Kuperman v . Wrenn, et a l . 08-CV-513-SM 08/27/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Albert R. Kuperman, Plaintiff

v. Civil N o . 08-cv-513-SM Opinion N o .

William R. Wrenn, Commissioner, New Hampshire Department of Corrections; Richard M. Gerry, Warden, New Hampshire State Prison; Michael A . Samson; and Steven E . Britton, Defendants

O R D E R

Albert Kuperman is an inmate at the New Hampshire State

Prison (“NHSP”). He brought suit to challenge a prison

regulation that prohibits an inmate from growing facial hair

longer than 1/4 inch. See

. An orthodox Jew,

Kuperman claims that the regulation violates his rights under:

(1) the free exercise clause of the First Amendment to the United

States Constitution; (2) the equal protection clause of the

Fourteenth Amendment; and (3) the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et

seq.1 Before the court is defendants’ motion for summary

1 Kuperman originally asserted a retaliation claim against Michael Samson and Steven Britton. During discovery, he indicated his intention to withdraw that claim, (see Defs.’ Mot. Summ. J., Ex. D ) , and he reiterated in his objection to summary judgment that he was no longer pursuing the retaliation claim (see Pl.’s O b j . to Summ. J., at 1 ) . judgment. Kuperman objects. For the reasons given, defendants’

summary judgment motion is granted.

Summary Judgment Standard

Summary judgment should be granted when the record reveals

“no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” FED. R . CIV.

P . 56(c). “The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’ ” Dávila

v . Corporación de P . R . para la Diffusión Pública,

(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st Cir. 2004)). “Once the moving party avers an

absence of evidence to support the non-moving party’s case, the

non-moving party must offer ‘definite, competent evidence to

rebut the motion,’ ” Meuser v . Fed. Express Corp.,

(1st Cir. 2009) (citing Mesnick v . Gen. Elec. Co.,

(1st Cir. 1991)), and “cannot rest on ‘conclusory

allegations, improbable inferences, [or] unsupported

speculation,’ ” Meuser,

(quoting Welch v . Ciampa,

(1st Cir. 2008)). When ruling on a party’s

motion for summary judgment, a trial court “constru[es] the

record in the light most favorable to the nonmovant and

resolv[es] all reasonable inferences in [that] party’s favor.”

2 Meuser,

(citing Rochester Ford Sales, Inc. v .

Ford Motor Co.,

2 , 38 (1st Cir. 2002)).

Background

It is undisputed that Kuperman’s religion requires men to

refrain from trimming their beards. New Hampshire prison inmates

are required to shave, but an exception to that general

requirement is described in a Policy and Procedure Directive

(“PPD”) on the subject of Religious Programming and Diets. PPD

7.17(IV)(D) provides:

Shaving Waivers: Inmates declaring membership in recognized faith groups, and demonstrating a sincerely held religious belief in which the growing of facial hair is of religious significance may request a shaving waiver. If approved, the shaving waiver allows an inmate to maintain a 1/4-inch neatly trimmed beard. No sculpting, shaping or selective shaving is allowed; all facial hair must be trimmed equally. If an inmate with a shaving waiver is found to have shaped his beard, he must shave clean and start again. . . .

(Defs.’ Mot. Summ. J., Ex. C , at 2.) And, unrelated to religious

preference, inmates assigned to special housing units within the

prison are shaved by barbers once a week (the Secure Psychiatric

Unit (“SPU”) and the Residential Treatment Unit (“RTU”)), or once

every two weeks (the Special Housing Unit (“SHU”)) — s o , some

inmates may possibly grow beards exceeding 1/4 inch in length.

(Generally speaking, those inmates are closely confined and are

not allowed even safety razors due to security concerns.)

3 Defendants say the regulation limiting the length of beards

(allowed only under special circumstances) to 1/4 inch, promotes

hygiene, safety, and security. (See Boyajian Aff. (document n o .

2 7 - 2 ) , ¶¶ 5-6.) That length allows correctional officers to

identify inmates easily, prevents inmates from hiding contraband

and weapons in beards, and minimizes the risk that an escaped

inmate could quickly change his appearance after an escape. (See

id. ¶ 5.) A grooming policy that allowed full beards, on the

other hand, would strain prison resources and/or relations

between inmates and staff by requiring the issuance of multiple

identification cards and by requiring more frequent inmate

searches. (See id. ¶ 6.) Moreover, such a policy would provide

escaped inmates with a fast and simple way to dramatically alter

their appearances. (See id.)

Kuperman claims that the regulation prohibiting beards

longer than 1/4 inch violates his First Amendment right to the

free exercise of religion, as well as his rights under RLUIPA.

He also argues that the NHSP’s uneven enforcement of its shaving

requirement (i.e., tolerating longer facial hair while inmates in

specialized housing units await weekly or biweekly shaving)

violates his Fourteenth Amendment right to equal protection.

4 Discussion

Defendants move for summary judgment on all three of

Kuperman’s claims, supporting their motion with affidavits from

Captain Charles Boyajian, unit manager of the SHU and the Close

Custody Unit at the NHSP in Concord, and Lieutenant Paul Cascio,

Lieutenant of Security for the SPU and the RTU at the NHSP in

Concord. Kuperman has produced only a single exhibit, a one-page

newsletter titled “Inmate Communications Committee,” that

includes a brief discussion of the NHSP shaving policy.

A . First Amendment Claim

Kuperman claims that Commissioner Wrenn and Warden Gerry are

violating his First Amendment rights by enforcing PPD

7.17(IV)(D), and precluding him from growing a full beard, as

required by his religion. Defendants counter that while the

prison’s beard-length restriction does impose on Kuperman’s

religious exercise, it is a reasonable restriction directly

related to legitimate penological interests.

“[I]mprisonment does not automatically deprive a prisoner of

certain important constitutional protections, including those of

the First Amendment.” Beard v . Banks,

(2006)

(citing Turner v . Safley,

8 , 93 (1987); O’Lone v .

Estate of Shabazz,

(1987)). “But at the same

time the Constitution sometimes permits greater restriction of

5 such rights in a prison than it would allow elsewhere.” Beard,

(citation omitted). Specifically, “restrictive

prison regulations are permissible if they are reasonably related

to legitimate penological interests and are not an exaggerated

response to such objectives.”

(quoting Turner,

) (internal quotation marks omitted).

Turner . . . sets forth four factors relevant in determining the reasonableness of the regulation at issue. First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available?

Beard,

(citations and punctuation omitted).

Defendants do not address the Turner factors, but argue that

the two affidavits they produced support a determination that the

limitation on beard length in PPD 7.17(IV)(D) is reasonably

related to several legitimate penological interests, such as

helping guards to identify inmates inside the prison, making it

more difficult for inmates to hide weapons or contraband, and

preventing inmates from easily changing their appearances in the

event they escape. With respect to such “matters of professional

judgment,” the court “must accord deference to the views of

6 prison authorities.” Beard,

. “Unless a prisoner

can point to sufficient evidence regarding such issues of

judgment to allow him to prevail on the merits, he cannot prevail

at the summary judgment stage.”

Like the plaintiff in Beard, Kuperman has not “offer[ed] any

fact-based or expert-based refutation in the manner the [civil

procedure] rules provide.”

. Thus, he has

“failed to point to specific facts in the record that could lead

a rational trier of fact to find in his favor.”

(citation and internal quotation marks omitted). Accordingly,

defendants, having proffered evidence sufficient to establish

that the regulation is reasonably related to legitimate

penological interests, evidence generally unrebutted by

plaintiff, are entitled to summary judgment on Kuperman’s First

Amendment claim. As the record stands, there is a rational

connection between the regulation and asserted penological

interests justifying i t ; an alternative means of exercising the

right claimed is available (a limited beard); allowing full

beards would certainly adversely impact prison administration

with respect to easy and accurate identification of inmates and

control of contraband; and, no ready alternative for effectively

serving the government’s interest is apparent here.

7 B . Fourteenth Amendment Claim

In his Report and Recommendation, the Magistrate Judge

construed Kuperman’s complaint to be claiming that the Warden

discriminated against him on account of both his religion and his

classification status, in violation of the Equal Protection

Clause of the Fourteenth Amendment. Specifically, he claims that

he was not allowed to grow a beard longer than 1/4 inch while in

a medium security unit, but inmates confined in high-security

units were allowed to grow beards of any length. Defendants have

countered with evidence, undisputed by Kuperman, that inmates in

some high-security units, who are not allowed to possess razors,

are shaved by barbers once a week or once every two weeks.

Kuperman has offered no evidence tending to show that any inmate

is permitted to grow a full untrimmed beard, or anything more

than a two-week growth of facial hair. See Meuser,

(“Once the moving party avers an absence of evidence to

support the non-moving party’s case, the non-moving party must

offer definite, competent evidence to rebut the motion . . .”)

(internal quotation marks and citation omitted). Moreover,

defendants have offered a rational basis for allowing some

inmates to go a week or two between shaves – the danger

associated with allowing them to possess razors, and the resource

limitations dictating time intervals between shaves by a barber.

Defendants are entitled to judgment as a matter of law on

Kuperman’s Equal Protection claim.

8 C . RLUIPA Claim

Kuperman also claims that enforcement of 7.17(IV)(D)

violates his rights under RLUIPA. Defendants counter that the

beard-length restriction is a lawful imposition on Kuperman’s

religious freedom, and is the least restrictive means of

furthering the state’s compelling interest in maintaining prison

safety and security.

That section of RLUIPA directed toward the religious freedom

of incarcerated persons provides, in pertinent part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

(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(a). The court of appeals for this circuit

recently explained that:

[A] claim under RLUIPA includes four elements. On the first two elements, (1) that an institutionalized person’s religious exercise has been burdened and (2) that the burden is substantial, the plaintiff bears the burden of proof. [42 U.S.C.] § 2000cc-2(b). Once a plaintiff has established that his religious exercise has been substantially burdened, the onus shifts to the government to show (3) that the burden furthers a compelling governmental interest and (4) that the

9 burden is the least restrictive means of achieving that compelling interest. Id.

Spratt v . R.I. Dep’t of Corr.,

3 , 38 (1st Cir. 2007).

Regarding the third and fourth elements, “in passing RLUIPA,

Congress stated that [courts] should continue to give ‘due

deference to the experience and expertise of prison and jail

administrators’ in determining prison policy.”

at 38-39

(quoting Cutter v . Wilkinson,

(2005)).

“However . . . inadequately formulated prison regulations and

policies grounded on mere speculation, exaggerated fears, or

post-hoc rationalizations will not suffice to meet the act’s

requirements.” Spratt, 482 F.3d at 39 (citation and internal

quotation marks omitted).

For purposes of summary judgment, defendants concede that

the beard-length regulation substantially burdens Kuperman’s

religious exercise. They argue, however, that the regulation

furthers a compelling governmental interest and is the least

restrictive means of achieving that interest. Kuperman counters

that defendants have failed to identify any compelling

governmental interest served by the beard-length restriction and

that enforcing the restriction against him is not the least

restrictive means of furthering its objectives. But Kuperman has

produced no evidence on this issue.

10 To meet their burden under the third element of Kuperman’s

RLUIPA claim, defendants must identify a compelling governmental

interest and must also establish that the beard-length

restriction furthers that interest. See Spratt, 482 F.3d at 39

(“merely stating a compelling interest does not fully satisfy

[the defendant prison’s] burden on this element of RLUIPA; [the

defendant] must also establish that prison security is furthered

by barring [the plaintiff prisoner] from engaging in any

preaching at any time”). Defendants have identified prison

security as a compelling governmental interest, and so it i s .

See id. at 39 (citing Cutter,

n.13). They have

also produced testimonial evidence from a senior NHSP

correctional officer to the effect that a restriction on the

length of inmate facial hair directly furthers institutional

security in three ways: (1) by making it easier for correctional

officers to identify inmates; (2) by depriving inmates of a means

to conceal weapons or contraband; and (3) by depriving inmates of

a way to quickly change their appearances.

Kuperman’s principal response is that defendants have failed

to advance any governmental interest to justify the beard-length

restriction, and that they have produced no evidence on the

issue. That, of course, is simply incorrect. Defendants have

produced Capt. Boyajian’s affidavit. That affidavit is evidence,

and at trial, Capt. Boyajian’s testimony would be entitled to

11 substantial deference. See Spratt, 482 F.3d at 38-39. While

Boyajian’s affidavit may be somewhat thin, it is not nearly as

deficient as the affidavit the court of appeals found wanting in

Spratt. See id. at 39-40. Kuperman, on the other hand, has

produced no evidence to counter Boyajian’s affidavit and, as a

consequence, has failed to establish a trialworthy issue of

material fact regarding the third element of his RLUIPA claim.

See Meuser,

.

Kuperman fares no better on the fourth element. “A 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.’ ” Spratt, 482 F.3d at 41 (quoting

Warsoldier v . Woodford,

(9th Cir. 2005); citing

Murphy v . M o . Dep’t of Corr.,

, (8th Cir. 2004);

Casey v . City of Newport,

, 114 (1st Cir. 2002)).

Capt. Boyajian’s affidavit demonstrates that defendants have, in

fact, considered the efficacy of less restrictive means to

achieve the prison’s security objectives. Again, Kuperman has

produced no evidence to create a trialworthy issue with respect

to the least restrictive means element. See Meuser,

. Of course, one might argue that a slightly longer beard

could serve the state’s legitimate interests as effectively,

while accommodating plaintiff’s religious obligations more

12 generously, but such modest degrees of difference are best left

to the judgment of prison administrators. That is particularly

so here, where the issue is not well-developed. Plaintiff has

not suggested, and the court cannot envision, plausible and

pragmatic lesser alternative means of meeting the prison’s

legitimate security concerns than a reasonable beard-length rule.

Because Kuperman has failed to produce evidence to counter

that produced by defendants on either the third or fourth

elements of his RLUIPA claim, defendants are entitled to judgment

as a matter of law on that claim.

Conclusion

For the reasons given, defendants’ motion for summary

judgment (document n o . 27) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

August 2 7 , 2010

cc: Nancy S . Tierney, Esq. Laura E . B . Lombardi, Esq.

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