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Fegans v. Norris: 1983 | PRISIONER CIVIL RIGHTS - grooming regulations regarding hair, beard length OK; kosher meals; dissent

United States Court of Appeals
No. 06-3473
Michael J. Fegans, *
Appellant, **
v. **
Larry Norris, Director, Arkansas * Appeal from the United States
Department of Corrections, in his * District Court for the
individual and official capacities; Greg * Eastern District of Arkansas.
Harmon, Warden, East Arkansas *
Regional Unit of the Arkansas *
Department of Corrections, in his *
individual and official capacities; John *
Lowe, Assistant Warden, in his *
individual and official capacities; Moses*
Jackson, Captain, in his individual and *
official capacities; Gary Cox, Chaplain, *
in his official capacity; Michael *
Humphrey, Sargent, in his individual *
and official capacities (originally sued *
as M. Humphries); Don Yancey, *
Chaplain, in his official capacity *
(originally sued as Don Yancy); Albert *
McKinney, Chaplain, in his official *
capacity (originally sued as McKinney), *
Appellees. *
1The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
Submitted: October 19, 2007
Filed: August 11, 2008
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Michael J. Fegans, an inmate in Arkansas, brought this suit against the director
of the Arkansas Department of Corrections (ADC), Larry Norris, and other prison
officials, alleging violations of his rights under the First and Fourteenth Amendments,
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
2000cc-1 et seq., the Arkansas Constitution, and the Arkansas Civil Rights Act.
Fegans, a follower of the teaching of the Assemblies of Yahweh, claimed that the
ADCs failure to provide Kosher meals and a religious exemption from its grooming
policy created a substantial burden on the exercise of his religious beliefs that could
not be justified under federal or state law. The district court1 agreed with Fegans in
part, ruling that Fegans had a clearly established constitutional right to receive Kosher
meals and awarding him 00 in damages. The district court disagreed, however,
with Fegans challenge to the grooming policy, and determined that the policy was
constitutional and consistent with RLUIPA. Fegans appeals both the amount of
damages awarded and the district courts decision on the grooming policy. We affirm.
On December 12, 1991, Fegans was sentenced to 18 years imprisonment for
four counts of aggravated robbery, one count of second degree battery, and one count
of criminal attempt to escape. In 1994, Fegans received a major disciplinary sanction
after attempting to escape and possessing a weapon and drugs. In that incident,
Fegans was able to smuggle a firearm, shotgun shells, smoke grenades, marijuana, and
a large amount of cash through an air-conditioning vent, and to have the items placed
in a maintenance van to which he was assigned. (T. Tr. 293, 326). Fegans testified
that around this same time, he underwent a religious conversion, inspired by the radio
broadcasts of Jacob O. Meyer. Fegans began studying the teachings of Meyer and the
Assemblies of Yahweh, a Christian sect which requires its members to follow Old
Testament law. Fegans eventually concluded that he should follow a Kosher diet and
refrain from rounding the corners of his hair and beard.
Fegans stopped trimming his hair and beard in 1995. In June 1997, Fegans
formally notified the ADC that he was a follower of the Assemblies of Yahweh and
began requesting a Kosher diet. While the ADCs policy at the time apparently
allowed Fegans to wear his hair and beard as he wished, the ADC advised Fegans that
Kosher meals were not an option and placed him on a pork-free diet instead. Fegans
protested the ADCs meal policy, and eventually exhausted his administrative
remedies on this claim.
On April 20, 1998, Director Norris issued Administrative Directive 98-04 (AD
98-04), which set forth a new grooming policy for all Arkansas prisons. The policy
requires all male prisoners to keep their hair above their ears and no longer than the
middle of the nape of the neck in the back. The policy allows female prisoners to
wear shoulder-length hair. A separate provision prevents male inmates from wearing
facial hair other than a neatly trimmed mustache, but provides an exception for
inmates diagnosed with dermatological problems, such as pseudofolliculitis barbae,
a medical condition that causes painful bumps from shaving. Inmates with such a
diagnosed dermatological problem are permitted to wear facial hair, provided that
it is kept no longer than 1/4 inch. The policys stated purpose is [t]o provide for
the health and hygiene of incarcerated offenders, and to maintain a standard
appearance throughout the period of incarceration, minimizing opportunities for
disguise and for transport of contraband and weapons. The policy went into effect
On April 28 and May 5, 1998, Fegans was approached by an ADC officer and
ordered to get a haircut. Fegans refused, stating that cutting his hair was against his
religion. The ADC issued Fegans a major disciplinary sanction for each refusal, and
eventually transferred him from the Cummins Unit in Grady to the East Arkansas
Regional Unit (EARU) in Brickeys. Fegans continued to resist the grooming policy
while at the EARU, and continued to receive disciplinary reports as a result of his
failure to comply. In an effort to secure compliance, the ADC gradually stripped
Fegans of privileges and ultimately transferred him first to a maximum security cell
and then to the Varner Supermax Unit.
Fegans brought suit against several ADC officials on March 14, 2003, claiming
that the ADCs failure to provide Kosher meals and a religious exemption to the
grooming policy violated his constitutional rights and RLUIPA. Following a bench
trial, the district court determined that Director Norris had violated Feganss firmly
established constitutional right to receive Kosher meals. The court relied on its
previous holding in Love v. Evans, 2:00-cv-0091 (E.D. Ark. Dec. 19, 2002), where it
held that the ADC was required to accommodate an inmates requests for Kosher
meals. Because the ADC did not begin providing Kosher meals until March 3, 2004,
the district court found that Norris knowingly violated established law requiring
Kosher diets from December 19, 2002, through March 3, 2004, and awarded Fegans
00 in damages.
The district court found that Fegans had a sincere religious objection to the
grooming policy, but rejected Feganss challenges to the policy. The court reasoned
that this courts decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996),
foreclosed Feganss claims based on the First Amendment. The court also rejected
Feganss challenge under RLUIPA, holding that the grooming policy served
compelling state interests and was no more restrictive than necessary to further its
stated goals. While Fegans testified that he would have been satisfied to abide by the
womens hair-length regulation, and thus implied that it presented a less restrictive
means available to meet the ADCs security concerns, the district court disagreed,
finding that [t]he security concerns attendant female inmates housed in a single unit
are not as great. The court rejected Feganss Equal Protection claim for the same
reason, concluding that different security concerns presented by male and female
inmate populations provide a sufficient basis for the distinction in the grooming
regulations. The court also ruled that the defendants were immune from suit on the
state law claims, because Feganss conclusory allegations that Defendants acted with
malice [were] not supported by the evidence. In this appeal of the district courts
judgment after a bench trial, we consider legal issues de novo and review the courts
finding of fact for clear error. Eckert v. Titan Tire Corp., 514 F.3d 801, 804 (8th Cir.
Prison inmates retain constitutional rights protected by the First Amendment,
including the right to free exercise of religion. OLone v. Shabazz, 482 U.S. 342, 348
(1987). These rights are limited, however, by the fact of incarceration and valid
penological objectives, such as deterrence of crime, rehabilitation of prisoners, and
institutional security. Id. The evaluation of penological objectives in this context is
committed to the considered judgment of prison administrators, and to ensure
appropriate deference to those judgments, courts review prison regulations alleged to
infringe constitutional rights under a reasonableness test that is less restrictive than
ordinarily applied to alleged infringements of fundamental constitutional rights. Id.;
see also Turner v. Safley, 482 U.S. 78, 87-91 (1987).
Congress has granted additional protection for religious exercise by
institutionalized persons. The RLUIPA, enacted in 2000, succeeded a similar statute,
the Religious Freedom Restoration Act (RFRA), which failed to pass constitutional
muster as a valid exercise of Congresss power under the Fourteenth Amendment,
insofar as it applied to the States. See City of Boerne v. Flores, 521 U.S. 507 (1997).
RLUIPA, like RFRA, provides that no government shall impose a substantial
burden on the religious exercise of an inmate, even if the burden results from a rule
of general applicability, unless the government demonstrates that imposition of the
burden (1) is in furtherance of a compelling governmental interest, and (2) is the least
restrictive means of furthering that compelling governmental interest. 42 U.S.C.
2000cc-1. The Supreme Court has remarked that context matters in the
application of this compelling governmental interest standard, and that RLUIPA
does not elevate accommodation of religious observances over an institutions need
to maintain order and safety. Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). Indeed,
the Court noted that lawmakers who supported RLUIPA were mindful of the urgency
of discipline, order, safety, and security in penal institutions, id. at 723, and expected
that courts would apply the Act with due deference to the experience and expertise
of prison and jail administrators in establishing necessary regulations and procedures
to maintain good order, security and discipline, consistent with consideration of costs
and limited resources. Id. (quoting 146 Cong. Rec. S7774, S7775 (July 27, 2000)
(joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA)).
We applied these standards, through RFRA, to a prison hair-length regulation
in Hamilton v. Schriro, 74 F.3d at 1551-55, and much of Feganss argument against
the ADCs hair-length regulation is foreclosed by the reasoning of Hamilton. The
regulation at issue in Hamilton, which prohibited male inmates from wearing their hair
below the collar, was supported by testimony from prison officials who explained that
inmates could conceal contraband, including dangerous materials, in their long hair,
and that long hair could also cause problems with inmate identification. Id. at 1548.
The officials suggested that a more liberal policy would place a strain on prison
resources and inmate-staff relations because, in the absence of a policy, prison staff
would be required to perform more frequent searches of inmates, which could cause
conflicts between staff and inmates. Id.
In holding that the regulation did not conflict with RFRA, we cited Congresss
expectation that the courts will continue the tradition of giving due deference to the
experience and expertise of prison and jail administrators in establishing necessary
regulations and procedures to maintain good order, security and discipline, consistent
with consideration of costs and limited resources. Id. at 1554 (quoting S. Rep. No.
111, 103rd Cong., 1st Sess. (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899-
1900). We observed that while RFRA reinstated the balancing test that had been
applied by some courts to free exercise claims of inmates prior to the Supreme Courts
decision in OLone, the pre-OLone case law nonetheless emphasized that judgments
regarding prison security are peculiarly within the province and professional
expertise of corrections officials, and, in the absence of substantial evidence in the
record to indicate that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in such
matters. Id. at 1553 (emphasis in original) (quoting Pell v. Procunier, 417 U.S. 817,
827 (1974)). Our opinion in Hamilton thus gave deference to the prison officials
testimony that long hair presented a risk to prison safety and security and that no
viable less restrictive means of achieving that goal existed, and upheld the hair-length
restriction. Id. at 1555; accord Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 2001);
Harris v. Chapman, 97 F.3d 499, 504 (11th Cir. 1996).
These observations about RFRA are equally applicable to RLUIPA, see Murphy
v. Mo. Dept. of Corrections, 372 F.3d 979, 987-88 (8th Cir. 2004); Hoevenaar v.
Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005), and the rationale of Hamilton thus applies
with equal force in this case. As in Hamilton, the prison officials here testified that
the policy was all about security, and that it was designed to minimize the
smuggling of contraband and to reduce the opportunity for disguise. To underscore
the reality of these concerns, Norris and another correctional officer pointed to
specific examples showing that inmates had used their hair to conceal contraband and
to change their appearance after escaping. (T. Tr. 161-63, 169, 175, 228). Norris
testified that there was no less restrictive means to address ADCs security concerns,
both because longer hair created a greater opportunity for inmates to conceal
contraband, and because correctional officers are placed at risk of assault if they are
required to search through the long hair of individual inmates. (T. Tr. 279-80). We
see no basis to distinguish these safety and security concerns from those deemed
sufficient in Hamilton.
The partial dissenting opinion attempts to distinguish Hamilton by relying on
a snippet from an unpublished opinion in Pounders v. Kempker, 79 F. Appx 941 (8th
Cir. 2003), where the panel noted that the record in Hamilton had been fully
developed as to the prison officials basis for denying the inmates requests. The
dissent asserts that the record in this case was not so developed. A look beyond the
snippet to context, however, demonstrates that Pounders reviewed a district courts
pre-service dismissal of an inmates complaint. By a record that was fully
developed in Hamilton, the Pounders panel meant a hearing at which various
officials testified, as opposed to the record in Pounders, which included nothing but
the complaint. Id. at 943. The record here, of course, involves a hearing at which
various officials testified; it includes a complete bench trial conducted over three days
with ten witnesses.
The dissent also relies on Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), which
refused to defer to a prison wardens opinion on hair net and reidentification
requirements, because it was unsupported by empirical proof. Id. at 361.
Hamilton distinguished Teterud, holding that the hair length regulation was founded
on the legitimate concern that prison safety would be compromised by inmates
concealing contraband in their long hair or identifying with a particular gang. 74
F.3d at 1555 n.11. So too here. Hamilton relied for empirical proof on the
testimony of prison officials, based on their collective experience in administering
correctional facilities, that prison security requires them to prevent inmates from
concealing contraband in their long hair. Id. at 1554-55. The district court here
relied on testimony of experienced prison officials, who opined that the hair-length
policy was necessary to prevent inmates from concealing contraband in their long hair
or changing appearance after an escape, and who described specific (i.e., empirical)
examples of inmates who had done just these things under a previous policy that
permitted long hair. There is no material distinction between this case and Hamilton.
See also Rogers v. Scurr, 676 F.2d 1211, 1215-16 (8th Cir. 1982) (pre-OLone
decision vacating district court injunction against policy prohibiting the wearing of
caps and robes outside prayer meetings, where explanation of prison officials that the
attire makes it too easy to conceal contraband was eminently reasonable).
This case is unlike Murphy v. Missouri Department of Corrections, 372 F.3d
979, a summary-judgment decision in which the court found a genuine issue of
material fact concerning whether the prisons refusal to permit group worship by
white separatists was necessary to prevent racial violence. Murphy did not require
evidence that racial violence had in fact occurred in the form of a riot, but said that
some evidence must be presented to show that the prisons decision was the least
restrictive means necessary to preserve its security interest. It was not clear in Murphy
that the prison had considered any other options; the only evidence presented was
testimony suggesting that the inmate was a racist, and that his religion limited
participation to Anglo-Saxon individuals. Arkansas officials, by contrast, not only
2Without confronting the clear error standard of review applicable to findings
of fact, the dissent rejects the district courts decision to credit Norriss testimony
about the relative security risks of male and female inmates, and launches into an
inapposite discussion of which party bears the burden of proof. Post, at 20-22. In
considered other options, they tried one. Under the former ADC policy, which
permitted long hair, prison officials found that use of long hair to conceal contraband
or to change appearance after an escape had in fact occurred. The district courts
decision is thus entirely consistent with Murphys requirement that some evidence
short of an actual incident be presented in support of a challenged policy.
Fegans argues alternatively that the uniform hair-length regulation for male
inmates is not the least restrictive means available, because the ADC is able to address
safety and security concerns in the womens barracks while allowing shoulder-length
hair. In contrast to male prisoners, however, female prisoners are housed in a single
unit, and thus have less opportunity to obtain and transport contraband. See
Kellensworth v. Norris, No. 5:98-cv-00157-SWW, slip op. at 5 (E.D. Ark. Feb. 22,
1999) (Since most female inmates are housed in a single unit, the security concerns
attendant with daily transfers of male inmates are not nearly as great.) (reproduced
at R. Doc. 183-2). Based on his more than thirty years with the ADC, Norris gave this
further explanation for the distinction in hair-length policy: Women are not
generally as violent as men. They are not as escape prone as men. They are not as
prone to give us problems with contraband as men. (T. Tr. 237-38). Unlike the
situation in Warsoldier v. Woodford, 418 F.3d 989, 1000-01 (9th Cir. 2005), the
record here includes no data to refute Norriss expert testimony about the relative
security risks in the male and female facilities, and the district court credited Norriss
unrebutted testimony. This finding of fact is not clearly erroneous, and given that
factual premise, the district court correctly held that the differing hair regulations for
men and women did not undermine the ADCs contention that its hair-length
regulation for males was the least restrictive means available to satisfy security
Warsoldier, the Ninth Circuit rejected a prisons argument that women inmates were
much less likely to commit violent crimes than male inmates, because the data
submitted by the prison to support its position did not focus on the relevant type of
institution, and did not clearly bear out the prisons assertion. 418 F.3d at 1000-01.
Here, the prison relied instead on historical testimony of the director of the ADC that
female inmates are not as prone to create problems with contraband as are male
inmates. The district court credited this testimony and found that it satisfied the
burden of proof. While Fegans did not bear the burden of proof on this issue, he was
free to present countervailing evidence. The dissent evidently would go beyond the
Ninth Circuit in Warsoldier and require that the ADC make a formal statistical
presentation to support the testimony of experienced prison officials. This approach
is contrary to the law of our circuit, and we decline to adopt it. See Hamilton, 74 F.3d
at 1554 (upholding prison hair length regulation based on testimony of prison
3The dissent cites a moment in Norriss testimony during which he is unable to
recall the details of the alternative grooming policies considered by the prison nine
years earlier. Post, at 19. At other points, however, Norris explained that his staff,
in 1997, had provided a memorandum detailing the hair and grooming policies of five
other States and the Federal Bureau of Prisons, (App. of Exhs at 3), that this
memorandum played a role in formulating the ADC policy, (T. Tr. 233), and that
prison officials considered other alternatives during their deliberations. (T. Tr. 240,
278-80). Norris also discussed two other alternatives raised by counsel during the
trial. (T. Tr. 290-91, 324).
Fegans also claims that AD 98-04 is not the least restrictive means available,
because other prison systems employ more liberal grooming policies. These other
policies, however, were rejected by Norris and the ADC as less effective in meeting
the ADCs security and safety concerns.3 We concluded in Hamilton that [a]lthough
prison policies from other jurisdictions provide some evidence as to the feasibility of
implementing a less restrictive means of achieving prison safety and security, it does
not outweigh the deference owed to the expert judgment of prison officials who are
infinitely more familiar with their own institutions than outside observers. Hamilton,
74 F.3d at 1556 n.15. Norris opined that more liberal policies would be less effective
in the ADC, because he had seen one of these policies at work in the past, and our
security wasnt nearly as good then as it is now. Fegans did not effectively rebut this
Finally, Fegans proposes that a less restrictive alternative would be to house
inmates seeking a religious exemption in administrative segregation, apart from the
general inmate population, in order to alleviate security concerns. This proposal,
however, does not lessen the safety risk to correctional officials assigned to pat down
the prisoners, and it would place a strain on the ADCs facilities, which are already
full. See Cutter, 544 U.S. at 723 (observing that lawmakers supporting RLUIPA
expected that courts would apply the statute with deference to the expertise of prison
administrators who must act consistent with consideration of costs and limited
resources). Because this option, like the others proposed by Fegans, would allow
accommodation of religious observances to override other significant state interests,
see id. at 722, we agree with the district court that AD 98-04 withstands scrutiny under
Feganss constitutional claims fail under the applicable reasonableness
standard. OLone, 482 U.S. at 349; Turner, 482 U.S. at 89. As we noted in Hamilton,
when a prison regulation impinges on inmates constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological interests. 74 F.3d at 1550
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Given the district courts
unassailable finding that long hair poses a threat to security, the ADCs hair-length
regulation does not violate an inmates constitutional right to the free exercise of his
religion. Hamilton, 74 F.3d at 1551; Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir.
1990). For similar reasons, the ADC regulation does not violate Feganss
constitutional right to equal protection of the laws. As the factual record stands in this
case, the district court did not err in concluding that the ADC has a valid reason for
differing hair-length rules for men and women, and that the regulations are
reasonably related to the States legitimate, penological interests of safety and
Fegans also contends that the requirement of the grooming policy that he shave
his beard violates his rights under the First Amendment and RLUIPA. In explaining
the justification for this rule, Norris testified that the prohibition on facial hair keeps
[inmates] from being able to change their appearance, and makes it easier for law
enforcement to track and identify an inmate after an escape. Norris also suggested
that long beards, like long hair, facilitate the transport of contraband. These safety and
security concerns are compelling governmental interests. See Cutter, 544 U.S. at 725
Fegans acknowledges that institutional security is a compelling interest, but
argues that the shaving requirement is not the least restrictive means available to
address these concerns. He observes that the ADC grants a medical exemption from
the shaving requirement for inmates with a diagnosed dermatological condition, and
contends that this exemption shows that the ADC can permit facial hair without
endangering institutional security.
The ADCs medical exemption does not win the day for Fegans, because he has
not been disciplined merely for growing facial hair consistent with that exemption
(i.e., facial hair that does not exceed a quarter-inch in length), and he did not
communicate to the ADC or testify at trial that the medical exemption would satisfy
his religious beliefs. Rather, Fegans testified that his religion requires that he refrain
from rounding the corners of his beard, and he was disciplined for wearing a beard
that was uncut altogether. The beard permitted by the medical exemption has rounded
corners, and we therefore presume that it is not satisfactory to Fegans. This is not a
case, therefore, in which the ADC grants an exemption to some inmates for medical
reasons, but refuses to grant the same exemption to another inmate for religious
reasons. Cf. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 366-67 (3d Cir. 2003). We need not decide whether such a distinction
4Security concerns underlying a grooming policy that governs inmates may
differentiate such a policy from a similar rule applicable to police officers or other
public employees. Where one purpose of a prohibition on beards is to prevent inmates
from changing appearance in the event of escape, there may be good reason to
distinguish between inmates with a dermatological condition, if it permanently
precludes shaving (and a corresponding change in appearance), and inmates with no
skin condition who could alter their appearances after an escape.
would be permissible under RLUIPA or the First Amendment, because the record
does not present the question.4
On this record, the ADC disciplined Fegans for wearing an uncut beard. The
record shows that uncut beards create safety and security concerns that are not
presented by clean-shaven faces or quarter-inch beards. Norris explained at trial that
an uncut beard would make identification more difficult and would facilitate the
smuggling of contraband. An uncut beard creates a better disguise for an escapee than
a quarter-inch beard, because it conceals the contours of an inmates face. (T. Tr.
262). And an uncut beard allows a prisoner to transport contraband, while a quarterinch
beard is too short to serve that purpose. See Green v. Polunsky, 229 F.3d 486,
490 (5th Cir. 2000). In applying this policy to Fegans, prison officials were aware of
his disciplinary history, which included two previous escape attempts and the
smuggling of contraband within the prison. (T. Tr. 293-94, 326). We therefore agree
with the district court that the ADC demonstrated a compelling penological interest
in prohibiting Fegans from wearing an uncut beard, and that this prohibition was the
least restrictive means available to further that interest.
For all of its criticism of the ADCs grooming policies, the dissent, in the end,
is not prepared to order the prison to permit Fegans to grow long hair and a full beard.
Rather, the dissent urges a remand to give the prison the opportunity to conduct the
individualized review RLUIPA requires. Post, at 23. We do not agree with the
implication that RLUIPA calls for the federal courts to impose procedural
requirements on the internal disciplinary processes used by prison administrators.
Fegans was afforded individualized consideration at a bench trial in which the ADC
was required to prove that the burden imposed on Fegans religious exercise by the
grooming regulations was the least restrictive means of furthering the compelling
governmental interests in order, safety, and security. Moreover, particularly given the
Supreme Courts emphasis in Cutter on giving due deference to the experience and
expertise of prison and jail administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline, consistent with
consideration of costs and limited resources, 544 U.S. at 722 (emphasis added)
(internal quotation omitted), we do not interpret RLUIPA to prevent a prison from
applying certain important security regulations to all inmates without providing for
exemptions. See Gonzales v. O Central Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 436 (2006) (We do not doubt that there may be instances in which a need
for uniformity precludes the recognition of exceptions to generally applicable laws
under RFRA.).
Feganss constitutional challenges to the prohibition on uncut beards fail for the
same reasons. The ADC has established that it has a compelling interest in safety and
security, and that the grooming policy is reasonably related to those interests. See
OLone, 482 U.S. at 349.
Fegans claims that the district court abused its discretion in awarding only
00 in damages for the ADCs failure to provide Kosher meals. Aside from
punitive damages, the Prison Litigation and Reform Act limits recovery for mental or
emotional injury to nominal damages only. Royal v. Kautzky, 375 F.3d 720, 723 (8th
Cir. 2004). We conclude that an award of .44 for each constitutional violation is
a sufficient nominal damage award, and that the district court did not abuse its
discretion in declining to award a greater amount. See id. at 724 (affirming award of
one dollar in nominal damages). To the extent that Fegans appeals the district courts
refusal to award punitive damages, we discern no abuse of discretion. The district
court accurately stated the legal standard for an award of punitive damages, but found
that Norris and the ADC did not act with malice, and that punitive damages were not
warranted to deter future unlawful conduct, because the ADC already had instituted
a policy for providing Kosher meals. These reasons are sufficient to support the
courts ruling.
Fegans also challenges the district courts dismissal, with prejudice, of his state
law claims. As the district court held, employees of the State of Arkansas acting in
their official capacity are immune from civil suits for damages. See Fegans v. Norris,
89 S.W.3d 919, 924 (Ark. 2000). While prison officials acting in their individual
capacities may be liable for damages if they act with malice, id. at 924-25; Grine v.
Bd. of Trustees, 2 S.W.3d 54, 58 (Ark. 1999), the district court did not clearly err in
finding that Fegans failed to present evidence of malice. Accordingly, the district
court properly dismissed the state law claims.
For the foregoing reasons, we affirm the judgment of the district court.
* * *
MELLOY, Circuit Judge, concurring in part and dissenting in part.
I join the majority opinion except for Sections II.A and II.B. Because I disagree
with the majoritys conclusions regarding Feganss RLUIPA claims and would
reverse and remand, I respectfully dissent.
RLUIPA requires strict scrutiny. 42 U.S.C. 2000cc-1(a). While I agree with
the majority that context matters in the application of RLUIPAs strict-scrutiny
standard and that we must accord due deference to the experience and expertise of
prison and jail administrators in applying RLUIPA, ante at 6 (quotation omitted), I
believe the majority accords Norriss conclusory justifications a level of deference that
is contrary to RLUIPA. Under RLUIPA, prison officials have the burden of
establishing that their policy is the least restrictive means to achieve a compelling
government interest. Id.; see also Schriro v. Hamilton, 74 F.3d 1545, 1552 (8th Cir.
1996) (noting that under RFRA, prison officials bear the burden of demonstrating
that the regulation is the least restrictive means of achieving a compelling interest).
Norris has the burden of demonstrating that the grooming policy is the least restrictive
means to achieve security as applied to Fegans. See 42 U.S.C. 2000cc-1(a)
(providing that prisons cannot impose a substantial burden on the religious exercise
of a person residing in . . . an institution . . . even if the burden results from a rule of
general applicability (emphasis added)); see also Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 43031 (2006) (determining RFRA
requires individualized review); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008)
(noting that RLUIPA, unlike the Free Exercise Clause of the Constitution, requires
individualized review); Spratt v. R.I. Dept of Corr., 482 F.3d 33, 39, 40 n.9, 41 (1st
Cir. 2007) (rejecting the prisons all or nothing argument and finding that the prison
must . . . establish that prison security is furthered by barring [the individual] from
engaging in the disputed conduct); Washington v. Klem, 497 F.3d 272, 285 (3d Cir.
2007) (noting that RLUIPA requires an assessment of whether the government action
is the least restrictive means as applied to the individual). Norris must not only justify
the policy as a whole, but he must also justify his failure to grant a religious-based
exception to Fegans.
In upholding the grooming policy, the majority relies on Hamilton, a case where
we upheld a prisons hair-length regulation. Ante at 612. In Hamilton, however, we
upheld the regulation based on a record that was fully developed as to the prison
officials basis for denying the inmates requests . . . . Pounders v. Kempker, 79
Fed. Appx. 941, 943 (8th Cir. 2003) (unpublished) (citing Hamilton, 74 F.3d at
154748 and noting that the decision was based on a fully developed record
detailing the prison officials decision). In this case, the record indicates Norris never
even considered granting Fegans a religious-based exception, and the record is
certainly not fully developed as to [Norriss] basis for denying [Feganss] request[].
(T. Tr. 252). Also, in Hamilton, we explicitly distinguished a case where we struck
down a hair-length regulation because the only reason advanced in support of the
regulation was the Wardens opinion, unsupported by empirical proof, that another
alternative would be unworkable. Hamilton, 74 F.3d at 1555 n. 11 (distinguishing
Teterud v. Burns, 522 F.2d 357, 361 (8th Cir. 1975)). Furthermore, contrary to the
facts of this case, the inmate in Hamilton was in a maximum security facility when he
was denied the religious-based exception, 74 F.3d at 1547, and the Hamilton court
was not faced with claims that evidence, such as a disparity in grooming policies
among males and females or a medical exception, indicates that the grooming
regulation could not possibly be the least restrictive alternative, see id. at 155455.
Our decision in Murphy v. Mo. Dept of Corr., 372 F.3d 979, 989 (8th Cir.
2004), a case decided under RLUIPA, is instructive. We remanded Murphy, noting
that the prison did not demonstrate that it seriously considered any other alternatives
to a regulation alleged to infringe on prisoners free exercise of religion. 372 F.3d at
989. The prison denied a request by members of the Christian Separatist Church
Society, a religion that believes Caucasians are uniquely blessed by God, to engage
in group worship. Id. at 98182. Prison officials testified that they denied the request,
fearing the worship services would result in racial violence. We acknowledged in
Murphy, and I acknowledge here, that prison officials security concerns are valid, id.
at 988; nevertheless, under RLUIPAs higher standard of review, prison authorities
must provide some basis for their concern that [safety problems] will result from any
accommodation of [the] request. Id. at 989.
In justifying policies under RLUIPA, prison authorities must do more than
offer conclusory statements and post hoc rationalizations for their conduct. Hamilton,
74 F.3d at 1554 n.10 (citing S. Rep. No. 103-111, at 10 (1993), as reprinted in 1993
U.S.C.C.A.N. 1892, 1900)). Prison officials cannot justify restrictions on religious
exercise by simply citing to the need to maintain order and security in a prison. They
. . . must demonstrate that they actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice. Alvarez v. Hill, 518
F.3d 1152, 1156 (9th Cir. 2008) (citations and quotations omitted).
The majority does not, and can not, dispute that Norris must conduct an
individualized review and that strict scrutiny applies to Norriss decision not to grant
a religious-based exception to Fegans. Instead, the majority opinion indicates that
Norris did conduct an individualized review and that he determined that the grooming
policy as applied to Fegans was the least restrictive means to achieve security. Ante
at 1115. However, the majority does not point to any evidence that prison officials
considered whether to apply the policy to Fegans. Instead, the majority points to
evidence that prison officials considered alternatives when formulating the policy as
a whole. Ante at 11 n.3. The majority opinion also does not cite to any evidence that
Norris considered granting Fegans an exception. Norris testified he was sure [prison
officials] considered other alternatives to the grooming policy that would achieve
security; however, he could not recall any of these alternatives, nor remember how
long they were considered, (T. Tr. 240), although he did testify that none of the
alternatives involved a religious exception, (T. Tr. 235). Regardless of whether
Norriss failure to recall was because he forgot or because he never considered other
alternatives, the record does not include any examples of less restrictive alternatives
Norris considered when the policy was formulated or when declining to grant Fegans
an exception. In fact, Norris explicitly testified that he would not consider granting
a religious-based exception to anyone, regardless of the sincerity of their beliefs, (T.
Tr. 252), and the prison warden testified he would not have considered granting one
to Fegans, (T. Tr. 467). Considering all the evidence the district court credited, there
is still no indication that prison officials seriously considered any alternatives to the
grooming policy that would not substantially burden Feganss religious exercise.
Thus, as a matter of law, I do not believe the policy can be upheld under RLUIPA.
See Murphy, 372 F.3d at 989 (remanding because the record did not indicate the
prison seriously considered any other alternatives, nor were any explored before the
district court).
The majority opinion concludes that prison officials were aware of his
disciplinary history [i]n applying this policy to Fegans. Ante at 14. While an
inmates disciplinary history may lead prison officials to conclude that security can
only be achieved by applying a policy without exception to that inmate, the record
does not reflect that prison officials considered Feganss disciplinary history in
declining to grant him an exception. On the contrary, as indicated above, Norris
testified that he would not grant anyone a religious-based exception. (T. Tr. 252).
Furthermore, although Fegans had problems with discipline in the past, he was not in
a maximum security facility when the grooming policy went into effect and Fegans
was denied an exception. Ante at 34. Feganss placement at the time indicates
prison officials did not believe he warranted the heightened restrictions of a maximum
security facility. Even if prison officials were aware of Feganss disciplinary history,
there is no evidence they considered it, or any other individual characteristic, in
apply[ing] this policy to Fegans.
In distinguishing the record in the instant case from the record in Warsoldier v.
Woodford, 418 F.3d 989 (9th Cir. 2005), the majority mischaracterizes Warsoldier
and reverses the statutorily mandated burden of proof. Ante at 10. Warsoldier does
not support the majoritys holding. In Warsoldier, the Ninth Circuit granted a
preliminary injunction because the prisoner was likely to succeed on the merits of his
claim that a gender-based grooming regulation, similar to the one in the instant case,
violated RLUIPA. Id. at 1001. The court stated that the prison presented only
conclusory statements that the hair grooming policy is the least restrictive means to
ensuring prison security in its attempt[] to meet its burden, id. at 998, and that the
data did not support the prisons conclusions, id. at 100001. The court rejected the
prisons argument that the court must completely defer to [the prisons] judgment.
Id. at 1001. The court noted, as our court did in Murphy, 372 F.3d at 989, that the
prison cannot meet its burden to prove least restrictive means unless it demonstrates
that it has actually considered and rejected the efficacy of less restrictive measures
before adopting the challenged practice. Warsoldier, 418 F.3d at 999. Even though
the prison attempted to justify the gender-based differences by asserting that women
inmates are much less likely to commit violent crimes than male inmates and, hence,
that women inmates pose a lesser security concern, the court found the policy
violated RLUIPA. Id. at 1000.
However, instead of acknowledging that Warsoldier supports a conclusion that
the prison policy in the instant case violates RLUIPA, the majority distinguishes
Warsoldier by putting the burden on Fegans to demonstrate that males do not pose a
greater security risk than females. Ante at 10. I do not believe it is necessary for
Fegans to provide data to refute Norriss expert testimony about the relative security
risks in the male and female facilities, ante at 10, because under RLUIPA, Fegans
does not have the burden of proof. Norris does. 42 U.S.C. 2000cc-1(a); Hamilton,
74 F.3d at 1552 (noting that under RFRA, prison officials bear the burden of
demonstrating that the regulation is the least restrictive means of achieving a
compelling interest). While the Ninth Circuit in Warsoldier did cite data to refute the
prison officials conclusory assertions, this was data provided by the prison itself. The
court gave no indication that the data was necessary or that it was the plaintiffs
burden to rebut the prison officials assertions. Warsoldier, 418 F.3d at 1000. On the
contrary, the court repeatedly emphasized that under RLUIPA, the prison, and not the
plaintiff, had the burden to establish that the policy was the least restrictive means.
Id. at 998, 1001; see also Hamilton, 74 F.3d at 1552. Regardless of whether the prison
offers a formal statistical presentation, ante at 1011 n.2, conclusory assertions
alone cannot, as a matter of law, satisfy Norriss burden. See Hamilton, 74 F.3d at
1554 n.10 (citing S. Rep. No. 103-111, at 10 (1993), as reprinted in 1993
U.S.C.C.A.N. 1892, 1900).
Additionally, I do not believe Norris has adequately justified his failure to grant
Fegans a religious-based exception in light of the fact that the policy requires of
Fegans what it does not require of females and those with a certain medical condition.
The majority accepts Norriss conclusory statements to justify the grooming policys
gender-based differences and medical exception: Women are not generally as
violent as men . . . . They are not as prone to give us problems with contraband as
men. Ante at 10 (quoting (T. Tr. 23738)). Norris also justifies the gender-based
differences in the policy by stating that the differences were implemented to let
women be as much . . . a woman as they can and still maintain good security. (T. Tr.
237). Norriss testimony is unsupported by any evidence, empirical or otherwise. His
testimony indicates the policy was based on generalizations or tendencies about the
differences between men and women, which are impermissible justifications even
under intermediate scrutiny. United States v. Virginia, 518 U.S. 515, 541, 55056
(1996) (internal quotation omitted) (holding that a gender-based policy justified on
assumptions about the differences between females and males does not survive
intermediate scrutiny). While the prisons gender-based policy is not subject to strict
scrutiny, Norriss failure to apply the policy equally between males and females and
his conclusory and unsupported justification of the policys gender-based differences
lead me to conclude the policy as applied to Fegans is not the least restrictive means
to achieve safety and security.
Likewise, Norriss willingness to grant an exception to those with a
dermatological condition indicates the policy is not the least restrictive alternative.
The majority opinion points out that there may be good reason to distinguish
between Fegans and those with a dermatological condition. Ante at 14 n.4. I do not
dispute that there may be good reasons to provide exceptions to some and not to
others. However, it is the prisons burden to establish that the policy as applied to
Fegans is the least restrictive means. Norris did not explain why this exception would
not impair security but a religious-based exception would. He also did not explain
why he granted this exception to take good care of the inmates, (T. Tr. 263), but he
would not consider granting a religious-based exception. The prison has failed to
establish this burden, and I do not believe it can be established by post-hoc
rationalizations provided by the court.
While the majority points out that the existence of a medical exception does not
win the day for Fegans, ante at 13, I believe that the medical exception, like the
gender-based differences, indicates that exceptions can be made without sacrificing
safety and security concerns. Norris justified his failure to accommodate Fegans by
explaining that he would not allow any religious-based exceptions to the policy: You
have to treat everybody the same. . . . And if you dont . . . there wouldnt be a
grooming policy. (T. Tr. 252). However, the prisons grooming policy itself does
not treat Fegans the same as females and those with a certain dermatological
condition, thus undercutting Norriss testimony that the policy must be uniformly
applied in order to be effective. Just as prison officials considered whether security
could be achieved while let[ting] women be as much . . . a woman as they can and
while tak[ing] good care of those with a dermatological condition, RLUIPA requires
prison officials to consider whether security could be achieved while not substantially
burdening Feganss exercise of his religion. The record indicates the prison did not
consider this. It was thus improper for the district court to uphold the regulation as
applied to Fegans. I would remand to give the prison the opportunity to conduct the
individualized review RLUIPA requires.


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