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Allende v. Commissioner, New Hampshire Department of Corrections

United States District Court, D. New Hampshire

November 12, 2019

Sharif Allende
v.
Commissioner, New Hampshire Department of Corrections

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Sharif Allende, proceeding pro se and in forma pauperis, is an inmate at the New Hampshire State Prison. He brought suit against the Commissioner of the New Hampshire Department of Corrections and other officials and officers in the Department and at the New Hampshire State Prison to challenge the department's policy that requires inmates to maintain their hair so that a comb may be pulled through it easily. As determined on preliminary review, Allende asserts claims under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq., (“RLUIPA”), and 42 U.S.C. § 1983 for violation of his First and Fourteenth Amendment rights. The Commissioner moves to dismiss the claims.

         Standard of Review

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint on the ground that it fails “to state a claim on which relief can be granted.” To decide the motion, the court accepts as true all of the properly pleaded facts in the complaint and draws reasonable inferences in favor of the nonmoving party. Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018). The plaintiffs must allege facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Background

         Sharif Allende was admitted to the New Hampshire State Prison on March 21, 2017, after completing a prison sentence served at the Massachusetts Correctional Institution. When he arrived, his hair was styled in dreadlocks.

         During the admission process in the receiving and diagnostic department of the prison, Officer David Burris asked Allende if he could “take those things out of [his] hair.” Doc. no. 1, ¶ 10. Allende responded that he had dreadlocks and that they could not be taken off. He explained that he was Rastafarian and would not cut his hair. Burris told him that if he did not cut his hair he would be placed in the Secure Housing Unit (“SHU”) and would not be let out. Although Allende was not sent to SHU, he decided to shave his head to avoid the risk.

         In his complaint, Allende alleges that Rastafarian is a religious denomination and that Rastafarians believe that they are the reincarnation of ancient Israelites. As part of the religion, its followers take a vow of Nazarite. Dreadlocks are a symbol of the lion of Judah. He further alleges that the New Hampshire State Prison recognizes the Rastafarian denomination.

         Allende cites PPD 7.30 as the prison policy that forbids dreadlocks. Under PPD 7.30 inmates cannot grow their hair and facial hair to a length that would prevent corrections officers from completing “an efficient visual inspection of the hair for contraband.” Doc. no. 1-1, at *2. In addition, “[a]ny person under supervision must be able to pull a comb through the hair or facial hair with reasonable ease at the direction of a Correction Officer.” Id. As of February 20, 2017, braids and dreadlocks were prohibited.

         In Claim One, Allende states that the prison's policy that made him cut his hair violated his First Amendment right to free exercise of his religion and violated RLUIPA. In Claim Two, Allenge states that the prison violated his right to equal protection under the Fourteenth Amendment by making Rastafarians but not Native Americans cut their hair. In Claim Three, Allende alleges that he suffered emotional distress in violation of the Eighth Amendment by being forced to shave off his dreadlocks, which was not addressed on preliminary review. For purposes of relief, Allende seeks a declaration that the defendants violated his rights under the United States Constitution and federal law, an injunction against the prison's hair policy and to have his disciplinary infractions under the hair policy be removed from his record, and monetary damages.

         The magistrate judge held a hearing on Allende's request for injunctive relief on September 19, 2019, and a second hearing for October 15, 2019. At the October 15 hearing, Allende moved to withdraw his request for preliminary injunctive relief because he requests had been satisfied. The magistrate judge issued the following order:

On October 15, 2019, a hearing was held on plaintiff Sharif Allende's request for preliminary injunctive relief included in his complaint (Doc. No. 1). As stated on the record at that hearing, Mr. Allende has been provided with the relief he sought in his preliminary injunction request. Specifically, the New Hampshire Department of Corrections (“DOC”) has reduced Allende's March 31, 2018 disciplinary report to a “bad spot report” and his March 21, 2019 disciplinary report to an incident report, rendering moot Allende's request that the court direct the DOC to expunge those disciplinary reports. Further, Mr. Allende has been advised that if he files a request for a exemption to the “no dreadlocks” hair policy with the Warden, that request will be granted, rendering moot Allende's request that the court direct the DOC to allow him to grow dreadlocks. For those reasons, and for reasons stated on the record at the October 15, 2019 hearing, Allende's oral motion to withdraw his request for preliminary injunctive relief is GRANTED.

Endorsed Order, Nov. 4, 2019.

         Discussion

         The defendants move to dismiss Allende's claims as insufficient to state a claim for relief and on the ground of qualified immunity. Allende filed an objection along with the affidavits of other inmates. The defendants filed a reply to argue that the court should disregard the affidavits filed with Allende's objection.

         A. Affidavits

         The defendants correctly point out that the affidavits Allende submitted with his objection cannot be considered for purposes of their motion to dismiss under Rule 12(b)(6). See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); Hamann v. Carpenter, 2018 WL 2012689, at *3 (D. Mass. Apr. 30, 2018). Nevertheless, the court has read the ...


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