Grayson v. Schuler

• Decision Date: 13 January 2012
• Docket Number: No. 10–3256.,10–3256.
• Citation: 666 F.3d 450
• Parties: Omar GRAYSON, Plaintiff–Appellant, v. Harold SCHULER, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

666 F.3d 450

Omar GRAYSON, Plaintiff–Appellant,

v.Harold SCHULER, Defendant–Appellee.

No. 10–3256.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 22, 2011.Decided Jan. 13, 2012.

Omar Grayson, Homewood, IL, pro se.

Mary Ellen Welsh, Attorney, Office of the Attorney General, Chicago, IL, for Defendant–Appellee.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, a former inmate of the Big Muddy Correctional Center, an Illinois prison, brought this suit under 42 U.S.C. § 1983 against a correctional officer who ordered the forcible shearing of the plaintiff's dreadlocks. The plaintiff argues that the order (which was carried out) violated the free exercise clause of the First Amendment. The district judge granted the defendant's motion for summary judgment and dismissed the case.

Inmates' complaints that prison authorities have infringed their religious rights commonly include a claim under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq., which confers greater religious rights on prisoners than the free exercise clause has been interpreted to do. See 42 U.S.C. § 2000cc–1; Cutter v. Wilkinson, 544 U.S. 709, 714–17, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). The plaintiff doesn't mention the Act, but he is proceeding pro se and in such cases we interpret the free exercise claim to include the statutory claim. Ortiz v. Downey, 561 F.3d 664, 670 (7th Cir.2009). But the Act can no longer do him any good. Although his complaint is none too clear, he appears to be seeking damages against the defendant in both the latter's official capacity and his personal capacity, and the former claim is barred by the state's sovereign immunity, Sossamon v. Texas, ––– U.S. ––––, 131 S.Ct. 1651, 1658–61, 179 L.Ed.2d 700 (2011); Vinning–El v. Evans, 657 F.3d 591, 592 (7th Cir.2011), and the latter claim cannot be based on the Act because the Act does not create a cause of action against state employees in their personal capacity. Nelson v. Miller, 570 F.3d 868, 886–89 (7th Cir.2009). It does authorize injunctive relief, which the plaintiff initially sought along with damages, but he's since been released from prison, so his injunctive claim is moot and he is left with his personal-capacity damages claim under section 1983.

Illinois prison inmates are allowed to “have any length of hair” they want, provided, so far as bears on this case, that it “do[es] not create a security risk.” 20 Ill. Admin. Code 502.110(a). The defendant ordered the plaintiff's dreadlocks cut off on the ground that they posed a security risk, though he did not explain why. The plaintiff complained to the prison chaplain, who informed him that only inmates who are Rastafarians are permitted to wear dreadlocks. The plaintiff is not a Rastafarian, but a member of the African Hebrew Israelites of Jerusalem; and according to the chaplain the members of that sect are not required by their faith to wear dreadlocks (this appears to be correct), and therefore, he concluded, the plaintiff was not entitled to wear them. (It's the “therefore” that's the issue in this appeal.) The plaintiff filed an internal prison grievance, but it was denied on the basis of the chaplain's theological opinion.

Dreadlocks can attain a formidable length and density, as shown in this photograph of the late Jamaican musician Bob Marley (a Rastafarian):

Image 1 (4.24" X 2.87") Available for Offline Print

One can see why prison officials might fear that a shank or other contraband could be concealed in an inmate's dreadlocks, or why they might want inmates to wear their hair short because inmates with long hair can more easily change their appearance, should they escape, by cutting their hair. Short hair is also more hygienic than very long, braided hair. The case law indicates that a ban on long hair, including dreadlocks, even when motivated by sincere religious belief, would pass constitutional muster. See Fegans v. Norris, 537 F.3d 897, 906 (8th Cir.2008); Henderson v. Terhune, 379 F.3d 709, 712–15 (9th Cir.2004); Harris v. Chapman, 97 F.3d 499, 503–04 (11th Cir.1996); Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir.1996); see also Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir.1988); cf. Green v. Polunsky, 229 F.3d 486, 489–90 (5th Cir.2000).

Regulations of general applicability, not intended to discriminate against a religion or a particular religious sect, were held in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), not to violate the free exercise clause. Its holding should apply to prison inmates along with everyone else—as indeed assumed in Cutter v. Wilkinson, supra, 544 U.S. at 714–17, 125 S.Ct. 2113—and therefore authorize any ban on long hair as long as it is not motivated by religious prejudices or opinions. But the applicability of Smith to prisoners is uncertain because of an earlier Supreme Court decision, O'Lone v. Shabazz, 482 U.S. 342, 348–50, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), not expressly overruled by Smith or Cutter, which requires prison authorities to “accommodate” an inmate's religious preferences if consistent with security and other legitimate penological concerns. See also Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Accommodation is what Smith says the free exercise clause does not require; and it's hard to believe that prisoners have more rights than nonprisoners. But we're not supposed to declare a decision by the Supreme Court overruled unless the Court makes clear that the case has been overruled, even if we're confident that the Court would overrule it if the occasion presented itself. State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997); see Vinning–El v. Evans, supra, 657 F.3d at 592–93; Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.1999). No matter. This as we'll see is a case of outright arbitrary discrimination rather than of a failure merely to “accommodate” religious rights.

Prison officials might sometimes actually want on security grounds to exempt from a ban on long hair inmates whose motivation was religious, cf. Cutter v. Wilkinson, supra, 544 U.S. at 724–25, 125 S.Ct. 2113; accommodating a genuine religious observance might reduce rather than increase the risk of prisoner misconduct. At the same time the prison officials might want to distinguish between religiously motivated practices that are required by the prisoner's religion and those that are optional, a distinction we discuss below. But nowhere in the record can we find this or any other articulated ground for the prison's Rastafarian exception to a ban on long hair. Nor could such a ground be easily squared with the language of the Illinois statute that we quoted. Permitting prisoners to “have any length of hair ... so long as” it “do[es] not create a security risk” doesn't sound like “prisoners must have short hair unless they are Rastafarians.” The defendant suggests that the prison could ban all prisoners from wearing dreadlocks but does not argue that that's the prison's policy; he tacitly accepts the Rastafarian exception announced to the plaintiff by the prison chaplain.

The prison would be hard pressed to defend a rule that only Rastafarians may wear dreadlocks (though for all we know that is the prison's rule, or at least its de facto rule, declared by the chaplain), unless it were certain that no other sect, and not even any individual prisoner's private faith, considers wearing dreadlocks a religious observance; barring such an exception, such a rule would discriminate impermissibly in favor of one religious sect. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam); Vinning–El v. Evans, supra, 657 F.3d at 595.

We can imagine religious discriminations that could be justified by security concerns: a ban on Thuggee, the notorious Indian cult stamped out by the British whose votaries believed they were the children of the Hindu goddess Kali (created from her sweat) and that she had commanded them to commit mass murder—a command they followed with enthusiasm. But the Big Muddy Correctional Center allows Rastafarians to wear dreadlocks and has failed to give a reason for thinking that the plaintiff but not they would be a security risk if allowed to wear them.

Nor could the prison permit only members of sects (even if not limited to Rastafarians) that “officially” require the wearing of dreadlocks to wear them. Heretics have religious rights. Frazee v. Illinois Dep't of Employment Security, 489 U.S. 829, 834, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989); United States v. Ballard, 322 U.S. 78, 86–87, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Ortiz v. Downey, supra, 561 F.3d at 669. The founders of Christianity (Jesus Christ, the Apostles, and St. Paul) were Jewish heretics; Luther and Calvin and the other founders of Protestantism were Catholic heretics. Religious belief must be sincere to be protected by the First Amendment, but it does not have to be orthodox. And anyway the plaintiff is not a heretic; there is no suggestion that orthodox African Hebrew Israelites of Jerusalem think it wrong to take and abide by the Nazirite vow, the basis of the plaintiff's claim that wearing dreadlocks is for him a religious observance, though dreadlocks do not have the symbolic significance for African Hebrew Israelites of Jerusalem that they do for Rastafarians.

Since heresy is not...