Mosier v. Maynard

• Decision Date: 05 July 1991
• Docket Number: No. 90-6199,90-6199
• Citation: 937 F.2d 1521
• Parties: C.D. MOSIER, Plaintiff-Appellant, v. Gary MAYNARD, D.O.C.; Dan Reynolds, Warden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1521

937 F.2d 1521

C.D. MOSIER, Plaintiff-Appellant, v. Gary MAYNARD, D.O.C.; Dan Reynolds, Warden, Defendants-Appellees.

No. 90-6199.

United States Court of Appeals Tenth Circuit.

July 5, 1991.

Submitted on the briefs: ^*

C.D. Mosier, pro se.

Robert H. Henry, Atty. Gen. and Gay Abston Tudor, Asst. Atty. Gen., State of Okl., Oklahoma City, Okl. for defendants-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant C.D. Mosier appeals from the grant of summary judgment to defendants-appellees in this civil rights action against Oklahoma prison officials. Mosier's complaint alleged that prison officials violated his first and fourteenth amendment rights to free exercise of religion and equal protection of the law by denying him an exemption to the prison grooming code. The district court ordered a special report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). Defendants filed a motion to dismiss which the district court converted to a motion for summary judgment under Fed.R.Civ.P. 56. Mosier filed a response, whereupon the district court granted summary judgment in favor of the defendants. We reverse and remand.

I.

In April 1986, the Oklahoma Department of Corrections granted plaintiff an exception to the grooming standards, based upon documentation concerning defendant's Native American heritage and his belief in the Native American religion. I R. doc. 1, app. 5. ¹ Plaintiff was not required to cut his hair provided that he kept it neat and clean, and pulled back in a pony tail, braided or constrained in a cap anytime he was outside of his cell. Id. Subsequently, the plaintiff was transferred to another Oklahoma institution and was told to seek a new exemption under a new policy. Under the new policy, an inmate may apply for and receive an exemption if he can establish that: (1) the religion is recognized; (2) he is an adherent to the religion; (3) the practice of his religion is inhibited by a particular provision in the grooming code; and (4) the facility's interest in security does not outweigh his need to practice the religion. I R. doc. 11, attach. H at 5. According to the policy, the exclusive means for establishing adherence to the religion is by:

Providing names, addresses, and telephone numbers of reputable non-family members who are not under the custody of the Oklahoma Department of Corrections, that can establish adherence to the religion or can provide documented evidence to establish adherence to the religion.

I R. doc. 17 at 2-3. See also I R. doc. 11, attach H at 1; Appellees' Brief at 3-4. Plaintiff's application was referred to the prison chaplain for investigation. The chaplain recommended denial of the application on the grounds that plaintiff had not produced adequate external evidence that he was practicing his native religion.

The chaplain acknowledged that plaintiff was one-quarter degree Native American. Also supporting plaintiff's application was the letter granting him the prior exemption, a statement from the Principal Chief of the Cherokee Nation concerning the importance of religious freedom and a personal statement of faith in which plaintiff indicated that according to Cherokee belief, the body is an extension of the Great Spirit and must not be mutilated or defaced. Plaintiff expressed his belief that his hair was integral to his body, similar to a hand or a leg, and that to cut it would be cut himself off from God.

The chaplain found that the Native American religion was recognized, but determined that a lack of external evidence existed concerning whether plaintiff actually practiced his beliefs. The chaplain distinguished the prior exemption policy under which plaintiff prevailed as one which relied primarily on Native American status rather than on practice of belief. Other factors cited by the chaplain to support his conclusion included: (1) plaintiff was not a member of the Cherokee nation; (2) plaintiff did not participate in the Native American religious group at the prison; and (3) plaintiff did not submit documentation from tribal sources or nonrelated family members attesting to the sincerity of his belief.

Merely because plaintiff is not a member of the Cherokee nation or the Native American worship group at the prison does not mean that his belief is insincere. The Supreme Court has rejected the notion that membership in a religious organization is a prerequisite for religious convictions to be judged sincere. Frazee v. Department of Employment Sec., 489 U.S. 829, 834, 109 S.Ct. 1514, 1517-18, 103 L.Ed.2d 914 (1989) (plaintiff was a Christian, but not a member of a particular Christian sect). Likewise, while practice or nonpractice of a particular tenet of a religion may be relevant to sincerity, it is not conclusive. Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir.1988). Intrafaith differences are common and cannot be resolved by secular courts. Thomas v. Review Bd., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1430-31, 67 L.Ed.2d 624 (1981). Likewise, we have recognized that a religious objection may arise from a "specific [religious] belief, whether as part of a personal faith or as a tenet of an organized group or sect." Dunn v. White, 880 F.2d 1188, 1197-98 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). See also Frazee, 489 U.S. at 833, 109 S.Ct. at 1517 (no requirement that claimant belong to a particular sect prohibiting practice at issue).

In recommending denial of plaintiff's application for an exemption, the chaplain wrote:

All supporting evidence does not specifically testify that Mosier actually practices his beliefs. What he believes very well could be true but there is no external evidence that he has been practicing his native traditional beliefs.

I R. doc. 11, attach. C. at 2 (emphasis supplied). The Facility Classification Committee reviewed the matter and denied the application solely on the ground of insufficient evidence "that the inmate is a sincere adherent of the religion." I R. doc. 11, attach. E at 1. The Committee particularized its denial, pointing out that plaintiff did not submit external documentation concerning his sincere belief from reputable, nonfamily members who were not under the jurisdiction of the Oklahoma Department of Corrections. Id. Plaintiff appealed to the warden. The warden replied that "[a]lthough I respect your right to your religious belief, it does not exempt you from the inmate grooming code." I R. doc. 11, attach. F at 2 (emphasis supplied). The warden then affirmed the Committee's decision on similar grounds, pointing to a lack of documentation concerning sincere adherence from a reputable nonfamily member who was not incarcerated under the jurisdiction of the department. Id. A deputy director of institutions then affirmed the denial.

II.

The district court determined that plaintiff did not qualify for an exemption because he "failed to provide the names[,] addresses and telephone numbers of non-family members that could establish his adherence to the religion or provide documented evidence to establish his adherence to the religion." I R. doc. 17 at 3. The district court also determined that the grooming regulation was valid based on a statement contained in the defendants' motion to dismiss to the effect that the regulation "was 'established to promote an overall sense of pride and discipline and ensure the safety, health, and welfare of inmates.' " Id. at 4 (quoting I R. doc. 11 at 2). The district court relied on Pollock v. Marshall, 845 F.2d 656 (6th Cir.), cert. denied, 488 U.S. 987, 109 S.Ct. 239, 102 L.Ed.2d 228 (1988), which held that a prison could enforce a blanket restriction on hair length even if it conflicted with sincere Native American religious beliefs. Id. at 657, 659-60.

In the context of a Fed.R.Civ.P. 12(b)(6) dismissal in which the prison's justification was not challenged, we recently upheld a policy at a temporary detention facility requiring that all new inmates receive haircuts without opportunity for religious exemptions. Hall v. Bellmon, 935 F.2d 1106, 1114 (10th Cir.1991). The justification for the policy was that "it prevents inmates from hiding weapons in long hair and from easily changing their appearance should they escape, and it facilitates good hygiene." Id. See also Iron Eyes v. Henry, 907 F.2d 810, 814 (8th Cir.1990) (upholding hair length policy on similar grounds).

This case differs from Hall and Pollock in several important respects. First, the facility in this case is not a temporary detention facility. Second, plaintiff is not challenging that part of the grooming code concerning hair length, but rather the exemption policy established by the prison and its application. See Iron Eyes, 907 F.2d at 811 n. 3, 816 (recognizing that exemption policy could be challenged, even if hair length policy upheld). Third, Hall involved upholding the hair cutting requirement on Fed.R.Civ.P. 12(b)(6) grounds; this case, like Pollock, involves summary judgment under Fed.R.Civ.P. 56. Unlike Pollock, however, the defendants in this case have not produced any affidavits in support of their claimed justification for the grooming code.

Based on the items in the record, we review the district court's grant of summary judgment de novo to determine whether "the pleadings ... and admissions, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Genuine disputes about material factual issues preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We view the summary judgment evidence and its inferences in the light most favorable to the plaintiff, the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). However,...