Jihaad v. O'Brien

• Decision Date: 09 April 1981
• Docket Number: Nos. 79-1104,79-1105,s. 79-1104
• Parties: Kareem Abdul JIHAAD a/k/a Mitchell X. Robinson, Jr., Plaintiff-Appellee Cross- Appellant, v. Joseph O'BRIEN, * Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 556

645 F.2d 556

Kareem Abdul JIHAAD a/k/a Mitchell X. Robinson, Jr., Plaintiff-Appellee Cross- Appellant, v. Joseph O'BRIEN, ^* Defendant-Appellant Cross-Appellee.

Nos. 79-1104, 79-1105.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 4, 1981.

Decided April 9, 1981.

Richard A. Rossman, U. S. Atty., L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., Earl Kaplan, Lawrence Lippe, Philip B. Heymann, Crim. Div., Sp. Litigation Dept., Dept. of Justice, Washington, D. C., for defendant-appellant cross-appellee.

Sheldon J. Stark, Detroit, Mich., for plaintiff-appellee cross-appellant.

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

LIVELY, Circuit Judge.

This is an appeal by a federal prison official from a judgment awarding damages to a prisoner in a Bivens ¹ type action. The amended complaint contained a general charge of violations of the 1st, 5th, and 8th Amendments. For present purposes, the only claim of constitutional violation set forth with specificity in the amended complaint was the charge that the plaintiff was placed in disciplinary segregation for refusing to shave his beard, and that the order to shave infringed his right to the free exercise of religion and was contrary to a prison policy on inmate grooming. The opinion of the district court upon which the judgment was based found a violation with respect to the First Amendment free exercise claim only and that was the only constitutional issue argued on appeal.

I.

When the plaintiff arrived at the Federal Correctional Institution (FCI) at Milan, Michigan in June 1975 he was wearing a beard. He shaved it without protest when ordered to do so for prison photographs. Sometime later, while still a prisoner at FCI Milan, he began to grow another beard. On August 5, 1975 the plaintiff was ordered by a staff officer to shave his beard and he refused to do so. On August 6 plaintiff was notified that he would be given a hearing before the Institution Discipline Committee (IDC) on charges that he had violated prison rules by refusing to obey the order of a staff member and failing to follow safety and sanitation regulations. Plaintiff appeared and testified at the IDC hearing. He was found guilty of refusing to follow an order and was placed in disciplinary segregation. He was released from segregation after seven days and eventually was transferred to another institution.

A.

Plaintiff testified that he had been an atheist, but had become a Black Muslim while at the Federal Correctional Institution at Ashland, Kentucky. Before his transfer from Ashland to Milan he had embraced the Sunni Muslim sect of Islam. When first ordered to shave by the FCI Milan staff officer plaintiff told the officer that to do so would violate the tenets of his faith as a Sunni Muslim. At the IDC hearing he repeated this claim and relied on Bureau of Prisons Policy Statement 7300.64A, then in effect, which provided in part:

6. Mustaches and Beards

Beards are not permitted, since they most readily compromise security because of the consequent rapid modification of appearance.

On those occasions where it has been demonstrated that religious beliefs proscribe shaving of beards, and the inmate had the beard on commitment, special allowances should be made.

He also stated that it was his understanding that there was an agreement that no punishment would be imposed on Sunni Muslims at FCI Milan for wearing beards until their status under the grooming regulation was clarified.

The defendant Beall, warden at FCI Milan, testified in district court that he knew of no agreement to withhold punishment of Sunni Muslims for violation of the no-beard policy. Warden Beall also testified that when the Sunni Muslims at FCI Milan raised a question concerning application of the grooming regulation to them he had one of the Milan chaplains research the matter. The chaplain concluded that wearing a beard is not a requirement of the Sunni Muslim faith. The defendant O'Brien, Chairman of the IDC, testified that the determination by the chaplain was made prior to the hearing involving plaintiff, and that plaintiff was advised at the hearing of this determination. O'Brien also testified that the office of the general counsel of the Bureau of Prisons was contacted and it concurred in the chaplain's determination.

The plaintiff testified in district court that he had been wearing a "religious beard" before his arrival at Milan and that he shaved it for prison photographs because he was afraid of the consequences if he refused. He said that he felt guilty afterwards because he knew it was wrong to shave. On cross-examination he stated that although wearing a beard was required for him, he did not follow some of the other recommendations for Sunnis. This was consistent with his later testimony that he picked and chose which recommended Sunni Muslim practices to follow. He also testified that he was a member of a group of Sunnis for whom wearing a beard was recommended but not required. He testified at one point that he grew the beard because he thought he was entitled to under policy 7300.64A. Plaintiff testified that the defendant O'Brien told him that he, O'Brien, was running a prison and was not interested in the plaintiff's constitutional rights. O'Brien emphatically denied making this statement. O'Brien said he accepted the sincerity of the plaintiff's belief that wearing a beard was a requirement of his faith for him.

The defendant Carlson, Director of the Bureau of Prisons, testified that the "special allowances" provision of the policy statement was for the benefit of Amish and Orthodox Jewish prisoners, but that it should have been applied to members of other religions for whom not shaving was a religious requirement. The primary purpose of the no-beard policy was to prevent easy alteration of a prisoner's appearance in event of escape. The policy has subsequently been rescinded.

B.

The district court rendered two opinions in this case. In the first, a published memorandum, the court denied the defendants' motion to dismiss the complaint and held that the plaintiff was entitled to a hearing. See Jihaad v. Carlson, 410 F.Supp. 1132 (E.D.Mich.1976). Following this ruling the plaintiff filed his amended complaint seeking damages of $1,000,000 ($500,000 compensatory and $500,000 punitive), costs and attorney fees. No injunctive or declaratory relief was sought. The answer of the defendants included an affirmative defense of good faith immunity. The district court then held two hearings, one to determine if the Sunni Muslim faith forbade shaving and a bench trial on the merits of plaintiff's claim and the defenses interposed. At the first hearing the plaintiff and a professor of Arabic and Islamic studies testified. It was at this hearing that plaintiff testified he felt wearing a beard was required for him but that he did not follow other recommended actions for Sunni Muslims. The testimony of the professor was that a Sunni cannot pick and choose among recommended actions, but would follow all of them. ² For a Sunni, "it is a must to wear a beard." The other testimony referred to earlier in the opinion was received at the later hearing on the merits.

At the close of the plaintiff's case at the bench trial the district court dismissed Director Carlson and Warden Beall upon a finding that they were not personally involved in the action of which plaintiff complains. The plaintiff has not appealed these dismissals. At the conclusion of the trial the District Judge announced his decision that the plaintiff's constitutional rights had been infringed, but that he was entitled only to "nominal damages." The court stated that the defendant O'Brien had erred in basing his decision upon a determination that Sunni Muslims are not absolutely required to wear beards. Once it was established that the plaintiff sincerely believed he had to wear a beard, the court stated, it was wrong to discipline him for doing so. In the course of his ruling, the District Judge stated that O'Brien did not act maliciously, but it was sufficient that he acted intentionally:

I am not finding that Captain O'Brien maliciously intended to deprive the Plaintiff of a constitutional right.

I find that Captain O'Brien did intend to deprive him of a constitutional right, since what he did was to order him to take off his beard. And if he didn't do that, he was to be placed in segregation, and he was placed in segregation. That was an intentional act on Mr. O'Brien's part.

I find that intentional act was aimed at depriving Mr. Jihaad of his constitutional right to exercise his religious beliefs as he sincerely felt them to be. The policy of the prison did not proscribe beards if there was a finding as the regulation states it.

I find that Captain O'Brien's conduct intentionally violated Mr. Jihaad's right to exercise his religious belief.

Subsequently the district court filed a "Supplemental Opinion" (unpublished) which incorporated and expanded upon his rulings from the bench. In this opinion the court found that O'Brien was not entitled to immunity from an action for damages on the basis of good faith, even though he had not acted maliciously:

Although the Policy Statement as interpreted by the prison authorities and by O'Brien protects him from any claim that he acted maliciously in ordering plaintiff to shave, this does not mean that he acted without intent to deprive plaintiff of his constitutional rights. (Emphasis in original).

Plaintiff's failure to prove defendant acted maliciously, therefore, does not render defendant immune from suit under Bivens.

The court also held that O'Brien could not claim good faith immunity on the ground that plaintiff's constitutional rights "in this regard" were so ill-defined that he could not have intended to violate those rights by enforcing prison policy. O'Brien should have been fully aware of the plaintiff's right to the...