Petition for Writ of Certiorari — Lockhart v. Salaam

Ke oer

90-7 OL See co a

No. Oct 25 1980

} om

3n the vf aia

Supreme Court of the United States

OCTOBER TERM, 1990

A.L. LGCKHART, Superintendent,

Arkansas Department of Correction;

LARRY NORRIS, Warden, Maximum

Security Unit, Arkansas Department

of Correction PETITIONERS

V.

BILAL ALI SALAAM, a/k/a KEVIN

ROBINSON RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JOHN STEVEN CLARK

Arkansas Attorney General

By: *LESLIE M. POWELL

Assistant Attorney General

200 Tower Building

323 Center St.

Little Rock, Arkansas 72201

(501) 682-2007

ATTORNEYS FOR PETITIONERS

*Counsel of Record

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Eighth Circuit has improperly

substituted a “balancing test” in determining the

reasonableness of a prison policy for the deference

standard enunciated in Turner v. Safley creating a

split in the circuit courts of appeals in the proper

application of Turner?

Whether the Eighth Circuit improperly applied the

Turner analysis to a “reasonable alternative” and

then failed to analyze the prison policy itself?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTO ee oi xs be esate taineeds. css iii

COPIERS Be 5 sso aires cw ier ets Be Ses cs 1

STA TOG e Sie SMI pe kdeeh a danse eden eves: 3

REASONS FOR GRANTING THE WRIT .............. 5

CONCERTS na cs etic dew exe 13

APPENDIX A: Order Denying Petition for

Rehearing and Suggestion for Rehearing

Kem ERG, SUT Tire OU Fee eh bh hss cece casseces A-1

APPENDIX B: Eighth Circuit Opinion,

Pe) Repel o i ie a ee B-1

APPENDIX C: District Court Judgment,

Sake 36, SOG occ ccc eae a eo se ae ke C-1

APPENDIX D: District Court Memorandum

and Order, Fuby Wy Bee si wks sab ab ona oes scekveos D-1

iii

TABLE OF AUHTORITIES

CASES: Page

Akbar v. Canney, 634 F.2d 339 (6th Cir. 1980)

cert. denied, 450 U.S. 1002 (1981) ................ D-5

Azeez v. Fairman, 604 F. Supp. 357, (C.D.

Ill. 1985) rev'd in part, 705 F.2d 1296

ey cee ccccecee B-4, B-12

Barrett v. Virginia, 689 F.2d 498,

a sus vaseeveseebur B-12

Beli v. Wolfish, 441 U.S. 520 (1979) ................... 7,8

Benzel v. Grammer, 869 F.2d 1105,

ee ba eeltbe B-6

Block v. Rutherford, 468 U.S. 576, 82

L.Ed.2d 438, 104 S.Ct. 3227 (1984) .................. 6

Employment Div., Department of Human

Resources v. Smith, 108 L.Ed.2d 876,

58 U.S.L.W. 4433 (April 17, 1989) ............... 8, B-6

Feliz v. Rolan, 833 F.2d 517, 518

EY B-4, B-12

Fromer v. Scully, 874 F.2d 69

ED ry wo. eg vale vdase eee 6, 7,8, 11

Hili v. Blackwell, 774 F.2d 338,

(8th Cir. 1985) .......... sR Ra dee wee ek bax 5, B-5

Masjid Muhammad-D.C.C. v. Keve, 479 F. Supp.

AER eS B-4, B-12

McCabe v. Avare, 827 F.2d 634,

I a eae B-11

iv

Morales v. Schmidt, 340 F.Supp. 544,

(W.D. Wis. 1972) (Doyle, J.), rev'd. 489

F.2d 1335 (7th Cir. 1973) remanded for

consideration under a different standard.) ........ B-3

O’Lone v. Estate of Shabazz, 482 U.S.

SO he iis ta tre eeckactr: 6, 8, 11, 12, B-3, B-5

Pell v. Procunier, 417 U.S. 817 (1974) ...................

Procunier v. Martinez, 416 U.S. 396,

a Sire ose 60 OWW oe wle bo oth 6, 10, 12

Reed v. Faulkner, 842 F.2d 960,

SN EE oe eA a sas ost oe wa 5, B-5, B-12

Salaam v. Lockhart, 856 F.2d 1120,

(8th Cir. 1988) ......... 3, 5, 8, 9, B-2, B-4, B-5, B-6, B-10

Salaam v. Lockhart, 905 F.2d 1168

ON PPE Seer Pee eee 1

Thornburgh v. Abott, 490 U.S.__,

104 L.Ed.2d 459, 471 (1989) .................. B-4, B-5

Turner v. Safley, 482 U.S.

78 (1987) . . .3-10, 12, B-2, B-3, B-5, B-6, B-8, B-9, D-2-D-6,

Whitney v. Brown, 882 F.2d 1068,

De We SOE wi 8 B6

Wolff v. McDonnell, 418 U.S. 539 (1974) ............. 5, B-5

STATUTES AND RULES:

i 558 5 i eR 2

SE RM OPTT EEC Eo eA I 3

Vv

Ark. Stat. Ann. § 9-2-101(a) (1987) ...........-----+--

Ark. Stat. Ann. § 9-2-102 (1987)

ee oe Ct eS 6 EC C2 © C59 0-2 OF 29

No.

3n the

Supreme Court of the United States

OCTOBER TERM, 1990

A.L. LOCKHART, Superintendent,

Arkansas Department of Correction;

LARRY NORRIS, Warden, Maximum

Security Unit, Arkansas Department

of Correction PETITIONERS

V.

BILAL ALI SALAAM, a/k/a KEVIN

ROBINSON RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

A.L. Lockhart and Larry Norris, the petitioners

herein, petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Eighth Circuit in this case.

OPINIONS BELOW

The panel opinion of the Court of Appeals is reported as

Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990). It is

reprinted in slip opinion form in Appendix B to this petition.

The Judgment and Memorandum and Order of the

District Court are unreported. They are reprinted in slip

opinion form in Appendix C and D to this petition.

2

JURISDICTION

The final judgment of the Court of Appeals was

entered on June 13, 1990, with a petition for rehearing

denied on July 27, 1990. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides in pertinent part:

Ps So shall make no law respecting an

esta ment of religion, or prohibiting the free

exercise thereof...”

3

STATEMENT OF CASE

Respondent was committed to the Arkansas

Department of Correction under the name Kevin Robinson

and later had his name legally changed to, Bilal Ali Salaam.

Respondent and another inmate filed a pro se complaint

under 42 U.S.C. §1983, contending that their names were

changed as part of their religion, but that the petitioners

required them to use the names under which they were

committed on their clothing, in “institutional functionings”

and on their mail. Respondents contended that the

petitioners’ commitment name policy abridged their First

Amendment rights. All parties consented ‘o the

Magistrate’s jurisdiction and the case was referred to

Magistrate H. David Young by Order of the Court.

Following a hearing, Magistrate Young entered a

Memorandum and Order in which he made specific findings

of fact and conclusions of law in favor of the Arkansas

Department of Correction. The inmates appealed and

counsel was appointed. On appeal, an a/k/a alternative to the

commitment name policy was first proposed.

The case was then remanded in Salaam v. Lockhart,

856 F.2d 1120 (8th Cir. 1988) for consideration of the analysis

in Turner v. Safley, 482 U.S. 78 (1987) and the a/k/a

alternative proposed by the respondent on appeal. A

hearing was held and the District Court entered its opinion

on July 10, 1989, dismissing one of the plaintiffs and most of

plaintiff's complaint and directing the implementation of a

new mail policy by the Arkansas Department of Correction.

Respondent appealed and petitioners cross-appealed.

The Eighth Circuit reversed the District Court's

finding that the a/k/a alternative was unreasonable and

affirmed the District Court on the cross-appeal. The cross-

appeal on mail policy is not raised in this petition.

4

Petition for rehearing with suggestion for rehearing en

banc was timely filed and denied on July 27, 1990. Due to the

extensive changes in policy and record keeping necessitated

by the Eighth Circuit opinion, a motion to stay the mandate,

pending the filing and the resolution of this petition, has

been filed.

This petition seeks a reversal of the Eighth Circuit opinion

and reinstatement of the findings of the District Court

pursuant to Turner v. Safley, supra.

5

REASONS FOR GRANTING THE WRIT

I. The Eighth Circuit has improperly substituted a

“balancing test” in determining the reasonableness

of a prison policy for the deference standard

enunciated in Turner v. Safley creating a split in the

circuit courts of appeals in the proper application of

Turner.

Upon reciting the Turner standard in their opinion, the

Eighth Circuit adopts a balancing test in footnote 6 of their

opinion where they state:

The reasonableness test does not obviate the

need for accommodation. Reasonableness in this

context refers not only to the relation between the

goals of a regulation and its means, but also to the

balance struck between the needs of the prison

administrators and the constitutional rights of

prisoners. Reed v. Faulkner, 842 F.2d 960, 962 (7th

Cir. 1988) (Posner, J.). “‘In sum, there must be {a]

mutual accommodation between institutional needs

and objectives and the provisions of the Constitution

that are of general application.’ ” Salaam J, 856 F.2d

at 1122 (quoting Hill v. Blackwell, 774 F.2d 338, 340

(8th Cir. 1985), quoting Wolff v. McDonnell, 418 U.S.

539, 556 (1974) ); id. at 1124.

Eighth Circuit Opinion at 5."

‘The Second Circuit in Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir.

1988) upon reciting the Turner standard, states:

This is not a demanding standard, and it implies that if either

Reed is not a sincere Rastafarian or the regulation limiting the

length of male inmates’ hair strikes a reasonable balance

between the interest in religious liberty and the needs of prison

safety and security, he must lose on his free-exercise claim.

(Citations omitted.) (The Court in Reed remands for further consideration

of the case by the District Court.)

6

Petitioners submit that this balancing test is in conflict

with the deference standard enunciated in Turner where

this Court states:

Our task, then, as we stated in Martinez, is to

formulate a standard of review for prisoners’

constitutional claims that is responsive both to the

“policy of judicial restraint regarding prisoner

complaints and [to] the need to protect constitutional

rights.”

Turner v. Safley, 482 U.S. 78, 85 (1987), quoting Procunier v.

Martinez, 416 U.S. 396, 406 (1974).

Proper deference cannot be afforded under a standard

that simply balances institutional needs with the

constitutional needs of prisoners. The balancing test

espoused by the Eighth Circuit results in the court

becoming the “primary arbiter of the best solution to every

administrative problem” which Turner specifically rejects.

Turner at 89. The Supreme Court again emphatically

rejected such a position in O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987) when it states:

We take this opportunity to reaffirm our refusal,

even where claims are made under the First

Amendment, to “substitute our judgment on...

difficult and sensitive matters of institutional

administration.” Block v. Rutherford, 468 U.S. 576,

588, 82 L.Ed.2d 438, 104 S.Ct. 3227 (1984), for the

determinations of those charged with the formidable

task of running a prison.

Id. at 353.

This case was before the Eighth Circuit following a

remand for reconsideration in light of Turner. The Second

Circuit similarly considered a prisoner case following a

remand in light of Turner. The Second Circuit in Fromer v.

Scully, 874 F.2d 69 (2nd Cir. 1989) found the inmate:

7

“Simply [hjas not met [his] heavy burden of showing

that [prison] officals have exaggerated their response to

. . genuine security considerations ... .” Bell v.

Wolfish, 441 US. at 561-62, 99 S.Ct. at 1885-86.

Id. at 76. The Second Circuit properly analyzed and applied

the deference standard enunciated in Turner.

In Fromer, the District Court twice held a prison

religion policy unconstitutional and the Second Circuit

ultimately held it constitutional under Turner. In the

instant case, the District Court twice upheld a prison

religion policy as constitutional and the Eighth Circuit

ultimately ordered the entry of injunctive relief. Petitioners

submit that the Eighth Circuit’s adoption of the balancing

test has created an improper split in the application of the

Turner standard and this Court’s intervention is necessary

to prevent further departure from the standards of this

Court.

Petitioner submits that the Eighth Circuit failed to

properly analyze this case under Turner v. Safley, (which is

developed under the next point) applied an improper

balancing test, and failed to recognize legitimate

government interests in an enforceable policy. As a result

of these mistakes, the Eighth Circuit recommends a

“reasonable alternative” in which inmates are to

acknowledge one name and guards are to acknowledge

another for the same inmate. It is understandable that the

Arkansas Department of Correction finds such a system

unenforceable and the District Court found it unreasonable

in and of itself.

The Arkansas Department of Correction position on

the a/k/a alternative espoused by the Eighth Circuit is that

it is worse than switching entirely to the new names. The

record clearly supports that position. Counsel was

authorized and did explicitly state in oral argument before

8

the Eighth Circuit that the Department would change to the

new names if a constitutional violation was found, but did

not want to adopt the a/k/a designation as an alternative.

No mention is ever made of the fact that the

Department policy is religiously neutral despite such

neutrality being a paramount consideration in Turner at 90;

O'Lone at 351; Pell v. Procunier, 417 U.S. 817 (1974) at 828;

Bell v. Wolfish, 441 U.S. 520 (1979) at 551; and in the recent

case of Employment Div., Department of Human Resources

v. Smith, 108 L.Ed.2d 876, 58 U.S.L.W. 4433 (April 17, 1989).

Muslims committed under their Muslim names are

identified by those names. The a/k/a alternative as

articulated by the Eighth Circuit requires the Department

to discriminate among inmates on the basis of religion by

recognizing only religiously motivated name changes. This

leads to “affinity groups” and charges of favoritism which

were recognized as legitimate security concerns in 0’Lone.

O'Lone supra at 353.

The Department seeks to have a name identity policy

that is the same for all inmates. This concern has been

recognized as legitimate in O’Lone and in the Second

Circuit in Fromer v. Scully, supra, at 76.

The a/k/a alternative at issue in this case was first

raised on appeal. Salaam v. Lockhart, 856 F.2d 1120, 1123

(8th Cir. 1988). Although not a procedural bar to its

consideration on remand, the proposed alternative has had

a simplistic theoritical appeal to the Eighth Circuit which is

not supported by the very legitimate administrative

concerns faced by the Department. “[I]n the absence of

substantial evidence . . . to indicate that the officials have

exaggerated their response . . . courts should ordinarily

defer to their expert judgment... .” Turner at 86 quoting

Pell v. Procunier, 417 U.S. 817, 827 (1974). (Emphasis added.)

Pursuant to Turner, the Eighth Circuit has failed to

exercise proper judicial restraint in this case and has not

applied the proper standard of review.

9

II. The Eighth Circuit improperly applied the Turner

analysis to a “reasonable alternative” and then failed

to analyze the prison policy itself.

This case was remanded to the District Court for

review of the Arkansas Department of Correction’s

commitment name policy in light of the four criteria

enunciated in Turner v. Safley, 482 U.S. 78 (1987) and an

“a/k/a alternative” which was proposed during the first

appeal. Salaam v. Lockhart, 856 F.2d 1120, 1123 (8th Cir.

1988}.

The commitment name policy as espoused by the

Arkansas Department of Correction is simply that all

inmates are to be identified for departmenta! purposes by

the names on their original commitment papers. The a/k/a

alternative as espoused by the plaintiff in this case was that

he was to be addressed and recognized by his Muslim name,

but he would “compromise” and allow his commitment name

to remain on his clothing and records as well as the new

name. The a/k/a alternative as articulated by the Eighth

Circuit is that the Department would be required to add

new additional names to inmate clothing and records for

Muslim inmates.

It is this dual identity system which Defendant

Lockhart found to be impossible to enforce as it was

confusing and set up inherent confrontational problems

between guards and inmates. This testimony as to such

confusion and confrontational problems was accepted by the

District Court and formed the basis of its finding the a/k/a

alternative unreasonable in and of itself.

The a/k/a designation is unworkable and would lead to

further litigation. The Eighth Circuit even recognizes this

problem when it proposes that the a/k/a alternative could be

withdrawn from inmates not responding to their

commitment names and that guards should be encouraged

to use the new names and should not bait inmates by the use

of their commitment names.

10

The Eighth Circuit contradicts itself in it’s analysis.

The Court states first and correctly that the validity of the

policy itself is at issue and not how it is applied to Salaam.

The Court then improperly analyses the case and states in

apparent contradiction of that standard of review that

Salaam’s new name would not cause a net increase in the

incidence of confrontation. It is the a/k/a alternative itself

which would cause an increase in confrontations even if it

didn’t cause Salaam to be involved in any confrontations.

The Court even recognizes that Lockhart’s concerns are not

unfounded, but seeks to salvage an individual's rights

without any acknowledgement of the Department’s need to

have an enforceable policy.

The Eighth Circuit states in a footnote that the District

Court made no finding on the claim that the a/k/a alternative

would lead to confusion. They only looked at that sub-issue

as it related to records. The District Court found

specifically that such a designation could lead to confusion

by officers and other inmates. District Court Opinion at 6. If

both names are officially recognized, are both names not

required to be used in all the myriad details of prison life?

Lockhart directed his testimony to that scenario and

concluded that such a policy could not be enforced. The

District Court recognized the potential for confrontation

and confusion in the a/k/a alternative.

Mr. Lockhart was very candid in admitting that in the

best of all possible worlds there might be few problems with

the a/k/a alternative, but prisons do not represent the best

of all possible worlds—far from it. “[T]he problems of

prisons in America are complex and intractable, and more

to the point, they are not readily susceptible of resolution

by decrees.” Procunter v. Martinez, 416 U.S. 396, 404-405

(1974).

Although acknowledging the four factors in Turner,

the Court's actual analysis fails to follow those guidelines.

The Court’s analysis is not whether the Department's

11

commitment name policy is reasonable, but whether its

rejection of the a/k/a alternative is reasonable. The Court

concludes that the magistrate “overestimated the

administrative interest in the policy” and “underestimated

the significance of the religious right.” Eighth Circuit

Opinion at 10. Even central tenents of religion such as

Jumu’ah prayer for Muslims does not require prison

officials “to sacrifice legitimate penological objectives.”

O'Lone at 351-352. Their subsequent analysis is of

Lockhe™t’s concerns about the a/k/a alternative, not the

commitment name policy itself. Petitioner respectfully

submits that the Eighth Circuit incorrectly narrowed the

scope of this case and incorrectly applied a balancing test

(as developed in the previous point) to reach an

“accommodation” between the parties. In the Department’s

view, this “accommodation” is worse than a finding of a

constitutional violation.

The magistrate did not ‘overestimate the

administrative interest in the policy”, he afforded proper

deference to the judgment of the prison officials. The

Eighth Circuit in their analysis of the a/k/a alternative

impermissibly shift the burden to the Department officials

to “set up and shoot down” the a/k/a alternative; an

approach rejected in O’Lone, supra, at 350. The clearest

example of this impermissible shift in the burden of proof is

where the Eighth Circuit goes through listing where there

is “no evidence” to support Lockhart’s concerns. Eighth

Circuit Opinion at 11. Such a strict scrutiny analysis

seriously hampers prison officials’ ability to anticipate

security problems which Turner holds to be improper. Jd. at

89.

The Eighth Circuit found a “lack of evidence” of how

many inmates are similarly situated to respondent. In

Fromer v. Scully, 874 F.2d 69, 76 (2nd Cir. 1989), the Second

Circuit specifically held that the District Court

impermissibly shifted the burden of proof to the

Department officials to establish that a large number of

12

Orthodox Jews were affected by the policy in question

there. The District Court in the instant case properly

analyzed the Department’s concerns and the inmates’

rights. It is the Eighth Circuit that underestimated such

concerns, failed to defer to officials’ justment and

improperly shifted the burden of proof to the Department.

Even if the Eighth Circuit properly found the a/k/a

alternative reasonable, the Turner analysis is not complete.

The presence of a reasonable alternative may be considered

as evidence that the Department's policy is an exaggerated

response — it is not automatically determinative. In addition

to the neutrality of the commitment name policy which is

important to the first Turner factor, the Eighth Circuit

never acknowledges the substantial evidence in the

Department’s favor on the second and third Turner factors,

i.e. numerous alternative means of exercising their religious

rights and the “ripple effect” which would be triggered by

the recognition of any and all name changes.

Where is the substantial evidence of an exaggerated

response? The Eighth Circuit did not analyze the record in

that manner. Instead, it substituted its own judgment in an

area “ill-suited to ‘resolution by decree.’ ” O’Lone, 107 S.Ct.

at 2404-05 quoting Procunier v. Martinez, 416 U.S. at 405.

Petitioner respectfully submits that the District

Court’s analysis is correct in this case and requests that the

a

ries

ee

—.

Se nee a ee

13

CONCLUSION

The petition for Writ of Certiorari should be granted.

Respectfully submitted,

JOHN STEVEN CLARK

Arkansas Attorney General

*LESLIE M. POWELL

Assistant Attorney General

200 Tower Building

323 Center St.

Little Rock, Arkansas 72201

(501) 682-2007

ATTORNEYS FOR PETITIONERS

*Counsel of Record

14

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 89-2341/2355EA

Bilal Ali Salaam, etc., et al., "

.

Appellants/cross-appellees, *

* Order Denying Petition

vs. * For Rehearing and

* Suggestion For

A.L. Lockhart, etc., et al., * Rehearing En Banc

*

Appellees/cross-appellants. *

Appellees/cross-appellants’ suggestion for rehearing en

banc has been considered by the court and is denied by reason

of the lack of a majority of the active judges voting to rehear

the case en banc.

Petition for rehearing by the panel is also denied.

July 27, 1990

Order Entered at the Direction of the Court:

/s/ Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth Circuit.

B-1

APPENDIX B

No. 89-2341

Bilal Ali Salaam, a/k/a ”

Kevin Robinson AND Khalil °

Al-Baagee Saleem Abdullah, °

a/k/a Willie Blevins, °

*

Appellants, * Appeal From the United

* States District Court

v. * for the Eastern

* District of Arkansas.

A.L. Lockhart, Superintendent *

of Arkansas Department of °

Correction, AND Larry Norris, °

Warden, Maximum Security Unit, *

Arkansas Department of °

Correction, °

*

Appellees. °

No. 89-2355

Bilal Ali Salaam, a/k/a Kevin .

Robinson AND Khalil Al-Gaagee *

Saleem Abdullah, a/k/a Willie °

Blevins, °

e

Appellees, .

oa

Vv. *

*

A.L. Lockhart, Superintendent *

o

of Arkansas Department of

B-2

Correction, AND Larry Norris, °

Warden, Maximum Security Unit, *

Arkansas Department of °

Correction, *

*x

Appellants. °

Submitted: February 15, 1990

Filed: June 13, 1990

I.

Before ARNOLD, Circuit Judge; HEANEY, Senior Circuit

Judge; and BOWMAN, Circuit Judge.

HEANEY, Senior Circuit Judge.

In 1984, while incarcerated in an Arkansas state prison,

Bilal Ali Salaam had his name legally changed by a state court

after he converted to the Islamic faith. Salaam brought a pro se

suit in 1986 seeking injunctive relief from the policy of

Arkansas prison authorities to use only committed names on

prison records and clothing, and in the mail room. The district

court refused to appoint counsel and denied the claim in all

respects. We reversed and remanded the matter for

consideration under Turner v. Safley, 482 U.S. 78 (1987).

Salaam v. Lockhart, 856 F.2d 1120, 1123 (8th Cir. 1988) (Salaam

I). In particular, we noted that the easy availability of an “a/k/a

alternative,” the addition of Salaam’s new name following his

committed name on his clothing, in the prison records, and on

the mail room delivery lists, might prove that the present

prison policy was unreasonable. Jd. The magistrate held a

hearing and determined that the mail room policy was

unreasonable but that the prison could continue to refuse to add

B-3

Salaam’s new name to his committed name in its files and on his

clothing.’ We hold that the state authorities must deliver mail

to Salaam addressed to him only as Salaam and must allow the

addition of Salaam’s current name to his clothing. The state,

however, need reform its record keeping only to the extent

necessary to allow Salaam to receive services and information

in his new name within the prison.

[P}rison is a complex of physical arrangements and of

measures ... which determine the total existence of

certain human beings (except perhaps in the realm of

the spirit, and inevitably there as well) from

sundown to sundown, sleeping, waking, speaking,

silent, working, playing, viewing, eating, voiding,

reading, alone, with others. It is not so with

members of the general adult population. State

governments have not undertaken to require

members of the general adult population to rise at a

certain hour, eat at certain hours, live for periods

with no companionship whatever, wear certain

clothing, or to submit to oral and anal searches after

visiting hours, nor have state governments

undertaken to prohibit members of the general adult

population from speaking to one another, wearing

beards, embracing their spouses, or corresponding

with their lovers.’

Nevertheless, “[p]rison walls do not form a barrier

separating prison inmates from the protections of the

constitution.” Turner, 482 U.S. at 84. Among those rights

that they possess, prisoners retain the right to the free

exercise of religion. O’'Lone v. Estate of Shabazz, 482 U.S.

342, 348 (1987).

‘The magistrate also dismissed the claim of a second plaintiff, who had

been paroled, for failure to prosecute. He does not appeal.

*Morales v. Schmidt, 340 F.Supp. 544, 550 (W.D. Wis. 1972) (Doyle,

J.), rev'd 489 F.2d 1335 (7th Cir. 1973) (remanded for consideration under a

different standard).

BI

Salaam subscribes to the Islamic faith.? He

understands his faith to require his name to take on one of

the attributes of God, and he finds his former name

offensive to his beliefs. Tr. at 11-12.‘ A personal name is

special. It may honor the memory of a loved one, reflect a

deep personal commitment, show respect or admiration for

someone famous and worthy, or, as in this case, reflect a

reverence for God and God’s teachings. Like a baptism, bar

mitzvah, or confirmation, the adoption of a new name may

signify a conversion and the acceptance of responsibilities

of membership in a community. The defendants do not

contest that Salaam’s name change was religiously

motivated, that his new name has spiritual significance, or

that their policy infringes on his free exercise rights.°

Instead, they argue that the policy reasonably reflects the

state’s interest in security and administrative efficiency.

Prison regulations that infringe on the constitutional

rights of prisoners are judged by their reasonableness.

Prison officials are not required to choose the least

restrictive means possible in furthering administrative

interests. Thornburgh v. Abbott, 490 U.S.__, 104 L.Ed.2d

He identifies his affiliation as being with the world community of

Islam and indicated that he is not a member of me particular sect.

Hearing Transcript 32 (May 22, 1989) (Tr.).

““The adoption of Muslim names by inmates practicing that religion

is generally recognized to be an exercise of both first amendment speech

and religious freedom.” Felix v. Rolan, 833 F.2d 517, 518 (5th Cir. 1987)

(per curiam) (citing cases); see also Azeez v. Fairman, 604 F.Supp. 357, 361

(C.D. Ill. 12°5), rev'd in part, 795 F.2d 1296 (7th Cir. 1986) (damage award

overturned on qualified immunity grounds). It is common practice for a

convert to change his name as the Koran provides, and the former Anglo

name is thought to be a badge of a spiritually unenlightened state and a

relic of slavery. Masjid Muhammad-D.C.C. v. Keve, 479 F.Supp. 1311,

1321-22 (D. Del. 1979). New names are generally drawn from the ninety-

nine attributes of God. See Maulana Muhammad-Ali, The Religion of

Islam 159 (1983) (listing).

5See Salaam I, 856 F.2d at 1124 (affirming the magistrate’s

exclusion of an expert witness on the Muslim faith because of the

defendants’ concessions).

B-5

459, 471 (1989); O’'Lone, 482 U.S. at 350; Turner, 482 U.S. at

90-91. We consider four factors to determine if the

regulation is reasonable: (1) whether it rationally and

actually advances a neutral and legitimate government

interest; (2) whether the prisoner has alternative means of

exercising the same right; (3) the effect proposed

accommodations will have on prison resources; and (4)

whether the existence of “obvious, easy alternatives” that

impose a de minimis cost reflect the regulation’s lack of

reasonableness. Turner, 482 U.S. at 89-91.

Our usual prefatory declaration that prisoners retain

certain basic constitutional rights has meaning. We would

misconstrue the recent Supreme Court decisions in A bbott,

O'Lone, and Turner if we deferred not only to the choices

between reasonable policies made by prison officials but to

their justifications for the policies as well. “ ‘{[A]

reasonableness standard is not toothless,” Abbott, 104

L.Ed.2d at 473 (citing the government’s certiorari petition).

We must make sure after an independent review of the

evidence that the regulation is not an exaggerated response

to prison concerns. Abbott, 104 L.Ed.2d at 476; Turner, 482

U.S. at 96-99 (finding Missouri prison marriage reculations

unreasonable after an independent review of the evidence).

While we may not invalidate a regulation because we can

imagine a more refined one, constitutional rights should be

accommodated. We cannot validate prison regulations that

are clearly broader in their scope or significantly more

burdensome in effect than reasonable alternatives. Turner,

482 U.S. at 91 (relatively unburdensome alternatives can

demonstrate unreasonableness).* Nor do alternatives have

®The reasonableness test does not obviate the need for

accommodation. Reasonableness in this context refers not only to the

relation between the goals of a regulation and its means, but also to the

balance struck between the needs of the prison administrators and the

constitutional rights of prisoners. Reed v. Faulkner,842 F.2d 960, 962 (7th

Cir. 1988) (Posner, J.). “ ‘In sum, there must be [a] mutual accommodation

between institutional needs and objectives and the provisions of the

Constitution that are of general application.’ ” Salaam I, 856 F.2d at 1122

(quoting Hill v. Blackwell, 774 F.2d 338, 340 (8th Cir. 1985), quoting Wolff

v. McDonnell, 418 U.S. 539, 556 (1974) ); id. at 1124.

B6

to be entirely cost-free; costs that are insubstantial in light

of the overall maintenance of the prison are acceptable.

In the necessarily closed environment of the

correctional institution, few changes will have no

ramifications on the liberty of others or on the use of

the prison’s limited resources for preserving

institutional order. When accommodation of an

asserted right will have a significant “ripple effect”

on fellow inmates or prison staff, courts should be

particularly deferential... .

. . . By the same token, the existence of

obvious, easy alternatives may be evidence that the

regulation is not reasonable, but is an “exaggerated

response” to prison concerns.

Turner, 482 U.S. at 90. Our review is plenary. Benzel v.

Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989); Salaam I, 856

F.2d at 1122; Whitney v. Brown, 882 F.2d 1068, 1071 (6th

Cir. 1989).’

II.

In our previous opinion, we noted the use of the a/k/a

alternative in other cases and by the parties before us on all

of their legal papers. Salaam I, 856 F.2d at 1123. We

remanded this case for consideration of the a/k/a

alternative, concluding that “[i}t may be that the a/k/a

designation is the sort of ‘obvious, easy alternative’ which

the Supreme Court specifically has directed the courts to

examine under the fourth prong of the Turner criteria.” Id.

"We do not believe that the Supreme Court's recent decision in

Employment Div., Dept. of Human Resources v. Smith, 108 L.Ed.2d 876,

58 U.S.L.W. 4433 (April 17, 1989), affects our analysis. Smith does not

alter the rights of prisoners; it simply brings the free exercise rights of

private citizens closer to those of prisoners.

Bete -

B-7

A.

On remand, Salaam explained the spiritual and

practical significance of having the prison recognize his

name change. In addition, he testified that he had not

received mail sent to him under the name of Salaam. Tr. at

14, 24. He also indicated that he had been unable to cash

money orders sent under that name. Tr. at 14. Salaam was

most concerned that the prison recognize on his outer file

jacket his new name and that he receive the normal

incidents of recognition, including mail delivery and the

cashing of money orders. Tr. at 50; id. at 28-29. Salaam

testified that he could be called both names and that he

would have no adverse reaction to the use of his former

name, although he prefers his new name. Tr. at 20, 132. The

inclusion of Salaam’s new name on his clothing also would

make it easier for his fellow inmates to call him by that

name.

The Director of the Arkansas Department of

Corrections, A.L. Lockhart, testified on his own behalf. He

explained that there was a main file or jacket maintained at

each institution for the incarcerated individual, arranged

alphabetically, as well as other subsidiary files maintained

in different locations respecting each inmate. Tr. at 54-55.

Lockhart indicated that all files and forms included the

inmate’s commitment number, and the same number

appears together with the inmate’s name on his clothing.

Tr. at 60, 111. He indicated that the file jacket also currently

includes the aliases of each inmate. Tr. at 56. Lockhart

testified that he was not sure what the a/k/a alternative

would entail in terms of changes but that he was opposed to

it. Tr. at 60. He estimated that there could be as many as 400

or 450 Muslim inmates throughout Arkansas prisons. Tr. at

52 (also noting that the figure is disputed). We set forth his

concerns with respect to each aspect of the case.

Lockhart’s primary reason for opposing the use of the

a/k/a alternative on institutional files is his belief that all

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files would have to be changed and that it would be a burden

to always write two names on any form. Tr. at 61-62, 71,

92-98; id. at 74 (no matter what relief was asked for, it would

not “stop there”). In addition, he is concerned that adding a

new name to files would cause confusion. For example, he

argued that changing the prison record keeping would hurt

the prison’s ability to provide information to other law

enforcement agencies during escapes or in reference to

other inquiries. Tr. at 99. He is also concerned that inmates

could be uncooperative if any paperwork they receive does

not contain their new name. For example, he testified that

he believed that if a parole order came in an inmate's former

name, the inmate would refuse to leave prison. Tr. at 118.

There was little testimony specific to mail delivery lists.

Lockhart also objects to the inclusion of changed names

on inmate clothing. He believes that if guards persisted in

using an inmate’s former name, confrontations might occur.

Tr. at 62, 71-72, 87. He is also concerned that it would

frustrate inmate identification if an inmate were identified

by only a new name and officials could not find the new

name in their files. Tr. at 58.

The magistrate agreed with the defendants that the

prison had a valid interest in accurate files, clothing that

readily displayed an inmate’s name for identification

purposes, and efficient mail delivery. Memorandum and

Order 3-4 (E.D. Ark. July 10, 1989). The magistrate

concluded that continued use of an inmate’s committed

name validly and rationally furthered these interests.

Without further analysis, the magistrate concluded that the

prison’s policy satisfied the first Turner factor. The

magistrate decided that the second Turner factor also

favored the defendants because Salaam had the opportunity

to practice other aspects of his faith. Jd. at 4. The

magistrate concluded that the third Turner factor similarly

favored the prison policy. He noted that there were 400-450

Muslim inmates and predicted that “those Muslim inmates

similarly situated to the plaintiff would insist upon such

B-9

alteration,” in part, to clog the system. He predicted a “tidal

wave of unproductive paperwork.” /d. at 5. Finally, the

magistrate concluded that the a/k/a alternative was itself

unreasonable. With respect to record keeping, the

magistrate felt that the paperwork was more onerous than

any infringement of religious liberty. Jd. at 6. The

magistrate also concluded that the addition of a second

name to clothing would seriously jeopardize institutional

security by leading to confusion in the filing of reports and

by provoking confrontations when guards continued to use

an inmate’s committed name. /d. at 7-8. The court

concluded, however, that the inclusion of an inmate’s new

name on prison mail lists would not compromise any valid

institutional interest. Jd. at 8.

B.

We agree with the magistrate that the validity of the

policy itself, rather than the way it was applied to Salaam, is

at issue. Accordingly, it was correct to analyze the potential

effects of a change in the policy for similarly situated

prisoners, even though this is not a class action. We also

agree that other ways of exercising his religion remain open

to Salaam. Nevertheless, we are unable to agree with some

of the magistrate’s conclusions.

First, the magistrate failed to appreciate the scope of

the relief sought. For example, with respect to the first

Turner factor, the magistrate analyzed only the state’s

interest in continued use of an inmate’s committed name. Jd.

at 3. That is not at issue, because Salaam does not request

that the prison discontinue using his committed name.

Similarly, the Director of the Arkansas Department of

Corrections, A.L. Lockhart, seemed confused as to the

scope of the action. He did not always understand that

Salaam agreed that the committed name would remain in

use on the files. Tr. at 117. Lockhart’s claim that the prison

would be unable to assist law enforcement agencies during

escapes under the a/k/a alternative presumes either the

zz

B-10

elimination of the committed name or the forced

reorganization of the prison’s internal records under

Salaam’s new name. Neither is requested.

Second, it is apparent from the language of the

magistrate’s decision that he may have improperly

discounted the importance of the right at issue when

balancing it against the administrative burden of adding

Salaam’s new name to the records. See Order at 56

(“unproductive paperwork;” “remote benefit to plaintiff's

religious freedom”). In our first decision, we affirmed the

magistrate’s decision to exclude Salaam’s expert witness

who would have testified regarding the tenets of Islam.

Salaam I, 856 F.2d at 1124. With no evidence in the record

on the significance of a changed name other than Salaam’s

testimony, the magistrate could not minimize the religious

importance of a conversion name, unless Salaam’s

testimony was unbelievable — which it is not.

We conclude that the magistrate overestimated the

administrative interest in the policy and the effects of

changing it and underestimated the significance of the

religious right. We address Lockhart’s concerns seriatim.

Initially, Lockhart is concerned with the

administrative burden of making changes to institutional

files. He never, however, estimated how much time it would

take to make changes. Tr. at 130. He agreed that all that

would have to be done is to type in the new name on each

file. Tr. at 75. Even under the assumption that all

paperwork would have to be changed, Lockhart testified

that less than an hour of work per inmate would be

required — how much less we do not know. Tr. at 76. Even if

we accept his view that the prison could not stop at simply

changing the jacket, the magistrate found that there were

only eight active prison files. Order at 5. The burden of

adding Salaam’s new name to files and lists, while not

imaginary, is nevertheless not onerous. Moreover, the

prison is not required to change Salaam’s name wherever it

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B-11

appears. In light of the relief requested, the prison must add

his new name only to his file jacket and to lists with which

inmates have fiequent contact within the prison. The

paperwork burden is minimal and we disagree with the

magistrate’s conclusion that the burden of changing eight

folders is significant even where there are few requests for

name changes. See id. at 5-6 (paperwork burden onerous

even where minimum “ripple” effect); cf. McCabe v. Avare,

827 F.2d 634, 638 (9th Cir. 1987) (storage and handling of

books and study materials for inmate religious group

imposes de minimis burden on prison resources). Our

conclusion is buttressed by the prison’s present practice of

recording all aliases and using inmate commitment numbers

in addition to committed names in its filing system.®

The magistrate also predicated his findings regarding

the administrative burden of changes on Lockhart’s belief

that inmates similarly situated to Salaam would request use

of the a/k/a alternative and Lockhart’s estimate that there

were 400-450 Muslims incarcerated statewide. There are

several problems with this reasoning. First, there is no

evidence in the record regarding the number of prisoners

situated similarly to Salaam. The relevant group of

similarly situated prisoners is composed of prisoners who

will change faiths while incarcerated, adopt new names

incident to their conversion that are legally cognizable, and

request an accommodation. There was no evidence as to

how many Muslim prisoners already had religiously

inspired names. Many Muslim prisoners may have been

committed under their Muslim names. Lockhart testified

that he did not know how many prisoners have changed

®The magistrate made no finding with respect to Lockhart’s claim

that the use of an a/k/a alternative would lead to filing confusion, an

inability to properly assist law enforcement agencies in identifying

inmates during an escape, or the refusal of inmates to leave the prison if

their release order came in their former name. As indicated, the prison is

not required to reorganize its files. Moreover, we imagine that the

inclusion of a new name, much like the recording of an alias, would be of

value to other agencies.

B-12

their names in the past. Tr. at 82. Second, there was no

evidence that all name change requests would be granted

by state courts simultaneously. There was no showing that

additional paperwork by prison authorities would have to

be done all at the same time. Third, the prison has the right

to contest the sincerity of any name change. Fourth, there is

no additional evidence in the record to support the theory

that inmates will change names with malicious intent.

Finally, given the minimal effort necessary to implement

the alternative for each eligible inmate, even if many

inmates over time requested accommodations, we cannot

agree that this would make the current policy respecting

record keeping reasonable. We believe in this regard that

Lockhart’s testimony and the magistrate’s finding that

hundreds of inmates would clog the system consist of

conjecture and “the piling of conjecture upon conjecture.”

Reed v. Faulkner, 842 F.2d at 963.

Accordingly, we disagree with the magistrate’s

conclusion that the paperwork burden outweighs Salaam’s

religions interest in the use of his new name. We hold that

the a/k/a alternative proves that the prison policy of

excluding new names from its files and internal lists is

unreasonable. For this reason, we affirm the magistrate’s

finding with respect to the mail lists. Other courts have

reached similar conclusions. Barrett v. Virginia, 689 F:2d

498, 503 (4th Cir. 1982) (name change prohibition

unreasonable); Azeez v. Fairman, 604 F.Supp. at 361 (a/k/a

alternative protects administrative interests); Masjid

Muhammad-D.C.C. v. Keve, 479 F.Supp. at 1324; id. at 1325

(mail); see also Felix v. Rolan, 833 F.2d at 519 (prison’s a/k/a

alternative reasonable accommodation).

Our conclusion that the prison’s refusal to alter its

current record keeping practices is unreasonable is

buttressed by the restrictiveness of the policy relative to

the valid prison interests recognized by Arkansas’ elected

officials. At the time Bilal Ali Salaam changed his name,

Arkansas allowed any citizen to petition a court for the

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name change. Ark. Stat. Ann. § 9-2-101(a) (1987). State law

provided that “[aJny person whose name may be so changed

by judgment or decree of any of the courts shall afterward

be known and designated, sue and be sued, plead and be

impleaded, by the name thus conferred.” Ark. Stat. Ann. §

9-2-102 (1987). In 1985, Arkansas amended section 101(a) to

deprive its courts of the power to grant name changes

requested by state prisoners. In 1987, Arkansas removed

the 1985 amendment to section 101(a), and instead amended

section 102 to require that regardless of name changes, the

“records of persons under the jurisdiction and supervision

of the Department of Correction shall continue to reflect the

name as committed to the Department's jurisdiction and

supervision ..." See Ark. Stat. Ann. §§ 9-2-101, 9-2-102

(Supp. 1989). State law thus does not prohibit the addition of

a second name to prison records. After repeated

consideration in recent years, Arkansas has made a

deliberate judgment to permit inmates to change their

names, providing only that prison authorities may continue

to use committed names in prison records. The policy of the

Department of Corrections with respect to its records thus

far exceeds in its scope the administrative interests

recognized by state law. The a/k/a alternative which

permits continued use of committed names in prison records

as Arkansas requires demonstrates the unreasonableness

of the current practice.

Next, Lockhart opposes the addition of Salaam’s new

name where his former name and commitment number

appear on his clothing. Lockhart fears confrontation and

_ misidentification. He testified that there would be no

problem using the committed name, commitment number,

and new name together on clothing provided that the

inmates would respond to any of three. Tr. at 60-61. He

doubted that inmates would remain congenial, however,

when called by their former name. Tr. at 62. He also

testified that guards who called Salaam by his new name at

present were violating department policy which allows only

the name or number on the inmate’s shirt to be used. Tr. at

65; id. at 86 (not strictly enforced).

N —

B-14

The potential for confrontation exists under the

present system because the current policy prohibits guards

from ever using Salaam’s legal name. Lockhart testified

that there are currently inmates who will not respond to

their committed names. Tr. at 62. The a/k/a alternative, in

contrast, grants guards the ability to use the name an

inmate wishes to be called by and makes his name

immediately observable. We cannot say, however, that

Lockhart’s concerns are unfounded. Some inmates might

take an opportunity to cause trouble. It is not apparent,

however, why the addition of Salaam’s new name would

cause a net increase in the incidence of confrontation.

Moreover, if the rights of those who would cooperate could

be sacrificed in fear of those who would cause trouble under

any regime, officials could ignore any individual right.

Inmates do not abandon their rights to individualized

judgments about their behavior. Salaam has testified that

he would respond to his former name, his commitment

number, or his new name. Lockhart offered no evidence that

Salaam has ever caused a problem since 1984, when his

name was changed. Existing policies give prison officials

the right to discipline those who do not follow orders. The

prison may certainly withdraw the a/k/a alternative from

any prisoner who is informed that he must respond to a

former name and who repeatedly fails to do so. We also wish

to emphasize that, in the alternative, guards can be

instructed to make an effort to use prisoners’ lega! names.

Guards should not deliberately “bait” inmates, and we cannot '

justify the prison policies on any such propensity. The

imposition on the prison staff would be clearly de minimis.°

We similarly cannot accept Lockhart’s fear of

misidentification. The a/k/a alternative does not eliminate

the display of the committed name and number on the

inmate’s clothing. To the extent a disciplinary violation is

reported only under an inmate’s new name, there should be

*The policy the defendants ultimately develop will no doubt be

consistent with their desire to avoid confro tational situations.

B-15

no problem in identifying the inmate because under the

a/k/a alternative, the prison must also record the new name

in its files. Lockhart’s fear is based on the current record

keeping practice.

Q. I take it from that you mean that if Bilal was to

attack another inmate and that inmate came to you

and said, “This guy named ‘Bilal’ attacked me,” and

you would go through your records and you couldn't

find anybody named Bilal; is that —

A. That's correct.

Tr. at 58. Moreover, the situation is no different from that

which currently exists with the use of nicknames within the

prison. We find the refusal of the defendants to add

Salaam’s legal name to his clothing to be unreasonable.

Ill.

Accordingly, the judgment of the magistrate is

affirmed in part and reversed in part. This matter is

remanded to the magistrate for the entry of injunctive

relief consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

(Filed July 10, 1989)

(Carl R. Brents, Clerk)

BILAL ALI SALAAM, a/k/a

Kevin Robinson, and

KHALIL AL-BAAQEE, a/k/a

Willie Blevins PLAINTIFFS

V. CASE NO. PB-C-86-199

LARRY NORRIS, Warden, Tucker Maximum

Security Unit, and A.L. LOCKHART,

Director, Arkansas Department of

Correction DEFENDANTS

JUDGMENT

Pursuant to the Memorandum and Order filed this

date, judgment is hereby entered directing the Arkansas

Department of Correction to implement a policy which will

allow Muslim inmates to receive mail in their legally

changed post-commitment name. The remainder of the

plaintiff's complaint is dismissed.

DATED this 10th day of July, 1989.

/s/ H. David Young

, United States Magistrate

THIS DOCUMENT ENTERED ON DOCKET SHEET IN

COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP

ON 7/11/89 BY /s/ M. JOHNSON

D-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

(Filed July 10, 1989)

(Carl R. Brents, Clerk)

BILAL ALI SALAAM, a/k/a

Kevin Robinson, and

KHALIL AL-BAAQEE, a/k/a

Willie Blevins PLAINTIFFS

V. CASE NO. PB-C-86-199

LARRY NORRIS, Warden, Tucker Maximum

Security Unit, and A.L. LOCKHART,

Director, Arkansas Department of

Correction DEFENDANTS

MEMORANDUM AND ORDER

This 42 U.S.C. § 1983 action is before the Court upon

remand from the Court of Appeals. In his complaint,

plaintiff' alleges that he has legally changed his name, but

that the defendants have instituted a “committed name”

policy which unconstitutionally infringes upon his freedom

of religion.’ Specifically, he complains about the Arkansas

Department of Correction (ADC) policies of (1) refusing to

‘Khalil Al-Baaqee was originally a party to this action, but, after his

parole, he apparently lost interest in the litigation. as evidenced by his

failure to appear at the evidentiary hearing. This failure to appear

constitutes a failure to prosecute on the part of Al-Baagee and the

complaint, as to him, is dismissed. He, of course, would have been entitled

to no injunctive relief, in any event, since he is no longer subject to ADC

rules and regulations.

“It is worthy of note, with respect to any suggestion that the

Muslim believers are being discriminated against generally within the

ADC, that an inmate who enters the ADC with a Muslim name is known

officially by this committed name.

D-2

alter inmate institutional records to reflect the Muslim

name; (2) refusing to allow an inmate to have his Muslim

name on his clothing; and (3) insistence of the ADC that mail

contain an inmate’s former name as well as his Muslim

name. Plaintiff, in his original and amended complaint, also

asserted that he suffered harassment as a result of his name

change. However, this latter allegation was previously

resolved against the plaintiff by this Court, and that

determination was not disturbed on appeal. At any rate, at

the most recent hearing with regard to this harassment

claim, no credible proof was introduced which corroborated

any such harassment.

In part, this case was remanded because of the

Supreme Court’s decision in Turner v. Safley, 107 S.Ct. 2254

(1987), which was rendered while plaintiff's appeal was

pending. This case set forth four factors which must be

considered in determining whether the ADC policy

impermissibly infringes upon plaintiff's First Amendment

rights. Those factors are:

(1) whether there is a valid, rational connection

between the regulation and legitimate governmental

interest put forward to justify it;

(2) whether alternative means of exercising their

rights remain open to the prisoners;

(3) whether accommodation of the asserted rights

will trigger a “ripple effect” on fellow inmates and

prison staff; and

(4) whether a ready alternative to the regulation

would fully accommodate the prisoners’ rights at de

minimins cost to the valid penological interest.

Additionally, the remand directed that this Court consider

plaintiffs suggested “a/k/a alternative,” which was not

advanced until after he took an appeal of this Court’s earlier

decision denying relief. In particular, this alternative must

D-3

be reviewed in light of the fourth Turner v. Safley factor set

forth above. Is the a/k/a designation a ready alternative to

the regulation which would fully accommodate the

plaintiff's rights at a de minimis cost to the valid penological

interest? An evidentiary hearing was held, and the

following constitute the Court’s findings of fact and

conclusions of law herein.°

A valid, rational connection exists between the

challenged ADC policies and the legitimate government

interests espoused by the ADC.‘ As far as the maintenance

of institutionnal files, the ADC obviously has a legitimate

governmental interest in accurate and manageable files.

The need for ready access to the many files generated by

each inmate is obvious. The need for a single identifying

system was emphasized by the fact that each inmate

generates several separate institutional files. To avoid

confusion, a simple system must be employed.

Legitimate identification and security reasons were

advanced by the Department in defense of its requirement

that an inmate’s committed name appear on his clothing.

Without an accurate method of identifying inmates,

correctional officers would be at a serious disadvantage in

attempting to maintain order and security. In particular,

officers would be unable to issue direct orders and assess

institutional disciplinaries.° Without a ready, reliable basis

for inmate identification, an officer could easily be confused

or misled in his attempt to maintain security and discipline.

°The findings of fact and conclusions of law made in the Court’s

December 3, 1986, Memorandum and Order are incorporated by reference

herein.

“The Court’s December 3, 1986, Memorandum and Order described

these reasons as compelling when it reviewed the regulations at issue

under a more heightened scrutiny than that called for under Turner v.

Safley.

‘It should be noted that, during cross-examination, plaintiff's

counsel informed Mr. Lockhart that he didn’t question the sincerity of

Lockhart’s security concerns.

1)-4

The ADC also offered a legitimate reason for its policy

of requiring that an inmate’s committed name appear on his

mail. This requirement enhanced the Department’s

legitimate effort to effectively and efficiently make delivery

of mail to inmates.

The second Turner v. Safley factor weighs in favor of

the ADC regulations at issue because the Muslim inmates

have a number of alternative means of exercising their

religious rights. Muslim inmates have opportunities

ranging from personal devotion to group services conducted

by an ADC-paid Muslim chaplain. Additionally, these

inmates are allowed to observe Jumah Prayer and religious

feasts and to receive religiously acceptable diets. In fact, as

described in the Court’s December 3, 1986, Memorandum

and Order, the ADC regulations at issue have only a

minimal effect upon plaintiff's freedom to practice his

religion.

The third Turner v. Safley factor (whether

accommodation of the asserted right will trigger a “ripple

effect” on fellow inmates and prison staff) also weighs in

favor of the ADC’s posture in this case. There are

approximately 400-450 Muslim inmates within the ADC.

Each inmate has at least eight active files (inmate jacket,

work assignment, grievance, vocational rehabilitation,

visitation, internal affairs, medical, mental health), and his

name appears on a number of daily lists (sick call, doctor's

call, work call, visitation, court, classification, T.V. call, yard

call). The administrative burden of altering these records

would be onerous, and it is only reasonable to conclude that

those Muslim inmates similarly situated to the plaintiff

would insist upon such alteration. Rather than a “ripple

effect,” a more accurate description would be a “tidal wave”

of unproductive paperwork. Furthermore, the Court credits

the testimony of Lockhart that a significant number of

inmates would undergo such a name change and insist

upon similar treatment simply as a means of “clogging the

system.”

D-5

The final Turner v. Safley factor appears to be the

primary reason for the remand herein. Is there a ready

alternative to the ADC regulations at issue which would

fully accommodate the prisoners’ rights at de minimis cost

to the valid penological interest? In particular, is the a/k/a

alternative a reasonable one?

With regard to the plaintiffs desire to have his

institutional files modified to reflect such an a/k/a

designation, the Court cannot blind itself to the likely

“ripple effect” noted above. Even with a minimal “ripple

effect,” the administrative burden and cost of requiring

such a clerical undertaking is unreasonable. The remote

benefit to plaintiffs religious freedom of such a filing

system is greatly outweighed by the administrative cost to

the ADC. See Akbar v. Canney, 634 F.2d 339 (6th Cir. 1980),

cert. denied, 450 U.S. 1002 (1981).

Because the number of uniforms worn by each inmate

is not great, the actual financial cost and expense of time

required to implement a clothing a/k/a designation would

not seem as onerrous a burden as the sought-after file

alteration. However, there are other costs to be considered.

Significantly, the Court concludes that institutional

security could be seriously jeopardized by such a clothing

designation. Both correctional officers and other inmates

could be confused by such a designation in such matters as

disciplinaries and grievances. (E.g.: Would officers and

other inmates be required to use both names of an inmate

when referring to him in a witness statement? What if only

the non-Muslim name could be remembered?) Secondly, the

Court agrees with Lockhart that such a multiple name

designation creates the real likelihood of confrontation

between ADC officers and inmates with an a/k/a designation

on their uniforms. Having succeeded in acquiring such a

designation on a uniform, it is reasonable to expect that the

inmate would insist that his Muslim name be honored. It

was clear at the hearing that the plaintiff expected that an

a/k/a designation on his clothing would lead to the officers

D-6

having to call him by his Muslim name when issuing orders

directing his behavior. However, in rebuttal, plaintiff

testified that he would not insist upon such oral recognition

if his uniform were to be altered to reflect the a/k/a

designation. Notwithstanding the plaintiff's expressed good

intentions in court, the undersigned can foresee the

development of confrontations between security staff and

Muslim inmates over this very issue. This potential security

risk alone is enough to render the a/k/a designation

unreasonable.*®

The mail issue is another matter. It would not appear to

be any more than a de minimis impact upon the ADC to

require it to implement a system whereby Muslim inmates

could receive their mail and money orders in their newly

acquired Muslim name. For example, the ADC could require

inmates to notify the mail room of their name change, and

this change could be noted on a master list which could be

cross-referenced to ensure proper delivery. Requiring this

sort of action on the part of ADC will have little or no

impact upon the valid security and administrative efficiency

interests of the ADC. This sort of accommodation is the sort

of “ready alternative” envisioned in Turner v. Safley,

supra. It will not compromise valid institutional interests,

but will enhance plaintiff's free exercise of his religion.

In accordance with the foregoing, the ADC will be

directed to implement a policy which will allow Muslim

inmates to receive mail in their legally changed post-

commitment name. The remainder of the plaintiff's

complaint is dismissed.

*Plaintiff also testified that Muslim names were chosen by converts

from a list of 99 attributes of God. This would necessarily lead to a

substantial amount of duplication and, therefore, increased confusion if

very many of the 400-450 Muslim inmates underwent the name changing

process.

D-7

IT IS SO ORDERED this 10th day of July, 1989.

/s| H. David Young

United States Magistrate

THIS DOCUMENT ENTERED ON DOCKET SHEET IN

COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP

ON 7/11/89 BY /s/ M. JOHNSON