Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

MEMORANDUM^* 

Michael Ray Onstott appeals the district court's dismissal of his pro se 42 U.S.C. § 1983 complaint. In his complaint, Onstott alleged that the Arizona Department of Corrections' ("ADOC") Internal Management Policy No. 304-7 ("IMP 304-7") which requires that all prisoners shave off all facial hair violated his right to exercise his religion freely. We remand.

DISCUSSION

In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court decided that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89.

The Turner court has suggested a four factor test to determine whether a regulation reasonably relates to legitimate penological interests. See Id. at 89-91; see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 350-52 (1987). We have summarized these factors as follows:

(1) whether the regulation has a logical connection to the legitimate government interest invoked to justify it;

(2) whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates;

(3) the impact that accommodation of the asserted right will have on guards, other inmates, and prison resources; and

(4) the absence of ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.

Harper v. Wallingford, 877 F.2d 728, 732 (9th Cir. 1989)

In Friedman v. Arizona, slip op. at ---- (Aug. --, 1990), we recently decided that under Turner IMP 304-7 is a valid regulation at least as applied to two Orthodox Jews. In reaching this decision, we rendered our opinion on three of the four factors for any claim that asserts that IMP 304.7 violates a prisoner's religious rights:

(1) IMP 304.7 has a logical connection to a legitimate government interest;

(2) accommodation (granting an exemption) would strain prison resources;

(3) no ready alternatives to IMP 304.7 exist.

Id. at -.

However, our decision in Friedman did not foreclose the possibility that a particular prisoner may not have an alternative means to practice to his religion. Therefore, in determining the validity of IMP 304.7 as applied to Onstott, the district court should have considered what alternative means to practice his religion Onstott had. We remand for such a consideration.

REVERSED and REMANDED.