Monroe v. Bombard

• Decision Date: 22 October 1976
• Docket Number: No. 76 Civ. 1897.,76 Civ. 1897.
• Citation: 422 F. Supp. 211
• Parties: Alfred MONROE a/k/a Ismail Abdur Rahim et al., Plaintiffs, v. Roy BOMBARD, Individually and as Superintendent of Greenhaven Correctional Facility, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

422 F. Supp. 211

Alfred MONROE a/k/a Ismail Abdur Rahim et al., Plaintiffs, v. Roy BOMBARD, Individually and as Superintendent of Greenhaven Correctional Facility, et al., Defendants.

No. 76 Civ. 1897.

United States District Court, S. D. New York.

October 22, 1976.

COPYRIGHT MATERIAL OMITTED

Donald Grajales, Project Director, Bronx Legal Services Corp. by Stephen M. Latimer, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of the State of New York by Kevin J. McKay, Deputy Asst. Atty. Gen., New York City, for defendants.

OPINION

ROBERT L. CARTER, District Judge.

Plaintiffs have moved for an injunction barring the application of the no-beard rule at the Greenhaven Correctional Facility to those inmates required to grow beards out of medical necessity, and to members of the Sunni Muslim religion who must grow beards in the free exercise of their religious beliefs. In addition, plaintiffs have moved for class action certification. To the extent indicated herein, plaintiffs' motions are hereby granted.

Facts:

On April 27, 1976, plaintiff Monroe filed a pro se complaint challenging the application of the rule prohibiting the wearing of beards at the Greenhaven Correctional Facility ("Greenhaven") and seeking injunctive relief and damages. On June 23, 1976, an amended complaint was filed by the named plaintiffs, all of whom are confined at Greenhaven, on behalf of themselves and all others similarly situated. Jurisdiction was founded on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3). The amended complaint, which seeks injunctive and declaratory relief, and damages, alleges that plaintiffs are required to grow beards for medical or religious reasons, or both, and that they have been forbidden to do so by the Greenhaven administration.

Named as defendants in the action were Roy Bombard, the Superintendent of Greenhaven, and the man responsible for the overall operation and management of the institution; Walter Fogg, Deputy Superintendent at Greenhaven in charge of security; and Officers Sperbeck, Seitz and Murray, who are correctional officers on the staff at Greenhaven.

On May 3, 1976, plaintiffs moved for a preliminary injunction. Hearings on the motion were held on May 13, June 3, June 24, and July 1, 1976.

Discussion

I The Medical Claim

Regulation 2.5 of the Greenhaven Correctional Facility Inmate Handbook of Rules and Regulations (June, 1975) provides that "a beard of any type is not allowed".¹ The testimony indicates that the only exception to this rule is made in cases of medical necessity. In a memorandum to all inmates dated June 25, 1976, Superintendent Bombard restated the facility's policy in this regard as follows:

"If an inmate believes he has a skin condition which becomes aggravated by shaving regularly, he should be examined by one of the Facility Physicians, for treatment of this condition. If the attending physician believes that regular shaving is a causative factor, he may issue an order exempting the inmate from shaving with a razor. This order authorizes the inmate to shave with clippers available in the housing units or barber shop. Beard growth may not exceed one quarter of an inch. Orders are written for a period not to exceed 30 days and may be reissued if the physician deems this to be necessary."

Several of the named plaintiffs suffer from a skin condition known as pseudo folliculitis barbe.² According to the testimony of Dr. Oliver Fein, a dermatologist on the faculty of the Albert Einstein College of Medicine, this condition is relatively common among blacks. The treatment of choice for the disease is to allow the facial hair to grow without shaving. According to Dr. Thomas Rigney, Regional Director of Health Services of the New York State Department of Corrections, the policy at Greenhaven is to treat pseudo folliculitis by allowing inmates to grow beards not in excess of one quarter inch in length. According to Dr. Rigney, the quarter inch in length is sufficient to avoid aggravating or irritating the skin. Dr. Fein testified, however, that in his expert opinion, a beard of one quarter inch length would, in some circumstances, be too short to allow effective treatment of the condition. Indeed, one of the witnesses testified that he continued to suffer from pseudo folliculitis when forced to trim his beard to a quarter inch length.

While it is true that Dr. Rigney has had considerable experience in treating pseudo folliculitis, there is absolutely no justification for a rigid rule with regard to beards grown out of medical necessity. Inmates who must grow beards for medical reasons are entitled to have that right regulated by competent medical advice — not by administrative fiat. Accordingly, defendants are hereby ordered to modify their present policy with respect to beards grown for medical reasons so that beards in excess of one quarter inch in length may be grown in cases where the medical staff at the prison has determined that this is necessary in order to treat an inmate's condition properly.

It is important to note that several of the witnesses testified that for a period of time commencing in August, 1975, the doctors at the prison were prohibited from issuing medical passes to grow beards unless such passes had first been cleared by the administrative staff. That testimony was never directly refuted.

It is now well settled in this circuit that deliberate indifference to the medical needs of a prisoner violates 42 U.S.C. § 1983. See, e. g., Bishop v. Stoneman, 508 F.2d 1224, 1225 (2d Cir. 1974); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970). Moreover, the arbitrary and capricious actions of certain guards and supervisory officers at the Greenhaven Facility in failing to implement, indeed in subverting prison regulations, amounts to a fundamental deprivation of plaintiffs' due process rights. Since I have been assured, however, that the current policy with respect to beards grown out of medical necessity is as it has been restated by the Superintendent on June 25, 1976, and since I am confident that this policy will remain in effect, as modified in accordance with this opinion, no further order need be issued.

II The Religious Claim

Each of the named plaintiffs is a follower of the Orthodox Islam religion, commonly known as Sunni Muslims.³ Hamim Abdul Ahad, a Sunni Muslim minister, testified that Muslims are admonished to "wear beards and clip the mustache."⁴ Apparently, no minimum length to which beards should be grown is required by the Sunni Muslim religion. The operation of Regulation 2.5, however, prevents Sunni Muslims at Greenhaven from conforming altogether with this requirement of their religion. Despite repeated requests to, and conferences with prison officials, Sunni Muslims have been consistently refused permission to grow beards.⁵

Furthermore, the record is replete with evidence of punitive sanctions being applied against Sunni Muslims who refused to shave their beards. These sanctions included loss of commissary and other privileges, loss of medical appointments outside the institution and keep-lock (continuous confinement) for substantial periods of time.

When an individual is forced by threat of state-imposed sanction to perform acts "undeniably at odds with fundamental tenets of his religious beliefs", the First Amendment's guarantee of the free exercise of religion become seriously jeopardized. Wisconsin v. Yoder, 406 U.S. 205, 218, 92 S.Ct. 1526, 1534, 32 L.Ed.2d 15 (1972). While it is true that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system", Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948), it is equally true that a convicted prisoner does not forfeit his constitutional protections when the prison gate closes behind him. Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976). See also, Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975).

In the context of First Amendment liberties, courts have frequently intervened to insure that the rights of prisoners to practice their religious beliefs were given adequate scope. Thus, "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty," Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 n. 2 (1972). See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Mukmuk v. Commissioner of Dep't of Correctional Services, 529 F.2d 272, 275 (2d Cir. 1976); Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975); LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir. 1972), cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973); Pierce v. LaVallee, 293 F.2d 233 (2d Cir. 1961); Maguire v. Wilkinson, 405 F.Supp. 637, 639 (D.Conn.1975); see also, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Sostre v. McGinnis, 334 F.2d 906, 908 (2d Cir.), cert. denied, 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96 (1964). What emerges is the government's obligation to reconcile a prisoner's First Amendment right to the free exercise of religion "with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, supra, 417 U.S. at 822, 825-26, 94 S.Ct. at 2804. See also, Kahane v. Carlson, supra, 527 F.2d at 495.

While there is no binding precedent within this circuit defining the right of a member of an established religion to wear a beard in prison, this circuit's recent decision in Burgin v. Henderson, supra, provides...