Wilson v. State

• Citation: 746 P.2d 1022,113 Idaho 563
• Decision Date: 30 November 1987
• Docket Number: No. 16508,16508
• Parties: Mike WILSON, Petitioner, and William Wolfe and John Merrifield, Petitioners-Appellants, v. STATE of Idaho, Al Murphy, Director of the Idaho State Department of Corrections, Arvon Arave, Warden, Idaho State Correctional Institution, Larry Wright, Deputy Warden-Security, Idaho State Correctional Institution, and their agents and employees, Defendants-Respondents.
• Court: Court of Appeals of Idaho

Page 1022

746 P.2d 1022

113 Idaho 563

Mike WILSON, Petitioner, and William Wolfe and John Merrifield, Petitioners-Appellants, v. STATE of Idaho, Al Murphy, Director of the Idaho State Department of Corrections, Arvon Arave, Warden, Idaho State Correctional Institution, Larry Wright, Deputy Warden-Security, Idaho State Correctional Institution, and their agents and employees, Defendants-Respondents.

No. 16508.

Court of Appeals of Idaho.

Nov. 30, 1987.

Petition for Review Denied Feb. 10, 1988.

William Wolfe and John Merrifield, pro se. Jim Jones, Atty. Gen. by Timothy D. Wilson and Robert R. Gates, Deputy Attys. Gen., Boise, for defendants-respondents.

SUBSTITUTE OPINION

The Court's prior opinion, dated August 3, 1987, is hereby withdrawn.

BURNETT, Judge.

This appeal presents questions concerning prison administrative policies that allegedly infringe upon free expression by, and the health of, the inmates. The questions are (1) whether the prison's policy on length of hair violates the First Amendment, and (2) whether the prison's refusal to comply with health-related provisions of state barbering laws creates a condition of confinement violating the Eighth and Fourteenth Amendments to the United States Constitution. A magistrate answered each question in the negative and dismissed the inmates' petition for a writ of habeas corpus. On appeal the district court eventually affirmed. Today, for reasons explained below, we join the district court in upholding the magistrate's order. However, we clarify the order as it relates to the health issue and we remand the case for such further refinement as the magistrate may deem appropriate.

The petitioners are inmates at the Idaho State Correctional Institution (ISCI), a facility operated by the Board of Correction. They filed a pro se petition for habeas corpus relief, challenging the prison's hair length and haircutting policies. The prison generally requires inmates, all of whom are male, to have short hair. Beards are prohibited, although moustaches are permitted if they are short and neatly trimmed. Exceptions are granted to inmates who demonstrate that their sincerely held religious beliefs require them to wear beards or long hair. Haircutting services are provided at the facility, not by licensed barbers, but by the inmates themselves. When this lawsuit was filed, several health-related barbering regulations allegedly were not being followed at the prison.

Pursuant to rules of the Fourth Judicial District, the inmates' petition was referred to a magistrate. He summarily denied the petition, but on appeal the district court reversed and remanded for a hearing. The hearing was held before a different magistrate, who directed the prison to employ "basic sanitation" practices in haircutting. He denied any other relief. Apparently satisfied that such "basic sanitation" practices were being followed, the magistrate then dismissed the inmates' petition. The case was appealed again to the district court. This time the magistrate's order was affirmed. Two of the petitioners, William Wolfe and John Merrifield, brought their appeal to this Court.

I

We begin with the First Amendment issue. The petitioners contend that the prison's hair length policy violates their right to engage in a form of free expression. They claim an unequivocal right to wear their hair and beards in any fashion they choose while incarcerated. They assert no religious foundation for this claim.

A

It is well settled that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed.2d 629 (1977). First Amendment rights are among those which may be limited.

A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correctional system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.

Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).

Here, the state has argued that the hair length policy is necessary for two reasons: prison security and sanitation. The ISCI warden testified that it would be difficult to identify prisoners who grew beards because it would radically alter their appearance. He further stated that it would be possible for inmates to hide narcotics or weapons in long hair or beards. Finally, he testified that short hair was more sanitary. In our view, these state interests are sufficient to limit the use of hair length as a means of expression. The safety of correctional personnel, of other prisoners and of the general public is advanced through the hair length policy. Similarly, the sanitation concern is valid. We cannot gainsay the importance of maintaining cleanliness in a crowded environment.

Other courts confronted with similar, non-religious claims have reached the same conclusion. See, e.g., Ralls v. Wolfe, 448 F.2d 778 (8th Cir.1971); Daugherty v. Reagan, 446 F.2d 75 (9th Cir.1971); Winsby v. Walsh, 321 F.Supp. 523 (C.D.Cal.1971); Blake v. Pryse, 315 F.Supp. 625 (D.Minn.1970), aff'd, 444 F.2d 218 (8th Cir.1971). Of particular note is the recent decision in McCabe v. Arave, 626 F.Supp. 1199 (D.Idaho 1986). In that case, Judge Callister rejected a challenge to the ISCI hair policy, stating that "[t]he claim must be rooted in religious belief, not in purely secular or philosophical concerns." Id. at 1205. We agree. Accordingly, we hold that, as applied to inmates whose claims are not grounded in sincerely held religious beliefs, the ISCI hair policy is reasonable and is well within the discretion accorded to prison officials. ¹

B

The petitioners further contend that even if the hair length regulations advance legitimate penological objectives, the regulations are constitutionally defective because they do not constitute the "least restrictive means" available to achieve the asserted goals of security and sanitation. This argument is without merit. Petitioners have not suggested any alternatives to the current hair length policy, and we fail to see how the prison could prevent the risks associated with long hair and beards without requiring the hair to be cut. We also observe that the hair policy is a narrow restraint upon expression. Personal grooming, or the lack of it, is not the only available means by which inmates can express themselves. There are many other avenues of free expression available. As the magistrate and district judge both noted, inmates may write, draw or hold discussion groups. Accordingly, we reject the petitioners' First Amendment challenge.

II

We now turn to the health issue. The petitioners claim that adequate sanitation standards are not being followed in cutting hair at the ISCI. On appeal, this claim has been loosely styled as a denial of due process. However, the petition itself specifically refers to the Eighth Amendment, which prohibits cruel and unusual conditions of confinement. Because the pleadings and briefs were drafted by prisoners pro se, not by a lawyer, we will give them a broad, non-technical interpretation. Ulmer v. Chancellor, 691 F.2d 209 (5th Cir.1982); Hogan v. Midland County Commissioners Court, 680 F.2d 1101 (5th Cir.1982).

The petition does not attack the legal authority under which the prisoners are confined. Rather, it challenges a condition of confinement. Although habeas corpus relief was thought at one time to apply Essentially, the petitioners argue that the ISCI has created an unhealthy condition of confinement by refusing to comply with barbering standards contained in I.C. §§ 54-501 et seq. These statutes, and regulations promulgated thereunder by the state Board of Barber Examiners, establish procedures for licensing barbers and for maintaining sanitary conditions in places where hair is cut. They are supplemented by I.C. §§ 39-2001 to -2003, authorizing the Director of the Department of Health and Welfare "to make such rules and regulations as are necessary to safeguard the public health, and to prevent the spread of contagious or infectious diseases...." Apparently deeming the regulations adopted by the Board of Barber Examiners to be sufficient, the Director has promulgated no additional rules.

[113 Idaho 566] only to the legality of a sentence, the modern view, adopted in Idaho, allows prisoners to bring Eighth Amendment challenges to conditions of confinement by means of habeas corpus petitions. Mahaffey v. State, 87 Idaho 228, 392 P.2d 279 (1964); Clemens v. State, 112 Idaho 638, 733 P.2d 1263 (Ct.App.1987). This view is widely shared. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Wilwording v. Swenson%, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam); Harris v. MacDonald, 532 F.Supp. 36 (N.D.Ill.1982); In re Allison, 425 P.2d 193 (Cal.1967), cert. denied, Allison v. Nelson, 389 U.S. 876, 88 S.Ct. 172, 19 L.Ed.2d 163 (1967); Harrah v. Leverette, 271 S.E.2d 322 (W.Va.1980).

The state contends that there is no statutory or constitutional violation because laws relating to barbering do not apply to cutting the hair of prison inmates. The magistrate and the district judge agreed with this contention. They both concluded that because prisoners are not members of the "public generally," as set forth in I.C. § 54-502, they are not protected by the standards enunciated in the statutes or in the implementing regulations. ² Cf. Montejano v. Rayner, 33 F.Supp. 435 (D.Idaho 1939) (barbering statutes intended to protect the general public). ³ However, the magistrate implicitly...