UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MAURICE OWENS, :

:

Plaintiff : No. 4:CV-04-1850

:

vs. : (Complaint Filed 08/19/04)

:

: (Judge Muir)

JOSEPH T. WHALEN, et al., :

:

Defendants :

ORDER

February 8, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, Maurice Owens, (“Owens”), an inmate confined

in the Mahanoy State Correctional Institution, Frackville,

Pennsylvania, (“SCI-Mahanoy”), filed the above captioned civil

rights complaint pursuant to 42 U.S.C. § 1983. He alleges

that defendants have violated his constitutional right to

express his religion by denying him a hair length exemption to

the Department of Corrections (“DOC”) grooming policy. (Doc.

No. 1, complaint). For relief, Owens seeks a hair length

exemption to the inmate grooming policy, a return to the

general population and $40.00 per month in “back pay” for the

time he has spent in disciplinary custody while in the

Restricted Housing Unit (“RHU”) at SCI-Mahanoy. 

Named as defendants are Edward Klem, SCI-Mahanoy

Case 4:04-cv-01850-MM-DB Document 26 Filed 02/08/06 Page 1 of 17
 1. Defendants' motion was initially filed as a motion

to dismiss. (See Doc. No. 19). Defendants then filed a

motion to amend/correct the caption of their motion to

dismiss, to that of a motion for summary judgment. (Doc.

No. 21). Defendants' motion to amend/correct will be

granted. 

2

Superintendent; Joseph Whalen, SCI-Mahanoy Chaplain; Jeffrey

Beard, Department of Corrections Secretary; David Roberts,

Supervisor, Bureau of Inmate Services, Camp Hill,

Pennsylvania; and Sharon Burks, Chief Grievance Coordinator,

Camp Hill, Pennsylvania. Presently before the court is

defendants' motion for summary judgment.1 (Doc. No. 22). The

motion is fully briefed and is ripe for disposition. For the

reasons set forth below, the defendants' motion for summary

judgment will be granted. 

I. Summary Judgement Standard

Federal Rule of Civil Procedure 56(c) requires the court

to render summary judgment " . . . forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law."

Fed.R.Civ.P. 56(c). "[T]his standard provides that the mere

existence of some alleged factual dispute between the parties

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3

will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine

issue of material fact." Anderson vs. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986) (emphasis in original). 

A disputed fact is "material" if proof of its existence

or nonexistence would affect the outcome of the case under

applicable substantive law. Anderson, 477 U.S. at 248; Gray

vs. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

An issue of material fact is "genuine" if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party. Anderson, 477 U.S. at 257; Brenner vs. Local

514, United Brotherhood of Carpenters and Joiners of America,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of

material fact, the court must view the facts and all

reasonable inferences in favor of the nonmoving party. Moore

vs. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement vs.

Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir.

1992); White vs. Westinghouse Electric Company, 862 F.2d 56,

59 (3d Cir. 1988). In order to avoid summary judgment,

however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the

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4

party seeking summary judgment satisfies its burden under Rule

56(c) of identifying evidence which demonstrates the absence

of a genuine issue of material fact, the nonmoving party is

required by Rule 56(e) to go beyond the pleadings with

affidavits, depositions, answers to interrogatories or the

like in order to demonstrate specific material facts which

give rise to a genuine issue. Celotex Corporation vs.

Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion "must do more than simply show that there is some

metaphysical doubt as to the material facts." Matsushita

Electric Industrial Co. vs. Zenith Radio, 475 U.S. 574, 586

(1986). When Rule 56(e) shifts the burden of production to

the nonmoving party, that party must produce evidence to show

the existence of every element essential to its case which it

bears the burden of proving at trial, for "a complete failure

of proof concerning an essential element of the nonmoving

party's case necessarily renders all other facts immaterial."

Celotex, 477 U.S. at 323. See Harter vs. G.A.F. Corp., 967

F.2d 846, 851 (3d Cir. 1992). 

II. Undisputed Facts

From the pleadings and exhibits submitted by the parties

therewith, the following facts can be ascertained as

Case 4:04-cv-01850-MM-DB Document 26 Filed 02/08/06 Page 4 of 17
 2. DOC-ADM 807, the the Inmate Hygiene and Grooming

Policy, governs the length of inmate's hair while

incarcerated. In July, 2002, the DOC issued ADM 819,

Religious Activities, which establishes the policy and

procedure to accommodate inmates' religious beliefs while

they are in the custody of the DOC. 

undisputed.

Owens was convicted in 1991 for robbery and sentenced to

a term of incarceration of 16 to 35 years. He was committed

to the Department of Corrections on August 16, 1991. (Doc.

No. 23, Ex. A). 

On April 25, 2003, Plaintiff submitted a DC-52 form,

“Inmate Religious Accommodation Request Form”, requesting to

be exempt from the DOC's hair length regulation.2 (Doc. No. 25,

Ex. 3). Plaintiff, however, did not list his religious

affiliation. Id. On June 3, 2003, his request was denied.

(Doc. No. 25, p. 2). When Owens inquired of Father Whalen as

to the denial of his request, he was informed that because his

prison records listed him as a Muslim, he was not entitled to

an exemption. Id. Father Whalen suggested that Owens write to

the records department to request a change in his religious

affiliation. Id. On June 12, 2003, Owens wrote to the

records department, requesting his religion be changed to

Rastafarian. Id. 

On August 25, 2003, Owens filed Grievance No. 60382,

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grieving the fact that he had not been granted a hair

exemption. (Doc. No. 23, Ex. C). On September 8, 2003,

Grievance Officer Unell responded with the following: 

This is in response to your grievance (Grievance #

60382) dated 8/25/03. I note that I met with you on

Thursday, September 4, 2003 to discuss your grievance

concerns and answer any questions you had. 

Essentially, you are grieving the fact that you have

not been granted a hair exemption. You state that

you are a practicing Rastafarian. I note that during

our meeting, I explained the existing process and

procedure for requesting a hair exemption. I also

provided you with a blank copy of a DC-52 form

“Inmate Religious Accommodation Request Form”, and

answered all your questions. 

You reported to me that you understood the process

and in fact, had earlier submitted an inmate

religious request form to Facility Chaplain Program

Director Whalen. You stated that you had spoken to

Fr. Whalen concerning your hair exemption request.

You also reported that your request for accommodation

was disapproved. Fr. Whalen advised you that you are

claiming to be Rastafarian, although your record/face

sheet indicated that you are of the Islamic religion.

You then requested to have that indication changed to

Rastafarian. Mr. Calkins reported to you, per

request slip, that your indicated religion was, in

fact changed to Rastafarian. I explained to you that

changing your religious preference, as documented in

your record, does not in itself, qualify you for a

hair exemption. I also advised you that unless a

hair exemption is granted, you are expected to abide

by existing DOC policy and procedures (DC-ADM 807)

with regard to your personal hygiene. Failure to

abide by the Inmate Hygiene and Grooming Policy will

result in you receiving a misconduct, unless you are

granted a hair exemption. 

In that no violations of DOC policy, nor

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inappropriate action by staff is evident, no further

action is recommended with regard to this grievance.

Again, you are advised to follow existing procedures.

Should you feel you are deserving of a religious

accommodation/hair exemption, you may request one.

This will require that you submit a DC-52 form,

including all the information that is called for.

The request then will be evaluated and approved or

disapproved, based on the information provided. 

(Doc. No. 23, Ex. C). 

On September 4, 2003, Owens submitted another DC-52 form,

requesting a hair length exemption based on his claimed

religion of that of Rastafarian. (Doc. No. 25, Ex. 4). On

October 2, 2003, Father Whalen responded to Owens, that he

“must wait until Dec. 6, 2003.” Id. 

On April 29, 2004, Owens submitted an Inmate' Request to

Staff member, questioning why he was turned down a second time

for a hair length exemption. (Doc. No. 1, attachment).

Plaintiff's Inmate Request states in pertinent part: 

This is in response to the response you send me

4/26/04. I ask you to explain to me why I was turned

down a second time for a hair length exemption. You

said because I don't present anything new or

different from my first request! I changed my

religion to Rastafarian that wasn't on the first

request. J.K. Kane the hearing examiner said

Rastafarians are exempted! You called the records

dept. the first time and claimed that was the

deciding factor. Now your using what John Corbacio

used in a response for Superintendent Klem about I

didn't present anything new to change the initial

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recommendation. 

Id. In response, Father Whalen, informed plaintiff of the

following: 

I advised Mr. Corbacio on his response. That means

it was really my response! Rastafarians are exempt

– the question is are you sincerely a Rastafarian?

Id. 

On July 26, 2004, Owens submitted a third DC-52, seeking

a hair length exemption on the basis of his Rastafarian

beliefs. (Doc. No. 23, Ex. E). On August 3, 2004, Father

Whalen, denied the request, stating that it could not “be

accepted until January 26, 2005.” Id. 

On July 30, 2004, Owens submitted another Inmate's Request

to Staff Member, again questioning his entitlement to a hair

length exemption. (Doc. No. 23, Ex. D). On August 4, 2004,

Father Whalen responded: 

I am far too busy to be answering your requests day

after day, especially since they are nothing but

disagreement over my decision to not recommend a hair

exemption. As I told you before, get out of the RHU,

practice your faith, and I'll see you in January of

2005, the next time you can apply for a hair

exemption (you must wait 1⁄2 year between requests). 

Id. 

On August 19, 2004, plaintiff filed the instant action,

claiming that defendants' denial of his request for a hair

length exemption violates the First, Eighth and Fourteenth

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Amendments of the Constitution. (Doc. No. 1, complaint). 

On December 10, 2004, plaintiff was released from the RHU.

There is no evidence of record that Owens re-applied for a

hair length exemption after being released from the RHU. 

III Discussion

It is well established that "convicted prisoners do not

forfeit all constitutional protections by reason of their

conviction and confinement in prison." Bell vs. Wolfish, 441

U.S. 520, 545 (1979). "Inmates clearly retain protections

afforded by the First Amendment, . . . including its directive

that no law shall prohibit the free exercise of religion."

O'Lone vs. Shabazz, 482 U.S. 342, 348 (1987) (citations

omitted). Constitutional rights, however, such as the right to

practice religion, may be reasonably restricted in order to

facilitate the maintenance of proper discipline and order

within the prison. Valid penological objectives, such as

deterrence of crime, rehabilitation of prisoners, and

institutional security, justify limitations on the exercise of

constitutional rights by prisoners. See Jones vs. North

Carolina Prisoners' Labor Union, 433 U.S. 119, 132 (1977);

Pell v. Procunier, 417 U. S. 817, 822-23 (1974). As such, a

prison inmate "retains [only] those rights that are not

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inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system."

Pell, 417 U. S. at 822. 

Section G of DC-ADM 819 (formerly DOC-ADM 807), sets forth

the procedures that an inmate must follow in order to obtain

an exemption to the grooming policy for legitimate religious

purposes, and provides as follows:

A request for a religious accommodation that is not

covered elsewhere in Department policy shall be made

as follows:

a. Each inmate must use a DC-52, Inmate Religious

Accommodation Request Form to submit his/her request

for accommodation to the [Facility Chaplain Program

Director]

b. In cases of an inmate request for an exemption

from Department policy DCADM 807, “Inmate Grooming

and Barber/Cosmetology,” the inmate must submit a DC52 within 15 working days of receiving the order to

cut his hair. If no DC-52 is submitted within 15

working days of the initial order to cut his hair or

no religious accommodation is claimed, the inmate

shall be subject to discipline in accordance with

Department policy DC-ADM 801, “Inmate Discipline.”

c. The inmate shall obtain written information from

his/her outside faith group, including any

publications that describe the goals, beliefs, and

practices of the group and supply this information to

the FCPD for review.

d. The Religious Accommodation Review Committee shall

review each inmate’s request for a religious

accommodation within 45 days of receipt and forward

a recommendation to the affected Regional Deputy

Secretary.

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e. The Regional Deputy Secretary shall, within 15

days of receiving the recommendation from the

Director of the Bureau of Inmate Services/designee,

approve/disapprove the request and notify the

Director of the Bureau of Inmate Services of the

decision.

f. The Director, Bureau of Inmate Services shall,

within 10 days, inform the Facility Manager and the

FCPD of the requesting facility of the determination

and ensure copies of all final determinations are

provided to all Deputy Secretaries and Facility

Managers. The FCPD shall be responsible for informing

the affected inmate of the outcome of his/her request

no later than 10 working days from the date that the

determination of approval/disapproval is received.

g. If an inmate is informed by the FCPD that the

request will not be accommodated, the inmate may then

file a grievance in accordance with Department policy

DC-ADM 804, “Inmate Grievances.” Grievances may only

be submitted after the inmate has received

notification of the decision on the requested

accommodation.

h. If an inmate is found not to comply with the

accommodation or the reasons for the accommodation,

the accommodation may be revoked. If appropriate, the

violation shall be handled in accordance with

Department policy DC-ADM 801,“Inmate Discipline.”

DC-ADM 819, Religious Activities Policy.

The Court of Appeals for the Third Circuit has upheld the

validity of DC-ADM 807, now DC-ADM 819, in the context of hair

length requirements. In Cole vs. Flick, 758 F. 2d 124 (3d

Cir.), cert. denied, 474 U.S. 921 (1985), DC-ADM 807 was

enforced against a Native American Indian. The prison

officials offered the following justifications for the hair

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length regulation: (1) internal security, insofar as long hair

could be used to conceal or transport contraband, including

weapons or drugs, or by thwarting identification; (2)

sanitation concerns, in that long hair increases the risk of

lice and infection, particularly with respect to those inmates

working in mail and food services; (3) to assist in

controlling homosexual activity within the prison; and (4) to

prevent the possibility that institutional security would be

jeopardized by selective enforcement of institutional

directives. Id. at 126-27. The Court of Appeals found that the

justifications were all clearly legitimate in that they are

directly related to prison security, and that DC-ADM 807 did

not represent an exaggerated response to those concerns. Id.

at 129-32. DC-ADM 807 was also upheld by the Court of Appeals

in Dreibelbis vs. Marks, 742 F.2d 792 (3d Cir. 1984,) and

Wilson vs. Schillinger, 761 F.2d 921 (3d Cir. 1985). In these

cases, the plaintiffs were a member of the Church of Prophetic

Mediation and a Rastafarian, respectively. The same reasoning

was used by the court in upholding the hair length requirement

of DC-ADM 807 when confronted with a First Amendment freedom

of religion challenge. 

Subsequent to the decisions of Court of Appeals for the

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Third Circuit in Cole, Dreibelbis and Wilson, the United

States Supreme Court decided the case of Turner vs. Safley,

482 U.S. 78, 89 (1987). In Turner, the Court set forth the

standard for reviewing a prison regulation challenged by an

inmate on constitutional grounds. The Court held that "[w]hen

a prison regulation impinges on inmates' constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interest." The Court set forth four

factors which must be considered when determining the

reasonableness of the prison regulation at issue. This

standard implies a balancing test that must be applied between

the prisoner's claims and the prison's need of internal order

and security. The Turner standard, as reviewed by the Court

of Appeals for the Third Circuit in Dehart vs. Horn, 227 F.3d

47, 51 (3d Cir. 2000), involves several considerations.

First, there must be a valid, rational connection between

the prison regulation and the legitimate governmental interest

put forward to justify it. Thus, a regulation cannot be

sustained where the logical connection between the regulation

and the asserted goal is so remote as to render the policy

arbitrary or irrational. In addition, the governmental

objective must be both a legitimate and neutral one. Second,

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a court must consider whether an inmate retains alternative

means of exercising the asserted right. A third consideration

is the impact the accommodation of the asserted right will

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

prison resources generally. Finally, the court must consider

what ready alternatives exist to the challenged prison

regulation that fully accommodate the prisoner's rights at a

de minimus cost to valid penological interests. Dehart, 227

F.3d at 51, citing Turner, 482 U.S. at 89-91. 

However, an inmate's mere assertion of a religious belief

does not automatically trigger application of the Turner

factors. It is well-established that only those beliefs which

are both sincerely held and religious in nature are entitled

to constitutional protection. Dehart, 227 F.3d at 51, citing

Africa vs. Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir.

1981). If an inmate does not establish that his beliefs are

sincerely held and religious in nature, thus establishing a

constitutionally protected interest, then the Turner analysis

of a hair length regulation need not be conducted. 

In this case, Owens has yet to establish that his

Rastafarian beliefs are sincerely held and religious in

nature. In 1999, at the time of his commitment to the DOC,

Case 4:04-cv-01850-MM-DB Document 26 Filed 02/08/06 Page 14 of 17
 3. That is, assuming that Owens can establish that his

beliefs as to his hair length are religious in nature and

sincerely held.

15

Owens' declared himself a Muslim. It was not until, 2003, that

Owens' sought to change his religious designation to that of

Rastafarian. The record reveals, however, that Owens did not

progress much beyond the designation, to demonstrate his

sincerity in the religion. Indeed, in this case, the DOC was

not denying Owens' sincerity, but was in the process of

properly determining his sincerity, before approving an

exemption. Thus, Owens' situation illustrates the difficulty

that prison administrators would encounter in determining

whether beliefs about hair length are religious in nature and

sincerely held. There is no dispute that Owens is both aware

of DC-ADM 819 and has had the policy explained to him. It is

also undisputed that he has not obtained an exemption to the

hair length regulation. Clearly, under these facts and

prevailing precedent, defendants have not violated Owens'

rights to freedom of religion under the First Amendment. Even

assuming that a constitutionally protected right is at stake

here3, the Court finds that a valid, rational connection exists

between DC-ADM 819 and legitimate prison concerns. Thus,

summary judgment in defendants' favor is warranted.

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Owens' equal protection argument is also without merit.

The Equal Protection Clause of the Fourteenth Amendment

requires all persons " similarly situated" to be treated alike

by state actors. See City of Cleburne, Texas vs. Cleburne

Living Center, 473 U.S. 432, 439 (1985). Therefore, Owens must

show that he was similarly situated to, and treated

differently from, other inmates. See Tillman vs. Lebanon

County Correctional Facility, 221 F.3d 410, 424 (3d Cir.

2000); Keenan vs. City of Philadelphia, 983 F.2d 459, 465 (3d

Cir. 1992). 

Although Owens contends that “many inmates have longer

hair than [him] in population”, (Doc. No. 1, complaint), he

has failed to come forward and offer any evidence in support

of his allegation that any inmate without an exemption who has

long hair in violation of DC-ADM 819 is being permitted to

remain in the general population. Thus, Owens' unsupported

assertions cannot withstand defendants' motion for summary

judgment.

Finally, to the extent that Owens claims his stay in

disciplinary confinement violated his due process rights, he

is mistaken. Such a claim does not state a constitutional

violation because it does not result in an " atypical and

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significant hardship in relation to the ordinary incidents of

prison life." Sandin vs. Conner, 515 U.S. 472, 484,(1995). 

IT IS HEREBY ORDERED THAT:

1. Defendants' motion to amend/correct the

caption of their motion to dismiss (Doc.

No. 21) is GRANTED. 

2. Defendants' motion to dismiss (Doc. No. 19)

is DISMISSED. 

3. Defendants’ motion for summary judgment

(Doc. No. 22) is GRANTED. 

4. Plaintiff's “Motion to Clarify”, (Doc. No.

25), is construed as his brief in

opposition to defendants' motion for

summary judgment, and the Clerk of Court is

directed to docket the motion as such. 

5. The Clerk of Court shall enter judgment in

favor of defendants and against plaintiff.

6. The Clerk of Court shall CLOSE this case.

7. Any appeal taken from this order will be 

deemed frivolous, without probable cause, and not

taken in good faith.

 s/Malcolm Muir 

MUIR

United States District Judge

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