# Petition for Writ of Certiorari — Coughlin v. Benjamin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2688%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 951 ## Text re nf x, Supreme Court, US, 90-3 07 % FILED on oO. a WE 6 HN 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2688%3A1. Public record. Not legal advice.