United States District Court, D. New Hampshire
A. DiClerico, Jr. United States District Judge
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.
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).
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.
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.
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
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.
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.
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.
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.
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