Petition for Writ of Certiorari — Scully v. Fromer
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3 4 “1 6 9 : : Supreme Court, U.S.
Bi. ED
JUL 23 987
IN THE
Supreme Court of the United States“ " |
October Term, 1987
CHARLES J. SCULLY, HAROLD J. SMITH,
WALTER KELLY, EVERETT W. JONES,
THOMAS A. COUGHLIN Ill and HIRSHEL
JAFFEE,
Petitioners,
— against -
YEVGEN FROMER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ROBERT ABRAMS
Attorney General of the
Ste‘e of New York
Attorney for Petitioners
120 Broadway
New York, New York 10271
(212) 341-2621
O. PETER SHERWOOD
Solicitor General and
Counsel of Record
LAWRENCE S. KAHN
Deputy Solicitor General
JUDITH A. GORDON
DOUGLAS D. ARONIN
MARTHA O. SHOEMAKER
Assistant Attorneys General
of Counsel
No.
IN THE
Supreme Court of the United States
October Term, 1987
CHARLES J. SCULLY, HAROLD J. SMITH,
WALTER KELLY, EVERETT W. JONES,
THOMAS A. COUGHLIN II and HIRSHEL
JAFFEEF,
Petitioners,
— against -
YEVGEN FROMER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ROBEKT ABRAMS
Attorney General of the
State of New York
Attorney for Petitioners
120 Broadway
New York, New York 10271
(212) 341-2621
O. PETER SHERWOOD
Solicitor General and
Counsel of Record
LAWRENCE S. KAHN
Deputy Solicitor General
JUDITH A. GORDON
DOUGLAS D. AR®NIN
MARTHA O. SHOEMAKER
Assistant Attorneys General
of Counsel
i
QUESTIONS PRESENTED
1. In light of O’Lone v. Shabazz and Turner v. Safley,
was the court of appeals in error in applying the least
restrictive alternative test in reviewing a state inmate’s
free exercise claim against a prison directive that limits
the length of inmates’ beards for security and safety rea-
sons?
2. In light of O’Lone v. Shabazz and Turner v. Safley,
was the court of appeals in error in invalidating, on free
exercise grounds, the prison directive’s limitation on
beard length when the court acknowledged that the secu-
rity and safety reasons for the limitation are important,
the limitation is rationally connected with them, the in-
mate can practice his religion in other ways and the pub-
lic, as well as the prison population, will face increased
security and safety risks if the limitation is not enforced
uniformly?
TABLE OF CONTENTS
PAGE
Table of Authorities ......................00.. iv
I nS hk ha ek da abn ness euvdaavacs 1
PR ch bg WE aes co oo a ede odeea bb Seeks 2
State Directive Involved ...................0... 2
Statement of the Case .....................5... 3
as, Ta aii Ata eon ee, See a nna i 3
B. District Court Proceedings .............. 4
1. Claims and Motions ................. 4
Ry ee Pee ane |
| RR ror nea Pens 11
Reasons for Granting the Writ .................. 17
Sa SR Le RT SN Pe Da 22
Appendix:
Judgment and Opinion of the United States Court
of Appeals for the Second Circuit............... la
Judgment of the United States District Court
for the Southern District of New York ........... 15a
Order of the United States District Court for the
Southern District of New York Modifying Order
Consolidating Hearing On Preliminary Injunction
with Trial Nunc Pro Tunc ...................... 17a
Memorandum Decision of the United states
District Court for the Southern District
SR Te es Died eee eat ed Le 19a
ill
TABLE OF CONTENTS
PAGE
Order of the United States District Court for the
Southern District of New York Consolidating
Hearing on Preliminary Injunction with Trial ...... 40a
New York State Department of Correctional
Services Directive No. 4914, as Revised ........-- 4la
Iv
TABLE OF AUTHORITIES
PAGE
Cases
Bell v. Wolfish
441 U.S. 520 (1979) ............. 12, 13, 16, 18
Block v. Rutherford
468 U.S. 576 (1984) ....................... 20
Jones v. North Carolina Prisoners’ Labor Union, Inc.,
433 U.S. 119 (1977) .......... 12, 13, 15, 16, 18
O’Lone v. Shabazz,
oe ah Ga Ne CHOU Tb ooo oven ck 17, 18, 19, 21
Pell v. Procunier,
ee ee Ee CUI as civebinwareee toe 18
Shabazz v. O’Lone,
782 F. 2d 416 (3d Cir. 1986) (en banc),
rev'd. 107 S. Ct. 2254 (1987) ............... 13
Turner v. Safley,
107 S. Ct. 2254 (1987) ........... 17, 18, 20, 21
Wali v. Coughlin,
754 F.2d 1015
So (° 3). .) 12, 13, 16, 17, 18, 19
Federal Statutes
SS BD Sern erences 2. TC 2
AE SM os ca acc uececuecccedcoe 15
CG MP ORMED <5 5s cd's ac ps cuaeecclcuotton 5
NEE, SOD. 0 <x s'e'o-0 vemece once. caine 5
OE MONOD ok os bisa coe cs ccancetunet 4
Federal Rules of Civil Procedure
IN THE
Supreme Court of the United States
October Term, 1987
No.
CHARLES J. SCULLY, HAROLD J. SMITH,
WALTER KELLY, EVERETT W. JONES,
THOMAS A. COUGHLIN Ill and HIRSHEL
JAFFEE,
Petitioners,
- against -
YEVGEN FROMER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SS ae
Charles J. Scully, Harold J. Smith, Walter Kelly,
Everett W. Jones, Thomas A. Coughlin Ill and Hirshel
Jaffee, by the Attorney General of the State of New York,
petition for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Second Circuit
in this case.
Opinions Below
The opinion of the court of appeals is reported at
817 F.2d 227. It is reproduced in the appendix to this
petition at la-14a.
2
The memorandum decision of the district court is
reported at 649 F. Supp. 512. It is reproduced in the
appendix at 19a-39a.
Jurisdiction
The judgment of the court of appeals was entered on
April 24, 1987. This Court has jurisdiction to review the
judgment under 28 U.S.C. § 1254(1).
State Directive Involved
New York State Department of Correctional Services
Directive No. 4914 (rev. Apr. 24, 1984) states in part:
I. DESCRIPTION
This directive establishes the basic grooming
standards (including criteria for beards.
mustaches, and length of hair) for inmates.
Il. REGULATIONS
A. Initial Haircut and Shave at Reception
Males received as new commitments
snall get an initial haircut and shave for
reasons of health and sanitation as wel!
as tO permit the taking of the initial
identification photograph.
B. General Grooming Standards
After the initial haircut and shave, gen-
eral grooming standards as set forth be-
low are applicable to all inmates.
3
1. Beards and Mustaches
All inmates may grow a beard and/
or a mustache not to exceed one
(1) inch in length.’
. * a
Statement of the Case
A. Facts
The respondent is of the Jewish faith. Appendix
(“app.”) at 2a. He has been incarcerated in several fa-
cilities of the New York State Department of Correctional
Services (the “Department”) for the past four years, fol-
lowing a conviction for selling cocaine. Id. at 4a,
23a-25a.
The respondent was bearded when he was commit-
ted to the Department’s custody on March 10, 1983.
App. at 23a; amended compl't § 6. He was informed that
Department rules required an initial clean shave and,
thereafter, permitted a beard up to one inch in length.
App. at 23a, 41a-42a 4@ III(A), (B)(1) (Directive No.
4914). He complied with the initial shave requirement,
expressing a religious preference for an electric razor.
Id. 23a, 26a, 41a 4 D(A) (Directive No. 4914).
After his initial shave, the respondent let his beard
grow. App. at 23a. He apparently decided to do so after
he resumed his earlier study of Jewish orthodoxy and
concluded that his criminal activities coincided with a pe-
riod, between 1980 and 1982, when he had been rela-
tively nonobservant. /d. at 3a-4a, 22a-23a. He attributed
the deterioration in his religious practices between 1980
and 1982 to his attempt, as a recent immigrant from the
Soviet Union, to assimilate into American society. /d. at
3a-4a, 21a-23a.
1 Directive No. 4914 is reproduced in its entirety in the appendix
at 41a-44a.
=
The respondent first was informed that the length of
his beard violated Department rules in the Spring of
1983, while he was at Green Haven Correctional! Facility.
App. at 23a-24a. He responded by shaving some for-
merly bearded parts of his face and neck. /d. at 24a.
In April 1984, while at Attica Correctional Facility,
the respondent requested an exemption from the beard-
length requirement for religious reasons. App. at 24a.
His request and a subsequent grievance were denied. /d.
In January 1985, while at Great Meadow Correctional Fa-
cility, he was counseled for twice disobeying direct orders
to trim his beard. Jd. at 25a. In May, while at Wallkill
Correctional Facility, he was found guilty of disobeying a
direct order to trim his beard and penalized thirty-days
segregated confinement, to be served at Downstate Cor-
rectional Facility, one-month loss of good time and one-
month loss of commissary and telephone privileges. /d.
B. District Court Proceedings
1. Claims and Motions
The respondent began this action on August 8, 1984
by filing a pro se § 1983 complaint in the United States
District Court for the Southern District of New York.
App. at 4a. He alleged that his transfer from Green Ha-
ven to Attica was in retaliation for his religious beliefs
and that he had been denied an adequate kosher diet and
access to appropriate religious services. /d. at 19a n.1.
Counsel was appointed in November 1984, and filed an
amended complaint on February 11, 1985. /d. at 4a.
The defendants named in the amended complaint
were petitioner Coughlin, the commissioner of the De-
partment, petitioners Scully and Jaffee, the superinten-
dent and Jewish chaplain of Green Haven, respectively,
petitioners Smith and Kelly, the former and current
superintendents of Attica, respectively, and petitioner
Jones, the superintendent of Great Meadow. App. at 4a;
5
amended compl’t 44 7-10, 12, 13. The jurisdiction of the
district court was invoked under 28 U.S.C. §§ 1331,
1343(3), (4). Amended compl’t 4 2.
The amended complaint alleged nine claims. The
first seven repeated the allegations in the pro se com-
plaint. App. at 19a n.1; amended compl’t 949 22-79. The
eighth claim alleged that the counseling the respondent
received at Great Meadow in January 1985, for refusing
orders to trim his beard, violated his right to free exer-
cise of his religion. Amended compi’t 94 71-75. The
ninth claim alleged that Directive No. 4914, which limits
inmates’ beards to one inch in length, was unconstitu-
tional as applied to the respondent. App. at 4a, 42a 4
I'(B)(1) (Directive No. 4914); amended compl’t 44 76-79.
Injunctive relief and compensatory and punitive damages
were sought for each of the nine claims. App. at 4a;
amended compl’t 44 22-79, prayer for relief 99 1, 3. In
addition, a demand was made for a declaratory judgment
on the ninth claim. Amended compl’t, prayer for relief 4
a
On April 8, 1985, the petitioners moved to dismiss
the amended complaint in its entirety and, in the alterna-
tive, for summary judgment in their favor. App. at 4a.
On June 12, the respondent moved for a preliminary in-
junction on the ninth claim. The respondent prayed for
an order prohibiting the enforcement of the Directive’s
beard length limitation against him and directing his re-
lease from segregated confinement, one of the penalties
the Wallkill disciplinary proceeding had imposed. /d. at
Sa. On June 14, the district court granted a temporary
restraining order, releasing the respondent from segre-
gated confinement. /d. On July 8, the court denied the
petitioners’ motion only with respect to the ninth claim in
the amended complaint. /d. at Sa, 17a-18a, 40a. On the
same day, the court ordered the hearing on the prelimi-
4
6
nary injunction consolidated with the trial on the merits
of the ninth claim. /d.
2 we
The consolidated hearing on the respondent’s motion
for a preliminary injunction and the trial on the merits of
the ninth claim ir the amended complaint proceeded be-
fore the district court, without a jury, in the Fall of 1985.
Evidence was received concerning the sincerity of the re-
spondent’s religious belief against trimming his beard;
the prohibition in Jewish law against trimming the beard;
the security and safety reasons for the one-inch limitation
on beard length in Directive No. 4914; and less restrictive
measures as alternatives to the beard-length limitation.
App. at 5a, 20a-27a, 34a-38a.
The Department’s deputy commissioner for facility
operations, Philip J. Coombe, testified, on petitioner’s be-
half, to the security and safety reasons for the limitation
on beard length in Directive No. 4914. App. at 34a.2 He
gave five reasons—identification of inmates, control of
contraband, fairness and personal safety and hygiene.
Id. Daniel J. Pochoda, a New York attorney with experi-
ence in prisoners’ rights, testified, on respondent’s be-
half, in opposition to the deputy commissioner. /d. at
35a.3
2 Mr. Coombe is responsible for the security of the Department’s
fifty correctional facilities and reports directly to the commis-
sioner. App. at 34n.6. From September 1980 until his appoint-
ment as deputy commissioner on February 21, 1985, Mr.
Coombe was the superintendent of Eastern Correctional Facility
and, from January 1977 to September 1980, he was the superin-
tendent of Otisville Correctional Facility. /d.; trial transcript
(“ur.”) 337, 338. Mr. Coombe joined the Department in Decem-
ber 1959. Tr. 341.
The district court qualified Mr. Coombe as an expert in prison
security and administration. Tr. 343-44.
3 At the time of trial, Mr. Pochoda was a visiting professor in
criminal justice at the City University of New York (“CUNY”)
(footnote continued on next page)
>}
The deputy commissioner testified that the Direc-
tive’s one-inch limitation on beard length allows correc-
tions personnel and other law enforcement authorities to
identify inmates immediately and with reasonable cer-
tainty. App. at 34a-36a. In consequence, he said, the
limitation contributes to discipline within a correctional
facility because it prevents inmates from substituting for
one another; reduces the likelihood that inmates will try
to escape or succeed in escaping; and facilitates the
prompt recapture of inmates who do escape. /d.; trial
transcript (“tr.”) at 345-47, 348, 351, 353, 354, 357,
366-68, 381-82, 513-515, 516, 534.
As the deputy commissioner explained, corrections
personnel rely on appearance, particularly facial struc-
ture, as the best and most practical means of immedi-
ately identifying inrnates. App. at 34a; tr. at 344-46,
347-48, 350, 351. Short one-inch beards allow immediate
identification, he said, because facial structure remains
visible whereas longer beards interfere with immediate
identification because they obscure facial structure. App.
at 34a; tr. 351, 514.4 Short beards also allow immediate
(footnote continued from preceding page)
Law School and an adjunct professor at CUNY’s Center for Ur-
ban Education. Tr. at 396-97. Mr. Pochoda had been a staff
attorney with the Prisoners’ Rights Project of the Legal Aid Soci-
ety from 1971 to 1975. App. at 35a n.7; tr. 397, 398.
Mr. Pochoda had held executive positions in numerous organiza-
tions that monitor prison conditions and publish reports and stan-
dards, e.g., the New York State Commission on Corrections, the
New York State Division of Criminal Justice Services Corrections
Task Force and the New York City Board of Corrections. App.
at 35a n.7. He never had any direct responsibility for the secu-
rity or administration of a correctional facility. Tr. 415-17.
The district court qualified Mr. Pochoda as an expert in prison
security and administration. App. at 35a n.7; tr. 418.
4 The deputy commissioner testified that the one-inch limitation on
beard length was the maximum accommodation that the Depart-
ment could make for inmates if it was to continue to meet the
need for immediate identification. App. at 34a; tr. 517.
(footnote continued on next page)
8
identification, he said, because they provide but two ef-
fective options in appearance, beard or no _ beard,
whereas longer beards, which can be removed, short-
ened, rolled, braided or sectioned, interfere with immedi-
ate identification because they provide numerous options,
or disguises. App. at 34a; tr. 351, 353, 374.
As the deputy commissioner also explained, if in-
mates can use their beards to disguise themselves, they
are more likely to try to escape, and to succeed, because
disguise improves their chance of leaving a correctional
facility unnoticed and diminishes the risk that their ab-
sence will be detected immediately. App. at 34a-35a; tr.
at 346-47, 348, 357-58, 366-68, 381-82, 513-15, 534. In-
mates who can use their beards to disguise themselves
also are more likely to evade prompt recapture if they
escape, he said, because their ability to change their ap-
pearance makes it more difficult for law enforcement
authorities, and the public, to identify them on sight.
App. at 34a-35a; tr. at 351, 353, 354, 357, 366-68,
514-15.
Mr. Pochoda agreed with the deputy commissioner
that beards can be a source of disguise for inmates, but,
he said, the short one-inch beards the limitation permits
provide the same opportunities for disguise as the longer
beards it prohibits. App. at 35a; tr. 427-28. Mr.
Pochoda also said that rephotographing inmates who re-
style their beards or let them grow would provide a less
restrictive means for satisfying the identification objective
(footnote continued from preceding page)
The deputy commissioner also testified that, for identification
purposes, he preferred inmates to be clean-shaven, which the
Department required until March 11, 1982, when the one-inch
limitation was introduced by a federal consent decree. App. at
34a; tr. 344-45, 514, 517. To support his preference, the deputy
commissioner cited the example of two inmates who had escaped
from the Green Haven visiting room after shaving their one-inch
peg oy and changing to women’s clothes in the bathroom. App.
at 34a.
9
of the limitation. App. at 36a; tr. 424, 434.5 He cited the
New York City Department of Corrections, which does
not have a limitation on beard length and relies on serial
identification photographs, to support his point. Tr. at
424-26.
In rebuttal, the deputy commissioner testified that
the serial photographs Mr. Pochoda proposed as an alter-
native to the limitation would not be practical or effec-
tive. The deputy commissioner said that the numerous
photographs necessary to track length and style changes
in an inmate’s beard could not be distributed to law en-
forcement authorities, or posted for the public, quickly
enough after an escape to be useful and, in any event, an
inmate probably would not disclose the beard length and
style he planned to wear to escape while he was in a
correctional facility. Tr. 351, 353-54, 357, 359, 366-68,
382, 514-15. The deputy commissioner also pointed out
that rules that might be appropriate for the New York
City Department of Corrections, which has several facili-
ties for pretrial detainees and misdemeanants, are not
appropriate for the state prison system with fifty facilities
and 32,600 convicted inmates, including some 25,000
convicted of violent crimes. Tr. at 506-509, 510, 511,
512, S132
5 Directive No. 4914 requires a clean-shaven identification photo-
graph when an inmate is committed to the Department’s custody
and a subsequent identification photograph, or photographs, if an
inmate changes his appearance by growing or shaving a one-inch
beard or mustache. App. at 41a 9 III(A), 43a 9 II(C).
6 The deputy commissioner used the federal prison system, which
does not have a limitation on beard iength, to illustrate the point,
observing that only 17 percent of its inmates are convicted of
violent crimes in contrast to 77 percent of the inmates in the New
York system. Tr. at 511-12.
The deputy commissioner also observed that the California prison
system, which has inmates with characteristics comparable to
New York’s inmates and no limitation on beard length, had 828
escapes from an inmate population of 43,000 in 1984 whereas
New York had 20 escapes from an inmate population of 32,600.
Tr. at 510, 513.
10
The deputy commissioner testified that the Direc-
tive’s one-inch limitation on beard length also prevents
inmates from using their beards to secrete contraband.
App. at 36a. He said that he did not know of any in-
stance of an inmate concealing contraband in a one-inch
beard and that if inmates had longer beards, they would
be more likely to try, and to succeed in, concealing con-
traband in them. /d. at 37a; tr. 373-75, 515-16.’
Mr. Pochoda acknowledged that correctional facili-
ties need to control contraband. Tr. at 442. But he said
that he was not aware of any reports of inmates secreting
contraband in their beards from the New York City De-
partment of Corrections or the federal prison system,
which, like the city Department of Corrections, does not
have a limitation on beard length. Tr. at 440. Mr.
Pochoda also said that the searches of inmates’ beards
and scans with hand-held metal detectors, conducted pe-
riodically in all New York correctional facilities, provide
less restrictive means for satisfying the control of contra-
band objective of the limitation. App. at 37a; tr. at 431,
442-43. He suggested the installation of free-standing
metal detectors in interior hallways as a further precau-
tion. Tr. at 441-42.
The deputy commissioner testified, in addition, that
the Directive’s one-inch limitation on beard length is a
neutral rule that can be applied uniformly in a setting
where exceptions increase the likelihood of confronta-
tions between inmates and corrections personnel and be-
tween inmates and inmates (app. at 37a, 38a; tr. at 356,
? At trial, one of petitioners’ attorneys demonstrated that he could
conceal a metal nail file, resembling a common inmate weapon,
in his four-inch beard. App. at 36a-37a. When he shook his
head, the nail file stayed in place. J/d.; tr. 386-87. Another of
petitioners’ attorneys tried to conceal the same nail file in his
one-inch beard. Tr. at 387. He could not because the nail file
would not stay in place. /d. at 388.
11
379-81, 389-90)® and that the limitation protects the per-
sonal safety and hygiene of the inmates as well.®
C. Opinions
In a November 25, 1986 memorandum decision, the
district court declared the one-inch limitation on beard
length in Directive No. 4914 unconstitutional as applied
to the responderit. App. at 39a. The court first deter-
mined that the respondent had a sincere religious belief
against trimming his beard that was rooted in Jewish law.
Id. at 21a, 27a-28a.
8 The deputy commissioner pointed out that the federal prison sys-
tem, which does not have a limitation on beard length, had 13
violent inmate deaths in an inmate population of 32,000 in 1984
whereas the New York prison system, with almost five times more
inmates convicted of violent crimes, had only seven violent in-
mate deaths in an inmate population of 32,600. Tr. 510,
$11-12, 513.
The deputy commissioner also pointed out that the California
prison system, which has inmates with characteristics comparable
to New York inmates and no limitation on beard length, had 16
violent inmate deaths in an inmate population of 43,000 in 1984.
‘an. Sad.
9 The deputy commissioner noted the extensive industrial and food
service programs New York correctional facilities provide for in-
mates and said that beards longer than one-inch would increase
the risk of accidents in the former and of contamination in the
latter. App. at 38a; tr. 354-55, 370. He pointed out that in-
mates with beards conforming to the limitation are required to
wear beard guards, if appropriate, when they work in either pro-
gram but often remove them, apparently because the guards are
uncomfortable. Tr. 355-56, 383.
The deputy commissioner also noted the risk of lice and scabies
infestation and said that it would increase in relation to increased
beard length. App. at 38a; tr. at 368-69.
Mr. Pochoda said, in response to the deputy commissioner, that
beard guards should be sufficient to avoid any increased risk of
industrial accidents or food contamination from longer beards,
and, if the guards were not sufficient, the Department would
have to change the work assignments of the inmates whose
beards increased the risk. App. at 38a; tr. 423, 431, 433.
Mr. Pochada also said that lice and scabies infestation had to be
considered case-by-case and that if an inmate had a beard for
religious reasons, it could be removed, at the direction of a physi-
cian, only as a last resort. App. at 38a; tr. 423-24.
12
The district court next considered the appropriate
standard of judicial review for the respondent’s free exer-
cise claim against the limitation. App. at 29a-34a. The
petitioners argued, under Bell v. Wolfish, 441 U.S. 520
(1979), and Jones v. North Carolina Prisoners’ Labor Un-
ion, Inc., 433 U.S. 119 (1977), that the court had to up-
hold the limitation if they showed that it was justified by
legitimate corrections objectives and respondent did not
show that the limitation represented an exaggerated re-
sponse to the objectives. App. at 30a-31a.
The respondent argued, under Wali v. Coughlin, 754
F.2d. 1015 (2d Cir. 1985), that the court had to invalidate
the limitation unless the petitioners proved that it was
necessarily related to important corrections objectives
and did not impose any greater restrictions on the respon-
dent’s religious observance than were necessary to ac-
complish the objectives. App. at 33a. The least restrictive
alternative test that the respondent advocated was the
most stringent of the three tests Wali adopted for review-
ing prison rules restricting inmates’ fundamental constitu-
tional rights. /d. at 29a-30a, 32a-33a.'°
10 The first of the two less stringent Wali tests gave nearly absolute
deference to the judgment of corrections authorities. 754 F.2d
at 1033. The test applied when the fundamental constitutional
right the inmate asserted was inherently inconsistent with incar-
ceration. /d.
The second less stringent Wali test required the inmate to prove
that the restriction on the fundamental constitutional right he as-
serted was not supported by a reasonable corrections objective.
754 F.2d at 1033. The test applied when the asserted protected
activity was “presumptively dangerous” or the restriction on it
~apgoae but one of numerous ways to engage in the activity.
The least restrictive alternative test, which heightened the burden
of proof and shifted it to the corrections authorities, applied
when the asserted protected activity was not inherently inconsis-
tent with incarceration, was not “presumptively dangerous” and
when the restriction deprived, rather than limited, the inmate’s
right to engage in the activity. 754 F.2d at 1033.
13
The district court concluded that Wali was not incon-
sistent with Bell or Jones and that it was controlling. App.
at 31a. The court agreed with the respondent that Walli’s
least restrictive alternative test was applicable. /d. at
32-33a. It noted that it had been persuaded by the Third
Circuit opinion in Shabazz v. O’Lone, 782 F.2d 416 (3d
Cir. 1986) (en banc), rev’d, 107 S. Ct. 2400 (1987), to
reject the petitioners’ argument in favor of the exagger-
ated response test. App. at 31la-32a.
The district court then evaluated the five security
and safety reasons petitioners advanced at trial for the
limitation under the least restrictive alternative test.
App. at 34a-38a. The court accepted, without question,
the importance of each of the five reasons for the limita-
tion at the outset of its discussion, noting, in particular,
the “substantial” importance of effective identification of
inmates (id. at 34a) and the “magnitude” of the contra-
band problem. /d. at 37a. But it held that the limitation
denied the respondent his right to free exercise of his
religion because the petitioners had not proved that the
limitation was no more restrictive than necessary to ac-
complish any of its accepted security and safety objec-
tives. /d. at 34a, 38a-39a.
The district court supported its conclusion by point-
ing out means for accomplishing the limitation’s security
and safety objectives that it thought would be effective
and less restrictive of the respondent’s religious obser-
vance. App. at 34a-38a. The court said, with respect to
the limitation’s inmate identification objective, that peti-
tioners’ evidence at trial established that allowing in-
mates to wear beards heightened the difficulties of
identification. /d. at 34a. But, the court said, it was not
persuaded that beards longer than one inch, which are
prohibited by the limitation, posed significantly greater
identification risks than one-inch beards, which are per-
mitted by the limitation. /d. at 34a-35a. If longer beards
14
did pose significantly greater identification risks, the
court added, serial photographs, tracking significant
changes in beard lengths and styles, would provide a less
restrictive means for effectively identifying inmates, al-
beit at potentially increased cost and inconvenience to
corrections authorities. /d. at 36a.
With respect to the limitation’s objective in control-
ling contraband, the court said that inmates could secrete
weapons or drugs in their hair, clothing or body cavities
just as easily as in their beards. The court concluded that
the periodic searches and scans with metal detectors that
inmates had to undergo would be as effective in detecting
contraband in beards as they were in detecting contra-
band in, or about, the body and that the searches and
scans had to be preferred to the limitation because they
were less restrictive. /d.
In support of its observation that the inmates could
secrete the weapons and drugs in their beards, the court
noted that one of the petitioners’ attorneys demonstrated
at trial that he could conceal a metal nail file, resembling
a common inmate weapon, in his four-inch beard, which
would be prohibited by the limitation. App. at 36a-37a.
The court did not mention that another of petitioners’
attorneys demonstrated at trial that he could not conceal
the metal nail file in his one-inch beard, which would be
permitted by the limitation. Tr. 387.
In support of its observation that inmates could se-
crete weapons and drugs in their hair, clothing or body
cavities as easily as in their beards, or, perhaps, in pref-
erence to their beards, the court cited the testimony of
Deputy Commissioner Coombe. App. at 37a. According
to the court’s paraphrase, the deputy commissioner said
that he had never heard of an instance of an inmate con-
cealing contraband in his beard. /d. The court did not
mention that, in the testimony it paraphrased, the deputy
1S
commissioner was expressly referring to his experience
under the one-inch limitation. Tr. 373-75.
The court also said that the Department could not
insist on the uniform application of the limitation given
the exceptions, for religious reasons, it had made to the
limitation and to other prison rules. App. at 37a-38a."'
Nor, the court said, could the Department rely on the
protections the limitation provides for the personal safety
and hygiene of inmates since inmates could be protected
as well by less restrictive means. ‘2
On January 29, 1987, the district court entered a de-
claratory judgment and permanent injunction, limited to
the ninth claim in the amended complaint, that con-
formed with its memorandum decision. App. at Sa, 15a,
18a. The petitioners then appealed to the United States
Court of Appeals for the Second Circuit under 28 U.S.C.
§ 1292(a)(1) and Fed. R. Civ. P. 54(b). App. at Sa, 16a.
The court of appeals affirmed the district court judg-
ment on April 24, 1987. App. at 1a. At the outset of the
discussion of merits in its opinion, the court acknowl-
edged that, under Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119 (1977), and Pell v. Procunier,
"' The exception to the limitation that the court ncted permits
American Indian inmates to release their hair from ponytail
fasteners on ceremonial occasions. App. at 37a-38a, 42a
§1III(B)(2)(c) (Directive No. 4914).
The other exceptions the court noted permit inmates to wear re-
ligious symbols and to observe their Sabbaths and their dietary
laws. App. at 38a.
‘2 According to the court, beard guards were sufficient to avoid any
increased risk of industrial accidents and food contamination
from beards longer than one inch. App. 38a. See p. 11, n.9,
ante. If beard guards proved not to be sufficient, the court said
that inmates with beards longer than one inch could be reas-
signed to jobs that did not involve machines or food. /d.
If an inmate's beard, in fact, became infested with lice or scabies,
the court said that the infestation should be treated with medi-
cated shampoo, and the beard removed only as a last resort.
App. at 38a. See p. 11 n.9, ante.
16
417 U.S. 817 (1974), an inmate’s right to free exercise of
his religion could be restricted by neutral prison rules
that serve legitimate corrections objectives. App. at 7a.
The court of appeals then turned to Wali v. Coughlin,
754 F.2d 1015 (2d Cir. 1985), for the appropriate stan-
dard of judicial review. App. at 8a-12a. The court re-
jected the petitioners’ several arguments that Wali was
incorrectly decided (id. at 9a-11a), including the argu-
ment that Bel! v. Wolfish, 441 U.S. 520 (1979), and Jones
did not permit a more stringent standard than the exag-
gerated response test. jd. at 9a-10a.
After reviewing the three tests Wali adopted (app. at
8a-9a), the court of appeals agreed with the district court
that the most stringent of the tests, the least restrictive
alternative test, was applicable. /d. at 9a. See p.12 n.10,
ante. The court rejected petitioner’s alternative argument
that the only appropriate Wali test was the second, which
applied to restrictions on protected activities that were
“presumptively dangerous” or proscribed but one of nu-
merous ways to engage in the activity. /d. at 8a-9a,
lla-12a. See p. 12 n.10, ante. According to the court,
beards longer than one-inch could not be considered
“presumptively dangerous” because the trial record
showed that the New York City Department of Correc-
tions and the federal and California prison systems do
not have limitations on beard length. /d. at 11a.3 Nor,
according to the court, was it relevant that the one-inch
limitation proscribed only one of the ways the respondent
'3 The court did not mention the differences between the New York
prison system and the detention facilities operated by the New
York City Department of Corrections or the differences between
the New York prison system and the federal prison system that
appear in the record. See p. 8-9 & n.6, 11 n.8, ante.
The court also did not mention that the California prison systern
has more escapes than the New York prison system and that both
the California system and the federal prison system have more
violent inmate deaths than the New York prison system. See pp.
8-9 & n.6, 11 n.8, ante.
17
could be observant because the right he was asserting, to
refrain from trimming his beard, was “more than a right
to practice Judaism in a general way or to merely wear a
beard.” /d. at 12a.
At the conclusion of its opinion, the court of appeals
reviewed the district court’s application of the least re-
strictive alternative test to the five security and safety rea-
sons for the limitation on beard length. App. at 12a-13a.
The court agreed with the district court, for the reasons
that court stated, that the limitation denied the respon-
dent his right to free exercise of his religion because the
petitioners had failed to prove that it was not more re-
Strictive than necessary to accomplish any of its security
and safety objectives. /d.
REASONS FOR GRANTING THE WRIT
The decision of the court of appeals conflicts with
the recent decisions of this Court in Turner v. Safley, 107
S. Ct. 2254 (1987), and O’Lone v. Shabazz, 107 S. Ct.
2400 (1987). In holding that the Department directive
limiting the length of inmates’ beards was unconstitu-
tional as applied to the respondent who has a religious
belief against trimming his beard, the court of appeals
applied a “least restrictive alternative” standard. The
court relied on its prior holding that “‘it is incumbent
upon prison officials to show that a particular restriction
is necessary to further an important governmental inter-
est and that the limitations on freedoms occasioned by
the restriction are no greater than necessary to effectuate
the governmental objective involved’.” App. at 9a (quot-
ing Wali v. Coughlin, 754 F.2d 1015, 1033 [2d Cir.
1985]). The standard, which the court of appeals first
announced in Wali as the proper test for determining the
validity of regulations that infringe inmates’ First Amend-
ment rights, was expressly rejected by this Court in Safley
and Shabazz. |
18
This Court explained the correct standard for deter-
mining the validity of prison regulations which interfere
with inmates’ religious practices in O’Lone v. Shabazz,
107 S. Ct. at 2404-05. In that case, the Court applied to
a free exercise claim, the standard it had just announced
in Turner v. Safley: “when a prison regulation impinges
On inmates’ constitutional rights, the regulation is valid if
it is reasonably related to legitimate penological inter-
ests.” 107 S. Ct. 2261. This standard, the Court made
clear, was already implicit in the holdings of Pell v.
Procunier, 417 U.S. 817 (1974); Jones v. North Carolina
Prisoners’ Union, 433 U.S. 119 (1977); and Bell v. Wolfish,
441 U.S. 520 (1979). The Court expressly rejected the
application of a “least restrictive alternative” test in
Safley, holding that “prison officials do not have to set up
and then shoot down every conceivable alternative
method of accommodating the claimant’s constitutional
complaint.” 107 S. Ct. at 2262.
Acting before Safley and Shabazz, the court of ap-
peals considered this case in light of the standard it had
previously established in Wali v. Coughlin, 754 F.2d at
1033. Under Wali, deference to the decisions of state
corrections officials is appropriate only if the asserted
constitutional right is “inherently inconsistent with estab-
lished penological objectives” or is “presumptively dan-
gerous,” or if the regulation in question deprives the
inmate of only one of several alternative means of exer-
cising the right. If these conditions are not met, then any
regulations restricting an inmates’ constitutional rights
are invalid unless prison officials can meet Wali’s “least
restrictive alternative” test. Jd. Applying the Wali stan-
dard to this case, the court of appeals held that because
these conditions had not been met, the “least restrictive
alternative” test was the proper standard by which to
judge the Directive’s validity. Finding that the Depart-
19
ment’s legitimate interests may be served by less restric-
tive means, the court invalidated the Directive.
This Court expressly rejected Wali in Shabazz, 107 S.
Ct. 2404 n.**. It had already rejected the multi-tiered
approach in Safley, explaining that “[t]he determination
that an activity is ‘presumptively dangerous’ appears sim-
ply to be a conclusion about the reasonableness of the
prison restriction in light of the articulated security con-
cerns. It therefore provides a tenuous basis for creating a
hierarchy of standards of review.” 107 S. Ct. at 2261.
Petitioners proved at trial that the Department’s re-
striction on beard length served the “unquestionably im-
portant” penological interests of facilitating the
identification of escaped inmates and inhibiting the con-
cealment of contraband. App. at 34a. Deputy Commis-
sioner Philip Coombe, the prison administrator who is
responsible for security in New York State’s fifty correc-
tional facilities, testified that, in his considered profes-
sional judgment, the alternatives to the Directive
suggested by respondent, rephotographing and more fre-
quent searches, would not satisfy the “substantial and
important” objective of “effective identification of in-
mates.” Jd. Deputy Commissioner Coombe explained
that rephotographing was not a viable alternative to the
Directive because distributing multiple photographs to
police agencies in the event of an escape would obstruct
the ability of these agencies, and the public, to identify
and recapture escaped inmates quickly. Rephotographing
an inmate’s many changes in beard length and styling,
according to Deputy Commissroner Coombe, would also
tax the Department’s scarce human resources and in-
crease the opportunities for confrontation between cor-
rectional officers and inmates.
Deputy Commissioner Coombe also explained that
contraband, ranging from deadly weapons to drugs, can
be carried undetected in an untrimmed beard, but not in
20
a beard which complies with the Directive. Petitioners
demonstrated this potential at trial when one of petition-
er’s attorneys showed that he could hide and securely
hold a nail file in his four-inch beard. App. at 36a.
Another attorney, who had a short beard, could not hide
the nail file in his beard. Deputy Commissioner Coombe
rejected the alternative suggested by the respondent of
more frequent searches of inmates’ beards because they
would increase both the likelihood that dangerous contra-
band would remain undetected and the potential for con-
frontation between inmates and correction officers.
In Safley, this Court delineated four factors that
should be considered in determining the validity of prison
regulations subject to constitutional challenge. The first
factor is the existence of “a ‘valid, rational connection’
between the prison regulation and the legitimate govern-
mental interest put forward to justify it.” 107 S. Ct. at
2262 (quoting Bloch v. Rutherford, 468 U.S. 576, 586
{1984]). The expert testimony of Deputy Commissioner
Coombe regarding the prison administration’s interests in
facilitating identification and inhibiting the possession of
contraband, and the courtroom demonstration of the po-
tential for secreting contraband in a long beard, demon-
Strate that connection.
The second factor “is whether there are alternative
means of exercising the right that remain open to prison
inmates.” 107 S. Ct. 2262. The record at trial shows
that respondent has numerous alternative means of prac-
ticing his religion: access to kosher food, contact with
rabbis, availability of religious books and other items and
the right to a religious head covering. The court of ap-
peals rejected the validity of these alternatives, holding
that “requiring [the respondent] to cut his facial hair
would work a total deprivation of his religious belief that
the beard must not be disturbed.” App. at 12a. In
Shabazz, however, this Court considered it significant
21
that, although the respondents could not attend the
weekly religious service at issue, which the Court noted
was of “central importance” to them, “they are not de-
prived of all forms of religious exercise but instead freely
observe a number of their religious obligations.” 107 S.
Ct. at 2406.
A third factor delineated in Safley “is the impact ac-
commodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation
of prison resources generally.” 107 S. Ct. at 2262. Dep-
uty Commissioner Coombe testified that the suggested
alternatives of rephotographing and searching beards
would significantly impact on both the allocation of re-
sources and the potential for confrontation between in-
mates and correction officers. In the face of such an
impact, the court of appeals erred in failing to “be par-
ticularly deferential to the informed discretion of correc-
tion officials.” Jd.
“(T]he absence of ready alternatives,” is the fourth
factor bearing on the validity of the challenged regula-
tion. This Court held that a prison regulation may not
meet the reasonable relationship test “if an inmate claim-
ant can point to an alternative that fully accommodates
the prisoner’s rights at de minimis cost to valid penologi-
cal interests.” 107 S. Ct. at 2262. The alternatives sug-
gested by respondent and the courts below involve
procedures that would inhibit the recapture of escaped
inmates, make it more difficult to detect dangerous con-
traband, and increase the likelihood of confrontation be-
tween inmates and correction officers. These costs are
hardly de minimis.
Because the court of appeals rendered its decision
before the decisions of this Court in Safley and Shabazz,
it did not consider the justifications advanced by petition-
ers in light of these recent decisions of this Court. Inas-
much as the court of appeals applied a standard of
22
review which this Court has since expressly rejected, this
case should be remanded to the court of appeals for re-
consideration under the correct standard.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted, the judgment of the United
States Court of Appeals for the Second Circuit vacated
and the case remanded to that court for reconsideration
in light of O’Lone v. Shabazz and Turner v. Safley.
Dated: New York, New York
July 23, 1987
ROBERT ABRAMS
Attorney General of the
State of New York
Attorney for Petitioners
O. PETER SHERWOOD
Solicitor General
LAWRENCE S. KAHN
Deputy Solicitor General
JUDITH A. GORDON
DOUGLAS D. ARONIN
MARTHA O. SHOEMAKER
Assistant Attorneys General
of Counsel
APPENDIX
ea ee Ne ha)
—
la
JUDGMENT AND OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
A> inp
No. 1014—August Term, 1986
(Argued: April 1, 1987 Decided: April 24, 1987)
Docket No. 86-2463
OO ee
YEVGEN FROMER,
Appellee,
CHARLES J. SCULLY, HAROLD J. SMITH, WALTER
KELLY, EVERETT W. JONES, THOMAS J. COUGHLIN,
and HIRSHEL JAFFEE,
Appellants.
Before:
FEINBERG, Chief Judge, TIMBERS and ALTIMARI,
Circuit Judges.
ee
Appeal from a judgment entered in the Southern
District of New York, Charles E. Stewart, Jr., District
Judge, 649 F. Supp. 512 (S.D.N.Y. 1986), declaring a
beard length directive unconstitutional as applied to an
Orthodox Jewish state prison inmate and permanently en-
joining state prison officials from enforcing the directive
against the inmate or punishing him for his noncompli-
ance.
Affirmed.
2a
Opinion of the Court of Appeals
>
Eugene A. Gaer, New York, N.Y. (Joel W.
Sternman, Neil A. Miller, and Rosenman
& Colin, New York, N.Y., on the brief),
for appellee.
Martha O. Shoemaker, Assistant Attorney
General of the State of New York (Robert
Abrams, Attorney General, and Lawrence
S. Kahn, Deputy Solicitor General, and
Jeffrey J. Slonim, Douglas D. Aronin, and
Harvey M. Berman, Assistant Attorneys
General, on the brief), for appellants.
>
TIMBERS, Circuit Judge:
Appellants Charles J. Scully and others (collectively
“appellants”) appeal from a judgment entered Janu-
ary 29, 1987 in the Southern District of New York,
Charles E. Stewart, Jr., District Judge, Fromer v. Scully,
649 F.Supp. 512, which granted appellee Yevgen Fromer
(“appellee”) declaratory and injunctive relief after a
bench triai on his claim under 42 U.S.C. § 1983 (1982).
Appellee is an inmate in the custody ci the New
York Department of Correctional Services (“the Depart-
ment”). In his amended complaint in the instant § 1983
action, appellee challenged among other things the con-
Stitutionality as applied to him of a Department Directive
(“the Directive”) which requires inmates to shave or trim
their beards to a length of no more than one inch. Ap-
pellee claimed that his religious beliefs as an Orthodox
Jew prohibit him from shaving, trimming, or cutting his
facial hair and therefore that application of the Directive
to him violated his right to free exercise of religion under
3a
Opinion of the Court of Appeals
the First and Fourteenth Amendments to the United
States Constitution.
The district court, after finding that appellee held a
sincere religious belief, declared the Directive unconstitu-
tional as applied to appellee and permanently enjoined
appellants from enforcing it against him or punishing
him for his noncompliance.
On appeal, appellants claim, first, that the district
court applied the wrong standard in evaluating the consti-
tutionality of the Directive; and, second, that the Direc-
tive is constitutional even when evaluated under the
standard applied by the district court. Appellants do not
challenge the district court’s finding that appeilee’s reli-
gious belief regarding his beard was sincere.
We hold, first, that the district court applied the cor-
rect standard; and, second, that the court did not err in
its application of that standard.
We affirm, and we do so substantially for the rea-
sons set forth in Judge Stewart’s excellent opinion.
I.
Judge Stewart’s opinion contains a comprehensive
recital of the facts. Fromer, supra, 649 F. Supp. at
513-17.
We assume familiarity with that opinion. We sum-
marize here certain facts which warrant emphasis and
those additional facts believed necessary to an under-
standing of the issues raised on appeal.
Appellee grew up in a small Orthodox Jewish com-
munity in the Ukraine, Soviet Union. In 1975, after mov-
ing to Brooklyn, New York, he became involved in the
Lubavitch Hasidic movement. He lived and studied at a
4a
Opinion of the Court of Appeals
Lubavitch yeshiva until late 1977. In 1980, his obser-
vance of Jewish laws began to deteriorate. In June 1982,
he was arrested on a charge of selling cocaine. He has
been in the custody of the Department since his convic-
tion on the narcotics charge in March 1983. Soon after
his incarceration began, he became convinced that his
criminal activity was attributable to his failure to observe
Jewish laws.
While incarcerated at the Attica Correctional Facil-
ity, appellee commenced the instant action pro se on
August 8, 1984. His present counsel was appointed in
November 1984. After his transfer to the Great Meadow
Correctional Facility in January, 1985, he was disciplined
twice for disobeying orders to trim his beard.
Appellee filed an amended complaint in the instant
action on February 3, 1985. The amended complaint
names as defendants appellant Thomas J. Coughlin, who
is the commissioner of the Department, and appellant
Hirshel Jaffee, who is a Jewish Chaplain at one of the
prisons at which appellee has been incarcerated. Each of
the other defendants—appellants in this Court—is a Su-
perintendent of a prison at which appellee has been or is
incarcerated.
The amended complaint contains nine claims, each
alleging that appellants denied appellee certain constitu-
tional rights in violation of § 1983. The Ninth Claim—
the only one relevant to the instant appeal—alleges that
the Directive is unconstitutional as applied to appellee to
the extent that it prohibits inmates from growing facial
hair in excess of one inch.
On April 8, 1985, appellants filed a motion pursuant
to Fed. R. Civ. BMli2(b)(1) and 12(b)(6) to dismiss the
amended complaint
a a
Sa
Opinion of the Court of Appeals
In May 1985, the Department transferred appellee
from the Great Meadow Correctional Facility to the
Wallkill Correctional Facility. On his arrival at Wallkill,
he was told that he would have to trim his beard. When
he refused, he was sentenced administratively to 30 days
solitary confinement at the Downstate Correctional Facil-
ity—a maximum security prison. Appellee moved by or-
der to show cause for a preliminary injunction barring
appellants from compelling him to comply with the Di-
rective and requiring that he be released from solitary
confinement. The district court granted a temporary re-
straining order to that effect on June 14, 1985. In an
order entered July 10, the court denied appellants’ mo-
tion of April 8 to dismiss the Ninth Claim of the
amended complaint. The court also ordered consolida-
tion of a hearing on appellee’s motion for a preliminary
injunction and a trial on the merits of the Ninth Claim.
Fed. R. Civ. P. 65(a)(2).
At a six day consolidated hearing and trial in the
Fall of 1985, the court heard evidence concerning ap-
pellee’s religious beliefs and practices both before and
during his incarceration; the place in Jewish law of the
prohibition against trimming the beard; and the various
justifications relied upon by the Department for the Di-
rective.
In its opinion filed November 25, 1986, the court
declared the Directive unconstitutional as applied to ap-
pellee and granted him permanent injunctive relief.
Fromer, supra, 649 F. Supp. at 521-22.
In the judgment entered January 29, 1987 on the
court’s opinion, there was included a certificate pursuant
to Fed. R. Civ. P. 54(b). This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)(1982).
6a
Opinion of the Court of Appeals
For the reasons set forth below, we affirm the judg-
ment of the district court.
Il.
The First Amendment provides in pertinent part that
“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof... ”
The latter clause—the free exercise clause—is the basis
for appellee’s challenge to the Directive. That clause is
made applicable to the states by the Fourteenth Amend-
ment. Cantwell v. Connecticut, 310 U.S. 296, 303-07
(1940).
Although the free exercise clause by its terms ap-
pears to impose an absolute proscription on the power of
the government, only an individual’s belief is beyond gov-
ernmental intrusion. The right to engage in a practice
concomitant with religious belief always has been bal-
anced against the state’s interest in applying neutral rules
of conduct evenhandedly to all citizens. Reynolds v.
United States, 98 U.S. 145, 166 (1878) (“Laws are made
for the government of actions, and while they cannot in-
terfere with mere religious belief and opinions, they may
with practices.”); e.g., Hobbie v. Unemployment Appeals
Commission, 107 S. Ct. 1046, 1048-51 (1987); Wisconsin v.
Yoder, 406 U.S. 205, 213-15 (1972).
The legal standard by which to evaluate the constitu-
tionality of evenhanded application of a neutral restric-
tion varies depending on the relationship between the
individual asserting the right and the governmental entity
imposing the restriction. Generally, an incidental! limiia-
tion on the exercise of religion caused by application of a
neutral law or regulation can be justified “only by proof
by the State of a compelling interest.” Hobbie, supra, 107
S. Ct. at 1049. A restriction that would be impermissible
7a
Opinion of the Court of Appeals
when evaluated under that test, however, may pass con-
stitutional muster in the context of the military. £.g.,
Goldman yv. Weinberger, 106 S. Ct. 1310, 1313-14 (1986).
This is because “‘[jJudicial deference .. . is at its apo-
gee when legislative action under the congressional
authority to raise and support armies and make rules and
regulations for their governance is challenged’” /d. at
1313 (quoting Rostker v. Goldberg, 453 U.S. 57, 70
(1981)).
Where, as here, an inmate asserts a free exercise
challenge to application of a neutral prison rule, special
considerations require departure from the general legal
standard reaffirmed in Hobbie, supra, 107 S. Ct. at 1049.
True, “convicted prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement
in prison”, Bell v. Wolfish, 441 U.S. 520, 545 (1979), and
“reasonable opportunities must be afforded to all prison-
ers to exercise the religious freedom guaranteed by the
First and Fourteenth Amendments without fear of pen-
alty.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per
curiam). Inmates, however, cannot expect the same free-
dom from incidental limitations on the exercise of their
religious practices as that enjoyed by those not incarcer-
ated. Such freedoms often permissibly are restricted in
order to achieve legitimate correctional goals. In evaluat-
ing inmates’ claims of constitutional deprivations, there-
fore, federal courts should “giv[e] appropriate deference
to the decisions of prison administrators and appropriate
recognition to the peculiar and restrictive circumstances
of penal confinement.” Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 125 (1977); accord, Pell
v. Procunier, 417 U.S. 817, 822-23 (1974). Such defer-
ence plays a vital role in reaching the “mutual accommo-
dation between institutional needs and objectives and the
8a
Opinion of the Court of Appeals
provisions of the Constitution that are of general applica-
tion.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
In Wali v. Coughlin, 754 F.2d 1015 (2d Cir.1985), we
carefully examined these special considerations, and the
Supreme Court cases from which they are derived, id. at
1029-33, in enunciating the legal standards to be applied
to constitutional challenges by inmates. While recogniz-
ing that, “[i]n the great majority of cases, it would be
sheer folly for society to deny prison officials the discre-
tion to act in accordance with their professional judg-
ment”, id. at 1018, we observed that “it would be an
abrogation of our responsibility as judges to assume... .
a ‘hands off’ posture, requiring categorical acquiescence
in such judgments.” Jd. Accordingly, we articulated
three standards “drawn by reference to the nature of the
right being asserted by prisoners, the type of activity in
which they seek to engage, and whether the challenged
restriction works a total deprivation (as opposed to a
mere limitation) on the exercise of that right.” /d. at
1033.
The first standard applies where the right asserted
by the prisoner “is found not to exist within the prison
context, i.e., where it is held to be inherently inconsistent
with established penological objectives”. Jd. In such
cases, “the proper role of the court ends with the deter-
mination that the asserted right does not inhere within
the prison’s walls.” Jd.
The second standard—applicable if the assertedly
protected activity is “presumptively dangerous” or if the
challenged restriction “proscribe[s] only one of numer-
ous available means of enjoying protected liber-
ties”—places the burden on the prisoner “to demonstrate
9a
Opinion of the Court of Appeals
that the restriction is not supported by a reasonable justi-
fication.” Jd.
The third standard applies where “the activity in
which prisoners seek to engage is not presumptively dan-
gerous, and where official action (or inaction) works to
deprive rather than merely limit the means of exercising
a protected right”. /d. “In theseglimited circumstances,
it is incumbent upon prison officials to show that a par-
ticular restriction is mecessary to further an important
governmental interest, and that the limitations on free-
doms occasioned by the restriction are no greater than
necessary to effectuate the governmental objective in-
volved.” Jd.
In the instant case, the district court held that the
third standard of Wali applied to appellee’s challenge to
the Directive. Fromer, supra, 649 F. Supp. at 518. We
agree. Appellants make several arguments to support
their claim that the court applied an incorrect legal stan-
dard. We shall examine each of appellants’ arguments.
First, appellants argue that Wali does not apply to
the instant case because it is factually distinguishable
from Wali. In Wali, we struck down a content based re-
striction on the right of inmates to read certain printed
material. Appellants contend that Wali should be con-
tined to its facts and that, unlike the restriction in Wali,
the Directive here involved is neutral on its face. We do
not read Wali so narrowly. As must be apparent from
our extended analysis in Wali, we intended to establish
standards by which to evaluate constitutional claims of
any nature brought by inmates.
Second, appellants urge us to adopt a standard not
articulated in Wali. They assert that the “majority” of
those circuits which have considered constitutional claims
by inmates after Bell, supra, 441 U.S. 520, and Jones,
10a
Opinion of the Court of Appeals
supra, 433 U.S. 119, have applied the “exaggerated re-
sponse” standard. They cite, e.g., Tisdale v. Dobbs 807 F.
2d 734, 739 n.3 (8th Cir. 1986) (declining to decide
whether to adopt a “ ‘more restrictive than necessary’ ”
standard since the inmate “did not present substantial
evidence that the prison officials’ belief was unreason-
able or that their response to the security consideration
was exaggerated”) (quoting Hill v. Blackwell, 774 F.2d
338, 341 (8th Cir. 1985)); Caldwell v. Miller, 790 F.2d
589, 596 (7th Cir. 1986) (“Prison rules that restrain the
free exercise of religion are justified only if they are ‘rea-
sonably adapted’ to achieving an important penological
objective”); Madyun v. Franzen, 704 F.2d 954, 960 n.7
(7th Cir. 1983) (“At least seven different standards for
analyzing free exercise claims have been suggested”; no
mention of “exaggerated response” standard).
An examination of these cases and others makes it
clear that other circuits have not approached the problem
with such uniformity as appellants would have us believe.
More important, even if we were satisfied that there is
the “majority” suggested by appellants, we would decline
to accept their thinly disguised invitation to overrule Wali
based on the decisions of other circuits either before or
after Wali. We carefully analyzed Bell, supra, 441 U.S.
520, and Jones, supra, 433 U.S. 119, in formulating the
three Wali standards. Wali, supra, 754 F.2d at 1029-34.
In Wali we rejected appellant Coughlin’s arguments
based on those cases. See Brief for Appellant at 21-30 in
Wali, supra, 754 F.2d 1015 (No.84-2387). We reject the
same arguments again here.
Third, in another veiled invitation to overrule Wali,
appellants argue that the instant case should be analo-
gized to Goldman, supra, 106 S. Ct. 1310. There the Su-
preme .Court held that the interest of the Air Force in
lla
Opinion of the Court of Appeals
uniformity outweighed a commissioned officer’s asserted
right to wear a yarmulke indoors. The Court stated that,
“when evaluating whether military needs justify a par-
ticular restriction on religiously motivated conduct, courts
must give great deference to the professional judgment of
military authorities concerning the relative important of a
particular military interest.” /d. at 1313. We do not read
Goldman as extending beyond the context of the military.
The Supreme Court gave no indication that its holding or
analysis was to apply outside the military where, the
Court observed, “ ‘[j]udicial deference. . . is at its apo-
gee’ ”. Id. at 1313 (quoting Rostker, supra, 453 U.S. at
70).
Fourth, appellants argue that, even if Wali applies to
appellee’s challenge to the Directive, the district court
erred in applying the third Wali standard. They argue
that appellee’s claim should be analyzed under the sec-
ond Wali standard. They contend that a beard in excess
of one inch in length is “presumptively dangerous” and
that the Directive “proscribe[s] only one of numerous
available means of enjoying protected liberties.” Wali,
supra, 754 F.2d at 1033. We disagree.
The evidence at trial of appellee’s claim showed that
the New York City, federal, and California prison sys-
tems all permit inmates to wear beards of any length.
See also Moskowitz v. Wilkinson, 432 F. Supp. 947, 950
n.8 (D. Conn. 1977) (Newman, J.) (20 states permit
beards in all correctional facilities). A beard in excess of
one inch in length therefore cannot be considered
presumptively dangerous.
We also reject appellants’ argument that the Direc-
tive does not work a total deprivation of appellee’s as-
serted right since he is permitted to wear a short beard
and to practice his religion in other ways. We indicated
12a
Opinion of the Court of Appeals
in Wali that a prison regulation does not work a total
deprivation if it “does no more than define ‘the time,
place or manner’ in which prisoners may enjoy a pro-
tected right”. Wali, supra, 754 F.2d at 1033. Here, ap-
pellee asserts more than a right to practice Judaism in a
general way or merely to wear a beard. He asserts a
right to refrain from trimming, cutting, or shaving his
beard. By its nature such a right can be enjoyed only at
one “time, place or manner”. The district court held,
and we agree, that “requiring [appellee] to cut his facial
hair would work a total deprivation of his religious belief
that the beard must not be disturbed.” Fromer, supra,
649 F. Supp. at 518.
Accordingly, we hold that the district court correctly
applied the third Wali standard.
Il.
Under the third Wali standard, a district court must
determine whether prison officials have sustained their
burden of showing “that a particular restriction is neces-
sary to further an important governmental interest, and
that the limitations on freedoms occasioned by the re-
striction are no greater than necessary to effectuate the
governmental objective involved.” Wali, supra, 754 F.2d
at 1033.
In the instant case, appellants claimed that the Di-
rective was necessary to further the governmental objec-
tives of identification of inmates, protection against
hidden contraband, fairness to other inmates, and safety
and hygiene, In its well reasoned and comprehensive
opinion, the district court examined each of these govern-
mental objectives, Fromer, supra, 649 F. Supp. at 519-21,
and concluded that appellants had failed to establish that
13a
Opinion of the Court of Appeals
the Directive is no greater than necessary to effectuate
them. /d. at 519.
On appeal, appellants repeat those arguments made
to, and properly ruled upon, by the district court. We
have examined all of appellants’ arguments on this claim
and hold that they are without merit for the reasons
stated by the district court. Further discussion by us
would entail nothing more than a paraphrasing of a stel-
lar district court opinion.
Accordingly, we hold that the district court correctly
applied the third standard of Wali.
IV.
To summarize:
In all but the most extraordinary cases, courts must
pay high deference to decisions of prison officials which
have the incidental effect of restricting inmates’ constitu-
tional rights. This well established principle was central
to our formulation in Wali of the standards by which to
evaluate inmates’ claims of constitutional defrivations.
In the instant case, we agree with the district court
that a beard in excess of one inch is not presumptively
dangerous and that the Directive, if applied to appellee,
would work a total deprivation of his religious belief that
the beard must not be disturbed. Accordingly, we hold
that the district court correctly concluded that appellee’s
challenge to the Directive falls into the narrow class of
cases that should be evaluated under the third standard
of Wali. We also hold that the court correctly applied
that standard.
14a
Opinion of the Court of Appeals
We affirm the judgment of the district court granting
. appellee declaratory and injunctive relief on his Ninth
Claim in the amended complaint.
Affirmed.
1Sa
JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YEVGEN FROMER, i,
Plaintiff,
-against-
HAROLD J. SMITH,
WALTER KELLY,
EVERETT W. JONES,
THOMAS A. COUGHLIN III,
and HIRSHEL JAFFEE,
Defendants. /
CHARLES J. SCULLY, " Civ. 5612(CES)
JUDGMENT
Plaintiff having moved this Court for a preliminary
injunction pursuant to Rule 65 of the Federal Rules of
Civil Procedure; and the Court having, by order dated
July 8, 1985, and modified January 16, 1987, consoli-
dated a hearing of that motion with a trial on the merits
of the Ninth Claim for Relief; and the Court having, by
opinion and order dated November 25, 1986, granted
plaintiff's motion and finally determined the Ninth Claim
for Relief; and it now appearing to the Court that there is
no just reason for delay in the entry of judgment on the
Ninth Claim for Relief, it is
ORDERED AND ADJUDGED, that the portion of Di-
rective # 4914 of the New York State Department of Cor-
rectional Services which requires inmates to trim their
beards to one inch in length is declared unconstitutional
as applied to plaintiff; and it is further
16a
District Court Judgment
ORDERED AND ADJUDGED, that defendants and
their officers, agents, servants, employees and attorneys
(“defendants”) are enjoined from trimming, shaving, or
in any other way shortening plaintiff's beard; from order-
ing plaintiff to trim, shave or otherwise shorten his
beard; from punishing plaintiff for refusing to trim,
shave, or otherwise shorten his beard; and from with-
holding any privileges and benefits from, or taking any
other adverse action against, plaintiff because of his re-
fusal to trim, shave or otherwise shorten his beard; and it
is further
ORDERED AND ADJUDGED, that defendants shall re-
store to plaintiff all good time credits and any other privi-
leges and benefits lost because of his past refusals to
trim his beard and shall expunge from his record all ref-
erences to disciplinary proceedings held because of those
violations; and it is further
ORDERED AND ADJUDGED, that, pursuant to Rule
54(b) of the Federal Rules of Civil Procedure, it is ex-
pressly determined that there is no just reason for delay
in the entry of this judgment, and it is expressly directed
that judgment enter accordingly.
Dated: New York, New York
January 27, 1987
/s/ Charles E. Stewart
United States District Judge
17a
ORDER OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK MODIFYING
ORDER CONSOLIDATING HEARING ON PRELIMINARY
INJUNCTION WITH TRIAL NUNC PRO TUNC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YEVGEN FROMER, Ba
Plaintiff,
-against-
HAROLD J. SMITH,
WALTER KELLY,
EVERETT W. JONES,
THOMAS A. COUGHLIN III,
and HIRSHEL JAFFEE,
Defendants. /
CHARLES J. SCULLY, " Civ. 5612(CES)
ORDER
CHARLES E. STEWART, District Judge:
This Court having issued an order on July 8, 1985
pursuant to Rule 65(a) of the Federal Rules of Civil Pro-
cedure consolidating the hearing on plaintiff's application
for a preliminary injunction with a trial on the merits
with respect to the Eighth and Ninth Causes of Action set
forth in the amended complaint; and the said hearing
having taken place, and the Court having rendered its
decision by an opinion dated November 25, 1986; and
the said decision having determined plaintiff's claim for
injunctive relief and having made no determination on
any claim for monetary damages, it is
ORDERED, that this Court’s order of July 8, 1985 is
modified, nunc pro tunc, to consolidate the hearing on
eee ite
18a
District Court Nunc Pro Tunc Order
the application for a preliminary injunction with a trial on
the merits with respect to the Ninth Cause of Action, and
to reserve determination of the Eighth Cause of Action to
the time of disposition of the remainder of the complaint
in this action.
Dated: New York, New York
January 16, 1987
/s/ Charles E. Stewart
United States District Judge
19a
MEMORANDUM DECISION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YEVGEN FROMER, i,
Plaintiff,
-against-
HAROLD J. SMITH,
WALTER KELLY, MEMORANDUM
EVERETT W. JONES, DECISION
THOMAS A. COUGHLIN II,
and HIRSHEL JAFFEE,
Defendants. /
CHARLES J. SCULLY, " Civ. 5612(CES)
STEWART, District Judge:
Plaintiff Yevgen Fromer, an inmate in the custody of
the New York State Department of Correctional Services
(“DOCS”), challenges the constitutionality of DOCS Di-
rective #4914 to the extent that it requires him to shave
or trim his beard to a length of no more than one inch.’
Fromer, an Orthodox Jew, claims that his religious be-
liefs prohibit him from shaving or trimming his facial
hair. During the six days of trial in this action, we heard
1 Plaintiff commenced this action pro se in 1984 claiming retaliatory
transfer and deprivation of kosher food and religious services.
Following appointment of counsel, Fromer filed an amended
complaint which added claims regarding the beard restriction. By
order dated July 8, 1985, we consolidated the hearing on plain-
tiff's application for a preliminary injunction with the trial on the
merits of the beard claims.
20a
District Court Memorandum Decision
from numerous witnesses regarding the sincerity of
Fromer’s religious beliefs and the concerns of DOCS that
underlie the beard regulation. We now conclude that
Fromer is entitled to the injunctive and declaratory relief
that he seeks. Our findings of fact and conclusions of
law are set forth below.
SINCERITY OF RELIGIOUS BELIEF
Directive #4914 establishes basic grooming stan-
dards for inmates in the New York state prison system.
Pl. Ex. 1. The directive provides that upon being com-
mitted to the custody of DOCS, inmates must get a hair-
cut and shave “for reasons of health and sanitation as
well as to permit the taking of the initial identification
photograph.” Thereafter, however, “[a]ll inmates may
grow a beard and/or mustache not to exceed one (1) inch
in length.”
In order to establish his first amendment interest in
challenging Directive #4914, Fromer, as an initial matter,
must demonstrate that his beliefs are sincerely held and
“are, in his own scheme of things, religious.” United
States v. Seeger, 380 U.S. 163, 185 (1965); see also Fur-
gan v. Georgia State Board of Offender Rehabilitation, 554
F. Supp. 873, 876 (N.D. Ga. 1982). In evaluating the
religious nature of Fromer’s beliefs, this court must not
employ an objective, content-based approach to defining
religious belief but rather must examine the plaintiff’s
“inward attitudes towards a particular belief system.”
Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984).
Plaintiff asserts that his refusal to trim his beard is
based on the Torah, specifically, on a passage in
Leviticus, one of the five books of Moses, which states
that one should not mar the corners of the beard. Tr.
104. Fromer testified that he views the wearing of an
ae
z1la
District Court Memorandum Decision
untrimmed beard as “the main bulwark that would be
used against evil,” Tr. 103, in that the beard is a physi-
cal, unalterable, public symbol of Jewish law “to the
highest degree.” Tr. 103-04, 234-35. Fromer further
stated that he wants to leave his beard untrimmed “to
prevent myself from any further breaking the law, civil
law or Jewish law or any law, and stay with the hundred
percent way of Judaism.” Tr. 114.
We find that Fromer has met his burden of showing
that his refusal to obey Directive #4914 is grounded in a
sincere religious belief that trimming the beard violates
Jewish law. Fromer’s refusal to trim his beard is consis-
tent with his religious background and training and is
rooted in a body of Jewish law. Furthermore, we find
Fromer’s testimony regarding his religious beliefs to be
credible and find his conduct since he entered prison to
be consistent with his professed beliefs.
Fromer was born in 1959 in a town in the Ukraine,
Soviet Union, where he lived until the age of fifteen. Tr.
81-82. As Orthodox Jews, Fromer’s family members ob-
served “all the practices . . . most orthodox Jews do” in
the United States, including, for example, keeping Pass-
over strictly. Tr. 83. Members of Fromer’s family were
leaders in the town’s small Jewish community, and
weekly religious services were held in Fromer’s house.
Fromer himself as a child learned how to read Hebrew
and studied the Bible with various teachers. At age thir-
teen he had a baremitzvah and began to observe the relig-
ious practices imposed upon adult men. Tr. 83-88.
While he was in the Soviet Union, Fromer did not
receive religious instruction regarding the maintenance of
a beard. On cross-examination, Fromer admitted that
before he left the Ukraine, the general practice of his
male relatives was to either trim or shave their beards.
22a
District Court Memorandum Decision
Tr. 164. However, Fromer also testified that he was told
that the rabbi grandfather after whom he was named had
an untrimmed beard all his life. Tr. 166. Also, one of
the two shoctim, or religious officials, in his community
had an untrimmed beard. Tr. 165. Fromer resolved in
his youth that “one day when I will be able to I will have
a beard.” Tr. 89.
In 1975, Fromer and his mother arrived in Brooklyn.
Tr. 90. Shortly after his arrival, Fromer enrolled in two
yeshivas associated with the Lubavitch Hasidic move-
ment. He moved into a Lubavitch dormitory, where he
iived until late 1977. Tr. 90-91. During this period he
did not discuss with any of his teachers or relatives
whether trimming the beard was permitted. Tr. 174.
Fromer knew that at least some of his uncles trimmed
their beards. However, he observed that all the teachers
at his yeshivas had long untrimmed beards and that none
of the boys who lived in his dormitory trimmed their fa-
cial hair. Tr. 91-92, 94, 96-97, 224.
Around late 1977, Fromer became a bus driver for
schools operated by the Lubavitch movement. Fromer
continued his religious studies with two men, who told
him that Orthodox Jews were forbidden to disturb their
beards. Tr. 94. In early 1978, Fromer went to Los Ange-
les to assist a rabbi in starting a Lubavitch camp for Rus-
sian immigrants. Tr. 96. Fromer returned to Brooklyn in
late 1978 and started a transportation business that pri-
marily serviced yeshivas. Tr. 97.
During the years when Fromer was enrolled in the
yeshivas and was in Los Angeles, he maintained an un-
trimmed beard. Tr. 97. However, around 1980, he expe-
rienced a business setback and decided that if he became
more assimilated into the society around him, he would
be able to gain more customers. Accordingly, he began
23a
District Court Memorandum Decision
trimming his beard and then shaved it off entirely. In
addition, he grew his hair longer, shortened his prayers,
and wore his yarmulke sporadically. Tr. 98-99. During
this period, he engaged in the criminal activity that led to
his incarceration.
Fromer testified that in early 1982 he decided that
he wanted to resume Jewish religious practices. He be-
gan to grow his beard again and vowed that he would
completely return to Judaism after his financial problems
were over. Tr. 100. At the time of his arrest on a charge
of selling cocaine in June 1982, he was bearded. Tr.
102.
During the eight months Fromer spent in the Brook-
lyn House of Detention prior to his sentencing, he did not ~
trim his beard. Fromer testified that he came to believe
that he had ended up in prison because he had failed to
abide by Jewish law. Accordingly, he began to study
Judaism and observe religious practices that he had pre-
viously abandoned. Tr. 103-04.
Fromer entered the custody of DOCS in March
1983. Upon his admission to Downstate Correctional Fa-
cility, he was told that he was required to remove his
beard. Fromer testified that he requested that an electric
shaver rather than a razor be used if he had to be
shaved, Tr. 105-07, because he believed that using an
electric shaver was less of a violation of Jewish law than
using a razor. See Tr. 180. As a result of his request,
Fromer stated, he was handcuffed and prodded with a
stick by one correction officer while another shaved him
with a razor. Tr. 107.
After this initial shave, Fromer let his beard grow
undisturbed until an officer at Green Haven Correctional
Facility, where Fromer had been transferred, told him to
bring his beard into compliance with the one-inch regula-
24a
District Court Memorandum Decision
tion. Fromer then requested that his mother send him an
electric shaver, which he used to shave the upper part of
his cheeks and neck. However, Fromer did not shave his
jaw or near his ears in order to comply with the biblical
prohibition on marring “the five corners of the beard.”
Tr. 109-10.
In the summer of 1983, Fromer was transferred to a
different cellblock within Green Haven. At that time,
Fromer stopped shaving and trimming his beard com-
pletely, both because no correction officer pressured him
and because his conviction that his beard should not be
trimmed became strengthened. Tr. 113-14. Fromer had
intensified his study of Judaism and had attended a ser-
mon by a Lubavitcher regarding the reasons why Jews
have untrimmed beards. Tr. 220, 226. In addition,
Fromer was influenced by the fact that Sheldon Silver, an
attorney and rabbi with whom Fromer met to discuss re-
ligious practices at Green Haven, had a long untrimmed
beard. Tr. 226-28.
In April 1984, Fromer was transferred to Attica Cor-
rectional Facility, where he was told to trim his beard to..
one inch. Tr. 121. Fromer wrote to Superintendent
Harold J. Smith to protest that the application of Direc-
tive #4914 to him violated his first amendment rights. PI.
Ex. 7A. Fromer stated that as an Orthodox Jew, he con-
sidered his beard part of his “religious dress.” He added
that he did “not claim exemption in the cutting of my
beard out of personal appearance objectives, but rather
out of religious tenets.” After Smith denied Fromer an
exemption, Fromer filed a grievance with the Attica in-
mate grievance committee. Pl. Ex. 7B. Although the
grievance was denied, Fromer never received a direct or-
der to trim his beard while at Attica, nor did he receive
any misbehavior reports there. Tr. 136.
25a
District Court Memorandum Decision
In January 1985, Fromer was transferred to Great
Meadow Correctional Facility. Tr. 138. Rabbi Wein-
berg, the Jewish chaplain at Great Meadow, requested
that Deputy Superintendent Cassidy excuse Fromer from
shaving or trimming his beard, explaining: “Y. Fromer is
an Orthodox Jew of Lubavitch Hassidic sect. These
Jews, for religious reasons do not shave or trim their
beards.” Pl. Ex. 24. However, Fromer was twice disci-
plined for disobeying an order to trim his beard and re-
quired to submit to counseling. Pl. Ex. 8-11. In
February 1985, Fromer commenced the portion of this
action which challenges Directive #4914.
In May 1985, Fromer’s request to be transferred
from Great Meadow, a maximum security prison, to
Wallkill Correctional Facility, a medium security prison,
was granted. Tr. 148. On the day he arrived at Wallkill,
he was told that he would have to trim his beard.
Fromer explained that this lawsuit was pending in federal
court. Tr. 149. However, Fromer was found guilty of
failing to comply with a direct order to trim his beard
and was subsequently sentenced to thirty days in a spe-
cial housing unit. Pl. Ex. 13. Inmates in special housing
units are confined to their cells twenty-three hours per
day and are denied many of the privileges available to
general population inmates. Because Wallkill has no spe-
cial housing unit, Fromer was transferred to Downstate
to serve his sentence. Tr. 152. In addition, Fromer lost
one month of good time as well as commissary and tele-
phone privileges. In June 1985, this court granted
Fromer’s motion for injunctive relief barring enforcement
of Directive #4914 against him and directing his release
from the special housing unit.
To demonstrate that his beliefs regarding his beard
are grounded in Jewish law, plaintiff presented the testi-
26a
District Court Memorandum Decision
mony of Rabbi Moshe Wiener,? who has written a treatise
on the growth and cutting of the beard in Jewish law.
Rabbi Wiener testified extensively as to the origins of the
biblical prohibition on disturbing the beard and stated
that “it is the opinion of the mainstream of Jewish
authorities throughout the centuries that even trimming
the beard should be definitely avoided and proscribed
according to Jewish law.” Tr. 21. He explained:
[T]he custom of Jews . . . throughout the centuries
was not to disturb the beard in any manner whatso-
ever. In fact, the cutting of the beard was always
considered an act of religious desecration and sacri-
lege and was considered an act of basic negating of
one’s religious functions and religious beliefs.
Tr. 20. Rabbi Wiener testified that, in his opinion, an
observant Jewish man is required to refuse to comply
with the portion of Directive #4914 that limits beards to
one inch in length. Tr. 30.
As evidence of plaintiff's insincerity, defendants
point to the facts that Fromer did not ask a rabbi whether
he should trim his beard, Tr. 218-20, and that he cut his
hair on a day when Jewish law would appear to prohibit
such an activity. Tr. 195. They characterize his account
of his initial forcible shave at Downstate as “manifestly
incredible,” noting that Fromer failed to file a grievance
after this alleged incident and that no “use of force” or
“unusual incident” report was written up by corrections
personnel. Tr. 320-21. In addition, a counselor at Great
Meadow described plaintiff's attitude toward his beard
problem as “lighthearted.” Tr. 289. Defendants further
argue that Fromer, during a visit with his mother and
2 Rabbi Wiener has been ordained by the Mirrer Yeshiva and the
United Lubavitcher Yeshiva and is presently director of the Jewish
Community Council of Greater Coney Island. Tr. 9-10.
27a
District Court Memorandum Decision
cousin at Wallkill, nodded when his cousin assured a
counselor that plaintiff would trim his beard. Tr. 259.
Finally, they cite to Fromer’s inconsistent adherence to
an Orthodox Jewish lifestyle and assert that Fromer did
not cease trimming his beard until he began this action.
As their religious expert, defendants called Rabbi
Moshe Tendler, a professor of Talmudic law at Yeshiva
University. Rabbi Tendler testified that although Jewish
law prohibits shaving the face with a razor, Tr. 620,
“with the rarest exception, all people who consider them-
selves to be meticulously observant in Jewish law” be-
lieve that trimming the beard is not only allowed but
indeed is required before certain holidays and events.
Tr. 617. Rabbi Tendler further stated that Jewish law
requires obedience to the civil law of the state, including
prison regulations, as long as not anti-semitic in nature.
Tr. 631-32. According to Rabbi Tendler, Jewish law
would also require Fromer to accede to his mother’s re-
quest to trim his beard in order to avoid a transfer to
another prison that would make it more difficult for her
to visit him. Tr. 635-36.
We find that the evidence, taken as a whole, estab-
lishes the sincerity of Fromer’s religious belief. Fromer’s
refusal to trim his beard is consistent with his upbringing
as an Orthodox Jew and with his education at Lubavitch
yeshivas. Moreover, Rabbi Wiener’s testimony estab-
lished that the practice of not disturbing the beard is
grounded in a recognized body of Jewish doctrine.
Although Rabbi Tendler vigorously disputed Rabbi
3 Rabbi Tendler was ordained by Yeshiva University and is chair-
man of the biology department there. He is a member of the Beth
Din rabbinic court and is on the executive committee of the Union
of Orthodox Rabbis of the United States. His father-in-law was
Rabbi Moshe Feinstein, a leading Talmudic scholar until his death
earlier this year. Tr. 602-04.
28a
District Court Memorandum Decision
Wiener’s views, he did concede the existence of rabbini-
cal opinion prohibiting the trimming of the beard. We do
not attempt to resolve the controversy between the two
rabbis, for “the judicial process is singularly ill equipped
to resolve [intrafaith] differences in relation to the Relig-
ious Clauses.” Thomas v. Review Board of the Indiana
Employment Security Division, 450 U.S. 707, 715 (1981).
Furthermore, “the guarantee of free exercise is not lim-
ited to beliefs which are shared by all of the members of
a religious sect.” Jd. at 715-16; accord, Moskowitz v.
Wilkinson, 432 F. Supp. 947, 949 (D. Conn. 1977)
(“[Tlhe fact that some Jews do not object to shaving, or
that others accept the distinction between shaving and
cutting, does not defeat the plaintiff's claim. It is his
own religious belief that is asserted, not anyone else’s.”);
Monroe v. Bombard, 422 F. Supp. 211, 215 n.4 (S.D.N.Y.
1976) (“It is not for the courts to decide which practices
or observances are or are not strict requirements of a
particular faith.”).¢
The sincerity of Fromer’s belief is also evinced by
his conduct since his incarceration. Although it is obvi-
ous that Fromer at times has departed from the tenets of
his faith, we are persuaded that his commitment to Or-
thodox Jewish observance has intensified as a result of
his religious studies and reflection while in prison. Fur-
thermore, having examined the photographs in evidence,
we find that Fromer has been consistent in his refusal to
trim his beard since the end of summer 1983, even
though repeatedly threatened with disciplinary action.
4 Plaintiff’s Exhibits 23, 24, and 25 and defendants’ Exhibit BB, all
of which were offered after trial, were admitted into evidence.
29a
District Court Memorandum Decision
STANDARD OF REVIEW
Having found that Fromer has a sincere, religious
belief which prohibits him from trimming his beard, we
must determine what standard of review to apply to
Fromer’s claim that Directive #4914’s grooming require-
ments infringe upon his first amendment right to freely
exercise his religion. We begin with the proposition that
“la] prisoner does not shed . . . basic First Amendment
rights at the prison gate.” Procunier v. Martinez, 416 U.S.
396, 422 (1974) (Marshall, J., concurring). Furthermore,
“a prisoner retains those First Amendment guarantees,
including the right to participate in practices which are
an integral part of his religious faith, ‘that are not incon-
sistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.’” Moor-
ish Science Temple of America, Inc. v. Smith, 693 F.2d 987,
990 (2d Cir. 1982) (quoting Pell v. Procunier, 417 U.S.
817, 822 (1974)). Because security is the main objective
of prison administration, however, “prison officials must
have broad latitude to adopt rules that protect the safety
of inmates and corrections personnel and prevent escape
or unlawful entry.” United States v. Cohen, 796 F.2d 20,
22 (2d Cir.), cert. denied, 93 L. Ed. 2d 122 (1986) (citing
Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
In Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985),
the Second Circuit recently set out a tripartite standard
by which to evaluate claimed violations of prisoner
rights. The standard is “drawn by reference to the nature
of the right being asserted by prisoners, the type of activ-
ity in which they seek to engage, and whether the chal-
lenged restriction works a total deprivation (as opposed
to a mere limitation) on the exercise of that right.” Jd. at
1033. First, where the right asserted is held to be inher-
ently inconsistent with established penological objectives,
30a
District Court Memorandum Decision
judicial deference to the judgment of corrections officials
. should be nearly absolute. Second, where the activity
sought to be engaged in is presumptively dangerous, def-
erence should be extremely broad, though not categori-
cal. Third,
[w]here . . . the activity in which prisoners seek to
engage is not presumptively dangerous, and where
official action (or inaction) works to deprive rather
than merely limit the means of exercising a pro-
tected right, professional judgment must occasion-
ally yield to constitutional mandate. In these limited
circumstances, it is incumbent upon prison officials
to show that a particular restriction is necessary to
further an important governmental interest, and that
the limitations on freedoms occasioned by the re-
Striction are no greater than necessary to effectuate
the governmental objective involved.
Id.
Defendants argue that the Wali analysis does not
govern here. As they point out, Wali was a first amend-
ment censorship action involving a prior restraint on ac-
cess to information, not a free exercise of religion suit.
Defendants contend that under Jones v. North Carolina
Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977), and
Bell v. Wolfish, 441 U.S. 520 (1979), when an inmate
brings a free exercise challenge to a regulation justified
by legitimate penological objectives, courts must defer to
the judgment of expert prison administrators unless the
inmate can show, by substantial evidence, that the regu-
lation constitutes an exaggerated reaction to security con-
siderations. Defendants point out that such a standard
has been adopted by a number of circuits. E.g., Hill v.
Blackwell, 744 F.2d 338, 342-43 (8th Cir. 1985); Madyun
v. Franzen, 704 F.2d 954, 959-60 (7th Cir.), cert. denied,
31a
District Court Memorandum Decision
464 U.S. 996 (1983); St. Claire v. Cuyler, 634 F.2d 109,
114-15 (3d Cir. 1980).
We find the Wali case to be controlling here. We
first note that the Wali court’s analysis of Supreme Court
precedent included Jones v. North Carolina Prisoners Union
and Bell v. Wolfish. Moreover, we are persuaded by the
Third Circuit’s conclusion in Shabazz v. O’Lone, 782 F.2d
416 (3d Cir.) (en banc), cert. granted, 107 S. Ct. 268
(1986), that the standard proposed by defendants “pro-
vides inadequate protection for the rights of prisoners
freely to exercise their religion.” Jd. at 417; see also id.
at 420.
In Shabazz, Muslim prisoners challenged prison
regulations that prevented them from attending weekly
religious services as violative of their first amendment
rights. The Shabazz court found St. Claire’s “exagger-
ated response” standard, 634 F.2d at 114-15, which de-
fendants urge us to adopt, to be flawed because it failed
to “require any inquiry into the feasibility of accommo-
dating prisoners’ religious practices.” Shabazz, 782 F.2d
at 420. Rather, “a ‘mutual accommodation’ between the
important institutional objective of security and the con-
Stitutionally protected rights of prisoners” is required un-
der Bell v. Wolfish, 441 U.S. at 546, and Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Shabazz, 782 F.2d
at 419. To replace the St. Claire standard, the Third
Circuit adopted the following analysis for cases involving
free exercise rights:
[T]he state must show that the challenged regula-
tions were intended to serve, and do serve, the im-
portant penological goal of security, and that no
reasonable method exists by which [the inmates’] re-
ligious rights can be accommodated without creating
bona fide security problems.
32a
District Court Memorandum Decision
Shabazz, 782 F.2d at 420. In the context of the case
before us, the Shabazz analysis is substantially identical
to the third part of the Wali standard of review.
We hold that the third Wali standard governs the
case before us. The first standard is inapplicable be-
cause the right of prisoners to wear beards is not inher-
ently inconsistent with established penological objectives.
See Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976);
Sostre v. Preiser, 519 F.2d 763, 764 (2d Cir. 1975); Mos-
kowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977);
Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976).
The second standard does not apply because unrestricted
beard growth is not presumptively dangerous® and be-
cause requiring Fromer to cut his facial hair would work
a total deprivation of his religious belief that the beard
must not be disturbed.
The third Wali standard, furthermore, is consistent
with prior Second Circuit cases concerning beards in
prison. In Burgin, Sunni Muslim prisoners asserted their
first amendment right to grow beards. While remanding
for factual development, the Second Circuit set forth the
following standard:
“But even if the institutional purpose [in prohibiting
beards] is legitimate and substantial, ‘that purpose
cannot be pursued by means that broadly stifle fun-
damental personal liberties when the end can be
more narrowly achieved.’ Shelton v. Tucker, [364
U.S. 479, 488 (1960)], Procunier v. Martinez, [416
U.S. 396, 413 (1974)]”
Burgin, 536 F.2d at 504 (quoting Sostre, 519 F.2d at 764
(inmate challenge to “no beard” prison rule)). The
“least restrictive alternative” analysis has also been em-
ployed by two district courts to strike down the no-beard
5 See our discussion of the government’s security concerns below.
33a
District Court Memorandum Decision
rule as applied to prisoners who declined to remove their
beards on the basis of sincerely held religious beliefs.
Moskowitz, 432 F. Supp. at 951 (Orthodox Jew in federal
prison); Monroe, 422 F. Supp. at 218 (Sunni Muslims in
state prison); see also People v. Lewis, No. 356, slip op.
(N.Y. Nov. 11, 1986) (portion of Directive #4914 requir-
ing Rastafarian inmate to cut dreadlocks for initial photo-
graph held unconstitutional under either the “least
intrusive means” or “exaggerated response” test, be-
cause facial features can be fully exposed merely by pull-
ing hair back), affg, 115 A.D.2d 599, 496 N.Y.S.2d 258
(2d Dep’t 1985); Phillips v. Coughlin, 586 F. Supp. 1281,
1285 (S.D.N.Y. 1984) (Directive #4914’s requirement
that all inmates submit to initial shave upheld as “least
intrusive method available” to satisfy state’s interest in
photographing facial features); Gallahan v. Hollyfield, 670
F.2d 1345, 1346 (4th Cir. 1982) (least restrictive alterna-
tive standard used to enjoin cutting of Cherokee Indian’s
hair); Wright v. Raines, 457 F. Supp. 1082, 1088 (D. Kan.
1978) (“no beard” regulation struck down as applied to
Sikh inmate because regulation does not represent least
restrictive method of obtaining goal of security.)
Accordingly, defendants must show that application
of the one-inch beard restriction is “necessary to further
an important governmental interest.” Wali, 754 F.2d at
1033. In addition, they must establish “that the limita-
tions on freedoms occasioned by the restriction are no
greater than necessary to effectuate the governmental ob-
jective involved.” /d.
34a
District Court Memorandum Decision
GOVERNMENTAL INTERESTS
Philip J. Coombe,* Deputy Commissioner for Facil-
ity Operations of DOCS, testifies that the governmental
interests in identification of inmates, control of contra-
band, fairness, safety, and hygiene all necessitate the one
inch limit on beards. While each of these interests is
unquestionably important in the prison setting, we con-
clude that defendants have not established that the beard
restriction is no greater than necessary to effectuate the
governmental objectives involved.
Identification
The governmental interest in effective identification
of inmates to insure prison security and to facilitate ap-
prehension of escaped inmates is important and substan-
tial. Moskowitz, 432 F. Supp. at 950. Defendants’
evidence establishes that allowing inmates to wear beards
poses heightened difficulties in identification. Coombe
testified that two inmates escaped from the Green Haven
visiting room after shaving their beards and donning
women’s clothing in the bathroom. Tr. 347, 376.
We are not persuaded, however, that beards longer
than one inch pose a significantly greater risk than
beards of one inch or less. Coombe testifies that while
he would prefer to require inmates to be clean-shaven
and to wear their hair short, the prison system can toler-
ate beards up to one inch because facial structure is still
visible when the beard is short. Tr. 351. He argued that
a long, untrimmed beard would provide an inmate with a
set of disguises, in that the inmate could roll, braid, or
otherwise manipulate his beard. Tr. 353. The fact that
§ Mr. Coombe is responsible for the security of the fifty correctional
facilities operated by DOCS and reports directly to Commissioner
Coughlin. He has served as superintendent of the Otisville and
Eastern Correctional Facilities. Tr. 337-38, 341.
35a
District Court Memorandum Decision
an inmate has innumerable opportunities for instant dis-
guise increases his willingness to escape and makes an
escape attempt more likely to succeed. Tr. 381-82.
On this point, we are more inclined to accept the
testimony of plaintiff’s prison expert, Daniel J. Pochoda,’
who disagreed with Coombe’s assertion that a one-inch
beard allows significantly better observation of an in-
mate’s facial structure than does a longer beard. In
Pochoda’s view, “the change in appearance is brought
about by a beard of one inch versus no beard at all, as
opposed to a difference of one inch and two or three or
four or longer.” Tr. 428. Under Directive #4914, in-
mates currently have the option of keeping their hair in
any length and any style and of keeping their mustaches
and beards in any style not exceeding one inch in length.
Since inmates may drastically change their appearances
in numerous ways while still complying with Directive
#4914, we are not persuaded that the additional disguise
options of a braided or rolled beard would lead to an
increase in escape attempts or in disciplinary problems
within the prison.®
? Pochoda has worked as a staff attorney with the Prisoners’ Rights
Project of the New York Legal Aid Society, executive director of
the New York State Commission of Corrections, director of the
Minimum Standards Unit of the New York City Board of Correc-
tions, chair of a corrections task force of the New York State Divi-
sion of Criminal Justice Services, and president of the Correc-
tional Association of New York. Tr. 398-408.
We reject defendants’ assertion that Pochoda’s expert testimony
must be disregarded because his “political convictions are very
radical.” Defendants’ Post-Trial Memorandum at 30. We also
find defendants’ contention that Pochoda “assisted [Attica] in-
mates in efforts to leverage their demands through illegal strikes”
in 1983 to be unsupported. /d. at 84.
8 Defendants’ contention that long beards would pose a significant
security threat is also undermined by the fact that the escape rate
(footnote continued on next page)
36a
District Court Memorandum Decision
To the extent that the one-inch beard restriction does
promote identification of inmates, that objective can be
obtained by the less restrictive means of rephotographing
the inmate whenever the growth of his beard significantly
changes his appearance.® Directive #4914 already re-
quires a clean-shaven picture of every inmate upon entry
to the prison system. In addition, Directive #4914 pro-
vides that an inmate can be rephotographed at his own
expense “[i]f, in the opinion of the Correction Officer or
Supervisor, an inmate drastically changes his appearance
by changing the length of his hair or growing or shaving
a beard and/or mustache.” “While such an alternative
may be administratively inconvenient or financially bur-
densome, such difficulties do not suffice to excuse the
state from according basic constitutional rights to in-
mates.” Monroe v. Bombard, 422 F. Supp. at 217.
Contraband
Defendants contend that the one-inch beard rule is
necessary to prevent inmates from concealing contra-
band. One of defendants’ attorneys demonstrated at trial
that he could secrete and securely hold a nail file in his
four-inch beard. Tr. 385-86. A nail file resembles a
(footnote continued from preceding page)
in New York is one of the lowest in the United States, Coombe,
Tr. 348, and by the experience of other prison systems that allow
beards of any length. The New York City, federal, and California
prison systems all do not restrict beards. Pl. Ex. 18; Combe, Tr.
513. Pochoda, who conducted research in the city correctional
system for two years while drafting minimum standards for the
New York City prisons, testified that the city has not encountered
any problems in security, identification of inmates, safety, or hy-
giene resulting from its lack of beard restrictions. Tr. 433.
9 Defendants argue that obtaining photographs of inmates wearing
all the variations that could be adopted with a long beard would be
impossible. However, photographs of the multiplicity of appear-
ances possible with various hairstyles and facial hair not exceeding
one inch are not considered necessary by DOCS.
37a
District Court Memorandum Decision
shank, or sharpened piece of metal, which inmates use as
a weapon. Tr. 352.
While we recognize the magnitude of the contraband
problem facing prison authorities, we find that drugs or
weapons could be hidden at least as easily in an inmate’s
long hair, clothing, or body as in his beard. In fact, de-
fendants’ expert conceded that he had never heard of an
instance where an inmate had concealed contraband in
his hair or beard. Coombe, Tr. 374-75. Furthermore,
the governmental objectives of d'scouraging and detect-
ing contraband in long beards may be served by the
search procedures currently in effect. Inmates are
searched periodically with metal detectors. In addition,
during contraband searches the immate is required to run
his fingers through his hair afid beard. If the correction
officer suspects that something fs still concealed, he him-
self can run his fingers through the inmate’s beard and
hair. Coombe, Tr. 373. Therefore, less restrictive alter-
natives are available to deal with the contraband prob-
lem.
Fairness
Defendants argue that the one-inch beard require-
ment is a neutral, consistent rule that can be understood
easily by both staff and inmates. Aliowing exceptions to
fair and uniform regulations, defendants claim, creates
confusion, resentment, and opportunities for confronta-
tion between inmates and guards.
Defendants’ position is belied by the fact thai nu-
merous DOCS directives already provide for exemptions
for prisoners who have sincerely held religious beliefs.
For example, “American Indians involved in scheduled
and approved Indian cultural ceremonies” need not com-
ply with the porti o%f Directive #4914 that requires long
38a
District Court Memorandum Decision
hair to be tied back in a ponytail. Directive #4202 pro-
vides that dietary requirements and the restrictions on
activity of an inmate’s Sabbath should be observed, and
allows inmates to wear various religious items. PI. Ex.
20. Pochoda testified that prisoners do not resent ex-
emptions for other prisoners based on sincere religious
belief as long as the exemption is based on a rule and all
prisoners have the opportunity to demonstrate their relig-
ious interest. Tr. 432. To the limited extent that excep-
tions do result in confusion and resentment, these
problems do not justify the impairment of Fromer’s abil-
ity to observe his religious beliefs by growing his beard.
Safety and Hygiene
Defendants assert that an untrimmed beard can be-
come caught in machinery and can pose a hygiene prob-
lem if the inmate ig assigned to food service or if the
beard becomes infested with vermin. Once again, we do
not see a distinction between the situation presented by
long hair and the situation presented by long beards.
Inmates with long beards can be required to wear beard
guards around machinery and food preparation areas or
else be assigned to jobs not involving machines or foods.
If vermin is detected in a beard, the inmate can be re-
quired to use a special shampoo to combat the problem
or to cut his beard as a last resort.
CONCLUSION
Plaintiff has established that his refusal to trim his
beard to comply with Directive #4914 is based on beliefs
that are sincerely held and religious in nature. We con-
clude that defendants’ interests in identification of in-
mates, control of contraband, fairness, safety, and
hygiene can all be served with alternatives less restrictive
than requiring Fromer to trim his beard. Thus, defen-
39a
District Court Memorandum Decision
dants have failed to show that the limitation on Fromer’s
religious freedom occasioned by the beard restriction are
no greater than necessary to effectuate the governmental
objectives asserted. See Wali, 754 F.2d at 1033.
Accordingly, the portion of DOCS Directive #4914
requiring inmates to trim their beards to one inch in
length is hereby declared unconstitutional as applied to
Fromer. Defendants are hereby enjoined from trimming,
shaving, or in any other way shortening Fromer’s beard;
from ordering Fromer to trim, shave, or otherwise
shorten his beard; and from punishing Fromer for refus-
ing to trim, shave, or otherwise shorten his beard. Fur-
thermore, defendants are ordered to restore to Fromer all
good time credits and any other privileges and benefits
lost because of his past refusals to trim his beard. De-
fendants must also expunge from Fromer’s record all ref-
erences to disciplinary proceedings held because of the
violation.
SO ORDERED.
Dated: New York, New York
November 25, 1986
/s/ Charles E. Stewart
United States District Judge
40a
ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CONSOLIDATING HEARING ON PRELIMINARY
INJUNCTION WITH TRIAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
YEVGEN FROMER, \
Plaintiff,
-against-
HAROLD J. SMITH,
WALTER KELLY,
EVERETT W. JONES,
THOMAS A. COUGHLIN III,
and HIRSHEL JAFFEE,
Defendants -/
CHARLES J. SCULLY, a Civ. 5612(CES)
ORDER
STEWART, District Judge:
Pursuant to Fed. R. Civ. P. 65(a)(2), the hearing on
plaintiff’s application for a preliminary injunction, sched-
uled for July 23, 1985, is to be consolidated with a trial
on the merits with respect to the Eighth and Ninth
Causes of Action set forth in the Amended Complaint.
As to these two causes of action, defendants’ pending
motion to dismiss is denied, wi. 10ut prejudice.
SO ORDERED.
Dated: New York, New York
July 8, 1985
/s/ Charles E. Stewart
United States District Judge
4la
NEW YORK STATE DEPARTMENT OF CORRECTIONAL
SERVICES DIRECTIVE NO. 4914, AS REVISED
Classification Distribution ; Date
# 4914 A&B 1/5/84
Supersedes Directive # 4914 Dated 1/18/82
and Revision Notice Dated 2/2/82
Subject: INMATE GROOMING STANDARDS
i. DESCRIPTION
This directive establishes the basic grooming stan-
dards (including criteria for beards, mustaches, and
length of hair) for inmates.
Il. STANDARDS
Reference is made to Rule 3.20 of the Standards of
Inmate Behavior: “Beards and mustaches are not to
exceed one (1) inch in length.”
It is especially important that inmates who are as-
signed to temporary release programs present a
“neat and clean” appearance.
lil. REGULATIONS
A.
Initial Haircut and Shave at Reception
Males received as new commitments shall get
an initial haircut and shave for reasons of
health and sanitation as well as to permit the
taking of the initial identification photograph.
Hair length upon completion of this initial hair-
cut shall not exceed one (1) inch on any part of
the head. For the purpose of the initial clean
shaven identification photograph, inmates who
have a beard upon reception shall be permitted
the option to use an electric razor, hand clip-
‘pers, or a depilatory to remove their beard.
B.
42a
Department of Correctional Services Directive No. 4914
General Grooming Standards
After the initial haircut and shave, general
grooming standards as set forth below are ap-
plicable to all inmates.
iF
bh
Beards and Mustaches
All inmates may grow a beard and/or mus-
tache not to exceed one (1) inch in length.
Hair
a.
Hair may be permitted to grow over
the ears to any length desired by the
inmate. The corn row style is allowed.
The hair must be neatly groomed and
kept clean at all times.
When an inmate wears long haji, and
is assigned to work near machinery or
food, he will be required to wear a
hair net.
Inmates wearing long hair wili be re-
quired to have the hair tied back in a
ponytail with a barrette, rubber band,
or other fastening device approved by
the Superintendent. This restriction
does not apply to American Indians in-
volved in scheduled and approved In-
dian cultural ceremonies.
An inmate may be subjected to a hair
search when there is reason to believe
that contraband may be discovered by
such a search. He may be subjected
to such search at any time that a pat
or strip frisk is being conducted.
43a
Department of Correctional Services Directive No. 4914
C.
Photographs
If, in the opinion of a Correction Officer or Su-
pervisor, an inmate drastically changes his ap-
pearance by changing the length of his hair or
growing or shaving a beard and/or mustache, he
will be rephotographed for identification pur-
poses. All such rephotographs will be at the
expense of the inmate.
44a
Department of Correctional Services Revision
to Directive No. 4914
Classification _ Distribution Date
# 4914 A&B 4/24/84
Revises Directive # 4914 Dated 1/5/84
Subject: INMATE GROOMING STANDARDS
Please add the following NOTE to the above refer-
enced directive immediately following Section II[-B-2-c on
page 2.
NOTE: Long hair is defined as shoulder iength or
longer. If shoulder length or longer, it
should be tied back.
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.