Petition for Writ of Certiorari — Coughlin v. Benjamin
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IN THE | JOSEPH F. SPanHo.,
CLERK
Supreme Court of the United
OctToBER TERM, 1990
THOMAS A. COUGHLIN, Commissioner, New York State
Department of Correctional Services; STEPHEN
DALSHEIM, Superintendent, Ossining Correctional Facility;
EUGENE S. LEFEVRE, Superintendent, Clinton Correc-
tional Facility; and HAROLD SMITH, Superintendent,
Attica Correctional Facility,
Petitioners,
vs
THOMAS BENJAMIN, ERROL DUNKLEY, FRANK
FORREST, BARRINGTON GRAY, NEWTON
HANNON and MARTIN SPENCE, on behalf of all others
= similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ROBERT ABRAMS
QO. PETER SHERWOOD Attorney General of the
Solicitor General State of New York
Attorney for Petitioners
LAWRENCE S. KAHN 120 Broadway
Deputy Solicitor General New York, New York 10271
and Counsel of Record (212) 341-2620
Howarp L. ZWwICKEL
Assistant Attorney General
In Charge, Litigation Bureau
DENNIS J]. SAFFRAN
Assistant Attorney General
Of Counsel
¥)
QUESTIONS PRESENTED
1. Is a prison directive that requires incoming inmates to
receive an initial haircut for the purpose of taking a short-hair
identification photograph for use in the event of their escape,
but allows the inmates to regrow their hair to any length they
wish after this photograph, “reasonably related to legitimate
penological interests” and thus constitutionally permissible under
Turner v. Safley and O’Lone v. Shabazz?
2. Was it proper to invoke offensive ncen-mutual issue preclu-
sion to enjoin enforcement of the initial haircut requirement
against the plaintiff class, based upon two state court actions
decided under the pre-Turner/O’Lone legal standard, despite the
intervening sea change in the governing law brought about by
these decisions, other state court decisions upholding the
challenged regulation, the individualized nature of the earlier
actions, and the defendants’ governmental status?
5 TABLE OF CONTENTS
Questions Presented ......................000.
Table of Authorities ..................... een
ee
ei sa eg ka to ba eek ad sen and naevus
State Directive Involved.......................
Statement of the Pete A ee ne
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW CONFLICTS
WITH THIS COURT’S DECISIONS IN
TURNER V. SAFLEY AND OZONE V.
SHABAZZ AND WITH THE DECISIONS
OF FOUR OTHER COURTS OF
i ee Pe
II. THE RELIANCE OF THE COURT
BELOW UPON PRECLUSION AS AN
ALTERNATIVE BASIS FOR ITS
HOLDING IS UNSUPPORTABLE .......
a AER im ea om nn a oa a
iv
Appendix: ~
Opinion of the United States Court of Appeals for
Se I I. on ook ney cesnces caesianns
Opinion and Order of the United States District
Court, Southern District of New York ........
Order and Judgment of the United States District
Court, Southern District of New York ........
Opinion and Order of the United States District
Court, Southern District of New York, granting
Preliminary Injunction...................---
New York State Department of Correctional
Services Directive No. 4914................-.
New York State Department of Correctional
Services Directive No. 4914, as revised........
Decision of the New York State Supreme Court,
Queens County, Lewis v. Commissioner of the
Department of Correctional Services..........
Decision of the New York State Supreme Court,
Westchester County, Ellis v. Jackson .........
Decision of the New York State Supreme Court,
Westchester County, Chapman v. Jackson.....
Page
la
18a
3la
34a
63a
TABLE OF AUTHORITIES
Cases Page
Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir.
MUD bs 0.604 04 kh aho eae bere 4,11,
12, 13,
14
Block v. Rutherford, 468 U.S. 576 (1984)........ 7
Brightly v. Wainwright, 814 F.2d 612 (11th Cir.
BER so aeskdveuns thane 10
Chapman v. Jackson, No. 11046/85 (N.Y. Sup.
Ct. Westchester Co. Aug. 3, 1985) ........... 14
Cole v. Flick, 758 F.2d 124 (3d Cir. 1985) ...... 10
Commissioner of Internal Revenue v. Sunnen, 333
Us. We COE 5h x dks otaoe dee 11, 12
Dreibelbis v. Marks, 742 F.2d 792 (3d Cir. 1984). 10
Dutchess Sanitation Service, Inc. v. Town of
Plattekill, 51 N.Y.2d 670, 435 N.Y.S.2d 962
ED oo seein denudey cece 12
Ellis v. Jackson, No. 10446/85 (N.Y. Sup. Ct.
Westchester Co. July 8, 1985) ............... 14
Haize v. Hanover Insurance Co., 536 F.2d 576
Oe | PPC Te ees Ls 14
Hercules Carriers, Inc. v. Florida, 768 F.2d 1558
(ith Gir. MND ooo codices eee 14
Hodes v. Axelrod, 70 N.Y.2d 364, 520 N.Y.S.2d
0 0007) |... ....2 ee eee 12
Page
John P. v. Whalen, 54 N.Y.2d 89, 444 N.Y.S.2d
OOS CRORE) ono ccsncashndcrtekanneieeeeees 12
Koch v. Consolidated Edison Co., 62 N.Y.2d 548,
470 N.Y BBB WES GBD iis ciiccccecescasscsse 12.
Lewis v. Commissioner of the Department of
Correctional Services, No. 85-11167 (N.Y. Sup.
Ct. Queens Co. Aug. 1, 1985), affd sub nom..,
People v. Lewis, 115 A.D 2d 597, 496 N.Y.S.2d
258 (2d Dep’t 1985), aff'd, 68 N.Y.2d 923, 510
N.Y.S.2d 73 (1986) .......2..ceccceeceueees. 4, 11,
12, 13,
14
Limbach v. Hooven & Allison Co., 466 U.S. 353
(RGDO.... on ceccicccessveueeeenaeenaneeeeane 12
Marrese v. American Academy of Orthopedic
Surgeons, 470 U.S. 373 (1985) .............-.. 12
Martinelli v. Dugger, 817 F.2d 1499 (11th Cir.
ROGF) «.. o ocnccccusaccesns'eheuesaneneen 10
Montana v. United States, 440 U.S. 147 (1979)... 12
O’Lone v. Shabazz, 482 U.S. 342 (1987) ........ passim
Overton v. Department of Correctional Services,
131 Misc.2d 295, 499 N.Y.S.2d 860 (Sup. Ct.
Kings Co. 1986), affd, 133 A.D.2d 744, 520
N.Y.S.2d 32 (2d Dep’t 1987), appeal dismissed
as moot, 72 N.Y.2d 838, 530 N.Y.S.2d 551
(IGRDR, oo osccvincconsasnuueaneeesaeeeeenne 4,11, 13
Parklane Hesiery Co. v. Shore, 439 U.S. 322
Pe ee pe es 14
Pollock v. Marshall, 845 F.2d 656 (6th Cir.
1988), cert. denied, 109 S. Ct. 239 (1988) ..... )
Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) ..
Solomon v. Coughlin, 89 A.D.2d 1045, 456
N.Y.S.2d 125 (3d Dep’t 1982)...............
State Farm Insurance Co. v. Duel, 324 U.S. 154
| ESE RE en Peer ry pa ee
Thornburgh v. Abbott, 490 U.S.___., 109 S. Ct.
LI as cs ca oc hae eeceucscieseveane
Turner v. Safley, 482 U.S. 78 (1987)...........
United States v. Mendoza, 464 U.S. 154 (1984)...
Wilson v. Schillinger, 761 F.2d 921 (3d Cir.
COR ee Ora PRS rea!
Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978) ...
FEDERAL CONSTITUTIONAL PROVISIONS
es a a Pe »
FEDERAL STATUTES
28 U.S.C. § 1343(a)(3).........-. 00... eee eee.
ke.
ee eG I kas cay acueseecieccnasass
STATE RULE
N.Y. Department of Correctional Services
EO RR AN RL eae alk le ee ae
Page
3, 9, 10
14
12
7, 8
passim
14
10
12
passim
12
OTHER AUTHORITIES
Restatement (Second) of Judgments.............
18 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure: Jurisdiction (1981) ....
Note, Soul Rebels: The Rastafarians and the Free
Exercise Clause, 72 Geo. L.J. 1605 (1984)
Page
11, 12,
13, 14
11, 13,
IN THE
Supreme Court of the United States
OctTosBer TERM, 1990
THOMAS A. COUGHLIN, Commissioner, New York State
Department of Correctional Services; STEPHEN
DALSHEIM, Superintendent, Ossining Correctional Facility;
EUGENE S. LEFEVRE, Superintendent, Clinton Correc-
tional Facility; and HAROLD SMITH, Superintendent,
Attica Correctional Facility,
Petitioners,
VS.
THOMAS BENJAMIN, ERROL DUNKLEY, FRANK
FORREST, BARRINGTON GRAY, NEWTON HANNON
and MARTIN SPENCE, on behalf of all others
similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the United States Court of
Appeals for the Second Circuit entered in this action on May
18, 1990.
OPINIONS BELOW
The decisions of the district court are reported at 643 F. Supp.
351 (S.D.N.Y. 1986) and 708 F. Supp. 570 (S.D.N.Y. 1989), and
are reproduced in the appendix to this petition at 18a-30a and
34a-46a. The decision of the court of appeals is reported at 905
F.2d 571 (2d Cir. 1990) and is reproduced in the appendix at
la-l7a.
JURISDICTION
The judgment of the court of appeals was entered on May
18, 1990. 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 Direc-
tive No. 4914 (Jan. 5, 1984) [superceded] provides in pertinent
part’:
Males received as new commitments shall get an ini-
tial haircut ... for reasons of health and sanitation
as well as to permit the taking of the initial identifica-
tion photograph. Hair length upon completion of this
initial haircut shall not exceed one (1) inch on any part
of the head.
After the initial haircut ... [h]air may be permitted
to grow over the ears to any length desired by the
inmate.
' Directive No. 4914 was revised in 1986 under constraint of the preliminary
injunction issued by the district court in this case. The original Directive, which
is at issue here, is reprinted in its entirety in the appendix at 47a-49a. The
current Directive is reprinted at 50a-54a.
STATEMENT OF THE CASE
This is a class action brought pursuant to 42 U.S.C. § 1983
and 28 U.S.C. § 1343(a)(3) by Rastafarian inmates in the custody
of the New York State Department of Correctional Services
(“DOCS”). In their complaint, plaintiffs (respondents here)
claimed that various DOCS policies violated the free exercise
clause of the first amendment and the equal protection clause
of t 1e fourteenth amendment. The district court and the court
of appeals sustained three of the four challenged DOCS policies,’
but held that the DOCS requirement that incoming inmates
receive an initial haircut for the purpose of an identification
photograph could not be constitutionally applied to Rastafarians
under the first amendment.
Rastafarianism is a Jamaican-based religion whose central
belief is that Haile Selassie, the former emperor of Ethiopia,
is God. Among its tenets are that men should not cut or comb
their hair. Many Rastafarian men therefore let their hair grow
in unfettered strands known as “dreadlocks.” See generally Reed
v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988); Note, Soul Rebels:
The Rastafarians and the Free Exercise Clause. 72 Geo. L.].
1605, 1606-09 (1984).
Plaintiffs challenge DOCS Directive 4914 as violative of this
practice and thus of the first amendment. Directive 4914 requires
in pertinent part that all incoming male inmates be given an
initial haircut (to a hair length not to exceed one inch) for the
purpose of taking an identification photograph for use in the
event of their escape. Appendix (“App.”) 48a. After this initial
identification photograph, inmates may regrow their hair “to
any length desired.” App. 48a. However, DOCS believes that it
must have a short-hair photograph on file in order to apprehend
* The courts below held that DOCS was not constitutionally required to allow
plaintiffs to conduct their own religious services without the guidance of a
‘free-world” sponsor, to allow the unrestricted wearing of a large religious
head covering known as a “crown,” or to provide plaintiffs with a special “Ital”
diet.
a prisoner who escapes and cuts his hair. J.A. 243, 272-85,
333.°
Plaintiffs commenced this action in 1979. The case remained
dormant from 1980 to 1985 while settlement was discussed un-
successfully. App. 19a. In August, 1986, the district court
granted plaintiffs’ motion for a preliminary injunction pro-
hibiting DOCS from enforcing the initial haircut requirement
against incoming Rastafarian inmates. 643 F. Supp. 351
(S.D.N.Y. 1986), App. 18a-30a. The court based this decision
entirely on the doctrine of offensive non-mutual collateral estop-
pel. It gave preclusive effect to two New York State court cases,
Lewis v. Commissioner of the Department of Correctional Ser-
vices, No. 85-11167 (N.Y. Sup. Ct. Queens Co. Aug. 1, 1985)
(App. 55a-60a], aff'd sub. nom., People v. Lewis, 115 A.D.2d
597, 496 N.Y.S.2d. 258 (2d Dep’t 1985), aff'd, 68 N.Y.2d 923,
510 N.Y.S.2d 73 (1986), and Overton v. Department of Cor-
rectional Services, 131 Misc.2d 295, 499 N.Y.S.2d 860 (Sup. Ct.
Kings Co. 1986), aff'd, 133 A.D.2d 744, 520 N.Y.S.2d 32 (2d
Dep’t 1987), appeal dismissed as moot, 72 N.Y.2d 838, 530
N.Y.S.2d 551 (1988), that had held the haircut requirement to
be unconstitutional as applied to the individual Rastafarian
plaintiffs in those actions.
The Lewis and Overton courts had evaluated the haircut re-
quirement under the “least restrictive alternative” test of Ab-
dul Wali v. Coughlin, 754 F.2d 1015, 1029 (2d Cir. 1985),
which was later explicitly rejected by this Court in O’Lone v.
Shabazz, 482 U.S. 342, 349 n... As discussed infra, in O’Lone
and in Turner v. Safley, 482 U.S. 78 (1987), this Court rejected
the strict scrutiny standard of Abdul Wali and similar cases in
favor of a more deferential inquiry into whether a prison regula-
tion is “reasonably related to legitimate penological interests.”
In June, 1987, defendants (petitioners here) moved to vacate
the preliminary injunction on the ground that Turner and
? Citations to portions of the Joint Appendix filed in the court of appeals that
are not reprinted in the Appendix to this petition are indicated by “J.A.”
ere
O'Lone had altered the legal standard applicable to prisoners’
constitutional claims and thus eliminated any possible preclusive
effect of the state court actions decided under the rejected
standard. The district court reserved decision on this motion
until after trial, but ordered that evidence be presented on the
merits of the haircut issue as well as the other issues at trial,
in case the court should conclude that preclusion was no longer
appropriate.
At a four-day bench trial held in August and September, 1987,
corrections officials testified that a short-hair photograph is
necessary to prevent an escaped inmate from evading detection
simply by cutting his hair, and that plaintiffs’ suggested alter-
native of photographing inmates with their hair pulled back
did not adequately reveal a person’s features for identification
purposes. J.A. 202, 281-83, 330-32. The DOCS Deputy Com-
missioner responsible for security testified that only a short-hair
photograph accurately reveals a person’s cranial and facial
features, including configuration and shape of the head,
scars and other unusual characteristics. J.A. 281-83. Plaintiffs
offered no testimony to rebut the Deputy Commissioner's
assessment.
In its post-trial decision, issued in March, 1989, the district
court invalidated the haircut requirement on two grounds. The
court first reaffirmed its earlier preclusion ruling without ad-
dressing the question of the effect ou preclusion of the interven-
ing change in the law brought about by Turner and O’ Lone.
708 F. Supp. at 573, App. 22a-23a. Despite this preclusion
holding, the court proceeded to reach the merits of the haircut
issue. While conceding that “there is a rational connection be-
tween the haircut requirement and the security objective put
forth by defendants to justify it,” and that the fundamental re-
quirement of Turner and O’Lone was thus satisfied, the court
nonetheless discounted the testimony of corrections officials and
held the haircut rule invalid because in its opinion
photographing inmates with their hair pulled back was “ade-
quate for security purposes.” 708 F. Supp. at 573, App. 23a.
The court of appeals affirmed the decision of the district court
on both the preclusion issue and the merits. 905 F.2d at 575-77,
App. 6a-l0a. As to preclusion, the court devoted only a single
paragraph to defendants’ central contention that the change in
the governing constitutional standard enunciated by this Court
in Turner and O’Lone defeated collateral estoppel. 905 F.2d at
576, App. 9a. The court cited dictum in Lewis that the plain-
tiff there would have prevailed even under a deferential stan-
dard of review akin to that later established in Turner and
O’Lone. 905 F.2d at 576, App. 9a. As argued infra, the court
ignored hornbook law that such dictum is without preclusive
effect as it is unnecessary to the judgment in the earlier case.
Turning to the merits, the court acknowledged that under
Turner “[g]reat deference must be accorded” to DOCS’ securi-
ty concerns. 905 F.2d at 577, App. 10a. Nonetheless, it placed
the burden of proof on DOCS to establish the inadequacy for
security purposes of plaintiffs’ suggested alternative to the haircut
requirement, and accepted the conclusion of the district court
that “tying plaintiffs’ hair in pony tails adequately accom-
modates the interests of prison authorities.” App. 10a. The court
made no mention of the directly conflicting decisions of the
courts of appeals for the third, sixth, seventh and eleventh cir-
cuits (discussed infra) upholding more onerous prison haircut
requirements against free exercise clause attack.
The court also appears to have misapprehended the purpose
of the haircut requirement. The court stated that “[a]lthough
length of hair makes identification difficult upon escape, a
photograph of a Rastafarian when his hair is short would create
the same identification problems, because he certainly will
regrow his hair.” App. 10a. It is not the length of an escaped
prisoner’s hair that makes detection difficult, however, but the
fact that without a short-hair photograph the authorities will
have no means to identify the escapee should he cut his hair.
That is why DOCS allows inmates to regrow their hair to any
length desired once it has taken a short-hair photograph.
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW CONFLICTS
WITH THIS COURT'S DECISIONS IN
TURNER V. SAFLEY AND OZONE WV.
SHABAZZ AND WITH THE DECISIONS
OF FOUR OTHER COURTS OF APPEALS.
The court of appeals improperly applied the standard for the
assessment of prisoners’ constitutional claims set forth by this
Court in Turner and O’Lone, and its decision directly conflicts
with decisions of four other courts of appeals upholding even
more restrictive prison haircut requirements against free exer-
cise clause challenges. |
In Turner and O’Lone this Court held that a challenged prison
regulation “is valid if it is reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89; O’Lone, 482 U.S.
at 349. The Court rejected the application of “strict scrutiny
analysis” or a “least restrictive alternative test”, Turner, 482 U.S.
at 90, in order “to ensure that courts afford appropriate deference
to prison officials”. O’Lone, 482 U.S. at 349.
The Turner Court set forth a four-factor analysis for deter-
mining the reasonableness of a prison regulation:
1- Whether there is a “ ‘valid rational connection’ between
the . . . regulation and the legitimate governmental interest put
forward to justify it.” 482 U.S. at 89 (quoting Block v. Ruther-
ford, 468 U.S. 576, 586 (1984)).
2- “[W ]hether there are alternative means of exercising the
right that remain open to prison inmates.” 482 U.S. at 90.
However, the Court “made clear in Turner and O’Lone that ‘the
right’ in question must be viewed sensibly and expansively.”
Thornburgh v. Abbott, 490 U.S.__, 109 S.Ct. 1874, 1883 (1989).
The inmate need not have other means of engaging in the par-
ticular activity at issue, but only in the more general right that
is allegedly infringed by restriction or prohibition of the activity.
See id.. Thus, in a free exercise case such as the present one,
the proper inquiry is whether the plaintiffs are “deprived of all
forms of religious exercise.” O’Lone, 482 U.S. at 352.
3- “[T]he impact [that] accommodation of the asserted con-
stitutional right will have on guards and other inmates, and on
the allocation of prison resources generally.” Turner, 482 U.S.
at 90.
4- Whether there are “obvious, easy alternatives” available
to the prison administration for achieving its objective, entail-
ing “de minimis costs to valid penological interests.” Id. at 91.
The Court stressed that “[t]his is not a ‘least restrictive alter-
native’ test: prison officials do not have to set up and then shoot
down every conceivable method of accommodating the claim-
ant’s constitutional complaint.” Jd. at 90-91. Moreover, it is im-
proper to “plac[e] the burden on prison officials to disprove the
availability of alternatives.” O’Lone, 482 U.S. at 350. Rather,
plaintiffs challenging a prison regulation bear the burden of
showing that obvious and easy alternatives are available. See id.
The court of appeals failed to follow the Turner-O’Lone
analysis, and also ignored the unanimous caselaw in the other
circuits upholding more restrictive haircut requirements imposed
by other correctional systems. The court did not address the first
and third factors (rational connection to valid penological in-
terest and impact of accommodation) at all, though it did
acknowledge “the existence of reasonable security concerns”, 905
F.2d at 576, App. 9a-10a, thus implying that the first factor was
satisfied.
Regarding the second factor (alternatives available to inmates)
the court downplayed the significance of the plaintiffs’ right to
regrow their dreadlocks to any length desired after the initial
haircut, stating that “this ‘misses the point of the violence done
to [an inmate's] religious beliefs when his hair is cut. ” 905 F.2d
at 577, App. 10a (quoting the opinion of the district court, 708
F. Supp. at 573, App. 23a). Thus, the court disregarded this
Court’s admonition in Abbott and O’Lone to view the right in
question expansively by focusing not on the particular practice at
issue but rather on the question of whether the plaintiffs are
“deprived of all forms of religious exercise.” O’Lone, 482 U.S.
at 352.
The court placed almost exclusive emphasis on the fourth fac-
tor (alternatives available to prison officials). The court stated
that photographing inmates with their hair pulled back “ade-
quately accommodates the interests of prison authorities.” 905
F.2d at 577, App. 10a. In direct contravention of this Court’s
holding in O’Lone, the court placed the burden of proving the
unacceptability of this alternative on DOCS. App. 10a (“Defen-
dants .. . have failed to establish” the inadequacy of a tied-back
hair photograph). The court thus discounted the unrebutted
testimony of the DOCS Deputy Commissioner responsible for
security that this alternative is inadequate because only 2 short-
hair photograph accurately reveals a person’s cranial and facial
features, including configuration and shape of the head, scars,
and other unusual characteristics, in a manner sufficient for
identification purposes. J.A. 281-83. The court’s conclusion
directly conflicts with the conclusion of the court of appeals for
the sixth circuit which, faced with the identical issue, found that
a puiled-back hair photograph was an inadequate alternative
to a short-hair photograph because “there is little doubt that
a person with long hair, even if pulled back in a pony tail, looks
quite different from a person with short hair.” Pollock v. Mar-
shall, 845 F.2d 656, 659 (6th Cir. 1988) (emphasis added), cert.
denied, 109 S. Ct. 239 (1988).
As Pollock v. Marshall suggests, the decision of the court of
appeals in the present case is directly at odds with decisions of
other courts of appeals. Indeed, the conflicting decisions in the
other circuits have rejected free exercise clause challenges to far
more burdensome haircut requirements than that imposed by
DOCS. The courts in these cases have upheld hair length restric-
tions requiring the plaintiffs there to cut their hair regularly
in violation of their religious beliefs, not simply to cut it once
for an identification photograph. Pollock, 845 F.2d 656
(upholding application of hair length regulation to adherent of
Lakota American Indian religion); Reed v. Faulkner, 842 F.2d
10
960, 963 (7th Cir. 1988) (“requiring prisoners to wear their hair
short makes it harder for them to change their appearance,
should they escape, by cutting their hair short”; Rastafarian
plaintiff);* Wilson v. Schillinger, 761 F.2d 921, 928 (3d Cir. 1985)
(“Directive . .. may be enforced against plaintiff though it con-
flicts with his religious beliefs because the directive responds
to potential dangers to prison security”; Rastafarian plaintiff);
accord Cole v. Flick, 758 F.2d 124 (3d Cir. 1985); Dreibelbis
v. Marks, 742 F.2d 792 (3d Cir. 1984).
Even courts applying a stringent pre-Turner “least restrictive
alternative” test have upheld such hair length regulations.
Martinelli v. Dugger, 817 F.2d 1499 (llth Cir. 1987); Brightly
v. Wainwright, 814 F.2d 612 (llth Cir. 1987). These cases —
sustaining more burdensome restrictions on prisoners’ rights
despite the imposition of a more exacting level of scrutiny than
that required by this Court — confirm that the court below
wholly misapplied Turner and O’Lone, and that this Court
should grant certiorari to review the judgment below and resolve
the conflict between the Second Circuit and the other courts
of appeals.
* The Reed court vacated the district court’s judgment upholding the regula-
tion because the district judge had wholly failed to address an equal protec-
tion claim concerning an unexplained exemption for Indian inmates, had
partly grounded his holding on a legally insufficient finding that the plain-
tiffs beliefs were insincere, and had based his ho!ding not on the escape
rationale, which the court of appeals strongly suggested it would have found
persuasive, but on a dubious finding (unsupported by any evidence and
apparently unargued by the defendants) that dreadlocks symbolized black
superiority and thus posed a danger of racial conflict. 842 F.2d at 962-64.
The court made quite clear, however, that it would uphold the regulation on
a proper record. In addition to the language cited in the above parenthetical,
the court noted that the other cases upholding similar regulations “rest on
findings of fact that demonstrate the reasonableness” of prison hair length
regulations, and remarked that “the ultimate merits of Reed’s challenge ...
may well be slight.” Id. at 963.
|
11
Il. THE RELIANCE OF THE COURT
BELOW UPON PRECLUSION AS AN
ALTERNATIVE BASIS FOR ITS HOLDING
IS UNSUPPORTABLE.
The court of appeals relied upon the ostensibly preclusive ef-
fect of Lewis and Overton as an alternative basis for its invalida-
tion of the haircut requirement. 905 F.2d at 575-76, App. 6a-9a.
This reliance is unsupportable in view of this Court's express
rejection in Turner and O’Lone of the Abdul Wali strict scrutiny
standard under which Lewis and Overton were decided. It is
settled beyond dispute that an intervening change in the law,
such as that brought about by a controlling decision of this
Court, defeats issue preclusion. Restatement (Second) of
Judgments (“Restatement”) § 28(2)(b) and comment c; see 18
C. Wright, A. Miller & E. Cooper, Federal Practice and Pro-
cedure: Jurisdiction (“Wright, Miller & Cooper”) § 4425 at
259-64 (1981).
This rule is derived from the leading case of Commissioner
of Internal Revenue v. Sunnen 333 U.S. 591 (1948),in which this
Court held
[A] subsequent . . . change or development in the con-
trolling legal principles may make [a prior] determina-
tion obsolete or erroneous... . [T]he principle of col-
lateral estoppel . . . is designed to prevent repetitious
lawsuits over matters which have ... remained
substantially static, factually and legally. It is not
meant to create vested rights in decisions that have
become obsolete or erroneous ... .
. . os
=
[C]ollateral estoppel must be used with its limitations
carefully in mind so as to avoid injustice. It must be
confined to situations where the . . . applicable legal
rules remain unchanged. .. . [A] judicial declaration
intervening between the two proceedings may so
change the legal atmosphere as to render the rule of
12
collateral estoppel inapplicable. . . . [T]he superven-
ing decision cannot justly be ignored by blind reliance
upon the rule of collateral estoppel.
333 U.S at 599-600 (citations omitted). Accord, e g., Limbach
v. Hooven ¢: Allison Co., 466 U.S. 353, 362-63 (1984); Montana
v. United States, 440 U.S. 147, 155 (1979); State Farm Insurance
Co. v. Duel, 324 U.S. 154, 162 (1945).*
In seeking to avoid this settled principle, the court below relied
upon one line of dictum in the New York Court of Appeals deci-
sion in Lewis to hold that that case should be given preclusive
effect despite the intervening change in the law brought about
by Turner and O'Lone. 905 F.2d at 576, App. 9a. The Lewis
court, after setting forth the stringent “least intrusive means”
test of Abdul Wali as the governing standard, 68 N.Y.2d at 924,
510 N.Y.S.2d at 74 (prison regulation valid only if it “furthers
substantial governmental interests . . . and its encroachment on
First Amendment freedoms is no greater than necessary,’ citing
Wali), noted that the defendant had argued for application of
a more deferential “exaggerated response” test akin to that later
established in Turner and O’Lone, and then stated that the plain-
tiff would prevail “whichever test is adopted”. 68 N.Y.2d at 924,
510 N.YS.2d at 74. However, issue preclusion only bars
* Of course, in determining the preclusive effect to be given to a prior state
court judgment, a federal court is required under 28 U.S.C. § 1738 to look
to sta*e law. Marrese v. American Academy of Orthopedic Surgeons, 470 U.S.
73, 380-81, 384 (1985). However, New York has adopted the issue preclusion
rules set forth in Restatement §§ 27-29, see Koch v. Consolidated Edison Co.,
62 N.Y.2d 548, 554-55 nn.2 & 4, 479 N.Y.S.2d 163, 166-67 nn.2 & 4 (1984),
and the Restatement rule concerning the effect of an intervening change in
the law on issue preclusion is in turn derived from the federal rule set forth
in Sunnen, see Reporter's Note to Restatement § 28 at 286-87. See generally
Winters v. Lavine, 574 F.2d 46, 55-60 & n.14 (2d Cir. 1978) (New York law
of issue preclusion substantially similar to federal law). Thus, New York follows
the federal rule that an intervening change in the law destroys the preclusive
effect of a prior judgment. See Hodes v. Axelrod, 70 N.Y.2d 364, 373-74, 520
N.YS.2d 933, 938 (1987); John P. v. Whalen, 54 N.Y.2d 89, 94-95, 444 N.Y.S.2d
598. 601 (1981); Dutchess Sanitation Service, Inc. v. Town of Plattekille, 51
N.Y.2d 670, 673-74, 435 N.Y.S.2d 962, 963-64 (1980).
EEE EO OO
13
relitigation of a determination that was necessary to the court’s
judgment in the earlier action. Restatement § 27 and comment
h; Wright, Miller & Cooper § 4421. Once the New York court
had determined that application of the haircut requirement to
Lewis did not satisfy the then-governing Wali test, the further
statement that it would not meet even the more deferential ex-
aggerated response test was unnecessary to its judgment, and
thus not entitled to preclusive effect.
Moreover, the Lewis court's holding under either standard
turned on its determination that “a sufficient showing was not
made here of administrative burden.” 68 N.Y.2d at 924, 510
N.Y.S.2d at 74. Of course, under Turner and O’Lone the burden
of making this showing is no longer placed on prison officials.
Therefore, even insofar as the Lewis court purported to analyze
the haircut requirement under an alternative “exaggerated
response” test as well as under the Wali test, it still apportioned
the burden of proof in a manner no longer acceptable under
current law. A shift in the burden of persuasion, like any other
change in the governing legal standard, defeats issue preclusion.
Restatement § 28(4), comment f and illustrations 10 and lI:
Wright, Miller & Cooper § 4422 at 212-13 & n.7.
The court below also relied upon the post-Turner/O’Lone af-
firmance of Overton by the Appellate Division of the New York
State Supreme Court in support of its preclusion holding. 905
F.2d at 576; App. 9a. The Appellate Division's decision in Over-
ton was not preclusive, however, for two reasons. First, an ap-
peal from this decision was dismissed by the New York Court
of Appeals as moot, on the ground that Overton had been releas-
ed from prison, 72 N.Y.2d 838, 530 N.Y.S.2d 551, and a deter-
mination that cannot be reviewed because of mootness is without
preclusive effect. Restatement § 28(1), comment a and Reporter's
Note at 284-85. Moreover, the Appellate Division relied entire-
ly upon the earlier decision of the Court of Appeals in Lewis,
in the mistaken belief that that case had been decided under
the Turner-O'Lone analysis. See Overton, 133 A.D.2d at 745-46.
520 N.Y.S.2d at 34 (asserting that the Lewis court had applied
the Turner-O'Lone standard). In fact, the Court of Appeals in
14
Lewis did not apply this standard and could not have done so,
as Lewis was decided in November, 1986 and the Turner-O’Lone
standard was not enunciated by this Court until June, 1987. As
noted, the Lewis court actually analyzed the haircut require-
ment under the Abdul Wali “least restrictive alternative” test
that was later rejected in Turner and O’Lone. “[A]n appellate
court’s mistaken affirmance of a finding that was never made
does not give rise to issue preclusion.” Wright, Miller & Cooper
§ 3324 at 304 (citing Haize v. Hanover Insurance Co., 536 F.2d
576, 579 n.2 (3d Cir. 1976)).°
* It was improper to invoke preclusion in the present case for a variety of other
reasons as well. First, the fundamental preclusion requirement of issue iden-
tity, Restatement § 27, was lacking, as the issue of the general validity of the
haircut requirement is different from the issue of its validity as applied to a
single plaintiff with particular facial features. (The Lewis court based its deci-
sion on the fact that Lewis had a receding hairline. App. 58a.) Moreover, the
ostensibly preclusive cases were themselves inconsistent with other decisions
upholding the haircut requirement against free exercise clause challenges
brought by Rastafarian or American Indian inmates. Solomon v. Coughlin,
89 A.D.2d 1045, 456 N-Y.S.2d 125 (3d Dep't 1982); Ellis v. Jackson, No. 10446/85
\ (N.Y. Sup. Ct. Westchester Co. July 8, 1985) [App. 6la-62a]; Chapman v.
Jackson, No. 11046/85 (N.Y. Sup. Ct. Westchester Co. Aug. 3, 1985) [App. 63a].
Non-:nutual preclusion should not be applied when “[t]he determination relied
on as preclusive was itself inconsistent with another determination of the same
issue.” Restatement § 29(4); accord Parklane Hosiery Co. v. Shore, 439 U.S.
322, 330 & n.14. Finally, under this Court's reasoning in United States v. Men-
doza, 464 U.S. 154 (1984), offensive non-mutual preclusion should not be in-
voked against state defendants. See Hercules Carriers, Inc. v. Florida, 768
F.2d 1558, 1579 (llth Cir. 1985).
EE EEE
15
CONCLUSION
FOR THE FOREGOING REASONS, THE
PETTTION FOR A WRIT OF CERTIORARI
SHOULD BE GRANTED.
Dated New York, New York
August 16, 1990
Respectfully submitted,
ROBERT ABRAMS
Attorney General of the
State of New York
Attorney for Petitioners
120 Broadway
New York, New York 10271
(212) 341-2620
O. PETER SHERWOOD
Solicitor Genera!
LAWRENCE S. KAHN
Deputy Solicitor General
and Counsel of Record
HOWARD L. ZWICKEL
Assistant Attorney General
In Charge, Litigation Bureau
DENNIS J. SAFFRAN
Assistant Attorney General
of Counsel
APPENDIX
la
UNITED STATES COURT OF APPEAL
FOR THE SECOND CIRCUIT
Nos. 501, 502 — August Term, 1989
(Argued December 13, 1989 Decided May 18 1990)
Docket Nos. 89-2265(L), -2267
THOMAS BENJAMIN, ERROL DUNKLEY,
FRANK FORREST, BARRINGTON GRAY,
NEWTON HANNON, and MARTIN SPENCE,
on behalf of all others similarly situated,
Plaintiffs-Appellants, Cross-Appellees,
-against-
THOMAS A. COUGHLIN, Commissioner,
New York State Department of Correctional
Services; STEPHEN DALSHIEM, Superintendent,
Ossining Correctional Facility, EUGENE S.
LeFEVRE, Superintendent, Clinton Correctional
Facility; HAROLD SMITH, Superintendent,
Attica Correctional Facility,
Defendants-Appellees, Cross-Appellants.
Before: VAN GRAAFEILAND, PIERCE and MINER, Circuit
Judges.
Appeal from judgment entered in United States District Court
for the Southern District of New York (Stanton, J.) rejecting
Rastafarian inmate plaintiffs’ first and fourteenth-amendment
claims to congregate prayer, use of religious headgear and special
diet, and cross-appeal from judgment enjoining defendants from
enforcing against plaintiff class a haircut requirement challenged
on first amendment and collateral estoppel grounds.
Affirmed.
SSS”
2a
ROBERT SELCOV, New York, N.Y.
(Stephen M. Latimer, David C. Leven
Prisoners’ Legal Services of New York,
Poughkeepsie, N.Y., of counsel),
for Plaintiffs-Appellants,
Cross-Appellees.
DENNIS J. SAFFRAN, Assistant
Attorney General, New York, N.Y.
(Robert Abrams, Attorney General
of the State of New York, New York
N.Y., of counsel),
for Defendants-Appellees,
Cross-Appellants.
3a
MINER, Circuit Judge:
Plaintiffs, Rastafarian inmates in the custody of the New York
State Department of Correctional Services (“DOCS”), appeal
from a judgment entered in the United States District Court
for the Southern District of New York (Stanton, J.) rejecting
claims, brought pursuant to 42 U.S.C. § 1983 (1982), that various
regulations and policies of DOCS violate their first amendment
right to free exercise of their religion and their fourteenth amend-
ment right to equal protection of the laws. Benjamin v.
Coughlin, 708 F. Supp. 570 (S.D.N.Y. 1989). Specifically, the
district court rejected plaintiffs’ contentions that they were en-
titled to weekly congregate prayer, unrestricted wearing of
religious headgear and a diet consistent with their religious
beliefs.
Defendants, the Commissioner of DOCS and three correc-
tional facility superintendents, appealfrom so much of the judg-
ment as enjoins the enforcement of a regulation requiring
members of the plaintiff class to submit to a haircut upon ad-
mission to a facility under defendants’ jurisdiction. The district
court found that defendants were precluded from enforcing the
regulation under the doctrine of collateral estoppel, and that
the regulation violates the free exercise clause of the first amend-
ment. Defendants contend that the regulation is reasonably
related to valid penological interests and that litigation of the
issue was improperly precluded by the district court.
For the following reasons, we affirm.
BACKGROUND
The Rastafarian religion’ was founded in Jamaica. Adherents
believe that the coronation of Haile Selassie, the deceased
emperor of Ethiopia, constituted the fulfillment of a prophesy.
Aside from the belief in the divinity of Haile Selassie, the religion
is marked by a decentralized structure and the absence of a con-
ventional religious hierarchy. The closest example of an
authoritative figure is an “Elder,” one who has studied the tenets
of the religion.
|
4a
A fundamental tenet of the religion is that a Rastafarian’s hair
is not to be combed or cut, resulting in ropelike strands known
as “dreadlocks.” Directive 4914 of the DOCS, however, requires
all newly admitted males to submit to a haircut and photograph
upon arrival at a DOCS facility. Male inmates are then per-
mitted to regrow their hair to any length and are subject to
rephotographing if their appearance changes drastically.
Plaintiffs also believe that, whenever they are in public places,
their dreadlocks must be covered by loose-fitting knit headgear
known as “crowns.” Under current policy, crowns may be worn
only in designated areas of DOCS facilities. Jewish and Muslim
inmates, however, are permitted to wear their respective religious
headgear throughout the prison facilities, subject to frisk
searches.
Rastafarians engage in congregate religious observance —
“Issembly’— which consists of chanting, beating of drums.
readings, and religious conversation called “reasoning.” Plain-
tiffs have been denied the right to congregate for weekly religious
observance. This restriction is based on defendants’ interpreta-
tion of New York Correction Law § 610 (McKinney 1987) as pro-
hibiting religious congregation unless an outside spiritual sponsor
is available to supervise the service. Although Muslim and Bud-
dhist inmates are permitted to use inmate religious leaders, under
the supervision of an outside sponsor who is not present at the
meeting, plaintiffs have not been permitted to use inmate leaders
because no outside sponsor has come forward.
Many Rastafarians observe a strict vegetarian diet called “Ital,”
which includes prohibitions on the consumption of meat and
caffeine and restricts the diet to natural foodstuffs. Dietary habits
vary among Rastafarians, but consumption of pork seems to be
prohibited generally. Under DOCS policy, alternative portions
are offered to all inmates whenever pork is served, and special
kosher meals are provided for inmates at some facilities. Muslim
and Buddhist inmates are provided special meals during cer-
tain holidays.
5a
In August 1986, the district court granted a preliminary in-
junction enjoining the enforcement of the initial haircut require-
ment as it applied to the plaintiffs. Benjamin v. Coughlin, 643
F. Supp. 351 (S.D.N.Y. 1986). The court based this injunction
on the preclusive effect of New York state court decisions in Lewis
v. Commissioner of the Dep't of Correctional Servs., No.
85-11167, slip op. (Sup. Ct. Aug. 1, 1985), affd sub nom. People
v. Lewis, 115 A.D.2d 597, 496 N.Y.S.2d 258 (2d Dep't 1985), affd,
68 N.Y.2d 923, 502 N.E.2d 988, 510 N.Y.S.2d 73 (1986) (mem.),
and Overton v. Department of Correctional Servs., 131 Misc.
2d 295, 499 N.Y.S.2d 860 (Sup. Ct. 1986), aff'd, 133 A.D.2d 744,
520 N.Y.S.2d 32 (2d Dep’t 1987) (mem.), appeal dismissed, 72
N.Y.2d 838, 526 N.E.2d 42, 530 N.Y.S.2d 551 (1988). Benjamin
v. Coughlin, 643 F. Supp. at 357. |
Defendants moved to vacate the injunction in June of 1987
on the ground that the Supreme Court’s decisions in Turner v.
Safley, 482 U.S. 78 (1987), and O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987), altered the standard of review for prisoners’
rights claims. The district court reserved decision and heard
testimony without a jury on all of plaintiffs’ claims. In its post-
trial decision in 1989, the district court reaffirmed the applica-
tion of nonmutual offensive collateral estoppel but also found
that Directive 4914 did not pass constitutional muster under
Turner and Shabazz. Benjamin, 708 F. Supp. at 573. The court
enjoined enforcement of the haircut regulation as it applied to
the plaintiff class but rejected plaintiffs’ challenges to the denial
of the right to congregate, to wear crowns, and to be provided
with a special diet. Id. at 573-76.
DISCUSSION
I. Standards to be Applied
Balanced against the constitutional protections afforded prison
inmates, including the right to free exercise of religion, are the
interests of prison officials charged with complex duties arising
from administration of the penal system. Pell v. Procunier, 417
U.S. 817, 822 (1974). Recognizing that federal courts are ill-
equipped to deal with the complexities of prison administration,
6a
the Supreme Court has accorded great deference to determina-
tions of prison officials and fashioned “a lesser standard of
scrutiny . . . in determining the constitutionality of the prison
rules.” Turner, 482 U.S. at 81; see also Shabazz, 482 U.S. at 349.
The governing standard is one of reasonableness, taking into
account whether the particular regulation affecting some con-
stitutional right asserted by a prisoner is “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89; Shabazz,
482 U.S. at 349. The Turner Court determined that the factors
to be considered are: 1) whether there is a rational relationship
between the regulation and the legitimate government interests
asserted; 2) whether the inmates have alternative means to ex-
ercise the right; 3) the impact that accommodation of the right
will have on the prison system; and 4) whether ready alternatives
exist which accommodate the right and satisfy the governmental
interest. Turner, 482 U.S. at 89-90; Fromer v. Scully, 874 F.2d
69, 72 (2d Cir. 1989).
In addition to their first amendment claims, plaintiffs here
assert that they have been denied equal protection by reason
of treatment different from that afforded to other religious
groups. While the Turner/Shabazz standard was established in
the context of first amendment issues, it is also relevant to the
assessment of equal protection claims in the prison setting. As
to such claims, the reasonableness of the prison rules and policies
must be examined to determine whether distinctions made be-
tween religious groups in prison are reasonably related to
legitimate penological interests. See Williams v. Lane, 851 F.2d
867, 877 (7th Cir. 1988), cert. denied, 109 S. Ct. 879 (1989).
We must determine whether “the . . . groups are so similar that
discretion has been abused.” Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 136 (1977).
II. The Haircut Regulation
A. Issue Preclusion
Departmental Directive 4914 requires that upon entry into
a correctional institution all male inmates receive a haircut° for
7a
purposes of an identification photograph. Defendants maintain
that the haircut highlights an inmate’s facial and cranial features
in the photograph, and thus facilitates recapture in the event
of escape. After the initial haircut, an inmate is permitted to
regrow his hair to any length but is subject to being
rephotographed if his appearance changes drastically. The
challenge to Directive 4914 is founded on the contention that
it violates the inmates’ free exercise clause rights. “Many
Rastafarians take the ‘vow of the Nazarite’ never to cut their
hair,” believing that the wearing of dreadlocks is sacred. Ben-
jamin, 708 F. Supp. at 572.
The district court enjoined enforcement of the Directive on
two grounds. Applying the doctrine of offensive collateral estop-
pel, the court determined that the defendants were precluded
from relitigating the validity of the Directive because the issue
previously had been decided against them by the New York Court
of Appeals in Lewis and Overton. Id. at 573. The court further
determined that, even if preclusion was improper, Directive 4914
failed to pass constitutional muster under Turner. Id. We agree
with both determinations.
On appeal, defendants challenge the application of the col-
lateral estoppel doctrine on three grounds. They assert that there
is an absence of identicality of issues between the state cases
and the case here; that offensive issue preclusion should not apply
against the government; and that a subsequent change in law
renders preclusion improper.
In determining the preclusive effect given a state court judg-
ment under 28 U.S.C. § 1738 (1982), a federal court must “give
that judgment the same effect that it would have in the courts
of the state under state law.” Cullen v. Margiotta, 811 F.2d 698,
732 (2d Cir.), cert. denied, 483 U.S. 1021 (1987); see Wilder v.
Thomas, 854 F.2d 605, 616 (2d Cir. 1988), cert. denied, 109 S.
Ct. 1314 (1989). Defendants argue that the prior proceedings
involved only the validity of Directive 4914 as it applied to the
individual inmates in those cases and not its constitutionality
as applied to any other parties, including members of the plain-
tiff class. They note that the state courts found that DOCS
Sa
objectives could be achieved by merely tying back the hair of
those individual inmates during their initial photographs. See
Lewis, 68 N.Y.2d at 925, 502 N.E.2d at 989, 510 N.Y.S.2d at 74:
Overton, 133 A.D.2d at 746, 520 N.Y.S.2d at 34.
Application of the doctrine of collateral estoppel requires a
finding of “the identicality of an issue necessarily decided in
the prior action” and “a full and fair opportunity to contest the
issue in the prior action.” Halyalkar v. Board of Regents, 72
N.Y.2d 261, 266, 527 N.E.2d 1222, 1224, 532 N.Y.S.2d 85, 87
(1988) (citation omitted). We are confronted here with the con-
stitutional validity of Directive 4914 as it applies to the plain-
tiffs, a mixed question of law and fact necessarily confronted
by the state courts in assessing the legitimacy of the security con-
cerns raised by the DOCS. See Lewis, 68 N.Y.2d at 924-25, 502
N.E.2d at 989, 510 N.Y.S.2d at 74; Overton, 133 A.D.2d at 745-46,
520 N.Y.S.2d at 34.
In the district court, defendants presented much of the same
evidence that they presented in the state courts, including
testimony of Deputy Commissioner Coombe, various sets of
photographs, and even photographs of Messrs. Lewis and Over-
ton. The only set of photographs presented in the Overton case,
however, was that of Mr. Overton. We find that, between the
state and federal proceedings, there is a “substantial overlap”
of evidence and arguments. Restatement (Second) of Judgments
§ 27 comment c (1982); see Koch v. Consolidated Edison Co.
of New York, 62 N.Y.2d 548, 554 n.2 & 555 n.4, 468 N.E.2d 1,
4 nn.2 & 4, 479 N.Y.S.2d 163, 166 nn.2 & 4 (1984) (adopting
the issue preclusion factors outlined in the Restatement), cert.
denied, 469 U.S. 1210 (1985).
The action at bar was commenced in 1979, several years before
the state court decisions in Lewis and Overton. Therefore, defen-
dants had a strong incentive, as well as a fair opportunity, to
contest the haircut issue fully in the New York State courts,
recognizing that any determination might have a preclusive ef-
fect in the pending federal action. See Winters v. Lavine, 574
F.2d 46, 59 n.14 (2d Cir. 1978).
—
Ya
Defendants urge that nonmutual offensive collateral estop-
pel cannot be invoked against the government. See United States
v. Mendoza, 464 U.S. 154 (1984). The Mendoza Court declined
to apply offensive issue preclusion against the federal govern-
ment, finding that certain policy considerations weighed against
preclusion in that case. Jd. at 160-61. Significantly, the Solicitor
General had decided not to appeal a previous adverse judgment,
id. at 159, 161, unlike the situation here, where the defendants
appealed two prior judgments resolving the same issues to the
state’s highest court.
The major policy interests outlined in Mendoza were
avoidance of premature estoppel and assurance of an opportunity
for the government to consider the administrative concerns that
weigh against initiation of the appellate process. Jd. Here, the
issue percolated through the state courts and was decided by
the New York Court of Appeals during the pendency of the case
at bar. Decisions by several state courts assured defendants that
preclusion was not premature, that proper review of the issues
occurred prior to application of preclusion principles, and that
the DOCS had the opportunity to consider appeal of the state
court decisions in light of the pending federal action.
Lastly, defendants contend that a change in the governing
constitutional standard since Lewis renders preclusion improper.
We note that Lewis considered two levels of scrutiny and found
that even under a standard more burdensome to the plaintiffs
than the Turner/Shabazz reasonableness standard, plaintiffs
would prevail. Lewis, 68 N.Y.2d at 924-25, 502 N.E.2d at 989,
510 N.Y.S.2d at 74. The decision in Overton, decided after pro-
nouncement of the new standard, followed the mandate of the
Supreme Court. Overton, 133 A.D.2d at 745, 520 N.Y.S.2d at 34.
In light of the foregoing, we find the district court properly
gave preclusive effect to the prior state court proceedings.
B. Constitutionality of Directive 4914
Defendants argue that the initial haircut is necessary for pur-
poses of identification in the event of escape. Accepting the
EEE
10a
existence of reasonable security concerns, we find there is an
alternative that can accommodate both parties. See Turner, 482
U.S. at 91. After reviewing the voluminous record and hearing
testimony from both Rastafarian inmates and prison officials,
the district court determined that pulling plaintiffs’ hair back
met the purported security needs. Benjamin, 708 F. Supp. at
573. Great deference must be accorded the DOCS’ position that
this solution is inadequate. Fromer, 874 F.2d at 73. Defendants,
however, have failed to establish that the accommodation here
has more than a de minimis effect on valid penological interests.
Turner, 482 U.S. at 91. In Fromer, it appeared that there was
no alternative to shaving the appellant’s beard to reveal his facial
features properly. Fromer, 874 F.2d at 76. Here, however, tying
plaintiffs’ hair in pony tails adequately accommodates the in-
terests of prison authorities in revealing an inmate's cranial and
facial features.
Plaintiffs are permitted to regrow their hair to any length after
the initial haircut. While defendants assert that this is an ac-
commodation, this “misses the point of the violence done [to
an inmate's] religious beliefs when his hair is cut.” Benjamin,
708 F. Supp. at 573. Although length of hair makes identifica-
tion difficult upon escape, a photograph of a Rastafarian when
his hair is short would create the same identification problems,
because he certainly will regrow his hair. The fact that inmates
are rephotographed if their appearance changes drastically in-
dicates that defendants believe they will be able to identify the
plaintiffs from the new photographs. It is unclear how this is
any different from identifying plaintiffs as they appear upon
arrival. Accordingly, we find that there exists an alternative
means of accommodating plaintiffs’ religious rights without
undermining the legitimate penological interests identified by
the defendants.
III. Weekly Religious Congregation
Plaintiffs maintain they have been denied the right to con-
gregate for weekly religious observance in violation of the free
exercise clause of the first amendment, and that the prohibition
lla
is inconsistent with the permissible congregation of other
religious groups in DOCS facilities. They further assert that sec-
tion 610 of the New York Correction Law does not require out-
side clergy to conduct services but merely allows religious groups
the right to have services conducted by outside clergy if available.
Section 610 provides, in relevant part, that “inmates. . . shall
be allowed such religious services and spiritual advice and
spiritual ministration from some recognized clergyman of the
denomination or church which said inmates may respectively
prefer or to which they have belonged prior to their being con-
fined... .” N.Y. Correct. Law § 610.
The DOCS has interpreted section 610 to mean that inmate
religious groups are permitted to congregate for religious obser-
vance only under the supervision of a non-inmate spiritual leader
known as a “free-world sponsor.” It has adopted Directive #4760,
entitled “Inmate Group Activities and Organizations,” which
is applicable to religious groups. Paragraph III (C)(3) of the
Directive provides that a “[b]ona fide ‘outside sponsor’ is man-
datory for each inmate organization.” A bona fide sponsor is
defined as:
any individual or group duly registered and approved
with the Volunteer Services Program that will visit
the facility regularly to provide assistance to the in-
mate organization. A minimum of one visit per
quarter is desired. In addition, ongoing communica-
tion with the facility Volunteer Services Office should
be carried on. (All volunteer participants from the
community must meet the registration and approval
requirements of Directive #4750, “Volunteer Services
Programs.”)
While it may be that the free-world sponsor requirement is in-
consistent with the statutory language, determination of that
issue is reserved for state courts. Cf. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 106 (1984). We must resolve
whether the present interpretation of section 610 by DOCS is
consistent with constitutional standards.
OO
12a
The sponsor requirement is said to be intended to ensure that
the meeting is convened for religious purposes and not to hold
kangaroo courts, foster extortion, or provide a venue for the
dissemination of conspiratorial information. As well, the use of
sponsors is thought to minimize conflicts among inmates as to
the nature and content of the service. Other circuits have given
their imprimatur to the requirement of free-world sponsors based
upon similar security concerns. See, e.g., Johnson-Bey v. Lane,
863 F.2d 1308, 1310-11 (7th Cir. 1988): Cooper v. Tard, 855 F.2d
125, 129-30 (3d Cir. 1988); Hadi v. Horn, 830 F.2d 779, 784-86
(7th Cir. 1987); Tisdale v. Dobbs, 807 F.2d 734, 736, 740 (8th
Cir. 1986). We also are satisfied that the sponsor requirement
meets the rational relationship and impact of accommodation
prongs of the Turner standard.
Applying the second Turner prong, alternative means, it ap-
pears that plaintiffs are not prohiited from “reasoning,” a form
of religious discussion, as an alternative means of prayer. Cooper,
855 F.2d at 129-30. In fact, part of the Rastafarian service con-
sists of reasoning. As long as plaintiffs are permitted to engage
in such discussion, they have other means of exercising their right
of congregate prayer.
As to the fourth prong, availability of ready alternatives,
defendants have suggested that they might accept an outside
“Elder” as a free-world sponsor. An Elder is not a clergyman
but retains authority as a result of his education and familiari-
ty with the Rastafarian religion. Any objection to the authori-
ty of an Elder, simply because the Rastafarian religion lacks con-
ventional clergyman, would be unwarranted. In view of the
legitimate security reasons supporting the free-world sponsor
requirement, the failure of an outside Elder to come forward
cannot justify the finding of a first amendment violation. The
inmates’ proposal that a non-religious supervisor be used would
not resolve the doctrinal disputes that are the subject of securi-
ty concerns. See Hadi, 830 F.2d at 786-87.
Similarly, we are not persuaded that the free-world sponsor
requirement violates plaintiffs’ right to equal protection of the
laws. The plaintiffs argue that defendants have permitted the
l3a
use of inmate Imams to conduct Muslim services and therefore
they should be accorded the same privilege. This contention,
however, fails to recognize the reason for the free-world spon-
sor requirement. It is not the presence or absence of the spon-
sor at the service that is the concern but rather the availability
of an outside ministerial authority in religious matters.
The requirement of an outside resource is compelled by the
defendants’ concern that the authenticity of the service will be
compromised or that particular religious issues may arise which
cannot be resolved by DOCS staff. Thus, the defendants have
expressed a rational basis for requiring outside sponsors even
if the sponsors are not required to attend every service. The
DOCS has an outside resource to contact with respect to Muslim
and Buddhist services, and it indicated that it would “allow
Rastafarians to hold congregate services when and if. . . an
outside sponsor comes forth.” Benjamin, 708 F. Supp. at 576.
The apparent unavailability of a Rastafarian Elder or similar
religious authority willing to serve as an outside sponsor is not
the fault of the defendants. Had the plaintiffs proved that the
DOCS arbitrarily rejected available sponsors, then a cognizable
claim might exist. However, the district court found that the
defendants have made a good faith effort “to locate and obtain
the services of a sponsor.” Jd. at 576-77. We agree with the district
court that the free-world sponsor requirement does not violate
equal protection because it has a legitimate basis and is imposed”
on all religious groups.
IV. The Wearing of Crowns
We next address the constitutionality of the DOCS regula-
tions which restrict the wearing of crowns to designated areas.
From the perspective of first amendment analysis, legitimate
security reasons are raised in support of present policy. Prevent-
ing the smuggling of contraband, such as weapons and drugs,
comports with the type of penological interests contemplated
under the Turner/Shabazz standard. See Turner, 482 U.S at 89.
We have examined each prong of the first amendment analysis
and find plaintiffs’ claim to be without merit. See, e.g.,
l4a
Standing Deer v. Carlson, 831 F.2d 1525, 1528 (9th Cir. 1987);
Rogers v. Scurr, 676 F.2d 1211, 1215 (8th Cir. 1982).
Jewish inmates are permitted to wear yarmulkes throughout
DOCS facilities, and Muslim prisoners may wear kufis. The right
of Rastafarians to wear crowns, however, is limited, and in some
facilities crowns are wholly prohibited. Plaintiffs contend that
the unlimited right granted Jewish and Muslim inmates, as op-
posed to Rastafarian prisoners, to wear religious headgear
establishes an equal protection violation. We disagree.
The district court found that crowns are large and loosefit-
ting, providing a readily available means for “concealing and
transporting weapons, controlled substances or other contra-
band, thus posing a threat to prison security.” Benjamin, 708
F. Supp. at 574. While security problems may exist with respect
to yarmulkes and kufis, defendants maintain that a heightened
security concern is posed by crowns, because of the size of the
headgear and the ease with which contraband can be secreted.
Here, legitimate security interests have been raised by the prison
authorities, who must be accorded great deference in these mat-
ters. Turner, 482 U.S. at 84-85.
The fact that the defendants are willing to conduct spot
searches of Jewish and Muslim inmates does not mean that they
are required to do the same for all prisoners claiming a right
to wear headgear. The prison officials justifiably expressed the
belief that crowns presented a greater danger than yarmulkes
and kufis. The greater security concern associated with the wear-
ing of crowns, including the enhanced potential for concealing
contraband and the obvious increase in guard/itimate contact
that would result from searches of crowns, provides a rational
basis for treating the plaintiffs differently from the other religious
groups with respect to headgear. See North Carolina Prisoners’
Union, 433 U.S. at 136. The district court found that “yarmulkes
and kufis are smaller and fit closely to the head, while the crown
is of a size and shapelessness which would facilitate uses which
are legitimately forbidden.” Benjamin, 708 F. Supp. at 574. Ac-
cordingly, we find no merit to plaintiffs’ contention that the
15a
restriction imposed on the wearing of crowns violates their equal
protection rights.
V. Ital Diet
Rastafarians observe a diet called Ital, which “symbolizes a
belief in life and an avoidance of symbols of death.” Benjamin,
708 F. Supp. at 575. The exact nature of the Ital diet varies
among individuals and Rastafarian sects. Jd. The district court
denied plaintiffs’ dietary claim, determining that the varied in-
dividual practices “would impose undue financial and ad-
ministrative burdens on defendants.” Jd. Although it appears
that plaintiffs originally sought a strict Ital diet, they now “ask
that their dietary needs be accommodated in a way similar to
that defendants have already adopted for other religious groups.”
On appeal, plaintiffs advance an equal protection challenge,
asserting that similar dietary requests have been granted to other
religious groups.
Prisoners have a right “to receive diets consistent with their
religious scruples.” Kahane v. Carlson, 527 F.2d 492, 495 (2d
Cir. 1975). Courts, however, are reluctant to grant dietary re-
quests where the cost is prohibitive, see Martinelli v. Dugger,
817 F.2d 1499, 1507 & n.29 (llth Cir. 1987), cert. denied, 484
U.S. 1012 (1988); Kahey v. Jones, 836 F.2d 948, 951 (5th Cir.
1988), or the accommodation is administratively unfeasible, see
Kahey, 836 F.2d at 951; Kahane, 527 F.2d at 495.
The dietary programs presently in effect are well-defined.
Muslim inmates are provided the alternatives to pork available
to all inmates, and receive a special dietary accommodation dur-
ing the month-long Muslim holiday of Ramadan. During
Ramadan, Muslims are permitted to prepare and eat food in
their cells, but the foodstuffs they receive are those served to
the entire prison population. In order to accommodate the
dietary habits of Orthodox Jewish inmates, a kosher dietary plan
is provided at the Green Haven facility; and neutral diets, con-
sisting mainly of canned goods, eggs, and occasionally fresh
vegetables, are provided at other facilities as alternatives to the
kosher dietary plan. v
16a
Plaintiffs now seek a “vegetarian diet with foodstuffs that their
faith permits them to eat.” They also contend that a kosher diet
would “substantially meet their religious need.” Notwithstanding
this attempted clarification, the varied nature of the Ital diet
raises questions as to the foodstuffs that will satisfy their request.
This problem exists because Rastafarians will not consume
canned goods, and fresh fruits and vegetables have a limited
availability and are not cost-effective. Benjamin, 708 F. Supp.
at 575.
We remain uncertain as to the exact nature of the dietary re-
quest, which has varied during the course of this litigation. Based
on the present state of the record, we find that the dietary claim
must be rejected because plaintiffs have failed to clearly define
the claim or to make the evidentiary showing required to
establish any constitutional dietary claim.
CONCLUSION
For the foregoing reasons, we affirm. No costs are awarded
to either side.
17a
NOTES
1. Defendants do not raise the issue whether Rastafarianism
is a religion protected by the first amendment. That issue has
been resolved against them in state court. Overton v. Coughlin,
133 A.D.2d 744, 745-46, 520 N.Y.S.2d 32, 34 (2d Dep’t 1987).
2. The Rastafarian service is also said to involve the smoking
of marijuana. Plaintiffs, however, do not assert that they should
be permitted to smoke marijuana during their services.
3. Male inmates also receive an initial shave; however, that
facet of Directive 4914 was found to be constitutional in Fromer,
874 F.2d at 76.
18a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THOMAS BENJAMIN, ERROL DUNKLEY,
FRANK FORREST, BARRINGTON GRAY,
NEWTON HANNON, and MARTIN
SPENCE, on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
— against —
THOMAS A. COUGHLIN, Commissioner,
New York State Department of Correctional
Services; STEPHEN DALSHIEM, Superin-
tendent,: Ossining Correctional Facility; OPINION
EUGENE S. LEFEVRE, Superintendent, AND ORDER
Clinton Correctional Facility; HAROLD
SMITH, Superintendent, Attica Correctional 79 Civ. 0232
Facility, (LLS)
Defendants.
Plaintiffs are Rastafarian inmates in the custody of the New
York State Department of Correctional Services (“DOCS”).
Rastafari is a religion' with roots in Jamaican culture. It has
no hierarchy of religious authority, although Rastafarians
recognize some who have studied the religion extensively as
“elders,” and no single religious text setting out the central tenets
of Rastafarian belief, although Rastafarians consider certain Bi-
ble passages sacred. There are several Rastafarian sects, with
differing beliefs and practices.
' Defendants do not contest the fact that Rastafarianism is a religion. Deft’s
Post-trial Reply Memorandum, p. 1; Stenographer’s Minutes of trial (“SM”)
17-19.
19a
The most widely accepted Rastafarian principles include
beliefs in the divinity of Ethiopian Emperor Haile Selassie and
that the hair and beard should never be cut. Many Rastafarians
wear their hair uncut, uncombed, and called “dreadlocks.” Many
believe that the dreadlocks should be covered at all times, ex-
cept when praying, and wear a religious “crown” — a loose knit
or crocheted headcovering — to protect their dreadlocks.
Rastafarians engage in dialogues about the meaning of scrip-
ture, known as “reasoning,” and conduct weekly group services
that last from a few hours to several days. They also hold religious
celebrations on Haile Selassie’s birthday and on the anniversary
of his coronation. The green, red, and gold colors of the Ethio-
pian flag and the lion, which symbolizes Haile Selassie, are
sacred symbols. Many Rastafarians follow what is known as an
“Ital” diet, abstaining from meat, liquor, and caffeine, and eating
only natural foods, although there are variations in these
practices.
Plaintiffs claim that four regulations of the defendants, who
administer prison facilities in New York State, violate their rights
to free exercise of religion and equal protection of the laws. First,
defendants cut the hair of all incoming prisoners for the pur-
pose of taking identification pictures. Second, defendants restrict
the wearing of the religious “crown.” Third, defendants do not
provide Rastafarian inmates with an Ital diet. Fourth, defen-
dants do not allow Rastafarian inmates to hold weekly con-
gregate religious services or holiday celebrations. Defendants
claim that each of their actions is motivated by a legitimate
pend ogical objective.
Procedural History
The action was commenced on January 15, 1979. It was dor-
mant from April 1980 to March 1985, while settlement was
discussed unsuccessfully. In May 1986, the parties stipulated to
certification of a plaintiff class consisting of all “persons who
are or who shall be committed to the care and custody of the
New York State Department of Correctional Services and con-
fined in facilities under its jurisdiction and control, who sincerely
20a
profess to observe and adhere to the tenets of Rastafarianism.”
On August 29, 1986 the court granted plaintiffs’ motion for a
preliminary injunction prohibiting DOCS from cutting the hair
of class members. Benjamin v. Coughlin, 643 F. Supp. 351
(S.D.N.Y. 1986). On June 30, 1987, defendants filed a motion
to vacate the preliminary injunction. The motion has been con-
solidated with the trial of the merits of plaintiffs’ claims.
A bench trial was held on August 31, September 1, 2 and 3,
1987. The court heard testimony from eight inmate class
members (Jah Bunny, Ernest Desire, David Daley, Edward
Jamison, Ernest Nurse, Wayne Overton, Alfredo Lewis and
Marlon Clarke), plaintiffs’ expert nutritionist Bob LeRoy, defen-
dants Thomas Coughlin (Superintendent of DOCS) and Philip
Coombe (Deputy Commissioner of DOCS facility operations),
The Reverend Earl Moore (DOCS Assistant Commissioner for
Ministerial and Family Services), Elizabeth VandeWal (DOCS
Assistant Director for Nutritional Services) and Louis Passara
(DOCS Director of Correctional Nutritional Services).
DISCUSSION
The First Amendment to the Constitution states in part “Con-
gress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.” Every prison inmate
“retains those First Amendment rights that are not inconsistent
with his status as a prispner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417 U.S.
817, 822 (1974); see also Bell v. Wolfish, 441 U.S. 520, 545 (1979);
Price v. Johnston, 334 U.S. 266, 285 (1948). Recognizing that
“courts are ill equipped to deal with the increasingly urgent prob-
lems of prison administration and reform,” Procunier v. Mar-
tinez, 416 U.S. 396, 405 (1974) the Supreme Court has tempered
its scrutiny of challenged prison regulations. See e.g., Turner
v. Safley, 107 S. Ct. 2254 (1987) ; O’Lone v. Estate of Shabazz,
107 S. Ct. 2400 (1987).|“Subjecting the day-to-day judgments
of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their jability to anticipate security problems
and to adopt innovative solutions to the intractable problems
of prison administration.” Turner, 107 S. Ct. at 2262.
2la
In Turner, the Supreme Court identified four factors relevant
to whether a challenged prison regulation is valid as reasonably
related to legitimate penological interests. The first is whether
there is a valid, rational connection between the regulation and
the government interest put forward to justify it, which must
be legitimate and neutral as to content. The second is whether
alternative means of exercising the right remain open to inmates.
The third consideration is the impact that accommodation of
the claimed right would have on guards, other prisoners, and
the allocation of prison resources. Finally, the “absence of ready
alternatives is evidence of the reasonableness of a prison regula-
tion,” while the existence of easy alternatives may show that a
regulation is not reasonable, but is an exaggerated response to
prison concerns. Turner, 107 S. Ct. at 2262.
The Challenged Regulations
1. The Initial Haircut
Many Rastafarians take the “vow of the Nazarite” never to
cut their hair or beard. Inmate witnesses testified that the wear-
ing of dreadlocks is a “consecration” and a “covenant” with God.
The source of the belief is both Biblical (identified by inmate
witnesses as Leviticus 6 (SM 51), Numbers 6 (SM 307)) and sym-
bolic of Haile Selassie, whose Nyabinghi warriors wore their hair
in dreadlocks. The matted iook of the hair is symbolic of a lion,
and therefore of Haile Selassie, who is revered by Rastafarians
as “the lion of Judah.” The vow is of central importance to most
Rastafarians. Ernest Nurse testified that the wearing of
dreadlocks is “very holy” (SM 278).
Not all Rastafarians take the vow of the Nazarite. Three
groups that are located in Jamaica, the “beard men,” the “clean-
shaven men” and the “Combsone tribe” do not wear dreadlocks.
All of the prisoners who testified wear their hair in dreadlocks.
Departmental Directive No. 4914 requires that all male in-
mates submit to a haircut and shave for the taking of an initial
identification photograph. Defendants argue that an initial
clean-shaven, short-haired photograph is necessary for security
22a
reasons. Deputy Commissioner Philip Coombe testified that a
clean-shaven,’ short-haired photograph is necessary to show the
inmate's facial and cranial structure, which are important iden-
tifying features in case of an escape, because a fugitive could
radically alter his appearance by cutting his hair. He testified
that a picture with the inmate’s dreadlocks pulled back is not
adequate for identification purposes, and that DOCS has ex-
perienced security problems with other inmates who feel that
the Rastafarians are being given special treatment.
The haircut issue has already been determined adversely to
defendants in two state court cases, Lewis v. Commissioner of
the Department of Correctional Services, No. 85-11167, slip op.,
(Sup. Ct. August 1, 1985), affd sub nom., People v. Lewis, 115
A.D.2d 597 (App. Div. 1985), affd, 68 N.Y.2d 923 (1986) and
Overton v. Dep't of Correctional Services, 131 Misc.2d 295 (Sup.
Ct. 1986), affd, 133 A.D.2d 744 (App. Div. 1987), appeals
dismissed, 72 N.Y.2d 838 (1988). This court determined in August
1986 that defendants are precluded from relitigating the issue
by the doctrine of collateral estoppel. Benjamin, 643 F. Supp.
at 357. Defendants have failed to convince the court that that
determination should be changed.
Defendants argue that non-mutual offensive collateral estop-
pel should not be applied against a state government. See United
States v. Mendoza, 464 U.S. 154 (1984); Hercules Carriers, Inc.
v. Florida, 768 F.2d 1558 (lth Cir. 1985). In Mendoza, the court
held that such estoppel should not apply against the federal
government because of the nature and number of cases that the
government litigates, and the fact that policy considerations may
determine whether the government will appeal an adverse deci-
sion, unlike a private litigant. In Hercules Carriers, the court
applied the rationale of Mendoza to state governments. The
court relied on the fact that plaintiffs were seeking to preclude
a state agency from relitigating an issue that had been previously
determined in an administrative proceeding brought by a
separate state regulatory agency. Jd. at 1580.
? Plaintiffs do not challenge the requirement of an initial facial shave for iden-
tification purposes. Ptfs’ Post Trial Mem., pg. 10.
23a
The decision to apply offensive collateral estoppel must be
made with discretion. Parklane Hosiery Co. v. Shore, 439 U.S.
322, 331 (1979). Here, the same state agency, DOCS, litigated
and lost the issue in the state courts. The agency had a full and
fair opportunity to litigate, and the identical issue was actually
litigated and actually decided. The agency was aware that this
action was pending at the time the state actions were decided,
and so had a strong incentive to appeal the adverse decisions.
Therefore, it is not unfair to prevent defendants from relitigating
the issue in this case. See Benjamin, 643 F. Supp. at 356-57.
Even if DOCS were not precluded from relitigating the issue,
Departmental Directive No. 4914 does not withstand scrutiny
under the analysis set forth in Turner. Applying that analysis,
one must grant there is a rational connection between the hair-
cut requirement and the security objective put forth by defen-
dants to justify it. Equaliy apparent is that alternative means
of exercising the right do not remain open to plaintiffs. (Defen-
dants’ argument that an inmate may re-grow his hair to any
length, after the reception haircut, misses the point of the
violence done to his religious beliefs when his hair is cut.)
Defendants argue that the accommodation impact is great,
because Rastafarian inmates must be segregated at reception,
and processed either first or last, and that other inmates resent
their being given special treatment. However, the accommoda-
tion impact is no greater than the practice prior to entry of the
preliminary injunction, when Rastafarian inmates who refused
to submit to a haircut were segregated and placed in involun-
tary protective custody, or had their hair cut by force.
The decisive factor in the analysis of the haircut issue is the
availability of an obvious, easy alternative. The photographs that
were submitted to the court showing the inmates’ hair pulled
back in a rubber band or a hairnet, demonstrate that such photos
are adequate for security purposes. They show clearly the facial
structure and features, and I find Mr. Coombe’s testimony to
the contrary unpersuasive. The availability of this easy and prac-
tical alternative demonstrates that the regulation is an exag-
gerated response to the perceived escape threat. That conclusion
,
24a
accords with those repeatedly reached by the New York State
courts, when the issue was presented to them, that “the asserted
objective of the regulation in issue could be fully achieved simply
by pulling his hair back when the initial identification
photographs are taken”, Lewis, 68 N.Y.2d at 925, and that “Direc-
tive No. 4914 constitutes an impermissible infringement of the
plaintiff's constitutional right to fully exercise his religion.” Over-
ton, 133 A.D.2d at 745.
Plaintiffs would prevail on this issue even in the absence of
the preclusive effect given to the state opinions, and plaintiffs
are entitled to a permanent injunction on this issue.
2. The Religious Crown
The crown is worn as a Rastafarian tradition, to keep im-
purities from the dreadlocks, to shield them from the eyes of
non-Rastafarians, and to keep the curious from touching them.
Not all Rastafarians wear crowns, and those who do vary in the
degree they observe the practice. Most crowns are large, loosely
knit or crocheted circular wool caps, many in the green, red,
and gold of the Ethiopian flag. However, Rastafarians wear hats
of other descriptions to cover their dreadlocks.
Defendants contend that the crown is a security risk. The
large, loose crown may be used for hiding contraband. Search-
ing the crown necessitates increased contact between guards and
inmates. The increase in close personal contacts in turn increases
the threat of confrontations between guards and inmates, with
its security risks.
Prohibitions on wearing the crown are not uniform throughout
DOCS facilities. For instance, David Daley testified that at
Green Haven, a maximum security facility, he is allowed to wear
his crown everywhere but in the mess hall and the visiting room,
while Edward Jamison testified that he was not allowed to wear
his crown anywhere at Wyoming, a medium security facility,
or Lincoln, a minimum security facility.
Application of the Turner four-part test demonstrates that
defendants’ regulations governing the wearing of the religious
25a
crown do not impermissibly infringe on plaintiffs’ First Amend-
ment rights. There is a valid, rational connection between the
prohibition on crowns in certain areas and the security interests
put forward to justify it. The crown is a large, loose-fitting cap
that may fairly readily be used for concealing and transporting
weapons, controlled substances or other contraband, thus pos-
ing a threat to prison security and the safety of other inmates.
Plaintiffs argue that the regulation is not neutral because Jewish
and Muslim inmates are allowed to wear yarmulkes and kufis
throughout the prisons. However, yarmulkes and kufis are
smaller and fit closely to the head, while the crown is of a size
and shapelessness which would facilitate uses which are
legitimately forbidden.
Alternative means of exercising the right are available to in-
mates. They are allowed to wear the crown in their cells and
at other times and in other areas that the prison administra-
tion determines do not pose a security threat. The fact that
regulations on the wearing of crowns differ among institutions
reflects responses to the different security concerns of each in-
dividual institution, illustrating that this is an inappropriate area
for the court to substitute its judgment for those of the prison
administrators.
The accommodation impact on guards and other prisoners
would be substantial. The increased number of searches that
would be required if inmates were allowed to wear their crowns
at all times would threaten increased confrontations between
guards and inmates, perhaps requiring a reallocation of prison
resources.
There appears no easy alternative to the restriction. This may
simply reflect the fact that already the crown is allowed in many
areas, indicating that the most workable adjustments are in
place.
In Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir. 1987),
the court applied the Turner four-part test and upheld a prison
regulation that forbids the wearing of religious headbands by
Native Americans in the mess hall. The court held that “it is
26a
clear that the dress regulation involved in this case is logically
connected to the concerns of cleanliness, security, and safety that
were invoked to justify it.” Jd. at 1528. The court rejected the
prisoner’s contention that increased inspection provided an easy
alternative, holding that the security threat posed by increased
guard-to-inmate contact “would adversely affect penal objec-
tives.” Id. at 1529.
Plaintiffs have not met their burden of showing that the
restriction on the wearing of the religious crown impermissibly
infringes on their constitutional rights.
3. The Ital Diet
Ital symbolizes a belief in life and an avoidance of symbols
of death. Individual dietary practices vary widely among
Rastafarian individuals and sects both inside and outside prison.
In general, Rastafarians do not eat meat, and almost univer-
sally refrain from eating pork. Most Rastafarians abstain from
alcohol and caffeine. Some Rastafarians do not eat fish, and some
refuse dairy products. Some refrain from eating any foods that
have been processed, particularly canned food, believing that
the can symbolizes a coffin, or death. Some Rastafarians refuse
to eat vegetables that have been cooked for more than a few
minutes, believing that overcooking destroys the food's natural
value. Rastafarians also object to vegetables that have been
treated with non-organic pesticides or fertilizers.
Some Rastafarians will only eat food that is prepared and
served in pots and bowls made of natural materials: more
specifically, clay pots and calabash bowls. Some Rastafarians
will eat only food that they have prepared themselves. Others
refuse food that has been prepared by a woman during her
menstrual period. Some of the inmates who testified eat meat,
dairy products, fish, canned foods from the commissary, and
bread made from processed flour.
Whenever pork is served, DOCS provides a meat substitute
to all inmates to accommodate the religious requirements of
Jewish and Muslim prisoners. No such substitute is offered when
27a
other meats are served. They also offer a kosher food program
at Green Haven Correctional Facility, and a neutral diet at other
facilities to inmates who have been in the Green Haven pro-
gram. Most of the vegetables served in DOCS institutions are
canned or frozen, because they are more cost-effective and
because fresh vegetables are not available all year. Vegetables
are prepared by steaming for a maximum of fifteen minutes.
The use of clay or calabash pots and bowls is impracticable
because clay is breakable, and it violates New York food prepara-
tion regulations which forbid the use of wooden working sur-
faces other than hard maple. Porous materials can retain and
breed harmful bacteria.
It would be both expensive and a severe administrative burden
for defendants to provide Rastafarian inmates with a diet con-
taining only natural foods and nutritionally adequate meat
substitutes.
Other prisoners understandably resent special treatment that
is given to any group, and the possibility of tension and con-
frontation is particularly troublesome at mealtime, which is often
the only time the entire prison population is together.
Defendants provide Orthodox Jewish prisoners with kosher
or neutral meals. They provide special meals during Ramadan,
and meat substitutes so that Muslim prisoners can follow their
religious proscription against pork. To that extent, they do not
appear “neutral” as between Jews and Muslims on the one hand
and Rastafarians on the other. But the inequality of treatment,
if it is perceived as such, reflects the fact that it would be much
more difficult to accommodate the Rastafarians because their
definitions of an Ital diet are so varied. The complex of dietary
restrictions that plaintiffs described would impose undue finan-
cial and administrative burdens on defendants to provide an Ital
diet that met with the religious views of every Rastafarian
inmate.
Plaintiffs do have alternative means of exercising the right:
they may receive food from the outside through the prison
28a
package rooms, and they may buy food at the prison commissary.
They may also abstain from eating any food provided in the mess
hall that offends their religious beliefs. Although it may not be
acceptable to all Rastafarians, those who do not reject all dairy
products may obtain a nutritionally adequate “ovo-lacto” (i.e.,
including eggs and dairy products) diet even abstaining from
all meat, fish and poultry. See Udey v. Kastner, 805 F.2d 1218
(5th Cir. 1986)(prisoner’s request for a natural food diet, based
on sincerely held beliefs, refused on the basis that it would create
undue costs and administrative burdens, and have a potential-
ly disruptive effect on prison discipline).
Kahane v. Carlson, 527 F.2d 492 (2d Cir. 1975), held that
the state must provide kosher meals to Orthodox Jewish inmates.
Factually, there were few Orthodox Jewish inmates in the
custody of DOCS. Further, Kahane sought meals that complied
with the laws of Kashruth, which are more well-defined than
the dietary practices described by plaintiffs. Defendants’ prac-
tices here do not run afoul of Kahane, read in the light of Turner
and O'Lone, nor do they impermissibly infringe on plaintiffs’
First Amendment or Equal Protection rights.
4. Congregate Religious Services
In Jamaica, weekly congregate services last for two days and
holiday celebrations last for two weeks. The nature of the ser-
vices that are held in Jamaica, and the type of services that the
prisoners seek, is unclear. DOCS has available no body of
established religious doctrine on which it can rely in determin-
ing the particular rituals or practices which are appropriate to
the Rastafari. Marlon Clarke testified that a typical prayer ser-
vice in Jamaica would be presided over by an elder, and would
involve singing, dancing, chanting and Biblical readings.’ Ernest
Nurse testified that a typical prayer service would consist of
psalm readings, prayer and Bible discussion. Jah Bunny testified
* It also involves “sharing of the chalice” which is the burning of the “holy
herb,” ie, marijuana, (SM 327) but it is assumed that plaintiffs wish con-
gregate services even without that element.
29a
that meetings of Caribbean African Unity, a DOCS-approved
cultural organization, begin and end with a prayer, and that
a typical religious service would consist of an opening and closing
prayer, “reasoning” and playing of drums and chanting.
DOCS will “allow Rastafarians to hold congregate services
when and if . . . an outside sponsor comes forth.” (Defts’ Post-
trial Reply Mem., p. 3). Requiring a sponsor from the outside
is a reasonable method of authenticating, and maintaining the
integrity of, the spiritual purposes of the meeting and its prac-
tices. It comports with the institution’s responsibility to see that
the religious services are genuine and bona fide, and not used
as an occasion for extortion, for the holding of kangaroo courts,
or for the dissemination of conspiratorial information. (SM
558-9). The free-world-sponsor requirement has been upheld
for the same reasons given by defendants. See Hadi v. Horn,
830 F.2d 779 (7th Cir. 1987); Tisdale v. Dobbs, 807 F.2d 734
(8th Cir. 1986). Its purpose is not to enforce doctrinal conformity,
as plaintiffs protest, but to assure that the inmates’ meeting serves
its professed religious purposes rather than temporal ones which
might threaten security. Section 610 of the New York Correc-
tion Law provides for religious services “from some recognized
clergyman of the denomination.”
No sponsor has come forward who has been approved by
DOCS. Carol Yawney, an associate professor of anthropology
at York University in Toronto, offered to organize a holiday
celebration, but DOCS reasonably refused on the basis that she
is an academic, not a religious authority. Mr. Daley testified that
the tenets of Rastafari do not allow a woman to lead services
for men (SM 183). The Reverend Earl Moore testified to good
faith attempts he has made to locate and obtain the services
of a sponsor.
Nor would the use of inmate religious leaders be acceptable,
because inter-inmate leadership struggles pose a security prob-
lem. Although some Muslim services are led by inmate imams,
they are supervised by outside imams, and DOCS ministerial
personnel have an outside resource to contact concerning
religious issues. In addition, Phillip Coombe testified that DOCS
30a
is hiring more outside imams to lead services in the prisons,
because the use of inmate imams is a security problem. Final-
ly, defendants object on the ground that Jamaican dialect would
be spoken during religious services, and that they would have
no way of knowing what was being said or controlling what
went on during the service.
There is a valid, rational connection between defendants’
security concerns and the requirement that a religious group
have an outside sponsor in order to conduct congregate religious
services. The requirement applies to all religious groups.
There are alternate, although limited, means of expressing
the right that remain open to prisoners. They may pray in-
dividually in their cells, and may “reason” with other inmates
in small groups. Mr. Daly testified this was an adequate
substitute for prayer services (SM 172). The meetings of Carib-
bean African Unity begin and end with Rastafarian prayers.
No other easy alternative appears feasible.
Under the circumstances, DOC’s position that congregate ser-
vices await only the presence of an outside sponsor comports
with Turner and O’Lone, and represents a reasonable
penological restriction.
CONCLUSION
For the foregoing reasons, defendants are permanently en-
joined from enforcing Departmental Directive No. 4914 against
members of the plaintiff class. The remainder of plaintiffs’ claims
are dismissed.
Defendants are to submit a judgment, on consent as to form
if possible, within thirty days of the date of this order. By the
same time, plaintiffs may submit a counter-judgment reflecting
matters of form that cannot be agreed upon.
Dated: New York, New York
March 13, 1989
/s/Louis L. Stanton
LOUIS L. STANTON
US.D.]J.
3la
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THOMAS BENJAMIN, ERROL DUNKLEY,
FRANK FORREST, BARRINGTON GRAY,
NEWTON HANNON, and MARTIN
SPENCE, on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
— against —
THOMAS A. COUGHLIN, Commissioner,
New York State Department of Correctional
Services, STEPHEN DALSHIEM, Superinten-
dent, Ossining Correctional Facility;
EUGENE S. LEFEVRE, Superintendent,
Clinton Correctional Facility; HAROLD
SMITH, Superintendent, Attica Correctional
Facility,
Defendants.
79 Civ.
0232 (LLS)
ORDER
This action having been tried to the court on August 31, Sep-
tember 1, 2 and 3, 1987 and the court having rendered its opinion
and order dated March 13, 1989, the Clerk of the Court wiil
enter judgment permanently enjoining defendant from enforcing
so much of Departmental Directive No. 4914 as requires members
of the plaintiff class entering into the custody of the New York
State Department of Correctional Services to undergo an initial
haircut for identification and security purposes; and otherwise
dismissing the complaint, with costs as provided by law.
So ordered.
Dated: New York, New York
May 19, 1989
/s/Louis L. Stanton
LOUIS L. STANTON
US.DJ.
32a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
emeaian aan ae
THOMAS BENJAMIN, ERROL DUNKLEY,
FRANK FORREST, BARRINGTON GRAY,
NEWTON HANNON, and MARTIN JUDGE
SPENCE, on their own behalf and on behalf STANTON
of all others similarly situated,
Plaintiffs,
— against —
THOMAS A. COUGHLIN, Commissioner,
New York State Department of Correctional
Services; STEPHEN DALSHIEM, Superinten-
dent, Ossining Correctional Facility; 79 Civil
EUGENE S. LEFEVRE, Superintendent, 232 (LLS)
Clinton Correctional Facility; HAROLD
SMITH, Superintendent, Attica Correctional JUDGMENT
Facility,
Defendants.
A non-jury trial before the Honorable Louis L. Stanton,
U.S.D.J., having begun on August 31, 1987, and at the conclu-
sion of the trial the Court having reserved its decision; and the
Court thereafter on May 22, 1989, having handed down its order,
that the Clerk of the Court will enter judgment permanently
enjoining defendants from enforcing so much of Departmental
directive No. 4914 as requires members of the plaintiff class enter-
ing into the custody of the New York State Department of Cor-
rectional Services to undergo an initial haircut for identifica-
tion and security purposes; and otherwise dismissing the com-
plaint, with costs as provided by law, it is,
ORDERED, ADJUDGED AND DECREED: That defen-
dants be and they hereby are permanently enjoined from en-
forcing so much of Departmental Directive No. 4914 as requires
33a
members of the plaintiff class entering into custody of the New
York State Department of Correctional Services to undergo an
initial haircut for identification and security purposes, and it
is further,
ORDERED, That the complaint be and it is hereby other-
wise dismissed with costs as provided by law.
DATED: NEW YORK, NEW YORK
JUNE 16, 1989
/s) Raymond F. Boughardt
APPROVED:
/s/ Louis L. Stanton
U.S.D.J.
_
34a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THOMAS BENJAMIN, ERROL DUNKLEY,
FRANK FORREST, BARRINGTON GRAY,
NEWTON HANNON, and MARTIN
SPENCE, on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
— against —
THOMAS A. COUGHLIN, Commissioner,
New York State Department of Correctional
Services, STEPHEN DALSHIEM, Superinten-
dent, Ossining Correctional Facility; 79 Civ.
EUGENE S. LEFEVRE, Superintendent. 0232 (LLS)
Clinton Correctional Facility; HAROLD
SMITH, Superintendent, Attica Correctional OPINION and
Facility, ORDER
Defendants.
This action was brought pursuant to 42 U.S.C. § 1983 by plain-
tiff class as members of the Rastafari faith against defendants
Thomas A. Coughlin III, Commissioner of the New York State
Department of Correctional Services (“DOCS”) and the
Superintendents of the facilities in which plaintiffs are now in-
carcerated. Plaintiffs seek a declaration that Rastafarianism is
a religion, along with injunctive relief affording them the op-
portunity to meet as a religious group and follow certain prac-
tices of their religion within prison, such as wearing their hair
long and eating a special diet. Because some of its members have
recently been placed in restrictive confinement for their refusal
to cut their hair, plaintiff class now moves for preliminary relief
to enjoin defendants from (1) refusing to recognize
Rastafarianism as a religion; (2) requiring plaintiffs pursuant
to Departmental Directive No. 4914 to have their hair cut while
35a
in defendants’ custody; and (3) placing plaintiffs in involuntary
protective custody because of their refusal to cut their hair! After
reviewing the motion for a preliminary injunction, the court
raised the question whether the doctrine of collateral estoppel
bars defendants from litigating the issues raised here, see
Williams v. Codd, 459 F. Supp 804 (S.D.N.Y. 1978); see also
Hedger Trans. Corp. v. Bushey & Sons, Inc., 186 F.2d 236 (2d
Cir. 1951); cf. LaRocca v. Gold, 662 F.2d 144, 148 (2d Cir. 1981),
and the parties have fully briefed that issue.
Background
The present action was brought in January 1979. It was
discontinued in April 1980 in contemplation of settlement, and
reopened in March 1985.
Since its commencement, two New York State court cases in-
volving the issues raised by this motion have been decided against
the Commissioner of the Department of Correctional Services
and in favor of two Rastafarian inmates.
The first, Lewis v. Commissioner of the Department of Cor-
rectional Services, No. 85-11167, slip op., (N.Y. S. Ct. August 1,
1985), affd sub nom. People v. Lewis, 496 N.Y.S.2d 258 (N.Y.
App. Div. 1985), was brought by a Rastafarian inmate to
challenge the validity of DOCS Directive No. 4914, which re-
quires all male inmates to submit to a haircut and shave for the
taking of an initial identification photograph when newly in-
carcerated. He asserted that cutting his hair or beard violated
his religious convictions. The defendant Commissioner argued
that the prison facilities need a photograph of each inmate after
a haircut and shave, showing his “facial features and contours
unobstructed by hair”, to facilitate apprehension of escaped con-
victs who might try to change their appearance by cutting their
long hair. Both the Supreme Court, Queens County and the Ap-
pellate Division held that the state’s objective of prisoner iden-
tification and security could be achieved through !ess restric-
tive means, by “pulling [the inmate’s] locks back tightly behind
the head for a photograph”. 496 N.Y.S.2d at 260, see People v.
Lewis, No. 85-11167, slip op. at 5. Both courts held that
36a
Directive No. 4914, in requiring an initial haircut, was un-
constitutional as applied to the plaintiff inmate.
In the second case, Overton v. Dept. of Correctional Services
and Thomas A. Coughlin, III, 499 N.Y.S.2d 860 (N.Y. S. Ct.
1986), another Rastafarian inmate challenged DOCS Directive
No. 4914. The defendants there argued both that Rastafarianism
is not a religion and that the legitimate security needs of the
prison system required initial photographs of newly received in-
mates in a “clean-shaven, close-haired stated”. Jd. at 862. Both
sides moved for summary judgment. The court held that
Rastafarianism is a religion and that inmates sincerely holding
its beliefs are to be afforded First Amendment protection.’ It
held, “[i]n accordance with the determination . . . in People
v. Lewis”, that DOCS Directive No. 4914 was unconstitutional
as applied to the Rastafarian inmate and that the state’s
“legitimate [security] objectives . . . can be achieved by means
of tying back [the inmate's] hair so as to afford a full and
unobstructed facial views.” Jd. at 865.
Issue Preclusion Principles
The doctrine of collateral estoppel is that “once a court has
decided an issue of fact or law necessary to its judgment, that
decision may preclude relitigation of the issue in a suit on a dif-
ferent cause of action involving a party to the first case.” Allen
v. McCurry, 449 U.S. 90, 94 (1980); LaRocca v. Gold, 662 F.2d
at 148; see Gramatan Home Investors Corp. v. Lopez, 414
N.Y.S.2d 308 (N.Y. 1979). Title 28 U.S.C. § 1738 requires federal
courts to give preclusive effect to state court judgments whenever
the courts of that state would do so. See Allen v. McCurry, 449
U.S. at 96. “For the bar to apply: (1) the issues in both pro-
ceedings must be identical, (2) the issue in the prior proceeding
must have been actually litigated and actually decided, (3) there
must have been a full and fair opportunity for litigation in the
prior proceeding, and (4) the issue previously litigated must have
been necessary to support a valid and final judgment on the
merits.” Gelb v. Royal Globe Ins. Co., No. 85-7667, slip op. at
5025 (2d Cir. August 8, 1986); Tri-Ex Enterprises, Inc. v. Morgan
37a
Guaranty Trust Co., 596 F. Supp. 1, 7 n.3 (S.D.NY. 1982):
Schwartz v. Public Administrator of County of Bronx, 298
N.Y.S.2d 955 (N.Y. 1969).
“It is undisputed that a litigant who was not a party to the
first action may assert collateral estoppel offensively in a subse-
quent proceeding against the party who lost the decided issue
in the prior case.” Tri-Ex Enterprises v. Morgan Guaranty Trust
Co., 596 F. Supp. at 7; see Allen v. McCurry, 449 U.S. at 95;
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326-27 (1979).
The trial court has broad discretion to determine when to per-
mit the offensive use of collateral estoppel, see Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. at 331, and should not allow it if
it would be unfair to a defendant to bind him to the prior find-
ing. Ibid; see Tole S.A. v. Miller, 530 F. Supp. 999, 1003 (S.D.N_Y.
1981) aff'd, 697 F.2d 298 (2d Cir. 1982)(former requirement of
mutuality has been abandoned and “{i]n its place the courts have
adopted a rule that non-mutual issue preclusion is permitted
unless it would be unfair”).
Discussion
(a) Identity of Issues
The issues resented here are the ones litigated in Lewis and
Overton. The New York Supreme Court in Overton squarely
addressed and decided both that Rastafarianism is a religion
and that DOCS Directive No. 4914 is unconstitutional in requir-
ing a Rastafarian inmate to get an initial haircut. Both deter-
minations were necessary for its decision. Earlier, Lewis held
that these defendants could not constitutionally require a
Rastafarian inmate to get an initial haircut upon commence-
ment of his sentence, since the state could adequately achieve
its security objectives by photographing the inmate with his hair
pulled back.
The court in Overton stated the issues before it as follows (499
N.Y.S. at 861-62):
The remaining issues having been framed through
the submission of voluminous papers, the parties cross-
moved for summary judgment.
38a
The plaintiff, an avowed Rastafarian, contends that
enforcement of D.O.C.S. directive No. 4914 would
violate his right to the free exercise of religion and to
the equal protection of the laws under the First and
Fourteenth Amendments of the United States Con-
stitution, Sections 3 and 1] of Article I of the New York
State Constitution, and Section 610 of the New York
State Correction Law.
The defendants contend that Rastafarianism is not
a religion and that the legitimate security needs of the
prison system require initial photographs of received
inmates in a clean-shaven, close-haired state.
Obliged to “determine whether [Overton's] beliefs are
‘religious’ and, therefore, protected”, (id. at 862) the court
discussed the law for five pages and held, “the court finds that
Rastafarianism meets such a standard” (id. at 863) and plain-
tiffs beliefs “are ‘religious’ in nature and, therefore, deserving
of First Amendment protection” (id. at 864). The court then
considered whether less restrictive alternatives to haircuts were
available. It concluded, following the Appellate Division's deter-
mination in Lewis, that the DOCS’ legitimate security objec-
tives could be achieved by tying back the inmate’s hair so as to
afford a full and unobstructed facial view.
In Lewis, a Deputy Commissioner of DOCS testified at the
hearing, in support of DOCS’s assertion that Directive 4914 is
needed for reasons of security and sanitation, and stated that
(496 N.Y.S.2d at 259-60):
. . . photographs of each inmate are taken after the
haircut and shave so that DOCS has a picture that
shows the facial features and contours unobstructed
by hair. Such photographs can facilitate the apprehen-
sion of escaped convicts, especially if they drastically
change their appearances by cutting off long hair. He
also noted that the haircut makes it easier to decon-
taminate incoming prisoners of lice.
39a
Nonetheless, the Supreme Court, Queens County (id. at 260):
. .. found that the identification objective would be
fully achieved by pulling respondent’s locks back tight-
ly behind his head for a photograph so they could not
be seen, did not obstruct a full facial view in any event,
and enabled the photographer to obtain an accurate
picture of the contours of his face and head. It found
the same objectives could be achieved, in a similar
manner, for side photographs.
The Appellate Division agreed and affirmed, concluding that
( ibid ):
Since such alternatives are available, enforcing the
directive’s haircut requirements would violate respon-
dent’s religious rights unnecessarily.
Defendants argue that those cases were different; that the
issues in the state courts were “personal to the situations of the
individual involved” (pointing to such language as that in Over-
ton, 499 N.Y.S.2d at 865: the directive is “... unconstitutional
as applied to Mr. Overton”) while the claims in this case involve
the rights of the entire class “and impacts [sic] the State’s entire
system of inmate reception and identification.” Defs. July 18,
1986 Brief (hereinafter “Defs. Briefs”) at 16-17.
No such difference can be extracted from the cases. It is im-
material that plaintiffs Lewis and Overtan did not challenge
Directive 4914 as unconstitutional on its face, but only “as ap-
plied” to them, cf. Kines v. Day, 754 F.2d 28, 30 (ist Cir. 1985)
(“challenging a rule as applied often requires more specific
allegations of harm than are necessary to test facial validity”),
for the holdings apply equally to others similarly situated. The
“as applied” analysis does not mean the holdings are limited to
those plaintiffs only. Nothing in Lewis or Overton indicates that
those courts rested their decisions on particular characteristics
of the individual plaintiffs or distinguished them from other
Rastafarian inmates. To the contrary, the Overton court rejected
40a
the argument that Mr. Overton's beard is so wispy that he should
be excepted from the general rule requiring a clean shaven
photograph. Rather, the courts focused on plaintiffs as members
of the Rastafari faith and on their interests in adhering to the
tenets of that faith. Compare Wright v. Raines, 457 F. Supp.
1082, 1090 (D. Kan. 1978)(where plaintiff inmate of Sikh faith
challenged prison regulation preventing growth of long hair,
court held that defendants were prohibited from enforcing
regulation against “a sincere adherent of a recognized religion
which requires long hair and a beard as one of its fundamental
tenets”).
The issues decided by the state courts in Lewis and Overton
are identical to the ones raised by the present application. In-
deed, the defendants’ brief to the Appellate Division in Lewis
advised that court that the “issue as to whether Rastafarianism
is a religion is being litigated in Overton” and this case. (Exh.
G to Bromley affidavit of July 18, 1986, p. 3 n.*) The question
whether the state can place Rastafarian inmates in involuntary
“protective custody” if they refuse to cut their hair is no more
than a restatement of the issue whether the defendants can en-
force Directive 4914 against Rastafarian inmates on security
grounds.*
(b) Full and Fair Opportunity to Litigate
Offensive use of collateral estoppel should not be permitted
where it would be unfair to the party against whom it is asserted.
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. at 330. To deter-
mine whether a party has had a full and fair opportunity to
litigate an issue in a prior action, a court must examine “the
realities of [the prior] litigation”, Schwartz v. Public Admin.
of Co. of Bronx, 298 N.Y.S.2d at 961; see Winters v. Lavine, 574
F.2d 46, 59 n.14 (2d Cir. 1978), “including the context and other
circumstances which . . . may have had the practical effect of
discouraging or deterring a party from fully litigating the deter-
mination which is now asserted against him”. People v. Plevy,
436 N.Y.S.2d 224, 228 (N.Y. 1980).
Defendants claim that they “did not fully litigate in state court
the broad issues present in the case at bar precisely because of
4la
the pendency of this action. Defs. Brief at 18. They assert that
“[b]y agreement of the parties and in recognition of the federal
case, no formal or informal discovery by way of document ex-
change, interrogatories or depositions took place [in the state
cases]”. (Aff. of Tarquin Jay Bromley, sworn to July 18, 1986,
p. 5).
In Lewis, the court held a hearing, at which Philip Coombe,
Deputy Commissioner for Facility Operations for DOCS,
testified for defendants in the presence of plaintiff Lewis. His
testimony is set forth at p. 7 above, as summarized by the Ap-
pellate Division (496 N.Y.S.2d at 259-60).
In Overton, on cross-motions for summary judgment the
defendants submitted the affidavits of Mr. Coombe and Tar-
quin Jay Bromley, Esq., defendants’ attorney, and two state court
orders requiring two Rastafarian inmates to cut their hair upon
commencement of their sentences. Plaintiff submitted affidavits
and various articles and materials on Rastafarianism. Defen-
dants informed that court that “if [it] did not grant summary
judgment in favor of defendants, they required a full eviden-
tiary hearing concerning the rationale for the Directive and their
position that there was no less restrictive alternative than the
| initial haircut and shave.” Bromley Aff. at 6-7. Defendants claim
| that they decided to proceed without discovery in Overton
| because they were preserving for this court the “broad based”
or “larger” issues presented here, see Defs. Brief at 18, and
because “the federal court [is] the appropriate forum for the
deliberative resolution of disputes encompassing complex con-
stitutional issues.” Id. at 3.
In approaching these matters, a court should consider (1)
defendant's incentive to defend vigorously in the first action,
focusing in particular on the size of the claim and the
foreseeability of future litigation; (2) whether the judgment
relied upon as a basis for the estoppel is itself inconsistent with
previous judgments in favor of defendant; (3) whether the sec-
ond action affords the defendant procedural opportunities
unavailable in the first action; and (4) whether the plaintiff could
easily have joined in the earlier action. Parklane Hosiery Co.,
0
42a
Inc. v. Shore, 439 U.S. at 329-31; see also Schwartz v. Public
Admin. of Co. of Bronx, 298 N.Y.S.2d at 961; Winters v. Lavine,
574 F.2d at 59 n.14. The underlying consideration appears to
be “whether the party ‘had more than adequate incentive to
litigate long and hard’ ", and whether it did so. Winters v.
Lavine, 574 F.2d at 59 n.14, citing Vincent v. Thomson, 361
N.Y.S.2d 282, 295 (N.Y. S. Ct. 1974), revd on other grounds 377
N.Y.S.2d 118 (N.Y. App. Div. 1975); see Zdanok v. Glidden Co.,
Durkee Famc «s Foods Div., 327 F.2d 944, 956 (2d Cir. 1964).
These defendants had ample opportunity and incentive to
litigate in the state court actions. Both Lewis and Overton in-
volved challenges by a Rastafarian inmate to Directive 4914's
requirement that they cut their hair upon commencement of
their sentences. None of the state court opinions indicates that
its holding is based on any particular personal characteristics
of Lewis or Overton. None defers to a future decision by this
court. Under the circumstances, and with knowledge of the class
action pending in this court, defendants “clearly must have fore-
seen the possible preclusive consequences arising from an un-
favorable decision in the [state court] action{s].” Winters v.
Lavine, 574 F.2d at 59 n.14; see Zdanock v. Glidden Co., Durkee
Famous Foods Div., 327 F.2d at 957 (C.J. Lumbard, concur-
ring) (“I . . . concur in the [application] of the collateral estop-
pel doctrine . . . [since] . . . it is clear that when the defendant
elected to rest its case... . — a case involving merely five
employees — it was fully aware of the Alexander case, then pend-
ing in the state court for about two years, which involved some
160 employee-plaintiffs). Mere concern for the precedential value
the New York State court decisions must have in this case should
have provided the parties with incentive to litigate with vigor.
Defendants’ decision in Overton to move for summary judg-
ment and forego discovery was made at their own peril. Defen-
dants are not entitled to federal relitigation of an issue because
a strategy decision in a prior state court action may have been
improvident.
It is well understood that “state courts have the same duty
as the federal courts to uphold the federal Constitution”,
43a
United States ex rel. Hill v. Johnston, 321 F. Supp. 818, 820
(S.D.N.Y. 1971), and once a federal issue has been decided in
state court, the litigants are not necessarily entitled to relitigate
it in federal court. See Allen v. McCurry, 449 U.S. at 104; com-
pare England v. Louisiana State Bd. of Med. Exam., 375 U.S.
411 (1964) (in cases where, but for the application of the absten-
tion doctrine, the primary fact determination would have been
by the District Court, a litigant may not be unwillingly deprived
of that determination).
Defendants have submitted here several hundred photographs
of Rastafarian inmates with their hair both long and short, i.e.,
“before” and “after” pictures, as evidence of the urgency of defen-
dants’ security interests. They assert that the photographs were
not relevant to the Overton case “since the issue was solely Mr.
Overton's own appearance”. Defs. Brief at 22. As shown above,
the issue in Overton necessarily affected all Rastafarians similarly
situated, and DOCS must have been aware of the doctrine of
stare decisis. Defendants claim that the photographs were not
available at the time of the state court actions because plain-
tiffs had not provided a list of inmates who claimed to be
Rastafarians, and that this federal action provides them “the
procedural opportunity to put on [this] evidence”. Jd. at 21.
Defendants, who had the Rastafarians in their custody, do not
explain what efforts they made to obtain a list of them, or why
the photographs could not equally well have been assembled
and used in Overton. See Winters v. Lavine, 574 F.2d at 60 n.14.
Defendants make two additional arguments that they have
not been provided a full and fair opportunity to litigate the issues
presented in plaintiffs’ motion. First, they assert that there are
prior state court judgments inconsistent with-Lewis and Over-
ton, and decided in defendants’ favor. While a court should not
allow the use of offensive collateral estoppel against a defen-
dant where “the judgment relied upon as a basis for the estop-
pel is itself inconsistent with one or more previous judgments
in favor of the defendant”, Parklane Hosiery Co., Inc. v. Shore,
439 U.S. at 330, that is not the case here. The decisions prof-
fered by defendants do not address the issue of Rastafarianism’s
judicial standing as a religion, nor the question of whether the
44a
directive impermissibly infringes on the rights of Rastafarianism’s
adherents since the state can achieve its objectives by a less in-
trusive means, which are the crucial issues here and in Lewis
and Overton.
Second, defendants contend that this plaintiff class could have
joined the state court actions, and its failure to do so amounts
to an election to litigate in federal court. The Supreme Court
has stated that it is not fair to a defendant to allow the use of
offensive collateral estoppel “where a plaintiff could easily have
joined in the earlier action”. Parklane, 439 U.S. at 331. The court’s
concern was that “the plaintiff has every incentive to adopt a
‘wait and see’ attitude, in the hope that the first action by another
plaintiff will result in a favorable judgment.” Jd. at 330. That
is not the situation here. Far from assuming a “wait and see”
attitude, the plaintiff class commenced this action in January
1979, six years prior to the Lewis and Overton actions.
Although the effect of the foregoing is to deprive the DOCS
of a further hearing for which it prepared in the hope of final
vindication, the doctrine applied here is one that serves broad
and important public purposes. As stated by the Supreme Court
in Commissioner v. Sunnen, 333 U.S. 591, 597 (1947)
The general rule of res judicata applies to repetitious
suits involving the same cause of action. It rests upon
considerations of economy of judicial time and public
policy favoring the establishment of certainty in legal
relations.
and in Allen v. McCurry, 449 U.S. at 95-96
Thus, res judicata and collateral estoppel not only
reduce unnecessary litigation and foster reliance on
adjudication, but also promote the comity between
state and federal courts that has been recognized as
a bulwark of the federal system.
Conclusion
The issues presented here are identical to those decided by the
New York State courts in Lewis v. Commissioner of DOCS and
a
45a
Overton v. Coughlin. Defendants had full and fair opportunity
to litigate these issues in those actions. They are precluded by
the doctrine of collateral estoppel from relitigating those issues
here.
Accordingly, plaintiffs’ motion for preliminary relief is granted
as a matter of law. Defendants are enjoined from requiring plain-
tiffs to have their hair cut for identification photographs while
in defendants’ custody and from placing plaintiffs in involun-
tary protective custody for refusing to have their hair cut for
that purpose.
Dated: New York, New York
August 29, 1986
/s/Louis L. Stanton
LOUIS L. STANTON
U. S. D. J.
46a
Footnotes
Plaintiffs assert three additional claims in the underlying
action, that defendants (1) refuse to allow plaintiffs to gather
for religious meetings; (2) do not provide plaintiffs with a
diet consistent with Rastafarian dietary laws; and (3) do
not permit plaintiffs to wear their religious headgear. Those
claims are not in issue on this motion.
In neither Lewis nor Overton was the sincerity of the in-
mates’ beliefs contested. Here, if defendants wish to
challenge the sincerity of plaintiffs’ beliefs, they may do so
in an appropriate administrative hearing. See Moskowitz
v. Wilkinson, 432 F. Supp. 947, 951 n.13 (D. Conn. 1977).
28 U.S.C. § 1738 states:
“[Jjudicial proceedings of any court of any state| ...
shall have the same full faith and credit in every court
within the United States and its Territories and Posses-
sions as they have by law or usage in the courts of such
State...
The records of the “due process hearings” accorded plain-
tiffs before they were placed in protective custody show that
the only inquiry at the hearing was whether the Rastafarian
inmate would allow his hair to be cut pursuant to Directive
No. 4914. If not, he was placed in restrictive confinement.
47a
STATE OF NEW YORK
DEPARTMENT OF CORRECTIONAL SERVICES
DIRECTIVE
CLASSIFICATION No. 4914
DISTRIBUTION A & B
DATE 1/5/84
SUPERSEDES Directive No. 4914 dtd. 1/18/82 & Revision Notice
dtd. 2/2/82 ~
SUBJECT
INMATE GROOMING STANDARDS
APPROVING AUTHORITY
/s/Arthur A. Leonardo
I. DESCRIPTION
This directive establishes the basic grooming standards
(including criteria for beards, mustaches, and length of hair)
for inmates.
II. 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 assigned to
temporary release programs present a “neat and clean”
appearance.
iil
48a
III. 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 identifica-
tion photograph. Hair length upon completion of this
initial haircut 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 razor, hand clippers, or
depilatory to remove their beard.
B. General Grooming Standards
After the initial haircut and shave, general grooming
standards as set forth below are applicable to all
inmates.
+
l. Beards and Mustaches
All inmates may grow a beard and/or mustache not
to exceed one (1) inch in length.
2. 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.
b. When an inmate wears long hair and is assign-
ed to work near machinery or food, he will be
required to wear a hair net.
c. Inmates wearing long hair will be required to
have the hair tied back in a ponytail with a bar-
rette, rubber band, or other fastening device ap-
proved by the Superintendent. This restriction
49a
does not apply to American Indians involved in
scheduled and approved Indian cultural
ceremonies.
d. 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.
C. Photographs
If, in the opinion of a Correction Officer or Super-
visor, an inmate drastically changes his apperance by
changing the length of his hair or growing or shav-
ing a beard and/or mustache, he will be rephoto-
graphed for identification purposes. All such
rephotographs will be at the expense of the inmate.
50a
STATE OF NEW YORK
DEPARTMENT OF CORRECTIONAL SERVICES
DIRECTIVE
CLASSIFICATION No. 4914
DISTRIBUTION A & B
DATE 12/4/86
SUPERSEDES Directive No. 4914 dtd. 1/5/84*
SUBJECT
INMATE GROOMING STANDARDS
APPROVING AUTHORITY
/s/
I. DESCRIPTION
This directive establishes the basic grooming standards
(including criteria for beards, mustaches, and length of hair)
for male inmates.
Il. PURPOSE
It is the purpose of this directive to ensure that inmate ap-
pearance will be regulated sufficiently to maintain accurate
identification of each individual.
* Please remove and destroy the items identified in the “supersedes box.”
5la
III. REGULATIONS
A. Grooming Standards at Reception
1. Initial shaves and haircuts shall be required of
all newly committed male inmates (unless ex-
empted as set forth below in Sectioin III-A-2).
These are required for reasons of health and
sanitation as well as to permit the taking of the
initial identification photograph.
a. Shaves
Inmates who have beards upon reception shall
be permitted the option to use an electric
razor, hand razor, hand clippers, or a
depilatory to remove their beards.
b. Haircuts
Hair length upon completion of this initial
haircut shall not exceed one (1) inch on any
part of the head.
2. Exemptions
a. The initial shave regulation applies to all in-
mates including Rastafarians unless the inmate
possesses a court order restraining the Depart-
ment from such enforcement.
NOTE: Inmates who, pursuant to 2-a above
are exempted by court order from the shave
regulation, shall be placed in the extended
classification unit at the Downstate reception
center or in administrative protective custody
at all other facilities. Counsel’s Office shall be
notified of all such inmates.
b. Any reception inmate who professes to be a
Rastafarian and refuses to have an initial hair-
cut cannot be forced or ordered to comply
with the initial haircut requirements.
teil
52a
c. Any reception inmate who refuses to comply
with the initial haircut regulation on religious
grounds and who has a court order restrain-
ing the Department from enforcing the initial
haircut regulation cannot be forced or ordered
to comply with the initial haircut regulation.
NOTE: Any inmate covered by 2-b and c above
shall be classified and transferred in the standard
manner.
Any inmate covered by 2-b and c above cannot
be disciplined or placed in administrative pro-
tective custody for his refusal on religious grounds
to have an initial haircut.
. Any reception inmate who refuses to comply with
the initial haircut regulation on religious grounds
and:
a. does not profess to be a Rastafarian, or
b. does not have a court order;
shall be ordered to comply with the initial hair-
cut regulation. If he refuses, his hair shall not be
cut, but the inmate shall be placed in the extend-
ed classification unit at the Downstate reception
center or administrative protective custody at all
other facilities.
. Photographs
Identification photographs of any inmate who
has not had his hair cut shall be taken in accord
with the following:
a. For the frontal view, the hair shall be pulled
back away from the face and ears.
b. For the side view (profile), the hair shall be
pulled back and to the side.
53a
B. General Grooming Standards
After the initial haircut and shave, general groom-
ing standards as set forth below are applicable to
all inmates.
l.
Beards and Mustaches
All inmates may grow a beard and/or mustache
not to exceed one (1) inch in length. This require-
ment shall be enforced in all cases except when
an inmate has a court order restraining the
Department from such enforcement. —
Hair
a.
Hair may be permitted to grow over the ears
to any length desired by the inmates. The corn
row style is allowed. The hair must be neatly
groomed and kept clean at all times.
. Long hair is defined as shoulder length or
longer.
Inmates wearing long hair assigned to work
near machinery or food shall be required to
wear a hair net. Any other inmate assigned to
work near food shall be required to wear either
a hat or a hair net.
. All inmates wearing long hair will be required
to have the hair tied back in a ponytail at all
times with a barrette, rubber band, or other
fastening device approved by the
Superintendent.
Exception: American Indians involved in
scheduled and approved Indian cultural
ceremonies do not have to comply with this
restriction.
54a
e. An inmate may be subjected to a hair search
when there is reason to believe that contra-
band 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.
. Photographs
If, in the opinion of a Correction Officer or
Supervisor, 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 ex-
pense of the inmate.
55a
DECISION OF SUPREME COURT, QUEENS COUNTY
(DUNKIN, J.)
SUPREME COURT
CRIMINAL TE No. 1167/85
ALFREDO LEWIS
BY DUNKIN, J.
VS.
DATED
COMMISSIONER OF DEPARTMENT OF August 1, 1985
CORRECTIONAL SERVICES OF THE
STATE OF NEW YORK
Defendant, in a criminal proceeding, seeks tu prevent the in-
fringement of his religious beliefs as a Rastafarian upon his en-
try into a State correctional facility. He requests injunctive and
declaratory relief in the form of a third-party action within the
criminal proceeding. Since this court has jurisdiction over the
parties, pursuant to CPLR 103(c), this application is deemed
a motion for summary judgment within a declaratory judgment
action to challenge the validity of Directive #4914 of the New
York State Department of Correctional Services (hereinafter
‘DOCS”) pertaining to the grooming standards of inmates.
Plaintiff, a convicted felon, currently is awaiting sentencing
and transfer to a State facility. As provided in Directive #4914,
upon his entry, an initial haircut and shave is required of all
male inmates:
“Males received as new commitments shall get an in-
itial haircut and shave for reasons of health and sanita-
tion as well as to permit the taking of the initial iden-
tification photograph. Hair length upon completion
of this initial haircut shall not exceed one (1) inch on
56a
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 razor, hand clip-
pers, or a depilatory to remove their beard.”
Thereafter, hair may be grown to any length but beards and
mustaches may not exceed one inch in length.
Philip Coombe, the Deputy Commissioner of Operations for
DOCS, testified that the rationale behind the directive primarily
stems from a facility's need to maintain a photographic file of
an inmate in the case of an escape. Inasmuch as an inmate's
hair and beard may be regrown when his appearance changes
during his incarceration, he is rephotographed and the photo
is placed in his permanent file. Maintenance of hygiene within
the institution is aserted as a secondary purpose of the directive.
Plaintiff, an avowed Rastafarian, has not cut his hair for the
past 20 to 25 years and wears his three to four-foot length hair
in dreadlocks. The shaving of plaintiff's facial hair is also con-
tested as an encroachment upon his religious beliefs. There is
no dispute before the court concerning the sincerity of plain-
tiffs convictions or whether these beliefs are an integral facet
of his religion.
Although convicted prisoners do not forfeit all of their con-
stitutional rights upon confinement (Bell v. Wolfish, 441 US 520),
these rights are subject to restrictions and must be weighed
against an institution's needs and policies. (Wolff v. McDonnell,
418 US 539.) Thus, an inmate must be given a reasonable op-
portunity to exercise his First Amendment right of freedom of
religion to the extent it does not interfere with legitimate
penological objectives. (Pell v Procunier, 417 US 817; Cruz v Beto,
405 US 319; Burgin v Henderson, 536 F2d 501.) A regulation
which infringes upon First Amendment rights will be upheld
only if it furthers a substantial governmental interest such as
security, order or rehabilitation and the freedom limited is no
greater than is necessary to protect the interest involved. (Pro-
sunier v Martinez, 416 US 396.)
57a
In the factually similar case of Phillips v Coughlin, (81 Civ
7565, US Dist Ct, SDNY, May 4, 1984, Conner, J.), the precise
directive under constitutional attack herein was dealt with by
that court. Phillips, a Rastafarian entering into the custody of
DOCS, also claimed Directive #4914 violated his First Amend-
ment right to the free exercise of religion. There, Phillips’ beard
was involuntarily shaven but his hair was permitted to remain
long. As stated in the opinion:
“*** shaving is one of the most basic, easily ac-
complished, and drastic changes that a man with a
beard can make to his appearance. By ensuring that
it can identify its prisoners either cleanshaven or with
facial hair, DOCS lessens the effectiveness of this form
of disguise, whether used alone or in conjunction with
other methods of subterfuge. While not a perfect
counter to prisoners’ efforts to escape and avoid detec-
tion,’ it surely increases the likelihood that a missing
inmate will be identified and successfully recaptured.
Thus, I find that the State has a strong interest in tak-
ing and maintaining‘ a clean-shaven photo of all in-
mates in DOCS’s custody.” (p 9)
After considering an inmate's right to the free exercise of religion,
the court held Directive #4914 the least intrusive method
available for satisfying the penological interest involved.
Although the issue of Philipps’ dreadlocks was not before the
court, the matter was discussed in its footnote number 2:
a prisoner’s religious interest does not necessari-
ly apply with equal force to justify Directive #4914’s
requirement of a haircut. The identification purpose
for such a haircut may well be adequately satisfied
by the less intrusive alternative of simply tying the in-
mate's hair back for purposes of the initial
photograph.”
In the instant case, DOCS has also set forth security reasons
for the necessity of the initial shave and hairgut. This court is
in agreement with Phillips v Coughlin (supra) with respect to
the legitimate purpose served by the initial shave. In the absence
ieee il
58a
of an identification photo depicting a clean shaven inmate,
DOCS has no means of determining the underlying facial struc-
ture of the prisoner which is clearly needed to facilitate the
recapture of an escapee who may disguise his appearance. The
encroachment upon an inmate's freedom is minimized by the
subsequent permission to regrow facial hair.
However, the security reasons which must prevail in the case
of initial shaves are not justified when applied to the initial hair-
cut. Pursuant to the directive, hair length after the haircut is
not to exceed one inch on any part of the head. At the hearing,
Deputy Commissioner Coombe conceded that plaintiff has a
receding hair line and that the hair on the top of plaintiff's head
appears to be one inch or less in length, therefore conforming
to the requirement. It was further conceded that when plain-
tiff pulls his long hair back or around to the opposite side, a
full-face view as well as a side view are totally unobstructed
by the dreadlocks and conforms to the requirement. The mere
need of a uniform regulation as argued by DOCS is insufficient
to permit the infringement upon plaintiff's First Amendment
rights.
“But even if the institutional purpose is legitimate and
substantial, ‘that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties
when the end can be more narrowly achieved.
(Shelton v Tucker, 364 US 479 citations omitted.)”
(Sostre v Preiser, 519 F2d 763, 764.)
Thus, a governmental rule is not the end in itself. It is the
purpose to be achieved that must be primarily considered when
the same ends can be achieved without curtailing an individual’s
freedom of religion — even in such matters as the length of his
hair — the court must be creative in fashioning a reasonable so-
lution. Here, the institutional requirement with respect to securi-
ty and prisoner identification can be met through other viable
and less restrictive means. (See Monroe v Bombard, 422 F Supp
211.) The pulling back of plaintiffs hair achieves the penological
objective sought. This alternative permits the public objective
of security, as well as the individual's right to exercise his First
59a
Amendment rights, to be accommodated without infringing on
either interest. Unlike the growing or shaving of a beard, the
changing of the length of one’s hair is a less effective method
of disguising one’s appearance.
The facts of this case can be distinguished from Matter of
Solomon v Coughlin (89 AD2d 1945). In that case, an American
Indian protested the cutting of his hair upon entry into the state
penal system as an abridgement of his freedom of religion. The
court held that the directive in dispute, which was similar to
the one presently in question, satisfied the institution’s needs
without suffering from overbreadth and did not interfere with
an inmate's practice of religion. However, a review of the record
on appeal evidences that the feasibility of a more narrow ap-
proach, such as the one proposed by the court herein, was never
raised nor litigated in that court. Therefore, the reasoning in
that decision does not apply.
Turning next to the contention that the haircut is necessary
for hygienic reasons, DOCS has also admitted that other effec-
tive means such as showers exist to accomplish this purpose. Since
inmates are permitted to regrow their hair and would thereafter
be subject to the same hygiene problems, this reason does not
merit further discussion by the court.
He ice, Directive #4914, which presents a rational objective
on its face, is sufficient to justify the initial shave. However, the
failure to provide for reasonable alternatives which would result
in compliance with requirements for haircuts renders it violative
of plaintiffs First Amendment rights and cannot withstand con-
stitutional scrutiny.
The court notes that the directive requiring initial haircuts
applies only to male prisoners and not to females. Although
plaintiff has raised the issue of equal protection, in view of this
court’s determination to partially invalidate the directive for the
reasons set forth above, the court will not rule upon the
argument.
60a
Accordingly, for all the reasons stated, plaintiff is directed
to undergo an initial shave but may retain his dreadlocks in ac-
cordance with his religious beliefs.
Settle order.
J.S.C.
6la
SUPREME COURT - STATE OF NEW YORK
SPECIAL TERM, PART I/WESTCHESTER COUNTY
Present: Hon. LOUIS C. PALELLA, Justice.
IN THE MATTER OF HORACE ELLIS,
Petitioner
AN APPLICATION FOR AN ORDER TO
DIRECT THE RESPONDENT COMMIS-
SIONER OF THE NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SER-
VICES FROM HAVING TO CUT INMATE
HAIR, Filed
and
Entered
on 7-9-85
WESTCHESTER
COUNTY
CLERK
— against —
NORWOOD JACKSON, WARDEN, WEST.
COUNTY JAIL AND THOMAS A.
COUGHLIN, ITI COMMISSIONER OF THE
NEW YORK STATE DEPARTMENT OF
CORRECTIONS, Index Number
10446, 1985
Motion Date
Respondents. 7/3/1985
Motion Cal.
No. 67
The following papers numbered 1 to 4 read on this applica-
tion for a restraining order.
Order to Show Cause — Affidavits and Exhibits, papers
numbered 1-2.
Answering Affidavits and Exhibits, papers numbered 3-4.
Upon the foregoing papers it is ordered that this motion is
disposed of as follows.
|
* dl
62a
Petitioner submits an Order to Show Cause for an order
restraining Respondent Commissioner from cutting petitioner’s
hair on the grounds that it is against his religious beliefs.
A directive from the State of New York Department of Cor-
rectional Services provides for the cutting of hair as part of the
health and sanitary procedures of the jail.
The Court finds that inmate grooming is an important con-
sideration in jail population and is reasonably related to health
sanitary and security needs. The application is hereby denied.
HORACE ELLIS, Westchester County Jail, Box 10, Valhalla,
New York 10595 |
ROBERT ABRAMS, ESQ., Attorney General, Two World
Trade Center, New York, New York
63a
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
In the Matter of Rene Chapman,
Petitioner,
An Application for an Order to Direct the
Respondent Commissioner of the New York
State Department of Correction Services, from =p RFCISION
having to cut inmate hair, AND
ORDER
pon a ae
re | Index No.
NORMAN JACKSON, et al, 11046/85
Cal: 7/11/85
Respondent. #78
since aiaininielatsintiacasnipheaiaeaeaaaaame xX
BEISNER, J.
Petitioner has submitted a defective application to prevent
the Department of Correction Sesrvices from cutting his hair.
Petitioner claims to be a Rastafarian, a religion which aoe
the cutting of hair.
In a decision that is squarely on point with the instant case,
the Appellate Division, Third Department held in the Matter
of Donald Salomon v. Thomas A. Coughlin, 89 A D 2d 1045,
that “entry haircuts for the purpose of identification is entirely
reasonable and non-violative of the constitutional right to free-
ly practice religion.”
This is dispositive of the issue at hand, and accordingly, peti-
tioner’s application is denied.
Dated: September 3, 1985
/s/
J.S.C.
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.