UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40045

FELIPE DIAZ, ET AL.,

Plaintiffs,

FELIPE DIAZ, ET AL.,

Plaintiffs-Appellants,

versus

JAMES A. COLLINS,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Texas

May 22, 1997

Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.

POLITZ, Chief Judge:

Felipe Diaz, a Native American religious practitioner, appeals the dismissal

of his civil rights suit challenging prison re gulations restricting the length of his

hair and the possession of certain sacred items. For the reasons assigned we affirm.

Background

Diaz is an inmate in the Coffield Unit of the Texas Department of Criminal

Justice, Institutional Division, located in Anderson County, Texas. Because of his1 Diaz’s coplaintiff, Noah S. Martinez, removed himself from the suit prior to judgment

being rendered.

2 A number of additional claims originally lodged by Diaz, including the

inability to utilize a sweat lod ge and the prison system’s requirement that he

produce documented proof of his Native American ancestry, have been either

abandoned by Diaz or satisfied by subsequent changes in administrative policy.

3 See Spears v. McCotter

, 766 F.2d 179 (5th Cir. 1985); Flowers v. Phelps

, 956

F. 2d 488 (5th Cir.), m odified in part on other grounds

, 964 F.2d 400 (5th Cir.

1992).

2 membership in the Mexican Mafia prison gang Diaz is kept in Administrative

Segregation and, other than for up to two hours a day to shower and recreate, he

remains in solitary confinement. Diaz is a descendant of the Aztecs of Mexico and

a follower of that tribe’s religious teachings and practices.

In February of 1994 Diaz 1 filed a complaint p ro se and in forma pauperis

under 42 U.S.C. § 1983 in which he challenged prison regulations restricting the

length of his hair, the weari ng of a headband, and the carrying of a medicine

pouch. 2 In his complaint Diaz alleged that these restrictions imposed an

impermissible burden on his ability to practice his religion insofar as they affected

items and practices sacred to his faith. After conducting two hearings on the

matter, 3 the magistrate judge, acting under authority of 28 U.S.C. § 636(c), entered

a final judgment dismissing Diaz’s lawsuit. Diaz timely appealed.

Analysis

Diaz filed a motion for the appointment of counsel which was denied by the4 Cooper v. Sheriff, Lubbock County, Tex. , 929 F.2d 1078 (5th Cir. 1991);

Branch v. Cole , 686 F.2d 264 (5th Cir. 1982).

5 Diaz also contends that the magistrate judge abused her discreti on when she

excluded the testimony of one of his witnesses, David Anguiano. Diaz did not

object, however, to the magistrate judge’s ruling prior to this appeal. It is our wellsettled rule that “issues raised for the first time on appeal are not reviewable by this

court unless they involve purely legal questions and failure to consider them would

result in manifest in

justice.” V arnado v. Lynaugh

, 920 F.2d 320, 321 (5th Cir.

1991) (citation omitted) (quotations omitted). Because our review of the record

suggests no prospect of “manifest injustice,” given that the testimony to be given

by Anguiano was by Diaz’s admission duplicative of his own, we decline to

consider this issue.

6 Cheffer v. Reno , 55 F.3d 1517 (11th Cir. 1995); Werner v. McCotter , 49 F.3d 1476

(10th Cir.), c ert

. denied

, 115 S.Ct. 2625 (1995); Besh v. Bradley

, 47 F.3d 1167 (6 th Cir.

1995) (unpublished); American Life League, Inc. v. Reno

, 47 F.3 d 642 (4th Cir.), c ert

. denied , 116 S.Ct. 55 (1995); Bryant v. Gomez , 46 F.3d 948 (9th Cir. 1995); Brown-El v.

Harris , 26 F.3d 68 (8th Cir. 1994).

3 magistrate judge. Diaz now renews this request, seeking the appointment of

appellate counsel and counsel upon remand, if required. Because we can glean no

“extraordinary circumstances” which might warrant the appointment of appellate

counsel in this case, we deny that request. 4

Diaz contends on appeal that the magistrate judge erred in dismissing his free

exercise challenge to the prison regulations. 5 Diaz’s claims must be reviewed

under the Religious Freedom Restoration Act of 1993, codified at 42 U.S.C.

§ 2000bb. 6 The RFRA is designed to augment the first and fourteenth amendment

protection of the free exercise of religion. The act supplants the rational basis test

formerly applied to determine the validity of laws of general applicability which

incidentally impact religious practices and replaces it with the compelling interest

test set forth in Sherbert v. Verner

, 374 U.S. 398 (1963), and Wisconsin v. Yoder

,7 42 U.S.C. § 2000bb(b); Goodall by Goodall v. Stafford County School Board

,

60 F.3d 168 (4th Cir. 1995), cert

. denied , 116 S.Ct. 706 (1996); Werner ; Bryant ;

Brown-El

. In so doing Congress intended to legislatively overrule United States

Supreme Court decisions such as Employment Div., Dep’t of Human Resources

v. Smith

, 494 U.S. 872 (19 90), and O ’Lone v. Estate of Shabazz

, 482 U.S. 342

(1987). See Goodall ; Werner

.

8 American Life League at 654 ( quoting 42 U.S.C. § 2000bb-1). The RFRA

applies to federal, state, and local governments. 42 U.S.C. § 2000bb-2(1).

9 Cheffer ; American Life League

. We note in addition that under Y oder

, Diaz

was required to prove that his beliefs were both religious i n nature and sincerely

held. The record bears out the authenticity of Diaz’s religious beliefs, and gives us,

like the magistrate judge, no reason to question the sincerity of those beliefs.

10 Werner at 1480 n.2, (citing Bryant at 948). See also Sherbert ; Goodall

.

11 Cheema v. Thompson , 67 F.3d 883 (9th Cir. 1995); see also Yoder

.

4 406 U.S. 205 (1972). 7

The RFRA “ mandates that government shall not ‘substantially burden a

person’s exercise of religion’ unless the government demonstrates that the burden

furthers a ‘compel ling governmental interest’ by the ‘least restrictive means.’” 8

The threshold inquiry under the RFRA is whether the chal lenged governmental

action substantially burdens the exercise of religion. 9 “The burden of proving the

existence of a substantial interference with the right of free exercise rests on the

religious adherent.” 10 If such a substantial burden is proven, it is then up to the

government to demonstrate that the compelling interest test is satisfied. 11

With regard to Diaz’s arguments concerning his medicine pouch and

headband, we agree with the magistrate judge’s decision that Diaz failed to prove

that the pertinent prison regulations substantially burden the exercise of his Native

American religion. While “[a] prohibition against the possession of a medicine bag1 2 Werner at 1481. The record adequately bears out the importance of these

items to Diaz’s faith.

1 3 The testimony of Glenda Taylor, Diaz’s spiritual advisor and consultant to the

TDCJ on Native American religious practices, indicates t hat the term “Native

American religion” refers to a compilation of common religious practices arising

out of a wide range of tribal traditions. In addition, Taylor’s testimony also points

out that many Native American religions exhibit an imported overlay of Christian

symbolism. We recognize, therefore, that the importance of the medicine pouch

in D iaz’s Aztec religion may be greater or lesser than in other Native American

religions. Despite this, we read the record mindful of the fact that it was Diaz’s

burden to establish the extent to which the prison regulations impacted his religious

convictions.

5 [or headband] could, for those faiths for whom the symbol has sufficient

importance, qualify as a ‘substantial burden’ under the Act,” 1 2 this case does not

invol ve a complete ban upon the possession of such sacred items. The pertinent

prison regulations allow a Native American practitioner to possess a medicine

pouch and headband while in his or her cell, prohibiting only the wearing of such

items outside of the cell. Thus, given Diaz’s Administrative Segregation status, the

regulations only prevent him from wearing a medicine pouch or headband for up

to two hours a day.

The record discloses that it is not necessarily a central tenet of Diaz’s religion

that a medicine pouch or headband be worn at all times

. 13 Rather, the amount of

time that a Native American practitioner must spend in physical contact with the

medicine pouch is a highly subjective matter, dependent upon the degree to which

the practitioner feels the need to be “connected” to the sacred items contained in

the pouch. The headband serves a similar role, serving as a reminder to the

practitioner of his tribal traditions and creed. Nothing in the record suggests that1 4 Compare Johnson v. Baker

, 67 F.3d 299 (6th Cir. 1995) (unpublished) (Nation

of Islam Muslim’s religious beliefs not substantially burdened by regulation which

deprives him of particular time and place to observe his beliefs and the company

of other Black Muslims); Abdur-R ahman v. Michigan Dep’t of Corrections , 65

F.3d 489, 492 (6th Cir. 1995) (“Reasonable time, place, or manner restrictions upon

communal religious gatheri ngs do not necessitate the identification of a compelling

state interest.”).

15 959 F.2d 22 (5th Cir.), cert

. denied , 506 U.S. 1025 (1992).

16 482 U.S. 342 (1987).

17 See supra note 7 and accompanying text.

1 8 The record reveals that the Native American custom regarding long hair, while

in some part cultural, has strong religious implications. Hair is only supposed to

be cut as a sign of grieving for the recently dead, and shorn locks are often placed

with the deceased so that they may be carried into the afterlife. Diaz testified that

6 Diaz’s beliefs, however fervently held, compel him to wear a medicine pouch or

headband at all times; thus Diaz has failed to demonstrate that the limited

restrictions which these regulations impose upon him are a substantial burden upon

his religious expression. 14

We next consider the magistrate judge’s ruling regarding the TDCJ’s

grooming code. Although this regulation survived a similar challenge in P owell v.

Estelle, 15 the analysis there made relied upon the constitutional test set out in

O’Lone v. Estate of Shabazz

, 16 a test less exacting than the standard governing free

exercise challenges under the RFRA. 17 P owell is t herefore no longer dispositive

precedent for sustaining the grooming requirement and we perforce must consider

anew the legitimacy of this regulation.

The grooming regulation, given the strong significance of long hair in Native

American belief, 18 legitimately may be deemed to work a substantial hardship uponhis mother is currently old and not well , and that he wishes to maintain his long

hair so that he may properly grieve for her when she passes away.

19 Harris v. Chapman

, 97 F.3d 499 (11th Cir. 1996); Hamilton v. Schriro , 74

F.3d 1545 (8th Cir. 1996).

7 Diaz’s practice of his faith. The magistrate judge found, however, that long hair

also facilitates the transfer of contraband and weapons into and around TDCJ

institutions. In addition, the magistrate judge found that requiring prisoners to

ha ve short hair makes it more difficult for escaped prisoners to alter their

appearance from the photographs taken periodically of all TDCJ inmates. Based

upon th ese findings, the magistrate judge concluded that the state’s interests in

promulgating and enforcing its grooming code w ere compelling, and that these

interests could not be achieved without some sort of regulation limiting hair length.

We agree with our colleagues in the Eighth and Eleventh Circuits that a

prison regulation on hair length is related to security and, as such, involves a

compelling state interest. 19 Further, the security interest at stake cannot

meaningfully be achieved appropriately by any different or lesser means than hair

length standards. We perceive no constitutional infraction in such. Nor do we

perceive any violation of the RFRA. It is our understanding that in enacting the

RFRA, Congress intended to contin ue to extend substantial deference to prison

offi cials in legitimate security matters. We find in the legislative history this

significant passage:

The committee [on the Judiciary] does no t intend the act [RFRA] to

impose a standard that woul d exacerbate the difficult and complex

challenges of operating the Nation’s prisons and jails in a safe and

secure manner. Accordingly, the committee expects that the courts20 Sen. Rep. at 10, 1993 U.S.C.C.A.N. at 1899-1900 (footnote omitted).

8 will continue the tradition of giving due deference to the experience

and expertise of prison and jai l administrators in establishing

necessary regulations and procedures to maintain good order, security

and discipline, consistent with considerat ion of costs and limited

resources. 20

For these reasons the judgment appealed is AFFIRMED.