Poe v. Werner

Decision Date02 December 1974
Docket NumberCiv. No. 74-53.
Citation386 F. Supp. 1014
PartiesRaymond Edwin POE, K-1106, Plaintiff, v. Stewart WERNER, Commissioner of the Bureau of Corrections of Pennsylvania, et al., Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

Jack J. Levine, Philadelphia, Pa., for plaintiff.

J. Andrew Smyser, Deputy Atty. Gen., Israel Packel, Atty. Gen., Pennsylvania Dept. of Justice, Harrisburg, Pa., for defendants.

Before ROSENN, Circuit Judge, SHERIDAN, Chief District Judge, and MUIR, District Judge.

MEMORANDUM

SHERIDAN, Chief District Judge.

Plaintiff, Raymond Edwin Poe, presently an inmate at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, brought this action under the Civil Rights Act, 42 U.S.C.A. §§ 1983-1985, seeking injunctive relief against the defendants, Stewart Werner, Commissioner of the Bureau of Corrections of Pennsylvania and Glen R. Jeffes, Superintendent of the State Correctional Institution at Dallas. Federal jurisdiction is invoked under 28 U. S.C.A. § 1343. Specifically, plaintiff requests the court to enjoin the enforcement of the hair length regulation for inmates promulgated by the Pennsylvania Bureau of Corrections and the enforcement of the institutional policy at Dallas requiring supervised showers for homosexuals.

Subsequent to the filing of the complaint, plaintiff was transferred from the State Correctional Institution at Dallas to Rockview, where plaintiff's showers are not supervised. For this reason plaintiff's request for injunctive relief with respect to the institutional policy at Dallas which requires supervised showers for homosexuals was dismissed as moot.

There remains plaintiff's contention that the hair length regulation of the Bureau of Corrections is unconstitutional. Since plaintiff seeks injunctive relief restraining state officials from the enforcement, operation and execution of a statewide prison regulation on the ground of its unconstitutionality, a three-judge court has been convened pursuant to 28 U.S.C.A. § 2281. King v. Smith, 1968, 392 U.S. 309, 311-312 & n. 3, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Sands v. Wainwright, 5 Cir. (en banc) 1973, 491 F.2d 417; see Procunier v. Martinez, 1974, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224.

The Bureau's regulation with respect to hair length of prisoners provides:

"I. PURPOSE
The purpose of this directive is to establish guidelines for resident grooming that permit individuality and are consistent with practices in the community.
"II. MALE HAIR STYLES
Hair that does not fall below the top of the collar in length, a beard or goatee no longer than three inches, a mustache and sideburns shall be permitted provided they are neat and clean.
"III. FEMALE GROOMING
A. Any feminine hair style shall be permitted.
B. Unless otherwise determined by the Superintendent of the State Correctional Institution at Muncy, hair dyeing and tinting be done only by the institutional beautician.
C. The use of all cosmetics shall be permitted in good taste."

The institution has interpreted this regulation as to permit inmates to wear their hair to the level of the collar on their uniform shirts, which have a standard sportshirt type of collar. Poe, however, wants to wear his hair at shoulder length. He contends that the regulation violates the due process clause and the equal protection clause of the fourteenth amendment.

Whether the right to select the length of one's hair is a constitutionally protected right is a question which has sharply divided the lower federal courts.1 There is a similar lack of agreement among those courts that have recognized such a constitutional right as to its precise nature — that is, which provisions of the Constitution protect it.2 In addition, those courts which have found a constitutionally protected right have differed as to what label to choose for it — that is, whether the right is "fundamental," "substantial," "basic" or simply a "right" — and consequently have differed on what kind of showing the government must make in order to override the protected constitutional interest.3

In Stull v. School Board of Western Beaver Junior-Senior High School, 3 Cir. 1972, 459 F.2d 339, the Court of Appeals for the Third Circuit held that the governance of the length and style of one's hair is implicit in the liberty assurance of the due process clause of the fourteenth amendment. However, the court asserted that personal freedoms are not absolute and, reaffirming the test previously established in Gere v. Stanley, 3 Cir. 1971, 453 F.2d 205, aff'g M.D.Pa.1970, 320 F.Supp. 852, held that a court must assess the reasonableness of the hair regulation in relation to its subject, to reconcile the protected right with the legitimate interests of the community. As stated in Gere v. Stanley, supra, wherein the court held that the evidence presented by the school authorities constituted an adequate justification of a student hair regulation, "the liberty guaranteed by the Fourteenth Amendment implies absence of arbitrary interferences, but not immunity from reasonable regulations." 453 F.2d at 209.

Given the conflict among the federal courts on the constitutional issues involved, initially the court is confronted with the question of whether a three-judge court is bound to follow the decisions of the court of appeals for the circuit in which it is located, or whether it is bound only by decisions of the Supreme Court, to which a right of direct appeal exists. There is a difference of opinion among the federal courts on this question.4 Given our resolution of the instant case, we need not decide this issue. Nor do we decide whether there is a constitutional right to govern one's own hair length.

Assuming arguendo that the governance of the length and style of one's hair is a constitutionally protected right, the right is not inflexible or unaffected by conditions and circumstances under which it is asserted. When the right is invoked by a prisoner confined in a penal institution under sentence, a court must assess the reasonableness of the prison regulation in relation to its purpose and reconcile the arguably protected constitutional right with the legitimate penal interests of the state. One of the primary functions of government is the preservation of societal order through the enforcement of criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, the maintenance of institutional security, and the rehabilitation of prisoners. Procunier v. Martinez, 1974, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224.

The defendant has presented evidence that the prison hair regulation furthers all three of these governmental interests. In addition, evidence was presented that the regulation promotes the hygiene of the residents. Long hair in a closed male institution impedes the control of homosexuality and invites the attentions and sexual attacks of homosexual predators in the institution "because they appear to the predators as very feminine individuals."5 It is a disruptive factor that interferes with the maintenance of peaceful relations among the prison's inmates. Long hair provides a place for the concealment of contraband, a concern heightened by the fact that the prisoners work outdoors and have open contact visiting. It also impairs the ability of prison officials to identify inmates from their institutional photographs. Finally, the hair regulation can be viewed as furthering the rehabilitative function of the prison of restoring in the inmate population that minimal degree of personal discipline that is essential to a safe and orderly society. The normal activity to which a prison is committed — the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence — necessarily requires that considerable attention be devoted to the maintenance of institutional security and internal order and discipline. The court holds that the evidence presented by the defendant, particularly with respect to contraband, homosexuality and prisoner hygiene, are considerations sufficiently paramount in the administration of the prison to justify the hair regulation.

While the federal courts have differed sharply on the issue of the constitutionality of public school hair regulations, the courts have consistently held prison hair regulations with respect to incarcerated inmates to be constitutionally valid. Rinehart v. Brewer, 8 Cir. 1974, 491 F.2d 705; Daugherty v. Reagan, 9 Cir. 1971, 446 F.2d 75; Blake v. Pryse, 8 Cir. 1971, 444 F.2d 218; Brooks v. Wainwright, 5 Cir. 1970, 428 F.2d 652; Brown v. Wainwright, 5 Cir. 1970, 419 F.2d 1376; United States ex rel. Goings v. Aaron, D.Minn.1972, 350 F.Supp. 1; Williams v. Batton, E.D.N.C.1972, 342 F.Supp. 1110. Thus, in Rinehart v. Brewer, 8 Cir. 1974, 491 F.2d 705, the Court of Appeals for the Eighth Circuit, which previously had held that a student possessed a constitutionally protected right to govern his personal appearance and that a high school dress code regulating hair length and style was unconstitutional, Bishop v. Colaw, 8 Cir. 1971, 450 F.2d 1069, nevertheless upheld the validity of a prisoner hair length regulation, reasoning as follows:

"The constitutional considerations presented by a public school hair regulation are qualitatively different from those involved in an otherwise similar prison regulation. Even if one ignores the prison administrator's substantially greater concern over identification, security against contraband, and maintenance of peaceful relations among the institution's patrons, a warden's interest in hair length regulation is readily distinguishable from that of the public school principal. The primary function of the public school is to educate its students. Any concern over the maintenance of discipline is secondary to the
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