United States District Court, D. New Hampshire
LANDYA McCAFFERTY, District Judge.
Pending before me are the parties' objections to the May 11, 2015 Report and Recommendation of Magistrate Judge Andrea K. Johnstone ("R&R") (doc. no. 86) granting, in large part, plaintiff Frank Staples's motion for a preliminary injunction (doc. no. 1). The defendants are the New Hampshire Parole Board and three named officials at the New Hampshire State Prison ("NHSP"): Warden Richard M. Gerry; Commissioner William Wrenn; and Chaplain James Daly. Pursuant to Fed.R.Civ.P. 72(b)(3), I review the R&R de novo. See also 28 U.S.C. § 636(b)(1). I am free to "accept, reject, or modify the recommended disposition[, ] to receive further evidence[, ] or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
This case involves an inmate at the NHSP who wants, for religious reasons, to maintain a full-length beard while incarcerated. The prison allows inmates to grow a beard no longer than 1/4 inch. The prison takes the position that an inmate, like Staples, with a beard longer than 1/4 inch, poses security risks and must therefore be housed in the maximum security unit of the prison known as the Special Housing Unit ("SHU") with a heightened security classification. Before permitting a transfer to a housing unit with a lower security classification, the prison requires a bearded inmate to shave his beard to the required 1/4-inch length. Staples refuses to shave his beard for religious reasons. As a result, he alleges that he has suffered punitive consequences including a heightened security classification, discipline, and denial of parole. Staples seeks a preliminary injunction to vindicate his religious right to grow a full-length beard without suffering any punitive consequences at the prison.
Following a two-day evidentiary hearing, the Magistrate Judge recommended that this court issue the following injunction:
Defendants, for the duration of this lawsuit, are subject to the following prohibitions:
A. Defendants must not preclude Staples from obtaining a C-4 or C-3 security classification, based solely or in part, on his present or past refusal to trim his full length beard;
B. Defendants must not preclude Staples from being transferred to a C-3 or C-4 housing unit, based solely or in part, on his present or past refusal to trim his beard;
C. Defendants must not initiate new disciplinary proceedings against Staples, based solely or in part, on his present or past refusal to trim his beard; and
D. Defendants must not preclude Staples from being scheduled for a parole hearing, or from being paroled, based solely or in part on Staples's C-4 or C-5 security classification, unless the NHSP certifies that Staples's classification remains elevated for reasons other than his present or past refusal to trim his full length beard.
R&R (doc. no. 86) 44.
The Magistrate Judge further recommended that the court deny the motion for a preliminary injunction to the extent it asserts an equal protection claim, and to defer ruling on Staples's First Amendment claims because his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., provide him with greater religious freedom protections.
Both plaintiff and defendants have filed objections to the R&R. See doc. nos. 90, 94, 98 and 104. Staples seeks a broader injunction; specifically, he seeks an immediate reduction in his security classification and immediate release from prison. After carefully considering Staples's objections (doc. nos. 94, 98 and 104), for the reasons stated in the R&R, I adopt the R&R with respect to its denial of Staples's request for both an immediate reduction in his security classification and immediate release.
The defendants object to only one portion of the R&R and otherwise agree to comply with the injunction during the pendency of this lawsuit. Specifically, the defendants object to part B, the portion of the proposed injunction ordering them to transfer Staples out of SHU and into a lower security unit while he maintains a full-length beard. The defendants' central contention is that the R&R is not sufficiently deferential to the prison's security-based justification for requiring an inmate with a full-length beard to remain in SHU.
Having carefully reviewed the record and considered the defendants' objection (doc. no. 90), I agree with the Magistrate Judge's decision to issue part B of the injunction, although I modify it to clarify that the prison may place Staples in a housing unit known as a "Closed Custody Unit" ("CCU") while he maintains his full-length beard. I also modify the proposed injunction to make clear that the prison has the right to house Staples in SHU in the event that he uses his beard to conceal contraband or becomes a target for abuse on the basis of his full-length beard. With those modifications, I find that the injunction accords proper deference to the defendants' expertise in running the prison while this lawsuit is pending. See Holt v. Hobbs, 135 S.Ct. 853, 864 (2015) ("Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise."); Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (upholding RLUIPA and noting that Congress anticipated that courts would apply it with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline") (citation omitted).
In Holt, a decision issued shortly before the evidentiary hearing in this case, the Supreme Court struck down a prison's grooming regulation under RLUIPA. 135 S.Ct. at 867. The regulation at issue in Holt required an inmate to be cleanshaven unless the inmate had a skin condition, under which circumstances the regulation permitted a 1/4-inch beard. Id. at 865. Although the inmate in Holt wanted a full-length beard for religious reasons, he proposed as a compromise that the prison allow him a 1/2-inch beard. The prison refused to accept the proposed compromise and defended its refusal on grounds of prison security, including a concern that an inmate with a 1/2-inch beard presented greater risks of concealing contraband in his beard than did an inmate with a 1/4-inch beard. Id. at 861. Because the prison in Holt "failed to establish... that a 1/4-inch difference in beard length pose[d] a meaningful increase in security risk, " id. at 866, the prison's security-based justification for refusing to permit a 1/2-inch beard received no deference. See id. at 863 ("We readily agree that [the prison] has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1/2-inch beard is hard to take seriously.").
RLUIPA provides, in relevant part, that the government shall not "impose a substantial burden on the religious exercise of a person residing in or confined to an institution... 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). Holt makes clear that, in assessing whether a prison's security-based regulation is the "least restrictive" means of addressing a security interest,  courts must take care to scrutinize the prison's stated security interest in the context of the individual inmate's specific circumstances and must not defer blindly to the prison's stated security justification for the particular regulation in dispute. 135 S.Ct. at 864. Holt reiterates that, under the second prong of the RLUIPA test, the "least-restrictive-means standard is exceptionally demanding, and it requires the government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party." 135 S.Ct. at 864 (internal quotation marks and brackets omitted).
Holt cautions, however, that where a prison provides security-based justifications for its regulation, courts should afford a measure of deference and should not substitute their own judgment for that of the prison. Indeed, Justice Sotomayor wrote a concurrence to make precisely this point:
Nothing in the Court's opinion calls into question our prior holding in Cutter v. Wilkerson that "context matters" in the application of [RLUIPA].... In the dangerous prison environment, "regulations and procedures" are needed to "maintain good order, security and discipline....
I do not understand the Court's opinion to preclude deferring to prison officials' reasoning when that deference is due-that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them. But the deference that must be extended to the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.
Holt, 135 S.Ct. at 867 (Sotomayor, J., concurring) (quoting Cutter, 544 U.S. at 723) (other internal quotation ...