been

3 At one time the rule prohibited all beards. It was amended

in 2015 to allow a half-inch beard. (Doc. #188-1, ¶5.)

the result of a miscommunication between himself and his attorney.

In any event, the parties have agreed, and the testimony at trial

indicated, that the FDOC has allowed Shabazz to grow an untrimmed

beard since July 10, 2020. (Doc. #217, pp. 7-8.) Shabazz

testified he has not trimmed his beard since the preliminary

injunction became effective, except to remove dead hairs. A

photograph of Shabazz’s beard as it existed at the time of trial,

Plaintiff’s Exhibit 8, depicts a beard of approximately four

inches. Shabazz testified he expects his beard to grow thicker,

but not longer. The Court suspects it will do both.

Additional facts will be set forth below as necessary to

address specific issues.

C. Disputed Trial Issues

Shabazz seeks to be allowed to grow a beard of unrestricted

length and asserts that the grooming policy as applied to him

violates his rights under the RLUIPA. (Doc. #217, pp. 2-3.)

Secretary Dixon asserts that Shabazz has failed to exhaust his

administrative remedies, and that the FDOC’s grooming policy is

both in furtherance of its compelling interests of security and

safety, hygiene and health, and cost control and program

administration, and is the least restrictive means to further such

compelling interests. (Id. at 3.) Shabazz agrees that the

grooming policy is in furtherance of the FDOC’s interests and that

all three interests are compelling interests. (Id. at 9, ¶23.)

Further, the parties agree that there are two primary issues in

this case: (1) whether Shabazz sufficiently exhausted his

administrative remedies, as required by the RLUIPA, and if so, (2)

whether FDOC’s grooming policy as applied to Shabazz violates his

rights under the RLUIPA. (Id. at 2.)

III.

A. The RLUIPA

In 2000 Congress enacted the RLUIPA which, among other things,

prohibits governments from substantially burdening a prisoner’s

exercise of his or her religion:

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

(2) is the least restrictive means of furthering that

compelling governmental interest.

42 U.S.C. § 2000cc-1(a). This sets out a burden-shifting

framework. First, plaintiff must show that a government rule,

regulation, practice, or policy substantially burdens his exercise

of religion. If this showing is made, defendant has the burden

of proving that the challenged directive is the “least restrictive

means of furthering a compelling governmental interest.” Ramirez

v. Collier, ––– U.S. ––––, 142 S. Ct. 1264, 1277, 212 L. Ed. 2d

262 (2022); Dorman v. Aronofsky, 36 F.4th 1306, 1313 (11th Cir.

2022). To satisfy the least-restrictive-means test of the RLUIPA,

the FDOC is required “to prove that petitioner's proposed

alternatives would not sufficiently serve its security interests.”

Smith v. Owens, 13 F.4th 1319, 1326–27 (11th Cir. 2021).

The RLUIPA was passed under Congress's Spending Power, so

only those who receive federal funding are liable for violating

it. Smith v. Allen, 502 F.3d 1255, 1272 (11th Cir. 2007),

overruled in part on other grounds by Hoever v. Marks, 993 F.3d

1353 (11th Cir. 2021) (en banc). Only institutions that receive

federal funds—not the individual employees of those institutions—

are subject to liability. Id. at 1275. The parties have

stipulated that the FDOC receives federal funding and is subject

to the obligations imposed by the RLUIPA. (Doc. # 217, p. 6.)

The RLUIPA provides that plaintiff, if successful, may obtain

“appropriate relief against a government,” Smith, 502 F.3d at 1269

(citing 42 U.S.C. § 2000cc-2(a)), which includes both monetary and

injunctive relief. Id. at 1271.

Congress intended the RLUIPA’s protection of religious

liberty to be expansive. It defined “religious exercise” 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). 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.” § 2000cc-

3(g). “The RLUIPA provides greater religious protection than the

First Amendment.” Dorman v. Aronofsky, 36 F.4th 1306, 1313 (11th

Cir. 2022) (citations omitted.) Additionally, 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).

Under the RLUIPA’s burden-shifting framework, Shabazz must

show that (1) his relevant religious exercise is “grounded in a

sincerely held religious belief” and (2) the challenged government

policy “substantially burden[s] that exercise” by forcing the

plaintiff “to ‘engage in conduct that seriously violates [his]

religious beliefs.’” Holt v. Hobbs, 574 U.S. 352, 361 (2015)

(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720

(2014)). The burden then shifts to the government to show that

its action or policy is (1) in furtherance of a compelling

governmental interest; and (2) the least restrictive means of

furthering that interest. Id. at 362. “The least-restrictive-

means standard is 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). While courts

should respect the expertise of prison officials “in running

prisons and evaluating the likely effects of altering prison

rules,” the RLUIPA does not permit “unquestioning deference.” Id.

at 365.

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

test is satisfied through application of the challenged law” to

Shabazz. See 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.

See id.

B. Permanent Injunction

In addition to declaratory relief, Shabazz seeks a permanent

injunction against the FDOC. The standard in the Eleventh Circuit

is well-established.

To obtain a permanent injunction, the moving

party must show that (1) it has suffered

irreparable harm; (2) remedies at law will not

provide adequate compensation for the injury;

(3) on balance, an equitable remedy is

warranted; and (4) a permanent injunction will

not disserve the public interest. Angel Flight

of Ga., Inc. v. Angel Flight Am., Inc., 522

F.3d 1200, 1208 (11th Cir. 2008). The district

court can exercise “a range of choice” when

deciding whether to grant a permanent

injunction, so long as it does not misapply

legal standards or rely on clearly erroneous

facts. Broadcast Music, Inc. v. Evie's Tavern

Ellenton, Inc., 772 F.3d 1254, 1257 (11th Cir.

2014) (quotation omitted).

W. Virginia by & through Morrisey v. U.S. Dep't of the Treasury,

59 F.4th 1124, 1148–49 (11th Cir. 2023).

C. Exhaustion of Administrative Remedies

Dixon first argues that Shabazz cannot obtain relief on the

merits because he failed to exhaust his administrative remedies.

The Prison Litigation Reform Act (“PLRA”) prohibits prisoners from

bringing a civil action “until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). It is undisputed

that Shabazz exhausted the FDOC’s grievance procedures, but Dixon

argues Shabazz was also required to challenge the grooming policy

by filing a petition to initiate a rulemaking change under

Florida’s Administrative Procedure Act. Florida Statutes § 120.54

allows “[a]ny person regulated by an agency or having substantial

interest in an agency rule” to “petition an agency to adopt, amend,

or repeal a rule.”

But Shabazz is not seeking to alter an FDOC rule. The FAC

makes clear that Shabazz seeks an exemption from—not a change of—

the grooming policy. (See Doc. #178 at 6-7.) Shabazz reiterated

this point at trial. Additionally, the Eleventh Circuit has

recently rejected this argument in Sims v. Sec’y, Dep’t of Corr.,

--- F.4th ----, 2023 WL 4858535 (11th Cir. 2023). After examining

the FDOC’s grievance policies, the Eleventh Circuit held that

“prisoners need not file a rulemaking petition to be entitled to

proceed with judicial remedies.” Sims, 2023 WL 4858535, at *4.

The Court finds that Shabazz’s exhaustion of the FDOC grievance

procedures satisfied the PLRA’s pre-suit requirements.

D. Merits of Shabazz’s RLUIPA Claim

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 enforcement of the grooming

policy is the least restrictive means of furthering compelling

governmental interests. For his part, Shabazz does not contest

that the grooming policy furthers compelling governmental

interests. Thus, the critical question in this case is whether

applying the grooming policy to prevent Shabazz from maintaining

an untrimmed beard is the least restrictive means of furthering

the FDOC’s 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

compelling interests. See Smith v. Owens, 848 F.3d 975, 980 (11th

Cir. 2017).

Dixon identifies three compelling governmental interests

served by the grooming policy. The Court discusses each in turn.

(1) Security and Safety

Dixon asserts that the grooming policy serves security and

safety interests because inmates can use untrimmed beards to hide

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

blades—and can shave a beard after an escape to avoid

identification. Dixon’s witnesses also claimed growing a beard

is unsafe for the inmate because the beard can be grabbed in a

fight and might cause other inmates who are not allowed to grow

such a beard to become jealous.

Clark reports that other prison systems have successfully

implemented alternative means of serving these safety and security

interests while allowing inmates to grow untrimmed beards. First,

BOP officers search beards as part of routine pat-downs by

requiring prisoners to run their fingers vigorously through their

beards. For long beards, inmates must also separate the beard and

lift it so the officer can see the inmate’s neck. Such a search

can be conducted in a few seconds. Officers can also waive metal

detection wands over a beard. Kirkland testified the FDOC is

using both methods to search the beards of Shabazz and Sims, and

no witness identified any ongoing problems with such procedures.

These search methods can satisfy—and apparently are satisfying—

the FDOC’s interest in preventing Shabazz from hiding contraband

in his beard.

Like the defendant in Holt, Dixon fails to address an

additional point raised by Shabazz. Clark testified that a beard

is a “lousy” place to hide contraband—particularly if prison

officials search it regularly—because a beard is always exposed.

As the Supreme Court recognized in Holt, an inmate’s clothing and

shoes are much more plausible places to hide contraband, see Holt,

574 U.S. at 367, but the FDOC obviously does not require inmates

to go about naked or barefoot. The FDOC has developed policies

and practices to address the risk of contraband in clothing and

shoes, which suggests they can do the same with Shabazz’s beard.

Clark testified that routinely searching beards is an effective

deterrent against hiding contraband in beards. Dixon presents no

convincing reason why such a deterrent would not work on Shabazz.

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 BOP’s practice of taking

and retaining photos of inmates at regular intervals and any time

there is a significant change to an inmate’s appearance.

According to Kirkland, the FDOC also has a policy of photographing

a prisoner regularly (every five years) and any time his appearance

changes significantly. The FDOC is therefore already implementing

a less restrictive means to ensure Shabazz can be identified even

if he trims or shaves his beard. Additionally, the rule allowing

all inmates to grow a half-inch beard undermines the FDOC’s stated

identification concern. A shorter beard “could also be shaved off

at a moment’s notice, but the Department apparently does not think

that this possibility raises a serious security concern.” Holt,

574 U.S. at 367.

Dixon’s remaining safety concerns are simply speculative.

Clark testified that beards do not make prisoners less safe in the

BOP, and he opined that a prisoner who won an accommodation through

a legal action would more likely engender respect from other

inmates than jealousy. Shabazz testified that no inmate has tried

to grab his beard since the preliminary injunction allowed its

growth, nor has any inmate expressed jealousy. Dixon presented

no testimony to the contrary, or any evidence of safety-related

incidents concerning Shabazz during the approximate three years in

which Shabazz has worn an untrimmed beard.

The Court finds that Dixon has not established that limiting

Shabazz’s beard to half an inch is the least restrictive means of

satisfying its compelling security or safety interests.

(2) Health and Hygiene

The grooming policy also serves compelling hygiene and health

interests. Dixon argues FDOC officers would need to be near

Shabazz to search his untrimmed beard, which increases the risk of

Shabazz catching or spreading COVID-19.

But the beard search techniques described by Kirkland and

Clark is less risky than a search of an inmate’s mouth, which

Kirkland explained is already part of the FDOC’s practices: a

prison official looks into an inmate’s mouth—perhaps with the aid

of a flashlight—and instructs the inmate to move his tongue around

and pull his cheeks away from his gums. A mouth search requires

an officer to get closer to an inmate’s face than a beard search.

Dixon also argues beards can make it difficult to properly

wear a face mask, which may reduce its effectiveness. But the

FDOC no longer requires inmates to wear masks, and Shabazz does

not wear one.

As for hygiene, the parties agree that Shabazz has maintained

a clean and hygienic beard since 2020, and that the FDOC’s hygiene

requirements would apply to Shabazz regardless of the outcome of

this case.

The Court finds that Dixon has not established that limiting

Shabazz’s beard to half an inch is the less restrictive means of

satisfying its compelling health and hygiene interests.

(3) Budgetary Concerns

FDOC has a compelling interest in conserving its limited

resources. Kirkland testified generally about FDOC’s budget and

expressed concern that a change to the grooming policy could be

costly due to the equipment (like combs and picks) and time needed

to search long beards. But a change to the grooming policy is not

at issue here, and Kirkland did not estimate the cost of granting

Shabazz an individual accommodation based on his religion. Nor

did any other witness.

Kirkland testified that currently FDOC chaplains summarily

reject all requests for religious accommodations to the grooming

policy. As such, it would be much more costly if chaplains were

to consider each request individually to test the sincerity of

each prisoner’s religious belief. But Neff testified that

sincerity testing can be an effective way to mitigate costs. For

example, when the FDOC started offering Kosher meals, about ten

thousand inmates initially requested them. Neff claimed sincerity

testing brought the number down to around four thousand. In any

event, the cost of reviewing other inmates’ accommodation requests

is not a reason to deny Shabazz an exemption based on his religion.

Neff also expressed concern about a copycat effect. He

expects other inmates to request an exception to the grooming

policy if Shabazz wins this case. But he offered no evidence that

Durrell Sims’ success in his case or the preliminary injunction in

this case led to an increase in accommodation requests. And the

Supreme Court rejected this kind of argument: “At bottom, this

argument is but another formulation of the ‘classic rejoinder of

bureaucrats throughout history: If I make an exception for you,

I’ll have to make one for everybody, so no exceptions.’” Holt,

574 U.S. at 368 (quoting Gonzalez v. O Centro Espirita Beneficente

Uniado Do Vegetal, 546 U.S. 418, 436 (2006)).

The broad costs concerns raised by Kirkland and Neff are not

relevant because Shabazz is not requesting a rule change. Shabazz

has been growing an untrimmed beard for more than three years, and

Dixon presented no evidence that the FDOC has incurred any costs

as a result. Nor did any witness estimate the future cost of

granting Shabazz the accommodation he requests. The only cost

seems to be the time it takes to search Shabazz’s beard. Kirkland

testified that inmates are searched about six times a day, and

that a beard adds five to six second to the search. According to

Clark, a beard search takes about two seconds. But accepting

Kirkland’s estimate, searching Shabazz’s beard takes 30-36 seconds

per day.

The Court finds that Dixon has not established that limiting

Shabazz’s beard to half an inch is the least restrictive means of

satisfying its compelling cost interests. 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).

(4) Additional Considerations

The undisputed evidence established that most prison systems

in this country allow their inmates to grow beards with less

restrictions in length than the FDOC. While this does not compel

Dixon to conform to the majority view, the Supreme Court has noted:

“While not necessarily controlling, the policies

followed at other well-run institutions would be

relevant to a determination of the need for a particular

type of restriction.” Procunier v. Martinez, 416 U.S.

396, 414, n.14, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974).

That so many other prisons allow inmates to grow beards

while ensuring prison safety and security suggests that

the Department could satisfy its security concerns

through a means less restrictive than denying petitioner

the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant

a particular religious exemption as soon as a few other

jurisdictions do so. But when so many prisons offer an

accommodation, a prison must, at a minimum, offer

persuasive reasons why it believes that it must take a

different course, and the Department failed to make that

showing here.

Holt, 574 U.S. 352, 368-69 (citation to the record omitted).

Finally, Dixon argues a court order in Shabazz’s favor would

make the FDOC unable to address any future problems that may arise

from Shabazz’s right to grow a beard. The Holt Court refuted this

concern. It stated, “if an institution suspects that an inmate

is using religious activity to cloak illicit conduct, ‘prison

officials may appropriately question whether a prisoner’s

religiosity, asserted as the basis for a requested accommodation,

is authentic.’” Id. at 369 (quoting Cutter v. Wilkinson, 544 U.S.

709, 725 n. 13 (2005)). And even if a claimant’s religious belief

is sincere, as Dixon concedes here, “an institution might be

entitled to withdraw an accommodation if the claimant abuses the

exemption in a manner that undermines the prison’s compelling

interests.” Id.

(5) Permanent Injunction

Shabazz seeks a three-part permanent injunction which (a)

bars the FDOC from enforcing the grooming policy against Shabazz,

(b) compels the FDOC to lift all disciplinary sanctions that have

been imposed on Shabazz as a direct consequence of his non-

compliance with the grooming policy, and (c) requires the FDOC to

expunge Shabazz’s record of any reference to his having engaged in

violations of the grooming policy. (Doc. #178, ¶6.) Only the

first portion is warranted.

For the reasons set forth above, Shabazz is entitled to a

declaratory judgment that he be allowed to grow an untrimmed beard.

Shabazz has also satisfied all the elements required for a

permanent injunction barring the FDOC from enforcing the grooming

policy against Shabazz. But Shabazz may not use this case to

collaterally attack prior disciplinary actions or to seek

expungement of disciplinary records. Federal courts are not

appellate venues for prison disciplinary proceedings. In Florida,

the proper remedy for seeking review of a prison disciplinary

proceeding is a writ of mandamus from a state court. Woullard v.

Bishop, 734 So. 2d 1151 (1st Dist. Ct. App. Fla. 1999).

Furthermore, a successful § 1983 plaintiff is not automatically

entitled to expungement of prior prison disciplinary records

relating to his claim. See Wolff v. McDonnell, 418 U.S. 539, 573-

74 (1974) (refusing to apply due process to prison disciplinary

proceedings retroactively so as to require expungement of prison

records). While expungement might be appropriate in some cases,

Shabazz has not identified any particular disciplinary records

that violate his civil rights.

(6) Conclusion

Shabazz has exhausted his administrative remedies because he

was not seeking, and was not required to seek, a rule change.

Dixon has not shown that applying the grooming policy to Shabazz,

and denying his request for an exemption from the grooming policy,

is the least restrictive means to further any of the three

compelling governmental interests. Shabazz is entitled to the

declaratory judgment set forth below and a part of his requested

permanent injunction.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

(1) The Court DECLARES that Shabazz is entitled to the

following accommodation under the RLUIPA: the FDOC must

allow Shabazz to grow a beard unrestricted in length and

may not enforce the two-inch beard rule against Shabazz.

This Declaration does not require an alteration to other

FDOC rules, nor does it entitle Shabazz to an exemption

from any other part of the FDOC’s rules, or from

discipline if he uses his beard to violate FDOC rules.

(2) The request for a permanent injunction is GRANTED in

part, and the appropriate Permanent Injunction is set

forth in a separate document.

(3) The Clerk shall enter judgment and close the file.

DONE and ORDERED at Fort Myers, Florida, this 14th day

of August 2023.

/ — Ap f

AAA) Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

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