Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

MEMORANDUM^** 

Joseph Lowell McElyea, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. McElyea contends that prison officials violated his constitutional right to the free exercise of religion by implementing a new prison grooming policy. We review de novo, Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

In Friedman v. Arizona, 912 F.2d 328 (9th Cir. 1990), the court held that the Arizona Department of Corrections' (ADOC) regulation prohibiting facial hair does not violate orthodox Jewish prisoners' first amendment right to free exercise of religion because it is reasonably related to a valid penological interest. McElyea challenges the same regulation on the same ground. Accordingly, the district court properly dismissed this action.

McElyea also contends that the district court erred in denying his Rule 59(e) motion for reconsideration. We review for an abuse of discretion, Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir. 1986), and affirm. The ADOC regulation requires all inmates to be clean shaven, with an exemption for medical purposes. McElyea contends that the ADOC regulation denies him equal protection because the majority of inmates that would be granted medical exemptions would be black and of Islamic faith. Nevertheless, the exemption exists for medical reasons, not religious ones. The district court properly denied McElyea's Rule 59(e) motion.

McElyea also contends that he was denied equal protection because members of other religions are able to practice their religion without interference from the ADOC. More specifically, McElyea states that members of the Native American and Sikh religions believe that the hair should be allowed to grow naturally without being cut and that there is no prison regulation restricting an inmate's length of hair. This contention lacks merit. Because the ADOC's regulation of facial hair was based on a valid penological interest, the fact that ADOC presently allows inmates to grow long hair has no impact on the propriety of ADOC's facial hair regulations and does not amount to a violation of McElyea's constitutional rights. See Friedman v. Arizona, 912 F.2d 328 (9th Cir. 1990).

Finally, McElyea contends that the district court erred by failing to grant his request for additional time and for the production of either a copy of the pretrial conference tape or a transcript of the pretrial conference. These contentions lacks merit. First, at the time McElyea filed his motion for extension of time, there were no deadlines or outstanding pleadings requiring response by McElyea. Second, there is nothing in the transcript of the pretrial hearing that is necessary for the determination of this action. The court issued a memorandum and order pertaining to the telephonic pretrial conference. Any necessary information from the pretrial conference may be obtained from that memorandum and order.

AFFIRMED.