David Ali v. Nathaniel Quarterman , 822 F.3d 776 ( 2016 )

Case: 14-41165 Document: 00513487896 Page: 1 Date Filed: 05/02/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-41165
Fifth Circuit
FILED
May 2, 2016
DAVID RASHEED ALI, Lyle W. Cayce
Clerk
Plaintiff–Appellee,
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Plaintiff–Appellee David Rasheed Ali is an observant Muslim and in the
custody of the Texas Department of Criminal Justice (“TDCJ”). This appeal
concerns his suit seeking permission to grow a “fist-length” (i.e., four-inch)
beard and wear a kufi, a knit skullcap, as required by his religious beliefs. Ali
alleges that, as applied to him, TDCJ’s grooming policy, which bans four-inch
beards, and religious headwear policy, which prohibits kufis to be worn outside
of an inmate’s cell or religious services, violate the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. After a
five-day bench trial, the trial court granted declaratory and injunctive relief
Case: 14-41165 Document: 00513487896 Page: 2 Date Filed: 05/02/2016
No. 14-41165
enabling Ali to grow a four-inch beard and wear his kufi throughout TDCJ’s
facilities. Defendant–Appellant William Stephens, in his capacity as TDCJ
Director, appealed. Finding no reversible error, we AFFIRM.
I. BACKGROUND
Ali is confined to TDCJ’s Michael Unit, a maximum security prison. He
is a “trusty” inmate, which is the lowest security level classification, and lives
in a dormitory outside of the Michael Unit’s fence line. Ali is also an observant
Muslim. According to Ali, his faith requires him to have a beard that is not
shorter than a fist’s length, which is approximately four inches, and to wear
his kufi at all times.
A. Procedural Background
In March 2009, Ali brought this suit, proceeding pro se, against the
Director of TDCJ. 1 Ali asserted that TDCJ’s grooming and religious headwear
policies violated RLUIPA to the extent they prevented him from growing a fist-
length beard and wearing his kufi in accordance with his religion. 2 At the time
he filed suit, TDCJ’s grooming policy required male inmates to be clean shaven.
The sole exception was for inmates who had been diagnosed with certain
dermatological conditions. This medical exemption allowed an inmate to shave
with clippers rather than a razor and, depending on the nature of the condition,
grow a quarter-inch beard. TDCJ did not provide any exemption to its
grooming policy for religious reasons. Inmates that violated the grooming
policy were subject to disciplinary action. In addition, TDCJ’s religious
1 Because this case is against William Stephens in his official capacity as TDCJ
Director, we refer to Ali’s claims as against TDCJ itself.
2 In his complaint, Ali also brought claims under the Equal Protection Clause and the
Free Exercise Clause of the United States Constitution, which the district court dismissed.
See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir. 2011). We affirmed the dismissal of
those claims and rejected a claim under the Establishment Clause that Ali raised for the first
time on appeal. Id. at 325–26. Ali’s constitutional claims are not at issue here.
2
Case: 14-41165 Document: 00513487896 Page: 3 Date Filed: 05/02/2016
No. 14-41165
headwear policy permitted male inmates to wear religious caps, such as kufis,
only when they were within their housing area, such as a cell or dormitory, or
at religious services.
In his suit, Ali sought declaratory judgment, as well as preliminary and
permanent injunctions requiring TDCJ to exempt Ali from its beard and kufi
restrictions. In 2010, the district court denied Ali’s motion for a preliminary
injunction and dismissed his complaint for failing to state a claim pursuant to
28 U.S.C. § 1915A. See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir.
2011). This Court, however, vacated the dismissal of Ali’s RLUIPA claims
concerning both the grooming and headwear policies and remanded for further
proceedings. Id. at 325–26. It also vacated the denial of the preliminary
injunction as to the grooming policy but held that Ali had abandoned his appeal
of the denial of the preliminary injunction as to the headwear policy. Id. at 326.
In February 2014, the trial court 3 granted in part a preliminary
injunction that allowed Ali to grow a quarter-inch beard, relying on our
intervening decision in Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). See
Ali v. Stephens, No. 9:09-CV-52, 2014 WL 495162, at *2 (E.D. Tex. Feb. 4,
2014). In Garner, a Muslim inmate brought a RLUIPA challenge seeking to
grow a quarter-inch beard and wear his kufi while traveling to and from
services. 713 F.3d at 241. After a bench trial, the district court in that case
granted an injunction permitting the inmate to grow a quarter-inch beard but
denied his kufi request. Id. TDCJ appealed, and we affirmed. 4 Id. at 240.
3 In August 2013, the district court assigned the case to Magistrate Judge Zack
Hawthorn for pretrial proceedings. Ali was appointed counsel thereafter. In January 2014,
the parties agreed to refer the case to Magistrate Judge Hawthorn for trial, entry of final
judgment, and all post-judgment matters.
4 Because the inmate in Garner did not appeal, we did not address the denial of the
injunction in regard to the headwear policy. See 713 F.3d at 241.
3
Case: 14-41165 Document: 00513487896 Page: 4 Date Filed: 05/02/2016
No. 14-41165
In this case, the trial court cited Garner to explain why it was denying
Ali a preliminary injunction to grow a fist-length beard. As it noted, “the record
in this case is different than the record in Garner” in part because Ali was
requesting a longer beard than the one sought in Garner. Ali, 2014 WL 495162,
at *3. The court also explained that TDCJ had submitted evidence that it had
not in Garner, such as estimates regarding the cost of changing its grooming
policy. Id.
In July 2014, the trial court held a five-day bench trial. Ali called three
expert witnesses, including George Sullivan and Roy Timothy Gravette, who
between them had over 60 years of experience working for and auditing
correctional facilities. They testified about the impact of beards and kufis based
on their experience with prisons that already permitted them. TDCJ’s expert
witness, Ronald Angelone, testified primarily about his experience with beards
in the prison systems in which he had served as the director. Robert Eason,
TDCJ’s Deputy Director, testified about TDCJ’s security interests associated
with Ali’s requested exemptions and his findings related to his tours of other
prisons that allow inmates to have beards and wear kufis throughout their
facilities.
In September 2014, the trial court granted an injunction allowing Ali to
have a beard not to exceed four inches and to wear his kufi throughout TDCJ’s
facilities. See Ali v. Stephens, 69 F. Supp. 3d 633, 654–55 (E.D. Tex. 2014).
Among its findings of fact, it concluded that Ali’s expert witnesses were “more
credible” than TDCJ’s witnesses because Ali’s witnesses “both have significant
experience working in prisons where beards are allowed and [kufis] are
allowed to be worn at all times.” Id. at 642. TDCJ timely appealed.
B. Post-Trial Developments
While this appeal was pending, the Supreme Court decided Holt v.
Hobbs, 135 S. Ct. 853 (2015). The Court in Holt held that the grooming policy
4
Case: 14-41165 Document: 00513487896 Page: 5 Date Filed: 05/02/2016
No. 14-41165
of Arkansas’s prison system violated RLUIPA to the extent it prevented a
Muslim inmate from growing a half-inch beard in accordance with his religious
beliefs. Id. at 859. The policy at issue—like TDCJ’s policy at the time of trial—
banned inmates from growing beards, with the sole exception that inmates
with dermatological needs could grow facial hair no longer than a quarter-inch.
Id. at 860. In response to Holt, TDCJ moved to stay its appeal while it
developed a new grooming policy. We denied the stay, and TDCJ implemented
its new policy prior to oral argument. Under its current grooming policy,
inmates “with religious belief who want to grow a beard” are permitted, subject
to TDCJ’s approval, to have a beard that is not longer than “one-half (1/2) inch
in length.” 5 There is no evidence that TDCJ has changed its religious headwear
policy in any pertinent respect.
C. The Statutory Scheme
Section 3 of RLUIPA, which concerns institutionalized persons, states:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, . . .
even if the burden results from a rule of general applicability,
unless the government demonstrates that imposition of the burden
on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc–1(a). RLUIPA, which provides a private cause of action, id.
§ 2000cc–2(a), implements a burden-shifting framework, Chance v. Tex. Dep’t
of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013). The plaintiff’s initial
burden is two-fold: he or she must show that (1) the relevant religious exercise
5TDCJ’s current grooming policy is contained in its Offender Orientation Handbook
(“Handbook”), which is available online. See Tex. Dep’t of Criminal Justice, Offender
Orientation Handbook (Sept. 2015), available at http://www.tdcj.state.tx.us/documents/
Offender_Orientation_Handbook_English.pdf. We have previously taken judicial notice of
the Handbook, and we do so here. See Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015).
5
Case: 14-41165 Document: 00513487896 Page: 6 Date Filed: 05/02/2016
No. 14-41165
is “grounded in a sincerely held religious belief” and (2) the government’s action
or policy “substantially burden[s] that exercise” by, for example, forcing the
plaintiff “to ‘engage in conduct that seriously violates [his or her] religious
beliefs.’” Holt, 135 S. Ct at 862 (quoting Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751, 2775 (2014)). If the plaintiff carries this burden, the
government bears the burden of proof to show that its action or policy (1) is in
furtherance of a compelling governmental interest and (2) is the least
restrictive means of furthering that interest. 42 U.S.C. § 2000cc–1(a); Holt, 135
S. Ct. at 863.
The Supreme Court recently emphasized that “[s]everal provisions of
RLUIPA underscore its expansive protection for religious liberty.” Holt, 135 S.
Ct. at 860. Courts must construe RLUIPA “in favor of a broad protection of
religious exercise, to the maximum extent permitted by the terms of this
chapter and the Constitution.” Id. (quoting 42 U.S.C. § 2000cc–3(g)). In
addition, RLUIPA “may in some circumstances require [a] [g]overnment to
expend additional funds to accommodate [inmates’] religious beliefs.” Hobby
Lobby, 134 S. Ct. at 2781 (citing 42 U.S.C. § 2000cc–3(c)); see also Holt, 135 S.
Ct. at 860. Finally, the law defines “‘religious exercise’ capaciously to include
‘any exercise of religion, whether or not compelled by, or central to, a system
of religious belief.’” Holt, 135 S. Ct. at 860 (quoting 42 U.S.C. § 2000cc–5(7)(A)).
Although RLUIPA subjects governmental action to exacting scrutiny, “it
also affords prison officials ample ability to maintain security.” Id. at 866.
When applying RLUIPA, “courts should not blind themselves to the fact that
the analysis is conducted in the prison setting.” Id. In particular, we must
recognize that “[p]rison officials are experts in running prisons and evaluating
the likely effects of altering prison rules.” Id. at 864. Yet our deference is not
unyielding: courts are not “bound to defer” to a prison system’s assertions. Id.
“[I]t is the obligation of the courts to consider whether exceptions are required
6
Case: 14-41165 Document: 00513487896 Page: 7 Date Filed: 05/02/2016
No. 14-41165
under the test set forth by Congress.” Id. (quoting Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434 (2006)). Thus, while
we “should respect” the prison officials’ expertise, we cannot abandon “the
responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.”
Id. Even before Holt clarified the deference owed to prison officials under
RLUIPA, we observed that “[r]ather than deferring to the prison’s general
policy regarding a matter, we have consistently tested the prison’s asserted
interests with regard to the risks and costs of the specific accommodation being
sought.” Chance, 730 F.3d at 418; see also id. at 419 (emphasizing that the
deference owed to “TDCJ’s expertise in prison administration and security . . .
does have limits” (internal citation omitted)).
II. STANDARD OF REVIEW
After a bench trial, we review a trial court’s findings of fact for clear error
and its conclusions of law de novo. Garner, 713 F.3d at 242. Under clear error
review, if the trial court’s factual findings are “plausible in light of the record
viewed in its entirety, we must accept them, even though we might have
weighed the evidence differently if we had been sitting as a trier of fact.”
Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008)
(quoting Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991));
see also Ogden v. C.I.R., 244 F.3d 970, 971 (5th Cir. 2001) (per curiam) (“Clear
error exists when this court is left with the definite and firm conviction that a
mistake has been made.”). “When reviewing a district court’s factual findings,
this court may not second-guess the district court’s resolution of conflicting
testimony or its choice of which experts to believe.” Grilletta v. Lexington Ins.
Co., 558 F.3d 359, 365 (5th Cir. 2009) (per curiam). Credibility determinations
are “peculiarly within the province of the district court.” Id. (quoting League of
United Latin Am. Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843,
846 (5th Cir. 1997)). Accordingly, “the clearly erroneous standard of review
7
Case: 14-41165 Document: 00513487896 Page: 8 Date Filed: 05/02/2016
No. 14-41165
following a bench trial requires even ‘greater deference to the trial court’s
findings when they are based upon determinations of credibility.’” Guzman v.
Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir.
2015) (quoting Luhr Bros. Inc. v. Shepp (In re Luhr Bros. Inc.), 157 F.3d 333,
338 (5th Cir. 1998)).
In the context of RLUIPA, determining whether a prison system has
satisfied its statutory burden is “highly dependent on a number of underlying
factual issues” and, as such, is “best characterized as a mixed question of fact
and law, which is subject to de novo review.” Garner, 713 F.3d at 242. Thus,
although we review the court’s factual findings for clear error, we review de
novo its application of those findings in determining whether the challenged
government action is in furtherance of a compelling governmental interest and
is the least restrictive means to advancing that interest. Id.
III. DISCUSSION
On appeal, TDCJ does not challenge the trial court’s holding that its
grooming and religious headwear policies substantially burden Ali’s religious
exercise. We therefore decline to address this issue. See Garner, 713 F.3d at
244. TDCJ instead contends the trial court erred by holding that its policies
violate RLUIPA as applied to Ali because they (1) do not further any compelling
governmental interests and (2) are not the least restrictive means. We first
address whether the grooming policy complies with RLUIPA.
A. TDCJ’s Grooming Policy
TDCJ first argues that a four-inch beard constitutes “long hair” and that
Fifth Circuit precedent establishes that TDCJ’s grooming policy complies with
RLUIPA as a matter of law to the extent it bans long hair. In support, TDCJ
relies on Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam). In that
case, a Texas inmate alleged that his religion barred him from cutting his head
hair and sought an exemption from TDCJ’s short-hair policy. Id. at 900. This
8
Case: 14-41165 Document: 00513487896 Page: 9 Date Filed: 05/02/2016
No. 14-41165
Court dismissed his RLUIPA claim as frivolous, explaining that it was bound
by Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). See Longoria, 507 F.3d at 904.
The Longoria court noted that in Diaz, after an evidentiary hearing, the
district court had found that “long hair . . . facilitates the transfer of contraband
and weapons into and around TDCJ institutions” and “requiring prisoners to
have short hair makes it more difficult for escaped prisoners to alter their
appearance.” Longoria, 507 F.3d at 904 (alteration in original) (quoting Diaz,
114 F.3d at 72–73). This Court then concluded that the evidentiary showing in
Diaz was “sufficient to preclude [the inmate’s] RLUIPA claim” to grow long,
unshorn head hair. Longoria, 507 F.3d at 904.
Longoria, however, does not foreclose Ali’s request for a four-inch beard.
As we observed, RLUIPA compels a “fact-intensive inquiry” into the particular
costs and risks that the requested exemption engenders. Chance, 730 F.3d at
418 (quoting Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 795–
96 (5th Cir. 2012)). We, in turn, have repeatedly conducted “case-specific
inquiries” when addressing a RLUIPA claim. Id. at 411 (citing Garner, 713
F.3d at 245–46 and Moussazadeh, 703 F.3d at 795–96); see id. (“[O]ur RLUIPA
analysis requires a careful consideration of each case’s specific facts . . . .”). For
instance, we have even recognized that a holding against an inmate that
assembled a “thin” record does not “foreclose” another inmate from
subsequently demonstrating less restrictive means are available.
Moussazadeh, 703 F.3d at 795; see also Yellowbear v. Lampert, 741 F.3d 48, 62
(10th Cir. 2014) (“[T]he feasibility of requested exceptions usually should be
assessed on a ‘case-by-case’ basis, taking each request as it comes.” (quoting O
Centro, 546 U.S. at 436)). Therefore, in assessing Ali’s request for a four-inch
beard, we focus on the record before us to analyze whether TDCJ has “not
merely . . . explain[ed] why it denied the exemption [to its grooming policy] but
. . . prove[d] that denying the exemption is the least restrictive means of
9
Case: 14-41165 Document: 00513487896 Page: 10 Date Filed: 05/02/2016
No. 14-41165
furthering a compelling governmental interest.” 6 Holt, 135 S. Ct. at 864. For
the reasons provided, we conclude that TDCJ has not met this burden.
1. The “Compelling Interest” Test
In deciding whether TDCJ has stated a compelling interest, the court
does not ask if the challenged policy, in general, furthers a compelling
governmental interest in security and costs. Id. at 863; see also Chance, 730
F.3d at 418. Instead, the government must show that “the compelling[-]interest
test is satisfied through application of the challenged law ‘to the person’—the
particular claimant whose sincere exercise of religion is being substantially
burdened.” Holt, 135 S. Ct. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779).
This requires “scrutiniz[ing] the asserted harm of granting specific exemptions
to particular religious claimants” and “‘look[ing] to the marginal interest in
enforcing’ the challenged government action in that particular context.” Id.
(quoting Hobby Lobby, 134 S. Ct. at 2779). Applied in this case, we assess
TDCJ’s interests in preventing Ali from having a four-inch beard.
Moreover, determining whether TDCJ’s policy is “substantially
underinclusive” may “implicate the RLUIPA analysis.” Id. at 865. As the Tenth
Circuit elaborated in the RLUIPA context, “[a] law’s underinclusiveness—its
failure to cover significant tracts of conduct implicating the law’s animating
and putatively compelling interest—can raise with it the inference that the
government’s claimed interest isn’t actually so compelling after all.”
Yellowbear, 741 F.3d at 60; see also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,
1668 (2015) (“Underinclusiveness can . . . reveal that a law does not actually
advance a compelling interest.”). We have similarly observed that a prison
6 A case-specific approach comports with our observation that the hair length
requested by an inmate can affect the RLUIPA analysis. See Odneal v. Pierce, 324 F. App’x
297, 301 (5th Cir. 2009) (per curiam) (unpublished); Gooden v. Crain, 255 F. App’x 858, 861
n.1 (5th Cir. 2007) (per curiam) (unpublished).
10
Case: 14-41165 Document: 00513487896 Page: 11 Date Filed: 05/02/2016
No. 14-41165
system’s justification for denying an inmate’s requested privilege is
“dampened” where it affords other inmates a similar privilege. Moussazadeh,
703 F.3d at 795–96.
The Supreme Court’s analysis in Holt is instructive. The Court found the
prison system’s grooming policy “substantially underinclusive” in two respects.
Holt, 135 S. Ct. at 865. First, although the prison system did not allow inmates
to grow half-inch beards as the plaintiff requested, it “permit[ted] inmates to
grow more than a [half]-inch of hair on their heads.” Id. Yet the prison system’s
policy did not require inmates to “go about bald” even though head hair is “a
more plausible place to hide contraband than a [half]-inch beard.” Id. at 866.
An inmate’s clothing and shoes similarly were better hiding places for
contraband yet inmates were not required to be “barefoot[] or naked.” Id.
Second, in light of the fact that the prison already permitted quarter-inch
beards for inmates with dermatological conditions, it had failed to establish
“that a [quarter]-inch difference in beard length poses a meaningful increase
in security risk.” Id.
2. The “Least Restrictive Means” Test
The least-restrictive-means test “‘is exceptionally demanding,’ and it
requires the government to ‘sho[w] that it lacks other means of achieving its
desired goal without imposing a substantial burden on the exercise of religion
by the objecting part[y].’” Id. at 864 (alterations in original) (quoting Hobby
Lobby, 134 S. Ct. at 2780). The challenged policy cannot stand if “available,
effective alternatives” are less restrictive of the inmate’s religious exercise.
Moussazadeh, 703 F.3d at 795 (quoting Ashcroft v. Am. Civil Liberties Union,
542 U.S. 656, 666 (2004)). Moreover, courts “must not ‘assume a plausible, less
restrictive alternative would be ineffective.’” Holt, 135 S. Ct. at 866 (quoting
United States v. Playboy Entm’t Grp., 529 U.S. 803, 824 (2000)). The state’s
burden is not to show that it considered the claimant’s proposed alternatives
11
Case: 14-41165 Document: 00513487896 Page: 12 Date Filed: 05/02/2016
No. 14-41165
but rather to demonstrate those alternatives are ineffective. See Yellowbear,
741 F.3d at 63.
3. Analysis
TDCJ argues that a blanket prohibition on four-inch beards is the least
restrictive means of furthering its compelling interest in (1) preventing the
transfer of contraband within prison; (2) facilitating identification of inmates
within prison and in the event an inmate escapes; and (3) controlling costs and,
relatedly, maintaining orderly prison administration. The trial court rejected
each of these arguments, holding that TDCJ did not prove that any of its
asserted interests satisfied either the compelling-interest or least-restrictive-
means test as applied to Ali. We analyze each interest in turn.
a. Preventing contraband
TDCJ contends its grooming policy is the least restrictive means of
furthering its compelling interest in combatting the transfer of contraband
within its facilities. The trial court found that “[p]ossession of contraband by
inmates is one of the largest security issues in TDCJ.” It also found that, based
on testimony from both Ali’s and TDCJ’s witnesses, contraband has been
discovered in inmates’ beards at prisons that permit longer beards, specifically,
the Federal Bureau of Prisons (“BOP”) and the California Department of
Corrections and Rehabilitation (“CDCR”). The court observed, however, that
TDCJ had failed to introduce documentary evidence in support of its position
and held that banning Ali’s four-inch beard would not further a compelling
interest in preventing contraband.
We disagree with the trial court’s application of its factual findings to
the compelling-interest test in this case. TDCJ clearly has “a compelling
interest in staunching the flow of contraband into and within its facilities.”
Holt, 135 S. Ct. at 863. While “prison officials’ mere say-so” may be insufficient
to satisfy RLUIPA, id. at 866, the trial court erred by overemphasizing the lack
12
Case: 14-41165 Document: 00513487896 Page: 13 Date Filed: 05/02/2016
No. 14-41165
of documentary evidence, particularly given the fact that Ali’s own expert, Tim
Gravette, testified that contraband had been found in beards in BOP facilities
where he has worked. More importantly, the record indicates that a fist-length
beard poses a greater risk with regard to contraband than a half-inch beard,
which is the length Holt sanctioned and TDCJ permits under its current policy.
In Holt, none of the witnesses testified to “any instances . . . in Arkansas or
elsewhere” in which an inmate hid contraband in a half-inch beard. Id. at 861.
The Supreme Court, in turn, rejected the prison system’s argument that
banning such beards furthered a compelling interest in rooting out contraband.
Id. at 863. In contrast, the record here indicates that inmates can and do hide
contraband in longer beards. Thus, the difference in length between the beard
permitted under TDCJ’s current policy and the beard requested here poses a
meaningful increase in security risks vis-à-vis the threat of contraband
smuggling.
Ali responds that TDCJ’s grooming policy is underinclusive because it
permits an entire class of persons—female inmates—to have hair that is “much
longer and thicker than a fist-length beard.” TDCJ’s female inmates are
permitted to grow long hair, which must be neatly groomed, yet TDCJ did not
introduce any evidence of finding contraband in a female inmate’s hair.
According to Ali, the underinclusiveness of TDCJ’s grooming policy is
substantial because of the trial court’s finding that female inmates commit the
same type of disciplinary infractions as men, although at a slightly lower rate
on a per capita basis.
Even though TDCJ’s policy concerning its female inmates is relevant to
our analysis, we find that TDCJ has an adequate explanation for its
differential treatment. As the Tenth Circuit has noted, a government can rebut
a claim that its policy is underinclusive “by showing that it hasn’t acted in a
logically inconsistent way—by (say) identifying a qualitative or quantitative
13
Case: 14-41165 Document: 00513487896 Page: 14 Date Filed: 05/02/2016
No. 14-41165
difference between the particular religious exemption requested and other . . .
exceptions already tolerated.” Yellowbear, 741 F.3d at 61. At trial, TDCJ
introduced evidence indicating that the contraband threat posed by male
inmates is qualitatively different than that of female inmates. TDCJ’s Senior
Warden, Elizabeth Bailey, testified that the type of contraband female inmates
smuggle is a lesser security concern because they tend to be non-dangerous
items such as eyeliner or lipstick whereas men are more likely to smuggle cell
phones or weapons. Further, as the trial court found, there are fewer
correctional officers (“COs”) per prisoner for its male prisons than its female
prisons. In light of the record, we cannot say that TDCJ’s stricter hair-length
policy for male inmates is so inconsistent with its asserted interest in security
that the challenged policy is substantially underinclusive.
Consequently, we hold the trial court erred in concluding that TDCJ’s
ban on four-inch beards did not satisfy the compelling-interest test. Our
inquiry, however, does not end here. TDCJ must also prove that its current
grooming policy is the least restrictive means, a burden the trial court
concluded TDCJ did not meet. We agree given the record before us.
The trial court found that when searching male inmates, TDCJ’s
procedure is to have COs visually inspect short hair and “require inmates with
longer hair to shake out their own hair with their fingers.” It also found that
TDCJ policy is to deny an inmate a religious devotional item if an inmate
misuses that item or “present[s] a security risk based on documented
behavior.” The court then held that an effective alternative to banning all four-
inch beards would be to have the CO perform the same search of a beard “as is
done [for] searches of hair”: the CO can visually inspect the beard and, if
necessary, have the inmate run his fingers through his beard. The court also
noted that, in conjunction with these searches, TDCJ could revoke an inmate’s
beard privilege if he abused it or refused to comply with the searches.
14
Case: 14-41165 Document: 00513487896 Page: 15 Date Filed: 05/02/2016
No. 14-41165
The trial court did not err in light of the record. Ali’s expert witness,
George Sullivan, testified that, based on his experience auditing prisons that
allow longer beards and personally conducting searches as a CO, a visual
inspection accompanied by having the inmate shake his own beard, if needed,
effectively reveals contraband. Tim Gravette, Ali’s other expert, similarly
testified that COs can search long beards by having an inmate shake out his
beard hair, which is the technique used by BOP. 7 Finally, Holt bolsters the
court’s conclusions. In that case, the Supreme Court found that a less
restrictive alternative to prohibiting beards would be to require inmates to
conduct a self-search, albeit with a comb rather than his fingers, and that an
institution could revoke an accommodation should an inmate abuse it. Holt,
135 S. Ct. at 864, 867.
TDCJ responds that the trial court committed reversible error because
it did not “afford any level of deference” to the testimony of its witnesses.
Specifically, it argues that the trial court should have deferred to two TDCJ
officials, Director Robert Eason and Warden Todd Foxworth, who it claims
testified that having inmates shake out their own beards would be unworkable
because an inmate can manipulate the self-search in a way that avoids
7 The parties dispute the applicability of the policies of BOP and CDCR. The trial
evidence indicated that both prison systems allow four-inch beards and kufis to be worn
throughout their facilities. TDCJ argues that the trial court “attached unprecedented weight
to [the] evidence of other prison systems’ grooming and kufi policies,” specifically, that of BOP
and CDCR. The trial court, however, acknowledged the differences among systems, especially
with regard to BOP’s and CDCR’s larger budgets and different surveillance equipment. The
court also noted that, although BOP has a bigger budget, it also has “a much larger inmate
population” and “more offenders per correctional officer than TDCJ.” The court did not err in
concluding that, although there are “clearly differences” among the systems, it “[does] not
preclude comparisons” and that the other policies are pertinent evidence that inform its
analysis. See, e.g., Holt, 135 S. Ct. at 866 (“While not necessarily controlling, the policies
followed at other well-run institutions would be relevant to a determination of the need for a
particular type of restriction.” (quoting Procunier v. Martinez, 416 U.S. 396, 414, n.14
(1974))); Garner, 713 F.3d at 247.
15
Case: 14-41165 Document: 00513487896 Page: 16 Date Filed: 05/02/2016
No. 14-41165
revealing contraband. 8 We find that the trial court did not so err. To begin,
contrary to TDCJ’s characterization of Director Eason’s testimony, his
testimony is consistent with that of Ali’s experts. In discussing how he would
search fist-length beards, he testified that he would have inmates “run their
fingers through that beard.” Importantly, he did not express any concern that
such searches would fail to reveal contraband, although he averred that self-
searches would “take a little more time” than visual inspections. Such
testimony—while relevant to TDCJ’s separate interest in administrative costs,
which we address below—does not support TDCJ’s argument that self-
searches would not uncover contraband. 9
As for Warden Foxworth, he testified that having inmates run their
fingers through their beards was not “feasible . . . simply because of the
consistency of beards” in that “[s]ome people have very thick beards.” He also
testified that some inmates “can’t really grow a beard” and that “each [inmate]
is going to be different.” We cannot say that the trial court failed to adequately
defer to this testimony. In its holding, the court found that beard hair can be
searched in the same way as head hair—which does not have a prescribed
8 TDCJ also argues that the “sole alternative to prohibiting long beards” would be to
have the CO physically touch the inmate’s beard and that this technique would seriously
compromise the CO’s safety because it requires the CO to stand in the inmate’s “strike zone,”
which, according to TDCJ, is “a proximity considered to be dangerous and is avoided when
possible.” Because we find no clear error in the trial court’s findings regarding self-searches,
we do not address TDCJ’s contention regarding searches in which the CO touches an inmate’s
beard.
9 Director Eason also raised the possibility that if the CO discovered contraband in an
inmate’s beard, the inmate may refuse to take the contraband out of the beard, leading to a
confrontation with the inmate. However, as the district court found, contraband can be
discovered “in any article of clothing, in an inmate’s genitals or anus, or it can be swallowed.”
Director’s Eason testimony is unconvincing to the extent that TDCJ fails to explain why an
inmate would be reluctant to hand over contraband that has been found in his beard but not
contraband found in or on any other part of the inmate’s body. See Holt, 135 S. Ct. at 864
(refusing to find that search of a beard would be an ineffective alternative where the prison
system’s assertion regarding risks to guard safety would be “no less true for searches of hair,
clothing, and [quarter]-inch beards”).
16
Case: 14-41165 Document: 00513487896 Page: 17 Date Filed: 05/02/2016
No. 14-41165
length limit under TDCJ’s policy so long as it is “neatly cut.” Although we must
respect a prison official’s expertise, the trial court in this case did not exceed
its prerogative as a fact finder in resolving competing testimony in Ali’s favor
where, as here, its finding was supported by testimony from both Ali’s experts
and TDCJ’s own witness. Cf. Knight v. Thompson, 797 F.3d 934, 945 (11th Cir.
2015) (noting that, in the RLUIPA context, the trial court “as the finder of fact,
remain[s] free to reject” witnesses’ testimony that is contradicted). 10
b. Inmate identification
TDCJ contends that its grooming policy is necessary to further a
compelling interest by aiding in the identification of inmates within the prison
and inmates who escape. As to within-prison identification, the evidence
introduced at trial indicated that inmates are provided an identification card
containing their photograph and biographical information. Director Eason’s
testimony was that inmates “are identified by their identification cards [eight]
times each day at count and several other times throughout the day.” TDCJ,
citing this policy, claims that its ban on four-inch prevents an inmate from
10 In Knight, the plaintiffs, a group of Native American inmates, brought a RLUIPA
challenge against the Alabama prison system, seeking a “complete religion-based exemption”
from its short-hair policy for male inmates that would allow them to grow long, unshorn hair.
797 F.3d at 937. The district court, after a bench trial, found that Alabama had carried its
burden under RLUIPA, and the Eleventh Circuit affirmed. Id. Although the Eleventh Circuit
ruled in favor of the prison system, much of its reasoning helps Ali. The court repeatedly
emphasized that its RLUIPA analysis was tied to the district court’s particular factual
findings and resolution of competing evidence. See, e.g., id. at 941, 944 (“[Appellants] merely
mount an attack on the District Court’s factual findings and choice to credit the testimony of
[appellee’s] witnesses.”). Our RLUIPA analysis, like that of the Eleventh Circuit, is specific
to the record and the trial court’s findings, including those based on its assessment of
conflicting testimony. In addition, the Knight opinion is distinguishable because the case
involved a request for a complete exemption in order to wear head hair unshorn, which raises
factual issues that are distinct from a request for a beard that is four-inches. Id. at 937. As
the Eleventh Circuit observed in a related opinion, “RLUIPA requires us to scrutinize the
asserted harm of granting [the] specific exemption of long, unshorn hair.” Knight v.
Thompson, 796 F.3d 1289, 1292 (11th Cir. 2015) (emphasis added) (referencing Holt, 135 S.
Ct. at 863).
17
Case: 14-41165 Document: 00513487896 Page: 18 Date Filed: 05/02/2016
No. 14-41165
being able to shave his beard and thereby no longer resembling the picture on
his card. It also contends that it is especially reliant on identification cards
because, according to Director Eason, officers are often rotated within their
units to prevent the staff from becoming “overly familiar” with inmates and
“complacent.” Further, TDCJ introduced evidence that beards hinder
identification because they can cover identifying marks and facial tattoos.
The trial court rejected TDCJ’s arguments that banning Ali from having
a four-inch beard satisfies the compelling-interest test with respect to inmate
identification. In light of the governing case law and the record below, we
agree. In Garner, we considered a similar contention with respect to quarter-
inch beards. 713 F.3d at 247. Rejecting this argument, we reasoned that even
though TDCJ “presented evidence that allowing inmates to have beards
hinders inmate identification,” it failed to carry its burden because “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.” Id. In Holt, the Supreme Court rejected a similar argument
concerning the risk that inmates would shave to disguise themselves and even
swap identification cards with each other. 135 S. Ct. at 865. The Court
responded that the prison system “failed to establish why the risk that a
prisoner will shave a [half]–inch beard to disguise himself is so great that
[half]–inch beards cannot be allowed, even though prisoners are allowed to
grow mustaches, head hair, or [quarter]–inch beards for medical reasons.” Id.
These other kinds of hair “could also be shaved off at a moment’s notice, but
the [the prison system] apparently does not think that this possibility raises a
serious security concern.” Id.
The reasoning of Garner and Holt apply with equal force based on the
record here. The parties’ evidence establish that an inmate can alter his
appearance in many ways under TDCJ’s current policy. An inmate, for
18
Case: 14-41165 Document: 00513487896 Page: 19 Date Filed: 05/02/2016
No. 14-41165
instance, could shave his head, shave his quarter-inch beard (if he is permitted
to grow one for medical reasons), or change his hairstyle. Further, Ali’s expert,
Tim Gravette, disagreed with TDCJ’s witnesses who testified that permitting
inmates to wear beards would create problems with identification, stating that
there are many ways an inmate could alter his appearance. Because of the
various ways an inmate can permissibly change his appearance, TDCJ has not
shown that denying Ali’s request for a four-inch beard furthers a compelling
interest as to within-prison inmate identification. Cf. Schlemm v. Wall, 784
F.3d 362, 366 (7th Cir. 2015) (observing in response to a prison system’s
asserted interest in suppressing gang identification that “it is difficult to depict
as ‘compelling’ a desire to cut out one potential means of [gang] identification”
where other means of identification were “widely available already”).
TDCJ’s change in grooming policy—which now permits inmates to grow
half-inch beards for religious reasons—also undermines its position. See
Moussazadeh, 703 F.3d at 795–96 (accounting for TDCJ’s change in policy in
assessing a RLUIPA challenge). As noted, the compelling-interest test focuses
on TDCJ’s “marginal interest” in denying the accommodation. Holt, 135 S. Ct.
at 863. We abided by this principle in Garner: in analyzing an inmate’s request
for a quarter-inch beard, we looked to whether there was “evidence that TDCJ
would encounter greater or added difficulty if it enforced a one-quarter-inch as
opposed to a clean-shaven rule.” 713 F.3d at 246 (emphasis added). Here, we
focus on the additional risk of permitting a four-inch beard instead of enforcing
a half-inch limit. TDCJ’s arguments concern how beards in general hinder
identification, namely, they cover face tattoos and allow an inmate to change
his appearance by shaving. Yet the testimony of TDCJ’s officials indicated that
half-inch beards, which TDCJ presently allows, also pose such risks. TDCJ in
fact concedes that “easy identification of an inmate with a facial tattoo would
be hampered whether there was a short beard or a long beard.” Therefore, with
19
Case: 14-41165 Document: 00513487896 Page: 20 Date Filed: 05/02/2016
No. 14-41165
respect to its interest in within-prison identification, TDCJ fails to adequately
address the risks associated with the three-and-a-half-inch difference in beard
length. 11 See Holt, 135 S. Ct. at 866.
In addition, even if we assumed that banning all beards over a half-inch
furthered a compelling interest by facilitating within-prison identifications,
TDCJ has not proved its policy is the least restrictive means. The trial court
found that a less restrictive alternative would be to maintain two photographs
of the inmate, one with the beard and one without. In Holt, the Supreme Court
condoned the “dual-photo method” in which prison officials would have “a
bearded and clean-shaven photo to use in making identifications.” Id. at 865.
The Court highlighted that Arkansas, “like many other States,” already had a
policy of “photographing a prisoner both when he enters an institution and
when ‘his appearance changes at any time during [his] incarceration.’” Id.
(alteration in original). Just so here. TDCJ’s policy—like that of Arkansas and
the other prison systems referenced in Holt—is to photograph an inmate
during intake and to take a new photograph if his appearance changes while
in TDCJ custody. Therefore, as we held in Garner, TDCJ’s identification
concerns can be “addressed by requiring an inmate to have his identification
picture changed if he grows or shaves his beard” given that TDCJ already
requires a new picture when an inmate alters his appearances “in any way.”
713 F.3d at 247. Indeed, TDCJ has incorporated this method into its new
grooming policy—TDCJ will issue a new identification card to an inmate
permitted to grow a half-inch beard for religious reasons. TDCJ has not
explained why it cannot use the same technique for a beard that is four inches.
11It is worth noting that Ali does not seek permission to consistently change the style
or shape of his beard. He seeks only to maintain a four-inch beard, which, as the trial court
found, he can do by clasping his hand around his beard and using clippers to trim the
protruding hair.
20
Case: 14-41165 Document: 00513487896 Page: 21 Date Filed: 05/02/2016
No. 14-41165
As to identifying escaped prisoners, TDCJ argues that its policy prevents
an inmate from significantly changing his appearance by shaving upon escape.
TDCJ also claims that because it publicly releases a photograph when an
inmate escapes, it would cause confusion and impede identification if TDCJ
had to release multiple photographs, such as one photograph with the beard
and one without.
The trial court acknowledged but ultimately rejected TDCJ’s assertions
and, on this record, we cannot say that it was incorrect. The evidence adduced
at trial indicated that after escaping, an inmate can change his appearance in
many ways, such as by growing or cutting his hair or facial hair, dyeing his
hair, wearing a hat, or donning glasses. TDCJ’s witness Senior Warden Bailey
agreed that such steps would alter an inmate’s appearance. Further, Ali’s
expert, George Sullivan, testified that having to release more than one picture
of the inmate if he escaped would not pose a security risk. Sullivan explained
that law enforcement officials already release both the most recent picture of
the inmate and one that projects his potential change in appearances, and such
a practice does not confuse the public. Thus, as in Garner, we are unpersuaded
by TDCJ’s argument regarding identifying escaped inmates where the
evidence established an inmate could “chang[e] his appearance outside of the
prison” in many ways. Id. Holt also bolsters this conclusion: the prison system
there argued that inmates could change their appearance by shaving in order
“to escape[] and to evade apprehension after escaping,” but the Court found
that the prison system did not carry its burden, emphasizing the other ways
an inmate could change his appearance. 135 S. Ct. at 864.
c. Cost control and prison operations
TDCJ also argues that its policy is the least restrictive means of
advancing its compelling interests in controlling costs and ensuring orderly
program administration. “[C]ost reduction, as a general matter, is
21
Case: 14-41165 Document: 00513487896 Page: 22 Date Filed: 05/02/2016
No. 14-41165
unquestionably a compelling interest of TDCJ.” Moussazadeh, 703 F.3d at 795.
TDCJ relatedly has a compelling interest in maintaining the orderly
administration of its operations. See Baranowski v. Hart, 486 F.3d 112, 125
(5th Cir. 2007). RLUIPA, however, “may require a government to incur
expenses in its own operations to avoid imposing a substantial burden on
religious exercise.” Garner, 713 F.3d at 245 (quoting 42 U.S.C. § 2000cc–3(c)).
In determining whether a cost is compelling, a court may need to “put th[e]
amount in perspective” by measuring the projected expense against the
resources devoted to that interest. Moussazadeh, 703 F.3d at 795. For instance,
in Moussazadeh, the inmate requested kosher food, which TDCJ denied citing
cost concerns. Id. at 794. In the subsequent RLUIPA challenge, the evidence
indicated that the annual cost to provide the accommodation at most would be
“about $88,000” whereas TDCJ’s total food budget was $183.5 million. Id. at
795. We responded by noting our “skeptic[ism] that saving less than .05% of
the food budget constitutes a compelling interest,” although “we decline[d] to
draw a bright-line rule.” Id.
TDCJ argues that if four-inch beards were allowed, then staff would
spend additional time searching those beards. The added time, according to
TDCJ, would disrupt its daily schedule and impose significant costs because it
would have to pay staff for the search time. Further, TDCJ asserts that
because it is responsible for statewide policies, its costs must be measured on
a statewide basis. It contends that its cost estimates should be based on the
number of inmates statewide who belong to a faith group “that ha[ve]
requested or ha[ve] a religious basis to request a beard.” That number,
according to TDCJ, is 131,478 inmates, which represents 94% of TDCJ’s total
male inmate population. TDCJ claims that if 25% of those inmates—which
totals 32,870 inmates—requested and were granted permission to grow a four-
22
Case: 14-41165 Document: 00513487896 Page: 23 Date Filed: 05/02/2016
No. 14-41165
inch beard, then COs would spend 182.6 hours searching beards every day. 12
It claims that 182.6 hours of staff salary equals $1,110,372.34 annually and
that its interest in saving that amount is compelling. 13
The trial court rejected TDCJ’s projections. It noted that Ali’s expert,
George Sullivan, testified that, in his experience in prisons that allow beards,
30 to 40% of Muslim inmates grew beards. Relying on this testimony, the court
considered the time spent searching four-inch beards if 40% of Muslim inmates
in the Michael Unit chose to grow such a beard and found that it would take
34 minutes each day. The court found that any additional time spent searching
beards would either be absorbed by existing staff, thus costing TDCJ nothing,
or, even if new staff was hired to search beards, amount to $3,445.84 each year,
an insignificant fraction of TDCJ’s $3 billion budget.
The trial court did not commit clear error in rejecting TDCJ’s estimates
regarding the number of inmates that are likely to request a fist-length beard.
TDCJ officials admitted there had been no studies or surveys to determine the
number of inmates that would seek to grow beards. See Garner, 713 F.3d at
245–46 (holding that the district court’s “finding that any increased costs
would be insignificant” was not “clearly erroneous” where TDCJ had conducted
“no studies concerning the costs of allowing inmates to grow beards”). Nor was
the trial court bound to accept TDCJ’s predications in light of the speculative
nature of the testimony of TDCJ’s witnesses. TDCJ’s cost estimates were based
on 25% of inmates that belong to a faith group that, according to TDCJ
Chaplain Billy Pierce, may have a religious basis for requesting an exemption
if those inmates chose to request one. However, Chaplain Pierce’s testimony
12 TDCJ’s estimates are based on the trial court’s finding that a search of a four-inch
beard takes five seconds and that, on average, an inmate would be searched four times daily,
thus totaling twenty seconds per day per inmate.
13 To estimate costs, the TDCJ multiplied (1) the COs’ average hourly wage—$16.66—
and (2) the time it takes per day to search a beard.
23
Case: 14-41165 Document: 00513487896 Page: 24 Date Filed: 05/02/2016
No. 14-41165
concerned the number of inmates that “could possibly ask” for a beard. TDCJ
did not present any evidence that many of the faith groups identified by
Chaplain Pierce have in fact petitioned for a beard similar in length to Ali’s
request. Warden Foxworth similarly stated in a conclusory manner that if the
“privilege” to grow a long beard “is out there,” an inmate is “go[ing to] do it.”
He then “speculate[d]” that if Ali’s request was granted, there would be “a lot
of . . . [one]-inch, inch and a half, [two]-inch beards.” Such conjecture does not
satisfy TDCJ’s burden. See id. at 246; cf. Hobby Lobby, 134 S. Ct. at 2783
(rejecting, in the analogous context of the Religious Freedom Restoration Act
of 1993, the government’s argument that ruling in favor of the plaintiff “will
lead to a flood of religious objections” when the government fails to
“substantiate this prediction”).
Further, we cannot disturb the trial court’s finding that existing staff
will absorb the time spent searching beards because we are not left with “the
definite and firm conviction” that this finding is a mistake. Ogden, 244 F.3d at
971. The trial court’s finding was based on its estimations regarding the time
that would be spent searching beards requested by Muslim inmates in the
Michael Unit. The estimated 34 minutes each day spent searching beards was
compared to the roughly 74,160 minutes of CO time spent staffing Michael
Unit each day. TDCJ responds that the proper scope of the cost inquiry is not
the Michael Unit but rather all TDCJ’s facilities. Although we agree that TDCJ
must be able to consider statewide ramifications when responding to a
RLUIPA challenge, the magistrate judge did not err in refusing to engage in
such an analysis given the record. As it noted, “there [was] no evidence in the
record for the court to determine the amount of correctional officer hours
worked state-wide on a daily basis.” RLUIPA does not require “unquestioning
acceptance” of a prison system’s assertions. Holt, 135 S. Ct. at 864. Therefore,
in order for a court to evaluate whether the time spent searching statewide
24
Case: 14-41165 Document: 00513487896 Page: 25 Date Filed: 05/02/2016
No. 14-41165
inmates would be absorbed by existing staff, TDCJ must provide some concrete
evidence regarding its statewide resources allocated to its asserted interest.
Lastly, TDCJ’s contentions regarding the costs and disruption caused by
four-inch beards are undercut by its change in policy. For instance, TDCJ
introduced evidence concerning the costs associated with providing a religious
exemption to its no-beard policy, such as having to issue new identification
cards with updated photographs, provide beard covers for kitchen workers, and
process an inmate’s request to grow a beard. Yet TDCJ’s current grooming
policy allows inmates to grow a half-inch beard for religious reasons. Therefore,
TDCJ already must bear many of the administrative costs it cited at trial.
TDCJ has not shown it will bear a significantly greater burden in this respect
by permitting an inmate to grow a beard that is three-and-one-half-inches
longer than is currently permitted.
Accordingly, based on the record before us, we conclude that TDCJ has
not carried its burden under RLUIPA with respect to its denial of Ali’s request
for a fist-length beard not to exceed four inches. 14
B. TDCJ’s Religious Headwear Policy
TDCJ argues that its religious headwear policy, like its grooming policy,
furthers its compelling interest in (1) preventing the spread of contraband, (2)
allowing for rapid identification of inmates within prison, and (3) controlling
14 TDCJ also argues that the trial court clearly erred by discounting the testimony of
its expert, Ron Angelone, concerning inmate hygiene and that hygiene is a compelling state
interest that TDCJ’s grooming policy furthers. It specifically points to the fact that Angelone,
TDCJ’s expert, implemented a clean-shaven grooming policy for hygienic reasons when he
was director of Virginia’s correctional facilities. We find the trial court did not clearly err in
this regard. In addressing Angelone’s testimony, the trial court noted that part of his
testimony was contradicted by TDCJ’s medical expert, Dr. Bobby Vincent. Specifically, the
court noted that Angelone had expressed concerns with lice, but Dr. Vincent’s testimony
indicated that “having longer hair does not increase the incidence of lice.” Further, Angelone’s
testimony regarding the hygienic benefits of a clean-shaven policy is insufficient to carry
TDCJ’s burden that its grooming policy—which allows for shorter beards—is the least
restrictive means to further a compelling interest in inmate hygiene.
25
Case: 14-41165 Document: 00513487896 Page: 26 Date Filed: 05/02/2016
No. 14-41165
costs and maintaining orderly operations. The trial court rejected these
arguments and held that none of TDCJ’s assertions satisfied either the
compelling-interest or the least-restrictive-means test as applied to Ali. As
explained below, we conclude that TDCJ has not satisfied its burden.
1. Analysis
TDCJ’s religious headwear policy allows inmates to wear a kufi in their
cells and at religious ceremonies but prohibits them from wearing them in
other areas of the prison. As such, we address each of TDCJ’s assertions by
focusing on TDCJ’s interest in enforcing its religious headwear policy to
prohibit Ali from wearing his kufi outside of his cell and religious services.
a. Preventing contraband
The trial court held that, although an inmate “could hide contraband in
or under a [k]ufi,” TDCJ had failed to carry its burden to show that its
headwear policy furthered a compelling interest in combatting contraband. In
support, it noted that although TDCJ already permits inmates to wear kufis
in their cell and at religious ceremonies and that some inmates are allowed to
wear hats for work assignments, it failed to produce evidence of a single
incident in which contraband was hidden “in or under a religious head
covering, or even under a work cap.” TDCJ responds that the testimony of its
witnesses established that inmates will hide contraband in kufis if they are
allowed to wear them throughout the facilities, despite the fact that a kufi, as
TDCJ notes, “is not the easiest place to hide something.”
Even assuming that TDCJ’s headwear policy furthers a compelling
interest in combatting contraband, TDCJ did not carry its burden to show that
its current policy is the least restrictive means. The trial court found that Ali,
like many Muslim inmates, are already allowed to possess a kufi, to wear them
in their housing areas and at religious services, and to transport the kufis to
and from religious services. Ali also owns another religious item, a prayer rug,
26
Case: 14-41165 Document: 00513487896 Page: 27 Date Filed: 05/02/2016
No. 14-41165
which he carries to and from services. TDCJ’s policy is to search Ali’s kufi and
prayer rug when he returns from services. TDCJ also frequently searches other
items of clothing, such as hats or jackets. The trial court, in turn, concluded
that a lesser restrictive alternative would be to search the kufis during routine
inmate searches and, as it already does for religious devotional items, revoke
any kufi privilege if it is abused.
TDCJ claims that searching the kufi would be ineffective because
inmates will resist searches of a religious item and even threaten to sue.
According to TDCJ, inmate resistance will deter COs from conducting
searches, and inmates will then use kufis to smuggle contraband. We find
TDCJ’s argument unavailing in light of the district court’s findings and the
record below. TDCJ permits inmates to have kufis and prayer rugs and
inmates are already required to make them available for inspection by COs.
TDCJ fails to adequately explain why it can search an inmate’s kufi when he
is traveling with it to and from religious services but not if he was to wear it at
other times. Further, TDCJ has not shown why it is impracticable to revoke
kufi privileges for those inmates that resist such searches. See id. at 866–67
(“[A]n institution might be entitled to withdraw an accommodation if the
claimant abuses the exemption in a manner that undermines the prison’s
compelling interests.”).
b. Inmate identification
The trial court rejected TDCJ’s assertion that its policy regarding kufis
satisfies the compelling-interest test with respect to within-prison
identification. It provided three reasons. First, male inmates could still alter
their appearance by shaving or changing their hairstyle. Second, other types
of head coverings that TDCJ permits, such as caps that are authorized for
certain jobs, change how an inmate looks “as much as a [k]ufi.” Third, female
inmates that are Muslim are permitted to wear a hijab throughout its facilities.
27
Case: 14-41165 Document: 00513487896 Page: 28 Date Filed: 05/02/2016
No. 14-41165
As the district court found, a hijab is a headscarf that is “larger” and “cover[s]
more of the head” than a kufi. The court then concluded that kufis may actually
help rather than hamper identification.
TDCJ contends that, contrary to the trial court’s conclusion, kufis will
hinder rather than facilitate inmate identification. TDCJ asserts that an
inmate may wear a kufi sporadically and that, in turn, kufis will impede rapid
identification should an inmate choose to wear his kufi one day and then
remove it the next day. However, in light of Holt and Ali’s evidence, we are
unpersuaded that TDCJ has met its burden on this point. The prison system
in Holt asserted that identification concerns are “particularly acute” because
inmates “live in barracks and work in fields.” 135 S. Ct. at 865. As noted, the
Court rejected this argument because of the other ways that an inmate can
disguise himself “at a moment’s notice,” including shaving his head hair or his
quarter-inch beard. Id. TDCJ’s policies permit an inmate to take similar steps
that would change his appearance. Additionally, the prison also permits male
inmates to wear other garments that impede identification, such as hats while
working in the kitchen or outdoors and jackets when it is cold.
Further, TDCJ argues that kufis hinder identification by covering
tattoos on the top of an inmate’s head, including tattoos that are used as gang
identifiers. It cites the testimony of Robert Grant, an official in TDCJ’s
Security Threat Group, who stated that a kufi would potentially hide a gang-
related tattoo. TDCJ argues that it is crucial that it monitor tattoos so it can
identify an inmate’s gang affiliation.
We acknowledge TDCJ’s compelling interest in identifying inmates’ gang
affiliation. However, on this record, TDCJ has not shown its kufi restriction is
the least restrictive means to furthering this interest or its interest in
identification generally. At trial, TDCJ introduced photographs of inmates
with tattoos that would be covered by a kufi. The trial court found such
28
Case: 14-41165 Document: 00513487896 Page: 29 Date Filed: 05/02/2016
No. 14-41165
evidence unconvincing, explaining that for each photograph the inmate could
have been identified by facial tattoos that a kufi would not cover. Equally
important, the trial court also held that a less restrictive alternative would be
to have the inmate remove his kufi should the CO need to identify the inmate
or his gang affiliation and, if necessary, revoke the privilege if it is misused. 15
TDCJ’s witness, Robert Grant, agreed that he would be able to determine the
necessary gang-related information by requiring the inmate to remove the kufi.
Finally, the court found that TDCJ’s current policy is to document whether an
inmate is allowed to have a kufi. It concluded that TDCJ could track which
inmates were allowed to have a kufi by issuing property slips that an inmate
must carry on his person, as it already does for other personal property such
as watches. We hold that the trial court’s conclusions are not erroneous. 16
c. Cost control and prison operations
The trial court found that the only kufi-related expense or disruption to
operations arise from the additional staff time needed to search kufis. The
court reasoned that if 30% of Muslim inmates at the Michael Unit wore kufis,
it would take an extra 15 minutes each day to search them, which is spread
across 74,160 minutes of correctional officer time each day. 17 It concluded that
this additional search time would be absorbed by the existing staff. Even if
15 The only evidence concerning an instance in which a religious item was misused for
gang-related purposes occurred when inmates began using colored rosaries to affiliate with
different gangs. TDCJ responded by changing its policy to permit only black rosaries. In this
case, TDCJ’s argument addresses the opposite concern: it contends that kufis will be used to
conceal rather than promote gang affiliation.
16 TDCJ also argues that the trial court erred by relying on evidence concerning female
inmates being allowed to wear hijabs. However, because we hold that TDCJ has failed to
prove that its ban is the least restrictive means without regard to evidence concerning female
inmates, we decline to address the issue.
17 The trial court found, based on an in-court demonstration, that it takes three
seconds to search a kufi and that it will be searched on average four times a day, totaling 12
seconds per inmate per day. As of 2014, there were 260 Muslim inmate at the Michael Unit.
If 30% of those inmates wore kufis, it would equal 78 inmates.
29
Case: 14-41165 Document: 00513487896 Page: 30 Date Filed: 05/02/2016
No. 14-41165
additional staff had to be hired, it would cost at most $1,533 each year in staff
salary. Ali’s expert agreed that any added costs from kufis would be
insignificant.
TDCJ responds that the trial court erred in limiting its analysis only to
Muslims in the Michael Unit. It argues that the time and costs associated with
Ali’s request must account for all male inmates statewide, specifically, if 25%
of male inmates wore a religious cap at all times, then it would entail 115.53
hours of CO time to search those kufis and other religious garments, which
equals $702,526.37 in CO salary annually. TDCJ argues alternatively that
every Muslim inmate will wear a kufi if Ali is permitted to wear one. It claims
that searching all Muslim inmates who wear kufis would take 21.48 hours each
day and cost $130,658.27 annually.
The trial court, however, rejected these estimates as “pure conjecture,”
and its conclusion is not clearly erroneous. TDCJ’s claim that all Muslim
inmates will want to wear a kufi was not based on any study or survey. See
Garner, 713 F.3d at 246. Further, Ali’s expert, George Sullivan, who had spent
much of his career in prison systems that allow kufis, testified that around 20
to 30% of Muslim inmates chose to wear a kufi. The court noted that, in
contrast to Ali’s witness, none of TDCJ’s witnesses “had experience in
correctional systems that allow [k]ufis to be worn throughout the prison.”
Thus, while TDCJ may have presented testimony that was inconsistent with
Sullivan’s testimony regarding the number of Muslim inmates that would wear
a kufi, we will not second-guess the trial court’s resolution of competing
evidence. See Anderson, 517 F.3d at 296.
We also cannot accept TDCJ’s cost estimates based on its assertion that
25% of all male inmates would choose to wear some kind of religious headwear
should Ali be granted the requested accommodation. Under RLUIPA, we have
found it appropriate to “tak[e] an object-specific approach to requests for
30
Case: 14-41165 Document: 00513487896 Page: 31 Date Filed: 05/02/2016
No. 14-41165
religious items.” Chance, 730 F.3d at 418. TDCJ, however, fails to specify what
other religious headwear inmates would request or point to any evidence
regarding the search procedure required for such headwear. Without any
concrete evidence regarding which items will be requested, the risk these items
would pose, and the methods required to search them, we cannot conclude
TDCJ has met its statutory burden on this point. See, e.g., id.; Schlemm, 784
F.3d at 366 (“On this record the cost of accommodating Navajo inmates [by
providing special religious meals] appears to be slight, and the costs of
accommodating other inmates’ requests (should any be made) can be left to
future litigation.”).
Finally, TDCJ has not shown it has a compelling interest in the costs
associated with allowing Muslim inmates statewide to wear kufis. As of 2014,
there were 6,446 male TDCJ inmates that identified as Muslim. Given the
record, we find no clear error in the trial court’s finding that the cost of
searching 30% of Muslim inmates would be absorbed by existing staff.
However, even if none of the search time was absorbed by existing staff, then
under TDCJ’s methodology, it would cost $39,221 per year to search all the
kufis. 18 The record below indicates that TDCJ’s budget for staff salary and
wages was $1.045 billion in 2014, which is roughly one-third of its total
operating budget of $3.1 billion. TDCJ has not shown it has a compelling
interest in saving less than .004% of its budget that is dedicated to CO
compensation. See Moussazadeh, 703 F.3d at 795 (expressing doubt that TDCJ
had a compelling interest in saving $88,000 in food-related expenses where
that cost amounted to “less than .05% of the food budget”).
18Thirty percent of all male Muslim inmates equals 1,934 inmates. If, as the district
court found, it takes 12 seconds to search a kufi per day, then it would take approximately
6.45 hours per day statewide.
31
Case: 14-41165 Document: 00513487896 Page: 32 Date Filed: 05/02/2016
No. 14-41165
Therefore, we conclude that, based on the record, TDCJ has not carried
its burden under RLUIPA with respect to its denial of Ali’s request to wear his
kufi throughout TDCJ facilities.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment and
permanent injunction.
32