Triplett v. Commissioner, et al. CV-95-588-B 02/27/96 P

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ervin Triplett

v. Civil No. 95-588-B

Commissioner, New Hampshire Department of Corrections, et al.

REPORT AND RECOMMENDATION

Plaintiff's action is premised upon the claim that

defendants, by enforcing the prison regulation reguiring inmates

to be "clean shaven", have prohibited him from having a full

beard and thus have deprived him, as a Moslem, of his

constitutional right to freedom of religion and have violated his

rights under the Religious Freedom Restoration Act of 1993,

(RFRA)

U.S.C. § 2000bb et sea. Before

the court is the plaintiff's motion for a preliminary injunction

(document n o . 3).

BACKGROUND

Plaintiff, Ervin Triplett, has been a Moslem for eighteen

years. He is of the Islamic faith which is based upon the

teachings of the prophet Mohammed. He distinguishes his

religious beliefs from those of the "Nation of Islam" which he

states is a militant group. Plaintiff follows the Sunnah or body of traditional Moslem law observed by orthodox Moslems. The

Koran (Qur'an) " . . . represents to Muslims, the word of God as

revealed to and spoken through His Prophet, Mohammed . . . .

[T]he Qur'an's roughly 6,000 verses comprise an entire code for

moral, spiritual, and social life." David J. Karls, Islamic Law

in Saudi Arabia: What Foreign Attorneys Should Know,

, 137-8 (1992). The Koran is not

the only source for Islamic religious doctrine.

The Sunnah, which literally means "customary procedure or action" or "norm" is a set of rules deduced from the pronouncements and conduct of the Prophet . . . . The Sunnah includes stories or traditions of the Prophet, called hadith, as well as the Prophet's deeds and tacit approvals of another's action or practice.

. The Sunnah, or Hadith, is regarded as second in

authority only to the Koran.

In July of 1995 plaintiff became an inmate at the New

Hampshire State Prison. He arrived at the prison with a full

beard approximately three inches in length. Consistent with

prison regulation plaintiff was reguired to remove his beard and

to remain clean shaven. Initially the plaintiff orally discussed

his desire for a beard for religious reasons with both Warden

Cunningham and Chaplain Smith. He filed a written reguest the

same day he filed suit. (Exhibit C ) . The Warden asked plaintiff

to provide either documentation, or the name of someone who could

2 provide authoritative information, as to the place of full beards

in the Islamic religion. Plaintiff was unable to provide

documentation but provided the name of a University of Maine

professor. As of this date the professor has not been contacted

and has provided no information.

Mr. Triplett testified that the religious basis for the

reguirement of full beard in the Islamic religion is not found in

the words of the Koran but, he says, it is clearly set out in the

Hadiths. Chaplain Smith testified that it is part of his

responsibility to assemble information on the accepted practices

and reading of religions of prisoners with which he is not

personally familiar. This is done by contact with volunteer

religious leaders of that faith and by reading. The list of key

aspects are published in a prison document entitled "Religious

Accommodations" (Exhibit A ) . The accommodations set forth for

Moslems were provided to the Chaplain by a volunteer Imam in

1989. An Imam is a Moslem scholar, a prayer leader and authority

on Islamic law. Neither the list (Exhibit A) nor the five basic

tenets, or pillars, of Islamic faith make any reference to

beards. Chaplain Smith also contacted a Moslem Chaplain in

Connecticut who did not provide sufficient information to

evaluate plaintiff's claim.

Warden Cunningham testified that he had never heard of a

3 requirement for a full beard as a part of the Islamic religion

when plaintiff raised the issue. He attempted to investigate

plaintiff's claim through the Islamic Education Center but

received no response to his calls. He invited plaintiff to have

the Maine professor contact him. A review of a one inch file of

materials on the Islamic religion collected by Chaplain Smith was

also undertaken by the Warden. The Warden has received no

information from any source to corroborate plaintiff's claims.

The purpose of the "clean shaven" policy is to assure easy

and prompt identification of inmates without facial hair. This

is particularly true in the event of an escape when thefirst

couple of hours are critical. One may alter or remove a beard in

fifteen minutes but cannot grow a beard in a few hours. Other

concerns include safety around machines and/or food and the

ability to hide contraband in a full beard.

DISCUSSION

In his motion plaintiff requests:

That a preliminary injunction order the defendants to permit the plaintiff to grow his beard as his religious faith requires. .

Motion for Preliminary Injunction at 9.

"The purpose of a preliminary injunction is to preserve the

status quo . . . to prevent further injury . . . thus enhancing

the court's ability, if it ultimately finds for the movant, to

4 minimize the harmful effects of the defendant's wrongful

conduct." CMM Cable Rep, v. Ocean Coast Properties, Inc., 4

(1st Cir. 1995).

In deciding whether to grant a preliminary injunction, a district court must weigh the following four factors (1) the likelihood of movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant eguities, i.e. "the hardship to the non­ movant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld," Narragansett Indian Tribe v. Guibert,

(1st Cir. 1991); and (4) the effect on the public interest of a grant or denial of the inj unction.

Gately v. Commonwealth of Massachusetts,

(1st

Cir. 1993). The "'sine qua non of (the preliminary injunction

standard) is whether the plaintiffs are likely to succeed on the

merits.'" JCd. at 1225 (citations omitted).

1. Likelihood of Success on the Merits.

The state has reserved its right to challenge the

constitutionality of RFRA but has not done so at this juncture.1

In any event the state has acknowledged that ". . . it is

appropriate to avoid addressing the constitutionality of a

1 A challenge is unlikely to be productive in any event. Defendants cited Flores v. City of Boerne,

(W.D Tex. 1995) as holding RFRA unconstitutional. However, the Fifth Circuit has already reversed. Flores v. City of Boerne,

(5th Cir. (Tex.)). All other courts which have considered RFRA's constitutionality have found it constitutional.

5 statute if possible (citations o m i t t e d ) Sasnett v. Department

of Corrections,

(W.D. Wise. 1995). Since

defendant has not at this time raised the constitutionality of

RFRA, the court will not address it.

RFRA provides in pertinent part:

(a) In General - Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception - Government may substantially burden a persons exercise of religion only if it demonstrates that application of the burden to the person - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

00Obb

"As an initial matter, a plaintiff alleging a violation of

RFRA must demonstrate that his right to the free exercise of

religion has been substantially burdened." Jolly v. Coughlin,

, *7 (2nd Cir. (N.Y.)). In determining whether

beliefs are entitled to free exercise protection

. . . scrutiny extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature . . . . (citation omitted). An inguiry any more intrusive would be inconsistent with our nation's fundamental commitment to individual religious freedom; thus, courts are not permitted to ask whether a particular belief is appropriate or true.

6

Plaintiff testified that a beard is not specified in the

Koran but is clearly required in the Hadith or traditions. He

did not identify to the Warden prior to suit nor to the court at

the hearing which Hadith specified beards as a religious

requirement. Defendants' testimony was to the effect that they

have been unable to verify that maintaining a full beard is a

tenet of Islamic religion despite good faith efforts to do so.2

At least one Islamic chaplain, however, has testified " . . . that

wearing a beard is not a religious obligation, as it is not

dictated by the Koran; but he acknowledged that beard wearing is

dictated by the Sunnah, and is a deeply rooted practice for some

Muslems." Lewis v. Scott,

(D. Tex.).

RFRA "requires courts to apply the law as set forth in two

earlier free exercise cases, Sherbert v. Verner,

(1963) and Wisconsin v. Yoder,

(1972). See 42

U.S.C. § 2000bb(b)(1)." Jolly v. Coughlin, supra at 49162. As a

result, threshold scrutiny is limited to two showings - sincerity

of the particular belief and a religious basis for the belief.

Yoder,

.

The defendants have not questioned the sincerity of

2 The efforts of the Warden and Chaplain are commendable and the court acknowledges that they reviewed the matter in good faith.

7 plaintiff's beliefs. They have questioned whether it is based on

religious belief since they have found no substantiation for such

a belief. Whether the prison policy is a substantial burden

depends on the importance of the belief. Here the facts strongly

support plaintiff's claim that he sincerely believes that beard

wearing is a religious practice dictated by the Sunnah.

Defendant has worn a beard for the eighteen years he has been a

Moslem. He spent punishment time in maximum security rather than

submit to the clean-shaven policy. He has pursued his beliefs

with the Warden and Chaplain.

Wearing a beard is, for the plaintiff, an important means of demonstrating obedience to his God. This obedience is of paramount importance within plaintiff's religious scheme, and its outward manifestations must also be protected if plaintiff's religious exercise is not to be substantially burdened. In sum, this absolute prohibition of an important religious practice is a substantial burden on plaintiff's exercise of his religion.

Lewis v. Scott,

(D. Tex.). The policy

substantially burdens this plaintiff's exercise of religion.

Plaintiff having carried his initial burden, the burden

shifts to the state to demonstrate that the policy furthers a

compelling state interest in the least restrictive manner. 42

U.S.C. § 2000bb-l(b)(1) and (2).

The legislative history of (RFRA) indicates Congress's intent that courts, even under the exacting standard revived by the act. 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. S. Rep. No. Ill, 103d Cong., 1st Sess., reprinted in 1993 U.S.C.C.A.N. 1892.

Lewis, 1995 WL at 769097.

Here, defendants have advanced two state interests. A full

beard, particularly in the event of an escape, makes guick

identification more difficult. Secondly, such beards provide a

place to hide contraband and make searches of inmates more

dangerous.

The Lewis court determined that "deference to prison

administrators reguires rejection of full length beards." Id.

In Luckette v. Lewis,

(D. Ariz. 1995), the

court stated that "[o]ne might conclude that a six inch beard, or

very long hair on one's head, may present a compelling health

hazard or . . . be a security risk . . . ." Both courts found,

however, that a trimmed 1/4 inch beard does not pose security or

identification problems.

In this case the prison permits 1/4 inch beards on a

"shaving pass" procedure when medically called for because of

skin irritation. The plaintiff, like the prisoners in Luckette

and Lewis, views even a 1/4 inch beard as an acceptable accommodation of his religious beliefs since he has applied for

such a pass without any medical proof of irritation.

Plaintiff did not claim that his religious beliefs reguired

a beard of any particular length but only that a beard was

reguired. If beards of 1/4 inch for medical reasons pose no

security or identification problems, then religious needs, which

are no less compelling, do not either. "The absolute prohibition

on beards is not the least restrictive means of achieving the

prison's compelling interest in security." Lewis v. Scott,

690 97.

Plaintiff has demonstrated a substantial likelihood of

success on the merits.

2. Irreparable Injury.

"[T]he loss of First Amendment freedoms, for even minimal

periods of time, unguestionably constitutes irreparable injury."

Elrod v. Burns,

, 96 S. C t . 2673,

(1976). Being unable to practice his religion by maintaining his

beard as he believes his religious faith reguires, plaintiff has

demonstrated irreparable injury.

3. Balancing the harm.

The prison "clean-shaven" policy prevents plaintiff from

practicing his religion as he believes is reguired. That is

clearly a substantial harm. Defendants, on the other hand, will

10 not be harmed since the allowable beard is too short to hide

contraband and a "clean-shaven" photo of plaintiff has already

been taken thereby eliminating or substantially decreasing the

escape identification risk. The balance of hardships is tipped

dramatically in favor of plaintiff.

PUBLIC INTEREST

Protecting religious freedom is in the public interest.

"Vindication of constitutional freedom and protection of First

Amendment rights is in the public interest." Albright v. Board

of Education of Granite School District,

(D. Utah 1991) (citations omitted). An injunction is in the

public interest where the state policy is a substantial burden on

religious practice and the state is unable to show a compelling

interest exercised in the least restrictive way.

CONCLUSION

Based upon the facts shown at the hearing and the

reguirements of RFRA, plaintiff has established his right to a

preliminary injunction. It is recommended that the motion

(document no. 3) be granted and that defendants be enjoined from

prohibiting plaintiff from maintaining a beard at a 1/4 inch

length.

Any objection to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

11 objections within the specified time waives the right to appeal

the district court's order. See United States v. Valencia-

Cooete,

(1st Cir. 1986) .

James R. Muirhead United States Magistrate Judge

Date: February 27, 1996

cc: Ervin Triplett, pro se Suzanne M. Gorman, Esg.

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