Omar Grayson v. Harold Schuler

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3256

O MAR G RAYSON,

Plaintiff-Appellant,

v.

H AROLD S CHULER,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cv-00335-MJR—Michael J. Reagan, Judge.

S UBMITTED N OVEMBER 22, 2011—D ECIDED JANUARY 13, 2012

Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.

P OSNER, Circuit Judge. The plaintiff, a former inmate

of the Big Muddy Correctional Center, an Illinois prison,

brought this suit under 42 U.S.C. § 1983 against a correc-

tional officer who ordered the forcible shearing of the

plaintiff’s dreadlocks. The plaintiff argues that the

order (which was carried out) violated the free exer-

cise clause of the First Amendment. The district judge

granted the defendant’s motion for summary judg-

ment and dismissed the case.

2 No. 10-3256

Inmates’ complaints that prison authorities have in-

fringed their religious rights commonly include a

claim under the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. §§ 2000cc et seq., which confers

greater religious rights on prisoners than the

free exercise clause has been interpreted to do. See 42

U.S.C. § 2000cc-1; Cutter v. Wilkinson, 544 U.S. 709, 714-17

(2005). The plaintiff doesn’t mention the Act, but he is

proceeding pro se and in such cases we interpret the

free exercise claim to include the statutory claim. Ortiz

v. Downey, 561 F.3d 664, 670 (7th Cir. 2009). But the Act

can no longer do him any good. Although his complaint

is none too clear, he appears to be seeking damages

against the defendant in both the latter’s official

capacity and his personal capacity, and the former claim

is barred by the state’s sovereign immunity, Sossamon v.

Texas, 131 S. Ct. 1651, 1658-61 (2011); Vinning-El v.

Evans, 657 F.3d 591, 592 (7th Cir. 2011), and the latter

claim cannot be based on the Act because the Act does

not create a cause of action against state employees in

their personal capacity. Nelson v. Miller, 570 F.3d 868, 886-

89 (7th Cir. 2009). It does authorize injunctive relief,

which the plaintiff initially sought along with damages,

but he’s since been released from prison, so his injunctive

claim is moot and he is left with his personal-capacity

damages claim under section 1983.

Illinois prison inmates are allowed to “have any length

of hair” they want, provided, so far as bears on this case,

that it “do[es] not create a security risk.” 20 Ill. Admin.

Code 502.110(a). The defendant ordered the plaintiff’s

dreadlocks cut off on the ground that they posed a security

No. 10-3256 3

risk, though he did not explain why. The plaintiff com-

plained to the prison chaplain, who informed him that

only inmates who are Rastafarians are permitted to

wear dreadlocks. The plaintiff is not a Rastafarian, but a

member of the African Hebrew Israelites of Jerusalem;

and according to the chaplain the members of that sect

are not required by their faith to wear dreadlocks (this

appears to be correct), and therefore, he concluded, the

plaintiff was not entitled to wear them. (It’s the “there-

fore” that’s the issue in this appeal.) The plaintiff filed

an internal prison grievance, but it was denied on the

basis of the chaplain’s theological opinion.

Dreadlocks can attain a formidable length and density,

as shown in this photograph of the late Jamaican

musician Bob Marley (a Rastafarian):

4 No. 10-3256

One can see why prison officials might fear that a

shank or other contraband could be concealed in an in-

mate’s dreadlocks, or why they might want inmates to

wear their hair short because inmates with long hair

can more easily change their appearance, should they

escape, by cutting their hair. Short hair is also more

hygienic than very long, braided hair. The case law indi-

cates that a ban on long hair, including dreadlocks, even

when motivated by sincere religious belief, would pass

constitutional muster. See Fegans v. Norris, 537 F.3d 897,

906 (8th Cir. 2008); Henderson v. Terhune, 379 F.3d 709, 712-

15 (9th Cir. 2004); Harris v. Chapman, 97 F.3d 499, 503-04

(11th Cir. 1996); Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th

Cir. 1996); see also Reed v. Faulkner, 842 F.2d 960, 963 (7th

Cir. 1988); cf. Green v. Polunsky, 229 F.3d 486, 489-90 (5th

Cir. 2000).

Regulations of general applicability, not intended to

discriminate against a religion or a particular religious

sect, were held in Employment Division v. Smith, 494 U.S.

872 (1990), not to violate the free exercise clause. Its

holding should apply to prison inmates along with every-

one else—as indeed assumed in Cutter v. Wilkinson,

supra, 544 U.S. at 714-17—and therefore authorize any ban

on long hair as long as it is not motivated by religious

prejudices or opinions. But the applicability of Smith to

prisoners is uncertain because of an earlier Supreme Court

decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), not

expressly overruled by Smith or Cutter, which re-

quires prison authorities to “accommodate” an inmate’s

religious preferences if consistent with security and other

legitimate penological concerns. See also Turner v. Safley,

No. 10-3256 5

482 U.S. 78 (1987). Accommodation is what Smith

says the free exercise clause does not require; and it’s

hard to believe that prisoners have more rights than

nonprisoners. But we’re not supposed to declare a

decision by the Supreme Court overruled unless the

Court makes clear that the case has been overruled, even

if we’re confident that the Court would overrule it if

the occasion presented itself. State Oil Co. v. Khan, 522

U.S. 3, 20 (1997); see Vinning-El v. Evans, supra, 657 F.3d

at 592-93; Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.

1999). No matter. This as we’ll see is a case of outright

arbitrary discrimination rather than of a failure merely

to “accommodate” religious rights.

Prison officials might sometimes actually want on

security grounds to exempt from a ban on long hair

inmates whose motivation was religious, cf. Cutter v.

Wilkinson, supra, 544 U.S. at 724-25; accommodating a

genuine religious observance might reduce rather than

increase the risk of prisoner misconduct. At the same

time the prison officials might want to distinguish

between religiously motivated practices that are

required by the prisoner’s religion and those that are

optional, a distinction we discuss below. But nowhere

in the record can we find this or any other articulated

ground for the prison’s Rastafarian exception to a ban

on long hair. Nor could such a ground be easily squared

with the language of the Illinois statute that we quoted.

Permitting prisoners to “have any length of hair . . . so long

as” it “do[es] not create a security risk” doesn’t sound

like “prisoners must have short hair unless they are

Rastafarians.” The defendant suggests that the prison

6 No. 10-3256

could ban all prisoners from wearing dreadlocks but

does not argue that that’s the prison’s policy; he

tacitly accepts the Rastafarian exception announced to

the plaintiff by the prison chaplain.

The prison would be hard pressed to defend a rule

that only Rastafarians may wear dreadlocks (though for

all we know that is the prison’s rule, or at least its de

facto rule, declared by the chaplain), unless it were

certain that no other sect, and not even any individual

prisoner’s private faith, considers wearing dreadlocks

a religious observance; barring such an exception, such

a rule would discriminate impermissibly in favor of one

religious sect. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per

curiam); Vinning-El v. Evans, supra, 657 F.3d at 595.

We can imagine religious discriminations that could be

justified by security concerns: a ban on Thuggee, the

notorious Indian cult stamped out by the British whose

votaries believed they were the children of the Hindu

goddess Kali (created from her sweat) and that she had

commanded them to commit mass murder—a command

they followed with enthusiasm. But the Big Muddy

Correctional Center allows Rastafarians to wear dread-

locks and has failed to give a reason for thinking

that the plaintiff but not they would be a security risk

if allowed to wear them.

Nor could the prison permit only members of sects

(even if not limited to Rastafarians) that “officially” require

the wearing of dreadlocks to wear them. Heretics have

religious rights. Frazee v. Illinois Dep’t of Employment

Security, 489 U.S. 829, 834 (1989); United States v. Ballard,

No. 10-3256 7

322 U.S. 78, 86-87 (1944); Ortiz v. Downey, supra, 561 F.3d

at 669. The founders of Christianity (Jesus Christ, the

Apostles, and St. Paul) were Jewish heretics; Luther and

Calvin and the other founders of Protestantism were

Catholic heretics. Religious belief must be sincere to be

protected by the First Amendment, but it does not have

to be orthodox. And anyway the plaintiff is not a

heretic; there is no suggestion that orthodox African

Hebrew Israelites of Jerusalem think it wrong to take

and abide by the Nazirite vow, the basis of the plaintiff’s

claim that wearing dreadlocks is for him a religious

observance, though dreadlocks do not have the

symbolic significance for African Hebrew Israelites of

Jerusalem that they do for Rastafarians.

Since heresy is not excluded from the protection of the

free exercise clause, optional as distinct from mandatory

religious observances aren’t excluded either. Which

brings us to the plaintiff and his vow. Believing as they

do that the original Jews—the Jews of the Old Testa-

ment—were black and that black people today are

the descendants of those Jews, African Hebrew Israelites

of Jerusalem venerate the Old Testament. African

Hebrew Israelites of Jerusalem, “Our Philosophy,” www.

africanhebrewisraelitesofjerusalem.com/Our_Philosophy

.htm (visited Dec. 16, 2011). And in Numbers 6:2-5 God

is reported as saying to Moses (in the King James transla-

tion): “Speak unto the children of Israel, and say unto

them, When either man or woman shall separate them-

selves to vow a vow of a Nazirite, to separate them-

selves unto the LORD, . . . all the days of his separation

there shall no razor come upon his head . . . . [He] shall

let the locks of the hair of his head grow long.” The

8 No. 10-3256

word “Nazirite” (or “Nazarite”) is from the Hebrew nazir,

meaning “set apart,” and the Old Testament states in

several places besides Numbers that Nazirites must not

cut their hair. The most celebrated statement is in the

Book of Judges and concerns Samson, who recklessly

explains to Delilah that if his hair were shorn, his

strength would go with it. Judges 13:5, 16:17. Samson

had seven braids, Judges 16:19, which could well have

been dreadlocks.

The plaintiff told the defendant that he was taking

“the Nazarite vow of separation,” and while the vow

does not appear to require dreadlocks, which are not the

only form that uncut hair can take, the parties agree

that “due to his African ancestry, Plaintiff’s hair naturally

forms into dreadlocks when it grows long.” African

Hebrew Israelites of Jerusalem might well deem taking

the Nazirite vow an appropriate supplemental observ-

ance, cf. Swift v. Lewis, 901 F.2d 730, 731 (9th Cir. 1990),

and a religious believer who does more than he is

strictly required to do is nevertheless exercising his

religion. A Catholic who vows to obey the Rule of

St. Benedict and therefore avoid “the meat of four-

footed animals” is performing a religious observance

even though not a mandatory one. Nelson v. Miller, supra;

see also Employment Division v. Smith, supra, 494 U.S. at 886-

87; Ortiz v. Downey, supra, 561 F.3d at 669; Teterud v.

Burns, 522 F.2d 357, 360 (8th Cir. 1975).

True, there is more to the Nazirite vow than just not

cutting one’s hair, such as not eating or drinking any

grape product or going near dead bodies, Numbers 6:4-6,

No. 10-3256 9

and perhaps someone who took the vow and let his

hair grow but ignored the other proscriptions could be

thought insincere—though we repeat our warning in

Reed v. Faulkner, supra, 842 F.2d at 963, that a sincere

religious believer doesn’t forfeit his religious rights

merely because he is not scrupulous in his observance;

for where would religion be without its backsliders,

penitents, and prodigal sons? On this record there is no

basis for doubting that the plaintiff’s taking the Nazirite

vow was religiously motivated.

Prison authorities are always entitled to balance

security concerns against religious practices, and the need

to do so may be greater with regard to optional than

to mandatory practices. In Koger v. Bryan, 523 F.3d 789,

794 (7th Cir. 2008), the inmate was an adherent of

Thelema, a spiritual philosophy (a religion in the broad

sense in which the term is used in First Amendment

cases) that “has as its central tenet ‘Do what thou

wilt.’ ” Thelema’s single mandatory tenet invites an

infinity of optional observances. And in New Rider v.

Board of Education of Independent School Dist. No. 1, 480

F.2d 693, 696 (10th Cir. 1973), we learn that the Pawnee

Indians believe “that everything the Pawnee does each

day has religious significance” (emphasis in original).

Inmates can drive their keepers crazy by multiplying

observances, as when Muslim prisoners refuse to step

forward at roll call, precipitating a futile search (futile

because they are present) because, without telling the

prison authorities, they have adopted a Muslim name,

Azeez v. Fairman, 795 F.2d 1296, 1298-99 (7th Cir. 1986),

which Islam encourages but does not require.

10 No. 10-3256

But there is no suggestion that allowing this plaintiff

to have grown dreadlocks would have created a wildfire

of idiosyncratic observances, and so we are left with

what appears to be discrimination (though a trial might

cast the facts in a different light). Prison chaplains may

not determine which religious observances are permis-

sible because orthodox. Vinning-El v. Evans, supra, 657

F.3d at 595. We held in Reed v. Faulkner, supra, 842 F.2d

at 964, that a prison could not forbid Rastafarians to

wear long hair while permitting American Indians to do

so. No more can the prison permit Rastafarians to

wear long hair and without justification forbid a sincere

African Hebrew Israelite of Jerusalem to do so, even if

he is more zealous in his religious observances than

his religion requires him to be.

Since, however, “[qualified] immunity protects

public employees who make reasonable errors in

applying even clearly established law,” Vinning-El v.

Evans, supra, 657 F.3d at 594, the defendant is entitled

to immunity if he committed a reasonable error in failing

to apply clearly established law—that is, if he rea-

sonably thought the plaintiff insincere in his religious

belief, or a security threat. But there is no suggestion

that the defendant ordered the plaintiff’s dreadlocks

shorn because of a reasonable belief in either of these

possibilities. He seems just to have been applying the

Rastafarian exception, which could not reasonably be

thought constitutional.

So neither on substantive nor immunity grounds can

the grant of summary judgment be upheld. The judg-

No. 10-3256 11

ment is reversed and the case remanded for further

proceedings consistent with this opinion.

R EVERSED AND R EMANDED.

1-13-12