holding that ‘‘[i]t is our well-settled rule that 'issues raised for the first lime on appeal are not reviewed by, this Court unless they involve purely legal questions and failure to consider them would result in manifest injustice’ ”
How later courts described this case
- holding that ‘‘[i]t is our well-settled rule that 'issues raised for the first lime on appeal are not reviewed by, this Court unless they involve purely legal questions and failure to consider them would result in manifest injustice’ ”
- holding that Texas prison regulations on hair length were related to security and finding the “security interest at stake cannot meaningfully be achieved appropriately by any different or lesser means than hair length standards.”
- holding that unless an issue raised for the first time on appeal involves a purely legal question and the failure to consider it would result in manifest injustice, it is not reviewable by this court
- holding that RFRA applies in Free Exercise cases whether it is raised by the parties or not
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40045
FELIPE DIAZ, ET AL.,
Plaintiffs,
FELIPE DIAZ, ET AL.,
Plaintiffs-Appellants,
versus
JAMES A. COLLINS,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
May 22, 1997
Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:
Felipe Diaz, a Native American religious practitioner, appeals the dismissal
of his civil rights suit challenging prison regulations restricting the length of his
hair and the possession of certain sacred items. For the reasons assigned we affirm.
Background
Diaz is an inmate in the Coffield Unit of the Texas Department of Criminal
Justice, Institutional Division, located in Anderson County, Texas. Because of his
membership in the Mexican Mafia prison gang Diaz is kept in Administrative
Segregation and, other than for up to two hours a day to shower and recreate, he
remains in solitary confinement. Diaz is a descendant of the Aztecs of Mexico and
a follower of that tribe’s religious teachings and practices.
In February of 1994 Diaz1 filed a complaint pro se and in forma pauperis
under 42 U.S.C. § 1983 in which he challenged prison regulations restricting the
length of his hair, the wearing of a headband, and the carrying of a medicine
pouch.2 In his complaint Diaz alleged that these restrictions imposed an
impermissible burden on his ability to practice his religion insofar as they affected
items and practices sacred to his faith. After conducting two hearings on the
matter,3 the magistrate judge, acting under authority of 28 U.S.C. § 636(c), entered
a final judgment dismissing Diaz’s lawsuit. Diaz timely appealed.
Analysis
Diaz filed a motion for the appointment of counsel which was denied by the
1
Diaz’s coplaintiff, Noah S. Martinez, removed himself from the suit prior to judgment
being rendered.
2
A number of additional claims originally lodged by Diaz, including the
inability to utilize a sweat lodge and the prison system’s requirement that he
produce documented proof of his Native American ancestry, have been either
abandoned by Diaz or satisfied by subsequent changes in administrative policy.
3
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Flowers v. Phelps, 956
F.2d 488 (5th Cir.), modified in part on other grounds, 964 F.2d 400 (5th Cir.
1992).
2
magistrate judge. Diaz now renews this request, seeking the appointment of
appellate counsel and counsel upon remand, if required. Because we can glean no
“extraordinary circumstances” which might warrant the appointment of appellate
counsel in this case, we deny that request.4
Diaz contends on appeal that the magistrate judge erred in dismissing his free
exercise challenge to the prison regulations.5 Diaz’s claims must be reviewed
under the Religious Freedom Restoration Act of 1993, codified at 42 U.S.C.
§ 2000bb.6 The RFRA is designed to augment the first and fourteenth amendment
protection of the free exercise of religion. The act supplants the rational basis test
formerly applied to determine the validity of laws of general applicability which
incidentally impact religious practices and replaces it with the compelling interest
test set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder,
4
Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078 (5th Cir. 1991);
Branch v. Cole, 686 F.2d 264 (5th Cir. 1982).
5
Diaz also contends that the magistrate judge abused her discretion when she
excluded the testimony of one of his witnesses, David Anguiano. Diaz did not
object, however, to the magistrate judge’s ruling prior to this appeal. It is our well-
settled rule that “issues raised for the first time on appeal are not reviewable by this
court unless they involve purely legal questions and failure to consider them would
result in manifest injustice.” Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (citation omitted) (quotations omitted). Because our review of the record
suggests no prospect of “manifest injustice,” given that the testimony to be given
by Anguiano was by Diaz’s admission duplicative of his own, we decline to
consider this issue.
6
Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); Werner v. McCotter, 49 F.3d 1476
(10th Cir.), cert. denied, 115 S.Ct. 2625 (1995); Besh v. Bradley, 47 F.3d 1167 (6th Cir.
1995) (unpublished); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert.
denied, 116 S.Ct. 55 (1995); Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995); Brown-El v.
Harris, 26 F.3d 68 (8th Cir. 1994).
3
406 U.S. 205 (1972).7
The RFRA “mandates that government shall not ‘substantially burden a
person’s exercise of religion’ unless the government demonstrates that the burden
furthers a ‘compelling governmental interest’ by the ‘least restrictive means.’” 8
The threshold inquiry under the RFRA is whether the challenged governmental
action substantially burdens the exercise of religion.9 “The burden of proving the
existence of a substantial interference with the right of free exercise rests on the
religious adherent.”10 If such a substantial burden is proven, it is then up to the
government to demonstrate that the compelling interest test is satisfied. 11
With regard to Diaz’s arguments concerning his medicine pouch and
headband, we agree with the magistrate judge’s decision that Diaz failed to prove
that the pertinent prison regulations substantially burden the exercise of his Native
American religion. While “[a] prohibition against the possession of a medicine bag
7
42 U.S.C. § 2000bb(b); Goodall by Goodall v. Stafford County School Board,
60 F.3d 168 (4th Cir. 1995), cert. denied, 116 S.Ct. 706 (1996); Werner; Bryant;
Brown-El. In so doing Congress intended to legislatively overrule United States
Supreme Court decisions such as Employment Div., Dep’t of Human Resources
v. Smith, 494 U.S. 872 (1990), and O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987). See Goodall; Werner.
8
American Life League at 654 (quoting 42 U.S.C. § 2000bb-1). The RFRA
applies to federal, state, and local governments. 42 U.S.C. § 2000bb-2(1).
9
Cheffer; American Life League. We note in addition that under Yoder, Diaz
was required to prove that his beliefs were both religious in nature and sincerely
held. The record bears out the authenticity of Diaz’s religious beliefs, and gives us,
like the magistrate judge, no reason to question the sincerity of those beliefs.
10
Werner at 1480 n.2, (citing Bryant at 948). See also Sherbert; Goodall.
11
Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995); see also Yoder.
4
[or headband] could, for those faiths for whom the symbol has sufficient
importance, qualify as a ‘substantial burden’ under the Act,”12 this case does not
involve a complete ban upon the possession of such sacred items. The pertinent
prison regulations allow a Native American practitioner to possess a medicine
pouch and headband while in his or her cell, prohibiting only the wearing of such
items outside of the cell. Thus, given Diaz’s Administrative Segregation status, the
regulations only prevent him from wearing a medicine pouch or headband for up
to two hours a day.
The record discloses that it is not necessarily a central tenet of Diaz’s religion
that a medicine pouch or headband be worn at all times.13 Rather, the amount of
time that a Native American practitioner must spend in physical contact with the
medicine pouch is a highly subjective matter, dependent upon the degree to which
the practitioner feels the need to be “connected” to the sacred items contained in
the pouch. The headband serves a similar role, serving as a reminder to the
practitioner of his tribal traditions and creed. Nothing in the record suggests that
12
Werner at 1481. The record adequately bears out the importance of these
items to Diaz’s faith.
13
The testimony of Glenda Taylor, Diaz’s spiritual advisor and consultant to the
TDCJ on Native American religious practices, indicates that the term “Native
American religion” refers to a compilation of common religious practices arising
out of a wide range of tribal traditions. In addition, Taylor’s testimony also points
out that many Native American religions exhibit an imported overlay of Christian
symbolism. We recognize, therefore, that the importance of the medicine pouch
in Diaz’s Aztec religion may be greater or lesser than in other Native American
religions. Despite this, we read the record mindful of the fact that it was Diaz’s
burden to establish the extent to which the prison regulations impacted his religious
convictions.
5
Diaz’s beliefs, however fervently held, compel him to wear a medicine pouch or
headband at all times; thus Diaz has failed to demonstrate that the limited
restrictions which these regulations impose upon him are a substantial burden upon
his religious expression.14
We next consider the magistrate judge’s ruling regarding the TDCJ’s
grooming code. Although this regulation survived a similar challenge in Powell v.
Estelle,15 the analysis there made relied upon the constitutional test set out in
O’Lone v. Estate of Shabazz,16 a test less exacting than the standard governing free
exercise challenges under the RFRA.17 Powell is therefore no longer dispositive
precedent for sustaining the grooming requirement and we perforce must consider
anew the legitimacy of this regulation.
The grooming regulation, given the strong significance of long hair in Native
American belief,18 legitimately may be deemed to work a substantial hardship upon
14
Compare Johnson v. Baker, 67 F.3d 299 (6th Cir. 1995) (unpublished) (Nation
of Islam Muslim’s religious beliefs not substantially burdened by regulation which
deprives him of particular time and place to observe his beliefs and the company
of other Black Muslims); Abdur-Rahman v. Michigan Dep’t of Corrections, 65
F.3d 489, 492 (6th Cir. 1995) (“Reasonable time, place, or manner restrictions upon
communal religious gatherings do not necessitate the identification of a compelling
state interest.”).
15
959 F.2d 22 (5th Cir.), cert. denied, 506 U.S. 1025 (1992).
16
482 U.S. 342 (1987).
17
See supra note 7 and accompanying text.
18
The record reveals that the Native American custom regarding long hair, while
in some part cultural, has strong religious implications. Hair is only supposed to
be cut as a sign of grieving for the recently dead, and shorn locks are often placed
with the deceased so that they may be carried into the afterlife. Diaz testified that
6
Diaz’s practice of his faith. The magistrate judge found, however, that long hair
also facilitates the transfer of contraband and weapons into and around TDCJ
institutions. In addition, the magistrate judge found that requiring prisoners to
have short hair makes it more difficult for escaped prisoners to alter their
appearance from the photographs taken periodically of all TDCJ inmates. Based
upon these findings, the magistrate judge concluded that the state’s interests in
promulgating and enforcing its grooming code were compelling, and that these
interests could not be achieved without some sort of regulation limiting hair length.
We agree with our colleagues in the Eighth and Eleventh Circuits that a
prison regulation on hair length is related to security and, as such, involves a
compelling state interest.19 Further, the security interest at stake cannot
meaningfully be achieved appropriately by any different or lesser means than hair
length standards. We perceive no constitutional infraction in such. Nor do we
perceive any violation of the RFRA. It is our understanding that in enacting the
RFRA, Congress intended to continue to extend substantial deference to prison
officials in legitimate security matters. We find in the legislative history this
significant passage:
The committee [on the Judiciary] does not intend the act [RFRA] to
impose a standard that would exacerbate the difficult and complex
challenges of operating the Nation’s prisons and jails in a safe and
secure manner. Accordingly, the committee expects that the courts
his mother is currently old and not well, and that he wishes to maintain his long
hair so that he may properly grieve for her when she passes away.
19
Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996); Hamilton v. Schriro, 74
F.3d 1545 (8th Cir. 1996).
7
will continue the tradition of giving due deference to the experience
and expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good order, security
and discipline, consistent with consideration of costs and limited
resources.20
For these reasons the judgment appealed is AFFIRMED.
20
Sen. Rep. at 10, 1993 U.S.C.C.A.N. at 1899-1900 (footnote omitted).
8