The opinion of the court was delivered by: Henry H. Kennedy, Jr., United States District Judge.
Plaintiffs represent a class of prisoners from the District of Columbia
whose avowed religious beliefs forbid them from cutting their hair or
shaving their beards. They are in the custody of the Federal Bureau of
Prisons ("BOP") and are housed in prison facilities run by the Virginia
Department of Corrections ("VDOC"). Plaintiffs allege that BOP's decision
to house them in VDOC prisons rather than in BOP prisons violates the
Religious Freedom Restoration Act ("RFRA")*fn1 and the Free Exercise
Clause of the First Amendment*fn2 because VDOC imposes a grooming policy
that requires prisoners to shave their beards and keep their hair short.
Plaintiffs seek declaratory and injunctive relief to prevent BOP from
subjecting them to the grooming policy.
This case is a continuation of litigation brought against the District
of Columbia in December, 1999, during which BOP intervened as a party
defendant. At that time, plaintiffs made two basic claims. "First, they
contended that VDOC lacked a compelling interest in the grooming policy
and that the policy was not the least restrictive means of achieving
whatever interests VDOC had. Alternatively, they argued that BOP and the
District had a less restrictive means of housing prisoners who believed
that the grooming policy required them to violate fundamental religious
tenets: transferring them to non-Virginia prison facilities without such
grooming policies."*fn3 This court resolved the case by entering a
judgment in favor of the defendants, holding that plaintiffs had failed
to exhaust their administrative remedies as required by the Prison
Litigation Reform Act. (PLRA).*fn4 This court also addressed and
rejected plaintiffs' claim that VDOC's grooming policy violated RFRA and
the First Amendment's Free Exercise clause.*fn5 On appeal, the D.C.
Circuit affirmed this
court's judgment, agreeing that plaintiffs had
failed to exhaust their administrative remedies, but vacated the portion
of this court's decision regarding the merits of plaintiffs' claims. The
D.C. Circuit observed, however, that this court had expressly
"`decline[d] to evaluate' the issue raised by the prisoners' alternative
claim: `whether defendants have compelling interests in keeping
plaintiffs incarcerated in Virginia Corrections facilities.'"*fn6 With
respect to this claim, the court said, "should the prisoners refile
after exhausting their administrative remedies, the district court will
need to consider whether BOP and the District can demonstrate that
alternative placement in non-Virginia prisons without grooming policies
After exhausting their administrative remedies, plaintiffs refiled the
instant action. Based on the evidence presented at the three-day trial of
this case, the court makes the following:
I. BOP'S DECISION TO HOUSE CLASS MEMBERS IN VDOC FACILITIES SUBSTANTIALLY
BURDENS THEIR RELIGIOUS BELIEFS AND PRACTICES
A. Plaintiffs Have Sincere Religious Beliefs That Conflict With the VDOC
1. The parties have stipulated that "each of the named plaintiffs has
sincerely held religious beliefs that prohibit them from shaving or
cutting their hair, and that conflict with VDOC's grooming policy."
Stipulations of Fact ¶ 3 (filed Oct. 27, 2001). See also Jackson,
89 F. Supp.2d at 65 (finding that "plainitffs have met their burden of
showing that [VDOC's] grooming policy substantially burdens their
exercise of religion.").
2. Carl Wolfe, one of the named plaintiffs in this action, is an
adherent of the Rastafarian faith. As a part of the practice of his
faith, Wolfe has taken the Vow of the Nazarite, based on Numbers 6 of the
Bible, that prohibits him from shaving his beard or cutting his hair. It
would be a violation of a fundamental tenet of the Rastafarian faith for
Wolfe to have his hair cut or his face shaved after he has taken this
vow. See Jackson, 89 F. Supp.2d at 65 (finding Wolfe's testimony
regarding his faith to be "heartfelt and sincere," and finding that he
grows his beard and dreadlocks "because of [his] religious beliefs").
3. Isadore Gartrell and Darnell Stanley, both named plaintiffs in this
action, are adherents of the Sunni Muslim sect of the Islamic religion.
Gartrell and Stanley hold sincere beliefs that shaving off their beards
violates a fundamental tenet of Islam. See id. (finding that previous
named plaintiff who was Sunni Muslim grew his beard "because of [his]
B. VDOC's Grooming Policy Imposes a Substantial Burden Upon Plaintiffs'
4. A fundamental tenet of the Sunni and other Muslim sects prohibits
male followers from shaving their faces. See Jackson, 48 F. Supp.2d at
65. Likewise, a fundamental tenet of Rastafarianism prohibits a person
from shaving his beard or cutting his hair after he has taken the Vow of
the Nazarite. See Jackson, 89 F. Supp.2d at 65.
6. The grooming policy requires all BOP inmates housed in VDOC to
submit to grooming at regular intervals. The grooming policy also
requires all newly admitted BOP inmates from the District to submit to
grooming during the VDOC intake process.
7. An inmate who refuses to comply with the grooming policy is subject
to disciplinary reports, administrative segregation (confinement in a
cell for 23 hours a day), increases in security and custody level, loss
of prison employment, exclusion from programming, and loss of privileges
such as visitation, commissary, and telephone. Named plaintiff Wolfe, for
example, was held in administrative segregation at Sussex II because he
refused to comply with the grooming policy.
8. VDOC officials do not consider religious objections to be a valid
basis for noncompliance with the grooming policy. The VDOC lieutenant
overseeing Wolfe's intake at Sussex II told Wolfe that his Rastafarian
beliefs regarding shaving his beard and cutting his hair did not matter,
and that if he had an objection to the grooming policy, he would have to
"take that up in court."
9. The grooming policy allows VDOC correctional officers to use force
and restraints to shave newly admitted inmates during the intake process
if the inmates refuse to comply with the grooming policy. VDOC recently
began forcibly shaving inmates who do not voluntarily comply. Inmates who
refuse to comply on religious grounds are restrained, with one guard on
each side and three guards positioned near their legs, and shaved by a
VDOC official. After the VDOC officials complete the forced shaving, they
issue a disciplinary report against the objecting inmate and send him to
10. VDOC has repeatedly told Wolfe that if he returns to Sussex II, he
will be shaved by force. On one occasion, as he was being transported
from administrative segregation to meet with his counsel, a VDOC official
told Wolfe, "`Rasta boy I'm really going to cut that shit off your
hair." Wolfe testified as follows how such a forced shaving would affect
him: "If somebody should hold me down and cut my dre[a]ds and shave my
face, that's going to hurt me. That's like taking a part of my soul. This
is my faith. This is my . . . whole life . . . this is my religion. This
is something where I live by . . . And it will just kill me."
11. The court finds that subjecting class members to the VDOC grooming
policy imposes a substantial burden on the exercise of their religion. See
Jackson, 89 F. Supp.2d at 65.
C. BOP Houses its District of Columbia Inmates in Both VDOC and BOP
12. In 1997, Congress passed the Revitalization Act, which required the
District of Columbia Department of Corrections ("D.C. Corrections") to
close its Lorton facility by December 31, 2001. The Revitalization Act
also required that BOP assume custody of all sentenced felons coming out
of District of Columbia courts no later than December 31, 2001.
13. Pursuant to the Revitalization Act, in October 1999 BOP began to
take custody of some District inmates and began transferring them out of
D.C. Corrections facilities and into BOP facilities, VDOC facilities, and
other contract facilities around the country.
15. BOP has intergovernmental agreements with the Commonwealth of
Virginia to house District inmates at two facilities in Virginia:
Greensville, located in Greensville, Virginia; and Sussex II, located in
Waverly, Virginia. Greensville houses medium security District inmates
and Sussex II houses high security District inmates.
16. BOP executed the agreement with VDOC to house inmates at
Greensville on October 1, 1999, and renewed that agreement effective
September 6, 2001.
17. BOP executed the agreement with VDOC to house inmates at Sussex II
on July 13, 2001. BOP's Sussex II contract replaced a similar contract
between the District of Columbia and VDOC that expired on that day.
D. BOP Does Not Consider Alternatives to Housing Plaintiffs in VDOC
18. Since the filing of the Jackson lawsuit in December 1999, BOP has
been aware that a number of District inmates at Greensville and Sussex II
have religious objections to the VDOC grooming policy.
19. BOP is also aware of the substantial burdens imposed on its inmates
who have religious objections to the grooming policy. For example, BOP is
aware that a number of District inmates at Sussex II are in
administrative segregation because they failed to comply with the
grooming policy due to religious objections.
20. BOP admits that denying an inmate access to religious practices
because he is in administrative segregation may undermine the inmate's
prospects of reintegration and rehabilitation. Nonetheless, BOP places
inmates with religious objections to the grooming policy in
administrative segregation in VDOC rather than transferring them to other
facilities where they would be able to fully practice their religion.
21. Sound correctional practice recognizes that inmates who are allowed
to practice the fundamental tenets of their religion present less of a
management problem than inmates who do not participate in religious
activities. Penological research also indicates that inmates who practice
the fundamental tenets of their religion have lower recidivism rates than
inmates who do not participate in religious activities.
22. Despite its knowledge that the VDOC grooming policy imposes a
substantial burden upon Muslim and Rastafarian inmates, BOP has refused
to consider any alternative to housing the class members in VDOC
II. BOP HAS LESS RESTRICTIVE ALTERNATIVES AVAILABLE FOR HOUSING CLASS
A. BOP's Non-VDOC Facilities Provide a Less Restrictive Alternative
23. BOP has approximately 100 institutions of its own in which it
houses inmates. BOP's District prisoners are already housed in almost all
of these facilities. In addition, BOP contracts with a number of private
facilities to house inmates.
24. BOP does not impose a grooming policy restricting hair or beard
length in its own institutions. See 28 C.F.R. § 551.2, 551.4.
Rather, an inmate may select "the hair style of personal choice, and
[BOP] expects personal cleanliness and dress in keeping with standards of
good grooming and the security, good order, and discipline of the
In addition, "an inmate may wear a mustache or beard or both." Id.
25. Across the BOP system, inmate population is in constant flux. Bed
space opens every day as thousands of inmates per week are released from
custody, or transferred from one institution to another within the same
security level or between security levels. In fact, there are more than
50,000 inmate movements in the BOP system each year.
26. BOP's own institutions, and those of its contractors that do not
impose a grooming policy that would burden plaintiffs' religious
practices, provide less restrictive alternative placements in which class
members could be housed.
B. BOP'S Contention That Its Non-VDOC Facilities Are Not Available to
House Class Members Is Contrary to the Evidence
At trial, BOP admitted that it has not considered whether there is a
less restrictive alternative to housing class members in VDOC
institutions. Nonetheless, BOP argued at trial that no less restrictive
alternative is available for two reasons: 1) because BOP's non-VDOC
facilities are overcrowded; and 2) because it would either be unlawful or
impracticable for BOP to determine whether an inmate has a bona fide
religious objection to the VDOC grooming policy. Each of these purported
justifications fails to establish that BOP has no less restrictive
alternative available to subjecting class members to a grooming policy
that substantially burdens their religion.
1. BOP'S contention that its non-VDOC facilities are unavailable
because they are overcrowded is unfounded
27. BOP currently has custody of approximately 156,000 prisoners.
Approximately 50,000 of these inmates are medium or high security. There
is a constant flow of prisoners into, out of, and within the system,
amounting to more than 50,000 inmate movements in the BOP system each
28. Every BOP-owned facility tracks its "pipeline in" and "pipeline
out," showing numbers of inmates scheduled to go to and leave from a
particular institution over a 30- or 45-day period. The number of inmates
at any given institution is changing constantly because some inmates are
departing while others are arriving. For ...