OWEN, Circuit Judge:
This case requires us to determine whether the Texas Department of Criminal Justice's policy of prohibiting prisoners from wearing beards for religious reasons violates the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Willie Lee Garner is a Texas state prisoner in the custody of the Texas Department of Criminal Justice (TDCJ). He is currently incarcerated in the McConnell Unit in Beeville, Texas. Garner claims that as a Muslim he is required to wear a beard. However, TDCJ rules prohibit most inmates, including Garner, from having a beard, and Garner has been disciplined for his failure to comply with this policy. Some inmates are allowed to grow beards up to a quarter of an inch if they
Garner filed a pro se complaint against a number of defendants, who we will refer to collectively as TDCJ, in the Southern District of Texas pursuant to RLUIPA and 42 U.S.C. § 1983. Garner claimed that TDCJ violated RLUIPA and his constitutional rights by prohibiting him from wearing a beard and from wearing a white head covering, known as a Kufi, to and from worship services. The district court initially denied Garner's request to appoint counsel and granted summary judgment in favor of the defendants. Garner appealed, and we reversed the district court's judgment on Garner's request for declaratory relief and injunctive relief with respect to his RLUIPA claim but affirmed in all other respects.
On remand, the district court appointed counsel and held a bench trial on Garner's RLUIPA claims. After noting that it is not seriously contested that TDCJ's policies impose a substantial burden on Garner's religious exercises, the court concluded that TDCJ failed to discharge its burden to show that TDCJ's beard policy is the least restrictive means of furthering a compelling government interest. It therefore enjoined the defendants from enforcing the grooming policy prohibiting Garner from wearing a quarter-inch beard. However, the district court concluded that requiring an inmate to remove his Kufi and make it available for inspection when traveling to and from religious services is the least restrictive way of furthering TDCJ's compelling government interest in the safety and security of prisoners and prison staff. Therefore, the district court held that Garner was not entitled to declaratory and injunctive relief on his claim with respect to wearing his Kufi. TDCJ has appealed the district court's ruling that its grooming policy violates RLUIPA insofar as it prohibits Garner from wearing a quarter-inch beard.
RLUIPA provides that "no government shall impose a substantial burden on the religious exercise of a person confined in an institution, even if that burden results from a rule of general applicability," unless the burden "is in furtherance of a compelling government interest" and "is the least restrictive means of furthering that compelling government interest."
If the plaintiff shows that the government action imposes a substantial burden on his religious exercise, the burden then shifts to the government to show that the action was supported by a compelling interest and is the least restrictive
We have not specifically addressed whether determining if a prison policy meets the requirements of RLUIPA presents a question of law or fact. At least one court has addressed this question in the RLUIPA context.
TDCJ first argues that the district court's written opinion fails to comply with Federal Rule of Civil Procedure 52(a)(1), which requires that the district court "find the facts specially and state its conclusions of law separately."
TDCJ cites the following paragraph from the district court's opinion as most evident of the district court's error:
TDCJ argues that this paragraph "leaves the reader to wonder what findings of fact are to be reviewed on appeal for clear error, if any, and what conclusions of law are to be reviewed de novo." It argues that instead of issuing a finding of fact as to the approximate amount of expenses, the district court couched its language in the form a legal conclusion, stating that the expenses are not significant enough to frustrate Garner's RLUIPA claim.
We find no error in the form of district court's opinion. With respect to the paragraph quoted above, TDCJ's evidence concerning increased costs was vague and consisted primarily of speculation and conjecture. There was no evidence concerning concrete numbers besides testimony that a single disposable razor costs four cents while an electric clipper costs thirty-four dollars. The district court cannot be faulted for not making an exact finding with regard to costs.
More generally, the district court clearly discusses its view of the evidence presented. It found, for various reasons, that TDCJ's arguments that allowing beards poses great safety risks were unfounded, that there is at least one viable alternative
TDCJ argues that the district court erred in holding that the no-beard policy violates RLUIPA because it is not the least restrictive means of furthering a compelling government interest. TDCJ has not challenged the finding that the policy imposes a substantial burden on Garner's religious exercise, so we do not address that issue.
Although TDCJ argued below that its policy furthers the state's interest in security because quarter-inch beards can be used to hide contraband, TDCJ does not press that argument on appeal. It advances two main arguments in this court. First, it contends that the no-beard policy advances the compelling interest in controlling costs. Second, it argues that the no-beard policy advances the compelling interest in security because the policy promotes easy identification of inmates.
In support, TDCJ cites two cases of this court, DeMoss v. Crain
DeMoss and Gooden are not controlling here. In both cases, the plaintiffs were pro se and there is no indication that they countered TDCJ's evidence as Garner has done. In this case, we are presented with a substantially different record. Garner disputed TDCJ's evidence: he was represented by counsel, thoroughly cross-examined all TDCJ witnesses, proposed different alternatives to the no-beard policy than have been previously offered, and presented expert testimony from a long-time prison administrator. Our decisions in DeMoss and Gooden are not controlling in light of the more-developed record and the factual findings present here that were not
TDCJ argues that its no-beard policy is the least restrictive means of advancing the compelling government interest in controlling costs. It is undisputed that controlling costs is a compelling government interest and that we must give deference to prison administrators.
TDCJ presented testimony from multiple witnesses that allowing quarter-inch beards for religious reasons would impose additional costs. William Stephens, the deputy director of prison and jail operations within TDCJ, who was also qualified as an expert to give his opinion on the effects of allowing Muslim inmates to wear quarter-inch beards, testified that he was concerned about the added cost of allowing beards. He noted, for example, that some large institutions currently have only one barbershop and would likely have to expand. He also testified that costs would be imposed due to greater use of barbershop equipment. Rick Thaler, the Director of the Correctional Institutions Division of TDCJ, testified that if inmates were allowed to grow quarter-inch beards, then staff would have to take more valuable time to enforce the grooming policy. Allowing beards would also require additional trips to the barbershop by each inmate. He also testified that it is expected that TDCJ's budget is going to be "extremely tight" in the near future. Finally, he testified that the option of requiring a new photo ID card when an inmate grows a beard, for which the inmate would pay an additional charge, would be costly because half of the prison population is indigent, and the volume of ID cards issued would increase significantly.
Billy Pierce, the Director of Chaplaincy Operations for TDCJ, testified about the increased burden allowing Muslim inmates to grow beards would put on chaplains. He testified that chaplains would have to verify the religious beliefs of inmates, keep lists of inmates in the faith group allowed to have a beard, continually update the list, and make sure housing areas had the list. He also testified that when certain faith groups have received special privileges in the past, the number of inmates claiming to belong to that faith group increased dramatically.
In contrast, Garner established through exhibits and testimony that the TDCJ had made no studies concerning the costs of
Based on this record, we cannot say that the district court's finding that any increased costs would be insignificant is clearly erroneous. Although there was testimony that there would be additional costs, whether due to the construction of barbershops, the purchase of barbering supplies, or the creation of new identification cards, almost all of that testimony was speculative. The Defendants admitted that no specific studies had been done other than general reviews. We recognize that it is possible that allowing quarter-inch beards could impose some administrative costs in enforcement. However, while TDCJ witnesses testified that a quarter-inch limit would be difficult to enforce, their testimony concerning these administrative costs was also speculative. For example, Thaler testified that the time for enforcement "would potentially" take time from other tasks. There is no testimony regarding what other tasks would be affected or the amount of time that would be necessary in order to enforce a limit on beard length. Furthermore, TDCJ imposes limits on hair length, requiring that it be trimmed up the back of the head and neck and be cut around the ears, and although Stephens testified that enforcement is time-consuming, there is no evidence that TDCJ would encounter greater or added difficulty if it enforced a one-quarter-inch as opposed to a clean-shaven rule.
RLUIPA "may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise."
TDCJ also argues that its no-beard policy is the least restrictive means of furthering the compelling interest in security because the policy aids rapid identification of inmates. TDCJ presented testimony that if inmates were allowed to grow beards, identification would be hindered. John Moriarty, the Inspector General for TDCJ, testified that identification is important both for inmates within the prison and for capturing escaped inmates. Director Thaler testified that TDCJ had recently decided to retain its current grooming policy based largely on the fact that "the issue of positive identification of individuals as [they are moved] throughout the facility [is] a cornerstone to good correctional practice." In his opinion, having inmates have their beards trimmed regularly at the barbershop, as is done with hair, is not an acceptable alternative because "any time you move your offender population around your institution, you
Garner, on the other hand, elicited testimony that the security issues with allowing all inmates or some inmates to wear beards is not as serious as TDCJ asserts. Inmates are allowed to shave their heads, and Moriarty was not aware of any incident in which an inmate shaved his head in prison to change his appearance. In fact, he was not aware of any inmate changing his appearance after committing a crime in jail other than by changing clothes. Thaler testified that prohibiting inmates from shaving their heads had been contemplated but ultimately was not adopted as a policy, even though he agreed that an inmate shaving his head would change the inmate's appearance just as much as growing a quarter-inch beard. In addition, Garner presented the testimony of an expert witness, George Sullivan, whom the district court found has "decades of practical experience in managing correctional institutions." Sullivan testified that, in his experience, institutions that allow beards are no less safe than those that do not. He testified that in the prison setting, it is not generally more difficult to identify an inmate with a beard because officers become familiar with the inmate. He acknowledged that it is a little more difficult in systems with larger populations, like California, Texas, and the Federal Bureau of Prisons, because of the numbers, but "if the officer is doing his job ... and is paying attention to the inmates as they come in his proximity, he should have no problem at all shifting his mental gears to keep up with the appearance of inmate." He disagreed with the argument that permitting inmates to maintain beards would pose identification difficulties.
On this record, TDCJ has not carried its burden to show that its no-beard policy is the least restrictive means of furthering the compelling government interest in security. Although TDCJ has presented evidence that allowing inmates to have beards hinders inmate identification, there was undisputed evidence that TDCJ allows inmates to shave their heads, and there was testimony that shaved heads pose just as many identification problems as allowing prisoners to grow and shave beards. TDCJ has not shown why any security concerns could not be addressed by requiring an inmate to have his identification picture changed if he grows or shaves his beard, as apparently is already required when an inmate changes his appearance in any way. As discussed above, TDCJ has not shown any reason why costs related to identification cards would be significant. One TDCJ witness admitted that requiring a new identification card to be made when an inmate grows a beard can, in a general sense, accommodate the need to identify him as he moves through the facility. We also find it persuasive that prison systems that are comparable in size to Texas's — California and the Federal Bureau of Prisons — allow their inmates to grow beards, and there is no evidence of any specific incidents affecting prison safety in those systems due to beards.
With respect to an escaped prisoner, Garner observes that nothing prohibits an escapee from changing his appearance by, for example, growing out his hair or wearing a wig. Moriarty testified that TDCJ can do nothing to prevent an inmate from changing his appearance outside of the prison. Based on the present record, we cannot say that the district court's factual findings are clearly in error.
We recognize that in applying RLUIPA, we must accord "due deference to the experience and expertise of prison and jail
