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March 21, 2000


The opinion of the court was delivered by: Kennedy, District Judge.


Plaintiffs represent a class of prisoners whose avowed religious faiths have doctrines which plaintiffs believe forbid them (or anyone else) from cutting their hair or shaving their beards, or both. They were convicted in the Superior Court of the District of Columbia or the United States District Court for the District of Columbia, were committed to the custody of the District of Columbia Department of Corrections ("D.C.Corrections") or the Federal Bureau of Prisons ("BOP"), and are presently serving their sentences in facilities operated by the Virginia Department of Corrections ("Virginia Corrections") in the Commonwealth of Virginia. In this action, plaintiffs seek declaratory and injunctive relief to prevent defendants, the District of Columbia, Odie Washington, the Director of D.C. Corrections (collectively "D.C. Defendants"), and BOP, from subjecting them to a grooming policy recently instituted by Virginia Corrections. Plaintiffs assert that the policy, which requires inmates to be clean-shaven and to keep their head hair short, violates their rights under the Religious Freedom Restoration Act ("RFRA")*fn1 and the Free Exercise Clause of the First Amendment.*fn2

Following a hearing, the court, on December 14, 1999, granted plaintiffs' application for a temporary restraining order. Subsequently, following a three-day trial, the court, on March 13, 2000, entered judgment for defendants and dismissed plaintiffs' complaint. This memorandum sets forth the findings of fact and conclusions of law which constitute the grounds of this court's decision pursuant to Rule 52 of the Federal Rules of Civil Procedure.


On August 26, 1998, D.C. Corrections entered into a contract with Virginia Corrections to have the latter house D.C. prisoners for whom D.C. Corrections lacked bed space ("D.C.Contract").*fn3 The named class plaintiffs all received their sentences in D.C. Superior Court and are presently serving sentences in Virginia Corrections' Sussex II prison. This facility only houses D.C. prisoners and, as of February 22, 2000, held 1258 prisoners; an additional 87 were held in Virginia Corrections' Red Onion facility.*fn4

On October 1, 1999, BOP entered a similar contract with Virginia Corrections ("BOP Contract").*fn5 As of February 22, 2000, about 913 BOP prisoners were held in Virginia Corrections' Greensville facility.

On November 15, 1999, Virginia Corrections posted a notice informing inmates in its facilities of Division of Operations Procedure 864 ("grooming policy").*fn6 The notice informed inmates that they were required to comply with the grooming policy by December 15, 1999. The grooming policy requires male inmates to cut their hair so it is no longer than one inch in length or depth and prohibits beards and dreadlocks. Inmates who do not comply with the policy upon their initial arrival at a Virginia Corrections facility may be restrained and brought into compliance. Noncompliance by inmates already housed in a Virginia Corrections facility subjects them to a number of possible sanctions, including solitary confinement, reduced commissary access, and suspension of visitation privileges and attendance at work programs.

The grooming policy states it was promulgated "to promote safety, security and sanitation and to facilitate the identification of inmates."*fn7 The policy includes an exemption for prisoners with medical objections, however. Upon receipt of a medical order, the afflicted inmate may grow facial hair up to half an inch in length. These medical orders expire after 90 days without a physician's extension. The policy also contains an unwritten exemption for inmates seeking their cosmetology certification. These inmates are allowed to dye other inmates' hair within the "same color range."*fn8

Virginia Corrections has not enforced its grooming policy against inmates from the State of Michigan. Edward Morris, Virginia Correction's Deputy Director, explained that the grooming policy has not been enforced against Michigan inmates because the prisoners are in the process of returning to Michigan from Virginia Corrections facilities. No other jurisdiction that has raised the issue with Virginia Corrections has procured an exception from the grooming policy for its inmates, including the District of Columbia.


Plaintiffs' claims are easily stated and readily understood. Plaintiffs state that the tenets of their religions forbid the cutting of their beards or head hair or both. Given their beliefs, plaintiffs, on their own behalf and as representatives of similarly situated inmates, claim that Virginia Corrections' grooming policy violates their rights under the RFRA and the First Amendment. D.C. Corrections and BOP stoutly defend their conduct and interpose procedural objections and substantive defenses to this suit. Plaintiffs' claims and defendants' objections and defenses are addressed below.


D.C. Defendants argue that plaintiffs have failed to establish their standing to bring this suit. To establish constitutional standing, plaintiffs must show that (1) they suffered an injury-in-fact, (2) defendants' conduct caused the injury, and (3) the relief sought would redress the injury alleged.*fn9 D.C. Defendants assert that plaintiffs cannot show the "causation" or "redressibility" elements of constitutional standing. D.C. Defendants argue that such a showing cannot be made because a fundamental premise of this suit — that Virginia Corrections is an agent of D.C. Corrections — is untrue. D.C. Defendants press the point that Virginia Corrections, not any person or entity connected to the District of Columbia, instituted the grooming policy about which plaintiffs complain. Consequently, D.C. Defendants argue, it cannot be said that they caused plaintiffs' alleged injury or that enjoining them would redress plaintiffs' alleged injury. While these arguments have facial appeal, close scrutiny reveals their lack of merit.

Plaintiffs offer two distinct theories to support their standing to bring this case. First, they argue that Virginia Corrections, at least insofar as the obligation to protect plaintiffs' rights is concerned, is defendants' agent. Consequently, plaintiffs maintain, defendants are responsible for Virginia Corrections' actions. Second, plaintiffs claim defendants have an independent responsibility not to sit idly by as their inmates in Virginia Corrections' physical custody have their rights violated. The court terms this second theory "continuing responsibility." As appropriate in this memorandum, the court differentiates between the two theories and analyzes each separately.

Plaintiffs must prove causation by "demonstrat[ing] a causal link" between their injuries and defendants' conduct, such that "the injurious conduct is fairly traceable to [defendants'] actions, as opposed to the independent action of a third party not before the court."*fn10 Plaintiffs must demonstrate redressibility by "establish[ing] that it is likely, as opposed to merely speculative, that a favorable decision by this court will redress the injury suffered."*fn11

As explained infra, the court finds that Virginia Corrections is the agent of both D.C. Corrections and BOP, at least for certain purposes. Plaintiffs, therefore, have standing to sue. Moreover, plaintiffs have standing because defendants have a "continuing responsibility" for certain purposes for the inmates they placed in Virginia Corrections facilities.

This circuit has rejected the notion that causation only lies when an agency is "the direct actor in the injurious conduct."*fn12 Rather, causation is demonstrated on a showing of "agency action which implicitly permits a third party to behave in an injurious manner."*fn13 Defendants fall squarely within this "implicit permission" standard. Indeed, plaintiffs would not be subject to Virginia Corrections' grooming policy but for defendants' decision to send them to Virginia. As the court has recently held, defendants "cannot absolve themselves of their duties to District prisoners simply by contracting for the services of a third party."*fn14 This is particularly true where, as here, defendants have the unconditional contractual right to remove plaintiffs from Virginia Corrections' custody.*fn15

Similarly, plaintiffs have demonstrated redressibility under the "continuing responsibility" theory of their case. Virginia Corrections, as described more fully infra, has agreed to perform "extra obligations and duties" imposed by "any existing or future court orders . . . which apply specifically to District of Columbia inmates."*fn16 Though there was some testimony at trial disputing this point, it is clear that the contracts require Virginia Corrections to follow any order that changes defendants' obligations to plaintiffs. Of course, whether Virginia chooses to honor the contracts is irrelevant to this determination.


Defendants strenuously argue that it is inappropriate for this court to hear this case and moved to transfer this suit to the Eastern District of Virginia, pursuant to 28 U.S.C. § 1404(a). Defendants argue that the Eastern District of Virginia is the appropriate forum given the centrality of Virginia Corrections' grooming policy to this suit and the location of many witnesses and documentary evidence in Virginia. These arguments are without merit.

Section 1404(a) provides: "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." It is well-settled that this statute "is intended to place discretion in the district court to adjudicate a motion for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'"*fn17 However, "[i]t is almost a truism that a plaintiff's choice of a forum will rarely be disturbed . . . unless the balance of convenience is strongly in favor of the defendant."*fn18

The convenience of the parties and witnesses in this case did not favor transfer. The named plaintiffs had to travel from Sussex II prison regardless of whether their case was heard in the Eastern District of Virginia or before this court. Defendants could hardly claim the Eastern District of Virginia was more convenient for them, as they are located in the District of Columbia. With respect to the convenience of witnesses, each party's pre-trial witness list contains a number of witnesses who reside in both the District and Virginia. Additionally, any argument that Virginia Corrections officials would have been inconvenienced by travel in this case was undermined by the "happiness" of the director of Virginia Corrections "to provide any witnesses or other information that [BOP and D.C. Defendants] deem[ed] necessary to defend [their] lawsuit."*fn19

The interests of justice also did not weigh in favor of transfer. Virginia certainly has an interest in providing the forum for a case that addresses its government's policies. The District of Columbia, however, has a similar interest: the treatment of prisoners sentenced within its borders, many of whom undoubtedly are its citizens.*fn20

Finally, a significant factor in the court's decision was the strict time limit imposed on this court's consideration of this case by 18 U.S.C. § 3626. Section 3626, in relevant part, states:

In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. . . . Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required . . . for the entry of prospective relief and makes the order final before the expiration of the 90-day period.*fn21

Because of the 90-day limit imposed by 18 U.S.C. § 3626, the court would have unreasonably burdened its counterpart in the Eastern District of Virginia had it transferred this case.

In sum, the convenience of the parties and witnesses, consideration of the interests of justice, and the exceptional time constraints imposed by 18 U.S.C. § 3626 rendered transfer a thoroughly inappropriate option.


To reiterate, plaintiffs claim that Virginia Corrections is defendants' agent, at least insofar as the duty to protect their rights is concerned. Defendants argue that Virginia Corrections is not their agent because, among other reasons, the BOP Contract and D.C. Contract explicitly state otherwise and defendants lack control over Virginia Corrections' actions. Plaintiffs reply that the BOP Contract and D.C. Contract indicate by reference to the Interstate Corrections Compact ("Compact") that Virginia Corrections stands in an agency relationship with defendants.

The Compact, which the District of Columbia and Virginia have both ratified,*fn24 provides that "[t]he terms and provisions of this compact shall be part of any contract entered into by the authority of or pursuant to the compact, and nothing in the contract shall be inconsistent with the compact."*fn25 The BOP Contract and D.C. Contract both indicate that they were formed under the Compact. Specifically, the BOP Contract states "[t]his Contract is entered into pursuant to the authority of Title 18, U.S.Code, § 4002 and the Interstate Corrections Compact."*fn26 The D.C. Contract states "[t]his Contract is entered into pursuant to the authority of the Interstate Corrections Compact."*fn27 As a result, the Compact preempts any terms of the BOP Contract or D.C. Contract which contradict it.

The BOP Contract provides that "[t]his Contract shall not be construed as to make [Virginia Corrections] an agent of BOP."*fn28 The D.C. Contract similarly states that "[t]his Contract shall not be construed as to make [Virginia Corrections] an agent of [D.C. Corrections]."*fn29 In contrast, the Compact, in the primary article concerning procedures for prisoner transfer from one jurisdiction to the other, states:

Whenever the appropriate officials in a state party to this compact and which has entered into a contract pursuant to Article III shall decide that confinement in or transfer of an inmate to an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, the appropriate officials may direct that the confinement be within an institution within the territory of the other party state, the receiving state to act in that regard solely as agent for the sending state.*fn30

The Compact language dictates that Virginia acts as an agent for defendants, the language in their contracts notwithstanding.

Defendants, of course, contest the Compact's preemption here. D.C. Defendants argue that the agency language in the Compact is limited to the inmates' transfer to and reception into Virginia Corrections facilities. They claim the phrase "the receiving state to act in that regard solely as agent for the sending state"*fn31 is best construed as a discrete agency provision to preclude inmates from challenging the legality of their transfer and does not cover the entire contractual relationship between D.C. Corrections and Virginia Corrections. This argument would be persuasive if it were based on the actual text of the Compact. It is not. If such a limitation was intended, surely the Compact would read differently. As it in fact reads, the phrase "in that regard" seems to refer to "confinement." Such a reading confirms and is consistent with the proposition that Virginia Corrections acts as an agent of defendants for the purposes of plaintiffs' confinement in Virginia Corrections facilities.

BOP argues that since it is not a party to the Compact, it cannot be bound by its dictates. This argument fails to acknowledge the BOP Contract's language, which indicates formation under the Compact. BOP argues that the reference to the Compact is merely to indicate Virginia's authority to contract with the federal government and that BOP itself entered the BOP Contract per 18 U.S.C. § 4002, which is also referenced in the BOP Contract. This is certainly true, and of no moment. As described supra, the BOP Contract explicitly invokes the Compact and, therefore, is governed by the Compact's preemption provision. The agency language in the Compact applies to BOP.

Even if the Compact did not support the proposition that Virginia Corrections is an agent of defendants, plaintiffs could still proceed with their suit. As described infra, two theories underlie plaintiffs' claims: agency and "continuing responsibility." The BOP Contract and D.C. Contract both support plaintiffs' suit under their "continuing responsibility" theory. Both indicate that plaintiffs remain in the "legal custody" of defendants while in Virginia Corrections facilities.*fn32 Further, the Compact states that "confinement in [Virginia] shall not deprive any inmate so confined of any legal rights which the inmate would have had if confined in an appropriate institution [of defendants']."*fn33 Consequently, since defendants retain legal custody over plaintiffs and plaintiffs retain any rights they would have if held in defendants' facilities, plaintiffs' suit is well grounded against defendants' agency challenge.


Defendants argue that this suit must be dismissed because plaintiffs failed to exhaust their administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA").*fn34 The PLRA, passed on April 26, 1996, requires a prisoner filing a prison-conditions suit under any federal law to exhaust available administrative remedies first. In response to defendants' exhaustion argument, plaintiffs claim they did exhaust their available administrative remedies and, even if they did not, the court should except them from the PLRA's exhaustion requirement because of the irreparable injury they would suffer if forced to ...

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