# Petition for Writ of Certiorari — Lockhart v. Salaam

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1026

## Text

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

B-8

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

B-13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3044%3A1. Public record. Not legal advice.