Petition for Writ of Certiorari — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections
Supreme Court briefApr 28, 2022
Ask Donna
What actually matters in this document.
Text
No. _______
In the Supreme Court of the United States
__________
LESTER J. SMITH,
Petitioner,
v.
TIMOTHY WARD, COMMISSIONER OF GEORGIA
DEPARTMENT OF CORRECTIONS IN HIS
OFFICIAL CAPACITY,
Respondent.
__________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
__________
APPENDIX
__________
MARK L. RIENZI
ERIC C. RASSBACH
NICHOLAS R. REAVES
CHRIS PAGLIARELLA
JAMES J. KIM
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Pennsylvania Ave. NW
Suite 400
Washington, D.C. 20006
J. SCOTT BALLENGER
Counsel of Record
SARAH SHALF
APPELLATE LITIGATION CLINIC
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903
(202) 701-4925
sballenger@law.virginia.edu
Counsel for Petitioner
TABLE OF CONTENTS
Opinion of the United States Court of
Appeals for the Eleventh Circuit,
filed September 22, 2021 .......................................... 1a
Opinion of the United States District
Court for the Middle District of Georgia,
Macon Division, filed August 7, 2019 ..................... 46a
Order on Rehearing of the United States
Court of Appeals for the Eleventh Circuit,
filed December 29, 2021 .......................................... 73a
1a
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13520
________________________
D.C. Docket No. 5:12-cv-00026-WLS-CHW
LESTER J. SMITH,
Plaintiff - Appellee - Cross Appellant,
versus
BRIAN OWENS, Commissioner of GDOC in his
official and individual capacities,
Defendant,
GREGORY DOZIER, Commissioner of GDOC in his
official and individual capacities,
Defendant - Appellant - Cross Appellee.
________________________
Appeals from the United States District Court for
the Middle District of Georgia
________________________
(September 22, 2021)
Before MARTIN, NEWSOM, and BRANCH, Circuit
Judges.
2a
BRANCH, Circuit Judge:
Lester Smith sued the Georgia Department of
Corrections (GDOC) under the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc et seq., seeking relief from the
GDOC’s grooming policy. He claimed that the
GDOC’s grooming policy, which prohibits inmates
from growing facial hair over a half-inch in length,
placed a substantial burden on his religious exercise
because as a Muslim he sought to grow an
untrimmed beard. The district court rejected Smith’s
RLUIPA claim, finding that the “GDOC ha[d] offered
logical and persuasive reasons to show that allowing
untrimmed beards would be unmanageable for
GDOC” and that “it is plausible that allowing a close
security inmate like Smith an untrimmed beard
could be dangerous for prison security.” Rather than
rule in favor of the GDOC in accordance with its own
findings, however, the district court fashioned a
remedy that neither party had requested: it held
that RLUIPA entitled Smith to grow a three-inch
beard. Both sides appealed from the district court’s
order, challenging its compromise remedy.
The district court’s determination that it was
reasonable for the GDOC to conclude that allowing
Smith to grow an untrimmed beard would be both
unmanageable and dangerous was not clearly
erroneous. Accordingly, we affirm that finding by the
district court. However, the district court’s ruling
requiring the GDOC to allow Smith to grow a threeinch beard was improper. Smith never asked the
district court to allow him to grow a three-inch
beard. The district court’s determination that the
GDOC should nonetheless be required to allow
3a
three-inch beards was contrary to the Supreme
Court’s holding in Holt v. Hobbs, 574 U.S. 352
(2015), that courts should consider only the
plaintiff’s proposed alternatives in deciding whether
there is an available less restrictive means for the
government to further its compelling interests under
RLUIPA. Accordingly, we vacate the district court’s
order declaring that the GDOC’s grooming policy
violated RLUIPA and requiring the GDOC to alter
its policy to allow three-inch beards.
I. Background
Lester Smith is serving a life sentence for
murder and armed robbery, among other offenses, in
one of the GDOC’s close security prisons. He is a
Muslim and believes that he may not trim his beard
under ordinary circumstances. The GDOC is the
fourth-largest prison system in the country, with
approximately 53,000 inmates. Before the Supreme
Court’s decision in Holt, the GDOC did not allow
inmates to have beards of any length. After Holt, the
GDOC changed its grooming policy to allow half-inch
beards.
In the GDOC’s close security prisons—like the
prison where Smith is held—81% of the inmates
have been convicted of violent or sexual offenses.
Turnover of staff in these prisons is high and the
GDOC “is unable to fill all of its security positions.”
Moreover, since his incarceration, Smith, in
particular, has been a discipline problem:
Smith has been found guilty of 72
disciplinary offenses, which include[] three
assaults on correctional officers, one assault
4a
on another offender, three possession of
weapons offenses, two possession of
drugs/narcotic offenses, two possession of a
cell phone offenses, two bribery offenses, 32
failure to follow instructions or being
insubordinate offenses, and numerous
offenses related to threatening . . .
correctional officers.
Smith has also been found guilty of violating the
GDOC’s grooming policy three times. The record
contains details about some of Smith’s many
disciplinary incidents.
• On June 6, 2010, Smith verbally threatened a
correctional officer. He told the officer that as
“soon as he could get his hands on [the officer’s]
p*ssy *ss he was going to hurt [his] *ss,” and
then called the officer a “punk b*tch.”
• That same day, Smith verbally threatened
another correctional officer. He told the officer, “I
wish you would take the restraints off of me, I
will beat all of your *sses.”
• On January 8, 2012, Smith assaulted another
inmate with a homemade weapon.
• On February 23, 2012, Smith assaulted a
correctional officer.
• On June 30, 2013, Smith verbally threatened a
correctional officer. He jammed his tray box
slider open and, when an officer attempted to
close it, said “I’ll f*ck you up and I will beat your
*ss.”
• On October 20, 2014, Smith was found to be in
possession of a cell phone. “Cell phones are one
of the most dangerous items of contraband,” as
5a
testified to by the GDOC’s Deputy Director of
Field Operations Ahmed Holt. According to Holt,
they allow inmates to move other contraband,
extort money from outside the prison, recruit
gang members, put hits out on people, and plan
escapes.
• On December 30, 2014, Smith was again found
to be in possession of a cell phone, along with
two weapons—“metal pieces sharpened to a
point” that were hidden behind a sink.
II. Procedural History
On January 24, 2012, Smith sued the GDOC in
the United States District Court for the Middle
District of Georgia, alleging that forcing him to
shave his beard infringed his right to practice an
aspect of his faith in violation of RLUIPA. The
GDOC moved for summary judgment and the
district court granted its motion, finding that the
GDOC demonstrated that its grooming policy was
the least restrictive means of furthering its
compelling interests in prison security, discipline,
hygiene, and safety. Smith appealed to this Court.
While Smith’s appeal was pending, the Supreme
Court decided Holt, which involved a RLUIPA
challenge to an Arkansas policy that prohibited
inmates from growing beards unless they had a
particular dermatological condition. 574 U.S. at 355–
56. The prisoner in Holt sought permission to grow
“only a ½-inch beard.” Id. at 359. The Supreme
Court held that the Arkansas policy “violate[d]
RLUIPA insofar as it prevent[ed] petitioner from
growing a ½-inch beard in accordance with his
religious beliefs.” Id. at 364, 369 (quotation omitted).
6a
In light of Holt, we vacated the district court’s
summary judgment order in this case and remanded
for further proceedings, emphasizing that “Holt calls
for an individualized, context-specific inquiry that
requires the GDOC to demonstrate that the
application of the grooming policy to Smith furthers
its compelling interests. It requires the GDOC to
consider the ‘marginal interest in enforcing’ the
grooming policy in Smith’s case.” Smith v. Owens,
848 F.3d 975, 981 (11th Cir. 2017) (emphasis in
original).
On remand, the case proceeded to a bench trial,
at which the parties presented dueling witness
testimony. At trial, the GDOC called Ahmed Holt, its
Deputy Director of Field Operations, and Ronald
Angelone, an expert witness who is the former
director of the Virginia Department of Corrections
(VDOC). Smith called John Clark—a former
administrator with the Federal Bureau of Prisons
(BOP), who worked at six federal prisons over a 44year career in corrections—as his rebuttal expert.
Angelone and Holt testified about the problems
the GDOC would face if it allowed untrimmed
beards. Holt testified that inmates could hide
weapons in beards and that the GDOC previously
had found handcuff keys in an inmate’s beard.
Angelone testified that when he was at the VDOC,
prison officials found a variety of contraband,
including currency, handcuff keys, razor blades, and
drugs, hidden in inmates’ beards. Clark, by contrast,
testified that the BOP, which permits untrimmed
beards, had not experienced problems with
contraband hidden in beards because it searches
beards routinely and searches are a “great
deterrent.”
7a
Although Angelone and Holt expressed concerns
that a beard could be grabbed during inmate
altercations and cause injury to an inmate, neither
provided statistical evidence showing more incidents
of violence in prisons that allow untrimmed beards,
and Clark testified that there was no evidence that
prison systems that permit untrimmed beards have
heightened difficulties with violence or safety.
Finally, Angelone and Holt testified that beards
can make it harder for prison staff to identify
inmates and can facilitate escapes. Holt testified
about an incident where a bearded GDOC inmate
escaped, killed two officers, and then shaved his face,
which made it difficult for officers to later identify
him upon recapture. Angelone testified that when he
was at the VDOC, an inmate with a “belt buckle”
length beard escaped and then shaved his face,
which completely altered his appearance. The
inmate was found loitering several days later and
was identified only after officers fingerprinted him.
Clark responded that other prisons have instituted
policies requiring that inmates’ photos be taken
annually and whenever an inmate’s appearance
changes and that those policies reduce the risk of
officers being unable to identify inmates in an escape
situation.
After a two-day bench trial, the district court
ruled that the GDOC’s grooming policy violated
RLUIPA. After examining each of the GDOC’s
asserted compelling interests—“safety, security, and
uniformity, minimizing the flow of contraband,
identification of inmates, hygiene, and cost”—the
district court concluded that the GDOC’s grooming
policy was “underinclusive in many respects,” noting
that “[b]eards [did] not appear to present any more
8a
of a problem than longer head hair or clothes.”1 Even
so, the district court found that the GDOC “ha[d]
offered logical and persuasive reasons to show that
allowing untrimmed beards would be unmanageable
for [it].” The district court noted that the “GDOC has
shown that its low staffing and high turnover rates
play a significant part in its ability to monitor
inmates and conduct searches” and that,
[w]hile three inches of head hair is
manageable, it is plausible that a beard of
unlimited length could be much more
difficult for GDOC to manage given, e.g., its
ability to be used to cause harm in the more
violent male facilities, its ability to hide
contraband more easily, the added difficulty
in searching an untrimmed beard, and its
ability to disguise a face.
Thus, the district court reasoned that, although
the “GDOC . . . offered persuasive reasons why it
cannot allow untrimmed beards at this time for
which deference [was] due,” “the same reasons
[were] not nearly as persuasive when applied to a
three inch-beard.” It found that “a three-inch beard
cannot as easily be grabbed and used to cause
harm.” It found that inmates hiding contraband in
three-inch beards is not a “plausible concern,” given
that the GDOC allows male inmates to grow head
hair up to three inches long. It also found that the
“GDOC ha[d] not shown that it could not effectively
implement a three-inch beard policy and still
GDOC’s grooming policy allows male inmates to grow
their head hair up to three inches long and allows female
inmates to grow their head hair to any length.
1
9a
successfully identify inmates after they shave” by
taking regular photographs annually and when an
inmate’s appearance changes, as was “already
require[d]” by the GDOC’s policies.
As to Smith in particular, the district court
found that “it is plausible that allowing a close
security inmate like Smith an untrimmed beard
could be dangerous for prison security,” given
Smith’s “criminal history and disciplinary issues.”
But it found that the same reasoning was
“unpersuasive in the context of allowing a three-inch
beard because GDOC ha[d] presented little evidence
to show that a three-inch beard is a significant
security concern, and it already allows three-inch
head hair.”
Accordingly, the district court declared that the
GDOC’s grooming policy violated RLUIPA and
ordered the GDOC to “modify its grooming policy to
allow inmates qualifying for a religious exemption to
grow a beard up to three inches in length . . . subject
to revocation based on the inmate’s behavior and
compliance with the revised grooming policy.” It also
ordered the GDOC to provide Smith with such an
exemption. Smith and the GDOC both appealed,
challenging the three-inch compromise.
III. Standard of Review
We review the district court’s legal conclusions
de novo and its factual determinations for clear
error. Knight v. Thompson, 797 F.3d 934, 942 (11th
Cir. 2015). A factual determination is clearly
erroneous only if we are left with “a definite and firm
conviction that a mistake has been committed.” Id.
10a
IV. Discussion
Smith’s religious challenge to the GDOC’s halfinch beard-length policy arises under RLUIPA,
which provides that the government may not
impose a substantial burden on the religious
exercise of a person residing in or confined to
an institution . . . unless the government
demonstrates that imposition of the burden
on that person . . . is in furtherance of a
compelling governmental interest; and . . . is
the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-1(a). The parties do not dispute
that the GDOC’s half-inch beard-length policy
substantially burdens Smith’s religious exercise
because it does not allow Smith to grow an
untrimmed beard. Thus, the question here is
whether the GDOC demonstrated that its half-inch
grooming policy is the least restrictive means of
furthering its compelling interests.2 See Holt, 574
U.S. at 362–64; Smith, 848 F.3d at 979–80; Knight v.
2 Smith does not dispute that the GDOC’s stated interests
related to his request to grow an untrimmed beard—“safety,
security, and uniformity, minimizing the flow of contraband,
identification of inmates, hygiene, and cost”—are compelling
state interests. We have characterized these interests as
compelling. See Knight, 797 F.3d at 944 (recognizing
“compelling interests in security, discipline, hygiene and safety
within . . . prisons”); Lawson v. Singletary, 85 F.3d 502, 512
(11th Cir. 1996) (per curiam) (“It is well established that states
have a compelling interest in security and order within their
prisons.”).
11a
Thompson, 796 F.3d 1289, 1292 (11th Cir. 2015) (per
curiam) (“Knight II”).
A. The District Court’s Erroneous ThreeInch Beard Compromise
In the district court, Smith pursued only one
remedy—the ability to grow an untrimmed beard. As
we summarized Smith’s claim during his previous
appeal: “[t]hroughout the course of this litigation,
Smith [has] consistently expressed his belief that
cutting his beard (without qualification as to length)
contravenes the teachings of Islam.” Smith, 848 F.3d
at 978.
At trial after remand, however, the district court
awarded a remedy that Smith never requested—the
ability to grow a trimmed beard up to three inches in
length. Tellingly, Smith cross-appealed from the
district court’s judgment because it did not grant
him the relief he had requested. Smith calls the
three-inch beard ruling “an arbitrary compromise
without actual record support.”
The district court erred in awarding a remedy
Smith did not request. In Holt, the Supreme Court
applied RLUIPA’s least-restrictive-means test by
assessing only whether the state could refute the
petitioner’s proposed alternative policy—a half-inch
beard—not the universe of all possible alternatives.
In particular, the Court noted that, once the
petitioner showed that the prison’s grooming policy
substantially burdened his exercise of religion, “the
burden shifted to the Department to show that its
refusal to allow petitioner to grow a ½-inch beard”
furthered a compelling governmental interest and
was the least restrictive means of doing so. 574 U.S.
12a
at 362 (emphasis added). Thus, to satisfy the leastrestrictive-means test of RLUIPA, the GDOC was
only required “to prove that petitioner’s proposed
alternatives would not sufficiently serve its security
interests.” Id. at 367 (emphasis added); United
States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir.
2011) (explaining that, to meet its burden, the
government “must refute the alternative schemes
offered by the challenger”). It was not “required to
refute every conceivable option.” Wilgus, 638 F.3d at
1289 (quotation omitted).3 Rather, it was required to
3 Wilgus involved the Religious Freedom Restoration Act of
1993 (RFRA), 42 U.S.C. § 2000bb et seq., which applies the
same standard as RLUIPA. See Holt, 574 U.S. at 358. In both
RLUIPA and RFRA cases, other circuits have agreed that the
government need not refute “every conceivable option” to
satisfy the least-restrictive-means test. See Spratt v. R.I. Dep’t
of Corr., 482 F.3d 33, 41 n.11 (1st Cir. 2007) (“[W]e do not
construe RLUIPA to require prison administrators to refute
every conceivable option in order to satisfy the least restrictive
means prong.” (quotation omitted)); May v. Baldwin, 109 F.3d
557, 563 (9th Cir. 1997) (explaining that prison officials are not
required to refute every conceivable alternative); Hamilton v.
Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996) (“It would be a
herculean burden to require prison administrators to refute
every conceivable option in order to satisfy the least restrictive
means [test].”).
As the Tenth Circuit explained in Wilgus:
The task of deciding whether a particular regulatory
framework is the least restrictive—out of all
conceivable—means of achieving a goal virtually begs
a judge to go on a fishing expedition in his or her own
mind without tethering the inquiry to the evidence in
the record. It is incumbent upon us, therefore, to limit
ourselves to consideration of the alternative
regulation schemes proffered by the parties, and
supported in the record. A statute that asks whether a
regulation is the least restrictive means of achieving
13a
refute only the one alternative Smith proposed—that
he be allowed to grow an untrimmed beard.4
The dissent contends that requiring the GDOC
to allow Smith to grow a three-inch beard was an
“available alternative remedy” of which both Smith
and the GDOC were aware during the district court
proceedings and that the GDOC was “on notice that
a three-inch remedy was a possible outcome here.”
But the parties were under no obligation to address
a possible alternative remedy simply because there
were some stray references to it in the record. Holt
did not establish a “notice” standard. Rather, only
the “petitioner’s proposed alternatives” were at
issue. Holt, 574 U.S. at 367.
Smith never proposed a three-inch beard as an
alternative.5 In his complaint, Smith alleged the
an end is not an open-ended invitation to the judicial
imagination.
638 F.3d at 1289.
That the government must refute only the potential
alternatives offered by the plaintiff is not a rule that appears
on the face of RLUIPA itself. See 42 U.S.C. § 2000cc-1
(providing without further elaboration that the government
must “demonstrate[] that imposition of [a substantial] burden
[on the religious exercise of a person] . . . is the least restrictive
means of furthering [a] compelling governmental interest”).
However, the rule follows from Holt, and we follow the
Supreme Court’s interpretations of federal statutes like
RLUIPA. See EEOC v. Atl. Gas Light Co., 751 F.2d 1188, 1191
(11th Cir. 1985) (“The Supreme Court’s role as final arbiter
encompasses . . . the power to define the meaning of a
statute.”).
4
5 In Holt, by contrast, the petitioner specifically “proposed
a ‘compromise’ under which he would grow only a ½-inch
beard.” 574 U.S. at 359.
14a
GDOC was violating his rights under RLUIPA
because he was “being forced to shave his beard.” At
trial, neither Smith nor his counsel indicated that a
three-inch beard would accommodate Smith’s
religious beliefs. During closing argument, Smith’s
counsel reiterated the position that he advanced at
all stages of the district court proceedings:
“Plaintiff’s Muslim faith, which requires him to grow
an untrimmed beard, is burdened by Defendant’s
half-inch beard policy.” And on appeal, Smith asserts
that his “sincere religious beliefs require him to grow
an untrimmed beard” and that “[t]he district court
did err . . . in limiting the relief it ordered to three
inches.” Thus, it is clear that Smith did not propose
a three-inch option.6
6 As the dissent notes, the GDOC asked questions of Smith
(at his deposition) and its own fact witness Holt (at trial) about
shorter beard lengths. The dissent “can think of no reason why
GDOC would refute the feasibility of a three-inch beard as an
alternative unless it knew that alternative was a potential
remedy.” It is not always clear what a plaintiff’s final request
for relief will be before, or even during, trial. It may be that, by
asking questions about other beard lengths before and during
trial, the GDOC was laying a record to oppose such an
alternative if the need arose—which it never did, because
Smith never requested any remedy other than an untrimmed
beard at any point.
Moreover, requiring the government to rebut alternatives
that were barely hinted at in the district court would run afoul
of basic rules of fair notice in our adversarial system. In this
case, the GDOC made only a token effort to address the threeinch alternative—likely because Smith never put the three-inch
option at issue. If Smith had asked the district court to allow
him to grow a shorter beard, the parties presumably would
have put more effort into developing a detailed record
regarding shorter beards. Instead, the district court granted
the three-inch remedy with little to go on.
15a
The district court erred in evaluating the threeinch beard option, which was not an option proposed
by Smith. Instead, under Holt, the district court was
required to determine only if the GDOC had met its
burden in proving that the untrimmed beard option
would not sufficiently serve its security interests.
The district court, in fact, performed this analysis
and found that the GDOC met this burden as to an
untrimmed beard—a finding that, as discussed
below, we affirm.
Accordingly, we vacate the district court’s order
declaring that the GDOC’s halfinch beard policy
violated RLUIPA, requiring the GDOC to modify its
grooming policy to allow three-inch beards for
inmates qualifying for religious exemptions, and
requiring the GDOC to allow Smith to grow a threeinch beard.7
B. The District Court’s Decision that Smith
Is Not Entitled to Grow an Untrimmed
Beard Was Not Clearly Erroneous
As noted above, within its order embracing a
three-inch compromise, the district court correctly
refused to allow Smith to grow an untrimmed beard.
Smith proposed only one alternative to the GDOC’s
half-inch beard policy—he wanted an untrimmed
beard. And the GDOC presented evidence that
Because we conclude that the GDOC’s grooming policy
does not violate RLUIPA, we need not reach the issue of
whether the district court’s statewide injunction requiring the
GDOC to modify its grooming policy and allow any inmate with
a religious exemption to grow a three-inch beard violated the
Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e et seq.
7
16a
untrimmed beards would be unworkable and
dangerous in its prisons, both generally and as
applied to Smith. Hearing this evidence at trial, the
district court found that the GDOC “offered logical
and persuasive reasons to show that allowing
untrimmed beards would be unmanageable for [it]”
as a general matter:
While three inches of head hair is
manageable, it is plausible that a beard of
unlimited length could be much more
difficult for GDOC to manage given, e.g., its
ability to be used to cause harm in the more
violent male facilities, its ability to hide
contraband more easily, the added difficulty
in searching an untrimmed beard, and its
ability to disguise a face. . . . As such, the
Court finds that GDOC has offered
persuasive reasons why it cannot allow
untrimmed beards at this time for which
deference is due.
The district court also analyzed the GDOC’s policy
barring untrimmed beards as applied specifically to
Smith, a convicted murderer and maximum-security
inmate who has had dozens of disciplinary
infractions while incarcerated. Given Smith’s
criminal history and disciplinary record, the district
court found that “it is plausible that allowing a close
security inmate like Smith an untrimmed beard
could be dangerous for prison security.” Neither of
these findings is clearly erroneous.
“For both [the compelling interest and the leastrestrictive-means] prongs of its strict scrutiny test,
RLUIPA mandates an individualized inquiry.”
17a
Tucker v. Collier, 906 F.3d 295, 301 (5th Cir. 2018);
see Smith, 848 F.3d at 981 (“Holt calls for an
individualized, context-specific inquiry.”); Fegans v.
Norris, 537 F.3d 897, 907 (8th Cir. 2008) (same). The
government must “demonstrate that the compelling
interest test is satisfied through application of the
challenged law ‘to the person’—the particular
claimant whose sincere exercise of religion is being
substantially burdened.” Holt, 574 U.S. at 363
(quoting Burwell v. Hobby Lobby Stores, Inc., 573
U.S. 682, 726 (2014)). Consistent with that
principle—and with Holt—when this case was last
before us, we remanded it to the district court for “an
individualized, context-specific inquiry that requires
the GDOC to demonstrate that application of [its]
grooming policy to Smith furthers its compelling
interests.” Smith, 848 F.3d at 981 (emphasis in
original).
The district court did not clearly err in finding,
based on the GDOC’s evidence at trial, that allowing
any inmate, including Smith, to grow an untrimmed
beard presents safety and security risks. The
GDOC’s witnesses, Angelone and Holt, testified that
untrimmed beards raise concerns about inmates
hiding contraband and altering their appearance to
avoid identification, as well as injuring each other by
grabbing beards during altercations.
The GDOC’s concerns are not theoretical. Holt
testified that the GDOC previously discovered an
inmate with a homemade handcuff key in his beard,
which “creates a major risk primarily for escape” and
“the assault of an officer” given that handcuff keys
allow an inmate to get out of his restraints. The
GDOC has discovered other dangerous items in its
prisons that can be hidden in untrimmed beards,
18a
such as shanks and cell phones. Similarly, Angelone
testified about dangerous items and contraband that
have been discovered in VDOC inmates’ beards. Holt
and Angelone also testified about past incidents
where inmates with beards escaped and then shaved
their faces, which hindered officers’ ability to
identify and capture them.
At trial, the GDOC also distinguished its halfinch-beard policy from its policies allowing male
prisoners to grow three inches of head hair and
allowing female prisoners and staff to wear head
hair of any length. As the district court found, the
GDOC “show[ed] that its female inmates are less
violent” than its male inmates. The GDOC also
established through witness testimony that, “[w]hile
three inches of head hair is manageable,” an
untrimmed beard plausibly could be used to cause
injury, hide contraband, and disguise an inmate.
The GDOC likewise demonstrated at trial why
permitting Smith in particular to grow an
untrimmed beard would harm its interests in safety
and security. Smith is serving a life sentence in a
close security prison for murder and armed robbery,
among other offenses. He has an extensive
disciplinary record and has been found guilty of
assaulting correctional officers and other inmates;
threatening
correctional
officers;
possessing
weapons, cell phones, and contraband; and
disobeying the GDOC’s grooming policy.
We must give “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.” Cutter v. Wilkinson, 544 U.S. 709, 723
19a
(2005); see id. at 722 (stating that RLUIPA does not
“elevate accommodation of religious observances
over an institution’s need to maintain order and
safety”); see also Knight, 797 F.3d at 943–44
(discussing Cutter). Although the GDOC is not
entitled to unquestioning deference, the evidence
that it provided at trial is similar to the “expert
opinions, lay testimony, and anecdotal evidence
based on . . . decades of combined experience as
corrections officers” that we accepted in previous
cases, such as Knight.8 797 F.3d at 939–40, 944–47.
Given Smith’s criminal and disciplinary history,
the testimony from Holt and Angelone, and the
GDOC’s evidence of contraband being hidden in
beards and prior incidents where escaped inmates
with beards shaved their faces to avoid detection, the
district court’s conclusion—that “it is plausible that
allowing a close security inmate like Smith an
untrimmed beard could be dangerous for prison
security”—is not clearly erroneous.
The dissent would hold otherwise. As a threshold
matter, the dissent “do[es] not read” the district
court to have found that allowing untrimmed beards
would be unmanageable and dangerous for the
GDOC. But without that finding, the district court
could not have ruled the way it did. At trial, it was
the GDOC’s burden to establish that it could not
further its compelling interests in prison security,
discipline, hygiene, and safety in a less restrictive
way by allowing untrimmed beards. If the district
In Knight, we affirmed the district court’s ruling that
Alabama’s “exceptionless short-hair policy” for male inmates
was the least restrictive means of furthering compelling
interests in security, discipline, hygiene, and safety. See 797
F.3d at 945–47.
8
20a
court had found that the GDOC had not met that
burden, it would have granted Smith’s requested
relief.
To the contrary, the district court found that the
GDOC “offered logical and persuasive reasons to
show that allowing untrimmed beards would be
unmanageable.” It found that the “GDOC has shown
that its female inmates are less violent” and that
untrimmed beards could “be used to cause harm in
the more violent male facilities.” It found that there
is “added difficulty in searching an untrimmed
beard” and that conducting searches of untrimmed
beards would be “unmanageable for GDOC” given
the GDOC’s low staffing and high turnover rates.
And it found that inmates can “hide contraband
more easily” and “disguise a face” using untrimmed
beards. Thus, the district court found it “plausible
that a beard of unlimited length could be much more
difficult for GDOC to manage.” Similarly, as to
Smith in particular, the district court found that
Smith was a maximum security inmate with a long
disciplinary record, and thus that it was “plausible
that allowing a close security inmate like Smith an
untrimmed beard could be dangerous for prison
security.” All of these were findings of fact that led to
the district court’s ultimate conclusion that RLUIPA
did not entitle Smith to his requested remedy—an
untrimmed beard.
The dissent says the district court’s statements
about how it is “plausible” that untrimmed beards
could be unmanageable and dangerous were not part
of the district court’s findings because “descriptions
of what might or might not be plausible do not
constitute findings of fact.” But courts often find
“facts” of a less-than-certain nature. Indeed, the
21a
district court’s finding based on testimony from
Smith’s expert witness about how allowing prisoners
to practice their religious beliefs “made [other
prison] environment[s] safer”—testimony that, as
the dissent notes, the district court “credited”—was
similarly indeterminate: “[t]hus, it could very well be
that GDOC’s interests in prison safety and security
would be furthered if it allows longer beards.”
The dissent would require the GDOC to show
that “untrimmed beards are actually—not just
plausibly—unmanageable.” The district court did
find that the GDOC made that showing, when it said
“the Court finds that GDOC has offered persuasive
reasons why it cannot allow untrimmed beards at
this time for which deference is due.” In any case, it
would be actually unmanageable to institute a
grooming policy that may plausibly result in harm to
inmates, staff, or the public. The law does not
require prison systems to show with absolute
certainty that an alternative policy will have adverse
effects. It is enough to show the risk of those effects.
See Knight, 797 F.3d at 947 (holding that Alabama
met its burden under RLUIPA where it showed that
the plaintiffs’ requested religious exemption “pose[d]
actual, security, discipline, hygiene, and safety
risks”) (emphasis added). If this were not the case,
the “due deference” courts owe prison systems in
protecting against dangers to safety and security
would have no role to play. Cutter, 544 U.S. at 723.9
9 The dissent notes that “[p]lausibility is what is necessary
to survive a motion to dismiss,” not “a judgment after trial.” At
the motion-to-dismiss stage, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), requires a plausible claim to relief, taking
as true the facts pled in the complaint. 550 U.S. at 556–57, 570.
The district court took no facts as true at trial. It heard and
22a
The dissent characterizes the Court as “tak[ing]
on the role of fact finder” and “reweigh[ing]
evidence” by disregarding the district court’s
relevant findings and relying instead on testimony
the district court discredited. But our analysis
simply tracks how the district court treated the
conflicting testimony offered by the parties at trial.
As the dissent notes, the district court found the
testimony of the GDOC’s witnesses speculative and
uncompelling in several respects. The district court
found that the GDOC entirely failed to establish
safety, security, or manageability concerns regarding
three-inch beards, and that the testimony of Smith’s
expert witness persuasively indicated there were no
such concerns. But the district court also found the
testimony of the GDOC’s witnesses credible and
persuasive in establishing safety, security, and
manageability concerns regarding untrimmed
beards. Only the latter set of findings is relevant for
our review.10 It is true that the district court found
saw evidence and, after having done so, issued findings of fact,
including findings about what is “plausible” based on the
evidence presented.
Thus, the dissent focuses on the wrong part of the
record. It cites the district court’s findings that, e.g., prisoners
can hide contraband in places other than beards, officers can
effectively search beards without putting themselves in danger,
and concerns about prisoners with beards being injured were
“speculative.” Each of these findings related to the district
court’s three-inch compromise policy, not its determination that
Smith is not entitled to grow an untrimmed beard.
Contrary to the dissent’s assertion, there is no need for the
Court to address the district court’s findings about three-inch
beards, or to opine on whether those findings were clearly
erroneous. The three-inch remedy was never proposed by Smith
10
23a
the same testimony persuasive in one part of its
analysis and unpersuasive in another part. But
evidence is often persuasive for one reason and not
for another. It was not clearly erroneous for the
district court to find that the GDOC did not meet its
burden to establish safety, security, and
manageability concerns with respect to shorter
beards, but did with respect to untrimmed beards.
The dissent asserts that, “on this record, the only
permissible conclusion is that RLUIPA entitles Mr.
Smith to grow an untrimmed beard,” and that, if the
district court did make a finding that the GDOC
“offered persuasive reasons why it cannot allow
untrimmed beards,” that finding was clearly
erroneous. The dissent says the district court’s
“findings here in Mr. Smith’s case were resolved
almost entirely against GDOC.” But the district
court resolved factual issues about whether the
GDOC has low staffing and high turnover rates, and
whether an untrimmed beard could potentially be
used to “cause harm in the more violent male
facilities,” to “hide contraband more easily,” and to
“disguise a face,” in favor of the GDOC. The
testimony of the GDOC’s witnesses supported those
findings. That other evidentiary findings by the
district court were a weight in the opposite direction
does not make the district court’s findings about the
risks presented by untrimmed beards clearly
erroneous. “Where there are two permissible views of
the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Solomon v. Liberty
Cnty. Comm’rs, 221 F.3d 1218, 1227 (11th Cir. 2000)
and the district court erred in considering it, whether or not its
factual findings relating to that remedy were accurate.
24a
(quoting Anderson v. City of Bessemer, 470 U.S. 564,
573–74 (1985)).
The dissent also focuses on the differences
between the GDOC’s grooming policy and the
grooming policies of other prisons, asserting that the
“GDOC has not shown how it is different from prison
systems that now successfully accommodate
untrimmed beards.” As the dissent notes, the district
court found that 37 states, the District of Columbia,
and the BOP “allow inmates, either by their
standard policy or through an exemption, to grow a
beard without any length restrictions.”
It is true that, in Holt, the Supreme Court stated
that “the policies followed at other well-run
institutions would be relevant to a determination of
the need for a particular type of restriction.” 574
U.S. at 368. But the Court also wrote:
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 . . . .
Id. at 369. Because the defendants in Holt offered
only their “mere say-so” that they could not
accommodate the plaintiff’s request to grow a halfinch beard, the Supreme Court held that they failed
to show why they were unable to accommodate that
request when “the vast majority of States and the
Federal Government permit inmates to grow ½-inch
beards.” Id. at 368.
25a
Contrary to the dissent’s view, Holt does not
require the GDOC to detail other jurisdictions’
successes and failures with their grooming policies to
satisfy a RLUIPA inquiry. “While the practices of
other institutions are relevant to the RLUIPA
analysis, they are not controlling—the RLUIPA does
not pit institutions against one another in a race to
the top of the risk-tolerance or cost-absorption
ladder.” Knight, 797 F.3d at 947. The GDOC’s
obligation was to show that “its departure from the
practices of other jurisdictions stems not from a
stubborn refusal to accept a workable alternative,
but rather from a calculated decision not to absorb
the added risks that its fellow institutions have
chosen to tolerate.” Id.
The GDOC met this burden. At trial, it
supported its decision to prohibit Smith from
growing an untrimmed beard with documentary
evidence and witness testimony that the district
court credited. The GDOC offered two persuasive
reasons for its decision to continue to prohibit
untrimmed beards although other jurisdictions allow
them. First, the GDOC demonstrated that it has had
specific issues with inmates hiding contraband in
beards and altering their appearance to avoid
identification.11 Second, the district court found that
the GDOC “show[ed] that its low staffing and high
turnover rates play a significant part in its ability to
monitor inmates and conduct searches” and
therefore that “allowing untrimmed beards would be
In Holt, by contrast, the defendants’ witnesses
“expressed the belief that inmates could hide contraband in
even a ½-inch beard, but neither pointed to any instances in
which this had been done in Arkansas or elsewhere.” 574 U.S.
at 359.
11
26a
unmanageable for GDOC.” This case is not one of
“officials’ mere say-so” like in Holt. 574 U.S. at 369.
Nor is it clear that Smith would even be allowed
to grow an untrimmed beard in several of the other
jurisdictions that generally permit inmates to grow
beards without length restrictions. The record
indicates that the grooming policies in many of those
jurisdictions allow an inmate to grow an untrimmed
beard unless the inmate’s appearance violates the
prison’s
requirements
for
safety,
security,
12
identification, and hygiene.
As a convicted
murderer with an extensive disciplinary record,
including infractions involving assault and hiding
weapons and contraband, it is no stretch to think
that Smith might likely qualify for the “safety” and
“security” exceptions in many or all of the
jurisdictions that have them.
The dissent says the GDOC “offered arguments .
. . but not evidence” to support its assertion that “its
prisons are different” than others. The dissent faults
the GDOC for not providing data about, e.g., “the
percentage of violent inmates in other prison
systems.” However, the GDOC did offer evidence
A similar scenario was presented in Knight, which
involved inmates’ challenges to an Alabama policy prohibiting
them from wearing uncut hair. See 797 F.3d at 937. In arguing
that the policy was not the least restrictive means available to
the government, the plaintiffs asserted that several other
prison systems give inmates the freedom to choose their hair
length. See id. at 946–47; Knight II, 796 F.3d at 1293. We noted
that “it is not apparent that the Plaintiffs presented evidence
that all of these 39 other prison systems would allow their
specific requested accommodation—long, unshorn hair,”
because “the policies ma[d]e clear that the chosen hair length
cannot pose risks for health, safety, hygiene, order, or security.”
Knight II, 796 F.3d at 1293.
12
27a
supporting the particular reasons for its decision to
continue with its half-inch beard-length policy—fact
and expert witness testimony, the same type of
evidence this Court found sufficient to meet the
government’s burden in Knight. See 797 F.3d at 939
(holding that Alabama met its evidentiary burden
under RLUIPA with “elucidating expert opinions, lay
testimony and anecdotal evidence based on . . .
decades of combined experience as corrections
officers,” even though the “witnesses offered little
statistical evidence to support their claims”). That
the GDOC did not offer a particular type of evidence
does not mean that it failed to provide proof at all.
The dissent fears that, by affirming the district
court’s finding that the GDOC met its burden under
RLUIPA, we render Holt “meaningless.” In Holt, the
Court said that “prison officials’ mere say-so” is not
enough to distinguish a prison system’s practices
from those of other, more permissive jurisdictions.
Thus, “mere speculation, exaggerated fears, or posthoc rationalizations will not suffice to meet
[RLUIPA’s] requirements.” Knight, 797 F.3d at 944
(quotation omitted). However, a reasonable
evidentiary showing by the government at trial
should be met with the “due deference” courts owe to
prison administrators’ expertise. Cutter, 544 U.S. at
723. This approach strikes the medium the Supreme
Court counseled in Cutter: that RLUIPA should “be
applied in an appropriately balanced way, with
particular sensitivity to security concerns.” Id. at
722.
We affirm the district court’s finding that
allowing Smith to grow an untrimmed beard
presented safety and security risks and would be
unmanageable for the GDOC. That finding was
28a
reasoned and supported by the GDOC’s evidentiary
showing at trial and was not clearly erroneous.
V. Conclusion
For the reasons explained above, the judgment of
the district court is AFFIRMED in part and
VACATED in part.
___________________________
MARTIN, Circuit Judge, dissenting:
As the majority has described, Lester James
Smith is a devout Muslim who is now incarcerated in
a Georgia state prison. Mr. Smith sincerely believes
the tenets of Islam, including that he may not cut his
beard. Georgia’s grooming policy prohibits prisoners
from growing beards longer than a half-inch, so the
Georgia Department of Corrections (“GDOC”) forbids
Mr. Smith from growing the full-length beard his
sincerely held religious beliefs require. Disobeying
GDOC’s policy leads to disciplinary action and Mr.
Smith has been held down and forcibly shaved on
more than one occasion.
Citing its beard policy, GDOC denied Mr.
Smith’s request for a religious accommodation to
grow an untrimmed beard. GDOC’s refusal led Mr.
Smith to file this lawsuit in January 2012. Initially
proceeding pro se, he challenged GDOC’s grooming
policy under the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”),
114 Stat. 803, 42 U.S.C. § 2000cc et seq., alleging
29a
that the policy substantially burdened the exercise of
his sincerely held religious beliefs because he
understands his Muslim faith to prohibit shaving or
cutting his beard. Mr. Smith sought nominal
damages and an injunction requiring GDOC to allow
him to grow his beard without restrictions. Mr.
Smith’s case was finally tried before the District
Court in 2018. Following the trial, in August 2019,
the District Court issued its Order containing
thorough findings of fact and conclusions of law.
The District Court ruled that GDOC’s current
policy permitting only half-inch beards violates
RLUIPA. The court also said that GDOC offered
“logical and persuasive reasons to show that
allowing
untrimmed
beards
would
be
unmanageable.” But the District Court found these
reasons are “not nearly as persuasive when applied
to a three-inch beard.” In this way, the court arrived
at a middle ground, which would allow prisoners
with religious exemptions to grow three-inch beards
as a “reasonable less restrictive alternative.” Relying
on the facts it found after conducting the trial, the
District Court entered a permanent injunction
ordering GDOC to “modify its grooming policy to
allow inmates qualifying for a religious exemption to
grow a beard up to three inches in length.” It also
ordered GDOC to grant Mr. Smith such a religious
exemption.
The majority opinion recites that it affirms the
District Court Order in part and vacates in part.
Maj. Op. at 2–3. But make no mistake, the effect of
the majority opinion is to restrict Mr. Smith to
growing his beard no longer than one-half inch in
length. This is an all-out victory for the GDOC, on a
record that does not support this result. In support
30a
of its ruling, the majority opinion says the District
Court made a finding that if Mr. Smith were allowed
to grow an untrimmed beard, this would be
unmanageable for GDOC and then affirms the
purported finding of the District Court on this point.
Id. at 2. However, I do not read the District Court
Order to have made any such finding. For this and
other reasons, I would allow Mr. Smith to grow an
untrimmed beard, which is the relief he has sought
for over a decade. During the trial of this case,
GDOC was given a full opportunity to prove that it
cannot accommodate untrimmed beards. It utterly
failed to do so. On this record, the law requires
GDOC to permit Mr. Smith to grow his beard uncut.
In the alternative (and given that the majority’s
ruling will serve as an ongoing impediment to Mr.
Smith’s ability to grow the full-length beard his
religion requires), I would affirm the District Court’s
injunction to the extent it orders GDOC to allow
Smith to grow a three-inch beard. Contrary to the
assertions of the majority opinion, the parties were
aware that the relief of a three-inch beard was being
considered, presented testimony about it, and the
District Court was well within its authority to grant
it.
I will first discuss the record before us on appeal.
I will then explain why, on that record, Mr. Smith
must be allowed to grow an untrimmed beard. To
end, I will turn to the District Court’s Order
granting prospective relief.
31a
I.
The District Court made findings after a two-day
bench trial in which GDOC had the opportunity to
prove it could not allow any religious exemption to
its half-inch beard policy because of concerns over
contraband, safety and violence, identification of
prisoners, and hygiene. To that end, GDOC called
two witnesses: Ahmed Holt, GDOC’s Deputy
Director of Field Operations, and Ronald Angelone,
its expert. Mr. Angelone is a former director in the
Virginia Department of Corrections who also worked
in prisons in Illinois, Oklahoma, Texas, and Nevada.
Mr. Smith’s witness, who served as his rebuttal
expert, was John Clark. Mr. Clark is a former
administrator with the Federal Bureau of Prisons
(“BOP”), who worked at six federal prisons over a 44year career in corrections. I now set forth the
evidence presented and findings made with respect
to each of the compelling interests GDOC asserts as
requiring Mr. Smith to cut his beard. My review of
this record reveals a total failure of proof by GDOC.
Contraband. As the majority notes, Mr. Angelone
testified that during his time in Virginia, officers
found several items of contraband in prisoners’
beards, including handcuff keys, razor blades, and
drugs. Maj. Op. at 6. GDOC has also found a
handcuff key hidden in a beard. However, Mr. Holt
testified
that
prisoners
hide
contraband
“[e]verywhere”—“on their person, in their clothing,
in their hair, under their arms, in their orifices.”
And, according to Mr. Angelone, contraband in
beards “does not present different risks or dangers
than contraband in clothes.” Mr. Clark testified that
searches are “a great deterrent” and that with
32a
procedures for routinely searching beards “inmates
are going to put their contraband somewhere else.”
Mr. Clark recounted that the BOP and many state
prisons use a “self-search” method whereby the
prisoner “vigorously frisk[s]” his beard and, if it is
long, twists it from side to side and lifts it up for
inspection. On this record, the District Court
affirmatively made the finding that GDOC “ha[d] not
shown that its concerns about contraband in beards
cannot be addressed by simply searching beards.”
Safety and violence. Although Mr. Holt testified
that a beard can be grabbed with resulting injury to
a prisoner, the District Court found this hazard to be
merely “speculative” because GDOC does not allow
beards longer than a half-inch and Holt “provide[d]
no basis for this opinion.”1 And the court credited
Mr. Clark’s testimony that “in the real world” there
is “no evidence that that’s a risk,” and, in fact, BOP
found that allowing prisoners to practice their
religion “helped prisoners develop themselves” and
“made the environment safer.”
Notwithstanding GDOC’s argument to the
contrary, the District Court found no indication that
“guards would have to physically search inmates’
beards face-to-face and expose themselves to being
struck.” Mr. Smith’s evidence “persuasively
indicate[d] that officers do not have to put
themselves in danger to effectively search a beard.”
The majority relies on this testimony from Mr. Holt
despite the District Court discrediting it. Maj. Op. at 17. As set
out in more detail below, the majority relies on several
discredited portions of the record without ever mentioning the
District Court’s contrary findings related to that evidence. It is
not the proper role of the court of appeals to weigh conflicting
testimony, yet the majority opinion offers no explanation for its
reliance upon testimony rejected by the District Court.
1
33a
And GDOC offered “no logical explanation as to why
it could not use the [self-search] method currently
employed by BOP and other states for searching a
beard.”
Prisoner
identification.
Mr.
Angelone
hypothesized that taking photos when a prisoner’s
appearance changes would be expensive and there
would be no place to store them. Yet the District
Court found GDOC’s policy already requires that
prisoners’ photos be taken annually and whenever
their appearance changes, and that those photos are
stored digitally. The court therefore found that
“GDOC’s concerns about identifying inmates could
be addressed by enforcing the policy that GDOC
already has and making improvements.” The court
also credited Mr. Clark’s testimony that similar
policies have been “successfully implemented around
the country.”
Hygiene. Despite GDOC’s arguments that beards
can create hygiene concerns and hide medical
problems, the District Court found that head hair
presents the same concerns and that GDOC’s
procedures for head hair (requiring inspection
during haircuts) could be implemented for beards.
***
On my review, the testimony and evidence I’ve
outlined fail to support GDOC’s argument that it
cannot accommodate untrimmed beards. Of course
my colleagues disagree with how the District Judge
and I evaluate the evidence. But I hope our debate
about the details of the record does not detract from
the gravity of the majority ruling. It means that Mr.
Smith—a man sentenced to live and die in Georgia’s
34a
prisons—is prohibited from growing the untrimmed
beard his religion requires. Reviewing the entirety of
the findings of fact thoroughly made by the District
Judge, this should not be the result.
II.
Indeed, on this record, the only permissible
conclusion is that RLUIPA entitles Mr. Smith to
grow an untrimmed beard. Because GDOC’s actions
interfere with Mr. Smith’s religious practices, it has
a high bar to clear. RLUIPA gives “expansive
protection” for prisoners’ religious liberty. Holt, 574
U.S. at 358, 135 S. Ct. at 860. Under RLUIPA, a
prison is not allowed to “impose a substantial
burden” on a prisoner’s “religious exercise” unless
doing so satisfies strict scrutiny: The challenged
policy must be “the least restrictive means of
furthering [a] compelling governmental interest.” 42
U.S.C. § 2000cc-1(a). No one here disputes that Mr.
Smith’s religion forbids him from cutting his beard,
so any policy that forces him to do so substantially
burdens his religious exercise. To satisfy RLUIPA,
then, GDOC is required to “prove” that forbidding
Mr. Smith from growing an untrimmed beard is the
least restrictive means of furthering its compelling
interest. Holt, 574 U.S. at 364, 135 S. Ct. at 864.
This standard is “exceptionally demanding.” Id.
(quotation marks omitted). If any “less restrictive
means is available for the Government to achieve its
goals, the Government must use it.” Id. at 365, 135
S. Ct. at 864 (quotation marks omitted). Said
another way, unless GDOC proves it cannot
accommodate untrimmed beards, it must allow
35a
them. GDOC utterly failed to make this required
showing.
A.
To begin, GDOC has not shown how it is
different from prison systems that now successfully
accommodate untrimmed beards. In Holt, the
Supreme Court made clear that “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.” Id. at 369, 135
S. Ct. at 866. Here, the District Court found that 37
states, the District of Columbia, and the BOP allow
prisoners to grow beards “without any length
restriction.”2
The majority downplays the District Court’s finding
about the overwhelming number of other prison systems that
allow untrimmed beards by speculating that Mr. Smith would
not be allowed to grow his beard uncut in those prisons. See
Maj. Op. at 26–27. The record does not bear this out. True, Mr.
Clark testified that some other prison systems disallow
untrimmed beards on an individual basis where there is a
“documented” and “compelling” reason that a prisoner’s uncut
beard itself threatens safety, security, or sanitation. But when
asked whether Mr. Smith’s disciplinary record would prevent
him from growing an untrimmed beard in other facilities, Mr.
Clark responded: “I don’t agree with that at all. I don’t see
there’s any correlation there. I had inmates who had killed
staff who wore beards . . . . [T]he beard restriction would only
come up if the beard had been used in contravention of the
grooming policy[.]” Mr. Clark explained that even for prisoners
“who’ve made mistakes and sometimes continue to make
mistakes in prison,” this “doesn’t rise to the level of reducing
their religious privileges.” As for hygiene, Mr. Smith’s religion
requires him to maintain neatness and cleanliness, including in
his facial hair. And the District Court noted there is “no
evidence” that Mr. Smith has any hygiene problems at GDOC.
2
36a
Although GDOC argued at trial that “its prisons
are different because they house a large number of
more violent inmates and they don’t have the same
staff ratios and resources to accommodate beards,” it
offered no meaningful evidence to support that
factual assertion. In other words, GDOC offered
arguments—“mere say-so”—but not evidence. See
Holt, 574 U.S. at 369, 135 S. Ct. at 866. Based on
GDOC’s offering, the District Court found, consistent
with the record, that the “only specific differences”
GDOC identified were that “California has cat walks
and AR-15s and New York has better staffing
ratios.” But the court noted that GDOC provided “no
information on the percentage of violent inmates in
other prison systems, gang membership in other
prison systems, or inmates serving a life sentence in
other prison systems,” information that is easily
attainable. Indeed, the court found GDOC “ha[d] not
even attempted to determine how other states
manage inmates with beards.” This may well be
because other prison systems manage untrimmed
beards just fine. As the United States Department of
Justice explained during oral argument: “BOP does
allow untrimmed beards, [and] it has for more than
four decades. . . . BOP has managed the nation’s
largest correctional system under the same
heightened scrutiny standard as RLUIPA and does
so while maintaining prison security, public safety,
and the constitutional rights of other prisoners.”
Oral Arg. at 25:39–26:18.
The legal standards governing religious practices
do not allow GDOC to meet its heavy evidentiary
burden by merely offering unsubstantiated
arguments. Holt is clear that “prison officials’ mere
say-so” that they cannot accommodate untrimmed
37a
beards is not sufficient. 574 U.S. at 369, 135 S. Ct. at
866. As I understand the majority’s analysis, it
requires courts to accept any assertion a prison
official makes, even where there is a lack of easily
attainable factual support for that assertion. That
approach is inconsistent with Holt.
The majority supports its conclusion GDOC met
its burden here by suggesting that our Court’s
precedent in Knight v. Thompson, 797 F.3d 934
(11th Cir. 2015), did away with any need for GDOC
to persuasively explain why it cannot make the exact
same accommodations made by other prisons. See
Maj. Op. at 24–27. But the majority’s reliance on
Knight is misplaced. See id. & n.12. Knight was
before our Court on remand for reconsideration in
light of the Supreme Court’s decision in Holt. See
Knight v. Thompson, 796 F.3d 1289, 1291 (11th Cir.
2015) (per curiam). Notwithstanding Holt, the
Knight panel held that Alabama’s prison policy
forbidding long head hair survived RLUIPA scrutiny
because (1) Alabama prison officials, unlike those in
Holt, gave articulable and detailed reasons why long
hair would compromise security, and (2) it was not
“apparent” that other prison systems actually
permitted long head hair. Id. at 1292–93. In so
holding, the Knight panel emphasized that the
“persuasive reasons” burden from Holt was satisfied
because the District Court made detailed “factual
findings concerning inmates’ hair length” based on
evidence presented by both parties. Id. at 1292. For
example, the trial court in Knight found that
“inmates can use long hair to alter their
appearances,” “inmates can manipulate self-searches
of hair,” and “permitting inmates to have long hair
38a
would make searches for contraband more difficult
and more lengthy.” Knight, 797 F.3d at 940.
In stark contrast, the District Court’s findings here
in Mr. Smith’s case were resolved almost entirely
against GDOC. Rather than finding, for example,
that prisoners can “manipulate self-searches” of
beards, the District Court’s finding regarding
searches favors Mr. Smith: “officers do not have to
put themselves in danger to effectively search a
beard.” And many of the District Court’s findings
here addressed the total lack of evidence supporting
GDOC. For example, the court said “GDOC offered
no evidence showing that states that allow beards
experience more . . . issues.” Unlike in Knight, then,
the District Court’s findings do not support the
conclusion that GDOC offered “persuasive reasons”
for why it cannot allow untrimmed beards like the
majority of other prisons. Also unlike in Knight,
where the District Court said it was not “apparent”
from the record that other prisons would allow long
hair, 796 F.3d at 1293, this District Court found as a
matter of fact that 37 states and the federal
government allow full-length beards, either for all
inmates or as a religious exemption.
GDOC is required to do more than articulate
mere arguments for why Georgia is uniquely unable
to manage untrimmed beards. But that is all it did.
Even so, the majority allows GDOC to forbid
prisoners from following the tenets of their religion
requiring untrimmed beards. I fear the majority
opinion renders the Supreme Court’s command in
Holt meaningless, such that prisons in Alabama,
Georgia, and Florida can now unjustifiably deny
prisoners religious freedoms they would enjoy almost
everywhere else in the country.
39a
B.
GDOC also failed to carry its stringent burden to
“prove” that forbidding Mr. Smith from growing an
untrimmed beard is the least restrictive means of
furthering its compelling interest in prison safety
and security.3 Holt, 574 U.S. at 364, 135 S. Ct. at
864. The District Court found prisoners can hide
contraband regardless of whether they have a beard
and that contraband in beards does not pose a
The majority opinion emphasizes the District Court’s
statements that “it is plausible that a beard of unlimited length
could be much more difficult for GDOC to manage” and “it is
plausible that allowing a close security inmate like Smith an
untrimmed beard could be dangerous for prison security.” See,
e.g., Maj. Op. at 15–16. In doing so, the majority characterizes
these statements as “findings” that are not clearly erroneous.
See, e.g., id. at 15. Yet descriptions of what might or might not
be plausible do not constitute findings of fact.
In any event, plausibility cannot carry the day at this
stage in the litigation. Plausibility is what is necessary to
survive a motion to dismiss, Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556–57, 127 S. Ct. 1955, 1965–66 (2007). Mere
plausibility cannot support a judgment after trial. Instead, to
obtain judgment under RLUIPA, GDOC must carry its burden
to “prove” it cannot accommodate untrimmed beards. Holt, 574
U.S. at 364, 135 S. Ct. at 864. This means GDOC must show
untrimmed beards are actually—not just plausibly—
unmanageable. I do not understand the District Court to have
made any such finding. Besides, to the extent the District
Court’s statement that GDOC had “offered persuasive reasons
why it cannot allow untrimmed beards” does constitute a
finding of fact, it is clearly erroneous. It flies in the face of the
utter lack of any record evidence showing Georgia’s prisons face
problems with untrimmed beards that do not exist in other
prisons. Perhaps this skilled and experienced District Judge
characterized GDOC’s offering as “plausible” in an effort to
have the parties accept his compromise resolution of this
dispute after a decade of litigation.
3
40a
uniquely unmanageable risk. This finding was based
in part on admissions from Mr. Holt and Mr.
Angelone—GDOC’s witnesses—that prisoners can
hide
contraband
“[e]verywhere”
and
that
“contraband in beards does not present different
risks or dangers than contraband in clothes.” And
the court found that the evidence “persuasively
indicates that officers do not have to put themselves
in danger to effectively search a beard.” Indeed, to
the contrary the court found “the record shows that
officers should use the safest method of searching,”
which is the “vigorous self-search” method used by
the BOP and other states’ prisons to search fulllength beards. GDOC also failed to present evidence
that beards are more likely than long hair to be
grabbed and cause injury. It is a matter of record
that GDOC permits long hair for female prisoners
and staff. And the District Court credited Mr.
Clark’s testimony that allowing prisoners to practice
their religion “helped prisoners develop themselves”
and “made the environment safer.” Indeed, my
review of this record leads me to believe that forcibly
holding Muslim prisoners down and shaving their
beards presents more of a security risk to the guards
than having prisoners search their own beards.
Beyond that, this record is devoid of evidence that
allowing untrimmed beards would lead to jealousy
on the part of non-Muslim prisoners, gang
identification among Muslim prisoners, or hygiene
problems for those with untrimmed beards. For
example, Muslim prisoners can already identify
themselves by wearing kufis, yet GDOC offered no
evidence of gang affiliation or jealousy problems in
this regard. Finally on this point, the record also
reflects that untrimmed beards can be inspected for
41a
health reasons during regular haircuts, and Mr.
Smith testified that his religion requires keeping his
facial hair neat and clean.
The majority opinion never explains how the
District Court findings on safety and security are
clearly erroneous. Rather, the majority says these
are not the relevant findings to consider when
evaluating Mr. Smith’s request to grow an
untrimmed beard. Maj. Op. at 22 & n.10. Because
the District Court makes these findings in the
section of its Order ruling that a three-inch
compromise is appropriate, the majority says, we
cannot consider those findings when considering
whether Mr. Smith can have an uncut beard. Id. To
be sure, the District Court made some of these
findings in arriving at its compromise three-inch
solution, but our obligation to consider a factual
finding does not disappear once we reject the remedy
crafted by the court. The testimony on which the
District Court based its findings was given on the
topic of untrimmed beards. In finding GDOC failed
to demonstrate that beards posed problems with
contraband, searches, or violence, the District Court
relied heavily on the testimony of Mr. Clark who
spoke to his experience in the BOP which allows
untrimmed beards. As one specific example, the
District Court found GDOC could adopt the selfsearch method used by the BOP on untrimmed
beards.
Indeed, it is the majority’s opinion that “focuses
on the wrong part of the record.” Maj. Op. at 22 n.10.
To support its conclusion that GDOC met its
stringent burden to prove it cannot accommodate
untrimmed beards, the majority relies on testimony
from GDOC’s witnesses that untrimmed beards raise
42a
concerns about prisoners “hiding contraband,”
“altering their appearance to avoid identification,”
and “injuring each other by grabbing beards during
altercations.” Id. at 17. But the District Court
systematically rejected this evidence. After
considering the very testimony relied upon by the
majority, the District Court found: (1) “GDOC has
failed to demonstrate why beards would pose a
contraband problem if they were searched along with
head hair”; (2) “GDOC’s concerns about identifying
inmates could be addressed by enforcing the [photo]
policy that GDOC already has and making
improvements”; and (3) GDOC’s testimony “that a
beard can be grabbed and cause injury to an inmate”
appeared “speculative” because “beards longer than
a half-inch are not allowed by GDOC inmates” and
GDOC’s witness “provide[d] no basis for this
opinion.” The majority opinion never rejects these
findings as clearly erroneous. Rather, the majority
takes on the role of fact finder—digging through
testimony to support its own fact-finding, while
shunning the facts actually found by the District
Court.4 It is not the proper role of the court of
The majority says the District Court resolved these factual
issues in favor of GDOC but, again here, all the District Court
said was “it is plausible that a beard of unlimited length could
be much more difficult to manage” given its ability to cause
harm, hide contraband more easily, and disguise a face. Of
course, GDOC’s witnesses testified that untrimmed beards
would be unmanageable in those ways. But as I set out above,
when the District Court considered this testimony in light of
the rest of the record, it systematically rejected it as
“speculative,” having “no basis,” or constituting a “fail[ure]” of
proof. While it may be true that evidence can be “persuasive for
one reason and not for another,” Maj. Op. at 23, evidence
cannot be “speculative” or have “no basis” for one assertion and
not for another.
4
43a
appeals to reweigh evidence for itself simply because
it does not like the findings made by the District
Court.
The evidence and the corresponding findings by
the District Court lead to only one conclusion: GDOC
failed to meet its burden under RLUIPA to prove
that it cannot accommodate untrimmed beards.
GDOC should therefore be ordered to allow Mr.
Smith to maintain the uncut beard dictated by his
faith. Because today’s decision ignores GDOC’s
absolute failure of proof, Mr. Smith will continue to
be forced to violate his religious beliefs by cutting his
beard.
III.
Even though I believe the District Court should
have ordered GDOC to permit Mr. Smith to grow an
untrimmed beard, I will also address the prospective
relief actually awarded in this case. In addition to
holding that GDOC’s half-inch beard policy violates
RLUIPA, the District Court ordered GDOC to modify
its statewide grooming policy to permit beards up to
three inches in length. The majority opinion vacates
this portion of the District Court’s Order. Maj. Op. at
15. According to the majority, the three-inch remedy
is inappropriate because Mr. Smith never requested
it. Id. at 11–15. However, a review of the trial record
demonstrates GDOC was fully aware that
permitting Mr. Smith to grow a three-inch beard was
a possible resolution of the case.
Far from containing only “stray references” to a
three-inch alternative, this record demonstrates
everyone was aware that a policy permitting threeinch beards was an available alternative remedy.
44a
See id. at 13. The District Court understood the
three-inch alternative to be consistent with Mr.
Smith’s deposition testimony that his religious
beliefs meant that, if he must cut his beard, “it has
to be no [shorter] than a fistful in length.”5 And
GDOC was obviously on notice that a three-inch
remedy was a possible outcome here. In its summary
judgment briefing, GDOC expressly disputed that
permitting fist-length beards was a reasonable
alternative. It also addressed this issue at trial.
GDOC’s witness explained that GDOC had “concerns
with beards that may be limited to three or four
inches[.]” GDOC’s witness also testified that
“[c]ontraband can be easily hidden in those [three- or
four-inch] beards” and provided examples. I can
think of no reason why GDOC would refute the
feasibility of a three-inch beard as an alternative
unless it knew that alternative was a potential
remedy. Just because neither party is happy with
the District Court’s ruling doesn’t necessarily mean
it’s wrong.
***
Mr. Smith is sentenced to spend the rest of his
life behind bars. As a result of today’s decision, he
will live out his life in a manner that fundamentally
violates the tenets of his religious beliefs. This
profoundly flawed outcome is all the more tragic
because it relies on little more than speculation
offered by his jailers about the problems untrimmed
5 The District Court found, consistent with the findings made
by courts in similar cases, that “fist-length” translates to three
to four inches. I do not understand GDOC to dispute this
finding.
45a
beards could cause. If he were in almost any other
facility in our country, Mr. Smith would not be
forced to live this way. But because he is
incarcerated within our Circuit, he has no relief for
this egregious violation of his religious rights.
I respectfully dissent.
46a
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CASE NO.: 5:12-CV-26 (WLS)
LESTER JAMES SMITH,
Plaintiff,
v.
GREGORY DOZIER,
Defendant.
BENCH OPINION
I. Procedural Background
On January 24, 2012, Plaintiff filed a pro se
Complaint alleging that the Georgia Department of
Corrections’ (“GDOC’s”) grooming policy violates the
Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. (Doc. 1;
see Doc. 183-22 at 6-7.) Because the policy forbids
inmates from growing facial hair in excess of one
half-inch in length (Doc. 183-22 at 7), Plaintiff
pleaded that the grooming policy substantially
burdens the exercise of his sincerely held religious
beliefs because Islam prohibits him from shaving his
beard. (Doc. 1.) Plaintiff sought nominal damages
and an injunction to allow him to grow a beard for
religious reasons. (Doc. 1 at 5.) After the Court
granted Defendant’s first Motion for Summary
Judgment, Plaintiff appealed to the Eleventh Circuit
on March 6, 2014. (See Docs. 125 & 129.)
47a
On February 17, 2017, the Eleventh Circuit
vacated and remanded this case, instructing this
Court to analyze Plaintiff’s RLUIPA claim in a
manner consistent with Holt v. Hobbes, 135 S. Ct.
853 (2015). Smith v. Owens, 848 F.3d 975, 981 (11th
Cir. 2017). The Eleventh Circuit also appointed
Plaintiff counsel, and Plaintiff’s appointed counsel
continues to represent him in this case. Smith, 848
F.3d at 978; (see Docs. 149 & 212).
On remand, this Court adopted U.S. Magistrate
Judge Charles Weigle’s Recommendation to deny
both Parties’ Motions for Summary Judgment and
set the case for a non-jury trial because Plaintiff was
only authorized to receive injunctive and declaratory
relief. The Court held a bench trial in this case on
November 5-6, 2018. (See Docs. 228 & 229.) The
Parties submitted exhibits and filed posttrial closing
arguments, along with proposed findings of fact
and conclusions of law. (Docs. 231, 232, 238, 239,
240.)
Rule 52(a) of the Federal Rules of Civil
Procedure requires that after a non-jury trial, a
court must “find the facts specially and state its
conclusions of law separately” and that judgment be
entered under Rule 58. Accordingly, having reviewed
the evidence and briefs in their entirety, the Court
makes the following findings of fact and conclusions
of law.
II. Findings of Fact
GDOC has approximately 53,000 inmates and is
the fourth largest prison system in the country. (Doc.
235 at 25.) Approximately 67% of those in its inmate
population were convicted of violent or sexual
48a
offenses, and that number rises to 81% in the close
security prisons. Id. at 26. Gangs within the prison
system use physical features to identify themselves,
and gang identification can lead to violence within
prisons. Muslim inmates have been known to grow
their beard and trim their mustache as a way to
identify with other Muslims, and they sometimes
engage in violence or smuggling of contraband as a
group, similar to gangs. (Doc. 235 at 34, 130-131.)
Muslim inmates can also self-identify by wearing
kufis on their head, but kufis are not always worn by
Muslim inmates. (Doc. 235 at 131.) Turnover of staff
in GDOC’s prisons is high, and it is unable to fill all
of its security positions. GDOC is unaware of the
percentage of violent offenders or gang members at
non-GDOC prisons. (Doc. 190-3 at 5.)
Plaintiff Lester James Smith is an inmate in the
custody of the GDOC serving a life sentence for
murder and armed robbery, among other convictions.
(Doc. 183-3 at 12:12- 13:22.) Smith has been housed
at various prisons, and at the time of the bench trial
was housed at Telfair State Prison, a close security
prison for inmates at a high-risk for violence or
escape. Smith has been classified as a close security
prisoner, although a prisoner’s classification can
change based on his disciplinary issues or
participation in groups and programming. While in
prison, Smith has been found guilty of numerous
disciplinary offenses, including, inter alia, failure to
follow instructions, insubordination, possession of a
weapon, possession of a cell phone, possession of a
drug or narcotic, under the influence of drugs,
bribery, injury to an officer, and injury to an
inmate/oneself. (Doc. 183-6.)
49a
Smith is also a Muslim, and has a sincere belief
in the tenets of Islam, including the tenet that he not
trim his beard and, that if he must trim it, to
maintain at least a fistful of beard hair. (See Doc.
183-3 at 25.) As a result, Smith requested a religious
accommodation from GDOC to be allowed to grow a
beard, but his request was denied because GDOC’s
policy prohibits inmates from growing a beard longer
than one half-inch for any reason. (Doc. 190-3 at 3.)
Contraventions of GDOC’s policy will lead to
disciplinary action, and Smith has been forcibly
shaven on at least three prior occasions. Id. at 2.
Smith’s affinity for his Muslim brothers has also
induced Smith to violence within Georgia’s prisons.
For example, in one incident where his Muslim
“brother” was talking with the lieutenant about
getting his property back, the argument escalated
and after the officers allegedly “jumped on” the
inmate, Smith intervened and was given a
disciplinary charge for his behavior. (Doc. 183-3 at
35.) In another incident where one of his Muslim
“brothers” was allegedly jumped on by officers,
Smith alleges that he and half of the dorm got
involved, and that Smith struck one of the officers
with his fist. Id. at 38-39.
Previously, GDOC did not allow beards of any
length, but after the U.S. Supreme Court held that
Arkansas Department of Corrections’ grooming
policy violated RLUIPA insofar as it prevented the
petitioner from growing a half-inch beard,1 GDOC
changed its policy to allow half-inch beards. Smith v.
Owens, 848 F.3d 975, 978 (11th Cir. 2017); (Doc. 18322 at 7.) GDOC’s policy states that “[b]eards cannot
1 Holt v. Hobbs, 135 S. Ct. 853 (2015).
50a
be worn without a mustache.” (Doc. 183-22 at 7.)
GDOC’s policy also allows male inmates to grow
their head hair to three inches in length and allows
female inmates to grow their head hair to any
length. (Doc. 183-22 at 6-8.) Georgia is among a
small minority of states that restricts beards to one
half-inch or less and does not allow any religious
exemptions. Thirty-seven states, as well as the
District of Columbia and the Federal Bureau of
Prisons (“BOP”), allow inmates, either by their
standard policy or through an exemption, to grow a
beard without any length restriction. The BOP
allows inmates to grow their head and beard hair to
any length. When searching prisoners, the BOP uses
a self-search method where inmates are required to
vigorously frisk, twist, and move their own beards,
and doing so can deter inmates from using their
beards to hide contraband. (Doc. 236 at 116-119.)
III. Conclusions of Law
Congress enacted the Religious Freedom
Restoration Act of 1993 (“RFRA”) to “provide greater
protection for religious exercise than is available
under the First Amendment.” Holt, 135 S.Ct. at 85960 (explaining that RFRA was the precursor to
RLUIPA). Congress mandated that the concept of
religious exercise under RLUIPA “be construed in
favor of a broad protection of religious exercise, to
the maximum extent permitted by . . . the
Constitution.” Id. at 860 (citation omitted). Pursuant
to RLUIPA, once a claimant establishes that a policy
substantially burdens his exercise of a sincerely held
religious belief, the government must prove that the
challenged policy (1) furthers a compelling
51a
government interest and (2) is the least restrictive
means of furthering the identified governmental
interest. 42 U.S.C. § 2000cc-1(a); Holt, 135 S. Ct. at
863. Courts cannot “elevate accommodation of
religious observances over an institution’s need to
maintain order and safety,’ and an accommodation
must be measured so that it does not override other
significant interests.’” Knight v. Thompson, 797 F.3d
934, 943 (11th Cir. 2015) (citation omitted).
Nonetheless, “‘[t]he least-restrictive-means standard
is exceptionally demanding,” and it requires the
government to “‘sho[w] that it lacks other means of
achieving its desired goal without imposing a
substantial burden on the exercise of religion by the
objecting part[y].’” Holt, 135 S.Ct. at 864.
Plaintiff argues that most other states have a
less restrictive alternative than GDOC’s half-inch
beard policy and that GDOC’s policy is not the least
restricted means of furthering its asserted interests.
(Doc. 177-1.) GDOC admits that its grooming policy
limiting inmates’ beards to a half-inch substantially
burdens Smith’s exercise of a sincerely held religious
belief. (Doc. 190-3 at 1, 3; Doc. 183-1 at 7 n.3.) This
fact is supported by the record: Smith converted to
Islam over eight years ago, sincerely believes in the
religion, and the policy prevents him from growing a
beard in accordance with his religion and punishes
him if he does so. (See Docs. 183-3 & 183-22.)
However, GDOC argues that there are numerous
compelling governmental interests served by
enforcing a policy that limits beard length: safety,
security, and uniformity, minimizing the flow of
contraband, identification of inmates, hygiene, and
cost. (Doc. 183-1.) The Court agrees that, generally,
52a
these are compelling governmental interests;2 thus,
the Court must determine whether GDOC’s
grooming policy furthers those interests using the
least restrictive means.
A. Under-inclusiveness of GDOC’s
Grooming Policy
A policy is underinclusive when it prohibits a
type of activity to further the government’s interests
but does not prohibit analogous conduct that poses
similar risks to the same alleged interests. See
Church of the Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520, 547 (1993). The under-inclusiveness of
a policy indicates that it may not be the least
restrictive means of furthering a particular interest.
See Holt, 135 S.Ct. at 866. For the reasons that
follow, the Court finds that GDOC’s grooming policy
is inconsistent and underinclusive.
1. Dangerousness of Searching Beards
In GDOC’s prisons, female inmates can grow
head hair of any length but male inmates can grow
head hair of three inches and beard hair of only half
an inch. (Doc. 183-22 at 6-8.) GDOC argues that
male head hair can be more easily searched from
behind than beards which have to be searched faceto-face, posing a danger to prison staff. (Doc. 235 at
43-44; Doc. 179 at 42-43; Doc. 183-5 at 6.) But the
record as presented by Plaintiff and Defendant does
not indicate that guards would have to physically
See, e.g., Holt, 135 S.Ct 853; Cutter v. Wilkinson, 544 U.S.
709, 722-725 (2005).
2
53a
search inmates’ beards face-to-face and expose
themselves to being struck.
GDOC’s witness, Ronald Angelone, testified
during the bench trial on the various prison systems
in which he’s worked and his opinions on the issues
involved in this case. Angelone currently works as a
consultant to directors of correctional institutions,
but previously worked at several state’s prisons,
including for Virginia’s prison system, Illinois’
maximum-security prisons, Marion Correctional
Treatment Center (a maximum-security prison for
emotionally disturbed inmates), a medium security
prison for emotionally disturbed inmates in
Oklahoma, as regional director in the Texas
Department of Corrections, and as deputy director
and director in Nevada. (Doc. 236 at 6-9.) Angelone
testified that in the 1990s, they found razor blades in
inmates’ beards which had cut officers’ hands. Id. at
28-29. But he also testified that it is not safe to
search inmates face-to-face, and he recommends that
prisons train their officers to search from behind. Id.
at 74-50 (“[W]e’re trying to get them to understand
they need to change their training programs and
have them do it and address it like law enforcement
does, from the back, take control, don’t become a
victim”). However, Ahmed Holt, Deputy Director of
Field Operations for GDOC, testified that mouths
are searched at GDOC, in which inmates face the
officers, open their mouths, stick out of their
tongues, and a Cell Sense device is used to check for
metal. (Doc. 235 at 57-58, 119.) In general, Holt said
that searches are usually done with metal detectors
and with random pat searches, but opined that
beards would require a more extensive search and
would require searching for non-metal items. (Doc.
54a
235 at 41-42.) When asked why the same type of
searching could not be done for beards, Holt stated
that he could not trust that the inmate was not
trying to conceal something during a self-search and
that not all contraband would be detected by the
metal detecting device. Id. at 58. This explanation is
insufficient, and the grooming policy on its face is
underinclusive. Holt’s concerns about inmates trying
to conceal contraband and hiding nonmetal
contraband would exist regardless of whether or not
an inmate has a beard. Thus, Holt’s rationale does
not explain how GDOC’s current search method is
sufficient to search an inmate’s mouth, body, and
clothing but not sufficient for searching beards.
Indeed, Holt did not explain exactly how three-inch
head hair is searched at GDOC other than to say
that it is searched from behind (Doc. 235 at 56-57,
119) – but whether it is self-searched by the inmate
or searched personally by the officer – it appears
that the same concerns would exist during such a
search of a head or beard. Angelone also
hypothesized that beards may be thicker or denser
than head hair (Doc. 236 at 43), but that is not
necessarily so; head hair can also be dense. The
Court cannot make legal conclusions based on this
unsupported potentiality.
Furthermore, Plaintiff’s expert, John Clark,
worked at six federal prisons in the United States,
including in general management of prisons of all
levels and setting grooming policies, and has fortyfour years of correctional experience. (Doc. 236 at 9495.) Clark testified that the BOP began allowing full
beards and long hair for inmates in the late 1970s
and that he has been involved in beard searches for
most of his employment with the BOP. (Doc. 236 at
55a
95.) Clark said that the mouth and beard are
searched last, during which the prisoner opens his
mouth, sticks out his tongue, an officer looks inside
the mouth standing away, and then the prisoner
“vigorously frisk[s]” his beard and, if it is a long
beard, it must be twisted and lifted up. Id. at 117.
He stated that “that is what worked for us,” and that
he has seen the same done in other states’ prisons.
Id. at 117-18. He stated that it is so common that
police officers perform a similar search when
arresting a suspect and he has seen it performed on
TV shows. Id. at 118. Thus, the evidence presented
by Plaintiff persuasively indicates that officers do
not have to put themselves in danger to effectively
search a beard as implied by GDOC. Rather, the
record shows that officers should use the safest
method of searching, which is to require a vigorous
self-search. It is implausible to think that the
searches which work for head hair, mouths, and
other body parts cannot possibly work for beards as
well. Indeed, the underinclusiveness of GDOC’s
policy as applied to beards casts serious doubt on
GDOC’s claim that a half-inch beard is the least
restrictive means of managing safety concerns with
beard searches. Church of Lukumi Babalu Aye, 508
U.S. at 546 (Where “[t]he proffered objectives are not
pursued with respect to analogous nonreligious
conduct” that suggests that “those interests could be
achieved by narrower ordinances that burden[]
religion to a far lesser degree.”)
2. Concealing contraband
At trial, Ahmed Holt testified that small types of
contraband such as a miniature cell phone, handcuff
56a
keys, and smart watches could be hidden in a beard.
(Doc. 235 at 48:24-49:16, 78-79.) On the other hand,
the BOP’s John Clark testified that beards of any
length are allowed in federal prisons and that beards
are not an issue. (Doc. 236 at 113-116, 120).
Although GDOC has concerns about inmates
hiding contraband in beards, Holt admits that
inmates hide contraband: “Everywhere. Contraband
is found on their person, in their clothing, in their
hair, under their arms, in their orifices, any number
of ways -- places. They hide contraband inside their
dorms. They hide it under their beds and behind
toilets, under toilets, in the window seals, any place
that they have an opportunity to hide contraband.
Any place that they feel like we will have least
opportunity to find that item.” (Doc. 235 at 51.) But
if inmates do hide contraband in all of these places,
then GDOC must offer persuasive reasons why
beards longer than a half-inch cannot be allowed for
religious reasons. Indeed, “[h]air on the head is a
more plausible place to hide contraband than a []
beard — and the same is true of an inmate’s clothing
and shoes. Nevertheless, the Department does not
require inmates to go about bald, barefoot, or
naked.” Holt, 135 S. Ct. at 865-66.3 Defendant’s
witness Angelone testified that contraband in beards
does not present different risks or dangers than
contraband in clothes—“[t]hey’re all the same.” (Doc.
236 at 44:22-24.) Like Holt, he stated that inmates
will hide contraband anywhere they think they can
get away with it. Id. at 28. And Clark testified that
in his decades of experience with prisoners being
allowed beards, “it wasn’t an issue. Nobody -- it just
The Court finds that this is true even if the beard hair is
longer than a half-inch.
3
57a
didn’t come up, that beards presented a safety
problem.” (Doc. 236 at 120.) Consistent with the
evidence and testimony of GDOC’s witnesses, he
stated that having procedures for routinely
searching beards is “a great deterrent . . . inmates
are going to put their contraband somewhere else.”
Id. at 125. As such, GDOC has failed to demonstrate
why beards would pose a contraband problem if they
were searched along with head hair, mouths, and
clothes. Indeed, as in Holt, GDOC has failed to meet
its “exceptionally demanding” burden because it has
not shown that its concerns about contraband in
beards cannot be addressed by simply searching
beards, especially where longer head hair is allowed
and can be adequately searched. 135 S.Ct. at 858. It
has not shown that one is superior to the other for
hiding contraband.
3. Jealousy, Gang Identification,
Hygiene, and Violence
Holt testified that a beard can be grabbed and
cause injury to an inmate. (Doc. 235 at 64.) But, such
testimony appears speculative because beards longer
than a half-inch are not allowed by GDOC inmates,
and Holt provides no basis for this opinion. Indeed,
Clark testified that “in the real world, evidentially
based there is no evidence that that’s a risk.” (Doc.
236 at 122.) Furthermore, if long hair is dangerous
in this way, then it would be at least as dangerous
for female inmates who can grow their head hair to
any length and prison staff, who are allowed beards.4
Holt stated that there is a limit on beard length for CERT
officers, but did not want to state what that limit was for
security reasons. (Doc. 235 at 142.) GDOC also made no
4
58a
Thus, again, GDOC has failed to demonstrate why
beard hair cannot be accommodated for religious
reasons, but there are no restrictions on long hair for
women and staff.
GDOC’s Ahmed Holt also asserted that beards
will be a source of jealousy if some inmates are
allowed to have them and others are not. (Doc. 235
at 62.) But Holt also stated that inmates fight and
even kill over anything, like not being repaid for a
honey bun, a hair in their food, taking the Jewish
star, Muslims praying while others are watching
television, and rewards for a clean dorm. (Doc. 235
at 61-62, 73, 139.) Yet, there is no indication that
these provisions are no longer made, and religious
exceptions still exist to allow unique things for
certain inmates, such as religious clothing articles.
Id. at 75, 131. In fact, Clark testified that he does
not know if there is any evidence that allowing
beards for religious reasons would cause violent
jealousy; he actually believed that prisoners who
won their lawsuits against the prison would be
admired. (Doc. 236 at 129-30.) Indeed, GDOC’s
assertions to the contrary are pure conjecture as it
has no experience with beards and has not sought to
inquire about these issues with states that allow
beards. The law requires that religious exercises of
institutionalized persons not be substantially
burdened unless the government shows that it is
furthering compelling governmental interests
through the least restrictive means. 42 U.S.C. §
2000cc et seq. Preventing hypothetical inmate
jealousy hardly seems compelling.
argument that female inmates do not grab hair to harm other
female inmates.
59a
GDOC is also concerned that Muslim inmates
will use their beards to identify with each other,
making it easier for them to commit violence as a
group. But Muslim inmates are aleady allowed to
wear kufi hats, another way to identify with each
other. (Doc. 235 at 131.) Although Holt testified that
not all Muslim inmates wear kufis and that they are
not worn all of the time, some, if not most, Muslim
inmates do wear kufis often, and yet, kufis are still
allowed. Id. Moreover, if identification was
important to Muslim inmates, they could more easily
identify with each other by simply wearing their
kufis, and the fact that they do not all wear kufis
indicates that identification may not be as important
as GDOC implies
GDOC also asserts that beards could present
hygiene issues and hide medical problems on the
skin. For example, Angelone testified that after he
implemented a no-beard policy in Virginia, officers
found a cancerous tumor under one inmate’s beard
and a black widow spider in another Rastafarian’s
head hair. (Doc. 236 at 25.) When asked why head
hair did not present the same hygiene concerns as
beards, Holt responded that inmates receive regular
haircuts, during which their head is observed and
any sores require them to have medical attention.
(Doc. 235 at 73-74.) Obviously then, it follows that
the same procedure could be implemented for
beards, requiring regular trimming and inspection
during haircuts.5 Furthermore, GDOC’s grooming
policy already requires inmates to keep their facial
hair “clean and neat,” and Smith has testified that
The Court understands that this procedure could be
implemented for trimmed beards, but even untrimmed beards
could also be inspected during an inmate’s regular haircut.
5
60a
“neatness and cleanliness is another tenet of [his]
religion,” including in his facial hair. (Docs. 183-22
at 6 & 183-3 at 25.)6 Thus, GDOC has not shown
that its policy limiting beards to one-half inch is the
least restrictive means of furthering its compelling
interests in hygiene, especially as applied to Smith.
In sum, the evidence and record in this case
indicate to the Court that GDOC’s policy on beards is
underinclusive. Beards do not appear to present any
more of a problem than longer head hair or clothes,
and as in Holt, GDOC has failed to adequately
rationalize why its policy is underinclusive. Holt, 135
S. Ct. at 865. Furthermore, as will be explained
below, GDOC has provided no rational explanation
for allowing three inches of head hair but not
allowing the same length in beards.
B. Less Restrictive Alternatives
The government’s burden of demonstrating that
its policy is the least restrictive means of furthering
its interests is “exceptionally demanding.” Holt, 135
S. Ct. at 864 (citation omitted). The government
cannot simply assert that other alternatives are
unworkable but must prove that it lacks other
means to achieve its desired goal without
substantially burdening a religious exercise. Holt;
135 S. Ct. at 866; Hobby Lobby, 134 S. Ct. at 2780;
United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 824 (2000).
Plaintiff has shown that 37 states and the BOP
allow untrimmed beards either for all inmates or as
a religious exception. (Doc. 236 at 162-63; Doc. 176
6 There is no evidence in this case that Smith has had hygiene
problems at GDOC.
61a
at 2; Doc. 213 at 13.) Another four states allow
inmates with a religious exemption to grow a beard
longer than a half-inch. (Doc. 236 at 162-63; Doc. 213
at 13.) Thus, nearly three quarters of states plus the
BOP allow untrimmed beards, and even more allow
beards longer than GDOC currently allows. “[W]hen
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 . . . . ”
Holt, 135 S. Ct. at 866. Furthermore, “if a less
restrictive means is available for the Government to
achieve its goals, the Government must use it.”
Playboy Entm't Grp., Inc., 529 U.S. at 815 (quoted in
Holt, 135 S.Ct. at 864).
Although the current policy is underinclusive in
many respects, GDOC has offered logical and
persuasive reasons to show that allowing untrimmed
beards would be unmanageable for GDOC. First,
GDOC has shown that its female inmates are less
violent: a smaller percentage of them are classified
as violent, and in 2016 and 2017, there were no
homicides in female facilities compared to at least
ten homicides during the same years in male
facilities. (Doc. 183-5 ¶¶ 17, 29-30.) Plaintiff has
offered no evidence to the contrary on this point, and
it is logical for the Court to conclude that given the
differences between the small, less violent female
population and the large, more violent male
population, different grooming policies, at least to
some extent, are appropriate. Furthermore, GDOC
has shown that its low staffing and high turnover
rates play a significant part in its ability to monitor
inmates and conduct searches. (Doc. 235 at 59, 7980.) While three inches of head hair is manageable,
it is plausible that a beard of unlimited length could
62a
be much more difficult for GDOC to manage given,
e.g., its ability to be used to cause harm in the more
violent male facilities, its ability to hide contraband
more easily, the added difficulty in searching an
untrimmed beard, and its ability to disguise a face.
(Doc. 236 at 36:19-37:1.) Indeed, courts should “apply
the [RLUIPA’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
discipline, consistent with consideration of costs and
limited resources.” Knight, 797 F.3d at 944 (citation
omitted). As such, the Court finds that GDOC has
offered persuasive reasons why it cannot allow
untrimmed beards at this time for which deference is
due. However, the same reasons are not nearly as
persuasive when applied to a three inch-beard.
First, a three-inch beard cannot as easily be
grabbed and used to cause harm. GDOC’s witness
Angelone testified regarding a three-inch beard that
“I think you could grab it, but if you wanted to pull
someone around and throw them into the wall, you’d
have to have an awful good grasp of three inches to
being able to do that. But, the longer the hair, the
more forceful the individual would be thrown into a
wall.” (Doc. 236 at 70:13-21.) Furthermore, if three
inches of head hair is not a concern for hiding
contraband or causing injury, then neither can three
inches of beard hair be a plausible concern. The
Court has already rejected GDOC’s argument that
staff must personally search inmate’s beards face-toface and expose themselves, and GDOC has offered
no logical explanation as to why it could not use the
method currently employed by BOP and other states
for searching a beard.
63a
The strongest argument that GDOC presented
that applies to three-inch beards is that it could
disguise an inmate’s face and make an attempt to
capture him more difficult. Angelone testified that in
the 1990s, he started a no-facial-hair policy in
Virginia after an inmate escaped who had “red hair
that went down his back and over his shoulders
[and] a beard that went down to his belt buckle.”
(Doc. 236 at 23-24.) A few days later, the inmate was
found loitering and had no ID, and after being
fingerprinted, officers realized he was the escaped
inmate but his appearance was completely different
because he had shaved. Id. at 24. He testified that,
in general, officers have difficulty recognizing
distinct facial features of inmates of other
ethnicities, and that facial hair presents another
barrier to making identifications.7 Id. at 25-26.
GDOC asserts that “untrimmed beards make it
harder to identify inmates, because with long beards,
officers lack facial recognition of the inmate, which is
the main way people identify with another.” (Doc.
240 at 7) (citing Doc. 235 at 67-69) (explaining that it
took days to recapture an escaped inmate who looked
different because he had shaved and lost weight).
But although these concerns may be presented by an
untrimmed, belt-buckle-length beard, GDOC has not
shown that it could not effectively implement a
three-inch beard policy and still successfully identify
inmates after they shave.
The Court notes that mustaches and half-inch beards are
allowed, and it appears that this facial identification issue
would exist with any facial hair. Furthermore, training officers
and having a method for identifying inmates with or without
facial hair seems a better solution than prohibiting any facial
hair.
7
64a
Angelone hypothesized that taking photos when
an inmate’s appearance changes would be expensive
and that there would be no place to store them. (Doc.
236 at 46.) Holt also testified that taking photos only
works if they manage to take a photo before an
inmate escapes. (Doc. 235 at 68.) But GDOC’s policy
already requires that inmates’ photos be taken
annually and whenever their appearance changes.
(Doc. 235 at 142-43; Doc. 183-22 at 68-69.) The
photos are stored digitally, and each facility in
GDOC has the equipment to take these photos. (Doc.
235 at 142-43.) Further, the policy requires that
photos be taken when inmates leave on transfer,
reducing the difficulty of a recapture if an inmate
escapes while being transferred. (Doc. 235 at 14546.) Thus, it appears that GDOC’s concerns about
identifying inmates could be addressed by enforcing
the policy that GDOC already has and making
improvements. Plaintiff’s expert Clark testified that
GDOC’s policy is “similar to what is successfully
implemented around the country,” and that some
states require a clean-shaven photograph upon
intake and then take regular photographs
thereafter. (Doc. 236 at 115.) He further testified
that to alleviate the concern that an inmate’s face
would age over time and might look very different
after being shaved, some states require an inmate to
periodically shave and take a new picture and then
regrow their beard. (Doc. 236 at 172) (citing Texas as
an example). While requiring periodic shaving for a
new picture may not be ideal for people seeking a
religious exemption, it is certainly a less restrictive
alternative than the current policy prohibiting
beards longer than a half-inch. Holt v. Hobbs, 135 S.
Ct. 853, 858 (2015) (“[R]equiring inmates to be
65a
photographed both with and without beards and
then periodically thereafter is a less restrictive
means of solving the Department’s identification
concerns.”) Indeed, GDOC itself proposed as fact
that: “Three inches of head hair is different than
untrimmed beards. Three inches of hair cannot be as
easily grabbed, can be searched from behind, does
not cause as many concerns with inmate
identification, and is regularly cut so as to detect
hygiene issues.” (Doc. 240 at 12.) Accepting those
facts as true, the Court concludes that three inches
of beard hair is distinct from an untrimmed beard
for very similar reasons: it cannot be easily grabbed,
it can be safely searched, it can be periodically
shaven to address inmate identification concerns,
and it can be regularly cut to detect hygiene issues.
Indeed, the Court is persuaded that all of GDOC’s
concerns about a three-inch beard could be resolved
by adopting sound policies on beards and training
staff on the new policies.
Notwithstanding that beards longer than a halfinch are allowed in most prison systems, GDOC
asserts that its prisons are different because they
house a large number of more violent inmates and
they don’t have the same staff ratios and resources
to accommodate beards. (Doc. 235 at 103-104, 146148.) But the only specific differences Holt was able
to identify were that California has catwalks and
AR-15s and that New York has better staffing ratios.
Id. at 104, 147. On the other hand, Clark, who has
looked into the staffing ratios around the country,
testified that GDOC is staffed slightly better than
the BOP, and that both GDOC and BOP’s staffing is
in the middle for prison systems in the United States
at about four staff per inmate. (Doc. 236 at 133-34.)
66a
Furthermore, GDOC has no information on the
percentage of violent inmates in other prison
systems, gang membership in other prison systems,
or inmates serving a life sentence in other prison
systems. (Doc. 235 at 146-48.) In fact, GDOC has not
even attempted to determine how other states
manage inmates with beards. (Doc. 235 at 148.) The
testimony of GDOC’s director made clear that
because his primary concern is the safety of the
CERT team members and officers, he is “not adding
to the already difficult task of managing inmates” by
checking to see how beards are managed elsewhere.
Id. But the changes to GDOC’s task of managing
inmates would only be minor if GDOC were to allow
three-inch beards. It would take only seconds to
include a beard in a search. (Doc. 236 at 39-41, 117.)
And because GDOC’s policy already requires
photographs to be taken whenever an inmate’s
appearance changes, the only other addition needed
to address GDOC’s concern of facial changes over
long periods of time is to require occasional cleanshaven photos. GDOC cannot merely “explain” why
it cannot allow an exemption but must “prove that
denying the exemption is the least restrictive means
of furthering a compelling governmental interest.”
Holt, 135 S. Ct. at 864. To-date, GDOC has failed to
offer persuasive reasons why it cannot implement
these changes.
Notwithstanding GDOC’s numerous assertions
that beards lead to more violence, contraband
smuggling, and security issues, GDOC offered no
evidence showing that states that allow beards
experience more of these issues. (Doc. 236 at 78-79;
Doc. 235 at 149-150.) On the other hand, the BOP
asserted that allowing inmates to practice their
67a
religion “helped prisoners develop themselves” and
“made the environment safer.” (Doc. 236 at 111-12.)
Thus, it could very well be that GDOC’s interests in
prison safety and security would be furthered if it
allows longer beards.
C. GDOC’s Policy as Applied to Smith
RLUIPA . . . “contemplates a ‘more focused’
inquiry and ‘requires the Government to
demonstrate that the compelling interest test is
satisfied through application of the challenged law
‘to the person’ – the particular claimant whose
sincere exercise of religion is being substantially
burdened.” Holt, 135 S. Ct. at 863 (citations
omitted). RLUIPA requires courts to “‘scrutinize the
asserted harm of granting specific exemptions to
particular religious claimants’” and ‘to look to the
marginal interest in enforcing’ the challenged
government action in that particular context.” Id.
(citation omitted). Here, that is GDOC’s policy to
prevent Smith from growing longer than a half-inch
beard in accordance with his religion. See id.
GDOC has argued that Smith’s criminal history
and disciplinary issues while incarcerated may be
grounds to deny him an exemption. (Doc. 240 at 9.)
Specifically, GDOC asserts that Smith “is a
convicted murderer who has been sentenced to life,”
“is a maximum security inmate who is likely to stay
in GDC’s maximum security prisons,” and that
“[s]ince being in prison, Smith has been found guilty
of 44 disciplinary infractions, including possession of
cell phone twice, possession of drugs, possession of
weapons, assaults on inmates, threats to correctional
officers, assaults on correctional officers three times,
68a
and for failing to follow instructions or being
insubordinate.” Id. GDOC also asserts that “Smith’s
behavior in prison is indicative of the gang behavior
seen by Muslim inmates.” Id. GDOC argues that its
disciplinary system if Smith violates rules is not
adequate because of Smith’s “propensity to assault
correctional officers and inmates and smuggle in
contraband” and “does not prevent Mr. Smith from
engaging in the violent behaviors on the front end.”
Id. at 11. This is certainly relevant. Many courts
have affirmed prison grooming policies when applied
against maximum security inmates and even in
minimum security facilities. See, e.g., Fegans v.
Norris, 537 F.3d 897, 903 (8th Cir. 2008), Knight,
797 F.3d at 937-38 (affirming short hair policy where
no plaintiff was in maximum security); cf.
Warsoldier v. Woodford, 418 F.3d 989, 1002 (9th Cir.
2005) (finding that prison “utterly failed to
demonstrate that the disputed grooming policy is the
least restrictive means” as applied to a minimum
security inmate). As such, it is plausible that
allowing a close security inmate like Smith an
untrimmed beard could be dangerous for prison
security. See Knight v. Thompson, 796 F.3d 1289,
1292 (11th Cir. 2015) (affirming policy not allowing
exemption of “long, unshorn hair”). However,
GDOC’s argument is unpersuasive in the context of
allowing a three-inch beard because GDOC has
presented little evidence to show that a three-inch
beard is a significant security concern, and it already
allows three-inch head hair. Ali v. Stephens, 822
F.3d 776, 789 n.10 (5th Cir. 2016) (“[A] complete
exemption in order to wear head hair unshorn, []
raises factual issues that are distinct from a request
for a beard that is four-inches.”). It is simply hard to
69a
fathom how three inches of hair covering the entire
head is permissible but three inches of hair on the
bottom of the face is unworkable. RLUIPA does not
permit the Court to give GDOC such “unquestioning
deference.” Holt, 135 S. Ct. at 864; Knight, 797 F.3d
at 937 (“[P]olicies grounded on mere speculation,
exaggerated fears, or post-hoc rationalizations will
not suffice to meet the act’s requirements.”)
Furthermore, GDOC should enforce, and amend if
necessary, the disciplinary policies it has for rule
violations. As Clark testified, if prisoners violate
rules with their facial hair, GDOC should not allow
it. (Doc. 236 at 128-29.) He testified that it was not
his experience that inmates serving life sentences do
not care about disciplinary reports. Id. Indeed,
GDOC has policies in place to allow for prisoners to
be moved to lower classifications, and thus have
more privileges, based on their behavior. Thus,
GDOC has failed to persuade the Court that Smith
should be disallowed a religious exemption to grow a
three-inch beard.
GDOC has also made numerous arguments that
the costs of allowing a longer beard exemption for
thousands of inmates would be too high. (See Docs.
240 at 15; 235 at 147.)8 But, again, GDOC has
offered no evidence showing that its budget cannot
allow three-inch beards or that its budget is different
from states that allow beards. (See, e.g., Doc. 235 at
149) (stating that Florida’s budget is double the
budget of Georgia’s, but that Florida also has double
8 The Court notes that the general argument against making
exceptions has already been rejected by the Supreme Court. See
Holt, 135 S. Ct. at 866 (rejecting the argument that “[i]f I make
an exception for you, I’ll have to make one for everybody, so no
exceptions”).
70a
the inmates). The Government must produce
evidence to persuade the Court that denying
Plaintiff’s request furthers its compelling interest in
cost control. It has not done so. GDOC argues that
providing combs to inmates for beard searches would
be “very expensive and impractical,” (Doc. 240 at 10)
but there is no reason why combs would need to be
used in beard searches; there is no evidence that
they are currently used in head hair searches.
Furthermore, Plaintiff’s witness, Clark, testified that
costs would be a minimal factor for GDOC, that no
staffing changes would be needed, and that searches
may take only an additional three seconds. (Doc. 182
at 48-49.) Thus, GDOC’s cost and staffing arguments
are unpersuasive. Even if costs are a factor, RLIUPA
provides that the government may be required to
incur expenses in its operations to avoid imposing a
substantial burden on one’s exercise of religion. 42
U.S.C. § 2000cc-3(c).
Here, GDOC has focused on the difficulties of
allowing untrimmed beards, but it has failed to show
that its policy is the least restrictive means when
applied to an exemption to allow a three-inch beard.
Indeed, the Court has already explained throughout
this opinion how GDOC’s concerns can be adequately
addressed if it allows three-inch beards. And unlike
in Knight, Smith has testified that although it is
preferable in his religion not to trim his beard, he
must maintain “at least no minimum than a fistful…
to be able to grab a fistful of [] beard.” Doc. 183-3 at
25. Smith has not specified how long a fist-length
beard is, but case law indicates that between three
and four inches is appropriate. See, e.g., Sims v.
Jones, No. 4:16cv49-WS/CAS, 2018 U.S. Dist. LEXIS
174436, at *18 (N.D. Fla. Aug. 8, 2018) (plaintiff
71a
stating that “fist-full” is “3 inches or a little more”);
Ali v. Stephens, 822 F.3d 776, 780 (5th Cir. 2016)
(explaining that “fist-length” is four inches). The
Court especially finds three inches appropriate in
light of the GDOC’s policy allowing male inmates to
have three inches of head hair, and GDOC has failed
to present evidence showing that three inches of
beard hair on inmates is not likewise manageable for
GDOC. Thus, the Court finds that allowing religious
exemptions for inmates to grow three-inch beards is
a reasonable less restrictive alternative of furthering
GDOC’s compelling interests.
The Court further finds that the factors
warranting a permanent injunction in favor of
Plaintiff are met here. Cowart v. Gonzales, No. 7:03CV-139 (HL), 2008 U.S. Dist. LEXIS 120485, at *2
(M.D. Ga. May 16, 2008). Smith has prevailed in
showing that he has a right to wear a beard up to
three inches in length consistent with RLUIPA and
that GDOC’s grooming policy unlawfully burdens
that right. There is no adequate remedy at law for
the violation of this right, and 42 U.S.C. § 1997e(e)
precludes an award of monetary damages absent
physical injury. Thus, the loss of this right creates
an irreparable harm that can only be remedied by
injunctive relief. The injunction in this case would
serve the public interest and is narrowly drawn only
to the extent necessary to correct the violation of
Smith’s right to grow a beard consistent with
RLUIPA and complies with 18 US.C. § 3626 and
Federal Rule of Civil Procedure 65.
72a
CONCLUSION
Accordingly, after considering the evidence and
applicable law, the Court makes the Findings of Fact
and Conclusions of Law as stated herein. The Court
DIRECTS the Clerk of Court to enter Judgment as
follows:
(1) In favor of Plaintiff on his RLUIPA claim as
to Defendant’s grooming policy on beard length.
a. The Court DECLARES that Defendant’s
policy limiting inmates’ beard length to one-half inch
without any religious exemptions violates the
Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc et seq.
b. The Georgia Department of Corrections
SHALL modify its grooming policy to allow inmates
qualifying for a religious exemption to grow a beard
up to three inches in length, said exemption being
subject to revocation based on the inmate’s behavior
and compliance with the revised grooming policy,
and SHALL provide Plaintiff Lester Smith with
such an exemption.
Attorneys for Plaintiff are entitled to reasonable
attorneys’ fees under 42 U.S.C. § 1988 in an amount
to be determined based on affidavits and records to
be submitted by counsel after judgment is entered in
this case.
SO ORDERED, this 7th day of August 2019.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT
73a
FILED: December 29, 2021
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13520-DD
________________________
LESTER J. SMITH,
Plaintiff - Appellee - Cross Appellant,
versus
BRIAN OWENS,
Commissioner of GDOC in his official and individual
capacities,
Defendant,
GREGORY DOZIER,
Commissioner of GDOC in his official and individual
capacities,
Defendant - Appellant - Cross Appellee.
_____________________
Appeal from the United States District Court
for the Middle District of Georgia
_____________________
ON PETITION FOR REHEARING AND PETITION
FOR REHEARING EN BANC
Before NEWSOM and BRANCH, Circuit Judges.*
______________________
* This order is being entered by a quorum pursuant to 28
U.S.C. § 46(d) due to Judge Martin’s retirement on September
30, 2021.
74a
PER CURIAM:
The Petition for Rehearing En Banc is DENIED, no
judge in regular active service on the Court having
requested that the Court be polled on rehearing en
banc. Fed. R. App. P. 35. The Petition for Panel
Rehearing is also denied. Fed. R. App. P. 40.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.