Petition for Writ of Certiorari — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

Supreme Court briefApr 28, 2022

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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

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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

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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

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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.

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