Fromer v. Scully, 817 F.2d 227 (2nd Cir. 04/24/1987)

[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[2] No. 86-2463

[3] 817 F.2d 227

[4] Decided: April 24, 1987.

[5] YEVGEN FROMER, APPELLEE,
v.
CHARLES J. SCULLY, HAROLD J. SMITH, WALTER KELLY, EVERETT W. JONES, THOMAS J. COUGHLIN, AND HIRSHEL JAFFEE, APPELLANTS

[6] Appeal from a judgment entered in the Southern District of New York, Charles E. Stewart, Jr., District Judge, 649 F. Supp. 512 (S.D.N.Y. 1986), declaring a beard length directive unconstitutional as applied to an Orthodox Jewish state prison inmate and permanently enjoining state prison officials from enforcing the directive against the inmate or punishing him for his noncompliance.

[7] Eugene A. Gaer, (Joel W. Sternman, Neil A. Miller, and Rosenman & Colin, on the brief), for Appellee.

[8] Martha O. Shoemaker, Assistant Attorney General of the State of New York (Robert Abrams, Attorney General, and Lawrence S. Kahn, Deputy Solicitor General, and Jeffrey J. Slonim, Douglas D. Aronin, and Harvey M. Berman, Assistant Attorneys General, on the brief), for Appellants.

[9] Feinberg, Chief Judge, Timbers and Altimari, Circuit Judges.

[10] Author: Timbers

[11] TIMBERS, Circuit Judge:

[12] Appellants Charles J. Scully and others (collectively "appellants") appeal from a judgment entered January 29, 1987 in the Southern District of New York, Charles E. Stewart, Jr., District Judge, Fromer v. Scully,649 F. Supp. 512, which granted appellee Yevgen Fromer ("appellee") declaratory and injunctive relief after a bench trial on his claim under 42 U.S.C. § 1983 (1982).

[13] Appellee is an inmate in the custody of the New York Department of Correctional Services ("the Department"). In his amended complaint in the instant § 1983 action, appellee challenged among other things the constitutionality as applied to him of a Department Directive ("the Directive") which requires inmates to shave or trim their beards to a length of no more than one inch. Appellee claimed that his religious beliefs as an Orthodox Jew prohibit him from shaving, trimming, or cutting his facial hair and therefore that application of the Directive to him violated his right to free exercise of religion under the First and Fourteenth Amendments to the United States Constitution.

[14] The district court, after finding that appellee held a sincere religious belief, declared the Directive unconstitutional as applied to appellee and permanently enjoined appellants from enforcing it against him or punishing him for his noncompliance.

[15] On appeal, appellants claim, first, that the district court applied the wrong standard in evaluating the constitutionality of the Directive; and, second, that the Directive is constitutional even when evaluated under the standard applied by the district court. Appellants do not challenge the district court's finding that appellee's religious belief regarding his beard was sincere.

[16] We hold, first, that the district court applied the correct standard; and, second, that the court did not err in its application of that standard.

[17] We affirm, and we do so substantially for the reasons set forth in Judge Stewart's excellent opinion.

[18] I.

[19] Judge Stewart's opinion contains a comprehensive recital of the facts. Fromer, supra, 649 F. Supp. at 513-17. We assume familiarity with that opinion. We summarize here certain facts which warrant emphasis and those additional facts believed necessary to an understanding of the issues raised on appeal.

[20] Appellee grew up in a small Orthodox Jewish Community in the Ukraine, Soviet Union. In 1975, after moving to Brooklyn, New York, he became involved in the Lubavitch Hasidic movement. He lived and studied at a Lubavitch yeshiva until late 1977. In 1980, his observance of Jewish laws began to deteriorate. In June 1982, he was arrested on a charge of selling cocaine. He has been in the custody of the Department since his conviction on the narcotics charge in March 1983. Soon after his incarceration began, he became convinced that his criminal activity was attributable to his failure to observe Jewish laws.

[21] While incarcerated at the Attica Correctional Facility, appellee commenced the instant action pro se on August 8, 1984. His present counsel was appointed in November 1984. After his transfer to the Great Meadow Correctional Facility in January, 1985, he was disciplined twice for disobeying orders to trim his beard.

[22] Appellee filed an amended complaint in the instant action on February 3, 1985. The amended complaint names as defendants appellant Thomas J. Coughlin, who is the commissioner of the Department, and appellant Hirshel Jaffee, who is a Jewish Chaplain at one of the prisons at which appellee has been incarcerated. Each of the other defendants -- appellants in this Court -- is a Superintendent of a prison at which appellee has been or is incarcerated.

[23] The amended complaint contains nine claims, each alleging that appellants denied appellee certain constitutional rights in violation of § 1983. The Ninth Claim -- the only one relevant to the instant appeal -- alleges that the Directive is unconstitutional as applied to appellee to the extent that it prohibits inmates from growing facial hair in excess of one inch.

[24] On April 8, 1985, appellants filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the amended complaint.

[25] In May 1985, the Department transferred appellee from the Great Meadow Correctional Facility to the Wallkill Correctional Facility. On his arrival at Wallkill, he was told that he would have to trim his beard. When he refused, he was sentenced administratively to 30 days solitary confinement at the Downstate Correctional Facility -- a maximum security prison. Appellee moved by order to show cause for a preliminary injunction barring appellants from compelling him to comply with the Directive and requiring that he be released from solitary confinement. The district court granted a temporary restraining order to that effect on June 14, 1985. In an order entered July 10, the court denied appellants' motion of April 8 to dismiss the Ninth Claim of the amended complaint. The court also ordered consolidation of a hearing on appellee's motion for a preliminary injunction and a trial on the merits of the Ninth Claim. Fed. R. Civ. P. 65(a)(2).

[26] At a six day consolidated hearing and trial in the Fall of 1985, the court heard evidence concerning appellee's religious beliefs and practices both before and during his incarceration; the place in Jewish law of the prohibition against trimming the beard; and the various justifications relied upon by the Department for the Directive.

[27] In its opinion filed November 25, 1986, the court declared the Directive unconstitutional as applied to appellee and granted him permanent injunctive relief. Fromer, supra,649 F. Supp. at 521-22.

[28] In the judgment entered January 29, 1987 on the court's opinion, there was included a certificate pursuant to Fed. R. Civ. P. 54(b). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1)(1982).

[29] For the reasons set forth below, we affirm the judgment of the district court.

[30] II.

[31] The First Amendment provides in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." The latter clause -- the free exercise clause -- is the basis for appellee's challenge to the Directive. That clause is made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut,310 U.S. 296, 303-07, 84 L. Ed. 1213, 60 S. Ct. 900 (1940).

[32] Although the free exercise clause by its terms appears to impose an absolute proscription on the power of the government, only an individual's belief is beyond governmental intrusion. The right to engage in a practice concomitant with religious belief always has been balanced against the state's interest in applying neutral rules of conduct evenhandedly to all citizens. Reynolds v. United States,98 U.S. 145, 166, 25 L. Ed. 244 (1878) ("Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."); e.g., Hobbie v. Unemployment Appeals Commission,480 U.S. 136, 107 S. Ct. 1046, 1048-51, 94 L. Ed. 2d 190 (1987); Wisconsin v. Yoder, 406 U.S. 205, 213-15, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972).

[33] The legal standard by which to evaluate the constitutionality of evenhanded application of a neutral restriction varies depending on the relationship between the individual asserting the right and the governmental entity imposing the restriction. Generally, an incidental limitation on the exercise of religion caused by application of a neutral law or regulation can be justified "only by proof by the State of a compelling interest." Hobbie, supra,107 S. Ct. at 1049. A restriction that would be impermissible when evaluated under that test, however, may pass constitutional muster in the context of the military. E.g., Goldman v. Weinberger,475 U.S. 503, 106 S. Ct. 1310, 1313-14, 89 L. Ed. 2d 478 (1986). This is because "'judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.'" Id. at 1313 (quoting Rostker v. Goldberg,453 U.S. 57, 70, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1981)).

[34] Where, as here, an inmate asserts a free exercise challenge to application of a neutral prison rule, special considerations require departure from the general legal standard reaffirmed in Hobbie, supra,107 S. Ct. at 1049. True, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison", Bell v. Wolfish,441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), and "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty." Cruz v. Beto,405 U.S. 319, 322 n.2, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (per curiam). Inmates, however, cannot expect the same freedom from incidental limitations on the exercise of their religious practices as that enjoyed by those not incarcerated. Such freedoms often permissibly are restricted in order to achieve legitimate correctional goals. In evaluating inmates' claims of constitutional deprivations, therefore, federal courts should "giv[e] appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement." Jones v. North Carolina Prisoners' Labor Union, Inc.,433 U.S. 119, 125, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977); accord, Pell v. Procunier, 417 U.S. 817, 822-23, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). Such deference plays a vital role in reaching the "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff v. McDonnell,418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).