*Circuit Judge of the Seventh Circuit, sitting by designation.

1 Khidar sought to consolidate his claim with those of four

other similarly-situated inmates. This motion was denied by the

district court which ruled that each inmate must proceed

separately.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40156

 

LOUIS RAY GREEN, also known as Habib A. K. Khidar,

Plaintiff-Appellant

versus

ALLAN POLUNSKY, Chairman, Board of Criminal Justice; TEXAS BOARD OF

CRIMINAL JUSTICE; JERRY GROOM,

Defendants-Appellees

___________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

___________________________________________________

October 18, 2000

Before KING, Chief Judge, CUDAHY,* and WIENER Circuit Judges. 

WIENER, Circuit Judge:

In this civil rights complaint against the Texas Department of

Criminal Justice and other named individuals (collectively “TDCJ”),

Plaintiff-Appellant Louis Ray Green, also known as Habib A. K.

Khidar (“Khidar”),1 appeals the ruling of the district court
2 We address only the issue of the district court’s dismissal

for failure to state a claim on which relief could be granted and

do not address whether Khidar’s claim was frivolous.

2

dismissing his claim under § 1915(e) both as frivolous and as

failing to state a claim on which relief could be granted.2 In his

initial complaint, Khidar contested TDCJ’s prison grooming policy

which requires prisoners to keep their hair cut short and their

faces shaved clean. An exception is made for prisoners with

medical conditions that are aggravated by shaving; they are allowed

to wear beards not to exceed 3/4 inch in length. Khidar contends

that the grooming policy coupled with the medical exception

infringes on his religious freedom by preventing him from wearing

an even shorter (1/4 inch) beard for religious reasons than inmates

with medical reasons are allowed to wear. We grant the prison

system broad discretion to create and implement internal policies

of penological importance; and as we conclude that the TDCJ has

legitimate reasons for its policy, we affirm the ruling of the

district court.

I.

Facts and Proceedings

Khidar is a Muslim, and the wearing of a beard is a tenet of

his faith. Proceeding pro se and in forma pauperis, Khidar filed

a claim pursuant to 42 U.S.C. § 1983, alleging that his civil

rights were violated by the TDCJ grooming policy. Specifically, he

claimed that the prison grooming policy requiring inmates to be

clean-shaven violates his First Amendment right to free exercise of
3 See Lightbourn v. County of El Paso, Texas, 118 F.3d 421

(5th Cir. 1997).

4 See Ruiz v. United States, 160 F.3d 273, 273 (5th Cir.

1998).

5 “[W]e review a trial court’s decision to consolidate . . .

not merely for abuse of discretion but to determine as a matter of

law whether the joinder was proper.” United States v. Park, 531

F.2d 754, 760 (1976).

3

religion. Khidar also sought to consolidate his claim with like

claims of four other inmates. 

The district court refused to consolidate the claims of the

five inmates, ruling that each should be heard individually. It

then referred Khidar’s Free Exercise claim to a magistrate judge

and, pursuant to the recommendation of that judge, dismissed the

claim pursuant to 28 U.S.C. § 1915(e). Khidar timely appealed. 

II.

Analysis

A. Standard of Review

We review a district court’s decision regarding the

consolidation of cases for abuse of discretion.3 We review de novo

the court’s dismissal for failure to state a claim, pursuant to 28

U.S.C. § 1915.

4

B. Consolidation of Claims

Khidar appeals the district court’s denial of his motion to

consolidate his case with those of his fellow inmates. As our

review5 of the district court’s decision regarding consolidation

satisfies us that the court acted within its discretion in denying
6 Under an extremely liberal reading of this pro se appeal, we

might construe Khidar as also advancing an equal protection claim.

That issue was not briefed, however, and thus we deem it to be

abandoned. See Yohey v. Collins, 985 F.2d 222, 224 (5th Cir. 1993).

7 959 F.2d 22 (5th Cir. 1992).

8 Khidar requests that he and his fellow inmates be allowed to

wear a beard of 1/4 inch.

4

Khidar’s motion, we affirm the court’s ruling.

C. The Grooming Policy 

Khidar challenges the TDCJ’s grooming policy on the ground

that it violates his free expression of religion as guaranteed

under the Free Exercise Clause of the First Amendment.6

Specifically, he argues that the policy is discriminatory by

allowing prisoners to maintain 3/4 inch beards if necessitated by

their medical conditions but not allowing even shorter beards to be

worn for religious reasons. Wearing beards is an accepted means of

expressing religious devotion for Muslims such as Khidar. We have

addressed the issue of prisoners wearing beards on a number of

occasions. Most notably, in Powell v. Estelle,

7 we rejected a

challenge to a prison policy forbidding long hair and beards,

finding the policy to fall within the discretion granted to prison

officials for legitimate penological reasons. We have not yet

addressed the specific issue of short beards, raised here by

Khidar,8 but other Circuits have done so. Every Circuit that has

considered the issue of short beards under similar circumstances
9 See, e.g., Hines v. South Carolina Dep’t of Corrections, 148

F.3d 353,358 (4th Cir. 1998); Harris v. Chapman, 97 F.3d 499, 504

(11th Cir. 1996); Friedman v. Arizona, 912 F.2d 328, 332 (9th Cir.

1990).

10 O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct.

2400, 2404 (1987).

11 Id. at 349.

12 Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261

(1987).

13 Id.

5

has upheld the prison grooming policies9 —— and we now join them,

convinced by the logic of their opinions.

In addressing claims of prisoners who allege that their civil

rights have been violated, we must remember that “’[l]awful

incarceration brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction made necessary by the

considerations underlying our penal system.’”10 When reviewing the

policies of prison officials, we do so with deference, keeping

firmly in mind the difficult task before them in fulfilling “valid

penological interests —— including deterrence of crime,

rehabilitation of prisoners, and institutional security.”11

“[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.”12 “[S]everal factors

are relevant in determining the reasonableness of the regulation at

issue,”13 including: 

(1) whether there is “a ’valid, rational connection’ between the
14 Id.

15 Id. at 90. In addressing this factor, we look to whether

inmates are allowed other means to express their religious beliefs

(on a general level) not whether they were allowed a means to

express their specific religious belief in the necessity of wearing

a beard. See O’Lone, 482 U.S. at 352. Khidar has neither alleged

nor likely could he successfully show, given our experience with

the Texas prison regulations, that he has been denied “all means of

express[ing]” his religious beliefs. Id.

16 Turner, 482 U.S. at 90.

17 See id. “[T]he absence of ready alternatives is evidence

of the reasonableness of a prison regulation. . . . By the same

token, the existence of obvious, easy alternatives may be evidence

that the regulation is not reasonable, but is an ‘exaggerated

response’ to prison concerns.” Id.

18 Id. at 89.

6

prison regulation and the legitimate governmental interest put

forward to justify it,”14

(2) “whether there are alternative means of exercising the right

that remain open to prison inmates,”15

(3) “the impact accommodation of the asserted constitutional right

will have on guards and other inmates, and on the allocation of

prison resources generally,”16 and 

(4) the availability of other alternatives to the prison regulation

in question that would accommodate the prisoners’ rights at de

minimis cost to valid penological interests.17

The TDCJ grooming policy is obviously “reasonably related to

legitimate penological interests”18 and clearly satisfies the

foregoing factors. Prisons typically require inmates to be cleanshaven and to keep their hair cut short for a number of valid
19 See Powell, 959 F.2d at 25.

20 See id.

7

reasons. This practice is necessary for identification purposes:

Without it inmates would be able to change their appearances with

ease simply by shaving off their beards or cutting their hair.

This is especially relevant given the need for guards and other

officials who are not sufficiently familiar with all prisoners to

identify them quickly and easily, as when investigating escapes or

intra-prison crimes. Additionally, contraband such as drugs and

weapons can be hidden in long hair and beards, and guards

conducting searches for such items would be exposed to unnecessary

risks of harm. Conducting such operations under dangerous

conditions would greatly increase the time and expense of running

the prison system as well. 

As we have held that these are legitimate penological

interests,19 and that a policy preventing inmates from growing long

hair and beards is reasonably related to such interests,20 the only

remaining question is whether the same logic can be applied to the

instant variation on that theme. We must determine specifically

whether Khidar’s complaint —— that inmates should be able to

maintain 1/4 inch beards for constitutionally guaranteed exercise

of religion when 3/4 inch beards are allowed to be worn by those

inmates for whom shaving aggravates a medical condition —— is

cognizable. At first blush, Khidar’s claim has an intuitive

appeal, as some of the accepted rationales for proscribing the
21 482 U.S. at 89-91.

22 482 U.S. at 348-352.

23 See Hines, 148 F.3d at 358.

8

wearing of beards would not apply to the wearing of beards of only

1/4 inch length. For instance, contraband or weapons could hardly

be hidden in a beard of such a short length. Also, the level of

the identification problem would be significantly reduced. Still,

a number of our fellow Circuits have addressed and rejected nearly

identical claims, and we are convinced, as are they, that this

grooming policy meets the requirements set forth by the Supreme

Court in Turner21 and O’Lone.

22 First, the policy is neutral,

affecting all inmates, regardless of their religious beliefs. The

neutral and universal application of a policy requiring short hair

and clean-shaven faces serves the state’s penological interests in

a number of ways. Beards of any length can change one’s

appearance, and thus would be detrimental to the prison’s interest

in identifying prisoners internally as well as in the event of

escape. Beards and hairstyle are also used by inmates to signal

gang affiliations. Thus, the TDCJ has a legitimate interest

generally in preventing inmates from wearing even short beards.23

Khidar contends that these interests have already been negated

in this instance by the prison’s allowing inmates for whom shaving

aggravates a medical condition to wear 3/4 inch beards, so another

less intrusive exception should be made for those whose religious

beliefs involve the wearing of a beard. However reasonable this
24 See Turner, 482 U.S. at 90.

25 Id. at 92.

9

position may initially appear, a deeper analysis demonstrates the

impracticability of a religious exception. The number of inmates

warranting a medical exemption to the grooming policy is quite

small, but the number of inmates likely to seek qualification for

a religious exception would be much greater. In addition, such a

policy would place prison administrators in the untenable position

of trying to determine which asserted religious beliefs, and even

which professed religions, are legitimate. 

Although the TDCJ grooming policy may not be the least

restrictive policy available to achieve the prison’s interests,

that is not what is required here.24 So long as the penological

interests at stake could not be achieved without depriving

prisoners of their rights, the policy’s infringement on those

rights must be abided. That is clearly the case here. Any

alternatives would impose significant costs on the prison system

and would likely increase the dangers that prison guards and

inmates already face. Neither does the TDCJ grooming policy

deprive Muslim inmates of “all means of expression”25 of their

religious beliefs. It merely removes or reduces one of many

avenues by which they may manifest their faith. 

III.

Conclusion

Satisfied that the TDCJ’s grooming policy is a regulation
26 Id. at 89.

10

“reasonably related to legitimate penological interests”26 —— and

that the medical exception for 3/4 inch beards does require

modification of the policy —— and further satisfied that the policy

does not unduly infringe on Khidar’s rights under the Free Exercise

Clause, we decline Khidar’s invitation to invalidate the policy or

to order the TDCJ to modify its policy by permitting 1/4 inch

beards for religious observance. We therefore affirm the decision

of the district court dismissing Khidar’s claim.

AFFIRMED.

S:\OPINIONS\PUB\00\00-40156.CV0