Unpublished Disposition, 927 F.2d 612 (9th Cir. 1988)

MEMORANDUM^** 

A state prisoner appeals a partial denial of relief in a civil rights action brought pursuant to 42 U.S.C. § 1983 (1988).

Wright filed a complaint alleging that he is a Rastafarian and has adopted the Vow of the Nazarite. Wright stated that his beliefs require him to wear long hair and a beard and to maintain a vegetarian diet. At the time the complaint was filed, prison regulations provided that inmates could have long hair as an exception to the inmate grooming policy if they could demonstrate that the tenets of their religion required them to wear their hair long; prisoners could also have special diets if required by their religion.

The Arizona Department of Corrections (ADOC) initially granted Wright his request for a vegetarian diet, as well as an exemption from the grooming policy. In May 1988, one of the prison chaplains found that according to the Army Chaplain's Manual, a vegetarian diet and abstention from cutting hair were merely optional practices, and were not required tenets of Rastafarianism. After this determination, prison officials denied Wright a vegetarian diet. Wright filed a complaint on September 9, 1988. On October 6, 1988, the Department of Corrections instituted a new grooming policy, 304.7, which allowed inmates to have long hair regardless of their religious beliefs, but forbade beards unless the prisoner could not shave for medical reasons. On December 5, 1988, prison officials shaved Wright's beard.

The district court found that Wright was entitled to a vegetarian diet and that the October 6 grooming regulation made the hair length issue moot. The district court denied Wright's claim regarding the beard. The state has not appealed the ruling requiring a vegetarian diet for Wright. Wright appeals the rulings on both the beard and hair issues, arguing that the hair issue is not moot.

In this circuit, a prisoner's first amendment right to wear a beard is controlled by Friedman v. Arizona, 912 F.2d 328 (9th Cir. 1990). In Friedman, two orthodox Jews challenged the identical grooming policy at issue here--ADOC Policy 304.7--on the ground that shaving their beards would violate their religious beliefs. Id. at 329. In Friedman, we applied the four-factor test articulated in Turner v. Safley, 482 U.S. 78 (1987). First, the court held that the regulation assisted in rapid and accurate identification of prisoners and was therefore logically connected to three legitimate penological interests: (1) orderly conduct of day-to-day activities, (2) identification of prisoners responsible for disturbances, and (3) apprehension of escapees. Second, the court held that the prisoners were not denied all means of expressing their religion, and thus that alternative means of exercising the right on which the regulation impinged remained open to the prisoners. Third, the court noted that accommodating the prisoners would have a negative effect on prison resources. Finally, the court stated that ready alternatives, which would accommodate the prisoners' rights at de minimis cost to valid penological interests, did not exist. Friedman, 912 F.2d at 331-32. Based on these conclusions, the court upheld the identical regulation at issue here. Thus, under Friedman, we must affirm the district court's holding that the ADOC could permissibly shave Wright's beard.

Wright argues that the hair length issue should not be considered moot. The " 'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.' " DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). In DeFunis, the Court pointed out that if the voluntary cessation of an illegal practice made a case moot, the defendant would be free to return to his old ways; a mootness finding in such a case would violate the " 'public interest in having the legality of the practices settled.' " Id. The DeFunis Court explained that if the defendant law school had made a unilateral change in the admissions policies at issue, such a voluntary cessation could make the case moot "only if it could be said with assurance 'that "there is no reasonable expectation that the wrong will be repeated." ' " Id. (quoting W.T. Grant Co., 345 U.S. at 633).

Since DeFunis, the Supreme Court has reformulated a test for deciding when, voluntary cessation notwithstanding, a case is still to be considered moot. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). The Court recognized that "as a general rule, 'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case....' " Id. at 631 (quoting W.T. Grant Co., 345 U.S. at 632). Nonetheless, the Court was willing to find an action moot where "(1) it can be said with assurance that 'there is no reasonable expectation ...' that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Id. (quoting W.T. Grant Co., 345 U.S. at 633) (additional citations omitted).

The latter requirement is fulfilled--Wright can now wear his hair as he pleases. Whether the first requirement is met is less clear. On balance, we think it is. While nothing in the record demonstrates that the state prison system could not unilaterally revoke the current regulation and restore the prior regulation, under which the prison had sought to bar Wright from growing long hair, it is unreasonable to expect the alleged violation to recur. See Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 72 (1983) (per curiam) (where university had publicly announced a policy change, Court found no reasonable likelihood that the university would return to its original policy).

To be sure, prison officials changed the regulation to permit long hair shortly after Wright brought his suit. But from this we are unwilling to infer a bad faith manipulation of the court's jurisdiction. First, the new regulation was not limited to those claiming religious requirements. Moreover, the circumstances of this case strongly suggest that repeal of the hair policy represented a sincere reconsideration of this issue rather than a means of avoiding suit. The prison's refusal to repeal its beard policy when it repealed the hair policy corroborates this conclusion. For if the prison's motive was merely to avoid suit, it could have repealed its beard policy as well. In the absence of further showing of such a purpose, such as reinstatement of a similar restrictive hair policy, we hold that the portion of Wright's action challenging the prison's restriction on hair length is moot. See Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 853-54 (9th Cir. 1985) ("good faith" efforts to improve prison law library both mooted several inmate complaints and served as an indication that prison would not likely abandon its efforts to maintain an adequate library); Tedder v. Board of Parole, 527 F.2d 593, 593-95 (9th Cir. 1975) (amendment of regulation governing parole procedures rendered moot prisoner's challenge to the original regulation); see also Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988) ("self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine"); Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 777 F.2d 598, 605 & n. 21 (11th Cir. 1985) ("no indication that the City was acting in a manipulative fashion in order to prevent an adjudication or that any reasonable likelihood existed that [challenged ordinance] would regain vitality" where ordinance was repealed and replaced; instead, implication was that City acknowledged problems with original ordinance, continued to intend to regulate the subject matter, and made good faith attempt to address the problems with the original ordinance), cert. denied, 476 U.S. 1116 (1986).

Wright may also be challenging the authority of the prison to regulate in the future the length of prisoners' hair. That issue is not ripe for adjudication. Federal courts should not exercise jurisdiction where an issue is presented in abstract form, without a concrete factual setting. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the Court held that it could not review the constitutionality of regulations that had been proposed but had not yet become final. Id. at 438; see also EPA v. Brown, 431 U.S. 99, 104 (1977) ("For this Court to review regulations ... not yet promulgated, the final form of which has only been hinted at, would be wholly novel."). Here, Wright seeks a review of a regulation that is not currently on the books. If the ADOC were to rewrite its grooming regulations at some point in the future, this court has no knowledge of the form those regulations might take. Determining the constitutionality of prison regulations requires an analysis of the specific regulation and the penological justification asserted for the regulation. We cannot rule on the validity of a hypothetical regulation, without knowing either its content or how it might be applied to Wright. Therefore, Wright's complaint regarding ADOC hair length policies is unripe for adjudication.

The judgment is affirmed.