Blanken v. Ohio Dept. of Rehabilitation & Correction

• Decision Date: 30 October 1996
• Docket Number: No. C-2-94-991.,C-2-94-991.
• Parties: Billy J. BLANKEN, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

944 F.Supp. 1359

Billy J. BLANKEN, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.

No. C-2-94-991.

United States District Court, S.D. Ohio, Eastern Division.

October 30, 1996.

COPYRIGHT MATERIAL OMITTED

William J. O'Malley, Columbus, OH, for plaintiff.

Cheryl F. Jorgensen, Ohio Attorney General — 2, Mary Beth Foley, Ohio Attorney General — 2, Employment Law Section, Columbus, OH, for defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff Blanken is a correctional officer who works for Defendant Ohio Department of Rehabilitation and Correction ("ODRC"). Blanken practices Native American Spirituality, and believes that growing one's hair at the base of the neck is essential to obtaining spiritual knowledge and wisdom. ODRC's Employee Grooming Policy (the "Policy") requires male uniformed personnel such as Blanken to keep their hair "collar length or shorter in the back."

The conflict between the ODRC Policy and Blanken's desire to keep his eight-inch ponytail has brought the parties before this Court.¹ Both sides move for summary judgment (Docs. 9 & 14).² Based on the following, the Court grants defendants' summary judgment motion and denies plaintiff's summary judgment motion.

I.

A. Billy J. Blanken, Jr.

Plaintiff Blanken has worked for ODRC since July 1988 as a Food Service Coordinator 1 at the Orient Correctional Institution ("OCI"). Blanken supervises about thirty inmates who work in the kitchen area. Blanken assures that inmates are in proper uniform, clean, follow proper sanitation procedures, and ration only the correct amount of food to each inmate.

Blanken practices Native American Spirituality and is a member of the Hokshichankiya Society. He identifies four central tenets of Native American Spirituality: the Sweat Lodge, the Sacred Pipe, the Vision Quest, and the growth of hair. According to Blanken, no one of these tenets has any more importance than any other, and Native American Spirituality does not mandate any one of them. As to hair growth, Blanken states as follows:

According to Native American Spirituality, and my sincerely held religiously held beliefs as a practitioner of Native American Spirituality, a person's hair is an organ, a manifestation of being and a symbol of growth, strength and individuality. The human hair is the only thing that passes from the outside world, through our flesh, and into the human body. Thus, I believe and it is believed that the human hair can pick up the messages of the spirits in the wind. Because the hairs at the base of the neck are rooted directly to the spinal column, I believe and it is believed that these hairs provide a direct link between the spirits in the wind and the human brain. Therefore, to cut these hairs would sever this vital link between myself and the spirits, and to force me to cut these hairs would substantially burden my religious beliefs.

Blanken Aff. at ¶ 9.

Blanken says that he first decided to allow his hair to grow after his experiences during a Vision Quest. A Vision Quest is "a practice of going alone to the highest hilltop or mountain with one's sacred pipe and remaining there for a chosen number of days and nights ... in which one fasts and prays and hopes for the spirits to bring information, wisdom and knowledge to give direction and enlightenment." Blanken Aff. at ¶ 8; accord United States v. Means, 627 F.Supp. 247, 253 n. 3 (D.S.D.1985) ("A Vision Quest is a ceremony involving fasting, praying and a calling to a supreme being to direct the seeker by a vision.") (internal quotations omitted).

I fasted for two days and I received my vision after the second evening. It was during the night. And I had went off to sleep and this is when the vision came to me, much like a dream. And it was telling me how we all are one in the circle of life. And that's pretty much when I made up my mind that Native American spirituality was the right direction for me. I was also told at that time that the hair that connects the spinal column is a way for me to receive messages from the spirits through the wind.

Blanken Dep. at 41-42.

B. ODRC Employee Grooming Policy

When Blanken first joined ODRC at OCI in 1988, ODRC had no formal grooming policy. Director George Wilson appointed a committee on January 11, 1990 to develop a formal policy on uniforms. After consulting with the union representing uniformed staff, the Ohio Civil Service Employees Association, ODRC adopted the Policy on June 1, 1992. ODRC intended that the Policy cause "employees [to] present a professional and dignified image, commensurate with their responsibilities, in order to instill confidence on the part of the public and establish respect from the inmates, parolees, furloughees, and probationers." See Policy at p. 2 ("IV. Policy"). The Policy specifically addresses hairstyle as follows:

2. Hairstyle shall not interfere with the wearing or the proper positioning of the uniform cap. Hair shall be styled above the eyebrow in the front. Certain hairstyles may be considered incompatible with a professional and dignified appearance.

a. Male employees' hair shall be evenly cut and neatly groomed. Hair must be cut in such a style that it does not cover the entire ears on the sides and is collar length or shorter in the back.

b. Facial hair must be neatly and evenly trimmed. Facial hair may be prohibited where it prevents the proper wearing and sealing of gas masks and self-contained breathing apparatus for those employees that are required to do so.

c. Female employees' hair may not be worn below the shoulders and must be off of the collar when wearing the uniform cap. Female employees with hair longer than shoulder length may pull it back, pin it up, etc., to achieve this.

Policy at p. 2.

After ODRC adopted the Policy, OCI's Deputy Warden of Administration notified Blanken that he would have to cut his hair or face termination. ODRC's Acting Chief Counsel indicated that ODRC would make no exceptions to the Policy, religious or otherwise.

Blanken filed the instant action on October 14, 1994, against the ODRC and the Warden of OCI, Jack Littlefield, seeking injunctive relief under 42 U.S.C. § 1983, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ("RFRA"), and Ohio Rev.Code § 4112.99. The Court denied Blanken's motion for a preliminary injunction on September 20, 1995, in part because Blanken did not show a substantial likelihood of success on the merits. The parties now move for summary judgment.

II.

Fed.R.Civ.P. 56(c) sets forth the procedure for addressing a summary judgment motion:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The Court must view the evidence in the light most favorable to the nonmoving party. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). The court in Street identified several important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.

In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257, 106 S.Ct. at 2514-15). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id.; see also Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1098 (6th Cir.1993), cert. denied, ___ U.S. ____, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1994). That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.

III.

The RFRA provides a statutory claim for individuals whose religious exercise is substantially burdened by the government. 42 U.S.C. § 2000bb(b). Congress enacted the RFRA in response to the U.S. Supreme Court's decision in Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) In Smith the Court inquired whether a governmental burden on religiously motivated action is both "neutral" and "generally applicable." Before 1990, the...