Lewis v. Sternes

• Decision Date: 28 March 2013
• Docket Number: No. 11–3297.,11–3297.
• Citation: 712 F.3d 1083
• Parties: Peter A. LEWIS, Plaintiff–Appellant, v. Jerry L. STERNES, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 1083

Peter A. LEWIS, Plaintiff–Appellant,

v.Jerry L. STERNES, et al., Defendants–Appellees.

No. 11–3297.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 14, 2013.

Decided March 28, 2013.

Peter A. Lewis, Dixon, IL, pro se.

Christopher M.R. Turner, Attorney, Office of the Attorney General, Chicago, IL, for Defendants–Appellees.

Before POSNER, WOOD, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff is an inmate of the Dixon Correctional Center, an Illinois prison. He brought this suit under 42 U.S.C. § 1983 against prison officials who he claims both violated his religious rights under the Constitution and denied him equal protection of the laws, but also under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq. (and a parallel state law, which we need not discuss), complaining that those same officials denied him an accommodation, to which he says the Act entitled him, of his religious observances. He appeals from the grant of summary judgment in favor of the defendants.

The plaintiff is a member of a religious sect called the African Hebrew Israelites of Jerusalem, and consistently with the creed of that sect he took the Nazirite vow, which among other things committed him not to cut his hair. As a result he wore his hair in dreadlocks, which form naturally in some people who do not cut their hair. About the sect and its creed and how compliance with the Nazirite vow by an African Hebrew Israelite of Jerusalem can result in the votary's hair forming dreadlocks see Grayson v. Schuler, 666 F.3d 450 (7th Cir.2012).

The present suit is a sequel to an earlier one, in which the plaintiff had claimed that the defendants had infringed his religious freedom by refusing to allow him to have visitors unless he consented to have his hair cut. That suit was settled in 2003; the parties agreed that the plaintiff could receive visitors, consistent however with the rules and regulations of the Illinois Department of Corrections, if he allowed prison staff to search his hair before and after any visit lest he be concealing contraband in his dreadlocks.

The settlement turned out to do nothing for the plaintiff. Although Illinois prison inmates are allowed to “have any length of hair” they want—provided, so far as bears on this case, that their hairstyle “do[es] not create a security risk,” 20 Ill. Admin.Code § 502.110(a)—the prisons have, consistent with that proviso, adopted grooming policies that require haircuts for any inmate whose hairstyle creates a security risk, including hairstyles that prevent searching hair effectively for contraband. We do not interpret the settlement as making an exception for our plaintiff.

Neither side suggests combing out the plaintiff's hair without cutting, so that though long (because uncut) the hair would be readily searchable because it would not have the thickness or density of dreadlocks. It is widely believed that dreadlocks can be removed only by cutting, and that is the most common method by far. But with the aid of a conditioner and a degreasing shampoo they can be combed out without any cutting, although it takes many hours. E.g., Dreadlocks.Org, “How to Remove Dreadlocks,” Oct. 31, 2005, www. dreadlocks. org/ how- to- remove- dreadlocks/ (visited March 15, 2013). We do not know whether the method is feasible in a prison setting; and if it is, yet it might take too much time to have enabled the plaintiff to appear in court on schedule (a critical event in this case, as we're about to see) without dreadlocks.

In January 2004, when the plaintiff was scheduled to appear in federal court in a case he had filed, the prison gave him a choice: a haircut, or segregation as punishment for eluding, by refusing a haircut, his scheduled trip to court. (Dropping his case apparently was not an option; the court had ordered him to appear.) He chose the haircut. He claims that the court date had been postponed (which is true), that the prison officials knew this, and that therefore the prison had no reason grounded in security concerns for making him cut his hair. There is dispute over which prison officials knew what and when about the looming court date. But it is undisputed that Lewis was transported to court shortly after his haircut. And it is obvious that transporting prisoners and placing them in courtrooms present significant security concerns, warranting protective measures. In any event, since Lewis's court date had merely been postponed, not canceled, he would have had to choose between the haircut and segregation eventually.

Although his motivation for not wanting to cut his hair is religious, he has no evidence that the prison made him cut his hair because of ignorance of his religion or its observances, as in the Grayson case. He complains that his prison's policy on dreadlocks is arbitrary and unjustifiable, and he also seeks an “accommodation”—that is, he wants the prison to make an exception for him from the policy (even if the policy is valid as applied to prisoners who have no religious claim) because of his religion.

Whether there is a constitutional as distinct from a statutory right to a religious accommodation is an open question, though one unnecessary to try to resolve in this case. It is open because of the tension, discussed both in Grayson v. Schuler, supra, 666 F.3d at 452–53, and in Vinning–El v. Evans, 657 F.3d 591, 592–93 (7th Cir.2011), between, on the one hand, the Supreme Court's decisions in O'Lone v. Shabazz, 482 U.S. 342, 348–50, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), and Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which create a First Amendment duty of religious accommodation in prisons, and on the other hand Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which denies a constitutional duty of religious accommodation in broad terms yet without overruling O'Lone or Turner. RLUIPA, however, unquestionably creates a statutory right of accommodation. See 42 U.S.C. § 2000cc–1; Sossamon v. Lone Star State of Texas, 560 F.3d 316, 335–36 (5th Cir.2009).

We said that the plaintiff is both seeking an exception, premised on his religion, from a rule of general applicability, which is an accommodation claim, and complaining that the rule is arbitrary. To forbid a person to engage in a sincere religious observance without a defensible reason is a violation of the free-exercise clause that is distinct from a refusal to bend a valid rule of general applicability in recognition that it interferes with a religious observance. One might think that, given RLUIPA, no one would bother to argue for the denial of his constitutional right to the free exercise of religion. For it is easier to prove that a defendant failed or is failing to accommodate a valid rule to a religious need, a determination that balances the defendant's need to apply the rule to the plaintiff against the plaintiff's interest in religious freedom, than to prove that the rule is invalid across the board. But because of differences in the remedies and procedures applicable to a RLUIPA case from those applicable to suits under 42 U.S.C. § 1983, a plaintiff will sometimes find it advantageous to proceed under section 1983 rather than, or (as in this case) as well as, under RLUIPA.

The plaintiff has presented no evidence, however, either that...