Fromer v. Scully, 717

Decision Date14 April 1989
Docket NumberD,No. 717,717
Citation874 F.2d 69
PartiesYevgen FROMER, Plaintiff-Appellee, v. Charles J. SCULLY, Harold J. Smith, Walter Kelly, Everett W. Jones, Thomas A. Coughlin, III, and Hirshel Jaffee, Defendants-Appellants. ocket 88-7885.
CourtU.S. Court of Appeals — Second Circuit

Joel W. Sternman, New York City (Jean Simonoff Marx, Rosenman & Colin, New York City, of counsel), for plaintiff-appellee.

Martha O. Shoemaker, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Howard L. Zwickel, Chief, Litigation Bureau, State of N.Y., New York City, of counsel), for defendants-appellants.

Before FEINBERG, KEARSE and WINTER, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from Judge Stewart's decision holding a regulation of the Department of Correctional Services of New York State ("DOCS") concerning the length of inmates' beards unconstitutional as applied to appellee Yevgen Fromer. This matter has been before both the district court and this court before. The district court originally held the regulation in question unconstitutional in Fromer v. Scully, 649 F.Supp. 512 (S.D.N.Y.1986) ("Fromer I "). We affirmed that decision in Fromer v. Scully, 817 F.2d 227 (2d Cir.1987) ("Fromer II "). The Supreme Court, however, vacated that judgment and remanded, Fromer v. Scully, --- U.S. ----, 108 S.Ct. 254, 98 L.Ed.2d 211 (1987), for further consideration in light of O'Lone v. Shabazz, 482 U.S. 342, 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). We in turn remanded. Fromer v. Scully, 837 F.2d 1086 (2d Cir.1987). On remand, the district court reaffirmed its prior decision. Fromer v. Scully, 693 F.Supp. 1536 (S.D.N.Y.1988) ("Fromer III "). We now reverse on the ground that the district court misapplied O'Lone and Turner.

BACKGROUND

Because the detailed facts are reported in Fromer I and Fromer II, only a brief summary is necessary.

DOCS Directive No. 4914, inter alia, forbids inmates from wearing beards exceeding one inch in length. Until 1976, DOCS rules prohibited inmates from wearing any beard at all, see Phillips v. Coughlin, 586 F.Supp. 1281, 1283 (S.D.N.Y.1984), and Directive No. 4914 resulted from litigation brought in 1976 by two groups of plaintiffs. Monroe v. Bombard, 422 F.Supp. 211 (S.D.N.Y.1976). The first group consisted of Sunni Moslem inmates who challenged the prohibition as an infringement of their right to exercise their religion. The second group consisted of inmates who claimed that medical necessity required them to grow beards and that the prohibition violated the Eighth Amendment. During the pendency of the Monroe litigation, the Commissioner of DOCS promulgated the original version of Directive No. 4914, which provided, inter alia, that after an initial shave and haircut, Sunni Moslems, but not other inmates, could grow beards Directive No. 4914 was then challenged by Moslem and other inmates who sought to wear groomed beards in accordance with their religious beliefs or were required to grow beards for medical reasons. Webb v. Dalsheim, 80 Civ. 7141 (S.D.N.Y.) (LBS); Farrad v. Walters, 81 Civ. 2705 (S.D.N.Y.) (LBS). Those suits resulted in a settlement approved by the district court. That settlement formed the basis for the final version of Directive No. 4914 that is challenged here, which allows all inmates to maintain a one-inch beard following an initial clean shave identification photograph.

                to a length of one inch.  Shortly thereafter, the district court held the prior no-beard rule unconstitutional.  Monroe, 422 F.Supp. at 215 n. 5, 218.    In 1977, Directive No. 4914 was modified to apply to all inmates
                

Appellee Fromer's challenge to Directive No. 4914 is founded on his claimed right of the free exercise of the Jewish religion. Raised in a small Jewish community in the Ukraine, Soviet Union, Fromer has, for most of his life, been an Orthodox Jew. After emigrating to the United States, he became involved in the Lubavitch Hasidic movement. He lapsed in his observance of Jewish laws in 1980, however, at which time he shaved off his beard. In 1983, he was convicted of selling cocaine. During his subsequent imprisonment, he decided to return to the observance of Jewish laws.

Fromer understood Jewish law to require him neither to trim nor to shave his beard, a belief that brought him afoul of Directive No. 4914. A series of disciplinary confrontations with DOCS ensued, and in August 1984 Fromer filed a pro se complaint alleging generally the deprivation of his religious freedom. After the appointment of counsel, he filed an amended complaint which, inter alia, specifically challenged Directive No. 4914.

A six-day bench trial followed, in which the district court heard testimony from a DOCS witness that the one-inch limit on beards was necessitated by a variety of government interests. First, the DOCS witness testified that beards longer than one inch would cause prison officials difficulty in identifying inmates. Fromer I, 649 F.Supp. at 519-20. Second, he stated that contraband of various types could be hidden in beards longer than one-inch. 649 F.Supp. at 520-21. Third, he testified that the one-inch regulation was "a neutral, consistent rule that can be understood easily by both staff and inmates," and that alternative regulations were likely to breed resentment among inmates as well as confrontations between inmates and guards. Id. at 521. Finally, he testified that untrimmed beards presented safety and hygiene hazards when worn by inmates assigned to food service or to the operation of machinery. Id. Fromer offered expert testimony tending to disprove the existence of the governmental interests claimed by DOCS.

In evaluating Fromer's claims, the district court applied the then-prevailing rule of this circuit enunciated in Wali v. Coughlin, 754 F.2d 1015 (2d Cir.1985). The Wali decision had established three different standards to be applied in specified circumstances. Where the right asserted was inherently inconsistent with established penological objectives, Wali required nearly absolute judicial deference to the judgment of corrections officials. Where the activity sought to be engaged in was presumptively dangerous, Wali called for broad, though not categorical, deference. Finally, where the activity sought to be engaged in was not presumptively dangerous, Wali required prison officials to show "that a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restriction are no greater than necessary to effectuate the governmental objective involved." Id. at 1033.

The district court determined that the wearing of beards longer than one inch was not presumptively dangerous. Applying, therefore, the third of the Wali standards, the court held that Directive No. 4914 was unconstitutional. Fromer I, 649 F.Supp. at 521. With regard to identification, the district court credited the testimony of Fromer's witness that one-inch beards disguised inmates' facial features In considering possible inmate resentment, the court noted that religions other than Judaism received special accommodation and credited the testimony of Fromer's witness that "prisoners do not resent exemptions for other prisoners based on sincere religious beliefs." It therefore held that the risk of resentment "d[id] not justify the impairment of Fromer's ability to observe his religious beliefs by growing his beard." Id. Finally, with regard to safety and hygiene, the court found that long beards posed no greater difficulty than long hair (which is allowed by prison regulations) and that other means were available to prison officials in the form of requiring beard guards and various sanitary measures. Id. Accordingly, the district court found Directive No. 4914 unconstitutional under the Wali standard. We affirmed. Fromer II, 817 F.2d at 232.

                no less than did longer beards.  In addition, the court held that prison officials had available to them "the less restrictive means of rephotographing the inmate whenever the growth of his beard significantly changes his appearance."    Id. at 520.    With regard to the concealment of contraband, the court found that inmates could conceal contraband in parts of their persons other than their beards, and that prison officials had available to them the less restrictive means of conducting beard searches.  Id. at 521
                

Following that affirmance, however, the Supreme Court expressly rejected Wali in O'Lone and Turner. Explaining that a less stringent test was needed "[t]o ensure that courts afford appropriate deference to prison officials," O'Lone, 107 S.Ct. at 2404, the Court directed lower courts to determine whether a challenged regulation is " 'reasonably related to legitimate penological interests.' " O'Lone, 107 S.Ct. at 2404 & n. ** (rejecting Wali and quoting Turner, 107 S.Ct. at 2261). The Court designated four factors governing the review of prison regulations: (i) whether there is a " 'valid, rational connection' " between the prison regulation and the legitimate governmental interest put forward to justify it, Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)); (ii) "whether there are alternative means of exercising the right that remain open to prison inmates," id.; (iii) "the impact accommodation of the asserted constitutional right will have no guards and other inmates, and on the allocation of prison resources generally," id.; and (iv) "the absence of ready alternatives [as] evidence of the reasonableness of a prison regulation." Id. (citing Block, 468 U.S. at 587, 104 S.Ct. at 3233). With regard to factor (iv), the Court noted that "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated...

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