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h\\0\+ \.\B" Case 5:11-cv-00164-BSM Document 2 Filed 06/28/11 Page 10 of 1E0 ~ Attachment V

ACKNOWLEDGEMENT OF GRIEVANCE APPEAL or REJECTION OF APPEAL

TO: Inmate Holt, Gregory H.
FROM: May, Larry D
RE: Receipt of Grievance CU-ll00966

ADC #: 129616C TITLE: Chief Deputy Director
DATE: 06/0112011

Please be advised, the appeal of your grievance dated 05/10/2011
was received in my office on this date 05/25/2011

You will receive communication from this office regarding this Grievance by 07/08/2011

The time allowed for appeal has expired IE The matter is non-grievable and does not involve retaliation:
IE (a) Parole and/or Release matter ~ (b) Transfer 1m (c) Job Assignment unrelated to medical restriction
(d) Disciplinary matter mi (e) Matter beyond the Department's control and/or matter of StatelFederallaw IE (t) Involves an anticipated event J1JI You did not send all the proper Attachments: IE (a) Unit Level Grievance Form (Attachment 1) IE (b) Warden's/Center Supervisor's Decision (Attachment III); or Health Services
Response Attached (Attachment IV for Health Issues Only) r; (c) Did not give reason for disagreement with Response on Attachment III or IV 1m (d) Did not complete Attachment III or IV with your name, ADC#, and/or date 1m (e) Unsanitary form(s) or documents received IE (t) Other

IGTT405

Page 1 of 1

 
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 Case 5:11-cv-00164-BSM Document 28 Filed 10/18/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

GREGORY HOLT, ADC #129616

PLAINTIFF

v.

CASE NO. 5:11CV00164 BSM/JJV

RAY HOBBS, Director, Arkansas Department of Correction, et al.

DEFENDANTS

ORDER

The proposed findings and recommended partial disposition [Doc. No. 7] submitted

by United States Magistrate Judge Joe J. Volpeand the filed objections [Doc. No. 10] have

been reviewed. After carefully considering these documents and making a de novo review

of the record, it is concluded that the proposedinf dings and recommended partial disposition

should be, and hereby are, rejected in their entirety in all respects. Defendants have not met

their “burden of demonstrating that the groom ing policy is the least restrictive m eans to

achieve security as applied to” plaintiff Gregory Holt. Fegans v. Norris, 537 F.3d 897, 908-

09 (8th Cir. 2008) (Melloy, J., dissenting).

IT IS THEREFORE ORDERED that:

1. Plaintiff’s motion for preliminary injunction and temporary restraining order

[Doc. No. 3] is GRANTED.

2. The case is remanded to Judge Volpe to hold a temporary injunction hearing

and perm it def endants to present evidence showing that the Arkansas Departm ent of

Correction’s beard grooming policy, which restricts Holt’sFirst Amendment right to observe

Case 5:11-cv-00164-BSM Document 28 Filed 10/18/11 Page 2 of 2 his religion, is the least restrictive means of achieving thesecurity goals sought by the policy.
Dated this 18th day of October 2011.
UNITED STATES DISTRICT JUDGE

 
 Case 5:11-cv-00164-BSM Document 32 Filed 10/19/11 Page 1 of 2

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 FILED Case 5:11-cv-00164-BSM Document 68 Filed 12/19/11 Page 1 of 2

US. EASTERU

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DEC 19 2011
JAMES W. McCORM~, CLERK
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 Case 5:11-cv-00164-BSM Document 88 Filed 02/22/12 Page 1 of 2
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Case 5:11-cv-00164-BSM Document 88 Filed 02/22/12 Page 2 of 2

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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

GREGORY HOLT (Abdul Maalik Muhammad) ADC #129616

PLAINTIFF

v.

CASE NO. 5:11CV00164 BSM

RAY HOBBS, Director, Arkansas Department of Correction, et al.

DEFENDANTS

ORDER

The proposed findings and recom mended disposition subm itted by United States

Magistrate Judge Joe J. Volpe [Doc. No. 82a]nd the filed objections [Doc. No. 86]have been

reviewed. After carefully considering this docum ent and making a de novo review of the

record, it is concluded that the proposed findings and recommended disposition should be,

and hereby are, approved and adopted in their entirety in all respects.

Holt’s motion for an emergency hearing [Doc. No. 89] is denied. In his motion, Holt

states that he has been placed in administrative segregation in retaliation for filing the present

suit challenging the Arkansas Department of Correction’s (ADC) grooming policy. Doc. No.

89 at ¶ 1. Holt admits that he was initially placed in administrative segregation upon his own

request. [Doc. No. 87] at ¶ 2. Holt a lso admits that upon his request to be released from

administrative segregation, his request was deniedbased on actions he had taken in violation

of ADC policy, including sending a threatening letter to a local polic e department. Id. at ¶

3. See Doc. 84-1. “It is well established that prisoners have narrowly defined liberty interests,

for imprisonment necessarily retracts many of the liberties of the free. Among the liberties

which prisoners do not enjoy is choice of ce lls. Transfer within the prison, or to another prison, is within the discretion of prison officials.” Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir. 1984). Therefore, Holt’s motion for an emergency hearing [Doc. No. 89] is denied.
IT IS THEREFORE ORDERED that: 1. Holt’s complaint [Doc. No. 2] be dismissed with prejudice for failure to state a claim on which relief can be granted. 2. Dismissal of this action constitutes a “strike” for purposes of 28 U.S.C. §
1915(g). 3. Holt’s motion for an emergency hearing [Doc. No. 89] is denied. 4. All remaining pending motions are denied as moot. An appropriate judgment shall accompany this order. IT IS SO ORDERED this 23rd day of March 2012.
________________________________ UNITED STATES DISTRICT JUDGE
2

 
 \) r Case 5:11-cv-00164-BSM Document 113 \F\.il.eed"0'8\-/3"1/L12-DP-aSgee .1 .of~4OlC;\,l\CtVOsO~l~ML('

FILED u,s, DISTRICT COURT
EASTERN DISTRICT ARKANSAS

800-4

STATE OF ARKANSAS
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I DATE

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nature). If you marked yes, give this completed form to the designated problem-solving staff, who will sign the

attached emergency receipt. If an Emergency, state why: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

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Inmate Signature

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.

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.

THIS SECTION TO BE FILLED OUT BY STAFF ONLY

1

Staff i nature & Date Returned

Inmate Si nature & Date Receivea

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(Yes or No).

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---------------------------------------------------------------~------------------J~T~~~V~~~~FMf~-------------- _____

DISTRIBUTION: YELLOW & PINK - Inmate Receipts; BLUE-Gti~~~ff<OOelluWM&INAL-Given back

Case 5:11-cv-00164-BSM Document 113 Filed 08/31/12 Page 3 of 4

IGTT410 3GS

Attachment III

INMATE NAME: Holt, Gregory H. ADC #: 129616C GRIEVANCE #: VSM12-Q2052

WARDEN/CENTER SUPERVISOR'S DECISION

In response to your grievance, per AD 12-16 transfers are not a grievable matter and will not be addressed.

RECEIVED

2012

INMATE'S APPEAL

INMATe GRIEVANCE SUPERVISOR

ADMINISTRATION BUILDING
If you are not satisfied with this response, you may appeal this decision within five working days by filling in the information requested below and mailing it to the appropriate Chief Deputy/Deputy/Assistant Director along with the Unit Level Grievance Form. Keep in mind that you are appealing the decision to the original grievance. Do not list additional issues, which are not part of your original grievance as they will not be addressed. Your appeal statement is limited to what you write in the space provided below.

IGTT410

Page 1 of 1

I

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Case 5:11-cv-00164-BSM Document 113 Filed 08/31/12 Page 4 of 4

IGTT430 3GD

Attachment VI

INMATE NAME: Holt, Gregory H.

ADC #: 129616

GRIEVANCE# :VSM 12-02052

CHIEF DEPUTY/DEPUTY/ASSISTANT DIRECTOR'S DECISION Inmate Holt per policy AD 12-16 the matter and/or issue you've raised in this current grievance is non-grievable through the Inmate Grievance Procedure. As such I suggest you contact your Unit Classification officer or Classification Administrator.
Appeal denied

Director

Date

 
 Case 5:11-cv-00164-BSM Document 114 Filed 09/05/12 Page 1 of 1

STATE OF ARKANSAS
COUNTY OF L\nc...o\n

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AFFIDAVIT

JAMES W. MCCORMACKI~

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I further swear that the statements, matters and things contained herein are true and accurate to

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DATE

AFFIANT

SOCIAL SECURITY #

.

SU~CRIB~~ AND

SWORN

T~BEFORE ME, a Nqtary Public,

~ on this

day

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FELICIA PIGGEE NOTARY PUBLIC-STATE OF ARl<ANSAS
My CommDiEssSioHnAECxpOiUreNsT0Y1~31-2.021
'------- Commission # 12382202

 
 Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 1 of 111

1

1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

2

PINE BLUFF DIVISION

3

4 GREGORY HOLT,

.

. Docket No. 5:11-CV-00164-BSM

5 A.K.A. ABDUL MAALIK MUHAMMAD,.

.

6 PLAINTIFF,

.

. Little Rock, Arkansas

7 VS.

. January 4, 2012

. 9:57 A.M.

8 RAY HOBBS, ET AL,

.

.

9 DEFENDANTS.

.

. . . . . . . . . . . . . . .

10

11

12

TRANSCRIPT OF

13

HEARING ON MOTION FOR TEMPORARY INJUNCTION

14

BEFORE THE HONORABLE JOE J. VOLPE

15

UNITED STATES MAGISTRATE JUDGE

16

17

18 ELECTRONIC COURT RECORDER-OPERATOR: Ms. Stacy Williams

19

20 Transcription Service:
21 22

Robin Warbritton Post Office Box 262 Vilonia, AR 72173 (501) 796-6560

23

24 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING.

25 TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 2 of 111

1 APPEARANCES: 2 For the Plaintiff:
3 4 5
For the Defendants:
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2
Mr. Gregory Holt, Pro Se A.K.A. Abdul Maalik Muhammad ADC # 129616 Cummins Unit Post Office Box 500 Grady, AR 71644-0500
Ms. Christine A. Cryer Arkansas Attorney General’s Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 3 of 111

3

1

I N D E X

2

PRESIDING

DIRECT CROSS REDIRECT RECROSS OFFICIAL

3

4 WITNESS FOR PLAINTIFF:

5 Gregory Holt, a.k.a.

7

14

Abdul Maalik Muhammad

6

7 WITNESSES FOR DEFENSE:

8 Gaylon Lay Grant Harris
9

32

45

63

63

61

64

72

76,80

80

77

10 EXHIBITS:

IDENTIFIED

RECEIVED

11 Defense Exhibit No. 1

71

71

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 4 of 111

4

1

P R O C E E D I N G S

2

(Call to order of the Court.)

3

THE COURT: Good morning. We are here in the matter

4 of Gregory Holt also known as Abdul Malik Muhammad v. Ray

5 Hobbs, director of Arkansas Department of Correction, and

6 others. This is case 5:11-CV-164. And we are here for a

7 hearing on the motion for a temporary injunction filed by --

8 do you go by Mr. Muhammad?

9

THE PLAINTIFF: Yes, sir.

10

THE COURT: All right. Filed by Mr. Muhammad in this

11 case. Initially, I had looked at the motion and looked also

12 at the Eighth Circuit precedent in Fegans v. Norris, and I

13 thought that it should be denied. Judge Miller looked at it

14 and sent it back to me. And having a second look at it, I

15 think Judge Miller is right, that it requires an individual

16 and particular analysis on the motion. So I was incorrect,

17 and denied it based on not hearing any other facts than what

18 was pled and comparing it to the case in Fegans. So I set it

19 for a hearing, and here we are. And welcome. Thanks to our

20 Arkansas Department of Correction transportation folks always

21 getting everybody here on time, on target, we appreciate it so

22 much.

23

And I guess it’s your motion, Mr. Holt.

24

Ms. Cryer, will you tell me who is at the table with

25 you? I see Mr. Hobbs, is that --

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 5 of 111

5

1

MS. CRYER: Actually, Your Honor, Mr. Hobbs is not

2 here. I have Warden Gaylon Lay from the Cummins Unit.

3

THE COURT: Okay. Warden.

4

MS. CRYER: I have Assistant Director Grant Harris

5 with the Department of Correction. Mr. Hobbs is not here

6 today.

7

THE COURT: And I’m sorry, I thought -- I had

8 recognized Mr. Lay -- or Warden Lay from another hearing a

9 while ago, it’s been a while since I’ve seen you all. But,

10 welcome, thank you.

11

Do you have any witnesses, Ms. Cryer?

12

MS. CRYER: Your Honor, I do have a number of other

13 individuals who are here. I do not know whether they will be

14 called to testify or not. But I can go ahead and identify

15 them for the record if you would like for me to do so.

16

THE COURT: Sure. Why don’t you do that, please.

17

MS. CRYER: Okay. We have Deputy Warden Andrea

18 Weekly from the Cummins Unit. I’m sorry, I’m trying to sit

19 down so you can see.

20

THE COURT: Sure. That will be fine. Thank you.

21

MS. CRYER: We have Chaplain Wilson Bates from the

22 Cummins Unit.

23

THE COURT: Chaplain.

24

MS. CRYER: We have Chaplain John Wheeler, who is the

25 head chaplain, am I --

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 6 of 111

6

1

MR. WHEELER: Administrative.

2

MS. CRYER: Okay. Administrative for the Department

3 of Correction. And we also have Chaplain Amin, who is the

4 Islamic coordinator for the Department of Correction.

5

THE COURT: All right. Very good.

6

And, Mr. Muhammad, did you have any witnesses at this

7 time or that you plan to present?

8

THE PLAINTIFF: No, sir.

9

THE COURT: All right. Well, very good. I mean, Mr.

10 Muhammad, I’ve read your pleadings and your motion and, at

11 this point in time, it’s your obligation to kind of move

12 forward, if you will, and tell me a little bit about your

13 claim. Give me some facts on your request with the Department

14 of Correction with regard to your exemption and just kind of

15 lay some foundation. Ultimately, it’s going to be, I believe,

16 up to the defense to provide a reasonable basis for denying

17 the exemption. But I want you to go ahead and lay out your

18 facts for the record, if you would.

19

THE PLAINTIFF: Do you want me to come to the lectern

20 or just --

21

THE COURT: It’s whatever is your pleasure. You have

22 a bunch of documents there. Do you need to refer to your

23 documents?

24

THE PLAINTIFF: I have the ones -- the main ones that

25 I intend to refer to, I’ve already pulled them out of the file

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 7 of 111

Holt a.k.a. Muhammad - Direct

7

1 along with some stuff from the Koran that details to help you

2 get a better understanding of where I’m coming from on this

3 particular motion here.

4

THE COURT: Well, why don’t you come forward then,

5 sir. If you want, why don’t you come -- you can have a seat

6 here.

7

THE PLAINTIFF: Okay.

8

THE COURT: Since you’re going to be a testifying

9 witness, and I’ll put you under oath as well.

10

GREGORY HOLT, A.K.A. ABDUL MAALIK MUHAMMAD, PLAINTIFF

11 HEREIN, SWORN.

12

DIRECT EXAMINATION

13 BY THE COURT:

14 Q All right. Mr. Muhammad, tell me how old are you, sir?

15 A 36.

16 Q And where did you grow up?

17 A Little Rock.

18 Q And how long have you been incarcerated?

19 A This time, I’ve been locked up two years.

20 Q Two years. What kind of sentence are you serving?

21 A Life, plus 40.

22 Q And what was the conviction?

23 A Aggravated residential burglary and domestic battery,

24 first degree.

25 Q Out of Pulaski County?

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 8 of 111

Holt a.k.a. Muhammad - Direct

8

1 A Yes, sir.

2 Q All right. And what unit are you presently in?

3 A Cummins Unit.

4 Q And tell me what led to the filing of your complaint and

5 then your motion?

6 A As a -- I’m what’s called a Saliba’s Muslim. Okay. I

7 believe in following the Sabbath of the Prophet Muhammad,

8 which is the way of the Prophet Sunnah, things of that nature.

9 And one of the areas of the Sunnah that’s addressed by the

10 Prophet Muhammad, sallallahu alayhi wa sallam, or peace be

11 upon him, is that one of the characteristics of a Muslim or

12 Al-Fitra is to keep the mustaches short and leave the beard as

13 it is. As I pointed out in my memorandum of law, I believe

14 it’s in this -- in the complaint itself, I referred to a

15 Hadith known as Sahih Al-Bukhari. Sahih Al-Bukhari is one of

16 the leading collections of Hadith in the Muslim world. It’s

17 recognized as a sound Hadith, which is the sayings or the

18 works or the practices the Prophet Muhammad, how he -- how he

19 did things, and it was narrated by companions who were with

20 him or who were considered legitimate sources of information

21 as it relates to the way the Prophet Muhammad did things. And

22 then Sahih Al-Bukhari, Hadith 7 -- or Volume 7, Hadith No.

23 5893, the Prophet Muhammad there laid out that there are

24 several characteristics of Al-Fitra. Some of those

25 characteristics are you shave the underarm hair, you shave the

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 9 of 111

Holt a.k.a. Muhammad - Direct

9

1 pubic hair, you clip the nails, but you also clip mustaches

2 short, leave the beard as it is.

3

When I came to the department of -- Arkansas Department of

4 Correction, I wasn’t aware of what their grooming policy was

5 until I came to Diagnostic. When I got to Diagnostic, I found

6 that you could only have a mustache that does not extend past

7 the corners of the mouth. At that point, I informed that --

8 the correctional staff there that as a -- as a devout Muslim,

9 that it was my belief that you should grow your beard out. I

10 was informed that if I didn’t comply, I would be given -- and

11 shave, I would be given disciplinaries. I did receive several

12 disciplinaries. And after I saw how the Department of

13 Correction practices their penalties, which is called

14 progressive penalties, which they can come and give one -- one

15 officer can give you an order to shave, and then if you

16 refuse, he’ll get you -- write you a disciplinary, another

17 officer can come right behind him, give you an order to shave,

18 and if you refuse to shave, he can write you a disciplinary,

19 and it can go on and on to the point that you’re in the hole

20 -- in the hole a year, two years, three years. So, at that

21 point, I saw really there was no way out but to go ahead, as

22 much as I hated to, and to shave and violate my beliefs.

23

I was doing some legal research this past year, in 2011,

24 on some cases from other circuits where the grooming policy

25 had been challenged, and I came across one out of the Ninth

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 10 of 111

Holt a.k.a. Muhammad - Direct

10

1 Circuit, the Mayweathers case, in which the Muslims in the

2 Department of Correction in California sued over the very same

3 thing that the ADC practices. In fact, the California

4 Department of Correction practices some of the exact same

5 things that the Arkansas Department Correction does. In that

6 particular case, the brothers there argued for a half inch

7 beard. So what I did was, I went ahead and filed through the

8 Administrative Remedy process at Cummins Unit, I filed a

9 grievance asking for that the grooming policy be set aside and

10 that I be given a religious exception exemption to the

11 grooming policy.

12

Warden Lay -- Warden Lay refused. His response was that

13 it was the Department of Correction’s policy that the reason

14 that they don’t allow you to grow any facial hair other than a

15 mustache is because you could hide contraband or weapons in

16 the facial hair. And my argument to that is that with a half

17 inch beard, you can’t hide anything at all in the facial hair.

18 You can hide it more easily in the head hair. As you can you

19 see here, I could easily hide a weapon of some kind in the

20 head hair, but the Department of Correction doesn’t require

21 you to shave your head. Their policy on the head hair is that

22 you can only grow the sideburns, they can’t go past the middle

23 of the earlobe, and it can’t go past the middle of the nape of

24 the neck. Other than that, they don’t have a policy as to how

25 thick it can be on the top. In fact, it is a common practice

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 11 of 111

Holt a.k.a. Muhammad - Direct

11

1 at the Cummins Unit to transport weapons and contraband in the

2 head hair. I know this for a fact.

3

So after the policy -- after my grievance was denied all

4 the way up to Mr. Larry May, I filed this action basing it on

5 the Mayweathers case out of California.

6

The issue is, is whether or not a half inch beard would be

7 able to be -- you’d be able to hide anything in it. I am not

8 pushing for an unrestricted beard growth. I am not

9 challenging the hair -- the head hair policy. All I’m asking

10 is that I be allowed to grow a half inch beard based on my

11 religious beliefs, because it would -- it would contribute to

12 the safety and good order of the institution, it would not be

13 a threat to the institution because I’ve been walking in the

14 hallways up until recently with a half inch beard on my face

15 and there hasn’t been any problems. I don’t foresee any -- I

16 don’t see how there could be any problems now with allowing me

17 to continue to grow it at this rate, which is getting close to

18 a half inch, and allow me to do that based on my religious

19 beliefs.

20 Q What’s the policy now, is it a quarter inch?

21 A They -- the policy still is that they can only grow a

22 mustache that cannot extend past the corners of the mouth.

23 They allow for dermatological reasons, if you have a skin

24 condition, they allow you to grow up to a quarter inch beard

25 and then use the clippers to shave it after it gets -- it gets

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 12 of 111

Holt a.k.a. Muhammad - Direct

12

1 to a quarter inch length.

2

Now, my argument on that is, is that if -- if a quarter

3 inch beard does not pose a security threat, I don’t understand

4 how a half inch beard could.

5

One is for dermatological reasons. One is for religious

6 reasons. But I don’t understand how it could be a security

7 threat, because you cannot hide anything in this, you can see

8 everything on the face.

9 Q You have a beard. What’s the current -- how are you able

10 to have a beard right now?

11 A I was allowed to based on the restraining order that -- or

12 the injunction that Judge Miller entered.

13 Q Okay.

14 A I made an agreement with Warner -- Warden Warner and Major

15 Robertson because they asked me how long are you going to let

16 it grow, I said because I had asked for a half inch, I was

17 going to keep at a half inch, and that’s what I have strived

18 to do at this point.

19 Q All right. All right. Do you have anything further? I

20 mean, that pretty well lays out what I need to know. Do you

21 have anything further to add?

22 A Well, there is one thing, because I know in the Muslim

23 world, it is not -- not every Muslim believes that it is a

24 requirement that you grow the beard, and some Muslims believe

25 that the Hadiths as it relates to the Prophet are only

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 13 of 111

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1 advisory or something that you can choose to do if you want

2 to. But I turn your attention in the Koran to Surah 4, Ayah

3 80, and in that particular Ayah, it says [indiscernible], he

4 who obeys the messenger Muhammad, sallallahu alayhi wa sallam,

5 has indeed obeyed Allah, but he who turns away, then we have

6 not sent you Muhammad, sallallahu alayhi wa sallam, as a

7 watcher over them. Which in that statement there, in that

8 particular Ayah, it refers to the fact that something that the

9 Prophet Muhammad did, that Muslims should do, and if the

10 Prophet Muhammad said to do it, if you don’t do it, you’re

11 disobeying Muhammad and therefore you’re disobeying Allah

12 [indiscernible] Allah.

13

THE COURT: And I don’t think there is any burden on

14 you to prove under RLUIPA that -- I mean, I don’t think you

15 have any burden of proving your religious needs, I don’t

16 think. Am I correct on that, Ms. Cryer? I think RLUIPA is

17 pretty wide open, is it not?

18

MS. CRYER: It is, Your Honor, and because there is no

19 mechanism for us to really challenge whether or not his belief

20 is sincerely held, we’re not standing here today challenging

21 whether or not he believes, you know, in the various prophets

22 or whether or not he follows the Koran.

23

THE COURT: Okay. And like I said, I don’t think the

24 law impedes that on him either. So that’s fine, Mr. Muhammad,

25 your point is well taken, but there’s no burden on you to

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1 prove that.

2

All right. Now I bet Ms. Cryer has some questions of

3 you and I’ll allow her to cross examine you unless you have

4 anything further that you wanted to add.

5

THE PLAINTIFF: I don’t at this point.

6

THE COURT: Okay. Thank you, sir.

7

MS. CRYER: Thank you, Your Honor.

8

CROSS EXAMINATION

9 BY MS. CRYER:

10 Q Mr. Holt, I may jump around a little bit, and I apologize

11 if I do. And I also apologize for calling you Mr. Holt if I’m

12 to call you Mr. Muhammad. Okay. Let me ask -- and again, I

13 may skip around a little bit, the Mayweathers case that you

14 are referring to is out of the Ninth Circuit case and was that

15 a 2004 case?

16 A Yes, ma’am.

17 Q Okay. Now you entered the Department of Correction in

18 July of 2010; is that correct?

19 A Yes, ma’am.

20 Q All right. Had you ever been incarcerated in the

21 department of -- Arkansas Department of Correction before that

22 date?

23 A Not physically incarcerated. I had state time that was

24 run concurrent with fed time.

25 Q All right. But this was your -- July 2010 was your first

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1 time actually entering the facilities of the Arkansas

2 Department of Correction?

3 A Yes, ma’am.

4 Q All right. Now, let me ask, with regard to practicing

5 your religious beliefs, there are other ways that you are

6 entitled and allowed to practice your religion, correct?

7 A At Cummins Unit?

8 Q Yes.

9 A It’s very limited.

10 Q Okay. You can pray, correct?

11 A I can pray.

12 Q Okay. You have a Koran, correct?

13 A Yes, ma’am.

14 Q Okay. And, in fact, you’ve had the Koran since you left

15 the Diagnostic Unit and were transferred to the Cummins Unit

16 in July of 2010, correct?

17 A Yes, ma’am.

18 Q Okay. You are allowed to request books or religious

19 materials from various distributors, correct?

20 A No, ma’am.

21 Q Okay. You’re not allowed to request books or materials at

22 all from any type of distributor?

23 A I had to go through a grievance process just to get some

24 books, because the chaplain tried to tell me that they didn’t

25 have any Islamic books and I wrote a grievance and a sergeant

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1 went down there and came back with a big stack of Islamic

2 books.

3 Q Okay. You were provided a mailing address of a

4 distributor in New York by Chaplain Banks earlier this year,

5 correct?

6 A For the purposes of getting a Koran, yes, ma’am.

7 Q Okay. You’re able to request a pork free meal, correct?

8 A Yes.

9 Q Okay. You are able to observe the religious holidays that

10 you choose, correct?

11 A That’s correct.

12 Q Okay. You’re able to participate in Ramadan?

13 A Yes, ma’am.

14 Q All right. You are able to or entitled to have a

15 spiritual advisor, correct?

16 A Yes, but I don’t get access to them.

17 Q Okay. You are -- can you correspond with one if you have

18 a spiritual advisor?

19 A I’ve attempted to. My correspondence is not answered.

20 Q Okay. You were able to seek a name change in the Pulaski

21 County Circuit Court, correct?

22 A Yes, ma’am.

23 Q All right. And you are also in possession or have been in

24 possession of a prayer rug, correct?

25 A Yes, ma’am.

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1 Q Okay. So, would you now agree with me that there are

2 ways, other than observing whether or not you are going to

3 shave your beard, that you are entitled and allowed to

4 participate in various forms of adhering to and participating

5 in your religion?

6 A That’s correct, but I want to add -- I want to add that

7 those things alone -- you have to do everything with a

8 totality of the circumstances. If the Prophet Muhammad

9 commanded that a Muslim is to clip his mustache short and

10 leave the beard as it is, it is incumbent upon a Muslim to do

11 that. If he fails to do that, it is my belief, and according

12 to the Koran, that he is disobeying the Prophet Muhammad,

13 sallallahu alayhi wa sallam, and he’s also disobeying Allah

14 [indiscernible] Allah.

15 Q Okay. You would agree with me that that is your

16 interpretation, correct?

17 A No, that is not my interpretation. That’s Hadith.

18 Q Okay.

19 A That -- that is sound Hadith. That’s why I put that in

20 this complaint and keep referring to it is because of the fact

21 that it is sound Hadith. The Hadith is important to follow

22 because we are to emulate the Prophet Muhammad, sallallahu

23 alayhi wa sallam, as much as possible. And if the Prophet

24 Muhammad said to do it, we are to do it. The Hadith says so.

25 The Hadith is sound. And I -- and I try to strive to emulate

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1 the Prophet.

2 Q How long have you been of the Muslim faith?

3 A Nine years, going on ten.

4 Q And when you were charged with the most recent crimes that

5 you entered the Department of Correction for, were you a

6 practicing Muslim?

7 A Yes, ma’am.

8 Q Okay. And I believe in your pleadings that you have

9 acknowledged that the Arkansas Department of Correction has a

10 legitimate penological interest with regard to having a

11 grooming policy, correct?

12 A Yes.

13 Q Okay. You just disagree with whether or not it should

14 apply to you and whether or not you should be limited with the

15 length of your beard, correct?

16 A I’m going to put it like this to you, I want to be

17 protected, too, because I’m an inmate in the Department of

18 Correction. There are other -- there are other ways that

19 people hide weapons on them. The facial hair alone is -- is

20 not where people most of the time are going to hide weapons.

21 Q That’s because they’re not allowed to grow facial hair,

22 correct?

23 A That’s correct.

24 Q Okay.

25 A But they could hide them someplace else. They could hide

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1 them on the clothes, you know, that type of thing. Having a

2 half inch beard -- having a half inch beard, again the issue

3 is whether a half inch beard is going to cause a security

4 concern in the Department of Correction. I have proven by

5 walking the halls of Cummins Unit for almost three months with

6 a half inch beard that there is no security concern. There

7 has been no -- been no issues, as far as I know, complaints,

8 other than staff not liking the fact that I have a beard.

9 Other than that, there has been nothing on my end for having

10 done anything like that.

11 Q Okay. So your position is that because you have chosen

12 not to hide any -- or attempt to anything in your beard, that

13 is not -- it does not create a security concern?

14 A A half inch beard would not create a security concern.

15 More than one court has ruled on that.

16 Q Where did you come up with the half inch requirement?

17 A From --

18 Q And I ask this because in your memorandum of law you say

19 that your belief is that you should leave the beard as it is.

20 A That’s correct.

21 Q So I’m trying to figure out how do you justify now coming

22 up with a half inch beard? Is it because --

23 A As --

24 Q -- of the Ninth Circuit case law?

25 A As -- as the Prophet Muhammad again has stated in the

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1 Hadith that for every travail there is two escapes, if -- if

2 you are in a position -- if a Muslim in a position where the

3 lesser of two evils are involved, it is permissible to go with

4 the lesser of that evil. If the evil requires that you

5 observe -- to a certain extent if you are observing the -- the

6 -- with your intention, which is called your niyyah, to grow

7 the beard, if it is your intention to leave it uncut, then

8 according to the Hadith, the 40 Hadith Qudsi, it states that

9 -- that if you intend to do a good deed, but don’t do it, it’s

10 still credit to you as a good deed. So if I have -- to a

11 certain point here, have made an effort to comply with the

12 dictates of the Prophet Muhammad, sallallahu alayhi wa sallam,

13 then I have done what I’m supposed to do. And, yes, the half

14 inch beard did -- did come in to play in that Ninth Circuit

15 case.

16 Q Okay. So you arrived at the half inch beard requirement

17 based upon the Ninth Circuit case?

18 A Because it seemed reasonable, yes.

19 Q Okay. And I believe that you also just said that based

20 upon your -- based upon your beliefs, that if you try to do

21 the right thing, but are not allowed to do it, that that’s

22 still acceptable, correct?

23 A That’s correct.

24 Q Okay. So if you tried to grow a beard of any length, and

25 the Department of Correction said no, as far as your religious

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1 beliefs go you’re still okay because you attempted to comply

2 with that, but you were stopped by the laws of the Department

3 of Correction?

4 A If it was under compulsion, to a certain extent, yes.

5 Q Okay. Now when you filed your motion for a temporary

6 restraining order, you filed that in June of this year,

7 correct?

8 A Yes, ma’am.

9 Q Okay. And you had not received a disciplinary for failing

10 to comply with the grooming policy since the previous July,

11 correct?

12 A That’s correct.

13 Q All right. And at some point after you received those

14 disciplinaries back in July of 2010, you acknowledged at one

15 of those disciplinary hearings that you had been following

16 other law, but that you acknowledged that you were now

17 incarcerated in the Department of Correction, that you needed

18 to follow the laws of the Department of Correction?

19 A That’s what I stated at the time.

20 Q Okay. What changed? Between July of 2010 and June of

21 2011, what changed?

22 A Several things changed.

23 Q Okay.

24 A Do you want me to go into them?

25 Q Please.

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1 A Given the stuff that’s happened in the Muslim world, the

2 -- the occupation of Afghanistan, Iraq, places like that, when

3 I see brothers being murdered in those countries, when I see

4 them dying for this type of stuff, at this point it -- it

5 comes -- it makes me want to continue to try to follow the

6 religion as much as possible, because there’s brothers dying

7 for this very thing over there. They’re dying for these

8 beliefs. And for me to sit over here because some prison

9 administration thinks that, oh, well, you know, we don’t think

10 he should grow a beard because it’s a security issue, never

11 mind what his religious beliefs are, we’re not going to try to

12 accommodate his religious beliefs at all as it relates to his

13 belief in growing the beard, at that point my -- you know, I’m

14 -- I believe I have every right to challenge that. And that’s

15 what I’ve done.

16 Q You don’t have any case law with you or anything showing

17 that the Fegans case is no longer good law, do you?

18 A That it’s no longer good law?

19 Q In the Eighth Circuit? Yes.

20 A Not that I’m aware of.

21 Q Okay.

22 A My -- but what I would like to point out again is that the

23 problem with the Fegans case was that Michael Fegans argued

24 for unrestricted beard and hair growth. I am only arguing for

25 a half inch beard because that right there is -- is still

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1 contributious to the security and good order of the

2 institution. There is no problem with a -- somebody growing a

3 half inch beard. In fact, in some other cases, the courts

4 have ruled that -- that the -- that correction personnel can

5 exercise common sense and visual inspection to determine

6 whether or not there is a -- a weapon or any type of -- any

7 type of contraband there, that they’re trained to do this.

8

And also, the issue is, is that since it’s been argued

9 that having a beard can help alter your identity should you

10 try to escape, I would be willing to go so far as to say that

11 -- that the Department of Correction can practice what other,

12 like the New York Department of Correction does, when they

13 come in, they -- you take a clean shaven photo, and then they

14 allow the -- they allow them to grow I believe in New York

15 it’s a one inch beard, they take another photo of them at that

16 point, and that way they have them for comparison purposes.

17 And, in fact, there -- it’s been stated in some of these cases

18 that -- that the issue of the weapons is not something that’s

19 that big of an issue as far as putting it in the beards, that

20 they’re using -- they can hide them anywhere else on the body.

21 Q They can also hide them -- if allowed to wear a beard,

22 they can also hide them in a beard?

23 A If they allow the beard to grow unrestricted. You cannot

24 hide anything -- again, Ms. Cryer, you cannot hide anything in

25 this beard. You can’t stand there and tell me you can hide

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1 something there.

2 Q You might not be able to, Mr. Muhammad, but other inmates

3 might be able to if they were allowed to grow a half inch

4 beard?

5 A A half inch beard, this -- this right here is getting

6 close to a half inch beard. You can’t even barely hide a

7 razorblade in it, Ms. Cryer.

8 Q Well, actually, let’s talk about that for just a little

9 bit. When is the last time that you received a haircut?

10 A When is the last time I received a haircut?

11 Q Yes, sir.

12 A The last time I got in the barber chair was about three

13 weeks ago.

14 Q How did that go?

15 A I went down there to get the beard within compliance of

16 what I said I would wear a half inch beard on, because it was

17 getting a little scraggly, so I was getting in the chair to

18 have it trimmed up, and the barber tried to shave it nearly

19 all the way off.

20 Q What happened then?

21 A After he was told twice not to do it.

22 Q What happened then?

23 A At that point, I informed -- I informed Warden Warner and

24 Major Robertson that -- that I had a problem with the man and

25 that he couldn’t come around me anymore.

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1 Q What exactly did you say with regard to you have a problem

2 with him?

3 A I said I was at war with him.

4 Q Okay. What does that mean to say that you’re at war with

5 him?

6 A I have -- I have an issue with him, but I -- I went on to

7 explain to Captain Tate when he asked me what I meant by that

8 and I wrote down in the witness statement that I did not

9 intend that as a threat, that was not a threat, it was spoken

10 in the heat of anger, I was upset at my beard being shaved off

11 -- nearly all the way off after I told the man three times

12 that I had a court order allowing me to grow a half inch

13 beard, to trim it down to a half inch, and he tried to shave

14 the whole thing off.

15 Q So you don’t want to be shaved or cut by that barber

16 again, correct?

17 A That’s correct.

18 Q What happens if the next barber tries to cut your beard

19 below where you want it to be, are you going to be at war with

20 that barber as well?

21 A I would be upset with him, but I have to -- I have to -- I

22 have to temper my viewpoints at times because I do hold very

23 stringent beliefs when it comes to the beard situation. When

24 it comes to this religion, I hold it very, very seriously.

25 Q So I guess my question is are you going to threaten the

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1 next barber that cuts your hair or your beard in a way that

2 you’re not happy with?

3 A There was no threat there. As I said, I did not intend it

4 as a threat, I did not threaten that man. All I said was I

5 was at war with him. You can take those choice of words to

6 mean how you want to because --

7 Q Did you mean that you thought he was a friendly, swell guy

8 and that that’s why you were saying you were at war with him?

9 A All I said was -- and the reason that I had an issue with

10 him was because he tried to cut my beard off after I told him

11 twice not to.

12 Q And again, that -- the barber was an inmate, correct?

13 A Yes, ma’am.

14 Q Not an officer?

15 A Right.

16 Q Okay.

17 A I would point out that the officer that was on duty that

18 day took me down there to the barber chair and told the barber

19 -- told the barber this man needs a shave. And I told him

20 when he started getting the clippers out, I told the man cut

21 my beard down to a half inch length, I have a court order that

22 says I can do so. And instead, he goes and takes nearly the

23 whole thing off.

24 Q Again, the inmate does, not the officer, correct?

25 A That’s correct.

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27

1

MS. CRYER: Okay. Your Honor, I don’t believe at

2 this time I have any more questions of Mr. Muhammad.

3

THE COURT: All right. Sir, you may stand down.

4 Thank you.

5

THE PLAINTIFF: All right.

6

(Witness stands down.)

7

THE COURT: Sir, did you have any other evidence that

8 you wanted to present at this time? Because now what I

9 believe should happen is I believe that it’s the defendants’

10 burden to show that -- well, essentially, answer the question

11 of whether security can be achieved while not substantially

12 burdening your -- is it impossible for them to achieve

13 security without substantially burdening your free exercise of

14 religion, so, I mean --

15

THE PLAINTIFF: There is one other thing, Your Honor,

16 I would like to bring out. I made an effort before we came

17 here today to deal with this issue about whether an injunction

18 was necessary or not. I wrote a letter to Ms. Cryer and

19 informed her that I would be willing to stay in ad seg, to

20 stay in administrative segregation, and as long as I’m allowed

21 to grow that half inch beard, you know, I -- you know, I

22 wouldn’t be walking the hallways, I wouldn’t be doing anything

23 like that, so, therefore, it wouldn’t be an issue out in the

24 population, if that was that their position. I offered to try

25 to negotiate that. But I heard nothing back, so I thought I

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28

1 would let you know that -- that I did try to do that.

2

I would also point out to you that even though there

3 has been a restraining order in place, that I’ve still been

4 subjected to harassment on the part of ADC staff at various

5 times. In fact, being locked up in ad seg under investigation

6 on the grounds that Major Robertson stated that I had been in

7 the law library and had typed a order up on the law library

8 computer. When I told him that the order was valid, he tried

9 to state that I had forged Judge Miller’s signature. Even

10 though I was let out of the segregation several hours later,

11 after it was determined that the order was in fact valid.

12 Going down the hallway -- I even had to go and ask Warden

13 Warner for assistance because I would carry the order in my

14 pocket because certain shifts weren’t notified that the order

15 was in effect and that I was allowed to wear the beard, so

16 officers and people in positions of authority would try to

17 harass me and threaten to lock me up for having the beard and

18 would say they didn’t care what the order said, they didn’t

19 care that -- if it came from a federal judge or not, this was

20 the Department of Correction, this wasn’t the feds. So I had

21 to go again to Warden Warner and asked to -- for him to re --

22 to put another memorandum out to tell these people to leave me

23 alone because it’s a valid order. I couldn’t even go to

24 breakfast in the morning times because I was being harassed by

25 staff in the hallways. So I thought I would -- I was bringing

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29

1 it out to you that -- you know, that an injunction really is

2 needed on this. It really is, because of the fact that, as

3 you can see, this beard right here -- this beard right here,

4 you can’t hide anything in it. It is -- it is a -- it is a

5 belief of mine that you should grow it out, the state would

6 not be harmed by -- by you continuing that injunction. If the

7 injunction only applies to me and not the rest of the ADC,

8 again, I don’t -- I don’t see how there would be a problem in

9 that regard either, because if I’m the only one that’s allowed

10 to -- that’s allowed to do this, then I don’t see that there’s

11 going to be 16,000 inmates walking around the ADC with half

12 inch beards on their faces.

13

THE COURT: Well, let’s let the defense proceed.

14 You’re getting a little bit ahead, you’re kind of making your

15 argument in closing. And so, let me hold off on that.

16

And on the ad seg, wasn’t that proposed by the Fegans

17 -- in that case, was that the -- I thought it was proposed as

18 an alternative in Fegans and the Eighth Circuit rejected that

19 as unduly burdensome on the ADC.

20

MS. CRYER: I was going to say, Your Honor, I would

21 like to respond to what Mr. Muhammad said and it also may be

22 necessary that I question him a little bit further based upon

23 what he has just testified to.

24

With regard to the ad seg, I mean, Mr. -- first of

25 all, Mr. Muhammad placed himself, requested to be placed in ad

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30

1 seg. It was not a matter of the Department of Correction

2 placing him there. He did send a letter. I did receive it

3 last Friday. Due to the holidays, he has not received a

4 response back for what we consider to be a settlement offer.

5

I think that based upon other cases that have been

6 decided recently in the Eighth Circuit with regard to housing

7 someone in ad seg for an unlimited amount of time, I don’t

8 believe the Department of Correction -- that that’s something

9 that they could seriously consider doing without facing

10 potential lawsuits of Mr. Muhammad being housed indefinitely

11 in administrative segregation. So I don’t think that’s a fair

12 --

13

THE COURT: It was proposed in Fegans. I know I’ve

14 read that. It was proposed in Fegans and the Eighth Circuit

15 has rejected that because it says:

16

“This option, like the others

17

proposed by Fegans, would allow

18

accommodation of religious

19

observances to override other

20

significant state interests, we

21

agree with the district court that

22

AD 98-04 withstands scrutiny under

23

RLUIPA.”

24

So, I mean, that was proposed before and the Eighth

25 Circuit, they rejected that over the objection of the defense.

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1

But your point is well taken, Mr. Muhammad, and

2 again, I want to -- I think, you know, if we can -- the issue

3 here, you know, really is so closely related to the merits of

4 the case, and that’s not why we’re here to ultimately have a

5 disposition of the case. But, I mean, to me, and ultimately

6 it boils down to whether or not the -- whether or not we can

7 have the ADC meeting their security objectives without

8 substantially burdening your religious freedom. I mean,

9 that’s it in a nutshell. And so it really is incumbent on

10 them -- the way it works, Mr. Muhammad is that they have to

11 ante up now, they have to say we can’t do it, we can’t allow

12 you to grow this beard because of whatever the reasons are. I

13 know what the reasons were in Fegans. I’m interested to hear

14 what the reasons are now. And then we’ll just have to, you

15 know, see what happens. I mean, I’m going to hear from them

16 right now. But I want to stay focused on that line of

17 thinking here, because that, to me, is the critical part of

18 this, what are the security concerns that they have. And

19 again, you know, Mr. Muhammad, the law, as you know -- I mean,

20 you’ve obviously read these cases -- but, you know, in

21 general, the law is very much restrictive on me getting

22 involved in prison administration. Okay. And frankly, I

23 mean, that’s -- you know, they don’t get involved in the

24 judging business and I don’t get involved in the prison

25 administration business. Okay. And there’s a reason for

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32

1 that. You know, I’d be a lousy prison administrator. And

2 they have the experience and the knowledge, and, you know, I’m

3 sure a lot of times you disagree with the way they do things,

4 but the bottom line is they’re the ones trained in doing that

5 and I’m not entitled to, under the law, to meddle in prison

6 administration unless it somehow infringes on your

7 constitutional rights. And so, I’m -- what I’m trying to say

8 here is the thrust of this has to be on what are the security

9 concerns, can they achieve concerns and still allow you to

10 grow a half inch beard or not? And so, that’s really where

11 I’m focusing. Okay?

12

And I don’t know, you know, what the answer is, but

13 we haven’t heard from Ms. Cryer and her folks. So let’s hear

14 what they have to say. And you’ll have every opportunity to

15 cross examine them and build your record. And then we’ll see

16 where the chips fall. Okay?

17

THE PLAINTIFF: Okay.

18

MS. CRYER: Thank you, Your Honor. I’d like to call

19 Warden Gaylon Lay.

20

GAYLON LAY, DEFENDANTS’ WITNESS, SWORN.

21

DIRECT EXAMINATION

22 BY MS. CRYER:

23 Q Mr. Lay, would you state your full name for the record,

24 please?

25 A Rex Gaylon Lay.

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1 Q And where are you currently employed, Mr. Lay?

2 A Arkansas Department of Correction, Cummins Unit.

3 Q And how long have you been the warden at the Cummins Unit?

4 A Going on nine years.

5 Q And just to make sure, you are aware today that we are

6 here with regard to inmate -- I’m going to call him Gregory

7 Holt, because I believe that that’s the pleading that the name

8 was filed under, but he’s also going by the name -- last name

9 Muhammad?

10 A Yes.

11 Q That we are here with regard to his request to ask this

12 Court to allow him to be able to grow a one half inch beard;

13 is that your understanding?

14 A Yes, ma’am.

15 Q Okay. Mr. Lay, let me just start off by asking you do you

16 have any problems or concerns with inmate Holt or inmate

17 Muhammad being allowed to grow a one half inch beard?

18 A I do. Yes, ma’am.

19 Q Okay. Would you please explain to the Court what some of

20 your concerns are?

21 A My concerns revolve around security. A person can quickly

22 alter their appearance if they’re allowed to grow a beard,

23 they escape while they’re out on a court run or from a

24 facility or whatever, and immediately shave. They alter their

25 appearance. There are some differences, for example, if you

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1 look at Mr. Muhammad’s beard, his is rather thin on the sides

2 and kind of thick around here, he may or may not be able to

3 hide something as simple as a homemade dart, I’ll just use

4 that for an example, we have over the years found some of

5 those at another facility, but other people, individuals, are

6 different, the next guy may have a half inch beard that’s full

7 and -- full face. I mean, there are just a large number of

8 variances in different people when it comes to facial hair.

9

Also, you’re -- I don’t know how you would -- I don’t know

10 how you would manage that if people were allowed to grow a

11 half inch beard. Okay. How are you going to measure that on

12 a consistent basis? How are you going to keep down conflict?

13

At the current time, the only person I’m aware of, out of

14 over 15,000 inmates, that has a legal order to grow a beard --

15 now, there are some medicals for a quarter inch beard -- but

16 to grow a half inch beard is inmate Holt. And as you can see

17 from his own correspondence, he’s already threatened the

18 barber over the manner that he cut his hair. Can you imagine

19 trying to manage that for 15,000 people?

20 Q Okay. Well, even if we’re not talking about other

21 inmates, let’s discuss inmate Holt. How often are inmates

22 allowed to go and to get a haircut and a shave?

23 A Weekly, at least.

24 Q Okay. Let’s say --

25 A If they’re in general population, they are actually issued

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1 a razor. They keep it in their personal property.

2 Q All right. And what about Mr. Holt or Mr. Muhammad who

3 has placed himself in administrative segregation?

4 A Weekly.

5 Q Okay. What if any time during that week, let’s say, Mr.

6 Muhammad chooses to go every two weeks or every three weeks to

7 the barber, do you have any concern as to how that shaving

8 process or that is going to go based upon past experience with

9 Mr. Holt and what happened with the barber earlier this --

10 earlier -- or last month, in December?

11 A Well, certainly, I do. I mean, if -- if Mr. Holt sits in

12 a barber chair and says I want a half inch trim, which would

13 be in compliance with the order he currently has, I guess, how

14 is that barber going to determine, okay, you know, this is

15 exactly a half inch, it’s a little longer, a little shorter?

16 Even if it’s exactly what he ordered, are they going to be in

17 agreement over that? And you’ve seen the result and the

18 documentation of what occurred that one time.

19 Q And, to your knowledge, what was the documentation and

20 what did occur with Mr. Holt and the barber in December of

21 2011?

22 A According to the inmate barber and the officer that was

23 there, Mr. Holt asked if he could go to the barber chair, as

24 the officer was making his rounds for haircuts, and get a

25 trim. And the officer took him to the barber chair, as he did

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1 everybody else that requested it on the wing. And when the

2 guy -- when he sat down, according to the inmate barber, he

3 never told him anything about a particular length or anything

4 until after he had shaved him with the clippers, and he said

5 then Mr. Holt acted as if he was angry, objected, said, you

6 know, I’m supposed to be able to keep a half inch beard. And

7 the barber said I wouldn’t have had a problem with that, or I

8 would have at least asked staff if that was the case, had he

9 mentioned it. But the inmate said he never mentioned that

10 until after the fact.

11 Q When an inmate is receiving a haircut or a shave from an

12 inmate barber, is security staff located inside that area or

13 around that area?

14 A In segregation, yes, the officer escorts him there and

15 stays in the vicinity until he escorts him back to the cell.

16 Q How far -- you just said stays in the vicinity, what is

17 the vicinity?

18 A Within three or four feet.

19 Q Okay. Would you have any concern with security needing to

20 be present or even additional security needing to be present

21 every time inmate Holt goes to the barber chair?

22 A After this particular incident, yes.

23 Q Okay. Any concerns about inmate Holt being around the

24 inmate barber that gave him, for better words, the wrong cut

25 of the beard last month?

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1 A Certainly. I mean, the statements that he made were

2 obviously a threat. We perceived them in that way and have

3 taken precautions not to allow that barber around inmate Holt

4 again.

5 Q Okay. Can you do that every time inmate Holt has a

6 disagreement with a barber, can you just switch barbers out?

7 A No, ma’am, I think eventually I’d run out of barbers if I

8 tried to satisfy what Mr. Holt wants or Mr. Muhammad.

9 Q And again, with regard to the length of the beard that he

10 is requesting, how would you monitor or how could your unit or

11 the department, for that matter, monitor how long exactly his

12 beard is each and every day?

13 A I’m not sure. Someone would have to show me how to do

14 that.

15 Q Okay.

16 A I mean, you could start, I guess, with a particular

17 clipper guard that’s a particular length, but depending on the

18 individual, in two, three days, how frequent is he going to

19 have to trim that and how are we going to know that? You see

20 them going down the hallway, but you obviously can’t stop and

21 pull a tape measure on everybody’s beard, I wouldn’t think.

22 Q Let me ask with -- Mr. Holt mentioned something about not

23 being able to hide contraband in his beard. Do you know, have

24 you observed whether or not inmate Holt has attempted to put

25 anything in his beard to see if it would stay or if it would

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1 fall out?

2 A I have not, no, ma’am.

3 Q Are there any forms of contraband that you, as the warden,

4 would be concerned about possibly being placed in a beard that

5 was a half inch long?

6 A Certainly. And again, depending on the individual, some

7 individuals would have more ability to hide something than

8 others, depending on how their facial hair grows, the

9 thickness of it, et cetera, and that sort of thing.

10 Q What types of things?

11 A Anything from razor blades to drugs to homemade darts. I

12 mean, there are a wide variety of things. Those are just what

13 I think of off the cuff. Inmates are pretty creative and they

14 have 24 hours a day to think about things like that.

15 Q Okay. Well, what about Mr. Holt’s statement that he can’t

16 hide anything in his beard -- I don’t know how else to ask

17 this -- but is that good enough for you?

18 A No, ma’am, I don’t believe -- I don’t believe it would be.

19 Q Does that provide you with comfort knowing that Mr. Holt

20 is not going to hide anything at any time or attempt to hide

21 anything at any time in his beard?

22 A It does not, no.

23 Q And is that opinion based on -- what is that opinion based

24 on?

25 A Based on experiences and -- and experiences in dealing

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1 with inmates over the last 36 years.

2 Q And with regard to an inmate changing his appearance, can

3 an inmate change his appearance other than shaving or growing

4 a beard?

5 A I suppose. I suppose they could shave their head, but

6 that’s just one more avenue that you’ve added to the

7 possibilities.

8 Q And I believe you heard Mr. Holt’s testimony that he knows

9 for a fact that inmates hide a lot of contraband in their hair

10 on top of their head?

11 A Yes, ma’am, I heard that.

12 Q Are you concerned as the warden at the Cummins Unit about

13 contraband being passed along from inmate to inmate at your

14 unit?

15 A Certainly, I am. I mean, we spend an astronomical number

16 of hours conducting searches, housing area searches, random

17 individual inmate searches, all sorts of things. And still,

18 occasionally, you’re going to find contraband.

19 Q Over the years, and I’m going to use the year 2006, and

20 I’m picking that year because that was the year that Judge

21 Moody issued his ruling in the Michael Fegans case, from 2006

22 to the present time, based upon your knowledge and experience,

23 has the amount of contraband that inmates have been caught

24 with or discovered with at the Cummins Unit, has that

25 decreased at all?

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1 A No, ma’am. As a matter of fact, it has increased. The

2 population and the type of inmates we seem to be getting from

3 society now are more violent, they’re younger, there are just

4 a gambit of things that make them different than the

5 population we were used to dealing with in the 70s and 80s.

6 Q And what if you -- what if you have an inmate who is

7 allowed to do something special, that he is allowed to do

8 something that other inmates are not allowed to do, such as

9 grow a beard, even if it’s a restricted length beard, but is

10 allowed to grow a beard, do you have any security concerns for

11 the safety of that inmate?

12 A It could possibly make him a target of other inmates.

13 Yes, ma’am.

14 Q And, Warden, let me ask, the current policy of the

15 Department of Correction, the Court made reference to the

16 policy 98-04 earlier with regard to the policy that was in the

17 Michael Fegans case, to your knowledge, is that the same

18 policy that applies today with regard to the grooming policy?

19 A Yes, ma’am, that’s not changed to my knowledge since --

20 Q Does the -- sorry.

21 A -- that time. I’m sorry.

22 Q Does the grooming policy make any allowances for any type

23 of religious exemptions?

24 A No, ma’am.

25 Q Okay. As warden of your unit, have you personally done

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1 anything or have you instructed anyone to prevent inmate

2 Muhammad from having religious articles or materials with him

3 that he feels are important in order to facilitate his

4 religious studies?

5 A No, ma’am. There was one thing that occurred, an

6 individual tried to send him a Koran through the mail, and we

7 searched the inmate’s property and -- and discovered that he

8 had three in his possession currently, and it’s against policy

9 for it to come from an individual, he would have to order it

10 from a bookstore or a business that provides that type of

11 literature.

12 Q What happened to the Koran that was sent to you from the

13 outside individual?

14 A We mailed it back to the individual that sent it.

15 Q Okay. And was that based upon your desire for inmate Holt

16 or inmate Muhammad not to have a Koran to study with?

17 A No, ma’am. As a matter of fact, that’s why we searched

18 him, was to make sure that he did have one before we denied

19 it, and we, of course, would have had the chaplain guide him

20 in the correct way to get one. We still would not have been

21 allowed to let him have the one that came from an individual.

22 Q Why can you not allow him to have something that came from

23 an individual?

24 A People offer them, we get all kinds of things in the mail

25 that shouldn’t come in a correctional institution, that are

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1 concealed in mail, books, religious materials, different

2 things.

3 Q Do you allow or does your unit allow inmates to request

4 certain religious materials from distributors that are

5 accepted and approved by the department?

6 A Yes, ma’am, and they can work through the chaplaincy’s

7 office and gain access to those addresses and places that are

8 available.

9 Q Okay. And again, with regard to administrative

10 segregation, inmate Holt mentioned that he would be willing to

11 stay in ad seg, do you have any understanding or knowledge as

12 to why inmate Holt is currently in administrative segregation

13 or was in administrative segregation?

14 A He had chosen --

15

THE PLAINTIFF: Objection. I object to that because

16 the person who could testify to that is here. So it would be

17 hearsay from what he’s saying.

18

THE COURT: Well, at this type of hearing, I think

19 hearsay is allowable under the Rules, so I’m going to allow

20 it. And then if you want to call the other witness, if

21 there’s any -- if there is any question of -- well, let’s hear

22 what he has to say. I mean, if there’s a question of whether

23 or not it’s accurate or not, you can call the witness, because

24 that’s your hearsay objection, it’s based on accuracy.

25

THE WITNESS: He’s in segregation this last time

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1 because he requested to be there in writing.

2 BY MS. CRYER:

3 Q Okay. And Mr. Holt testified a few moments ago that he

4 was being harassed by officials at the Department of

5 Correction with regard to the order saying that he could grow

6 a half inch beard. Mr. Lay, have you done anything to harass

7 inmate Holt with regard to his order not being allowed to --

8 or to allow him to have the half inch beard?

9 A No, ma’am, I have not, nor have I instructed anyone else

10 to.

11 Q How did you learn about the order that inmate Holt had

12 that would allow him to have a half inch beard?

13 A I received a call. I was actually off, I think on

14 vacation. I received a call from the duty person. I don’t

15 remember if it was Mr. Warner or Major Robertson. But Major

16 Robertson had stopped inmate Holt in the hallway because he

17 was out of compliance with the grooming policy and was going

18 to write him a disciplinary. And inmate Holt presented the

19 order that he had from the court. And, of course, being

20 corrections folks, we were a little bit suspicious about its

21 authentic -- about it being legitimate, because normally

22 anything the court issues, we get, at least, a copy of. And

23 normally, we’d get it before the inmate, I would think,

24 usually. So that seemed extremely unusual. And I think the

25 major did place him on investigation, and then after it was

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1 authenticated, released him from segregation.

2 Q Do you know what time period it was that inmate Holt was

3 kept in segregation or on investigative status?

4 A It was released the same day.

5 Q Okay.

6 A I don’t know if it was an hour, two hours, or three hours.

7 Q Okay. Is that how you first became aware that there was

8 an order allowing inmate Holt --

9 A Yes, ma’am, that was the first --

10 Q -- to grow a beard?

11 A -- first I’d heard about it.

12 Q Okay. And I believe Mr. Holt testified earlier about how

13 if he was not in compliance with the grooming policy, that he

14 faced the possibility of being issued a disciplinary for being

15 out of compliance with the grooming policy?

16 A Yes, ma’am, that’s correct, as was any other inmate.

17 Q Is being out of compliance with the grooming policy the

18 only infraction or rule violation at the Department of

19 Correction that an inmate can be issued a disciplinary for?

20 A No, ma’am. There are numerous. As a matter of fact, Mr.

21 Holt directly reflects that. I mean, he’s had some for

22 threatening folks, I think, and some various things.

23

MS. CRYER: Your Honor, I believe at this time that’s

24 all the questions that I have of Warden Lay.

25

THE COURT: Thank you, ma’am.

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1

Mr. Muhammad, you may ask.

2

CROSS EXAMINATION

3 BY MR. HOLT A.K.A. MR. MUHAMMAD:

4 Q Good morning, Warden.

5 A Morning.

6 Q Get back to something that you were saying when you first

7 started out. The reason I’m in ad seg is not because of the

8 fact that I requested it, is it, Warden?

9 A Yes, I believe it is. I believe we have a written

10 statement to that effect.

11 Q In fact, I was assigned by the classification by Warden

12 Warner, was I not, regarding a disciplinary I had received,

13 written by Warden Weekly; is that correct?

14 A Not --

15 Q Were you not aware of that?

16 A Not this time. If I remember correctly, you’ve been out

17 of segregation and back since that disciplinary. Is that not

18 correct?

19 Q That’s correct.

20 A Okay. This time, based on your request.

21 Q And did I also not, two days later after that, ask to be

22 returned back to population and stated the issue that I had

23 had been resolved and I wanted to go back to population; were

24 you aware of that?

25 A After you were placed there this time? Are we speaking of

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1 the time that you’re there now?

2 Q After I requested it, yes.

3 A No, I’m not aware of you requesting to go back to

4 population.

5 Q So you’re not aware -- you’re not aware then that there

6 was an objection to my going back to population by one of the

7 defendants in the case; were you aware of that?

8 A No. No, I was not.

9 Q Okay. Now, on the issue of the barbers, how do you choose

10 who is designated a barber and who works as a barber at

11 Cummins Unit?

12 A Classification Committee selects them. As they come

13 through classification, we try to place people in areas where

14 they have job skills. If a guy comes through and says he’s

15 been a barber somewhere, particularly if he’s a licensed

16 barber, you don’t run across many licensed barbers, but you do

17 run across some people that have cut hair and had experience

18 in that area, then they would be considered for that job.

19 Q Now, would the two barbers that you have come in to ad seg

20 or 14/16 Barracks in the east building, are -- are both of

21 those trained barbers?

22 A I couldn’t testify to their training without talking to

23 the individual and looking at their institutional file. I do

24 know that the last barber that was in that area has been

25 promoted to the free line barber and cuts staff hair.

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1 Q So the barber that -- that you discussed, that we

2 discussed in here, that I’ve had the issue with regarding a

3 beard trim, you don’t know whether he’s a trained barber or

4 just -- just somebody that the classification said, okay, he

5 says I want to be a barber, I want to be a barber?

6 A I think I answered it, but I’ll answer it again. I

7 couldn’t testify to that without talking to the individual or

8 looking at his institutional file.

9 Q Now I want to ask you about the situation where you stated

10 that you -- you talked to the barber in question, the one who

11 shaved -- nearly shaved my beard all the way off, you talked

12 to him and he told you that I never requested or said anything

13 about a half inch beard until after the fact; is that what

14 you’re saying?

15 A That’s what he told me, yes, during the interview.

16 Q Now, would you -- would that -- could it be a possibility

17 that based on the situation and based on the information that

18 you had, knowing about this court order, that when this barber

19 was confronted with this -- because there was a grievance

20 written, was there not, by me?

21 A I don’t remember -- I don’t remember if it was a grievance

22 or just a written complaint, but, yes, that’s how I became

23 aware of it, was something that was received from you.

24 Q Now, is it possible the barber lied?

25 A Sure, that’s a possibility.

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1 Q So just because the barber said I didn’t say anything,

2 doesn’t mean that I didn’t say anything, correct?

3 A Well, the officer, I believe, kind of corroborated what

4 the barber said, and that he didn’t hear you say anything

5 about that to the inmate barber. I talked to -- I talked to

6 every individual that was in that area after receiving your

7 mail.

8 Q Did you -- when you talked to the officer, do you remember

9 which officer it was?

10 A I don’t remember his name right offhand, no.

11 Q Did he state that -- did he tell you where he was at

12 during this whole -- during this whole episode at all?

13 A He said he was in a close vicinity -- close proximity,

14 three, four, five feet, somewhere in that horseshoe there --

15 or that area where they cut hair, not the horseshoe, but I

16 think it was in one of the day rooms if I remember correctly.

17 Q So if you hear -- let me ask you this. If you hear two

18 inmates into a conflict, especially one in handcuffs and one

19 not, one has got access to sharp weapons, the other one

20 doesn’t, if you hear -- that if an officer hears two inmates

21 in a conflict, wouldn’t it be the officer’s duty to remove --

22 to separate those two inmates so that the conflict is

23 squashed?

24 A Well, I believe that’s what occurred. You were taken back

25 to your cell immediately following the incident, were you not?

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1 Q Yes. Were you aware of -- or let me ask you this. Were

2 the COs that were back there in the east building, were they

3 made aware at all that there was a court order in place

4 regarding me and that I was not to be bothered regarding the

5 beard at all?

6 A I know the captain and the major knew that. I hope they

7 passed that information on to the correctional staff. I have

8 to believe they did, as no one has written you a disciplinary

9 for being out of compliance with the grooming policy.

10 Q Okay. Now you mentioned about inmate identification as it

11 relates to beards; is that correct?

12 A Yes.

13 Q You’re concerned that if inmates were allowed to grow half

14 inch beards in the ADC that they will be able to alter their

15 appearance and -- should they escape or anything like that?

16 A Certainly.

17 Q Wasn’t there an escape recently at Cummins Unit, sir?

18 A Yes, a couple of years ago.

19 Q And those inmates that escaped were actually dressed like

20 officers, were actually in compliance, like officers would

21 wear, with their -- with their facial hair neatly trimmed, no

22 beard and that type of stuff, would that be not -- would that

23 not be accurate?

24 A That’s correct. Yes, they were dressed as officers.

25 Q So a beard alone is not going to cause somebody to be able

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1 to necessarily alter their appearance, the lack of it, or to

2 have one, in the event they want to escape, they can alter it

3 some other way, right?

4 A Well, certainly, there are many ways you can alter your

5 appearance, I guess, but a beard being one of the easiest and

6 quickest.

7 Q Okay. And you mentioned about the -- your concern about

8 weapons being hidden in the facial hair, I believe you

9 mentioned darts, I believe you mentioned razor blades, things

10 of nature; is that correct?

11 A Yes.

12 Q Would it be safe to say that the weapons that you have

13 found during shakedowns in Cummins Unit, the times that you

14 have found them, are either -- or have they ever been on

15 somebody’s face at all?

16 A No, because we have a grooming policy. They don’t have

17 beards.

18 Q Okay. So -- so the weapons are other places, correct?

19 They’re on their clothes, in their rack, wherever, they can

20 hide them any number of places in other than just the beard,

21 correct?

22 A We find contraband various places, yes.

23 Q Okay. So just having a beard alone is not going to -- is

24 not going to cause a great increase in the flow of contraband,

25 is it?

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1 A It’d cause a great increase in the number of places to

2 hide it.

3 Q So you would say then that -- that even though there’s the

4 clothes, the socks, the shoes, the boots, things of that

5 nature, the coats, any number of clothings that you all issue

6 at Cummins, people hide stuff in there regularly, correct?

7 A They have, yes.

8 Q So, again, a beard is not going to be necessarily the --

9 the preferred choice of hiding things, wouldn’t you say?

10 A Well, now, that depends. You know, inmates are pretty

11 creative, as I stated earlier. They watch staff, watch how

12 they monitor things, watch what staff do. And after watching

13 a particular staff person on a post for a period of time,

14 that’s how they figure out how to beat that staff person,

15 about what they are checking and what they’re not checking,

16 what they may not be comfortable with checking. I don’t know

17 how many correctional officers would be comfortable with

18 running their hand through a man’s beard. I don’t know. You

19 know, but I really don’t think that that would benefit the

20 overall goal and mission of corrections to have to do that.

21 Q Now, you have other ways to identify inmates, don’t you?

22 A Such as?

23 Q Do you not -- is it not policy -- is it not policy of the

24 Department of Correction to issue inmates IDs that they wear

25 around their neck and also put their name and their ID number

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1 on their clothes; is that correct?

2 A Yes, they carry an ID badge. That’s correct.

3 Q So, and they also have their name and ADC number on the

4 back of their -- the front and back of their clothes; is that

5 correct?

6 A Yes.

7 Q So you can -- you can identify -- the purpose of that is

8 so that you can more readily identify those inmates in the

9 case of an officer having a contact with them, correct?

10 A We put a name and a number on the clothing hoping that

11 they’ll continue to wear the ones that are issued to them and

12 not trade them out, but, no, that’s not -- that’s not a very

13 good method of identifying anyone, no.

14 Q So what happens if they’re caught wearing clothes they’re

15 not supposed -- that are not issued to them?

16 A Will get a disciplinary, unless for some legitimate reason

17 their clothes were not back from the laundry or something.

18 Q And you issue -- you issue ID cards; is that correct?

19 A That’s correct. Yes.

20 Q And the reason that you issue cards, such as these right

21 here, is so that you can again readily identify inmates in the

22 department -- in your unit, would that be correct?

23 A Well, yes, if we issue the ID badge though of you without

24 a beard, and then three months later you grow a beard, then

25 you’ve altered your appearance from that ID badge.

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1 Q So let me ask you this, how --

2 A And vice-versa.

3 Q -- how many years have you been -- again, did you say

4 you’ve been a warden?

5 A I’ve been a warden at the Cummins Unit for nine and at the

6 Delta Regional Unit for five.

7 Q Okay. And you’re aware -- are you in contact with other

8 Department of Corrections around the country; do you ever have

9 any contact with them at all?

10 A Yes, occasionally, through training, we do through the

11 American Correctional Association and other avenues.

12 Q So if other prisons, major prisons, such as New York,

13 California, places like that, if they’re able to do this very

14 same thing that I’m proposing, why would it be so hard for

15 Cummins Unit to do the same thing?

16 A You know, I suppose maybe that’s an individual preference

17 in those states. I can’t tell you for what reason they’ve

18 elected or chosen to go that route. I do know that many, many

19 of those institutions are very different from Cummins and from

20 the mission, and I’ll give you one good example, is the

21 majority of those institutions that you’re referring to are

22 cell block housing units where everything is one or two man

23 cells practically. The Cummins Unit has a lot of open bay

24 barracks that house up to 35 to 45 individual inmates, it’s as

25 high as 50 in some instances. So, yeah, that’s just one of

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1 many scenarios that are a lot different from our mission and

2 the way we’re designed as opposed to maybe somewhere you’re

3 talking about in California or -- or New York. I’m not aware

4 of very many states out there, for example, that operate an

5 agricultural program like we do in Arkansas. The Cummins Unit

6 is attached to a 17,000 acre farm. There are a lot of people

7 come and go in and out of the confines of that fence

8 performing that work and those duties. So we’re certainly a

9 lot different. So I don’t know why, you know, their

10 preference would be to go that route, but, I mean, that’s

11 their preference obviously, or maybe law in that particular

12 circuit, I don’t know.

13 Q But if they’re able to do it without problems and they --

14 they seem to be able to be getting along fine, what would be

15 the problem with the Department of Correction allowing

16 somebody to grow a half inch beard?

17 A The problem would be the reasons that I’ve stated. And I

18 certainly would like to talk to some of those administrators

19 and see if they didn’t voice some of the same concerns even

20 though they do allow that.

21 Q Now, you were saying there’s how many -- how many inmates,

22 rough estimate, are in the Department of Correction as we

23 speak right now?

24 A Excess of 15,000. It may be up closer to 17,000

25 currently.

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1 Q Now, of those 15,000 inmates, would it be fair to say that

2 not everybody can grow a beard, right?

3 A Right now, no one can except yourself and those that have

4 a medical script.

5 Q The question I’m asking you though is would it be fair to

6 say that in the Department of Correction that should -- should

7 this Court or whoever in the future so find that we should be

8 allowed to grow a half inch beard, that not everybody in the

9 ADC can grow beards; is that correct?

10 A Do you mean physically?

11 Q Physically grow beards.

12

THE COURT: I understand where you’re going with

13 that, Mr. Muhammad, but why don’t we move on. I understand

14 where you’re going with that. I don’t think it’s very

15 compelling on what you’re trying to prove.

16

THE PLAINTIFF: Okay.

17

THE COURT: And equally, I didn’t find it very

18 compelling that having to manage 15,000 people with beards is

19 at issue either, so.

20

THE PLAINTIFF: Okay.

21 BY MR. HOLT A.K.A. MR. MUHAMMAD:

22 Q Would it be fair to say again that it would be easy to

23 hide weapons or contraband in the head hair?

24 A Could you repeat the question?

25 Q I said would it be easy -- would it be fair to say that it

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1 would be easy to hide contraband in the head hair of an inmate

2 in the Department of Correction?

3 A It would be as easy to hide it there as it is a beard, I

4 suppose.

5 Q Okay. So if somebody has hair my length or a little

6 longer on top, you could hide a razor blade in that, you could

7 hide weapons and stuff up there, couldn’t you?

8 A You could, yes.

9 Q Okay. Now, the issue of ID-ing inmates as far as with the

10 beards, what would be the harm, okay, in allowing when

11 somebody comes into the ADC, requiring them to have a clean

12 shaven photo taken, and then when they grow it out to a half

13 inch beard, taking another photo of them for comparison

14 purposes?

15 A The problem is they may never grow a half inch beard until

16 after they escape, just using that for one example, or they

17 may come in with a beard, and if we’re not allowed to require

18 them to shave, they may immediately shave it after they

19 escaped, or got in some area they’re not supposed to be in, to

20 alter their appearance.

21 Q Have you -- has there been a whole lot of escapes from the

22 Department of Correction because people were wearing beards?

23 A Not as of recent years, thank goodness. I do recall one

24 back in the 70s or 80s where the individual grew a beard and

25 blended in with homeless people in Houston, Texas, and I think

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1 two or three years before they captured him, and that was to

2 alter his appearance. Of course, that went the other way

3 around, I think he left the ADC clean shaven and grew the

4 beard after he got out, and he was eventually apprehended,

5 but.

6 Q So if -- somebody could escape from Cummins then and get

7 out and alter their appearance by growing a beard, right?

8 A Oh, certainly, if we don’t apprehend them before they have

9 time to do that.

10 Q Okay.

11 A But if you escape with a beard, and you shave it, then you

12 have immediate means of altering your appearance, like right

13 now.

14 Q So if -- if other -- other, again, I refer back to other

15 institutions or other prison systems that allow this to

16 happen, allow people to grow beards, and they’re not seeming

17 to have a problem with escapes, what would, again, the -- you

18 have -- you still would have a problem with people wearing a

19 half inch beard in the Department of Correction?

20 A Yes.

21 Q Regardless of other prison administrations doing the same

22 thing and allowing it?

23 A I can’t testify to the fact that they aren’t having

24 problems because of that, because I don’t know what goes on

25 nationally across the country. Again, I would like to talk to

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1 some of those administrators and see what kind of problems

2 that they have experienced because they for whatever reason

3 have chosen to go that route. But, yes, that would concern me

4 greatly.

5 Q How long -- how long -- I know what the policy is

6 regarding the head hair in the ADC. As far as the length on

7 the top of the head hair, is there a specific length they can

8 grow it to as long as it doesn’t extend past the earlobe and

9 the nape of the neck?

10 A There is. I believe that’s outlined in the policy. I

11 don’t remember exactly what it is. I just know that it has to

12 be off the collar and above the ears.

13 Q So if somebody has hair on top of their head, they could

14 -- they -- you know, that they could hide something in there,

15 right?

16 A Well, you could hide something in hair the length of yours

17 or mine, but that’s not excessive according to the policy.

18 Q So if it could be -- my question then is, if that’s the

19 case, then why is the facial hair a target and the head hair

20 is not?

21 A The facial hair just gives another avenue, just adds

22 another place to hide contraband.

23 Q Okay. But you admit you could hide contraband pretty much

24 anywhere though, right?

25 A They do hide it in a lot of different places, yes. I’m

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1 sure you’re familiar with that.

2 Q Okay. Let me see here. Would a half inch beard -- would

3 a half inch beard, for officers being able to identify the

4 length of it, would it be fair to say that you can tell when a

5 beard is getting past a half inch?

6 A Well, I believe that would change from individual to

7 individual. What you might think just at a glance is a half

8 inch, I may not think is a half inch, or the next person may

9 not think is a half inch. Anyway, how are you going to gauge

10 that?

11 Q So you wouldn’t -- so you’re telling me that you couldn’t

12 -- your officers wouldn’t be able to look at somebody and be

13 able to tell whether their beard is a half inch or longer and

14 be able to tell them you need to go trim that down because

15 it’s getting past regulation?

16 A You could give an -- you could give an approximate look at

17 someone’s appearance and say maybe that person is out of

18 compliance, maybe they’re beyond the half inch, but then that

19 person is in disagreement, says, well, I’m a half inch or

20 less, and they file a grievance, and then you go through all

21 those steps to handle that. I mean, do you actually call the

22 person in and measure the beard or, you know, how are you

23 going to deal with that on a regular basis?

24 Q Okay. As far as the Koran that you said was sent in by

25 the individual, in fact that individual was an attorney,

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1 wasn’t it?

2 A That’s correct.

3 Q Okay.

4 A Our policy mandates that it come from a bookstore or a

5 supplier, not from an attorney, an individual.

6 Q Okay. And you also stated that the first time you heard

7 about the order was when Major Robertson or somebody had

8 called you and told you that I had this court order; is that

9 right?

10 A Yes, I don’t remember if it was Major Robertson or Mr.

11 Warner, but one of the two.

12 Q And you don’t remember -- you don’t remember admonishing

13 Major Robertson and telling him that the order -- that if it

14 was a valid order, he needed to -- he needed to let me out

15 immediately, do you remember saying that?

16 A Well, that’s a possibility. I do remember telling the

17 major that that would be highly unusual for an inmate to have

18 an injunction of some sort that we didn’t have a copy of or

19 hadn’t been informed of through the courts or through legal

20 counsel or somehow.

21

THE PLAINTIFF: Okay. I think that’s all I have.

22

THE COURT: Thank you, sir.

23

Do you have any follow up questions of the warden?

24

MS. CRYER: I don’t think I do, Your Honor.

25

THE COURT: I have a couple. Can you tell me, how do

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1 you manage the folks that have the medical script quarter inch

2 beard?

3

THE WITNESS: We stop them in the hallway, Your

4 Honor, and ask them to present a script if they’re not in

5 compliance with the grooming policy, and if it appears to be

6 outside the quarter inch -- a quarter inch is pretty much

7 close to what you get using a clipper without a guard, if you

8 just -- I don’t know -- if you just try to shave with a

9 clipper, for example, rather than a razor, that’s pretty much

10 what you get. They’re pretty close.

11

THE COURT: Do you know about what percentage of the

12 population has that?

13

THE WITNESS: No, sir, it’s not a very high

14 percentage, you don’t run into it with every other inmate, you

15 know, when you’re in the hallway, but you do see it.

16

THE COURT: And with regard to the hair length, Ms.

17 Cryer, do you know -- does somebody know, can somebody speak,

18 is there actually a -- I know you said you didn’t have -- you

19 thought it was in the policy, but you didn’t know for sure,

20 I’d like to know what the policy actually is, is there a

21 length per se or is just to the collar, like you said, I mean?

22

MS. CRYER: If you will give me just a minute, I’ll

23 look for the policy, because I think I brought a copy.

24

25

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1

THE COURT: Okay. And you don’t have to look that up

2 right now, I mean, I -- if somebody could speak to that, I’d

3 like to know what the actual policy is, because my next

4 question then is, have you actually had people hiding

5 contraband in their hair?

6

THE WITNESS: I can recall one coming into

7 segregation back when I was a uniformed officer with a

8 marijuana joint in his hair, yes, sir.

9

THE COURT: Okay. But anything recent?

10

THE WITNESS: Not recently, no, sir.

11

THE COURT: All right. And then that also brought me

12 to another question is you’ve obviously been a warden for 14

13 -- 13 years or going on 14?

14

THE WITNESS: Yes, sir.

15

THE COURT: And how long have you been in the prison

16 business?

17

THE WITNESS: 36 years and some odd months.

18

THE COURT: And you started out as a CO?

19

THE WITNESS: Yes, sir, at Cummins.

20

THE COURT: At Cummins. Last question, the Ninth

21 Circuit case, it appears that they have a grooming policy and

22 then the Ninth Circuit allowed this beard, half inch beard,

23 have you had any sort of correspondence, any training, or

24 anything based on that, that the California officials have

25 mentioned anything or come and spoken at any conference or

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1 anything, have they talked about what the impact has been in

2 their prison system?

3

THE WITNESS: No, sir, I haven’t had an opportunity

4 to visit with anyone about that. As a matter of fact, I

5 wasn’t aware of that case until this came up.

6

THE COURT: Got you. Okay. Thank you.

7

MS. CRYER: Your Honor, I think I have just one

8 question.

9

REDIRECT EXAMINATION

10 BY MS. CRYER:

11 Q Mr. Lay, are you responsible for creating the ADC policies

12 with regard to grooming?

13 A No, ma’am. That would come from the Board of Corrections.

14

THE COURT: Any follow up?

15

THE PLAINTIFF: I have one.

16

THE COURT: Yes, sir.

17

RECROSS EXAMINATION

18 BY MR. HOLT A.K.A. MR. MUHAMMAD:

19 Q But you are responsible for enforcing it, correct?

20 A That’s correct.

21

THE PLAINTIFF: Okay.

22

THE COURT: Warden, you may stand down. Thank you,

23 sir.

24

THE WITNESS: Yes, sir.

25

(Witness stands down.)

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1

THE COURT: Your next witness?

2

MS. CRYER: Thank you, Your Honor. I know I’m going

3 to have one more. That’s going to be Grant Harris.

4

THE COURT: All right.

5

GRANT HARRIS, DEFENDANTS’ WITNESS, SWORN.

6

DIRECT EXAMINATION

7 BY MS. CRYER:

8 Q Mr. Harris, would you state your full name for the record,

9 please?

10 A My name is Grant Edward Harris.

11 Q And, Mr. Harris, where are you currently employed?

12 A I’m currently employed with the Arkansas Department of

13 Correction. I am an Assistant Director of Institutions.

14 Q And prior to being the Assistant Director of Institutions,

15 what was your position with the Department of Correction?

16 A I was the warden of the Varner Unit, which encompassed the

17 ad seg Supermax, for a little over six years.

18 Q Prior to being the assistant director, how long in total

19 were you a warden for the Department of Correction?

20 A Approximately 18 years.

21 Q And when did you first begin working at the department?

22 A I began my career at Tucker Unit in 1979, and at that

23 point there were only three facilities within the state of

24 Arkansas.

25 Q Okay. Mr. Harris, you’ve been present in the courtroom

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1 for the testimony of both inmate Muhammad, as well as Warden

2 Lay; is that correct?

3 A Yes, ma’am, that is correct.

4 Q Okay. And did you hear Warden Lay’s comments or concerns

5 with regard to contraband?

6 A I did.

7 Q Okay. Let me just ask this, and we can kind of circumvent

8 some of my questions, was there anything with regard to Warden

9 Lay’s testimony that you disagreed with?

10 A No, ma’am, there’s nothing that I would disagree with. In

11 fact, I would like to really amplify on one point, if I may.

12 Q Sure.

13 A If it please the Court? You know, certainly weapons are a

14 concern when it comes to facial hair, but I think one thing

15 that we really need to touch on this morning is what we’ve

16 been experiencing as an agency within the last few years, and

17 that’s the introduction of cell phones which are coming into

18 our institutions. Last year alone, we probably confiscated in

19 excess of a thousand cell phones at all institutions. What’s

20 unique about a contraband cell phone is that our phone system

21 records conversations and this is how we gain intelligence,

22 with the exception of legal or attorney calls, those calls are

23 not recorded. So we use the recorded calls as a means of

24 gaining intelligence to see who is trying to smuggle in what

25 within the different institutions or who is dropping something

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1 off.

2

When I was the warden at Supermax, I guess what was

3 amazing to me is just as we had closed one avenue of receiving

4 contraband and weapons and drugs within the institution,

5 another one would open up. The cell phone was the means of

6 making that avenue happen. I remember one particular

7 situation, we never identified the visitor, but due to the

8 shape of the package, the visitor would go into the restroom,

9 it was in a body cavity, would actually flush the marijuana,

10 the rock cocaine, black tar heroin, down the commode, it was

11 tightly wrapped in cellophane and duct tape. The trusty, who

12 was outside the fence, who was working the sewer pond, who

13 was, you know scraping, getting everything up, was actually

14 fishing that out, he was carrying it back to maintenance, he

15 was breaking it down, he was bringing it in the back door of

16 our kitchen. And believe it or not, the inmates in the main

17 kitchen were working it, again repackaged, in the food, taking

18 it down the hall to Supermax to ad seg. What was amazing

19 about this is they may not necessarily try to move a whole

20 cell phone or a large amount at one time, they moved maybe it

21 was something that was just a piece of that object, and

22 actually put it together. So when you get to the dining

23 facility in the Supermax, you’ve got another group of inmates

24 that are on the serving line, and they know maybe that

25 Sergeant Stanley, who works Cell Block 6 all the time, starts

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1 out on Tier 3, and he feeds from left to right. Well, he’s

2 actually counting the number of cells and counting the number

3 of trays, and he’s concealing that contraband or that weapon

4 in that particular tray to get to that inmate. And from

5 there, it can exchange hands. I just took the liberty of

6 bringing one small thing that you may not consider to be a

7 weapon, but certainly it is given the gravity of what can be

8 introduced into the institutions. It’s something as small as

9 a SIMS card. And this is it. And certainly, this can be

10 concealed just about anywhere, as well as a beard. And this

11 is what makes the whole thing magic, this is what makes it

12 work. And I have seen phones altered in so many different

13 ways without battery packs, where they’ve taken AA batteries

14 and wrapped them up to charge and work the phone, pieces of

15 phones that have been walked down the hall in flip flops that

16 have been put together later on in an ad seg, in general

17 population. It’s amazing how creative you could get.

18 Something this simple can be responsible for the introduction

19 of drugs or weapons into any institution. And I just felt

20 like I needed to miss -- miss that point, because at this

21 point I don’t know that we’ve really addressed that.

22 Q Okay. Let me -- let’s get back to the concern that -- or

23 the request that inmate Muhammad has, and that’s the request

24 to have a one half inch beard.

25 A Sure.

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1 Q Do you have any concerns now as a former warden, current

2 assistant director of the Department of Correction, that

3 something such as the SIMS card that you brought with you

4 today could be confiscated -- or could be hidden in a beard?

5 A That could be the piece of the phone that makes it all

6 work. Certainly. As well as the needle off of a syringe and

7 the diabetic inmate that’s in ad seg that acts like he’s

8 putting the cartridge or the base of the syringe in the sharps

9 container, pulls it back out, that maybe the syringe got broke

10 off before it was placed in the sharps container, well, he

11 passes that to the guy that’s got the needle in the next cell.

12 I mean -- I mean, the possibilities are flammable, really.

13 Q And again, there has been testimony today with regard to

14 all the various different places that you -- that an inmate

15 can hide or conceal contraband. Do you disagree with any of

16 the testimony today with regard to the different various

17 places that inmates can conceal contraband?

18 A No, ma’am.

19 Q Does that alleviate your concern with regard to an inmate

20 who is requesting to grow a half inch beard?

21 A I’m very concerned about a half inch beard.

22 Q Okay. Are you responsible for preparing or for changing

23 any of the Arkansas Department of Correction policies?

24 A I’m a member of the policy committee itself. There’s a

25 number of members, including our lead staff attorney, who is

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1 actually the chair of the committee, so I do have direct input

2 into the policy and change, yes, ma’am.

3 Q Okay. The Court inquired earlier with regard to the

4 department’s policy on grooming. Did you actually bring a

5 copy of the grooming policy with you?

6 A I did. I have that in front of me.

7 Q Okay. What is the policy number?

8 A The actual policy is a -- it’s an Administrative

9 Directive, and the number is 98-04, and it deals with the

10 reference to the Administrative Regulation of personal

11 cleanliness and grooming for inmates.

12 Q And in looking at the policy, would you please refer to

13 the part that makes reference to the length of hair that an

14 inmate may have?

15 A It’s probably the closest thing to that, it states:

16

“Inmate’s hair must be worn loose,

17

clean, and neatly combed, no

18

extreme styles are permitted,

19

including but not limited to corn

20

rows, braids, dread locks,

21

mohawks, et cetera. The hair of a

22

male inmate must be cut so as to

23

be above the ear, with sideburns

24

no lower than the middle of the

25

earlobe, and no longer in the back

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1

than the middle of the nape of the

2

neck.”

3

It also talks about the aspect of the medical script for a

4 dermatological problem as well.

5 Q I asked Warden Lay earlier if he had any concerns, not

6 even just with regard to inmate Muhammad, but any inmate that

7 is allowed to do something that other inmates are not allowed

8 to do.

9 A That’s the last thing that you would want to happen in an

10 institution. As Warden Lay pointed out earlier, you know,

11 certainly it can make them a target with some of the inmates

12 in the population, but it could also try to -- it could also

13 elevate his status and make him even possibly even more sought

14 after by other inmates who are looking for a leader and who

15 want to follow.

16 Q Does that cause any concerns to you as a member of the

17 security staff or security team with the department?

18 A Certainly, it does. If you’re in the business of

19 recruiting or anything like that, it all -- that all has a

20 bearing on that.

21 Q And again, I know that Warden Lay was able to testify with

22 regard to his concerns at the Cummins Unit where he is

23 currently the warden. Do you have any concerns department-

24 wide with regard to whether or not an inmate or possibly other

25 inmates were allowed to wear the half inch beard?

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1 A I have that concern for us as an entire department, at

2 every institution.

3 Q Are you aware of what other states are doing, how they run

4 their facilities, or what types of rules that they have?

5 A No, ma’am, not specifically. I’m really not.

6

MS. CRYER: Your Honor, I think that’s all the

7 questions that I have of Mr. Harris.

8

THE COURT: Do you want to make the grooming policy a

9 part of the record?

10

MS. CRYER: I would, Your Honor.

11

THE COURT: All right. Any objection? I don’t know

12 that it would be a viable objection, but you can make an

13 objection for the record.

14

THE PLAINTIFF: No objection.

15

THE COURT: Okay. Why don’t we make that -- if you

16 need that back, we can make a copy and give that --

17

THE WITNESS: That’s fine, Your Honor.

18

THE COURT: Okay.

19

MS. CRYER: And if I’m not mistaken, Your Honor, I

20 believe Mr. Muhammad may have attached a copy of the policy,

21 the 98-04, to one of his pleadings. I’m not positive that he

22 has, but for some reason I was thinking that he had

23 previously.

24

THE COURT: Okay. Well, I’ll make it a part of the

25 record here, we’ll call it Defense Exhibit 1.

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1

MS. CRYER: Thank you, Your Honor.

2

(Defense Exhibit No. 1 identified and received.)

3

THE COURT: Do you have questions of the director

4 here?

5

THE PLAINTIFF: Just a few.

6

CROSS EXAMINATION

7 BY MR. HOLT A.K.A. MR. MUHAMMAD:

8 Q I just have a few questions for you.

9 A Sure.

10 Q You made the statement about the -- the AD 98-04, correct,

11 regarding the policy for the head hair?

12 A Yes, I did.

13 Q In that policy, it doesn’t state any type -- any

14 particular length on the head, does it?

15 A No, it does not.

16 Q Okay. And also, in this case, this particular case we’re

17 talking about now, have you been made aware of any -- any

18 attempts at targeting me, because I was walking around in the

19 halls at Cummins Unit with a beard, by other inmates?

20 A No, I have not.

21 Q And you haven’t been made aware of any other -- of any

22 information come to your attention about anybody trying to

23 seek me out as a leader because I had a half inch beard on my

24 face, or have you been made aware of anything like that?

25 A No, I have not.

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1 Q Okay. Again, you brought out the thing about the SIMS --

2 the SIM card, I believe. It’s -- again, there’s more ways to

3 move contraband in a prison, I reiterate in a prison, than

4 just the facial hair, correct?

5 A Yes, that’s correct.

6 Q And you are also aware that in any given institution, that

7 there are officers that will move contraband for inmates and

8 routinely do so?

9 A I don’t know about routinely, but we have dirty staff as

10 well as dirty inmates.

11 Q So if an inmate wanted contraband or weapons moved,

12 instead of putting it in facial hair, they could give it to a

13 CO that they paid some money to, or they’d have a homeboy on

14 the street that they could use that to get it -- to move it

15 around and get it within the institution, correct?

16 A That would be a possibility.

17 Q And, in fact, officers do that, right?

18 A There are some staff.

19 Q Okay. I believe -- let’s see here.

20

THE PLAINTIFF: Can I have just a minute, Your Honor?

21

THE COURT: You may.

22 BY MR. HOLT A.K.A. MR. MUHAMMAD:

23 Q Now, as far as the issue of inmates wearing beards in the

24 Department of Corrections, would it be, again, I ask you, fair

25 to say that not every inmate in the Department of Correction

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Harris - Cross

74

1 is going to grow a beard -- is going to grow a beard?

2 A I really don’t know. I don’t think I can answer that.

3 Q Or whether they can or not, you don’t -- you don’t have an

4 answer one way or the other?

5 A I really don’t.

6 Q Okay. As far as prisoner identification goes with respect

7 to -- because I know that’s an issue -- again, you all have ID

8 cards that are issued to inmates to readily identify them by

9 staff, correct?

10 A That’s correct.

11 Q Okay. So if a -- if someone, let’s say, for example,

12 should the grooming policy be changed to allow a half inch

13 beard, would -- would it be a problem to require inmates

14 coming into the Department of Correction to be clean shaven

15 with their first photo taken, and after a half inch beard has

16 grown, retake another photo for comparison purposes?

17 A Well, I think Warden Lay answered that when you asked him

18 that same question earlier. But again, what you have to

19 consider is the aspect of that beard being used to conceal

20 weapon -- weapons or contraband, to have that contraband

21 introduced into a facility.

22 Q Now you’ve mentioned about a quarter inch beard, some

23 stuff has been made about that, about the quarter inch beard.

24 Is it not a fact that some people grow a quarter inch beard

25 thicker than others do?

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75

1 A You know, again, I -- I’m not really sure how to respond

2 to that. Everybody -- everybody’s facial hair is different in

3 that regard.

4 Q But the ADC specifically has a policy governing a quarter

5 inch beard for dermatological or skin condition, correct?

6 A Yes, that’s correct.

7 Q So I ask you, sir, how then is a quarter inch beard for

8 dermatological reasons not a security threat given -- again,

9 given that it’s been stated that people can grow different --

10 a half inch beard can be one way on one person, different on

11 another, where a quarter inch beard would be the same way,

12 explain to me how that is not a security threat, but a half

13 inch beard is?

14 A A half inch is longer than a quarter inch.

15 Q But again, the question is how is one if -- if the Court

16 -- if your policy is to stop the moving of contraband and

17 weapons in the facility, and your main objection is that the

18 facial hair is the conduit to do so, to move it around the

19 facility or whatever, then explain to me how a quarter inch

20 beard is going to be any different than a half inch beard.

21 A The last time I probably walked one of my institutions was

22 before the holidays. The quarter inch beards, you know,

23 primarily, you can still see the skin.

24 Q And you’re saying a half inch beard, you wouldn’t be able

25 to do that?

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76

1 A I don’t think so, no.

2 Q But again, a quarter inch beard, again people can grow at

3 different lengths, right?

4 A Sure, everybody’s hair is different.

5 Q And a quarter inch beard can have -- one person can have a

6 quarter inch beard that’s thick, the next person can be one

7 that sees the skin; would that be an accurate statement?

8 A I didn’t hear the last part. I’m sorry.

9 Q I said a quarter inch beard, someone growing -- one person

10 growing a quarter inch beard might grow it thicker than

11 somebody else, where you can see the skin on him, but you

12 can’t see it on the other person. Would that --

13 A I suppose that’s possible, sure.

14 Q So they could hide contraband in that, too, right?

15 A That’s a possibility. But again, the quarter inch is --

16 beards that I’ve seen, the skin is showing.

17

THE PLAINTIFF: Okay. That’s all I have.

18

THE COURT: Redirect?

19

MS. CRYER: I think I just have one.

20

REDIRECT EXAMINATION

21 BY MS. CRYER:

22 Q So, Mr. Harris, if you have inmates throughout the

23 department that are allowed to grow one half inch beards, and

24 presumably some can grow thicker beards than the other, how --

25 how, as part of the department, do you monitor the thickness

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77

1 or what could possibly be in some of the beards, but not in

2 other beards?

3 A That’s almost an impossible task, you know, when you’re

4 dealing with that large of a population. And again, it’s just

5 another avenue for contraband and weapons.

6 Q Is it your --

7 A I don’t -- I don’t know how you would do that.

8 Q Okay. Is it your testimony today that inmates who could

9 possibly grow half inch beards, that’s the only way that they

10 would be able to carry or pass contraband to one another?

11 A Through the half inch beard?

12 Q Yes.

13 A There’s many ways, ma’am.

14 Q Okay. The half inch beard is not just the only one?

15 A No, ma’am, it is not, not by a long shot.

16

MS. CRYER: Okay. That’s all I have, Your Honor.

17

THE COURT: Mr. Harris, you heard the questions I

18 asked of the warden. Do you remember those?

19

THE WITNESS: I do. Probably the last one, if I

20 could go in that order, Your Honor, I haven’t heard anything,

21 any consequences or -- or feedback on since what happened in

22 California, and I’m trying to recall anything negative or

23 positive about their grooming change, but I don’t know that I

24 can recall the first question, Your Honor.

25

THE COURT: Well, and you’ve answered it with the

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Harris - Presiding Official

78

1 policy here. You know, the other line of question was kind of

2 were you aware of any -- in your experience, aware of any

3 contraband being hidden in hair?

4

THE WITNESS: Oh, yes, sir.

5

THE COURT: You are?

6

THE WITNESS: Yes, sir.

7

THE COURT: Okay. Anything recent?

8

THE WITNESS: No, sir, not recent, not in the two

9 years since I’ve made the transition to assistant director.

10

THE COURT: All right. And how long have you been in

11 the prison business?

12

THE WITNESS: 32 years last November.

13

THE COURT: And did you also start out in the CO --

14 as a CO or --

15

THE WITNESS: Yes, sir, I actually worked my way up

16 through the ladder. Corrections is my life. It’s the only

17 job I’ve ever held.

18

THE COURT: I asked my lawyer to get me a ruler. You

19 held the SIM card up, and I thought for record purposes --

20

THE WITNESS: Oh, sure.

21

THE COURT: -- can I see it and --

22

THE WITNESS: You can.

23

THE COURT: -- let me get some dimensions on the SIM

24 card.

25

THE WITNESS: Yes, sir.

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1

THE COURT: It looks like it’s an AT&T SIM card here.

2 And it is -- it looks like it’s 3/8ths inch long ways and just

3 under 3/8ths of an inch width ways, so it’s a pretty small

4 device. I don’t know if anybody has any questions that the

5 SIM card I hold up, do you -- I mean, those are the

6 measurements I made. I think they’re pretty accurate. It

7 would be 7/16ths width -- I’m sorry, that can’t be right.

8 That would be 9/32nds.

9

MS. CRYER: Your Honor, I don’t know if it would be

10 helpful to make a copy, to place the SIM card on a photocopier

11 and make a copy of it --

12

THE COURT: We can do that if you would like to.

13

MS. CRYER: -- for the record. I think I would, if

14 that would be acceptable.

15

THE COURT: Okay. Sure. It’s 9/32nds width. Looks

16 like 13/32nds length. But we’ll do that at a break, if you

17 don’t mind for us to borrow this?

18

THE WITNESS: No, sir.

19

THE COURT: We’ll photocopy it on the -- with the

20 ruler.

21

MS. CRYER: Thank you.

22

THE COURT: All right. Any other follow up?

23

MS. CRYER: I do.

24

THE COURT: You may. Feel free to.

25

MS. CRYER: I have actually just a couple. And I

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80

1 apologize, Your Honor, because I know I said that I did not --

2

THE COURT: It’s not a problem at all.

3

MS. CRYER: -- have any additional ones for him.

4

FURTHER REDIRECT EXAMINATION

5 BY MS. CRYER:

6 Q Mr. Harris, let me ask, do you have any concern with

7 regard to the safety of the officers who might be required to

8 check what’s inside an inmate’s beard?

9 A Well, certainly, you do. I mean, from the standpoint of

10 syringe needles, the safety razors that are issued, you know,

11 they break up -- some break up better than others, even a

12 small -- the smallest piece of a razor and getting -- getting

13 a wound from that, getting a cut, those are all concerns.

14 Q And again, do you have the same concern with regard to the

15 safety of officers if they are checking for contraband inside

16 an inmate’s hair?

17 A Certainly, I do.

18 Q Does the concern amplify or increase if the officer now

19 has multiple places on the head that they are to search, not

20 just one?

21 A Yes, that’s a concern, certainly.

22

MS. CRYER: Okay. Your Honor, that’s all I have.

23

THE COURT: Any follow up?

24

THE PLAINTIFF: Yes, I do. I’ve got a couple.

25

RECROSS EXAMINATION

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81

1 BY MR. HOLT A.K.A. MR. MUHAMMAD:

2 Q You allow inmates in the Department of Correction to grow

3 a mustache, right?

4 A Yes, that’s correct, as long as it doesn’t drop below the

5 corners of the mouth, as it’s outlined in the policy.

6 Q Is it not a fact that some people grow thicker mustaches

7 than others?

8 A Probably so, yes.

9 Q Could you not hide that SIM card right there in a mustache

10 just as easily as you could a beard?

11 A It’s possible, sure.

12 Q So, and then, let me ask you about this here, the -- about

13 officers reaching in the beard of being exposed to sharp

14 objects or things of that nature, you’re worried about

15 security issues regarding that, correct?

16 A I’m worried about the safety of the staff as well as the

17 inmate population.

18 Q But an inmate -- an inmate in population could actually --

19 would be -- could actually conceal weapons on their person, be

20 more of a threat than somebody having something in their

21 beard, wouldn’t you say?

22 A No.

23 Q Be more likely to conceal on their person instead of their

24 facial hair, right?

25 A Not necessarily, no.

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82

1 Q You don’t believe that?

2 A No.

3 Q So other institutions that do this, that these officers

4 are doing this at other institutions, especially the one in

5 California, these officers are actually doing that, what do

6 you say to that?

7 A I’d say I’ve never been impressed with the California

8 system.

9 Q But if they’re able to do it, then you -- the Department

10 of Correction could do it just as easily, right?

11 A No, I wouldn’t agree with that. You know, again, from the

12 standpoint -- and I want to make sure that I key in on this --

13 is that you’re talking about the safety and the security of

14 the institution, and what our primary mission is, and what

15 we’re trying to prevent from coming into our institutions, and

16 that’s weapons, that’s guns, that’s meth, that’s crack, and it

17 goes on and on.

18 Q But a lot of that stuff is brought in via your officers,

19 aren’t they, sir?

20 A And so much of that is also brought in by inmate visitors.

21 Q That’s correct, too, I would agree with you on that. But

22 there’s many different ways for it to come in, other than just

23 put it in the facial hair?

24 A Yes, we’ve addressed that question already.

25 Q And the -- really, the issue about the facial hair is not

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83

1 really about security, is it?

2 A Certainly, it’s about security.

3 Q So would you have your -- the officers at these

4 institutions that are -- that are harassing inmates going down

5 the hallway for some stubble on their face, the stubble does

6 not represent a security threat, does it, sir?

7 A I don’t know about your allegation of harassment.

8

THE PLAINTIFF: Okay. That’s all I have.

9

THE COURT: Anything further?

10

MS. CRYER: No, Your Honor.

11

THE COURT: You may stand down, sir. Thank you.

12

THE WITNESS: Thank you.

13

(Witness stands down.)

14

THE COURT: Do you have anything further, Ms. Cryer?

15

MS. CRYER: Your Honor, I don’t believe so. I have

16 several witnesses that would be here that could testify with

17 regard to the Islamic religion and what is required and not

18 required, and I really don’t think that that is a central

19 focus of the hearing today. And I do have Deputy Warden

20 Weekly that is here. She is in security, although she was

21 really brought here just with regard to a disciplinary that

22 inmate Holt was issued and was complaining about or had raised

23 in one of his motions. But because he really hasn’t gone into

24 that today, I don’t think there’s really any need to put her

25 on the stand. And I think her security concerns would just

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1 overlap what Mr. Lay and Mr. Harris’s concerns have been.

2

So, a long way to say, no, sir, I don’t believe I

3 have any other witnesses.

4

THE COURT: All right. Thank you, ma’am.

5

Do you have anything further, Mr. Muhammad, that you

6 wanted to present?

7

THE PLAINTIFF: No, sir.

8

THE COURT: What I’d like to do is I’d like to take a

9 brief recess and put my thoughts together. And, you know,

10 I’ll have a written ruling, but I’d like to make a preliminary

11 finding, just that’s how I try to do my business, I try to let

12 people know when they walk out of the courtroom kind of what

13 I’m thinking, so later I don’t issue a written ruling and pull

14 the rug out from under you.

15

Ms. Cryer?

16

MS. CRYER: I was just going to ask for permission,

17 Your Honor, to make a brief closing argument, if I may?

18

THE COURT: You may. You may. And so may you, Mr.

19 Muhammad.

20

MS. CRYER: Do you want to let Mr. --

21

THE COURT: Well, you know, it’s kind of your burden,

22 Ms. Cryer, I think, so if you want to go first. Well, there

23 again, yeah, it makes no difference, but I’ll let you all

24 speak, and if at the end of each turn if there is something

25 burning on your mind, I’ll let you have a rebuttal. How about

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1 that?

2

MS. CRYER: Okay. Thank you, Your Honor. I will be

3 brief.

4

Your Honor, the current grooming policy of the

5 Arkansas Department of Correction is Administrative Directive

6 98-04. It is the same policy that was valid and in place in

7 the Michael Fegans case that was decided by Judge Moody back

8 in 2006 and affirmed by the Eighth Circuit in 2008. There is

9 not anything that has changed since the findings in Fegans.

10 The grooming policy has not been found to be unconstitutional.

11 If I’m not mistaken, I don’t even believe that Mr. Holt is

12 arguing that the policy itself is unconstitutional. He just

13 says that there should be an exception made to him because he

14 wants to be able to grow a half inch beard.

15

I find that Mr. Holt or Mr. Muhammad’s testimony is

16 in a way contradictory in and of itself. In his pleading, he

17 indicates that it is his religious belief that he not be

18 required to trim his beard at all. And yet based upon a 2004

19 Ninth Circuit decision, Mr. Holt therefore says, well, I’m

20 willing then to consider it and to compromise.

21

Well, if his position is that he shouldn’t have to

22 cut it, then that should be his position, he doesn’t have to

23 cut it. What he’s doing is saying that I’m agreeing to cut it

24 half an inch, that the -- that the entity that he prays to

25 will see that he has tried to follow the laws, has done the

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1 best that he can, and even if he was being restricted from

2 doing so, it’s still going to be okay.

3

The defendants’ position would be that the same

4 applies for even if he is required to comply with the

5 Department of Correction’s grooming policy and to completely

6 shave his beard.

7

And the law that he cites to is a 2004 decision. The

8 counsel for inmate Fegans in 2006 argued Ninth Circuit, as

9 well. And while their religious beliefs were different,

10 Michael Fegans was a follower of the House of Yahweh, Mr. Holt

11 is a follower of the Islamic faith, essentially, Your Honor,

12 not to compare the two religions, but essentially it’s the

13 same argument, take the religious nature out of the name of

14 what you’re going to call the religion and it’s the same

15 religion, it’s the same argument. Nothing has happened

16 between the 2006 decision in Fegans continuing forward to 2012

17 today.

18

The testimony that was offered by both Mr. Lay and

19 Mr. Harris was that the carrying of contraband and the issue

20 and concerns of contraband has increased from 2006 forward

21 through today. So it’s not a matter of the department is not

22 concerned or no longer concerned about -- about the security

23 and the contraband, they simply see the -- making the

24 allowance for a half inch beard is yet one more avenue in

25 which an inmate, whether it’s Mr. Holt or whether any other

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1 inmate in the Department of Correction, could possibly carry

2 in contraband.

3

They seemed -- or they -- it appears that Mr. Holt

4 has offered to say or is implying that he won’t try to hide

5 contraband in his beard. And unfortunately, an inmate making

6 that statement, who is serving a life sentence, who really

7 doesn’t -- plus 40 years, who really doesn’t have anything to

8 lose, Your Honor, just isn’t good enough. If the

9 administration could take the word of every inmate, again, no

10 particular disrespect to Mr. Holt, but that just can’t happen.

11 And the question becomes where do you stop? There has been an

12 increase in the introduction of various other forms of

13 contraband, and clearly, the department’s concern is valid

14 based upon those security reasons.

15

The testimony, Your Honor, has also been that inmate

16 Holt has a number of other options and avenues and ways of

17 exercising his religious beliefs. He’s able to pray. He’s

18 able to possess a Koran. He’s able to get a spiritual

19 advisor. He’s able to have a religious diet. He’s able to

20 acknowledge all of the religious holidays that he wants to.

21 He’s able to have a prayer rug. He could do all of these

22 different things in practice of his religion. But to say that

23 by not being allowed to have a half inch beard or else he

24 can’t -- he can’t practice his religion, falls flat on the

25 other arguments that he’s made, Your Honor.

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1

And I would respectfully say that the grooming policy

2 has not been found unconstitutional. The Fegans case has not

3 been overturned. We follow Eighth Circuit law. We are in the

4 Eighth Circuit.

5

While Mr. Holt may try to bring in Ninth Circuit case

6 law, essentially, Your Honor, been there, done that, nothing

7 has changed. And, if anything, the evidence presented shows

8 that there is more security concern in 2012 than there was in

9 2006. So we respectfully ask that the order that is currently

10 in place with regard to the temporary restraining order be

11 removed or lifted and that Mr. Holt be required to comply with

12 the grooming policy.

13

Thank you.

14

THE COURT: Thank you, ma’am.

15

Mr. Muhammad?

16

THE PLAINTIFF: The issue here is about whether or

17 not the Department of Correction’s policy is the least

18 restrictive means of allowing me to practice my religious

19 beliefs.

20

While the Ninth Circuit -- while the defendants here

21 may knock the idea of bringing in Ninth Circuit law, it’s

22 still considered persuasive law in this case. The facts are

23 the same. The policies are the same. The institutions there

24 instituted these changes. Whether they’ve had problems or

25 not, the defendants haven’t been able to say one way or the

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1 other.

2

We’ve heard that you can get contraband in the

3 facility in any number of ways. In fact, they stated that

4 from 2006 to 2012, that the increase in contra -- they feel

5 contraband has increased. Well, I would submit to Your Honor

6 during 2006 to 2012, you were required to shave your beards.

7 So that -- that would -- that falls.

8

And then the fact that if -- if they’re worrying

9 about the grooming policy causing the flow of contraband into

10 the prison, then what -- what has been the issue for the past

11 six years when there was a grooming policy that said you had

12 to shave your beards?

13

In the Mayweathers case, and in others in the Ninth

14 Circuit, as well as in New York, the same argument was made

15 that the defendants have made here today. In each of those

16 cases, the courts have ruled that that’s not enough, that

17 having a concern about a beard altering identity, hiding

18 weapons, things of that nature, the courts have rejected it.

19 It’s even been appealed to the U.S. Supreme Court. The U.S.

20 Supreme Court rejected review. And I believe that you, Your

21 Honor, should take that seriously into consideration. And

22 it’s a recent case. It might be seven -- six, seven years

23 old, but it’s still a persuasive law case.

24

On top of everything else, again, I reiterate Michael

25 Fegans argued unrestricted hair growth, unrestricted beard

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1 growth. I am not arguing that -- that having unrestricted

2 hair, unrestricted beard does not present a security threat,

3 because it does. What I am arguing is, is that a half inch

4 beard -- we can get all day into about SIM cards being hid,

5 but we heard -- we heard Mr. Harris say that you could hide

6 one in a mustache. And there is people walking around there

7 you see with thick mustaches that you could hide stuff in.

8

The bottom line is that should you allow this

9 injunction to continue it would not affect the other inmates

10 in the Department of Correction. It only affects me at this

11 point, just like it has been. It’s been established that even

12 if other inmates were allowed to grow beards, they couldn’t

13 state with a degree of certainty whether or not that people

14 would grow beards or not. Some people can’t grow beards. I’m

15 sure you’re aware of this. Some people physically can’t grow

16 beards. Some don’t want to because of -- because it itches

17 their face and things of this nature. So they’re not going to

18 have to worry about 15 to 16 thousand inmates walking around

19 with beards on their faces.

20

The issue here is whether this is a least restrictive

21 means to practice my religion.

22

Regardless of whether I have a Koran, regardless of

23 whether I have Sujud, the prayer rug, whether I have access to

24 religious advisers, which is very rare at Cummins Unit, it

25 still doesn’t answer the question of whether or not imposing

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1 the punitive sanctions on somebody at the risk of forcing

2 somebody.

3

In the Warsoldier v. Woodford case, the court there

4 rules that these type of restrictions, these type of punitive

5 sanctions cause somebody to have to -- to choose between

6 following what the state says they should do and following

7 what the dictation of their religions say they should do and

8 having to decide what they’re going to do in that situation.

9

In fact, it was even argued in the Mayweathers case

10 that it’s either a issue of following Allah and the Sunnah or

11 following what the state says. And the Ninth Circuit found,

12 and so did the U.S. Supreme Court when they denied review,

13 they found that -- that this issue here, that having all of

14 that was still was burdensome, that having -- that forcing

15 Muslims to shave their beards or whatever is -- was burdensome

16 on the practice of their religion. And the state has not --

17 the state has not -- has not held with that, has not answered

18 it.

19

Whether or not people bring -- bringing in weapons,

20 contraband, or whatever, they’re going to do that. They’re

21 going to do that. And I submit to you that a half inch beard

22 is not going to cause any significant increase in the flow of

23 weapons, or what have you, into the facility. It’s been

24 established that corrections officers bring it in, it’s

25 brought in through visitation. And at this point in time, at

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1 visitation, you have to shave. So they’re not transporting it

2 in a beard to get it out of the visitation room, they’re

3 transporting it in there clothes or secreting it on their

4 person in a body cavity somewhere. So I believe that argument

5 shouldn’t hold water either, because if you’re going to hide a

6 weapon on you, the facial hair, if it’s long, maybe, but

7 again, a half inch beard, I mean, come on, Your Honor, I mean,

8 it’s -- it’s preposterous, you know, to say that you have to

9 -- you have to cut this, but this up here, well, we don’t

10 really have a policy about that, about the length of it, it

11 just has to be loose and neatly combed. You understand what

12 I’m saying?

13

So I’m asking you take all this into consideration

14 and look at it for what it really is, for what this policy

15 really is about. And I would ask you to continue the

16 injunction as it applies to me, as it applies to me at this

17 point, allow me to continue to grow a half inch beard. And

18 whether I’m an inmate or not, I’m still a man, I’m still a

19 Muslim, and these people have not shown that I’ve been

20 deceptive in any way, and when I give my word as a Muslim, I

21 fear Allah that much to tell you that I’m not going to do

22 stuff like this. I may have a life sentence, but I do have

23 something to lose. I do have something to lose because all of

24 my appeals, Your Honor, haven’t run out yet. I could still

25 face freedom. You understand what I’m saying? And I’m not

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 93 of 111

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1 trying to jeopardize that with some -- with some foolishness

2 such as this. I’m doing this for my religious beliefs.

3

And the fact is nobody disputes that they’re sincere.

4 That’s something else you must weigh, the sincerity of that

5 belief. And I’ve given you -- I’ve given you Sunnah, I’ve

6 given you Hadith, there is no question that a Muslim is to

7 trim the mustaches short and leave the beard as it is.

8

Now, Ms. Cryer over here made reference to the fact,

9 well, I said that I would -- that I believe that the beard

10 should remain uncut. As I pointed out to you once before when

11 I was on the stand, the Hadith says that if you intend to do a

12 good deed and you don’t do it, it’s still credit to you as a

13 good deed. The fact of the matter is, is that I have made an

14 effort to comply with certain tenets of the religion as it

15 relates to the beard, and to do so, and to do that, I’ve been

16 willing to compromise. I’ve been willing to compromise as far

17 as the length goes. You understand what I’m saying? But I’m

18 still following the Sunnah of the Prophet Muhammad, sallallahu

19 alayhi wa sallam, and it stands uncontroverted because the

20 defendants have not chosen to answer it.

21

And I ask that you allow the injunction to remain in

22 place.

23

THE COURT: Thank you, sir.

24

Rebuttal?

25

MS. CRYER: I do, Your Honor. I’m going to start

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 94 of 111

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1 with the last one. Inmate Holt says that he has stated for

2 us, and that it is cited throughout his religion, that if you

3 intend to do a good deed, but that you’re not able to, that

4 it’s okay. That’s exactly the argument that we have made

5 today, Your Honor.

6

Mr. Holt says that he intends to do the good deed by

7 trying to let his beard grow. The Department of Correction

8 says no, he should not be allowed to do it. According to his

9 own reasoning that he just got finished explaining to this

10 Court, that should be okay, according to his religion and

11 according to everything that he’s stated today, according to

12 him, that should be okay.

13

Mr. Holt said that the growing the half inch beard

14 only applies to him and if the Court is allow -- to allow the

15 temporary restraining order to continue with the order, that

16 it would only apply to him. I refer the Court to docket entry

17 number 44, which was filed on November 17th, 2011 by inmate

18 Holt, in which it is his second motion for leave to amend, in

19 which he is seeking to add a number of other inmates into --

20 into the case. So, clearly, he’s not seeking for this order

21 or for anything in this case to simply involve just him.

22

He makes reference, Your Honor, and argues the

23 Mayweathers case out of the Ninth Circuit. Your Honor, in

24 looking at page six of 11 of that case, it states that:

25

“Defendants assert that the

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95

1

grooming regulations are necessary

2

to identify inmates for the

3

purpose of preventing escapes and

4

controlling movement within the

5

prison. Defendants also submit

6

that the beard of any length

7

changes the appearance of a

8

prisoner and compromises the

9

process of identifying inmates or

10

escapes and that officers need to

11

quickly identify inmates to

12

prevent assaults, riots, or

13

disturbances.”

14

I don’t believe, Your Honor, that the Mayweathers

15 case addressed anything with regard to contraband and the

16 possible carrying and continuing on of contraband being passed

17 from one inmate to another, from it being passed down the

18 hall, as well as the security concerns, even the health

19 concerns with regard to the officers who may have to check it.

20 There is absolutely no dispute that unfortunately contraband

21 does exist within any prison setting.

22

I do think that it’s reasonable for the defendants to

23 at some point have to say -- or for the department to say at

24 some point we have to stop here, we have to limit what can be

25 done. Inmate Holt wants a half inch beard. What’s next?

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 96 of 111

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1 Another inmate comes in and says I need a one inch beard.

2 Another one comes in and says that I need a half and a -- a

3 one and a half inch beard.

4

And, Your Honor, I know that inmate Holt has made

5 reference to a violation of the policy and that he could catch

6 a disciplinary for not complying with the policy. That’s

7 correct, Your Honor, he can, but that’s also true for any rule

8 violation within the Department of Correction. It is not

9 simply restricted to the grooming policy.

10

And lastly, inmate Holt made reference, too, that he

11 is not deceptive, that he has not tried to deceive anyone.

12 Well, Your Honor, he may not as of this point -- in his one

13 and a half years within the department, he may not have tried

14 to or have deceived anyone that we’re aware of. However, Mr.

15 Holt’s own behavior with regard to just recently the behavior

16 that he exhibited towards the inmate barber who cut the hair,

17 according to him, too short, which inmate Holt said that they

18 were then at war, and yet he said that can be interpreted in

19 many different ways, I’m not sure how else to determine or

20 decipher the phrase “at war.” So while he may not be

21 deceptive, he clearly is showing tendencies, for a better

22 phrase, not being able to get along with others. That does

23 create security concerns throughout the department and it will

24 continue to create security concerns throughout his

25 incarceration with the Department of Correction.

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1

THE COURT: Response, Mr. Muhammad?

2

THE PLAINTIFF: Again, I refer back to the decision

3 in Mayweathers that the defendants just finished referring to.

4 They may not have -- we don’t exactly know all the reasons the

5 California Department of Correction had for having the

6 grooming policy. The main one here that was addressed was

7 about altering your appearance in the event of an escape.

8

And if you look at page six of that particular

9 decision, under the compelling interest, least restrictive --

10 least restrictive means, the district court in that case, and

11 they cited some other cases that dealt with it out of

12 different circuits, the Second Circuit, District of Arizona,

13 and things of that nature, they were arguing in this case, and

14 in fact the defendants have argued here today about altering

15 appearances. They have gotten up here and said that, that

16 they were concerned about this type of thing. So I go back to

17 this, and which if I may, Your Honor, read -- read here what

18 was said in this -- in this order handed down by the Ninth

19 Circuit, and it says that:

20

“Defendants’ rationale that an

21

inmate with a beard can more

22

easily alter his appearance after

23

he escapes is not persuasive.

24

Common sense and experience

25

recognizes that a prisoner may not

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 98 of 111

1 2 3 4 5 6 7 8 9 10 11
12 said:
13 14 15 16 17
18 well:
19 20 21 22 23 24 25

98 only shave, but alter his appearance in any number of ways to evade authorities after escape. Moreover, while it is plausible that altering a six inch beard or cutting very long hair may assist an escapee to elude capture, I must agree with Judge Strand that shaving a half inch beard likely cannot.” And then it cites Luckette v. Lewis, and which it
“Prison officials do not meet their burden of demonstrating a compelling interest for not allowing a short, kempt beard.” In Fromer v. Scully, they also cite this case, as
“It is certainly not irrational to believe that a full beard, which may well extend for significant lengths sideways from the cheeks as well as downwards from the chin, may impede identification more than a one inch beard.”

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 99 of 111

99

1

And as Magistrate Judge Moulds concluded:

2

“When it comes to changing ones

3

appearance through the growth or

4

removal of hair, this court finds

5

that not all beards are equal.”

6

You understand what I’m saying? And this here, he

7 specifically addresses some of their concerns that they got up

8 on that stand and told you today, altering appearances. It’s

9 -- I don’t want to be in any way disrespectful to these men,

10 but at times it sounds like they’re changing horses in

11 midstream because, at first, their first argument was,

12 throughout the Administrative Remedy process, that hiding

13 weapons or contraband in the facial hair is the reason -- the

14 reason that inmates are not allowed to grow their beards in

15 the Department of Correction. Now we’re hearing stuff about

16 altering appearances. Now we’re hearing --

17

THE COURT: Well, Mr. Muhammad, I didn’t perceive

18 that. I perceived that to be a two pronged approach on what

19 they said it was. It was both of those reasons, which, I

20 mean, it frankly is a problem for you, Mr. Muhammad, because

21 that’s what the Fegans court analyzed. I mean, I understand

22 the Ninth Circuit rejects the alteration of appearance point,

23 but, you know, Fegans partially hangs its hat on that issue.

24 So, I mean, I don’t -- I’ve got to study up on it a little bit

25 more here in a minute, but it seems to me that Fegans says

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 100 of 111

100

1 it’s -- it’s the risk of contraband and it’s the risk of being

2 able to alter your appearance should you escape. I mean, like

3 I say, I understand that’s what the California court in the

4 Ninth Circuit have held, but, you know, that’s in

5 contradiction to what the Eighth Circuit has held. The Eighth

6 Circuit is more persuasive in this court.

7

THE PLAINTIFF: I understand that. What I’m saying

8 is this, when it’s all said and done, the fact that requiring

9 people to cut their beards is not going to dramatically alter

10 the flow of contraband into the prison. It’s not going to.

11 They even said the past six years it’s been coming in an

12 increase in it. Having a beard is not going to cause that

13 increase any more than what it already is.

14

And you heard testimony that a quarter inch beard can

15 be grown the same way, it can be some on one -- one, on one

16 person, and different on another. The same for a half inch

17 beard. If one can be, they both can be.

18

You heard testimony that a thick mustache could hide

19 some contraband in it, but they’re not required to shave the

20 mustache off. What I’m saying is, if -- if we’re going -- for

21 consistency’s sake here, I mean, let’s look at it for -- for

22 what it is.

23

THE COURT: This is supposed to be rebuttal, I want

24 you to stick to -- if you’ve got anything else, you’ve made an

25 argument already and you’re kind of going back to making

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 101 of 111

101

1 another argument. It’s --

2

THE PLAINTIFF: I understand, Your Honor.

3

THE COURT: Okay. I hear your points, Mr. Muhammad,

4 and they’re good ones. And so I’ve got to go and get my

5 thoughts together and let you know where I’m coming from.

6

THE PLAINTIFF: There is one other argument I want to

7 address that Ms. Cryer made. She made the comment regarding

8 the fact that about the -- the injunction applying just to me

9 at this point. First off, the Court hasn’t ruled on class

10 certification. It had --

11

THE COURT: Let me speak to that right now, Mr.

12 Muhammad, because it seems to me that these are individual --

13 and again, that was a mistake I made, was, you know, these are

14 individual cases, and I think the court in Fegans requires me

15 to individually look at the cases. I mean, the testimony may

16 be exactly the same, but it may not be. And so, my reading of

17 Fegans and my preparation for coming out here today leads me

18 to conclude that, you know, it would be improper to let

19 defendants [sic] add on to your case. Your case is a

20 particular case and I think the analysis has to be on each

21 particular claim. So I think that those defendants [sic] are

22 going to have to file their own cases. And I understand that,

23 you know, some of them may be similarly situated, some of them

24 may not be. I think that was the argument in response, was

25 that they may not be. But I think that they’re going to have

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 102 of 111

102

1 to file them independently.

2

Yes, ma’am?

3

MS. CRYER: You just said defendants. I wanted to

4 make sure --

5

THE COURT: I’m sorry. Plaintiffs.

6

MS. CRYER: -- we’re talking about --

7

THE COURT: I’m sorry. Yes, ma’am.

8

MS. CRYER: I just wanted to make sure. Thank you.

9

THE COURT: Plaintiffs.

10

MS. CRYER: Thank you.

11

THE COURT: So I’m pretty sure I’m going to have to

12 deny your request for these additional defendants [sic] to

13 come in, because I think they’re going to have to plead their

14 own cases and we’re going to have to look at them

15 individually, because that’s -- that’s how I read Fegans, and

16 the law, you know, the RLUIPA is a case by case analysis, and

17 it’s -- again, it kicks the burden back to the defense to say

18 here are our legitimate penological aims here, and then, you

19 know, again, as you point out, is that the least restrictive

20 means to the ends that they’re trying to achieve.

21

THE PLAINTIFF: I would say then that the only -- the

22 major difference between myself and Fegans is, again, I’m not

23 arguing an unrestricted hair growth, unrestricted beard

24 growth. I can understand where the state would have a

25 security concern with that. I agree with that.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 103 of 111

103

1

We’re talking about a half inch beard. And that’s --

2 that’s what I --

3

THE COURT: And I hear your point loud and clear and

4 it’s a good one.

5

THE PLAINTIFF: Thank you, sir.

6

THE COURT: All right. Well, if you all will give me

7 just a few minutes and I will come back with just some

8 preliminary findings. And then, obviously, you know, the way

9 it works is whatever ruling I make, it goes to Judge Miller

10 for his adoption or rejection, and then you all would have a

11 chance to, you know, respond to my ruling, and then he

12 ultimately gets the say so, and then you would have a right to

13 appeal his ruling.

14

Yes, sir?

15

THE PLAINTIFF: Can I ask you one question?

16

THE COURT: You may. You all be seated, please.

17 Please have a seat.

18

THE PLAINTIFF: Depending on how you rule, if this is

19 -- if this is a recommendation to send to Judge Miller,

20 correct, what would be the binding ramifications of it at this

21 -- at this point in time, if it’s up to Judge Miller to accept

22 or reject, and he would have the ultimate say, what would be

23 the binding, at this point in time, between now and when he

24 makes a ruling on it, where would that stand? That’s all I’m

25 asking.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 104 of 111

104

1

THE COURT: Well, I’ll address that, Mr. Muhammad.

2 I’ll address that. All right?

3

THE PLAINTIFF: Okay. Okay.

4

THE COURT: All right. You all rest easy, please,

5 I’ll be back in a few minutes.

6

(Recess.)

7

AFTER RECESS

8

THE COURT: All right. We’re back on the record.

9

And Mr. Muhammad, Ms. Cryer, you know I did a lot of

10 research before coming out here because I think this is a

11 pretty -- pretty close call in this case and I think the case

12 law right now as it stands is, you know, somewhat in a state

13 of flux with specific regard to beards, with what happened in

14 the Ninth Circuit and then this Eighth Circuit case with the

15 dissent from Judge Melloy makes it pretty interesting.

16

But for today, I’m to consider four factors. One,

17 the threat of irreparable harm to you, Mr. Muhammad, if I

18 don’t grant your request for an injunction. The state of

19 balance between the harm and the injury that granting

20 injunction will inflict on the other party litigants. The

21 probability that you will succeed on your merits. And the

22 public interest. So those are the four factors for the

23 immediate issue.

24

You know, Mr. Muhammad, I don’t think it would be

25 irreparable harm to you if you were forced to comply with the

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 105 of 111

105

1 grooming procedure until you were ultimately to win, if you’re

2 able to do so, so I think that probably favors the defense.

3 Although I do understand -- you know, your religious

4 principles are not lost on me, and the issues that you’ve

5 raised; however, as you stated yourself, and you admit that,

6 you know, the fact that you’re willing to try to do right by

7 your religious principles, you still get credit for that. And

8 certainly, you have done a lot. You’ve been very effective in

9 this case. And today, you know, your arguments are right on

10 point and, you know, you have -- you have done great things in

11 order to achieve your ends on being able to grow your facial

12 hair. So you should, obviously, get big credit for that in

13 your religion, because you have done a good job.

14

In the state of harm and the injury in granting what,

15 in granting it -- what granting injunction could inflict on

16 the other party litigants, and then I think that also goes

17 with the probability of succeeding on the merits, and that’s

18 where I really think the -- the issue lies, or the most

19 important part of this case is, are those two factors. And it

20 ultimately has to do with the concepts of safety, security,

21 good order and discipline. The fact that I am obligated to,

22 by Supreme Court law, and the other precedent out there, to

23 give deference to prison officials in running prisons, and the

24 fact that the Fegans case is from the Eighth Circuit and is

25 very, very closely on point, and you’ve done a good job, Mr.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 106 of 111
106 1 Muhammad, of distinguishing the fact that you want the half 2 inch, that Fegans was arguing for a more -- more freedom in 3 growing his beard, but the principles are still the same. The 4 principles are, as I said, deference to the prison officials 5 if they’re able to state legitimate penological needs. And I 6 think they have done so. And I think they’ve done so, and I 7 think that when you look at Fegans with the facts in this 8 case, and ultimately, the analysis that the Eighth Circuit, 9 the majority, used in order to come to the conclusion that 10 they did, it’s really -- I’m really constricted by that -- by 11 that holding. Okay. Mr. Muhammad, and the holding is that 12 they’re able to come in, they’re able to articulate reasonable 13 security issues. You know, albeit looking at you and your 14 beard, and as your Ninth Circuit case says that not all beards 15 are alike, or maybe that was a district court case, you know, 16 I look at your particular circumstance and I say, you know, 17 it’s almost preposterous to think that you could hide 18 contraband in your beard, but there’s a bigger picture here, 19 and I think that the law is that they get deference, and if 20 they’re able to articulate that there is a concern, and even 21 the Fegans case says it doesn’t have to be that the concern 22 has actually materialized. Okay? It’s a -- it’s a concern 23 based on their experience and their knowledge, which is pretty 24 particular, and in this case here we’ve got more than 60 years 25 of prison experience, starting from the ground, all the way to

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 107 of 111

107

1 the top.

2

And so, I do give -- I do give credit to their

3 testimony. I was impressed by Mr. Harris with the SIM card

4 and I do -- I’m very aware of the issue of cell phones and the

5 fact that the SIM card is a very important piece of the puzzle

6 when talking about smuggling in cell phones and SIM cards into

7 prison. And it’s a very -- a very well made point that I

8 think I have to consider strongly in their favor.

9

The good order and discipline. You know, again, I’m

10 not in the prison administration business. They’ve

11 articulated legitimate reasons to state that it is actually

12 necessary to have this grooming policy.

13

And also, Mr. Muhammad, you know, you bring up the

14 point, and it’s a good one, that is it the least restrictive

15 means. And Fegans squarely addresses the -- it’s the exact

16 same testimony, it’s the exact same analysis, and so while you

17 make a really good argument, Mr. Muhammad, I -- I am very much

18 constrained by the holding in Fegans. I think that I would

19 be, you know, not doing my job if I didn’t apply Fegans as

20 persuasive authority that tells me exactly what I have to do

21 in this case. And I could look to the Ninth Circuit case

22 because, you know, the Ninth Circuit case goes your way, and

23 it comes up with a very different conclusion, but that’s not

24 my job; my job is I’ve got to hold with the Eighth Circuit.

25 And until they say otherwise, I’m constricted by that holding.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 108 of 111

108

1 All right.

2

And again, I mean, not that I -- I’m not trying to

3 say here that I am in disagreement with the holding in Fegans,

4 because I do believe, again, as I came out here straight out

5 and said that, you know, I find myself in a very difficult

6 position in a case like this because, you know, it is not my

7 expertise and I am not in a good -- I’m not a good person to

8 be asked to get involved in prison administration, and so I do

9 agree that the defense here has brought up legitimate points,

10 they are well taken.

11

And let me also say that one of the other points on

12 Fegans was the -- the being able to alter your appearance

13 should you escape. And that’s why I asked you, Mr. Muhammad,

14 I felt like what they said was that it’s not just the one

15 point, the smuggling contraband, it’s both points. And I

16 think that is an important point. While the court in

17 California rejected that, I disagree with that. I think that

18 that is a very legitimate concern and it’s been well

19 articulated by the defense.

20

And so, I’m going to find that based on those two

21 factors in Fegans that the likelihood that you could win this

22 case on its merits, given that precedent, it’s unlikely, and,

23 therefore, I should deny your motion for injunctive relief at

24 this time.

25

Now, you asked a point, Mr. Muhammad, and I want to

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 109 of 111

109

1 address it, you know, where does that -- basically, where does

2 that leave you today? What I will order is that nothing

3 change from what’s already occurred. What I will do is I

4 will, as quickly as possible, enter a written order saying

5 what I’ve just said. And it will go up to Judge Miller. You

6 will have an opportunity, Mr. Muhammad, to object to anything

7 I say in writing. And we’ll give you instructions -- you know

8 how it works. And, Ms. Cryer, you can also object or

9 supplement or whatever you want to do. And then Judge Miller

10 will have the ultimate say so in how he wants to proceed,

11 because ultimately he has this case, and as it proceeds, you

12 know, and he may reject my conclusions and you may be in good

13 business -- in good stead with your injunction for the future.

14 But those are my findings, Mr. Muhammad, and I will enter a

15 written order saying so. All right.

16

Yes, sir?

17

THE PLAINTIFF: There’s one thing I wanted to

18 address. As part of that injunction, it stated that in my

19 petition -- because this is something that’s become a real

20 issue with me there at the penitentiary, at Cummins Unit, that

21 -- that the defendants be banned or barred from transferring

22 me to another institution in retaliation for this litigation.

23 It’s a common tactic ADC uses to disrupt litigation. You

24 understand what I’m saying? And I’m asking that that be

25 entered -- that that be -- that that part still be specified

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 110 of 111

110

1 in the order, because that was part of Judge Miller’s --

2

THE COURT: I’m going to just say whatever Judge

3 Miller has ordered remains in effect and will remain in effect

4 because he has the ultimate say so, so I don’t know what’s in

5 that order. But, Ms. Cryer, do you want to speak to that? I

6 mean --

7

MS. CRYER: Your Honor, I was just going to say, I

8 mean, we will -- we will comply with whatever the order says.

9 My understanding is the order refers to the department, not

10 just to the Cummins Unit. I don’t think there’s -- I’m not

11 aware of any talk or anything about transferring Mr. Holt to

12 another institution. I don’t see how that helps us to do

13 that. The case doesn’t go away if he’s transferred and

14 currently there is a pending -- there’s an order still in

15 effect, so. And I -- yeah.

16

THE COURT: Yeah. Like I said, whatever Judge Miller

17 previously ordered remains in effect. I’ll enter my order,

18 like I said, as quickly as possible to get this thing resolved

19 for some finality, at least for now. All right. Any other

20 points, Mr. Muhammad?

21

THE PLAINTIFF: No, sir.

22

THE COURT: All right. Ms. Cryer, anything?

23

MS. CRYER: No, Your Honor.

24

THE COURT: All right. Well, we’ll be adjourned.

25 Thank you all.

Case 5:11-cv-00164-BSM Document 142 Filed 11/25/13 Page 111 of 111

111

1

THE PLAINTIFF: Thank you.

2

MS. CRYER: Thank you.

3

(Adjournment at 12:46 p.m.)

4

ELECTRONIC SOUND RECORDING CERTIFICATION:

5 I, court approved transcriber, certify that the foregoing is a

6 correct transcript from the official electronic sound

7 recording of the proceedings in the above-entitled matter.

8

9 /s/Robin Warbritton Signature of Approved Transcriber
10
Robin Warbritton 11 Typed or Printed Name

November 25, 2013 Date

12

13

14

15

16

17

18

19

20

21

22

23

24

25

 
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Appellate Case: 12-3185 Page: 2 Date Filed: 10/25/2012 Entry ID: 3968879

12-3185 Gregory Holt v. Ray Hobbs, et al
Eighth Circuit Court of Appeals PRO SE Notice of Docket Activity The following was filed on 10/25/2012 Case Name: Gregory Holt v. Ray Hobbs, et al Case Number: 12-3185 Docket Text: BRIEF FILED - APPELLANT BRIEF filed by Mr. Gregory Houston Holt; w/service by USCA8 on 10/29/2012, Length: 18 pages. Brief of Ray Hobbs, Gaylon Lay, Larry May, M. Richardson, V. R. Robertson and D W Tate due on 11/26/2012 [3968879] [12-3185] The following document(s) are associated with this transaction: Document Description: Brief filed Document Description: Cover Letter/Request file-stamped copy Notice will be mailed to: Mr. Gregory Houston Holt VARNER CORRECTIONAL FACILITY 129616 P.O. Box 600 Grady, AR 71644-0600 Notice will be electronically mailed to: Ms. Christine Ann Cryer: christine.cryer@arkansasag.gov, danielle.williams@arkansasag.gov
Appellate Case: 12-3185 Page: 1 Date Filed: 10/25/2012 Entry ID: 3968879

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

GREGORY HOLT, ADC # 129616

v.

12-3185

RAY HOBBS, et al.

APPELLANT APPELLEES

___________________________________
AN APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION
HONORABLE BRIAN S. MILLER UNITED STATES DISTRICT JUDGE ___________________________________
BRIEF OF APPELLEES AND ADDENDUM ___________________________________

Respectfully Submitted,
DUSTIN McDANIEL Attorney General
CHRISTINE A. CRYER Assistant Attorney General Arkansas Bar No. 2001082 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 683-0958 Attorneys for Appellees

SUMMARY OF THE CASE AND WAIVER OF ORAL ARGUMENT Appellant Gregory Holt alleges certain Arkansas Department of Correction
(ADC) employees violated his constitutional rights when they enforced the ADC’s Grooming Policy, which does not allow inmates to maintain a beard. Holt wants to maintain a beard for alleged religious reasons and argues the district court erred in not following the practices of a California penal institution. This case was allowed to proceed to a Pre-Jury Hearing on January 4, 2012 against Appellees Ray Hobbs, Gaylon Lay, D.W. Tate, Vernon Robertson, Michael Richardson, and Larry May. Holt alleges the district court erred when it dismissed Holt’s Complaint following the Pre-Jury Hearing. The district court did not err in following well-established case law and dismissing this case. As a result, this Court should affirm the decision of the district court.
Appellees respectfully submit that this is a straightforward case, as the case law in the Eighth Circuit is well established, and assert that the Court would not be substantially aided by oral argument.
i

TABLE OF CONTENTS PAGE
STATEMENT OF THE CASE AND WAIVER OF ORAL ARGUMENT ..............i TABLE OF CONTENTS.......................................................................................... ii TABLE OF AUTHORITIES ....................................................................................iv
JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF THE ISSUES...............................................................................3 STATEMENT OF THE CASE..................................................................................4 STATEMENT OF THE FACTS ...............................................................................6
SUMMARY OF THE ARGUMENT ........................................................................8 ARGUMENT .............................................................................................................9
I. THE DISTRICT COURT PROPERLY HELD THAT THE ARKANSAS DEPARTMENT OF CORRECTIONS GROOMING POLICY, AS STATED IN ADMINISTRATIVE DIRECTIVE 98-04, DOES NOT VIOLATE THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSON ACT OF 2000, 42 U.S.C. §2000CC ET SEQ............................................................................................9
II. APPELLANT’S RETALIATION CLAIM IS NOT PROPERLY BEFORE THIS COURT ..........................................................19 CONCLUSION ........................................................................................................20 CERTIFICATE OF COMPLIANCE.......................................................................22
CERTIFICATE OF SERVICE ................................................................................23 ADDENDUM ...................................................................................................Add. 1
ii

Proposed Findings and Recommendations .................................................Add. 2 Order Adopting Proposed Findings ..........................................................Add. 17 Judgment ...................................................................................................Add. 19
iii

TABLE OF AUTHORITIES

Cases

Page

Bettis v. Delo, 14 F.3d (8th Cir. 1994)......................................................................18

Campbell v. Purkett, 957 F.2d 535 (8th Cir. 1992) ..................................................18

Cutter v. Wilkinson, 544 U.S. 709 (2005)............................................................9, 10 Dunavant v. Moore, 907 F.2d 77 (8th Cir. 1990) .....................................................18 Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .................................................11, 16 Gladson v. Iowa Dep’t of Corrs., 551 F.3d 825 (8th Cir. 2009) .....................9, 10,11 Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)...................................3, 16, 18, 19

In re Horton, 668 N.W.2d 208 (Minn. App. 2003) .............................................3, 19 Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990) ....................................................18

Mayweathers v. Terhune, 328 F.Supp. 2d 1086 (E.D. Cal. 2004)...........................18 Murphy v. Mo. Dep’t of Corrs., 372 F.3d 979 (8th Cir. 2004) ...................................9

Newingham v. Magness, 292 Fed.Appx. 523, 2008 WL 3863607 ..........................19

O’Lone v. Shabazz, 482 U.S. 342 (1987).............................................................4, 11

Overton v. Bazzetta, 539 U.S. 126 (2003) ...........................................................3, 10 Patel v. U.S. Bureau of Prisons, 515 F.3d 807 (8th Cir. 2008) ................................10

Pell v. Procunier, 417 U.S. 822 (1974) .....................................................................4 Singson v. Norris, 553 F.3d 660 (8th Cir. 2009) ........................................................9 Sours v. Long, 978 F.2d 1086 (8th Cir. 1992) ............................................................4

iv

Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988)....................................................3, 19 Turner v. Safely, 482 U.S. 78, (1987) ......................................................3, 10, 11, 12 Van Wyhe v. Reisch, 58 F.3d 639 (8th Cir. 2009).......................................................9 Statutes 42 U.S.C. § 1983....................................................................................................1, 5 42 U.S.C. §2000CC ET SEQ .......................................................................3, 5, 9, 20
v

JURISDICTIONAL STATEMENT This is an appeal from an Order and Judgment issued in the United States District Court, Eastern District of Arkansas, Pine Bluff Division, Judge Brian S. Miller presiding. The Order followed a Prejury Hearing, which was held before Magistrate Judge Joe J. Volpe on January 4, 2012. Appellant Gregory H. Holt, an inmate of the Arkansas Department of Correction (hereinafter, “ADC”), filed a civil rights action against six named individuals on June 28, 2011. (DE 2) Appellant sued these individuals in their official capacities under 42 U.S.C. § 1983. On that same date, Plaintiff filed a Motion for Preliminary Injunction and Temporary Restraining Order, seeking an Order prohibiting the ADC from forcing him to comply with their grooming policy. (DE 3) On October 18, 2011, the district court granted Appellant’s Motion for Preliminary Injunction and Temporary Restraining Order. (DE 28) Appellees were served with the Summons, Complaint, and Amended Complaint on November 7, 2011. On January 4, 2012, the parties attended a Pre-Jury Hearing before magistrate Judge Joe V. Volpe. (DE 73) On January 27, 2012, the Proposed Findings and Recommendations were issued, recommending the Order Granting the Motion for Preliminary Injunction and Temporary Restraining Order be vacated, and the Complaint dismissed with prejudice. (DE 82) Appellant filed his
1

Objections on February 8, 2012. (DE 86) The District Court entered an Order on March 23, 2012, adopting the Proposed Findings and Recommendations. (DE 93) Judgment was entered on March 23, 2012. (DE 94) Appellant filed a Motion for Re-Hearing, or in the alternative, Motion for Stay of Order Pending Appeal on March 27, 2012. (DE 96) Appellant filed his Motion for Extension of Time to file Notice of Appeal on April 17, 2012. (DE 98) The District Court granted Appellant’s Motion for Stay of Order Pending Appeal as well as the Motion for Extension of Time on April 19, 2012. (DE 99) Appellant filed his Notice of Appeal on April 27, 2012, as to the following pleadings: DE 82 - Report and Recommendations; DE 93 – Order Adopting Report and Recommendations; DE 94 – Judgment; and DE 99 – Order.
2

STATEMENT OF THE ISSUES I.
THE DISTRICT COURT PROPERLY HELD THAT THE ARKANSAS DEPARTMENT OF CORRECTIONS GROOMING POLICY, AS STATED IN ADMINISTRATIVE DIRECTIVE 98-04, DOES NOT VIOLATE THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSON ACT OF 2000, 42 U.S.C. §2000CC ET SEQ.
Turner v. Safely, 482 U.S. 78 (1987) Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996)
Overton v. Bazzetta, 539 U.S. 126 (2003) II.
APPELLANT’S RETALIATION CLAIM IS NOT PROPERLY BEFORE THIS COURT
In re Horton, 668 N.W.2d 208 (Minn. App. 2003). Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988).
3

STATEMENT OF THE CASE Appellant Gregory Holt, an inmate incarcerated in the Arkansas Department of Correction (ADC), filed a pro se Complaint on June 28, 2011, alleging his constitutional rights had been violated by six (6) employees of the ADC. Specifically, Holt alleged that the ADC grooming policy violates his constitutional rights and the Religious Land Use and Institutionalized Persons Act (PLUIPA). Also on that same date, Holt filed a Motion for Preliminary Injunction and Temporary Restraining Order. In it, Holt sought to prevent the ADC from forcing him to comply with the grooming policy, and/or to prevent the ADC from reprimanding him for his failure to comply. On October 18, 2011, the District Court granted Holt’s Motion for Preliminary Injunction and Temporary Restraining Order. On November 7, 2011, ADC employees Ray Hobbs, Gaylon Lay, D.W. Tate, Vernon Robertson, Michael Richardson were served with copies of the Summons, Complaint, and Amended Complaint. On November 15, 2011, Holt filed a Motion for Hearing. Appellees’ Answer to the Complaint was filed on November 28, 2011. On November 30, 2011, Magistrate Judge Joe J. Volpe scheduled an Evidentiary Hearing for January 4, 2012. The case proceeded to an Evidentiary Hearing on January 4, 2012 before Magistrate Judge Volpe. On January 27, 2012,
4

Judge Volpe recommended the Order granting Holt’s Motion for Preliminary Injunction and Temporary Restraining Order be vacated, Holt’s Motion for Preliminary Injunction and Temporary Restraining Order be denied, and that Holt’s Complaint be dismissed in its entirety and the dismissal count as a “strike” for purposes of the Prison Litigation Reform Act. Holt filed his Objections to the proposed findings on February 8, 2012. District Court Judge Brian S. Miller adopted Magistrate Judge Volpe’s proposed findings in their entirety on March 23, 2012. The Order of Dismissal and Judgment were entered that day.
Holt filed a Motion for Re-Hearing, or in the alternative, Motion for Stay of Order Pending Appeal on March 27, 2012. On April 17, 2012, Holt filed a Motion for Extension of Time to File Notice of Appeal. On April 19, 2012, the District Court granted Holt’s Motion for Hearing and Granted Holt an Extension of Time to file his Notice of Appeal. Holt filed his Notice of Appeal on April 27, 2012.
5

STATEMENT OF THE FACTS ADC’s Administrative Directive 98-04 (“AD 98-04”) outlines the ADC’s grooming policy. It states, in part, the following: B. Inmates’ hair must be worn loose, clean and neatly combed. No extreme styles are permitted, including but not limited to corn rows, braids, dread locks, Mohawks, etc. The hair of male inmates must be cut so as to be above the ear, with sideburns no lower than the middle of the ear lobe and no longer in the back than the middle of the nape of the neck. Female inmates may wear their hair no longer than shoulder length. D. No inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip. Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch. Inmates must present MSH 207 upon demand.
The purpose of the policy is “to provide for the health and hygiene of incarcerated offenders, and to maintain a standard appearance throughout the period of incarceration, minimizing opportunities for disguise and for transport of contraband and weapons.” (Id.) An inmate’s failure to comply with the grooming policy is grounds for disciplinary action. (Id.)
Appellant Holt identifies himself as a Salafi Muslim who seeks to grow a beard in observance of his religion. Holt acknowledges that the ADC has a legitimate governmental interest in maintaining security for inmates and staff alike and in the prevention of the follow of contraband. Holt seeks permission to grow a
6

½” (one half inch) beard. AD 98-04 does not allow for a ½” beard to be worn by any inmate and objects to Holt’s request on the basis of security concerns.
7

SUMMARY OF THE ARGUMENT The District Court’s ruling, in which it vacated the Order granting Holt’s Motion for Preliminary Injunction and Temporary Restraining Order, dismissed Holt’s Complaint with prejudice and counted it as a “strike” for purposes of the Prison Litigation Reform Act, was correct under the law and should be affirmed by this Court. Appellees did not violate Holt’s constitutional rights pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, et al. The District Court correctly ruled that Holt could not prove a set of facts in support of his claims with regard to the ADC’s grooming policy issue.
8

ARGUMENT
I. THE DISTRICT COURT PROPERLY HELD THAT THE ARKANSAS DEPARTMENT OF CORRECTIONS GROOMING POLICY, AS STATED IN ADMINISTRATIVE DIRECTIVE 98-04, DOES NOT VIOLATE THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSON ACT OF 2000, 42 U.S.C. §2000CC ET SEQ.
A. Standard of Review
In 2000, Congress enacted the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et seq, to provide protection for
institutionalized persons’ religious freedom. Singson v. Norris, 553 F.3d 660, 662 (8th Cir. 2009); Murphy v. Mo. Dep’t of Corrs., 372 F.3d 979, 987 (8th Cir. 2004).
RLUIPA provides, in part:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1. RLUIPA “defines ‘religious exercise’ to include ‘any
exercise of religion, whether or not compelled by, or central to, a system of religious beliefs.’” Van Wyhe v. Reisch, 58 F.3d 639, 655-56 (8th Cir. 2009)
(quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)). RLUIPA bars inquiry
into whether a particular belief or practice is central to a prisoner’s religion. Gladson v. Iowa Dep’t of Corrs., 551 F.3d 825, 831-32 (8th Cir. 2009).
9

A prisoner’s claim under RLUIPA is, instead, evaluated under a compelling governmental interest standard. Cutter, 544 U.S. at 722; Gladson, 551 F.3d at 832; Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). The United States Supreme Court has remarked that “context matters” in the application of this “compelling government interest” standard, and that RLUIPA does not “elevate accommodation of religious observances over an institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722; Fegans v. Norris, 537 F.3d 897, 902 (8th Cir. 2008). While the government must meet a higher burden than the rational relationship test applied in constitutional cases, the court still affords a significant amount of deference to the expertise of prison officials in evaluating whether they met that burden. Gladson, 551 F.3d at 832. “The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). In reaching the proper balance, courts apply the framework of analysis that was established in Turner v. Safely.
As the Supreme Court has recently reinterated, Turner sets forth four factors relevant in determining the reasonableness of the regulation at issue. First, is there a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forth to justify it? Second, are there “alternative means of exercising the right that remain open to prison inmates?” Third, what “impact” will “accommodation of the asserted constitutional right have on guards and other
10

inmates, and on the allocation of prison resources generally?” And, fourth, are “ready alternatives” for furthering the governmental interest available?
B. Discussion “It is well settled that a prison inmate retains those constitutional rights that are not inconsistent with his status as a prisoner or the legitimate penological objectives of the corrections system,” Turner v. Safley, 482 U.S. 78, 95 (1987) (quoting Pell v. Procunier, 417 U.S. 822 (1974)) (internal quotations omitted). The evaluation of penological objectives in this context is “committed to the considered judgment of prison administrators.” O’Lone v. Shabazz, 482 U.S. 342, 349 (1987); Fegans, 537 F.3d at 902. To ensure that courts afford appropriate deference to those judgments, courts review prison regulations alleged to infringe on constitutional rights under a “reasonableness test” that is less restrictive than ordinarily applied to alleged infringements of fundamental rights. O’Lone, 482 U.S. at 349; Fegans, 537 F.3d at 902. A prison regulation or action is valid, even if it restricts a prisoner’s constitutional rights, if it is “reasonably related to legitimate penological interest.” Gladson, 551 F.3d at 832 (quoting Turner, 482 U.S. at 89). As the Supreme Court explained, in Turner, running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of
11

government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.
During the hearing in the present case, Appellees presented evidence that established the ADC’s compliance with Turner v. Safley. It is undisputed that the first factor, whether there exists a valid and rational connection between the ADC’s prison regulation (Administrative Directive 98-04) and the legitimate governmental interest, is satisfied. In his Complaint, filed on June 28, 2011, Holt acknowledged that the ADC has a “legitimate governmental interest in maintaining security for inmates and staff alike and in the staunching of the flow of contraband.” (DE 2) Holt further acknowledges that AD 98-04 in the ADC’s attempt to satisfy the legitimate governmental interest.” (DE 2)
In addition to Holt’s admission and acknowledgement, testimony was given by Appellee Gaylon Lay, Cummins Unit, regarding a valid and rational connection between prison regulation and legitimate governmental concerns he has. Appellee Lay testified that if an inmate were allowed to maintain a beard, he would have concerns regarding how the inmate could change his appearance during an escape. (DE 82) An inmate with a beard could shave it off. Appellee Lay further expressed his concerns by posing the following questions: (1) how does one consistently determine on a day-to-day basis whether an inmate’s beard is one-
12

half-inch long; and (2) what if the inmate disagreed with the assessment of his beard, as Holt has in his prior verbal altercations with inmate barber’s assigned to trim his beard? (DE 82) A security concern for the inmate barber as well as the complaining inmate would be obvious, and up to the institution to more closely supervise these individuals to prevent physical altercations.
The second factor, whether there is an alternative means of exercising the right that remains open to prison inmates, was satisfied at the hearing. Holt testified and acknowledged that he had been provided a prayer rug and a list of distributors of Islamic materials. (DE 82) He further testified that he is allowed to correspond with a religious advisor, and is allowed to maintain the required diet of his choosing, and to observe religious holidays. (DE 82)
Holt further testified regarding his ability to practice his religious beliefs that followers of his faith receive credit for attempting to follow his religious tenets; thus, even though the Arkansas Department of Correction does not allow inmates to wear beards as Holt seeks to do, he is not “punished” by his religion. (DE 82)
A great amount of testimony and evidence was presented regarding the third and fourth factors, whether the accommodation would have a significant “ripple effect” on guards and other inmates and on the allocation of prison resources, was received and whether there is an alternative that fully accommodates the prisoner at a de minimis cost to valid penological interest. Appellee Gaylon Lay, Warden of
13

the Cummins Unit, testified as to his concern, based upon years of experience, he had for all inmates if Holt, or any other inmate was afforded preferential treatment. (DE 82) Appellee Lay testified about his concern that by accommodating one inmate but denying other inmates their preferences, the inmate accommodated could become a target by the other inmates. (DE 82)
ADC Assistant Director Grant Harris testified regarding his concerns of harm regarding the effects of affording one or several inmates preferential treatment one inmate if he were allowed to create his own grooming style. (DE 82) Mr. Harris testified that such a move could elevate an inmate’s status to that of a leader, which in turn could create hostility between the 15,000 inmate population, thus causing them to take matters into their own hands. (DE 82) It is for the safety and security of all inmates that rules be created across the board, and applicable to everyone.
With regard to the impact upon staff in accommodating inmates who requested, for religious purposes, not to curt their hair, the evidence established that an undue burden would have been placed upon staff if inmates were not required to follow the grooming policy. More time would need to be spent with each inmate for personal inspections, which would have altered their ability to focus attention on security. Also, a less restrictive grooming policy would have
14

caused staff to have to inspect the inmate’s person more closely, thereby becoming more intrusive with the inmates body. (DE 82)
Appellee Lay further expressed concern about beards being used as a means to facilitate the introduction of contraband into the inmate population. According to Lay, a one-half inch beard can be used to conceal razor blades, drugs and homemade darts.
Grant Harris, ADC Assistant Director, explained that the mission of the ADC’s grooming policy is to prevent the introduction of weapons and contraband into the prisons and that inmate facial hair poses a security risk. (DE 82) Mr. Harris testified that a needle from a syringe could be concealed in an inmate’s beard, which created a safety concern for the officers charged with inspecting the inmate beards who could become injured by needles or broker razors. (DE 82) Mr. Harris further testified regarding the emerging threat to security at the ADC involved cellular phones. (DE 82) Mr. Harris explained how inmates try to circumvent the ADC’s phone system by smuggling in cellular telephones piece by piece and then reassembling them inside the unit. Cellular phones can be used to facilitate the introduction of drugs and weapons in to the inmate population. (DE 82) Mr. Harris demonstrated to the Court how small the SIM card for cellular telephones can be, and brought one as a demonstration for the Court. (DE 82)
15

In his appeal brief, Holt offers for the first time, a variety of options and alternatives he believes to be available to the Appellees. At the hearing held in this case, the only option Holt offered was for the ADC to photograph each of the 15,000 + inmates twice – once without a beard and another with a beard. (DE 82) Appellees testified as to how overly burdensome this would be if they were required to keep up with the changing looks of every inmate. Further, to follow Holt’s suggestion, every time an inmate gained a few pounds or changed their hair style, they should be re-photographed. Again, Holt’s only suggestion at the hearing in this case further supported Appellee’s position that to do so would be overly burdensome and would require additional manpower in order to accomplish these tasks as well as provide security within the department on a daily basis.
In support of his case, Appellant Holt urges this Court to disregard its 2008 holding in Fegans, as well as all other established Eighth Circuit case law, and instead follow the Ninth Circuit in a case decided four years prior to Fegans, Mayweathers v. Terhune, 328 F.Supp. 2d 1086 (E.D. Cal. 2004). Mayweathers is not persuasive authority.
The Eighth Circuit Court of Appeals has repeatedly rejected First Amendment challenges to prison regulations that prohibit inmates from wearing long hair. One such case on point with Holt’s case, is Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996). In Hamilton, the appellee prisoner, an American Indian,
16

initiated an action under 42 U.S.C.S. § 1983 alleging that appellant prison officials violated his First Amendment right to free exercise of religion by requiring him to cut his hair and by denying him access to a sweat lodge. Prison officials testified that long hair poses a threat to prison safety and security. Testimony further revealed that without the hair length regulation, prison staff would be required to perform more frequent searches of inmates, which could cause conflicts between staff and inmates. Searching an inmate’s long hair would be difficult, especially if it were braided. Testimony was also presented by prison officials that they had tried to control gangs by not allowing them to identify themselves through colors, clothes, or hair carvings. Further, testimony was that if the prison officials allowed the American Indians to be exempt from the hair length regulation that it could cause resentment by the other inmates. The prison officials concluded that there was no alternative to the hair length policy because only short hair can easily be searched and remain free of contraband. The officials also believed that long hair could also cause problems with inmate identification.
The Eighth Circuit concluded that it is more than merely “eminently reasonable” for a maximum security prison to prohibit inmates from having long hair in which they could conceal contraband and weapons. It had a compelling reason for doing so. Further, it is important for prison administrators to prevent inmates from identifying with particular gangs through their hair style. The safety
17

and security concerns expressed by prison officials were based in their collective experience of administering correctional facilities. These are valid and weighty concerns. Moreover, there is no viable less restrictive means of addressing these concerns.
Hamilton clearly established that a grooming policy, on all fours with the ADC’s policy, passes the strict-scrutiny test. Moreover, the Eighth Circuit has repeatedly rejected First Amendment challenges to prison regulations that prohibit inmates from wearing long hair. See Campbell v. Purkett, 957 F.2d 535, 536-37 (8th Cir. 1992) (upholding dismissal of inmate’s claim that a prison grooming policy prohibiting long hair violated his right to freely exercise his Nazarite religion); Dunavant v. Moore, 907 F.2d 77, 79 (8th Cir. 1990) (holding that prison grooming policy prohibiting beards longer than two inches was based on legitimate and neutral penological security objectives and, therefore, did not violate the First Amendment); Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990) (holding that preventing prisoners from concealing contraband and alleviating confusion in prisoner identification are valid penological interests justifying prison hair-length policy, although contraband had never been found in any inmate’s hair, and identification fears were hard to credit in light of prison’s lax approach to photographing inmates); Bettis v. Delo, 14 F.3d (8th Cir. 1994) (regulation requiring Native American to cut his hair did not infringe upon First Amendment);
18

and Sours v. Long, 978 F.2d 1086 (8th Cir. 1992) (requiring inmate to cut his hair did not violate First Amendment although it prevented him from observing Vows of the Nazarite); and Newingham v. Magness, 292 Fed.Appx. 523, 2008 WL 3863607.
Appellant Holt has not brought anything new to the table. He has challenged the constitutionality of the policy, but he has not provided the Court with any evidence that distinguishes this lawsuit from Hamilton and a long line of Eighth Circuit precedents that is completely contrary to his position. Because Appellant has the burden of proving the policy to be unconstitutional, and has failed to do so, his claim was properly dismissed.
II. APPELLANT’S RETALIATION CLAIM IS NOT PROPERLY BEFORE THIS COURT
A. Standard of Review This Court has held that, as a threshold matter, we generally will not consider matters not timely argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). An exception to this rule exists for challenges to standing, which are not subject to waiver and must be reviewed by this court even if unaddressed by the district court. In re Horton, 668 N.W.2d 208, 2012 (Minn. App. 2003).
19

B. Discussion Holt, for the first time on appeal, raises a claim of retaliation. Judgment was entered in this case on March 23, 2012. (DE 94) In his brief, Holt alleges that, beginning in April 2012, Appellees began retaliating against him. According to Holt’s calculations, the alleged retaliatory behavior began occurring one month after the entry of judgment; therefore, the matter is not properly before this Court. Additionally, Holt has filed a separate 42 U.S.C. §1983 lawsuit regarding the alleged retaliation in the Eastern District of Arkansas, Eastern Division, 5:12CV00394 DPM/BD. Holt’s alleged retaliation claim is in its infancy and is properly before the district court for consideration. Holt’s retaliation claim cannot be considered in this Court in this matter, and should be dismissed.
CONCLUSION The district court properly dismissed Holts’ complaint and granted judgment in favor of ADC Appellees Ray Hobbs, Gaylon Lay, D.W. Tate, Vernon Robertson, Michael Richardson, and Larry May; therefore, Appellees respectfully request that this Court affirm the decision of the lower court.
20

Respectfully submitted,

DUSTIN McDANIEL Attorney General

BY:

/s/Christine A. Cryer

CHRISTINE A. CRYER

Arkansas Bar No. 2001082

Assistant Attorney General

323 Center Street, Suite 200

Little Rock, Arkansas 7220l

(50l) 683-0958

christine.cryer@arkansasag.gov

Attorneys for ADC Appellees

21

CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) and (C), the undersigned hereby states that the applicable portions of this brief contain 4,414 words in proportionally sized 14-point Times New Roman font. The brief was prepared in Microsoft Office Word 2007. I, Christine A. Cryer, hereby certify that the brief has been scanned for viruses and is virus free.
/s/ Christine A. Cryer CHRISTINE A. CRYER
22

CERTIFICATE OF SERVICE I, Christine A. Cryer, Assistant Attorney General, do hereby certify that on this 10th day of December, 2012, I have electronically submitted the foregoing brief for review and approval using the CM/ECF system.
/s/ Christine A. Cryer CHRISTINE A. CRYER
23

ADDENDUM Proposed Findings and Recommendations ......................................................Add. 2 Order Adopting Proposed Findings ...............................................................Add. 17 Judgment .........................................................................................................Add. 19
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12-3185 Gregory Holt v. Ray Hobbs, et al Eighth Circuit Court of Appeals
PRO SE Notice of Docket Activity The following was filed on 12/26/2012 Case Name: Gregory Holt v. Ray Hobbs, et al Case Number: 12-3185 Docket Text: BRIEF FILED - APPELLANT REPLY BRIEF filed by Mr. Gregory Houston Holt. w/service 12/21/2012; 5 copies by USCA-8. , Length: 19 pages. [3990349] [12-3185] The following document(s) are associated with this transaction: Document Description: brief filed Notice will be mailed to: Mr. Gregory Houston Holt VARNER CORRECTIONAL FACILITY 129616 P.O. Box 600 Grady, AR 71644-0600 Notice will be electronically mailed to: Ms. Christine Ann Cryer: christine.cryer@arkansasag.gov, danielle.williams@arkansasag.gov
Appellate Case: 12-3185 Page: 1 Date Filed: 12/26/2012 Entry ID: 3990349

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 12-3185 ___________________________
Gregory Houston Holt, also known as Abdul Maalik Muhammad
lllllllllllllllllllll Plaintiff - Appellant
v.
Ray Hobbs, Director, Arkansas Department of Correction; Gaylon Lay, Warden, Cummins Unit, ADC; D W Tate, Captain, Cummins Unit, Arkansas Department of
Correction; V. R. Robertson, Major, Cummins Unit, Arkansas Department of Correction; M. Richardson, Sgt., Cummins Unit, Arkansas Department of
Correction; Larry May, Chief Deputy Director, Arkansas Department of Correction
lllllllllllllllllllll Defendants - Appellees ____________
Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: June 6, 2013 Filed: June 12, 2013 [Unpublished] ____________
Before BYE, ARNOLD, and SHEPHERD, Circuit Judges. ____________
PER CURIAM.
Appellate Case: 12-3185 Page: 1 Date Filed: 06/12/2013 Entry ID: 4044433

In this action challenging the Arkansas Department of Correction (ADC) grooming policy under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)-(2), inmate Gregory Holt (also known as Abdul Maalik Muhammad) appeals the district court’s1 order dismissing his action after an evidentiary hearing.
In his complaint and motion for a preliminary injunction and temporary restraining order, Mr. Holt asserted that one of his fundamentalist Muslim beliefs was that he must grow a beard, but defendants substantially burdened his ability to practice his religion by enforcing ADC’s grooming policy, which allowed trimmed mustaches but otherwise no facial hair, with quarter-inch beards permitted only for a diagnosed dermatological problem. Mr. Holt sought permission to maintain a halfinch beard as a compromise position, to balance his religious beliefs with ADC’s security needs. The district court initially granted temporary injunctive relief. The court vacated its order and dismissed the complaint, however, after the hearing produced evidence that Mr. Holt had a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and he was allowed to maintain the required diet and observe religious holidays; that the grooming policy helped prevent inmates from concealing contraband, drugs, or weapons; that an inmate who grew a beard could change his appearance quickly by shaving; that affording special privileges to an individual inmate could result in his being targeted by other inmates; and that prison officials believed the grooming policy was necessary to further ADC’s interest in prison security.
Following careful review, see Johnson v. Bi-State Justice Ctr., 12 F.3d 133, 135 (8th Cir. 1993) (where judgment is granted after evidentiary hearing, standard is
1The Honorable Brian S. Miller, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas.
-2-
Appellate Case: 12-3185 Page: 2 Date Filed: 06/12/2013 Entry ID: 4044433

whether evidence presents sufficient disagreement to require submission to jury or is so one-sided that one party must prevail), we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).
Accordingly, we affirm, but we modify the judgment to reflect that the dismissal does not count as a “strike” for purposes of 28 U.S.C. § 1915(g).
______________________________
-3-
Appellate Case: 12-3185 Page: 3 Date Filed: 06/12/2013 Entry ID: 4044433

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
June 12, 2013

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

Mr. Gregory Houston Holt VARNER CORRECTIONAL FACILITY 129616 P.O. Box 600 Grady, AR 71644-0600
RE: 12-3185 Gregory Holt v. Ray Hobbs, et al
Dear Mr. Holt:
The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00a.m. today. Please hold the opinion in confidence until that time.
Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.
Michael E. Gans Clerk of Court
DMW
Enclosure(s)
cc: Ms. Christine Ann Cryer Mr. Jim McCormack
District Court/Agency Case Number(s): 5:11-cv-00164-BSM

Appellate Case: 12-3185 Page: 1 Date Filed: 06/12/2013 Entry ID: 4044433

 
 Case 5:11-cv-00164-BSM Document 101 Filed 04/27/12 Page 1 of 3 800-49

NOTICE OF APPEAL

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 No. 13-6827
In the Supreme Court of the United States
__________ GREGORY HOUSTON HOLT A/K/A ABDUL MAALIK MUHAMMAD,
PETITIONER v.
RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL. __________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
__________
PETITIONER’S SUPPLEMENTAL BRIEF __________
Douglas Laycock University of Virginia
Law School 580 Massie Road Charlottesville, VA 22903
434-243-8546 dlaycock@virginia.edu

TABLE OF AUTHORITIES CASES Couch v. Jabe, 679 F.3d 197 (4th Cir. 2012).......................................................... 2-3, 5 Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) ......................................................... 3-4 Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) ...................................................... 3-5 Holt v. Hobbs, 509 F. App’x 561 (8th Cir. 2013 ......................................................... 3-4 Jova v. Smith, 582 F.3d 410 (2d Cir. 2009 ................................................................... 2 Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013) ........................................... 1-2, 4 Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) ............................................................... 4 Muhammad v. Sapp, 494 F. App’x 953 (11th Cir. 2012).............................................. 5 Spratt v. Rhode Island Department of Corrections, 482 F.3d 33 (1st Cir. 2007)..... 2, 4 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ................................................. 2 Washington v. Klem, 497 F.3d 272 (3d Cir. 20007) ................................................... 2-3
STATUTES AND RULES Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc et seq. generally ................................................................................................................ 1-5 42 U.S.C. § 2000cc-1 ................................................................................................. 3 42 U.S.C. § 2000cc-5(2)............................................................................................. 3 Supreme Court Rule 15.8 .............................................................................................. 1
i

PETITIONER’S SUPPLEMENTAL BRIEF 1. Petitioner Gregory Holt, a/k/a/ Abdul Maalik Muhammad, respectfully submits this supplemental brief pursuant to Supreme Court Rule 15.8 to inform the Court of new matter bearing on his pending petition for a writ of certiorari. Filed pro se and in forma pauperis on September 27, 2013, the petition correctly identifies a circuit split over the proper interpretation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”). There have been two new developments since the petition was filed. First, petitioner is now represented by counsel. Petitioner has retained Professor Douglas Laycock of the University of Virginia to represent him, and Professor Laycock has accepted the representation. Second, the Eleventh Circuit has denied en banc rehearing in Knight v. Thompson, 723 F.3d 1275 (11th Cir. 2013), en banc rehearing denied (Nov. 8, 2013) (No. 1211926), further solidifying the circuit split described in the petition in this case. The circuits disagree about how to apply RLUIPA’s compelling-interest standard to prison regulations. This is the most fundamental question about the meaning of RLUIPA’s provisions on institutionalized persons, and the disagreement among the circuits extends to all applications of these provisions. More specifically, circuits are split over whether a prison system must actually consider less restrictive measures before rejecting them, see Pet. 6-7, 10, and whether a prison system must demonstrate that it cannot grant religious accommodations that other prison systems have successfully granted or that other prison systems have
1

allowed to all prisoners. See Pet. 7-9. 2. The Eleventh Circuit acknowledged that “some of our sister courts” hold that,
under RLUIPA, “prison administrators must show that they ‘actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.’” Knight, 723 F.3d at 1285 (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005), and citing Spratt v. Rhode Island Department of Corrections, 482 F.3d 33, 41 (1st Cir. 2007), and Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007)); see also Jova v. Smith, 582 F.3d 410, 416 (2d Cir. 2009) (following Warsoldier and Washington on this issue); Couch v. Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (state must “acknowledge and give some consideration to less restrictive alternatives”)). Nevertheless, the Eleventh Circuit held that the “more strict proof requirement” of these other Circuits is “not the law in this circuit.” Knight, 723 F.3d at 1285-86.
3. The Eleventh Circuit also rejected any requirement that the government must demonstrate why it cannot adopt religious accommodations that other prison systems have successfully implemented. “[T]he policies of other jurisdictions,” the court held, “are not controlling;” rather, the government can make “a calculated decision not to absorb the added risks that its fellow institutions have chosen to tolerate.” Id. at 1286. But see Warsoldier, 418 F.3d at 999 (government failed strict scrutiny where “[p]risons run by the federal government, Oregon, Colorado, and Nevada all meet the same penological goals without such a policy”); Spratt, 482 F.3d at 42 (government failed strict scrutiny “in the absence of any explanation . . . of significant differences” between defendant’s prison and federal prisons with less restrictive policies);
2

Washington, 497 F.3d at 285 (government failed strict scrutiny where its “other institutions” made the requested accommodation); Garner v. Kennedy, 713 F.3d 237, 247 (5th Cir. 2013) (finding it “persuasive that prison systems that are comparable in size to Texas’s—California and the Federal Bureau of Prisons—allow their inmates to grow beards, and there is no evidence of any specific incidents affecting prison safety in those systems due to beards”).
The Eleventh Circuit has now refused en banc review to consider its explicit disagreement with the other circuits on each of these issues.
4. Somewhat less crisply formulated is an underlying circuit split over whether prison officials in RLUIPA cases actually have to “demonstrate” anything. The statute requires defendants to “demonstrate[]” compelling interest and least restrictive means—to meet “the burdens of going forward with the evidence and of persuasion” on these issues. 42 U.S.C. §§ 2000cc-1, 2000cc-5(2) (2006). But the Eighth Circuit effectively puts the burden of persuasion on plaintiffs, requiring “substantial evidence in record indicating that response of prison officials to security concerns is exaggerated.” Holt v. Hobbs, 509 F. App’x 561, 562 (8th Cir. 2013) (citing Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008)).
Other circuits give reasonable deference to prison officials’ expertise without abdicating the judicial role or effectively negating the statute. Prison officials must explain their judgments in terms that are not conclusory, speculative, or implausible. Thus the Fourth Circuit says that “a court should not rubber stamp or mechanically accept the judgments of prison administrators.” Couch, 679 F.3d at 201 (quoting
3

Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006)). The First Circuit says that “We do not think that an affidavit that contains only conclusory statements about the need to protect inmate security is sufficient to meet [defendant’s] burden under RLUIPA.” Spratt, 482 F.3d at 40 n.10. The Fifth Circuit says that “speculative testimony” is not enough. Garner, 713 F.3d at 246.
5. The Eighth Circuit’s brief opinion in this case took the most deferential position on each of these issues. The court summarized defendants’ testimony in wholly conclusory terms. 509 F. App’x at 562. The court did not require respondents to actually consider alternatives suggested by petitioner, or to explain why they had not considered or adopted those alternatives. The court rejected evidence that other institutions “have been able to meet their security needs while allowing inmates to maintain facial hair,” because that evidence “does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions.” Ibid. The court did not require respondents to explain how their prison was different from these other prisons. The court did not assess respondents’ evidence with attention to the difference between its Fegans precedent, in which the prisoner wanted to grow his hair and beard apparently without limit, 537 F.3d at 900, and this case, in which petitioner seeks to grow only a half-inch beard.
6. In sum, the Eleventh Circuit’s denial of en banc rehearing in Knight solidifies a widespread and acknowledged circuit split over RLUIPA’s meaning and over its application to prison grooming policies and to beards in particular. Compare the decision below (upholding ban on even a half-inch beard under RLUIPA), and
4

Muhammad v. Sapp, 494 F. App’x 953 (11th Cir. 2012) (upholding no-beard rule under RLUIPA), with Garner, 713 F.3d at 244-48 (striking down no-beard rule under RLUIPA), and Couch, 679 F.3d at 201-04 (reversing summary judgment that had upheld no-beard rule under RLUIPA).
The Court should grant the petition in this case to resolve that disagreement. Granting certiorari on Questions I and II as stated in the petition would fairly include all the subsidiary questions on which the circuits are split. Questions III and IV present the parallel First Amendment issues. Question V restates the circuit split. Question VI explicitly presents the least-restrictive-means question that is also fairly included in Questions I and II.
Respectfully submitted,

January 3, 2014

__________________________________________ Douglas Laycock University of Virginia
Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 dlaycock@virginia.edu

5

 
 Case 5:11-cv-00164-BSM Document 165 Filed 06/04/15 Page 1 of 4 Case 5:11-cv-00164-BSM-JJV Document 162-1 Filed 05/14/15 Page 3 of 6
Case 5:11-cv-00164-BSM-JJV Document 162 Filed 05/14/15 Page 3 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

GREGORY HOLT

)

A.K.A ABDUL MAALIK MUHAMMAD, )

Plaintiff

)

)

vs.

)

)

WENDY KELLEY

)

(substituted for RAY HOBBS),

)

Defendant

)

No. 5=11-cv-00164-BSM

PERMANENT INJUNCTION This case having returned to this Court pursuant to the judgment of the Supreme Court of the United States, and on the joint motion of the parties, the Court now issues the following permanent injunction with the following statement of reasons: 1. Plaintiff has a federal right to wear a beard of up to one·half inch in length. This right is created by the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000bb et seq., as interpreted in Holt v. Hobbs, 135 S. Ct. 853 (2015). 2. Violation of this right would inflict irreparable injury on plaintiff, because t he violation would inflict religious harms that are not adequately compensable in money and because 42 U.S.C. § 1997e(e) would preclude any award of damages in the absence ofphysical injury. 3. In response to the Supreme Court's decision in this case, defendant has adopted a new grooming policy, Administrative Directive 15-04, that allows

Case 5:11-cv-00164-BSM Document 165 Filed 06/04/15 Page 2 of 4 Case 5:11-cv-00164-BSM-JJV Document 162-1 Filed 05/14/15 Page 4 of 6
Case 5:11-cv-00164-BSM-JJV Document 162 Filed 05/14/15 Page 4 of 5
religiously motivated prisoners to request "accommodations" that can allow beards without length limits. Plaintiff has received an accommodation under this new policy.
't In the absence of an injunction, defendants remain free to return to their former policy at any time. There is no possibility of liability for damages to deter such a change in policy.
5. An injunction ordering defendant to allow plaintiff to wear a half-inch beard is narrowly drawn, extends no further than necessary to correct the precise federal right adjudicated in the Supreme Court, and is the least intrusive means necessary to correct the violation of that federal right. This injunction fully complies with 18 U .S.C. § 3626 and with Federal Rule of Civil Procedure 65.
Therefore, it is ORDERED, ADJUDGED, and DECREED that: 1. Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, is substituted for Ray Hobbs as the defendant in this case. 2. Defendant is hereby ordered to allow plaintiff, Gregory Holt, also known as Abdul Maalik Muhammad, to wear a beard of up to one·halfinch in length. 3. This injunction is binding on defendant Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, and on her officers, agents, servants, employees, and attorneys, and any person in active concert or participation with any of them. 4. This injunction is without prejudice to any rights that Mr. Holt may have from time to time under Administrative Directive 15-04 or any other rule, regulation,

Case 5:11-cv-00164-BSM Document 165 Filed 06/04/15 Page 3 of 4 Case 5:11-cv-00164-BSM-JJV Document 162-1 Filed 05/14/15 Page 5 of 6
Case 5:11-cv-00164-BSM-JJV Document 162 Filed 05/14/15 Page 5 of 5
policy, or administrative directive of the Arkansas Department of Correction or any of its units.
5. If, at some future date, the defendant comes to believe that plaintiff has abused his right to wear a half-inch beard or that circumstances have materially changed such that the accommodation should be withdrawn, it may apply to the Court for a modification of or reprieve from the injunction. Defendant will notify plaintiff and his present counsel, Douglas Laycock and Patrick Benca, of any such motion. IT IS SO ORDERED THIS 4th day of June 2015.
Brian S. Miller United States District Judge

Case 5:11-cv-00164-BSM Document 165 Filed 06/04/15 Page 4 of 4 Case 5:11-cv-00164-BSM-JJV Document 162-1 Filed 05/14/15 Page 6 of 6

CERTIFICATE OF SERVICE
I, Patrick J. Benca, and I, Douglas Laycock, certify that the foregoing was filed via Pacer on all parties on May 14, 2015.

Is/Douglas Laycock Douglas Laycock

Is/Patrick J. Benca Patrick J. Benca

 
 Case 5:11-cv-00164-BSM Document 166 Filed 06/09/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

GREGORY HOLT

)

a.k.a. ABDUL MAALIK MUHAMMAD, )

Plaintiff

)

)

vs.

)

)

WENDY KELLEY

)

(substituted for RAY HOBBS),

)

Defendant

)

No. 5:11-cv-00164-BSM

JOINT NOTICE REGARDING COSTS AND FEES The parties hereby submit as follows a Joint Notice Regarding Costs and Fees: 1. Following the Court’s entry of a permanent injunction, the amount of costs and attorneys’ fees that should be awarded to Plaintiff’s counsel is the only issue that remains. 2. The parties have reached an agreement regarding costs and attorneys’ fees in this matter, and the Arkansas Department of Correction has paid the agreed sum of $134,000 to Plaintiff’s attorneys. 3. The parties believe that this case can now be terminated, subject to this Court’s ongoing authority to enforce the Permanent Injunction (ECF 165). WHEREFORE, the parties pray that the Court take notice of the fact that the issue of costs and attorney’s fees has been resolved and that this case can be terminated.

Case 5:11-cv-00164-BSM Document 166 Filed 06/09/15 Page 2 of 3
Respectfully submitted,
LESLIE RUTLEDGE Attorney General
By: /s/ Christine A. Cryer David Curran Deputy Attorney General Arkansas Bar No. 2003031 Christine Cryer Sr. Assistant Attorney General Arkansas Bar No. 2001082 323 Center Street, Suite 200 Little Rock, AR 72201 PH: (501) 683-0958 Fax: (501) 682-2591 christine.cryer@arkansasag.gov
Attorney for Defendant
/s/ Patrick Benca Patrick Benca Arkansas Bar No. 99020 Benca & Benca 1311 S. Broadway Street Little Rock, AR 72202 501-353-0024 pjbenca@gmail.com
and
/s/ Douglas Laycock Douglas Laycock Texas Bar No. 12065300 University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 dlaylock@virginia.edu
Attorneys for Plaintiff
2

Case 5:11-cv-00164-BSM Document 166 Filed 06/09/15 Page 3 of 3
CERTIFICATE OF SERVICE I Christine A. Cryer, hereby certify that on June 9, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing, including notification to the following: Patrick J. Benca Benca & Benca 1311 S. Broadway Street Little Rock, AR 72202 501-353-0024 Pjbenca@gmail.com Douglas Laycock University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-3546 dlaylock@virginia.edu
/s/ Christine A. Cryer Christine A. Cryer
3

 
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 Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 1 of 11
CLOSED,REOPEN
U.S. District Court Eastern District of Arkansas (Pine Bluff) CIVIL DOCKET FOR CASE #: 5:11−cv−00164−BSM

Holt v. Hobbs et al Assigned to: Chief Judge Brian S. Miller Case in other court: USCA8, 12−03185
USCA8, 12−03556 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Gregory Holt ADC #129616 (Abdul Maalik Muhammad)

Date Filed: 06/28/2011 Date Terminated: 06/23/2015 Jury Demand: Plaintiff Nature of Suit: 555 Prison Condition: Civil Rights Jurisdiction: Federal Question
represented by Gregory Holt ADC #129616 VARNER SUPERMAX Arkansas Department of Correction Post Office Box 400 Grady, AR 71644−0400 PRO SE
Douglas Laycock University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434−243−8546 Email: dlaycock@virginia.edu TERMINATED: 12/02/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick J. Benca Benca & Benca 1311 South Broadway Little Rock, AR 72202 501−353−0024 Email: pjbenca@gmail.com TERMINATED: 12/02/2015 ATTORNEY TO BE NOTICED

V. Defendant Ray Hobbs Director, Arkansas Department of Correction
Defendant Gaylon Lay Warden, Cummins Unit, ADC

represented by Christine A. Cryer Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−683−0958 Email: Christine.cryer@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 2 of 11

Defendant
D W Tate Captain, Cummins Unit, Arkansas Department of Correction

represented by Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
V R Robertson Major, Cummins Unit, Arkansas Department of Correction

represented by Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
M Richardson Sgt., Cummins Unit, Arkansas Department of Correction

represented by Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Larry May Chief Deputy Director, Arkansas Department of Correction

represented by Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/28/2011 06/28/2011 06/28/2011 06/28/2011 07/05/2011
07/06/2011
07/07/2011 07/14/2011 07/21/2011

# Docket Text
1 MOTION for Leave to Proceed in forma pauperis by Gregory Holt (pag)(copy mailed) (docket text modified on 6/29/2011 to correct plaintiff's name) (bfw). (Entered: 06/29/2011)
2 COMPLAINT with Jury Demand against All Defendants filed by Gregory Holt(pag)(copy mailed) (docket text modified on 6/29/2011 to correct plaintiff's name) (bfw). (Entered: 06/29/2011)
3 MOTION for Preliminary Injunction and Temporary Restraining Order by Gregory Holt (pag)(copy mailed) (docket text modified on 6/29/2011 to correct plaintiff's name) (bfw). (Entered: 06/29/2011)
4 BRIEF IN SUPPORT re 3 Motion for Preliminary Injunction and for TRO filed by Gregory Holt. (pag)(copy mailed) (docket text modified on 6/29/2011 to correct plaintiff's name) (bfw). (Entered: 06/29/2011)
5 ORDER denying 1 Plaintiff's Application to Proceed Without Prepaying Fees; directing the Clerk to mail to Plaintiff an Application to Proceed Without Prepaying Fees; and directing Plaintiff to submit within 30 days from the entry date of this Order, either the $350 statutory filing fee or a complete Application. Signed by Magistrate Judge Joe J. Volpe on 7/5/2011. (srw) (Entered: 07/06/2011)
7 PROPOSED FINDINGS AND RECOMMENDATIONS recommending 3 Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order be DENIED. Objections to R&R due no later than 14 days from the date of this Recommendation. Signed by Magistrate Judge Joe J. Volpe on 7/6/2011. (srw) (Entered: 07/06/2011)
9 NOTICE of Change of Address by Gregory Holt (pag)(copy mailed) (Entered: 07/07/2011)
10 OBJECTION to 7 Report and Recommendations by Gregory Holt (pag)(copy mailed) (Entered: 07/14/2011)
11 MOTION for Extension of Time to File Response/Reply as to 5 Order on Motion for Leave to Proceed in forma pauperis by Gregory Holt (pag)(copy mailed) (Entered: 07/21/2011)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 3 of 11

07/21/2011 07/21/2011 07/27/2011 07/27/2011 07/27/2011 08/03/2011 08/04/2011
08/09/2011
08/31/2011 08/31/2011 09/01/2011 09/01/2011 10/14/2011 10/18/2011
10/19/2011
10/19/2011 11/01/2011 11/02/2011
11/02/2011 11/15/2011 11/16/2011

12 MOTION to Amend/Correct 2 Complaint by Gregory Holt (pag)(copy mailed) (Entered: 07/21/2011)
13 EXHIBITS filed by Gregory Holt to 2 Complaint. (pag)(copy mailed) (Entered: 07/21/2011)
14 MOTION for Copies by Gregory Holt (pag)(copy mailed) (Entered: 07/27/2011)
15 BRIEF IN SUPPORT re 11 Motion for Extension of Time to File Response/Reply filed by Gregory Holt. (pag)(copy mailed) (Entered: 07/27/2011)
16 Letter from Robert Hawk (pag)(copy mailed) (Entered: 07/28/2011)
17 MOTION for Leave to Proceed in forma pauperis by Gregory Holt (pag)(copy mailed) (Entered: 08/03/2011)
18 ORDER granting 14 Plaintiff's Motion for Copies; and directing the Clerk of the Court to mail to Plaintiff copies of Docket Entries 11 , 12 , and 15 . Signed by Magistrate Judge Joe J. Volpe on 8/4/2011. (srw) (Entered: 08/04/2011)
20 ORDER granting 17 Plaintiff's Application to Proceed Without Prepayment of Fees; denying as moot 11 Plaintiff's Motion for Extension of Time; directing monthly payments be made from Plaintiff's institutional account for the statutory filing fee of $350; directing the Clerk of the Court to send a copy of this Order to the Warden of the Cummins Unit and appropriate ADC offices; and finding service is not appropriate at this time. Signed by Magistrate Judge Joe J. Volpe on 8/9/2011. (srw) (Entered: 08/09/2011)
22 MOTION for Service by Gregory Holt (pag)(copy mailed) (Entered: 09/01/2011)
23 NOTICE to the Court by Gregory Holt (pag)(copy mailed) (Entered: 09/01/2011)
24 DECLARATION of Vernell Conley, by Gregory Holt. (kdr) (Entered: 09/02/2011)
25 DECLARATION of Carlos Gutierrez, by Gregory Holt. (kdr) (Entered: 09/02/2011)
27 MOTION for Copies by Gregory Holt (pag)(copy mailed) (Entered: 10/14/2011)
28 ORDER rejecting Magistrate Judge Joe J. Volpe's proposed findings and recommended partial disposition; granting 3 Plaintiff's Motion for Preliminary Injunction and TRO; and remanding the case to Judge Volpe to hold a temporary injunction hearing and permit defendants to present evidence showing that the Arkansas Department of Correction's beard grooming policy, which restricts Holt's First Amendment right to observe his religion, is the least restrictive means of achieving the security goals sought by the policy. Signed by Judge Brian S. Miller on 10/18/11. (hph) (Entered: 10/18/2011)
30 ORDER granting 12 Plaintiff's Motion to Amend/Correct; granting 27 Plaintiff's Second Motion for Copies; and directing the Clerk of the Court to mail to Plaintiff a copy of the docket sheet and all orders that have been entered in this case. Signed by Magistrate Judge Joe J. Volpe on 10/19/11. (hph) (Entered: 10/19/2011)
32 AMENDED COMPLAINT against All Defendants, filed by Gregory Holt.(hph) (entry modified on 11/3/2011 to correct file date to 10/19/11)(bfw). (Entered: 11/02/2011)
36 Letter from Gregory Holt (pag)(copy mailed) (Entered: 11/03/2011)
33 ORDER granting 22 Plaintiff's Motion for Service; directing the Clerk of the Court to prepare summons for Defendants Hobbs, Lay, Tate, Robertson, Richardson, and May; directing the U.S. Marshal to serve a copy of the 2 Complaint, 32 Amended Complaint, and summons on Defendants without prepayment of fees and costs or security therefore. Signed by Magistrate Judge Joe J. Volpe on 11/2/2011. (srw) (Entered: 11/02/2011)
35 Summons Issued as to All Defendants. (srw) (Entered: 11/03/2011)
37 MOTION for Hearing by Gregory Holt (pag)(copy mailed) (Entered: 11/15/2011)
38 SUMMONS Returned Executed by Gregory Holt. Larry May served on 11/7/2011. (pag) (Entered: 11/16/2011)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 4 of 11

11/16/2011 11/16/2011 11/16/2011 11/16/2011 11/16/2011 11/17/2011 11/28/2011 11/28/2011 11/29/2011 11/29/2011 11/30/2011 11/30/2011 12/01/2011 12/02/2011
12/02/2011
12/07/2011 12/07/2011 12/13/2011 12/13/2011

39 SUMMONS Returned Executed by Gregory Holt. M Richardson served on 11/7/2011. (pag) (Entered: 11/16/2011)
40 SUMMONS Returned Executed by Gregory Holt. V R Robertson served on 11/7/2011. (pag) (Entered: 11/16/2011)
41 SUMMONS Returned Executed by Gregory Holt. D W Tate served on 11/7/2011. (pag) (Entered: 11/16/2011)
42 SUMMONS Returned Executed by Gregory Holt. Gaylon Lay served on 11/7/2011. (pag) (Entered: 11/16/2011)
43 SUMMONS Returned Executed by Gregory Holt. Ray Hobbs served on 11/7/2011. (pag) (Entered: 11/16/2011)
44 SECOND MOTION to Amend/Correct 2 Complaint by Gregory Holt (pag)(copy mailed) (Entered: 11/17/2011)
45 NOTICE of Appearance by Christine A. Cryer on behalf of Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate (Cryer, Christine) (Entered: 11/28/2011)
46 ANSWER to 2 Complaint by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate.(Cryer, Christine) (Entered: 11/28/2011)
47 RESPONSE to Motion re 37 MOTION for Hearing filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 11/29/2011)
48 RESPONSE to Motion re 3 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 11/29/2011)
49 INITIAL SCHEDULING ORDER directing the parties to complete discovery on or before 5/30/2012 and file any dispositive motions on or before 7/2/2012. Signed by Magistrate Judge Joe J. Volpe on 11/30/2011. (srw) (Entered: 11/30/2011)
51 NOTICE of Hearing: Evidentiary Hearing set for 1/4/2012 at 10:00 AM in Little Rock Courtroom # 2C before Magistrate Judge Joe J. Volpe. (srw) (Entered: 11/30/2011)
53 RESPONSE to Motion re 44 MOTION to Amend/Correct 2 Complaint filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Attachments: # 1 Exhibit)(Cryer, Christine) (Entered: 12/01/2011)
54 ORDER directing the Arkansas Department of Correction to transport Plaintiff, with his institutional, medical, and psychiatric files on 1/4/2012 by 9:30 a.m. for a hearing in Courtroom 2C of the Richard Sheppard Arnold U.S. Courthouse, Little Rock, Arkansas. Signed by Magistrate Judge Joe J. Volpe on 12/2/2011. (srw) (Docket text modified on 12/2/2011 to correct the transport date.) (thd). (Entered: 12/02/2011)
NOTICE OF DOCKET CORRECTION re: 54 ORDER directing the Arkansas Department of Correction to transport Plaintiff. CORRECTION: The docket text was modified to correct the transport date to 1/4/2012, as stated in the Order. (thd) (Entered: 12/02/2011)
57 RESPONSE re 46 Answer to Complaint by Gregory Holt (pag)(copy mailed) (Entered: 12/08/2011)
58 REPLY to Response to 3 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Gregory Holt. (pag)(copy mailed) (Entered: 12/08/2011)
59 MOTION for Order to Subpoena by Gregory Holt (pag)(copy mailed) (Image file replaced on 12/21/2011 to correct pdf header issue.)(thd). (Entered: 12/14/2011)
60 REPLY to Response to 44 MOTION to Amend/Correct 2 Complaint filed by Gregory Holt. (pag)(copy mailed) (Image file replaced on 12/21/2011 to correct pdf header issue.)(thd). (Entered: 12/14/2011)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 5 of 11

12/14/2011 12/14/2011 12/16/2011 12/19/2011 12/19/2011 12/20/2011 12/20/2011 12/20/2011 12/22/2011 01/04/2012
01/04/2012 01/09/2012 01/09/2012
01/10/2012 01/18/2012 01/25/2012 01/27/2012
02/02/2012

61 ORDER denying as moot 37 Plaintiff's Motion for Hearing. Signed by Magistrate Judge Joe J. Volpe on 12/14/2011. (srw) (Entered: 12/14/2011)
63 RESPONSE to Motion re 59 MOTION for Order filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 12/14/2011)
64 ORDER denying without prejudice 59 Plaintiff's Motion for Subpoena and Transportation Order. Signed by Magistrate Judge Joe J. Volpe on 12/16/2011. (srw) (Entered: 12/16/2011)
66 THIRD MOTION to Amend/Correct 2 Complaint by Gregory Holt (pag)(copy mailed) (Entered: 12/20/2011)
68 DECLARATION of Inmate filed by Gregory Holt. (pag)(copy mailed) (Entered: 12/20/2011)
67 RESPONSE to Motion re 66 MOTION to Amend/Correct 2 Complaint filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 12/20/2011)
69 REPLY to Response to 59 MOTION for Order filed by Gregory Holt. (pag)(copy mailed) (Entered: 12/20/2011)
70 MOTION for Reconsideration re 64 Order on Motion for Subpoena and Transportation Order by Gregory Holt (pag)(copy mailed) (Entered: 12/20/2011)
71 ORDER denying 70 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge Joe J. Volpe on 12/22/2011. (srw) (Entered: 12/22/2011)
73 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) CLERK'S MINUTE ENTRY for proceedings held before Magistrate Judge Joe J. Volpe: Temporary Injunction Hearing held on 1/4/2012. After hearing testimony from the parties and the admittance of Defendants' exhibits 1−2, the hearing concluded. The Court is taking the case under advisement and a recommended disposition will be entered as soon as possible. (Plaintiff: Pro Se; Defense Counsel: Christine Cyer) (ECRO Stacy Williams) (srw) (Entered: 01/04/2012)
74 Exhibit and Witness List (srw) (Entered: 01/04/2012)
76 MOTION for Order for Transcript at Public Expense by Gregory Holt (pag)(copy mailed) (Entered: 01/09/2012)
77 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER denying 76 Plaintiff's Motion for Order for Transcript at Public Expense. The Plaintiff is not entitled to a transcript at the expense of the public. A letter will follow with the procedures and prices of ordering a transcript. Signed by Magistrate Judge Joe J. Volpe on 1/9/2012. (srw) (Entered: 01/09/2012)
79 Letter from Clerk returning exhibits to Attorney Christine Cryer, counsel for Ray Hobbs and other Defendants, of the Temporary Injunction Hearing held on 1/4/21012. (srw) (Entered: 01/10/2012)
80 OBJECTIONS by Gregory Holt re 77 Order on Motion for Order. (pag)(copy mailed) (Entered: 01/18/2012)
81 MOTION for Order by Gregory Holt (pag)(copy mailed) (Entered: 01/25/2012)
82 PROPOSED FINDINGS AND RECOMMENDATIONS recommending the 28 Court's Order granting Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order be VACATED; recommending 3 Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order be DENIED; recommending 2 Plaintiff's Complaint be DISMISSED with prejudice; recommending dismissal of this action constitute a "strike;" and recommending all pending motions be DENIED as moot. Objections to R&R due no later than 14 days from the date of this recommendation. Signed by Magistrate Judge Joe J. Volpe on 1/27/2012. (srw) (Entered: 01/27/2012)
85 RECEIPT for Exhibits by Christine Cryer, counsel for all Defendants, from the temporary injunction hearing held on 1/4/2012. (srw) (Entered: 02/03/2012)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 6 of 11

02/03/2012 02/08/2012 02/09/2012 02/22/2012 03/13/2012 03/14/2012 03/15/2012 03/20/2012 03/23/2012
03/23/2012 03/27/2012 04/09/2012 04/17/2012 04/19/2012
04/27/2012 04/27/2012 05/11/2012 05/11/2012 05/18/2012

84 RESPONSE to Motion re 81 MOTION for Order filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Attachments: # 1 Exhibit Exhibits A − C)(Cryer, Christine) (Entered: 02/03/2012)
86 OBJECTION to 82 Report and Recommendations by Gregory Holt (pag)(copy mailed) (Entered: 02/08/2012)
87 REPLY to Response to 81 MOTION for Order filed by Gregory Holt. (pag)(copy mailed) (Entered: 02/09/2012)
88 DECLARATION of Paul Smisth submitted by Gregory Holt. (pag)(copy mailed) (Entered: 02/22/2012)
89 MOTION for Emergency Hearing by Gregory Holt (pag)(copy mailed) (Entered: 03/13/2012)
90 RESPONSE to Motion re 89 MOTION for Hearing filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 03/14/2012)
91 EXHIBITS filed by Gregory Holt to 86 Objection to Report and Recommendations. (pag)(copy mailed) (Entered: 03/15/2012)
92 REPLY to Response to 89 MOTION for Hearing filed by Gregory Holt. (pag)(copy mailed) (Entered: 03/20/2012)
93 ORDER adopting proposed findings and recommended disposition; dismissing Holt's complaint with prejudice; dimissal of this action constitutes a "strike" for purposes of 28 U.S.C. § 1915(g); denying 89 Holt's motion for an emergency hearing; and denying all remaining motion as moot. Signed by Judge Brian S. Miller on 3/23/12. (hph) (Entered: 03/23/2012)
94 JUDGMENT : Consistent with the order entered today, this case is hereby dismissed with prejudice and the relief sought is denied. Signed by Judge Brian S. Miller on 3/23/12. (hph) (Entered: 03/23/2012)
96 MOTION for Re−Hearing, or in the alternative, Motion for Stay of Order Pending Appeal filed by Gregory Holt (pag)(copy mailed) Modified on 4/9/2012 to correct typographical error(pag). (Entered: 03/27/2012)
97 Letter from Gregory Holt regarding Motion for Rehearing. (pag)(copy mailed) (Entered: 04/09/2012)
98 MOTION for Extension of Time to File Notice of Appeal by Gregory Holt (pag)(copy mailed) (Entered: 04/17/2012)
99 ORDER granting 96 Motion for Hearing; granting 98 Motion for Extension of Time. The 3/23/12 Order is stayed pending appeal and Holt has up to and including 14 days from the date of this order to file a notice of appeal. Signed by Judge Brian S. Miller on 4/19/12. (hph) (ORDER IS VACATED PER 136 ORDER). (Entered: 04/19/2012)
101 NOTICE OF APPEAL as to 82 Report and Recommendations 93 Order Adopting Report and Recommendations, 94 Judgment, 99 Order by Gregory Holt. (copy mailed)(dac) (Entered: 04/27/2012)
102 Appellate Filing Fee Notice with IFP Application and Calculation Sheet issued to Gregory Holt; Response due by 6/1/2012 (copy mailed)(dac) (Entered: 04/27/2012)
103 NOTICE of Change of Address to VMS Post Office Box 600, Grady, AR 71644 by Gregory Holt (copy mailed) (dac) (Entered: 05/11/2012)
104 MOTION for Extension of Time to File Response as to 102 Appellate Filing Fee Notice by Gregory Holt (copy mailed) (dac) (Entered: 05/11/2012)
105 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 104 motion for extension of time to file in forma pauperis appellate filing fee application up to and including 6/26/2012. Signed by Judge Brian S. Miller on 5/18/2012. (csb) (Entered: 05/18/2012)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 7 of 11

06/01/2012 06/21/2012 07/05/2012 07/10/2012 08/17/2012 08/30/2012
08/31/2012 09/05/2012 09/13/2012
09/14/2012
09/17/2012 09/17/2012 09/19/2012
10/24/2012 10/29/2012 11/05/2012 11/08/2012 11/16/2012 01/08/2013 01/16/2013

107 MOTION for Leave to Appeal in forma pauperis by Gregory Holt (copy mailed) (dac) (Entered: 06/01/2012)
108 MOTION for Order For Review and Application For Permissionn to File Brief by Gregory Holt (dac) (Entered: 06/21/2012)
109 RESPONSE in Opposition re 108 MOTION for Order filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Attachments: # 1 Exhibit AD Seg documents)(Cryer, Christine) (Entered: 07/05/2012)
110 REPLY to Response to Motion re 108 MOTION for Review and Application for Permission to file Brief filed by Gregory Holt. (dac) (Entered: 07/10/2012)
111 MOTION for Relief from Harassment by ADC Officers by Gregory Holt (dac) (Entered: 08/17/2012)
112 RESPONSE in Opposition re 111 MOTION for Relief from harassment by ADC Officers filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Attachments: # 1 Exhibit Policy and Confiscation Form)(Cryer, Christine) (Entered: 08/30/2012)
113 NOTICE of filing Affidavit of Marris Walton and Grievance form by Gregory Holt (dac) (Entered: 08/31/2012)
114 AFFIDAVIT of Robert Fairchild by Gregory Holt. (dac) (Entered: 09/05/2012)
115 ORDER granting 107 Plaintiff Gregory Holt's motion for leave to appeal in forma pauperis; denying as moot 108 Holt's motion for order; and, denying 111 Holt's motion for relief. Signed by Chief Judge Brian S. Miller on 9/13/2012. (kdr) (Entered: 09/13/2012)
116 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 94 Judgment, 93 Order Adopting Report and Recommendations, 101 Notice of Appeal, 115 Order on Motion for Leave to Appeal in forma pauperis 82 REPORT AND RECOMMENDATIONS (dac) (Entered: 09/14/2012)
117 USCA Docketing Letter as to 101 Notice of Appeal filed by Gregory Holt. USCA Case Number 12−3185 (dac) (Entered: 09/17/2012)
118 ORDER of USCA Clerk of the United States District Court is requested to forward to this Court any portions of the original record which are not available in an electronic format as to 101 Notice of Appeal filed by Gregory Holt (dac) (Entered: 09/17/2012)
119 USCA Scheduling Order Clerk of the United States District Court is requested to forward to this Court any portions of the original record which are not available in an electronic format as to 101 Notice of Appeal filed by Gregory Holt. (dac) (Entered: 09/19/2012)
120 Amended NOTICE OF APPEAL as to 115 Order, by Gregory Holt. (mcz) (Entered: 10/25/2012)
121 USCA Docketing Letter as to 120 Amended Notice of Appeal filed by Gregory Holt. USCA Case Number 12−3556. (cby) (Entered: 10/29/2012)
122 MOTION for Leave to File Late Notice of Appeal by Gregory Holt (dac) (Entered: 11/05/2012)
123 ORDER denying 122 Motion for Leave to File a Late Notice of Appeal. Signed by Chief Judge Brian S. Miller on 11/8/12. (dac) (Entered: 11/08/2012)
124 USCA JUDGMENT as to 101 Notice of Appeal and 120 Amended Notice of Appeal filed by Gregory Holt is dismissed for lack of jurisdiction (dac) (Docket entry modified on 1/16/2013 to correct the linkage.) (thd). (Entered: 11/16/2012)
125 Transmitted Record on Appeal to US Court of Appeals: One (1) CD of the 1/4/2012 hearing re 120 Amended Notice of Appeal, 101 Notice of Appeal (mcz) (Entered: 01/08/2013)
NOTICE OF DOCKET CORRECTION re: 124 USCA Judgment. CORRECTION: The docket entry was modified to correct the linkage to 101 Notice of Appeal and 120

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 8 of 11

01/16/2013 01/28/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/17/2013 07/24/2013 07/25/2013 08/19/2013 09/16/2013 09/25/2013 09/26/2013 10/15/2013 11/20/2013 11/21/2013 11/25/2013

Amended Notice of Appeal. (thd) (Entered: 01/16/2013)
126 MANDATE of USCA in accordance with the judgment of 11/16/2012 as to 101 Notice of Appeal and 120 Amended Notice of Appeal filed by Gregory Holt. (mcz) (Entered: 01/16/2013)
127 Acknowledgment of Receipt of Record from USCA. (mcz) (Entered: 01/28/2013)
128 OPINION of USCA as to 101 Notice of Appeal filed by Gregory Holt (mcz) (Entered: 06/12/2013)
129 USCA JUDGMENT as to 101 Notice of Appeal filed by Gregory Holt: The judgment of the district court is affirmed in accordance with the opinion of this Court. (mcz) VACATED pursuant to 147 USCA Order on 3/4/2015 (mcz). (Entered: 06/12/2013)
130 MOTION to Vacate 99 Order on Motion for Hearing, Order on Motion for Extension of Time to File Response/Reply,, by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate (Cryer, Christine) (Entered: 06/12/2013)
131 BRIEF IN SUPPORT re 130 Motion to Vacate filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 06/12/2013)
132 RESPONSE to 130 MOTION to Vacate 99 Order on Motion for Hearing, Order on Motion for Extension of Time to File Response/Reply filed by Gregory Holt. (tjb) (Entered: 06/17/2013)
133 MANDATE of USCA in accordance with the opinion and judgment of 06/12/2013 as to 101 Notice of Appeal filed by Gregory Holt. (mcz) RECALLED pursuant to 147 USCA Order on 3/4/2015 (mcz). (Entered: 07/24/2013)
134 MOTION to Continue Injunction Pending Further Appellate Remedies, by Gregory Holt (mcz) (Entered: 07/25/2013)
135 Appeal Record Returned: 125 One (1) CD of the 1/4/2012 hearing re 101 Notice of Appeal and 120 Amended Notice of Appeal. (mcz) (Entered: 08/20/2013)
136 ORDER granting 130 Defendants' motion to suspend; denying 134 Holt's motion to continue the injunction; and vacating 99 the April 19, 2012 Order. Signed by Chief Judge Brian S. Miller on 9/16/2013. (kdr) (Entered: 09/16/2013)
137 MOTION for Reconsideration of 136 Order and MOTION to Expedite by Gregory Holt (tjb) (Entered: 09/25/2013)
138 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER denying 137 Motion for Reconsideration ; denying 137 Motion to Expedite. Signed by Chief Judge Brian S. Miller on 9/26/13. (sgw) (Entered: 09/26/2013)
139 Letter from USCA Clerk: The Petition for Writ of Certiorari has been filed with the Supreme Court re: USCA No. 12−3185. (mcz) (Entered: 10/16/2013)
140 MOTION to Continue Injunctive Relief Pending Petition for Certiorari, by Gregory Holt. (kdr) (Entered: 11/20/2013)
141 ORDER denying 140 Holt's motion to reinstate injunctive relief for lack of jurisdiction as the matter is currently pending certiorari before the United States Supreme Court. Signed by Chief Judge Brian S. Miller on 11/21/2013. (kdr) (Entered: 11/21/2013)
142 TRANSCRIPT of Hearing on Motion for Temporary Injunction Proceedings held on January 4, 2012, before Magistrate Judge Joe J. Volpe. Court Recorder − Stacy Williams, Transcription Service − Robin Warbritton. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/5/2013. Redaction Request due 12/16/2013. Redacted Transcript Deadline set for 12/26/2013. Release of Transcript Restriction set for 2/24/2014. (plm) (Entered: 11/25/2013)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 9 of 11

01/07/2014 03/12/2014 08/11/2014
08/11/2014
03/04/2015
03/12/2015
03/12/2015 03/12/2015 03/12/2015 03/13/2015 03/18/2015 03/18/2015
03/24/2015 03/26/2015 03/26/2015
04/01/2015 04/03/2015

143 EXHIBITS by Gregory Holt. (kdr) (Entered: 01/07/2014)
144 Letter from USCA Clerk: The Motion to Proceed IFP and Petition for Writ of Certiorari have been granted by the Supreme Court re: USCA Case No. 12−3185. (mcz) (Entered: 03/13/2014)
145 Letter from USCA Clerk: The 8th Circuit Record has been transmitted to the Supreme Court. The district court record has been returned to the Clerk of the District Court. We are requesting the district court transmit their record directly to you. (mcz) (Entered: 08/11/2014)
146 Transmitted Record on Appeal to US Supreme Court re 101 Notice of Appeal and 120 Amended Notice of Appeal − USCA Case No. 12−3185; S.Ct Case No. 13−6827: One (1) CD and one (1) transcript of hearing of 1/4/2012 before Magistrate Judge Joe J. Volpe. (mcz) (Entered: 08/11/2014)
147 ORDER of USCA as to 101 Notice of Appeal and 120 Amended Notice of Appeal filed by Gregory Holt: Pursuant to the Order of the U.S. Supreme Court dated 1/20/2015 and the U. S. Supreme Court's mandate of 2/23/2015, this court's judgment of 6/12/2013 is vacated, the mandate is hereby recalled, and the case is reopened. (mcz) (Entered: 03/06/2015)
148 USCA JUDGMENT as to 101 Notice of Appeal filed by Gregory Holt: Upon consideration of the Judgment of the United States Supreme Court, the case is remanded to the district court for further proceedings consistent with the Supreme Court's opinion. (mcz) (Entered: 03/12/2015)
149 MANDATE of USCA as to 120 Amended Notice of Appeal filed by Gregory Holt. (mcz) (Entered: 03/12/2015)
150 MOTION to Dismiss Case as Moot by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate (Attachments: # 1 Exhibit AD 15−04 ADC Grooming Policy)(Cryer, Christine) (Entered: 03/12/2015)
151 Appeal Record Returned from United States Supreme Court: One (1) CD and one (1) transcript of hearing of 1/4/2012 before Magistrate Judge Joe J. Volpe. (mcz) (Entered: 03/12/2015)
152 ORDER directing Plaintiff to file a response to Defendants' motion to dismiss by 4/3/2015 150 . Signed by Magistrate Judge Joe J. Volpe on 3/13/2015. (lej) (Entered: 03/13/2015)
153 MOTION to Extend Time by Gregory Holt. (ljb) (Entered: 03/18/2015)
154 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 153 Motion to Extend Time. Plaintiff shall have until May 15, 2015 to respond. If Plaintiff's counsel is representing Mr. Holt beyond the scope of his case before the United States Supreme Court, he shall enter an appearance forthwith. Signed by Magistrate Judge Joe J. Volpe on 3/18/15. (Volpe, Joe) (Entered: 03/18/2015)
155 MOTION for Contempt by Gregory Holt (tjb) (Entered: 03/24/2015)
156 RESPONSE in Opposition re 155 MOTION for Contempt filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 03/26/2015)
157 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER denying the motion for contempt, filed by a non−party to this suit, for a lack of standing 155 . Mr. Coe has already commenced his own lawsuit on this issue, case number 1:15cv00037−JLH−JJV. All filings pertaining to that suit should be filed therein. Signed by Magistrate Judge Joe J. Volpe on 3/26/2015. (lej) (Entered: 03/26/2015)
158 NOTICE of Appearance by Patrick J. Benca on behalf of Gregory Holt (Benca, Patrick) (Entered: 04/01/2015)
159 MOTION for Leave to Appear pro hac vice by Douglas Laycock. Fee $100.00 receipt number LIT050807. Filed by Gregory Holt. (alm) (Entered: 04/03/2015)

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 10 of 11

04/09/2015 05/14/2015 05/14/2015 05/15/2015 05/15/2015
06/04/2015 06/09/2015 06/22/2015 06/23/2015 06/23/2015 07/23/2015 08/10/2015 11/03/2015 11/17/2015 11/20/2015 11/27/2015 11/27/2015 11/30/2015
12/01/2015 12/02/2015

160 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting Attorney Douglas Laycock's motion to appear pro hac vice 159 . Signed by Magistrate Judge Joe J. Volpe on 4/9/2015. (lej) (Entered: 04/09/2015)
161 First MOTION to Extend Time by Gregory Holt (Benca, Patrick) (Additional attachment(s) added on 5/18/2015: # 1 Main Document − Correct) (jak). (Entered: 05/14/2015)
162 First MOTION for Permanent Injunction by Gregory Holt (Benca, Patrick) (Additional attachment(s) added on 5/18/2015: # 1 Main Document − Correct) (jak). (Entered: 05/14/2015)
163 Deficiency Letter from Clerk of Court notifying party that 161 Motion to Extend Time and 162 Motion for Permanent Injunction lack a certificate showing service of the document (F.R.Cv.P. 5(d)(1)). (jak) (Entered: 05/15/2015)
164 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting Plaintiff's motion to extend time to 6/29/15 to file a petition for attorneys' fees 161 . Signed by Magistrate Judge Joe J. Volpe on 5/15/2015. (lej) (Entered: 05/15/2015)
165 PERMANENT INJUNCTION. Signed by Chief Judge Brian S. Miller on 6/4/2015. (kdr) (Entered: 06/04/2015)
166 NOTICE by All Defendants Joint Notice Regarding Costs and Fees (Cryer, Christine) (Entered: 06/09/2015)
167 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER terminating Defendants' motion to dismiss 150 . Signed by Magistrate Judge Joe J. Volpe on 6/22/2015. (lej) (Entered: 06/22/2015)
168 ORDER dismissing this case, with prejudice. Signed by Chief Judge Brian S. Miller on 6/23/2015. (kdr) (Entered: 06/23/2015)
169 JUDGMENT: Consistent with 168 the order entered this date, this case is dismissed with prejudice. Signed by Chief Judge Brian S. Miller on 6/23/2015. (kdr) (Entered: 06/23/2015)
170 Letter to the Court from Nonparty Wayde E. Stewart. (kdr) (The docket text was modified on 8/10/2015 correct the filer.) (thd). (Entered: 07/24/2015)
NOTICE OF DOCKET CORRECTION re: 170 Letter to the Court. CORRECTION: The docket text was modified to indicate the Letter was submitted by nonparty Wayde E. Stewart. (thd) (Entered: 08/10/2015)
171 MOTION to Reopen Case by Gregory Holt. (ljb) (Entered: 11/03/2015)
172 RESPONSE in Opposition re 171 MOTION to Reopen Case filed by Ray Hobbs, Gaylon Lay, Larry May, M Richardson, V R Robertson, D W Tate. (Cryer, Christine) (Entered: 11/17/2015)
173 ORDER denying 171 Plaintiff Gregory Holt's motion to reopen case. Signed by Chief Judge Brian S. Miller on 11/20/2015. (kdr) (Entered: 11/20/2015)
174 MOTION for Reconsideration by Gregory Holt. (ljb) (Entered: 11/27/2015)
175 REPLY to Response to 171 Motion to Reopen Case filed by Gregory Holt. (ljb) (Entered: 11/27/2015)
176 ORDER directing Attorneys Douglas Laycock and Patrick J. Benca to file notice forthwith indicating whether they are still representing Holt or whether they should be removed as attorneys of record. Signed by Chief Judge Brian S. Miller on 11/30/2015. (kdr) (Entered: 11/30/2015)
177 First MOTION to Withdraw as Attorney (), First MOTION to Withdraw as Attorney by Gregory Holt (Benca, Patrick) (Additional attachment(s) added on 12/2/2015: # 1 Main Document − Correct (submitted 12/2/2015)) (jak). (Entered: 12/01/2015)
178 Deficiency Letter from Clerk of Court notifying party that 177 Motion to Withdraw as Attorney lacks a certificate showing service of the document ((F.R.Cv.P. 5(d)(1)).

Case: 5:11-cv-164 As of:04/19/2017 08:38 PM CDT 11 of 11

12/02/2015
12/17/2015 02/09/2016 02/10/2016

(jak) (Entered: 12/02/2015)
179 ORDER granting 177 Attorneys Douglas Laycock's and Patrick J. Benca's request for leave to withdraw as counsel; and directing the clerk to mail plaintiff a copy of 173 motion to reopen his case, 176 order directing his attorneys to file notice, and a copy of this order. Signed by Chief Judge Brian S. Miller on 12/2/2015. (kdr) (Entered: 12/02/2015)
180 ORDER denying 174 Motion for Reconsideration; Holt's memorandum 175 illustrates that his claims are unrelated to whether he should be permitted to wear a half−inch beard; thus, if he wishes to pursue his new claims, he must file a new case. Signed by Chief Judge Brian S. Miller on 12/17/15. (tjb) (Entered: 12/17/2015)
181 MOTION for Copies of documents 3 4 174 and 175 by Gregory Holt (tjb) (Entered: 02/09/2016)
182 ORDER granting 181 Plaintiff Gregory Holt's motion for copies; and directing the clerk to forward Holt a copy of 3 his motion for a preliminary injunction and 4 brief in support, and 174 his motion for reconsideration and 175 brief in support. Signed by Chief Judge Brian S. Miller on 2/10/2016. (kdr) (Entered: 02/10/2016)

 
 General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 12-3185 Nature of Suit: 3555 Prison Condition Gregory Holt v. Ray Hobbs, et al Appeal From: U.S. District Court for the Eastern District of Arkansas - Pine Bluff Fee Status: plra

Docketed: 09/17/2012 Termed: 06/12/2013

Case Type Information: 1) Prisoner 2) State 3) Civil Rights

Gregory Houston Holt, also known as Abdul Maalik Muhammad (State Prisoner: 129616)
Plaintiff - Appellant
v.

Gregory Houston Holt [NTC Pro Se] VARNER CORRECTIONAL FACILITY P.O. Box 600 Grady, AR 71644-0600

Ray Hobbs, Director, Arkansas Department of Correction
Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] ATTORNEY GENERAL'S OFFICE Firm: 501-682-2007 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000

Gaylon Lay, Warden, Cummins Unit, ADC Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] (see above)

D W Tate, Captain, Cummins Unit, Arkansas Department of Correction
Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] (see above)

V. R. Robertson, Major, Cummins Unit, Arkansas Department of Correction
Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] (see above)

M. Richardson, Sgt., Cummins Unit, Arkansas Department of Correction
Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] (see above)

Larry May, Chief Deputy Director, Arkansas Department of Correction
Defendant - Appellee

Christine Ann Cryer, Assistant Attorney General [NTC Asst. Atty General] (see above)

Gregory Houston Holt, also known as Abdul Maalik Muhammad

Plaintiff - Appellant
v.
Ray Hobbs, Director, Arkansas Department of Correction; Gaylon Lay, Warden, Cummins Unit, ADC; D W Tate, Captain, Cummins Unit, Arkansas Department of Correction; V. R. Robertson, Major, Cummins Unit, Arkansas Department of Correction; M. Richardson, Sgt., Cummins Unit, Arkansas Department of Correction; Larry May, Chief Deputy Director, Arkansas Department of Correction
Defendants - Appellees

09/17/2012
5 pg, 19.62 KB

Prisoner case docketed. [3954057] [12-3185] (EDG)

09/17/2012

34 pg, 386.85 KB

Originating court document filed consisting of notice of appeal, docket entries, Recommendation dated 1/27/12, Order and Judgment both dated 3/23/12, and Order dated 9/13/12 from the district court. [3954066] [123185] (EDG)

09/17/2012
1 pg, 5.59 KB

CLERK ORDER:If the original file of the United States District Court is available for review in electronic format, the court will rely on the electronic version of the record in its review. The appendices required by Eighth Circuit Rule 30A shall not be required. In accordance with Eighth Circuit Local Rule 30A(a)(2), the Clerk of the United States District Court is requested to forward to this Court forthwith any portions of the original record which are not available in an electronic format through PACER, including any documents maintained in paper format or filed under seal, exhibits, administrative records and state court files. Kindly submit these documents within 10 days. [3954067] [12-3185] (EDG)

09/17/2012
1 pg, 16.32 KB

APPEARANCE filed by Christine A. Cryer for Appellees Ray Hobbs, Gaylon Lay, Mr. Larry May, M. Richardson, V. R. Robertson and D W Tate w/service 09/17/2012 [3954103] [12-3185] (CAC)

09/19/2012
2 pg, 13.71 KB

BRIEFING SCHEDULE SET AS FOLLOWS: If the original file of the U.S. District Court is available for review in electronic format, the court will rely on the electronic version of the record in its review. The appendices required by 8th Circuit Rule 30A shall not be required. In accordance with 8th Circuit Local Rule 30A (a)(2), the clerk of the United States District Court is requested to forward to this Court forthwith any portions of the original record which are not available in an electronic format or filed under seal, exhibits, administrative records and state court files. BRIEF OF APPELLANT Gregory Houston Holt due 10/29/2012. Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant. Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief. [3955041] [12-3185] (EDG)

09/21/2012
3 pg, 54.06 KB

MOTION for appointment of counsel, filed by pro se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 09/25/2012. [3956425] [12-3185] (DMW)

09/27/2012
1 pg, 5.45 KB

JUDGE ORDER: [3956425-2] The motion for appointment of counsel, filed by Appellant Mr. Gregory Houston Holt, has been considered by the court and is hereby denied. --Adp Oct 2012 [3957808] [12-3185] (DMW)

09/28/2012
4 pg, 82.08 KB

MOTION to stay/hold briefing schedule in abeyance pending a ruling on motion for appointment of counsel (with cover letter requesting copy of pleadings and concerning name); filed by pro se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 10/02/2012. [3959174] [12-3185] (DMW)

10/02/2012
1 pg, 5.61 KB

CLERK ORDER: Appellant's motion to stay the briefing schedule pending ruling on motion for appointment of counsel is hereby denied as moot [3959174-2]. The motion for appointment of counsel was denied on September 27, 2012. [3959176] [12-3185] (DMW)

10/02/2012

CLERK LETTER sent to appellant regarding requested copies and

1 pg, 77.37 KB additional name. [3959177] [12-3185] (DMW)

10/05/2012

MOTION for Transcript at Public Expense, filed by Appellant Mr. Gregory

3 pg, 48.98 KB Houston Holt, w/service 10/03/2012. [3961417] [12-3185] (LAB)

10/15/2012
1 pg, 5.11 KB

JUDGE ORDER: [3961417-2] The motion for transcript at government expense has been considered by the court and is denied. -- . Adp Oct 2012 [3963588] [12-3185] (DMS)

10/17/2012

MOTION for extension of time to file brief, filed by Appellant Mr.

3 pg, 50.63 KB Gregory Houston Holt w/service 10/15/2012. [3966276] [12-3185] (SRD)

10/22/2012
1 pg, 5.04 KB

CLERK ORDER:Granting [3966276-2] motion for extension of time to file brief filed by Appellant Mr. Gregory Houston Holt. Brief of Gregory Houston Holt due 11/13/2012 [3966278] [12-3185] (SRD)

10/25/2012

23 pg, 568.83 KB

BRIEF FILED - APPELLANT BRIEF filed by Mr. Gregory Houston Holt; w/service by USCA8 on 10/29/2012, FIVE Copies; Length: 18 pages. Brief of Ray Hobbs, Gaylon Lay, Larry May, M. Richardson, V. R. Robertson and D W Tate due on 11/26/2012 [3968879] [12-3185]-[Edited 10/30/2012 by SRD] (DMW)

11/02/2012
3 pg, 44.14 KB

LETTER from Appellant Mr. Gregory Houston Holt in 12-3185, 12-3556 inquiring about the cases; w/service 11/05/2012 [3971491] [12-3185, 123556] (DMW)

11/05/2012
1 pg, 8.26 KB

CLERK LETTER sent to appellant in response to his letter of inquiry dated 10-30-2012. [3971494] [12-3185, 12-3556] (DMW)

11/20/2012
3 pg, 82.56 KB

MOTION for extension of time to file brief until 12/10/2012 at 05:00 pm, filed by Attorney Ms. Christine Ann Cryer for Appellees D W Tate, Mr. Larry May, Gaylon Lay, Ray Hobbs, V. R. Robertson and M. Richardson w/service 11/20/2012. [3976982] [12-3185] (CAC)

11/21/2012
1 pg, 70.17 KB

CLERK ORDER: Granting [3976982-2] motion for extension of time to file brief filed by Ms. Christine Ann Cryer. Brief of Ray Hobbs, Gaylon Lay, Larry May, M. Richardson, V. R. Robertson and D W Tate due 12/10/2012. [3977367] [12-3185] (DMW)

11/26/2012
2 pg, 22.43 KB

LETTER from Appellant Mr. Gregory Houston Holt inquiring as to the status of the case. w/service 11/29/2012 by USCA-8. [3979768] [12-3185] (MDS)

11/29/2012

CLERK LETTER sent regarding appellant's inquiry as to the status of the

1 pg, 24.94 KB case. [3979786] [12-3185, 12-3556] (MDS)

12/10/2012
0 pg, 0 KB

APPELLEE brief of Ray Hobbs, Gaylon Lay, Mr. Larry May, M. Richardson, V. R. Robertson and D W Tate submitted for review. The time for filing the subsequent brief does not begin to run until the brief has been approved and filed. [3983201] [12-3185] (CAC)

12/10/2012
0 pg, 0 KB

Addendum of APPELLEE submitted for review by Ray Hobbs, Gaylon Lay, Mr. Larry May, M. Richardson, V. R. Robertson and D W Tate [3983203] [12-3185]--[Edited 12/11/2012 by LMT] (CAC)

12/11/2012
1 pg, 8.29 KB

Brief deficiency notice sent to counsel, Attorney Ms. Christine Ann Cryer for Appellees D W Tate, Mr. Larry May, Gaylon Lay, Ray Hobbs, V. R. Robertson and M. Richardson. [3983385] [12-3185] (LMT)

12/11/2012
0 pg, 0 KB

APPELLEE brief of Ray Hobbs, Gaylon Lay, Mr. Larry May, M. Richardson, V. R. Robertson and D W Tate submitted for review. The time for filing the subsequent brief does not begin to run until the brief has been approved and filed. [3983388] [12-3185] (CAC)

12/11/2012

ADDENDUM of APPELLEE FILED by Appellees Ray Hobbs, et al..

21 pg, 813.4 KB w/service 12/10/2012 [3983389] [12-3185] (LMT)

12/11/2012

30 pg, 260.15 KB

BRIEF FILED - APPELLEE BRIEF filed by Ray Hobbs, et al. w/service 12/10/2012 , Length: 4414 words 10 COPIES OF PAPER BRIEFS FROM Ray Hobbs due 12/17/2012 WITH revised certificate of service for paper briefs . [3983468] [12-3185] (Edited to reflect no reply brief due date set at this time. Deadline to be established upon filing of paper appellee brief)-[Edited 12/12/2012 by LMT] (LMT)

12/12/2012

Paper copies Appellee/Respondent brief, [3983468-2] filed by Ray Hobbs, et al. 10 paper copies received. w/Addendum attached [3985170] [12-3185]--[Edited 12/14/2012 by LMT] (LMT)

12/17/2012
6 pg, 65.73 KB

MOTION for extension of time to file reply brief, filed by pro se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 12/19/2012. [3986765] [12-3185] (DMW)

12/19/2012
1 pg, 5.31 KB

CLERK ORDER: Granting [3986765-2] motion for extension of time to file brief filed by Appellant Mr. Gregory Houston Holt. Reply brief of Gregory Houston Holt due 01/09/2013 [3986767] [12-3185] (DMW)

12/26/2012
20 pg, 431.8 KB

BRIEF FILED - APPELLANT REPLY BRIEF filed by Mr. Gregory Houston Holt. w/service 12/21/2012; 5 copies by USCA-8. , Length: 19 pages. [3990349] [12-3185] (MDS)

01/10/2013

RECORD FILED - MISC. RECORD, Location STL, Comments: 1 envelope containing 1 CD of Hearing held on 1/14/2012 [ Return to the District Court at end of case], Source Location: USDC / EA [3993152]

[12-3185] (STL)

01/14/2013
2 pg, 29.6 KB

Mail sent to Appellant Mr. Gregory Houston Holt on 01/03/2013 was returned on 01/14/2013 Reason Mail Returned: Pursuant to appellant's request, a file-stamped copy of his REPLY brief was mailed to him in his SASE on 1/3/13. However, this item was returned for insufficient funds on the SASE. [3994598] [123185] (DMW)

01/14/2013
2 pg, 27.74 KB

LETTER from Appellant Mr. Gregory Houston Holt requesting of filestamped copy Reply brief; w/service by USCA8 on 01/15/2013. (FILESTAMPED COPY OF REPLY BRIEF WAS MAILED on 1/3/13, but was returned b/c SASE has insufficient postage. A COPY OF REPLY BRIEF IS BEING MAILED TO APPELLANT again on 1/15/13.) [3994605] [123185] (DMW)

03/07/2013
3 pg, 58.01 KB

BRIEF FILED- "SUPPLEMENT TO BRIEF," filed by Pro Se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 03/07/2013, Length: 2 pages. [4012349] [12-3185] (DMW)

06/06/2013

CASE SUBMITTED Screening Case Submission before Judges Kermit E. Bye, Morris S. Arnold, Bobby E. Shepherd in St. Louis [4043125] [123185] (DMW)

06/12/2013
4 pg, 62.35 KB

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Morris S. Arnold and Bobby E. Shepherd. --(UNPUBLISHED)-- [4044433] [123185] (DMW)

06/12/2013
1 pg, 5.83 KB

JUDGMENT FILED - The judgment of the Originating Court is AFFIRMED in accordance with the opinion. --Scrg Spring 2013-[4044435] [12-3185] (DMW)

06/25/2013
4 pg, 53.1 KB

PETITION for enbanc rehearing and also for rehearing by panel filed by Pro Se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 06/26/2013. [4049083] [12-3185] (DMW)

07/17/2013
1 pg, 5.18 KB

JUDGE ORDER: [4049083-2] The petition for enbanc rehearing, filed by Appellant Mr. Gregory Houston Holt, is denied. The petition for panel rehearing is also denied [4049083-3]. --Scrg Spring 2013 [4055622] [123185] (DMW)

07/24/2013
1 pg, 5.24 KB

MANDATE ISSUED. [4057869] [12-3185] (DMW)

07/26/2013
4 pg, 81.65 KB

MOTION to recall the mandate and stay the mandate pending petition for certiorari, filed by Pro Se Appellant Mr. Gregory Houston Holt; w/service by USCA8 on 07/29/2013. [4059118] [12-3185] (DMW)

08/01/2013
1 pg, 5.54 KB

JUDGE ORDER: [4059118-2] The motion to recall the mandate and to stay the mandate, filed by Appellant Mr. Gregory Houston Holt, has been considered by the court and is denied. --Scrg Spring 2013 [4060949] [123185] (DMW)

08/06/2013

CLERK LETTER sent returning petition for rehearing. [4062390] [12-

2 pg, 101.75 KB 3185] (DMW)

08/12/2013
1 pg, 5.1 KB
08/12/2013
3 pg, 35.38 KB
08/13/2013
1 pg, 7.71 KB
08/21/2013
2 pg, 28.53 KB
08/28/2013
1 pg, 7.82 KB
10/10/2013
2 pg, 63.49 KB
11/14/2013
1 pg, 25.19 KB
03/03/2014
2 pg, 88.61 KB
07/15/2014
1 pg, 7.73 KB
08/11/2014
1 pg, 7.72 KB

RECORD RETURNED - MISC. RECORD, Comments: 1 envelope containing 1 CD of Hearing held on 1/14/2012 [ Return to the District Court at end of case], SENT -END OF CASE [4063909] [12-3185] (JJF)
DOCUMENT FILED - Pro se document titled "Motion for Copies"- filed filed by Mr. Gregory Houston Holt; w/service by USCA8 on 08/13/2013 [4064437] [12-3185] (DMW)
CLERK LETTER sent to Appellant Mr. Holt (providing copies of his pro se Petition for Rehearing and also his Motion to recal the mandate and stay the mandate). [4064438] [12-3185] (DMW)
LETTER from Appellant Mr. Gregory Houston Holt inquiring about copies previously requested; w/service by USCA8 on 08/28/2013 [4069591] [123185] (DMW)
CLERK LETTER sent to Appellant Mr. Holt in response of his letter dated 8/16/13. [4069594] [12-3185] (DMW)
U.S. Supreme Court Notice of cert filed in the Supreme Court on 09/27/2013, case No. 13-6827 [4085782] [12-3185] (SRD)
SUPREME COURT order filed--other. Order filed on 11/14/2013 in case No.13-6827. [4097011] [12-3185] (DMW)
SUPREME COURT order filed granting leave to proceed in forma pauaperis and granting the petition for writ of certiorari. Order filed on 03/03/2014 in case No.13-6827. [4132628] [12-3185] (SRD)
8th Circuit record sent to Supreme Court on 07/15/2014 - consisting of complete copy of pleadings file,all briefsof records and 1 volume of appendix. [12-3185] (JJF)
8th Circuit record sent to Supreme Court on 08/11/2014 - consisting of our record and all of the briefs. [12-3185] (JJF)

	  

 
 11/13/2014

Search - Supreme Court of the United States

No. 13-6827 Title: Docketed: Linked with 13A374 Lower Ct:
Case Nos.: Decision Date: Rehearing Denied: Questions Presented

Gregory Houston Holt, aka Abdul Maalik Muhammad, Petitioner v. Ray Hobbs, Director, Arkansas Department of Correction, et al. October 10, 2013
United States Court of Appeals for the Eighth Circuit (12-3185) June 12, 2013 July 17, 2013

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

Sep 27 2013 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due November 12, 2013)

Oct 11 2013 Application (13A374) for an injunction pending disposition of the petition for a writ of certiorari, submitted to Justice Alito.

Oct 16 2013 Response to application (13A374) requested by Justice Alito. (Due Thursday, October 24, 2013, by 4 p.m. EDT.)

Oct 24 2013 Response to application from respondent Ray Hobbs, Director, Arkansas Department of Correction, et al. filed.

Oct 29 2013 Waiver of right of respondents Ray Hobbs, Director, Arkansas Department of Correction, et al. to respond filed.

Oct 31 2013 DISTRIBUTED for Conference of November 15, 2013.

Nov 1 2013 Response Requested . (Due December 2, 2013)

Nov 14 2013 Application (13A374) referred to the Court.

Nov 14 2013 Application (13A374) granted by the Court. The application for an injunction submitted to Justice Alito and by him referred to the Court is granted pending disposition of applicant�s petition for a writ of certiorari. Respondents are enjoined from enforcing the Arkansas Department of Correction�s grooming policy to the extent that it prohibits applicant from growing a one-half-inch beard in accordance with his religious beliefs. If the Court denies the petition for a writ of certiorari, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

Nov 21 2013 Order extending time to file response to petition to and including January 16, 2014.

Jan 3 2014 Supplemental brief of petitioner Gregory Houston Holt, aka Abdul Maalik Muhammad filed.

Jan 16 2014 Brief of respondents Ray Hobbs, Director, Arkansas Department of Correction, et al. in opposition filed.

Jan 30 2014 DISTRIBUTED for Conference of February 21, 2014.

Feb 4 2014 Reply of petitioner Gregory Houston Holt, aka Abdul Maalik Muhammad filed. (Distributed)

Feb 24 2014 DISTRIBUTED for Conference of February 28, 2014.

Mar 3 2014 Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED.

Mar 3 2014

The order granting the petition for a writ of certiorari is amended as follows: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: �Whether the Arkansas Department of Correction�s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. �2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs.� .

Apr 1 2014 The time to file the joint appendix and petitioner's brief on the merits is extended to and including May 22, 2014.

Apr 1 2014 The time to file respondents' brief on the merits is extended to and including July 23, 2014.

Apr 15 2014 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondents.

Apr 21 2014 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.

Apr 23 2014 Joint appendix filed. (Statement of costs filed)

May 22 2014 Brief of petitioner Gregory Houston Holt, aka Abdul Maalik Muhammad filed.

May 29 2014 Brief amicus curiae of the United States filed.

May 29 2014 Brief amici curiae of Anti-Defamation League, et al. filed.

May 29 2014 Brief amici curiae of American Jewish Committee, et al. filed.

May 29 2014 Brief amici curiae of Former Corrections Officials John Clark, et al. filed.

May 29 2014 Brief amici curiae of Former Prison Wardens filed.

May 29 2014 Brief amicus curiae of Americans United for Separation of Church and State filed.

May 29 2014 Brief amicus curiae of Alliance Defending Freedom filed.

May 29 2014 Brief amici curiae of National Congress of American Indians and Huy filed.

May 29 2014 Brief amicus curiae of National Jewish Commission on Law and Public Affairs filed.

May 29 2014 Brief amici curiae of The Sikh Coalition and Muslim Public Affairs Council filed.

May 29 2014 Brief amici curiae of Prison Fellowship Ministries, et al. filed.

May 29 2014 Brief amici curiae of Dr. Ronald L. Akers, et al. filed.

May 29 2014 Brief amici curiae of International Mission Board of the Southern Baptist Convention, et al. filed.

May 29 2014 Brief amici curiae of Islamic Law Scholars filed.

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-6827.htm

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11/13/2014

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May 29 2014 Brief amicus curiae of Women's Prison Association filed.

May 29 2014 Brief amicus curiae of The Rutherford Institute filed.

May 29 2014 Brief amici curiae of Reformed Prisoners Jesse Wiese, et al. filed.

Jun 9 2014 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.

Jul 9 2014 Record requested from U.S.C.A. 8th Circuit.

Jul 16 2014 SET FOR ARGUMENT ON Tuesday, October 7, 2014

Jul 23 2014 Brief of respondents Ray Hobbs, Director, Arkansas Department of Correction, et al. filed.

Jul 30 2014 Brief amici curiae of Alabama, et al. filed.

Aug 7 2014 CIRCULATED.

Aug 13 2014 Record received from U.S.C.A. 8th Circuit. 1-Envelope. The full record is located on PACER.

Aug 15 2014 Record received from U.S.D.C. Eastern District of Arkansas Pine Bluff Division, 1 Envelope.

Aug 22 2014 Reply of petitioner Gregory Houston Holt, aka Abdul Maalik Muhammad filed. (Distributed)

Aug 22 2014 Proposal to lodge copies of two exhibits from an evidentiary hearing before the magistrate from counsel for petitioner.

Aug 22 2014 Proposal to lodge copies of responsive documents to extra-record representations made in respondents' brief on the merits from counsel for the petitioner.

Aug 26 2014 Letter from counsel for respondents in response to petitioner's lodging proposals.

Aug 29 2014 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.

Oct 7 2014 Argued. For petitioner: Douglas Laycock, Charlottesville, Va.; and Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: David A. Curran, Deputy Attorney General, Little Rock, Ark.

~~Name~~~~~~~~~~~~~~~~~~~~~

~~~~~~~Address~~~~~~~~~~~~~~~~~~

Attorneys for Petitioner:

Douglas Laycock

University of Virginia School of Law

Counsel of Record

580 Massie Road

Charlottesville, VA 22903

dlaycock@virginia.edu

Party name: Gregory Houston Holt, aka Abdul Maalik Muhammad

Attorneys for Respondents:

Christine Ann Cryer

Office of the Attorney General

Counsel of Record

323 Center Street, Suite 200

Little Rock, AR 72201

christine.cryer@arkansasag.gov

Party name: Ray Hobbs, Director, Arkansas Department of Correction, et al.

David A. Curran

Senior Assistant Attorney General

Office of the Attorney General of Arkansas

323 Center Street

Little Rock, AR 72201

david.curran@arkansasag.gov

Party name: Ray Hobbs, Director, Arkansas Department of Correction, et al.

Other:

Jonathan L. Abram

Hogan & Hartson

555 Thirteenth Street, NW

Washington, DC 20004

jonathan.abram@hoganlovells.com

Party name: Former Corrections Officials John Clark, et al.

Anand Agneshwar Party name: The Rutherford Institute

Arnold & Porter LLP 399 Park Avenue New York, NY 10022 anand.agneshwar@aporter.com

Andrew L. Brasher

Solicitor General Office of Attorney General 501 Washington Avenue

~~Phone~~~ (434) 243-8546 5016830958 (501)-682-1681
(202) 637-5681 (212) 715-1000 (334) 242-7300

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-6827.htm

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11/13/2014
Party name: Alabama, et al.

Search - Supreme Court of the United States
Montgomery, AL 36130 abrasher@ago.state.al.us

Roger G. Brooks Party name: Prison Fellowship Ministries, et al.

Cravath, Swaine & Moore LLP 825 Eigth Avenue New York, NY 10019-7475 rgbrooks@cravath.com

David A. Cortman Party name: Alliance Defending Freedom

Alliance Defending Freedom 1000 Hurricane Shoals Road, N.E., Suite D-1100 Lawrenceville, GA 30043 dcortman@alliancedefendingfreedom.org

Carolyn F. Corwin Party name: Former Prison Wardens

Covington & Burling LLP 1201 Pennsylvalnia Avenue, NW Washington, DC 20004-2401 ccorwin@cov.com

Matthew Allen Fitzgerald Party name: Reformed Prisoners Jesse Wiese, et al.

901 East Cary Street Richmond, VA 23219 mfitzgerald@mcguirewoods.com

Mark E. Haddad

Sidley Austin LLP

555 W. Fifth Street, 40th Floor

Los Angeles, CA 90013

mhaddad@sidley.com

Party name: The Sikh Coalition and Muslim Public Affairs Council

Richard B. Katskee

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

rkatskee@mayerbrown.com

Party name: Americans United for Separation of Church and State

Nathan Lewin

Lewin & Lewin, LLP

1775 Eye Street, NW

Suite 850

Washington, DC 20006

nat@lewinlewin.com

Party name: National Jewish Commission on Law and Public Affairs

Christopher C. Lund Party name: Islamic Law Scholars

Wayne State University Law School 471 W. Palmer St. Detroit, MI 48202 lund@wayne.edu

Brian R. Matsui

Morrison & Foerster LLP

2000 Pennsylvania Avenue, N.W.

Washington, DC 20006

bmatsui@mofo.com

Party name: International Mission Board of the Southern Baptist Convention, et al.

Kelly J. Shackelford Party name: Dr. Ronald L. Akers, et al.

Liberty Institute 2001 Plano Parkway, Suite 1600 Plano, TX 75075 kshackford@libertyinstitute.org

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-6827.htm

(212)-474-1072 (770) 339-0774 (202) 662-6000 (804) 775-1000 (213) 896-6000 (202) 263-3000 (202) 828-1000 (313) 577-4046 (202) 887-8784 (972) 941-4444
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11/13/2014

Search - Supreme Court of the United States

Derek L. Shaffer Party name: Anti-Defamation League, et al.

Quinn Emanuel Urquhart & Sullivan LLP 777 6th Street NW, 11th Floor Washington, DC 20001 derekshaffer@quinnemanuel.com

James A. Sonne Party name: Women's Prison Association

Stanford Law School Religious Liberty Clinic 559 Nathan Abbott Way Stanford, CA 94305 jsonne@law.stanford

Marc D. Stern Party name: American Jewish Committee, et al.

American Jewish Committee 165 East 56th Street New York, NY 10022 sternm@ajc.org

Donald B. Verrilli Jr. Party name: the United States

Solicitor General United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 SupremeCtBriefs@USDOJ.gov

Joel West Williams

Native American Rights Fund

1514 P Street, NW (Rear), Suite D

Washington, DC 20005

Williams@narf.com

Party name: National Congress of American Indians and Huy

Anthony Alan Yang Party name: United States

Office of the Solicitor General 950 Pennsylvania Ave.NW Room 5615 Washington, DC 20530-0001

(202)-538-8000 (650) 723-1422 (212) 891-1480 (202) 514-2217 (202) 785-4166 (202)-514-4821

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-6827.htm

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 3-682 7
No. ___________________

~uprcmc Court. u.s
F fL ~ D
SEP 27 2U13

IN THE SUPREME COURT OF THE UNITED STATES

L.A-\o4,u. \ I"\J\"Ci hlL)

+-'----_ - ~b,",-\ClL.:f;:s:;.4~D>LC"--",:>~I----:I:UIJQ'"'--L\

PETITIONER

U (Yqbr Name)

VS.

e.l,.~,a=,-,-1-,-, ..u.R,-""uy,+-J-I=l+"-'.ol,.,.'LLb"",,->'7-/

_ - RESPONDE NT(S)

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari without prepayment of costs and to proceed in forma pauperis.
[ ~Petitioner has previously been granted leave to proceed in forma pauperis
in the following court(s):
\.lY\'s+e.d sta.ke, D -ls.-b-.".:+- c...C1V +hr ±'sa -e.. J;; cq±e..s-n
b-l~hl(..A- ot "·hchAIOS.C.S. l S\ \I c..Vc,6\lo'-t- \.?,s,1\Il)

[ ] Petitioner has not previously been granted leave to proceed in f01·ma pauperis in any other court.

Petitioner's affidavit or declaration in support of this motion is attached hereto.

ORIGI

Al

Xf~~~~j
~ture) .
. RECEIVED OCT -- 4 2013

OFFICE OF THE CLERK SUPREME COURT U.S.

(

AFFIDAVIT OR DECLARATION '?i~~~~!rle-t,~~~OR LEAVE TO PROCEED IN FORMA PAUPERIS

I,

\.+ 0 .

, am the petitioner in the above-entitled case. In support of

my motion to ' oce d in forma pauperis, I state that because of my poverty I am unable to pay

the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross
amounts, that is, amounts before any deductions for taxes or otherwise.

Income source

Average monthly amount during the past 12 months

Amount expected next month

You

Employment

$0

Self-employment

$0

Income from real property (such as rental income)

$0

Interest and dividends '

$(')

Gifts

$ 0

Alimony

$0

Child Support

$0

Retirement (such as social security, pensions, annuities, insurance)

$ 0

Disability (such as social

$,_".,O~_

security, insurance payments)

Unemployment payments
Public-assistance (such as welfare)

$._D",,--,,--_
$._-'O· ~= _

Spouse
$ 1\\/&
$ NU\-
$ t\J/ 1\
$ ~l~
$ ~ I A-
$ ))\IA
$ ~11~
$ hl/&
$ ~IA
$t0I1\ $\\\//\

You
$0 $0
$ C)
$0 $0
$C)
$0 $0

Spouse
$t\IA$ ~ 1ft $ hllPr
$ ~ IA
$ ~IA
$ ~llt
$ ~l A.
$ ~! 1+

$~O""",--_ $~I A:
$,---"O~_
$,---,0""",-_

Other (specify):

$_0"""''---_

0 Total monthly income: $

$ ~! It $ 0 $ ~I Pr

(

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2. List your employment history for the past two years, most recent first. (Gross monthly pay is before taxes or other deductions.)

Employer

Address

Dates of Employment

Gross monthly pay
$- - -- - $_ - - - - $_ - - - - -

3. List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)

Employer
1"\ lit

Address

Dates of Employment

Gross monthly pay
$,----$ , - -- - -
$,------

4. How much cash do you and your spouse have? $,_---'0=-________ _
Below, state any money you or your spouse have in bank accounts or in any other financial institution.

Fina'lcjal institution Type of account
f'\llt

Amount you have
$ $ ' - -- - - -
$ , - - - -- -

Amount your spouse has
$,- - -- - -
$,-----$,- - - - - -

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.

o

Home Yalue

----'-~----'-'-IJ..>.1\-_

_

D Other real estate
Value ~/ A..

\

o Motor Vehicle Year, make &

m#od1el_~"-"-'I'_'_I\:_'___

_ _

Value \~ If\-

D'Motor Vehicle #2

I f\\ A

Year, make & model_-,--''ll~_..tLt-,-_ __

Value N./lt-

I D DOethscerrI.patsIO.sents--'1-~~'_\"__'--'th'\-'-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Value _ __ _ _ __

(

6. State every person, business, or organization owing you or your spouse money, and the amount owed.

Person owing you or your spouse money
Wf!.

Amount owed to you
$ ~I A:-

Amount owed to your spouse
$ 1\\1 &-

$ , - - - - --

$,-----

$,- - - - - -

$_----

7. State the persons who rely on you or your spouse for support.

Name
~11t

Relationship

Age

8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or annually to show the monthly rate.

You

Your spouse

Rent or home-mortgage payment (include lot rented for mobile home)
Are real estate taxes included? DYes DNo Is property insurance included? DYes DNo

$ 0

$ 0

Utilities (electricity, heating fuel, water, sewer, and telephone) Home maintenance (repairs and upkeep) Food Clothing Laundry and dry-cleaning Medical and dental expenses

$ 0
$ 0
$ 0
$ 0 $ 0
$ 0

$ 0
$ 0
$ a
$ D
$ 0
$ 0

You
0 Transportation (not including motor vehicle payments) $
D Recreation, entertainment, newspapers, magazines, etc. $

Insurance (not deducted from wages or included in mortgage payments)

Homeowner's or renter's Life Health Motor Vehicle Other:

$ 0
$ 0 $ 0
$ 0 $ 0

Taxes (not deducted from wages or included in mortgage payments)

(specify):

$ 0

Installment payments Motor Vehicle Credit card(s) Department store(s) Other:
Alimony, maintenance, and support paid to others

$ a
$ D
$ a
$ 0
$ 0

Regular expenses for operation of business, profession,

or farm (attach detailed statement)

$

0

Other (specify):

$ 0

Total monthly expenses:

$ 0

Your spouse
$ D~)1t
$ o }:j/A
$ ~/1t-
$ $ $ $
$
$ $ $ $ $
$ $ $

9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months?
DYes ~o If yes, describe on an attached sheet.
10. Have you paid - or will you be paying - an attorney any money for services in connection with this case, including the completion of this form? D Yes ~o If yes, how much? _ _ _ _ __ _ __ _ If yes, state the attorney's name, address, and telephone number:

11. Have you paid-or will you be paying-anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form? DYes ~o
If yes, how much? _ _ _ _ _ _ _ _ __
If yes, state the person's name, address, and telephone number:

12. Provide any other information that will help explain why you cannot pay the costs of this case.
I \-.."'v e.. \:,~ -\Y\c:.<:I-~ +eA h I{"" c>"ex-~I'! L\\-~ ~ ~ <.W\.6. ~e.- n-e
f.c>~ ~ o.\--\ V\ C-oVV''''' 'fC>./~e.. ~\\, V'\-~ ~ •

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: Pn!:Jll"+ fj

,20U

(

(

13-68,27

No. ________________

S.lprL":nc Conrt., U. S F J L'- LJ
SEP 27 ZU13
OFFiCE: ~',r T!:f: CLEltK

IN THE SUPREME COURT OF THE UNITED STATES

vs.

0./ at . - R l-kLLsI. ~+

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

(NAME OF COURT THAT LAST RULE PETITION FOR WRIT OF CERTIORARI

Vl.! -roe..r .s..,fe.t:rDaX,. P. o,(s CoX \,,00
(Address)

(Phone Number)

(
QUESTION(S) PRESENTED

(

(

LIST OF PARTIES
[ ] All parties appear in the caption of the case on the cover page.
[y{All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

, .
\

f

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

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STATUTES AND RULES

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TABLE OF CONTENTS
OPINIONS BELOW ... .... ............... ... ..... ... ............ .. ................................ .. .. .. .... .... ........... 1
JURiSDiCTION.............................. ........... ............. ................................................... ..........9.,
3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................
4 STATEMENT OF THE CASE ....... .......... ................ .................................... .......................
REASONS FOR GRANTING THE WRIT ...... .................................. ................................. 5
CONCLUSION .. ...... ................. .. ......................... .................... ....... .. .................. .. ... .. .......... .

INDEX TO APPENDICES

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IN THE SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix f}. to
the petition and is

[ ] reported at

; or,

[0[ ] has been designated for publication but is not yet reported; or, is unpublished.

The opinion of the United States district court appears at Appendix B to
the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or, [~is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the appears at Appendix

to the petition and is

court

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

(

JURISDICTION

[1...(For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was J"i me.. \0I. 'don.

.

[ ] No petition for rehearing was timely filed in my case.

[ItA timely petition for rehearing was enied b the United States Court of

Appeals on the following date: .

, and a copy of the

order denying rehearing appears at A pen ix ----""""-_

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date)

in Application No. _A _ __

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was _ _ _ _ __ A copy of that decision appears at Appendix _ __

[ ] A timely petition for rehearing was thereafter denied on the following date: _ _ _ _ _ _ _ _ _ _ , and a copy of the order denying rehearing appears at Appendix _ __

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. _A _ __

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

( STATEMENT OF THE CASE

(
REASONS FOR GRANTING THE PETITION

·'

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(

CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted,
Ulhdu.f..~~
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Date: '1-10-l3

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 (Slip Opinion)

OCTOBER TERM, 2014

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
HOLT, AKA MUHAMMAD v. HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 13–6827. Argued October 7, 2014—Decided January 20, 2015
Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that “[n]o government shall impose a sub­ stantial burden on the religious exercise” of an institutionalized per­ son unless the government demonstrates that the burden “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §2000cc–1(a). Petitioner is an Arkansas inmate and devout Muslim who wishes to grow a ½-inch beard in accordance with his religious beliefs. Re­ spondent Arkansas Department of Correction (Department) prohibits its prisoners from growing beards, with the single exception that in­ mates with diagnosed skin conditions may grow ¼-inch beards. Peti­ tioner sought an exemption on religious grounds and, although he be­ lieves that his faith requires him not to trim his beard at all, he proposed a compromise under which he would be allowed to maintain a ½-inch beard. Prison officials denied his request, and petitioner sued in Federal District Court. At an evidentiary hearing before a Magistrate Judge, Department witnesses testified that beards com­ promised prison safety because they could be used to hide contraband and because an inmate could quickly shave his beard to disguise his identity. The Magistrate Judge recommended dismissing petitioner’s complaint, emphasizing that prison officials are entitled to deference on security matters and that the prison permitted petitioner to exer­ cise his religion in other ways. The District Court adopted the rec­ ommendation in full, and the Eighth Circuit affirmed, holding that the Department had satisfied its burden of showing that the groom­ ing policy was the least restrictive means of furthering its compelling security interests, and reiterating that courts should defer to prison

2

HOLT v. HOBBS

Syllabus
officials on matters of security.
Held: The Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½-inch beard in accordance with his religious beliefs. Pp. 6–16. (a) Under RLUIPA, the challenging party bears the initial burden of proving that his religious exercise is grounded in a sincerely held religious belief, see Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 28, and that the government’s action substantially bur­ dens his religious exercise. Here, petitioner’s sincerity is not in dis­ pute, and he easily satisfies the second obligation. The Department’s policy forces him to choose between “engag[ing] in conduct that seri­ ously violates [his] religious belie[f],” id., at ___, or contravening the grooming policy and risking disciplinary action. In reaching the op­ posite conclusion, the District Court misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s reli­ gious exercise because he could practice his religion in other ways. Second, the District Court erroneously suggested that the burden on petitioner’s religious exercise was slight because petitioner testified that his religion would “credit” him for attempting to follow his reli­ gious beliefs, even if that attempt proved unsuccessful. RLUIPA, however, applies to religious exercise regardless of whether it is “compelled.” §2000cc–5(7)(A). Finally, the District Court improperly relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Even if petitioner’s belief were idiosyncratic, RLUIPA’s guarantees are “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indi­ ana Employment Security Div., 450 U. S. 707, 715–716. Pp. 6–8. (b) Once the challenging party satisfies his burden, the burden shifts to the government to show that substantially burdening the re­ ligious exercise of the “particular claimant” is “the least restrictive means of furthering [a] compelling governmental interest.” Hobby Lobby, supra, at ___; §2000cc–1(a). The Department fails to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities. Pp. 8–13. (i) While the Department has a compelling interest in regulating contraband, its argument that this interest is compromised by allow­ ing an inmate to grow a ½-inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head. RLUIPA does not permit the unquestioning deference required to ac­ cept the Department’s assessment. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 434. Even if the De­

Cite as: 574 U. S. ____ (2015)

3

Syllabus
partment could show that denying petitioner a ½-inch beard furthers its interest in rooting out contraband, it would still have to show that its policy is the least restrictive means of furthering that interest, a standard that is “exceptionally demanding” and requires the govern­ ment to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___. Here, the De­ partment fails to establish that its security concerns cannot be satis­ fied by simply searching a ½-inch beard. Pp. 9–11.
(ii) Even if the Department’s grooming policy furthers its compel­ ling interest in prisoner identification, its policy still violates RLUIPA as applied in the present circumstances. As petitioner argues, re­ quiring inmates to be photographed both with and without beards and then periodically thereafter is a less restrictive means of solving the Department’s identification concerns. The Department fails to show why its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. It also fails to show why the security risk present­ ed by a prisoner shaving a ½-inch beard is so different from the risk of a prisoner shaving a mustache, head hair, or ¼-inch beard. Pp. 11–13.
(c) In addition to the Department’s failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security inter­ ests, the Department also fails to adequately explain the substantial underinclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than ½ inch of hair on the head. Its failure to pursue its proffered objectives with regard to such “analogous nonreligious conduct” suggests that its interests “could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546. Nor does the Department explain why the vast majority of States and the Federal Government can permit inmates to grow ½-inch beards, either for any reason or for religious reasons, but it cannot. Such evidence requires a prison, at a minimum, to of­ fer persuasive reasons why it believes it must take a different course. See Procunier v. Martinez, 416 U. S. 396, 414, n. 14. Pp. 13–16.
509 Fed. Appx. 561, reversed and remanded.
ALITO, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which SOTOMAYOR, J., joined. SOTOMAYOR, J., filed a concurring opinion.

Cite as: 574 U. S. ____ (2015)

1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES _________________
No. 13–6827
_________________
GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[January 20, 2015]
JUSTICE ALITO delivered the opinion of the Court.
Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1⁄2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., which prohibits a state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest.
We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise.

2

HOLT v. HOBBS

Opinion of the Court
Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.
I A
Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Id., at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder, 406 U. S. 205 (1972), and Sherbert v. Verner, 374 U. S. 398 (1963). In those cases, we employed a balancing test that considered whether a challenged government action that substantially burdened the exercise of religion was necessary to further a compelling state interest. See Yoder, supra, at 214, 219; Sherbert, supra, at 403, 406.
Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby Lobby, supra, at ___ – ___ (slip op., at 5–6). RFRA provides that “[g]overnment shall not substantially

Cite as: 574 U. S. ____ (2015)

3

Opinion of the Court
burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of Boerne v. Flores, 521 U. S. 507 (1997), this Court held that RFRA exceeded Congress’ powers under that provision. Id., at 532–536.
Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivisions and invokes congressional authority under the Spending and Commerce Clauses. See §2000cc–1(b). RLUIPA concerns two areas of government activity: Section 2 governs land-use regulation, §2000cc; and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons, §2000cc–1. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a). RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 436 (2006).
Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “religious exercise” capaciously to include “any exercise of

4

HOLT v. HOBBS

Opinion of the Court
religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g). And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby, supra, at ___ – ___, ___ (slip op., at 6–7, 43).
B
Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” App. to Brief for Petitioner 11a. The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” Ibid. The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.” Id., at 12a.
Petitioner sought permission to grow a beard and, although he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a 1⁄2-inch beard. App. 164. Prison officials denied his request, and the warden told him: “[Y]ou will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.” No. 5:11–cv–00164 (ED Ark., July 21, 2011), Doc. 13, p. 6 (Letter from Gaylon Lay to Gregory

Cite as: 574 U. S. ____ (2015)

5

Opinion of the Court
Holt (July 19, 2011)). Petitioner filed a pro se complaint in Federal District
Court challenging the grooming policy under RLUIPA. We refer to the respondent prison officials collectively as the Department. In October 2011, the District Court granted petitioner a preliminary injunction and remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department called two witnesses. Both expressed the belief that inmates could hide contraband in even a 1⁄2-inch beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere. Both witnesses also acknowledged that inmates could hide items in many other places, such as in the hair on their heads or their clothing. In addition, one of the witnesses— Gaylon Lay, the warden of petitioner’s prison— testified that a prisoner who escaped could change his appearance by shaving his beard, and that a prisoner could shave his beard to disguise himself and enter a restricted area of the prison. Neither witness, however, was able to explain why these problems could not be addressed by taking a photograph of an inmate without a beard, a practice followed in other prison systems. Lay voiced concern that the Department would be unable to monitor the length of a prisoner’s beard to ensure that it did not exceed one-half inch, but he acknowledged that the Department kept track of the length of the beards of those inmates who are allowed to wear a 1⁄4-inch beard for medical reasons.
As a result of the preliminary injunction, petitioner had a short beard at the time of the hearing, and the Magistrate Judge commented: “I look at your particular circumstance and I say, you know, it’s almost preposterous to think that you could hide contraband in your beard.” App. 155. Nevertheless, the Magistrate Judge recommended that the preliminary injunction be vacated and that petitioner’s complaint be dismissed for failure to state a claim

6

HOLT v. HOBBS

Opinion of the Court
on which relief can be granted. The Magistrate Judge emphasized that “the prison officials are entitled to deference,” id., at 168, and that the grooming policy allowed petitioner to exercise his religion in other ways, such as by praying on a prayer rug, maintaining the diet required by his faith, and observing religious holidays.
The District Court adopted the Magistrate Judge’s recommendation in full, and the Court of Appeals for the Eighth Circuit affirmed in a brief per curiam opinion, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests. 509 Fed. Appx. 561 (2013). The Court of Appeals stated that “courts should ordinarily defer to [prison officials’] expert judgment” in security matters unless there is substantial evidence that a prison’s response is exaggerated. Id., at 562. And while acknowledging that other prisons allow inmates to maintain facial hair, the Eighth Circuit held that this evidence “does not outweigh deference owed to [the] expert judgment of prison officials who are more familiar with their own institutions.” Ibid.
We entered an injunction pending resolution of petitioner’s petition for writ of certiorari, 571 U. S. ___ (2013), and we then granted certiorari, 571 U. S. ___ (2014).
II
Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” §2000cc–5(7)(A), but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation, see Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of

Cite as: 574 U. S. ____ (2015)

7

Opinion of the Court
his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.
In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The Department’s grooming policy requires petitioner to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” Id., at ___ (slip op., at 32). If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise.
The District Court reached the opposite conclusion, but its reasoning (adopted from the recommendation of the Magistrate Judge) misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” App. 177. In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U. S. 342, 351–352 (1987); see also Turner v. Safley, 482 U. S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of

8

HOLT v. HOBBS

Opinion of the Court
religious exercise. Second, the District Court committed a similar error in
suggesting that the burden on petitioner’s religious exercise was slight because, according to petitioner’s testimony, his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt proved to be unsuccessful. RLUIPA, however, applies to an exercise of religion regardless of whether it is “compelled.” §2000cc–5(7)(A).
Finally, the District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic. See Brief for Islamic Law Scholars as Amici Curiae 2 (“hadith requiring beards . . . are widely followed by observant Muslims across the various schools of Islam”). But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 715–716 (1981).
III
Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a 1⁄2inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a).
The Department argues that its grooming policy represents the least restrictive means of furthering a “ ‘broadly formulated interes[t],’ ” see Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, 546 U. S., at 431), namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contem-

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plates a “ ‘more focused’ ” inquiry and “ ‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’ ” Hobby Lobby, 573 U. S., at ___ (slip op., at 39) (quoting O Centro, supra, at 430–431 (quoting §2000bb–1(b))). RLUIPA requires us to “ ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ ” and “to look to the marginal interest in enforcing” the challenged government action in that particular context. Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, supra, at 431; alteration in original). In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a 1⁄2-inch beard.
The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.
A
The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.
We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1⁄2-inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost preposterous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the evidentiary hearing. App. 155. An item of contraband would have to be very small indeed to be concealed by a 1⁄2-inch

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beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1⁄2-inch beard rather than in the longer hair on his head.
Although the Magistrate Judge dismissed the possibility that contraband could be hidden in a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought that they were bound to defer to the Department’s assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband. RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” O Centro, supra, at 434. That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting out contraband.
Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is

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Opinion of the Court
exceptionally demanding,” and it requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___ (slip op., at 40). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United States v. Playboy Enter­ tainment Group, Inc., 529 U. S. 803, 815 (2000).
The Department failed to establish that it could not satisfy its security concerns by simply searching petitioner’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the 1⁄4-inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and 1⁄4-inch beards can be searched but 1⁄2-inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and 1⁄4-inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a 1⁄2-inch beard.
B
The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows security officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping.

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We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appearance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the 1⁄2-inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identifications. In fact, the Department (like many other States, see Brief for Petitioner 39) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during [his] incarceration.” Arkansas Department of Correction, Inmate Handbook 3–4 (rev. Jan. 2013).
The Department argues that the dual-photo method is inadequate because, even if it might help authorities apprehend a bearded prisoner who escapes and then shaves his beard once outside the prison, this method is unlikely to assist guards when an inmate quickly shaves his beard in order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner’s prison, where inmates live in barracks and work in fields. Counsel for

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Opinion of the Court
the Department suggested at oral argument that a prisoner could gain entry to a restricted area by shaving his beard and swapping identification cards with another inmate while out in the fields. Tr. of Oral Arg. 28–30, 39–43.
We are unpersuaded by these arguments for at least two reasons. First, the Department failed to show, in the face of petitioner’s evidence, that its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. Second, the Department failed to establish why the risk that a prisoner will shave a 1⁄2-inch beard to disguise himself is so great that 1⁄2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1⁄4-inch beards for medical reasons. All of these could also be shaved off at a moment’s notice, but the Department apparently does not think that this possibility raises a serious security concern.
C
In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis.
First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a 1⁄2-inch beard, it permits prisoners with a dermatological condition to grow 1⁄4-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a 1⁄2-inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the

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Opinion of the Court
neck.” App. to Brief for Petitioner 11a. Hair on the head is a more plausible place to hide contraband than a 1⁄2-inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).
In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department emphasizes that petitioner’s 1⁄2-inch beard is longer than the 1⁄4inch beard allowed for medical reasons. But the Department has failed to establish (and the District Court did not find) that a 1⁄4-inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” O Centro, 546 U. S., at 436. We have rejected a similar argument in analogous contexts, see ibid.; Sherbert, 374 U. S., at 407, and we reject it again today.
Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow 1⁄2-inch beards, either for any reason or for religious reasons, but

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it cannot. See Brief for Petitioner 24–25; Brief for United States as Amicus Curiae 28–29. “While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” Procunier v. Martinez, 416 U. S. 396, 414, n. 14 (1974). That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.
We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.” Playboy Entertainment, 529 U. S., at 824.
We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Cutter v. Wilkinson, 544 U. S. 709, 725, n. 13

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(2005). See also Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Third, even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.
IV
In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES _________________
No. 13–6827
_________________
GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[January 20, 2015]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, concurring.
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.

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SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES _________________
No. 13–6827
_________________
GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[January 20, 2015]
JUSTICE SOTOMAYOR, concurring.
I concur in the Court’s opinion, which holds that the Department failed to show why the less restrictive alternatives identified by petitioner in the course of this litigation were inadequate to achieve the Department’s compelling security-related interests. I write separately to explain my understanding of the applicable legal standard.
Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson that “[c]ontext matters” in the application of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. 544 U. S. 709, 723 (2005) (internal quotation marks omitted). In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Ibid. Of course, that is not to say that cost alone is an absolute defense to an otherwise meritorious RLUIPA claim. See §2000cc–3(c). Thus, we recognized “that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area.” Cutter, 544 U. S., at 725, n. 13.

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SOTOMAYOR, J., concurring
I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them. But the deference that must be “extend[ed to] the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.” Yellowbear v. Lampert, 741 F. 3d 48, 59 (CA10 2014). Indeed, prison policies “ ‘grounded on mere speculation’ ” are exactly the ones that motivated Congress to enact RLUIPA. 106 Cong. Rec. 16699 (2000) (quoting S. Rep. No. 103–111, 10 (1993)).
Here, the Department’s failure to demonstrate why the less restrictive policies petitioner identified in the course of the litigation were insufficient to achieve its compelling interests—not the Court’s independent judgment concerning the merit of these alternative approaches—is ultimately fatal to the Department’s position. The Court is appropriately skeptical of the relationship between the Department’s no-beard policy and its alleged compelling interests because the Department offered little more than unsupported assertions in defense of its refusal of petitioner’s requested religious accommodation. RLUIPA requires more.
One final point bears emphasis. RLUIPA requires institutions refusing an accommodation to demonstrate that the policy it defends “is the least restrictive means of furthering [the alleged] compelling . . . interest[s].” §2000cc–1(a)(2); see also Washington v. Klem, 497 F. 3d 272, 284 (CA3 2007) (“[T]he phrase ‘least restrictive means’ is, by definition, a relative term. It necessarily implies a comparison with other means”); Couch v. Jabe, 679 F. 3d 197, 203 (CA4 2012) (same). But nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restric-

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SOTOMAYOR, J., concurring
tive means requirement. Nor does it intimate that officials must prove that they considered less restrictive alternatives at a particular point in time. Instead, the Court correctly notes that the Department inadequately responded to the less restrictive policies that petitioner brought to the Department’s attention during the course of the litigation, including the more permissive policies used by the prisons in New York and California. See, e.g., United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011) (observing in the analogous context of the Religious Freedom Restoration Act of 1993 that the government need not “do the impossible—refute each and every conceivable alternative regulation scheme” but need only “refute the alternative schemes offered by the challenger”).
Because I understand the Court’s opinion to be consistent with the foregoing, I join it.