Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Eldon Escalanti ("Escalanti") challenges the district court's dismissal of his action against Samuel Lewis, Director of Arizona Department of Corrections ("ADOC"). Escalanti contends that the prison grooming policy, set forth in Internal Management Policy 304.7 ("IMP 304.7"), violates the American Indian Religious Freedom Act, 42 U.S.C. § 1996, is not reasonably related to legitimate penological interests, interferes with his right to privacy and discriminates against males.

Escalanti's claim is based on the American Indian Religious Freedom Act ("AIRFA"). On its face, AIRFA appears to apply only to federal government agencies. See Wilson v. Block, 708 F.2d 735, 746-47 (D.C. Cir.), cert. denied, 464 U.S. 1056 (1983). The Block court did not address this issue directly. However, in discussing how AIRFA was meant to function, the court looked to legislative history:

Thus, the House Report stated that the purpose of AIRFA is "to insure that the policies and procedures of various Federal agencies, as they may impact upon the exercise of traditional Indian religious practices, are brought into compliance with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion."

Id. at 746 (emphasis added). Throughout the opinion, the Block court discussed AIRFA as if it applied solely to federal agencies.

In addition, even if AIRFA applied to the ADOC, Escalanti would not have a cause of action. The Supreme Court discussed AIRFA as applied to government land use in Lyng v. Northwest Indian Cemetery Protection Assoc., 485 U.S. 439 (1988). In rejecting the Native Americans' request to enjoin the Forest Service from completing construction of a road that detrimentally impacted sacred religious sites, the Court stated, " [N]owhere in [AIRFA] is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights." Id. at 455 (emphasis added). The Court also stated that the congressional record noted, "Representative Udall emphasized that the bill would not 'confer special religious rights on Indians'...." Id. Therefore, under Lyng, Escalanti has no right to sue the ADOC under AIRFA.

Assuming Escalanti has standing to challenge the ADOC, he has not shown that the regulation has no valid penological interests. " [W]hen a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). The Ninth Circuit has addressed a case similar to Escalanti's in Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir. 1987). In Standing Deer, the challenged regulation dealt with a ban on inmates wearing headgear in the dining hall. We cited to O'Lone, in which the U.S. Supreme Court considered a number of factors in determining the validity of a regulation. In Standing Deer, we stated four factors we found relevant:

1. Whether the regulation has a logical connection to the penological interests invoked to justify it;

2. Whether the prisoners remain free to participate in other religious activities;

3. Whether accommodating the prisoners' asserted rights would have adverse effects on the institution;

4. Whether ready alternatives that fully accommodate the prisoners' rights could be implemented at de minimus cost to valid penological interests.

Standing Deer, 831 F.2d at 1528 (citing O'Lone, 482 U.S. 349-353).

The penological interest justifying IMP 304.7 is for easy identification of the inmates. It is difficult for prison employees to identify an inmate when the inmate's hair obscures the view of his profile. The Ninth Circuit has ruled on policy 304.7 before. See Friedman v. State of Arizona, 912 F.2d 328 (9th Cir. 1990), cert. denied, 111 S. Ct. 996 (1991). In Friedman, this court found that IMP 304.7's requirement that beards be kept short was reasonably related to a legitimate penological interest. In addition, other courts have found legitimate penological interests in regulations more restrictive than IMP 304.7. See, e.g., Pollock v. Marshall, 845 F.2d 656 (6th Cir.) (prison regulation requiring inmates to wear their hair short was constitutional for numerous health, safety and security concerns), cert. denied, 488 U.S. 987 (1988). Thus, ADOC's interest in identification is reasonably related to IMP 304.7.

There is no indication that Escalanti is prohibited from engaging in other activities he practices as a Native American. In addition, accommodating Escalanti's wish may have adverse effects on the prison. Other prisoners may find reasons why they should not have to tie their hair back, making it harder for prisoners to be identified.

Escalanti suggests no alternatives the prison could implement in place of IMP 304.7. Prison officials are not required to show that no reasonable alternative exists. They must only disprove alternatives suggested by the inmates. O'Lone, 482 U.S. at 350. Since Escalanti suggests no alternatives, he has not met his burden of proof.

While prisoners enjoy many protections of the Constitution, imprisonment carries with it the circumscription or loss of many significant rights. Hudson v. Palmer, 468 U.S. 517, 524 (1983). The Government misstates the law in asserting that Hudson holds that a prisoner has no expectation of privacy whatsoever. Hudson only addresses a prisoner's right to pricacy in his cell. Nevertheless, Escalanti fails to explain how he has a right to privacy in his hair style. Nor does he cite to any case law to support his assertion. Many cases have held that maintaining institutional security and preserving internal order and discipline may require prison officials to curtail certain constitutional rights. See, e.g., Bell v. Wolfish, 441 U.S. 520, 545 (1979). Even though it may infringe upon Escalanti's desire to wear his hair loose, the infringement is minimal and prison officials are warranted in using IMP 304.7 for purposes of security and order.

On its face, IMP 304.7 is gender-neutral, using the term "inmates" without referring to whether they are male or female. In fact, when IMP 304.7 discusses grooming regulations which apply only to one gender, e.g., mustaches, it uses the terms "male" and "female." Therefore, if the prison officials meant the hair restrictions to apply only to males, they presumably would have specified this. In addition, Escalanti provides no evidence that IMP 304.7 is being applied soley to males. Therefore, we find that IMP 304.7 is gender-neutral.

AFFIRMED.