Friedman v. State of Ariz.
| Decision Date | 16 May 1990 |
| Docket Number | 89-15696 and 89-16270,Nos. 89-15671,s. 89-15671 |
| Parties | Kenneth Andrew FRIEDMAN, Plaintiff-Appellant, v. STATE OF ARIZONA; Samuel Lewis, Director of Arizona Department of Corrections, Defendants-Appellees. (Two Cases) Arnold NAFTEL, Plaintiff-Appellant, v. STATE OF ARIZONA; Samuel Lewis, Director, Arizona Department of Corrections, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth Andrew Friedman, Tucson, Ariz., in pro per.
Catherine O'Grady, Meyer, Hendricks, Victor, Osborn & Maledon, Phoenix, Ariz., for plaintiff-appellant, Arnold Naftel.
Michael J. Cianci and June Ava Florescue, Asst. Attys. Gen., Phoenix, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before TANG, NORRIS and FERNANDEZ, Circuit Judges.
OVERVIEW
Kenneth Andrew Friedman ("Friedman") and Arnold Naftel ("Naftel") appeal the district court's decision to uphold the Arizona Department of Corrections' ("ADOC") Internal Management Policy No. 304.7 ("IMP 304.7") which prohibits facial hair. Friedman and Naftel assert that this regulation impermissibly infringes upon their First Amendment right to exercise their religion freely. Friedman also appeals the district court's denial of his motion for attorney fees for services he rendered as a paralegal. We affirm both of the district court's decisions.
On December 6, 1988, ADOC enacted a new grooming policy. The grooming policy permits mustaches, sideburns, and shoulder length hair. However, the policy prohibits full or partial beards, unless the prisoner for medical reasons cannot shave. Medical exemption beards cannot exceed one-fourth inch. The policy provides no religious exemption to this prohibition.
Friedman and Naftel each filed pro se 42 U.S.C. Sec. 1983 complaints which sought permanent injunctive relief to prevent the new grooming policy from being enforced against them. Both complaints alleged that Friedman and Naftel, as Orthodox Jews, could not shave their beards without transgressing their religious beliefs.
On December 7, 1988, the district court granted both Friedman and Naftel temporary restraining orders preventing enforcement of the regulation. At the December 13, 1988 hearing on the preliminary injunction, the district court lifted Naftel's temporary restraining order, but left Friedman's order in place. The district court differentiated between the two because Naftel posed the more serious escape risk.
On February 23, 1989, the district court held a one-day trial on the validity of the regulation. At the trial, appointed counsel represented both prisoners. Both Friedman and Naftel testified as to the sincerity of their Jewish faith and the impact of IMP 304.7 on their religious practices.
They also testified about the ways in which the ADOC allows them to exercise their faith. Friedman testified that in his prison facility in Florence, Arizona, he can obtain one kosher TV dinner a day. Friedman also testified that although a rabbi visits the Florence unit, he does not see him often. Naftel testified that in his prison facility in Tucson, he, like Friedman, could get a kosher TV dinner. Naftel stated that he had not seen a rabbi in the four months he had been in the Tucson unit.
A rabbi testified that having a beard is a legitimate Jewish belief. The rabbi also outlined the source of this tradition. In addition, he testified that some segments of the Jewish community forgo the wearing of a beard. However, he also testified that some segments of the Jewish community view a beard as a matter of fundamental importance.
The government had only one witness, J.C. Kenney. Kenney testified that he had worked in the corrections field since 1960. Kenney stated that he had testified as an expert on corrections on 20 occasions. At the time of the hearing, Kenney oversaw Arizona's nine adult correctional facilities.
Kenney testified that the ADOC's primary goal in instituting a new grooming policy was to be able "to rapidly and accurately identify inmates." Kenney testified that a no beard policy aided rapid and accurate identification because looking at facial characteristics on a clean shaven face constitutes a quick and accurate way to identify prisoners. Kenney claimed that beards frustrate use of facial characteristics to identify prisoners because they can either hide or change facial characteristics. Moreover, Kenney suggested that beards make rapid changes in facial characteristics possible because a prisoner can quickly alter his facial characteristics by growing a beard, grooming a beard in a particular way, or shaving off a beard.
Kenney testified that rapid and accurate identification serves three prison objectives. First, rapid and accurate identification aids in orderly conduct of day-to-day activities which require identification. These activities include picking up legal mail, going to the inmate store, and, sometimes, eating meals. Second, rapid and accurate identification helps control prison disturbances because it assists guards in determining who are the prisoners that caused a disturbance. Third, rapid and accurate identification aids in apprehending a prisoner who has escaped.
Kenney rejected the possibility of accommodating Friedman and Naftel by granting them religious exemptions. Kenney asserted that many prisoners would suddenly claim they were Jews in order to grow a beard. In addition, Kenney asserted that other groups--Sikhs and Moslems--would also seek exemptions. To support these assertions, Kenney related his prior experience in the Oregon prison system. Kenney indicated that so many prisoners sought certification as Jews in order to obtain privileges that the requests for certifications overwhelmed the prison rabbi.
Kenney also rejected the alternative of having two photographs of prisoners--one with a beard; one clean shaven. Kenney suggested that the problem with photographing prisoners with beards is that any facial hair growth can be altered. After a beard is grown, it can be cut in a variety of different lengths and styles. Thus, Kenney indicated a photograph of a bearded prisoner may not be an accurate portrayal of his appearance.
On March 27, 1989, the district court held that the ADOC's grooming policy is constitutional because "the Policy comports with the United States Supreme Court's standard [in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ] as a raonally Naftel and Friedman each filed a timely appeal. In addition, Friedman filed pro se for an injunction preventing enforcement of the grooming policy pending appeal. At an April 17, 1989 hearing, the district court granted Friedman's request.
related limitation on the enjoyment of plaintiffs' first amendment religious freedoms." Accordingly, the district court dismissed both Friedman's and Naftel's complaint
On June 26, 1989, Friedman filed a motion for attorneys' fees pursuant to 42 U.S.C. Sec. 1988. The district court denied this motion because it found that Friedman was neither a prevailing party nor an attorney. Friedman timely appealed this decision.
Friedman and Naftel argue that IMP 304.7 unconstitutionally restricts their First Amendment right to exercise freely their Orthodox Jewish faith.
Whether IMP 304.7 impermissibly restricts Friedman's and Naftel's first amendment right is a mixed question of law and fact. Determination of the appropriate standard for reviewing such an issue is controlled by United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). McConney sets forth the rule that "to classify mixed questions of law and fact for standard of review purposes, we adopt a functional analysis that focuses on the nature of the inquiry required when we apply the relevant rule of law to the facts as established." Id. at 1204. Engaging in such an analysis here, we hold that the constitutional question raised by Friedman and Naftel requires de novo review because "the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles." Id. at 1202.
In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. 482 U.S. at 89, 107 S.Ct. at 2261.
The Turner court suggested a four factor test to determine whether a regulation reasonably relates to legitimate penological interests:
(1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it;
(2) whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates;
(3) the impact that accommodation of the asserted right will have on guards, other inmates, and prison resources; and
(4) the absence of ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.
Harper v. Wallingford, 877 F.2d 728, 732 (9th Cir.1989) (emphasis in original); see also Turner at 482 U.S. 89-90, 107 S.Ct. at 2261-62; O'Lone v. Estate of Shabazz, 482 U.S. 342, 350-52, 107 S.Ct. 2400, 2405-06, 96 L.Ed.2d 282 (1987). 1
We conclude that IMP 304.7, as applied to Friedman and Naftel, meets the reasonable relation test of Turner. All of the four factors weigh in favor of the regulation.
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