Hbrandon Lee Flagner v. Reginald Wilkinson

NELSON, Circuit Judge,

concurring in part and dissenting in part.

I concur in the conclusion that the qualified immunity doctrine bars plaintiff Flag-ner from attempting to mulct the defendants in damages for requiring him to comply with Ohio’s prison regulation regarding facial hair. But because I believe that the defendants are entitled to prevail at the first stage of the qualified immunity analysis — i.e., because I believe that the application of the regulation to Mr. Flag-ner is permissible under the Constitution as a matter of law — I would not let the claims for declaratory and injunctive relief go forward.

The district court’s first-stage rationale was as follows:

“[Mjaterial issues of fact exist as to the legitimacy of defendants’ proffered justifications for enforcing the hair regulation against plaintiff. * * * Plaintiff has come forward with evidence from which a trier of fact could reasonably conclude that defendants’ enforcement of the grooming regulation against plaintiff was an exaggerated response to or not done for the asserted security concerns.”

My colleagues on the panel agree with this rationale. I respectfully disagree. I am aware of no basis on which the regulation could properly be held invalid on its face, and it seems to me that the very existence of the regulation justifies its enforcement against Mr. Flagner.

Even under the restrictive statutory standard rejected by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997), the constitutionality of regulations such as Ohio’s was routinely upheld. See, for example, Harris v. Chapman, 97 F.3d 499, 504 (11th Cir.1996), and Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.1996). Post -Boerne decisions, of course, have reached the same result. See, e.g., Green v. Polunsky, 229 F.3d 486 (5th Cir.2000), and Kimbrough v. California, No. 00-15075, 2001 WL 111134 , 2001 U.S.App. LEXIS 1864 (9th Cir.2001). Within this circuit, Ohio’s prison hair regulation has repeatedly been upheld against challenges under the Free Exercise Clause of the First Amendment. See Williams v. Wilkinson, No. 96-3715, 1997 WL 809971 , 1997 U.S.App. LEXIS 36760 (6th Cir.1997); Brown v. Wilkerson, No. 94-4014 (6th Cir.1995); Pollock v. Marshall, 845 F.2d 656 (6th Cir.1988). See also Mays v. Wilkinson, No. 98-3341, 1999 WL 282690 , 1999 U.S.App. LEXIS 8380 (6th Cir.1999) (unpublished order) (affirming dismissal for failure to state a claim where Ohio hair regulation was challenged under constitutional provisions other than the Free Exercise Clause).

I do not read Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), as suggesting that an “as applied” approach can routinely be used to circumvent a well-established body of law such as that upholding the Ohio regulation. Speaking through Justice O’Connor, -the Turner Court noted that “[rjunning a prison is an inordinately difficult undertaking that requires expertise ... peculiarly within the province of the legislative and executive branches of government.” Id. at 84-85 , 107 S.Ct. 2254 . Moreover, the Court continued, “[pjrison administration is ... a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.” Id. at 85 , 107 S.Ct. 2254 . Against this background, and after an analysis of the facial validity of challenged Missouri prison regulations under the four “factors” discussed in the majority opinion here, the Turner Court upheld the validity of the first of the regulations (a prohibition against correspondence between inmates at different state prisons) on the ground that, as a matter of law, it was “reasonably related to legitimate secu *489 rity interests.” Id. at 91 , 107 S.Ct. 2254 . The same sort of categorical analysis led the Turner Court to invalidate the other challenged regulation, a ban on inmate marriages.

The Turner opinion does not imply that an inmate who seeks to challenge a prison regulation the constitutionality of which has already been established is entitled to have the regulation subjected to fresh scrutiny under a four-factor analysis tailored to the plaintiffs individual circumstances. In a published opinion by which I should have thought this panel bound, our circuit has flatly rejected the idea that prisoners are entitled to this sort of individual fitting:

“By creating the Turner test, the Supreme Court surely did not intend to provide a mechanism through which prisoners could mount repeated challenges to prison regulations and require courts to analyze, in detail, the impact such regulations would have in any particular factual setting, even if prior court precedent would seem to dictate the validity of the regulations. On the contrary: the Supreme Court’s creation of the Turner standard was motivated by a desire to ‘ensure[] the ability of corrections officials to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration, and avoid[] unnecessary intrusion - of the judiciary into problems particularly ill suited to resolution by decree.’ O’Lone, 482 U.S. at 349 , 107 S.Ct. 2400 (quotation marks omitted). Penal authorities may need a clear rule for dealing with certain continuing or recurring situations, even when that rule could be better-tailored to the rights of individual prisoners through a court’s flexible, case-by-case analysis.” Spies v. Voinovich, 173 F.3d 398, 403-04 (6th Cir.1999).

It may be true, I suppose, that if Mr. Flagner were the only inmate in the Ohio prison system he could show that the hair regulation is not reasonably related to legitimate security interests peculiar to him. It may be true, in other words, that Mr. Flagner himself has never concealed contraband in his beard or sidelocks; that prison officials could easily and safely assure themselves of Mr. Flagner’s continuing good behavior by having him run his own fingers through his hair; that no security problems of any kind have ever been associated with Mr. Flagner’s facial hair; that his beard and sidelocks have never been mistaken for a “gang identifier;” that he has never attempted to escape from prison; that if he were to escape and shave off his facial hair in an effort to make himself harder to recognize, the effort would be unsuccessful because the authorities happen to have old photographs and sketches depicting him without such hair; and that Mr. Flagner’s beard and sidelocks have never contributed to the clogging of drains in the prison’s plumbing system. If all this were shown to be true, if we were writing on a clean slate, and if Mr. Flagner were Ohio’s only prison inmate, I might well agree with my colleagues that the regulation should not be allowed to burden Mr. Flagner’s right to put into practice his religious beliefs concerning facial hair.

But we are not writing on a clean slate, and Mr. Flagner, unfortunately, is not Ohio’s only prison inmate. As of January 2001, according to an Ohio Department of Rehabilitation and Correction “Fact Sheet” available on the internet at www. drc.state.oh.us, Ohio’s prison inmate population was 45,540. If three percent of the state’s male prison population were to accept the majority opinion’s implied invitation to challenge the regulation on grounds comparable to those Mr. Flagner is being allowed to invoke here, the Turner factors would have to be separately weighed by the courts in something like 1,000 cases. And that is just in Ohio.

Such an outcome, in my view, would be undesirable. It would also be difficult to reconcile with the proposition — explicitly alluded to in Turner — that “judgments regarding prison security ‘are peculiarly *490 within the province and professional expertise of corrections officials482 U. S. at 86, 107 S.Ct. 2254 (quoting Pell v. Procunier, 417 U.S. 817, 827 , 94 S.Ct. 2827 , 41 L.Ed.2d 495 (1974)).

The conclusion that Mr. Flagner’s claim is without legal merit finds support, I believe, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990), a decision handed down three years after the decision in Turner . The question in Smith was whether the State of Oregon could deny unemployment benefits to people who had been fired from their jobs for ingesting a prohibited hallucinogen (peyote) in connection with sacramental activities at a Native American church. The Supreme Court answered in the affirmative, reasoning that where the state’s object is not to prohibit or burden the exercise of religion, and any burden imposed by the state is “merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Smith, 494 U.S. at 878 , 110 S.Ct. 1595 .

Unlike O’Lone v. Estate of Shabazz, 482 U.S. 342 , 107 S.Ct. 2400 , 96 L.Ed.2d 282 (1987) — a case where, as the Smith Court noted ( 494 U.S. at 884 , 110 S.Ct. 1595 ), a prison’s refusal to excuse inmates from work to attend worship services was sustained without mention of a “balancing” test — Smith did not involve a prison regulation. Oregon’s prohibition against the payment of benefits to jobless users of illegal drugs was applicable to the citizenry of the state as a whole. And if the state’s blanket prohibition against the payment of benefits to such people was sustainable notwithstanding its incidental effect on the religious practices of adherents of the Native American Church, it would seem to follow a fortiori, given the need for judicial restraint in the prison context, that a regulation such as the one at issue here should be sustainable notwithstanding the incidental burden it may place on the religious tenets of somé prisoners.

The Smith Court was obviously content to follow a categorical approach in determining the constitutionality of the Oregon law. The Court seemed to take it for granted that because the law was constitutional as generally applied, the plaintiffs had no viable free exercise claim. 1 This reading is strengthened by the latter part of the Smith opinion’s penultimate paragraph, where the Court rejected the idea that a religious-practice exception to the *491 general rule was mandated by the First Amendment:

“But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Smith, 494 U.S. at 890 , 110 S.Ct. 1595 .

Insofar as my colleagues on the panel have concluded that the courts can and should discern appropriate occasions for waiving Ohio’s prison hair regulation on a case-by-case basis, I respectfully dissent.

. It is true, as my colleagues on the panel point out in note 5 of the majority opinion, that a Federal Bureau of Prisons regulation banning the delivery to prisoners of periodical publications found "detrimental to institutional security” — a regulation held to be valid on its face — could be found invalid as applied to a particular publication. See Thornburgh v. Abbott, 490 U.S. 401 , 109 S.Ct. 1874 , 104 L.Ed.2d 459 (1989). But I do not read Thornburgh v. Abbott as justifying a remand in the case at bar.

Here, as in Turner v. Safley, the plaintiffs would have been free, had this been a case of first impression, to attempt to show that the challenged regulation represented an "exaggerated response” to prison concerns, given the alleged existence of "obvious, easy alternatives. ...” See Turner, 482 U.S. at 90 , 107 S.Ct. 2254 . Had such a showing been made, a court could have considered it "as evidence that the regulation does not satisfy the reasonable relationship standard....” Id. at 91 , 107 S.Ct. 2254 . But our court has already held, in a Free Exercise Clause context quite similar to the context in which the present appeal arises, that Turner cannot justify a remand for factfinding of the sort contemplated by my colleagues on the panel. See Spies v. Voinovich, 173 F.3d at 407 . Such a remand, as Spies declared, "would be the type of ‘unnecessary intrusion of the judiciary’ into 'problems of prison administration’ that O’Lone warned against.” Id.

I can readily understand why my colleagues might wish that the judge who urged a remand in Spies had been writing the majority opinion rather than the dissent, just as I can readily understand why they might wish that the views of the Supreme Court justices who urged a remand in O’Lone had prevailed. But given the majority holdings in Spies and O’Lone , and given the post-Abbott holding in Employment Division v. Smith, I have greater difficulty understanding how it can be thought that we are free to order a remand here.