The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to the Magistrate Judge Donald G.
Wilkerson by Chief United States District Judge G. Patrick Murphy
pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil
Procedure 72(b), and Local Rule 72.1(a) for a Report and
Recommendation on the Motion for Summary Judgment filed by the
defendants, Jonathan Walls, Michael Ellis, Roger Cowan, and
Donald Snyder on July 20, 2004 (Doc. 31). For the reasons set
forth below, it is RECOMMENDED that the Motion for Summary
Judgment be GRANTED, and that this case be DISMISSED, and
that the court adopt the following findings of fact and
conclusions of law:
Findings of Fact
The plaintiff, Meeka Aresaba, filed a complaint on March 12,
2003 (Doc. 1) pursuant to 42 U.S.C. § 1983 alleging that
defendants violated his First Amendment Rights to religious
liberty between February 2002 and August 21, 2002, while Aresaba
was incarcerated in the Menard Correctional Center. Aresaba
contends that his rights were violated by threatening him with
discipline, disciplining him for refusal to cut his dreadlocks,
and eventually forcing him to cut his dreadlocks. The defendants are seeking summary judgment
on Aresaba's claim.
On February 18, 2002 Aresaba was informed by defendant Ellis
that the Warden of Menard Correctional Center (defendant Walls)
was airing a bulletin on Inmate Channel 7 forbidding inmates from
having dreadlocks. (Doc. 1 p. 1; Doc. 32, Exhibit B, p. 15). It is
unclear whether the airing was by video images or spoken words.
Defendant Ellis informed Aresaba that if he did not cut off his
dreadlocks the next time he visited the barber, he would be held
in segregation until he cut his hair. (Doc. 1 p. 1) Aresaba then
told defendant Ellis that he is a Rastifarian and that his
religious beliefs require him to wear his hair in dreadlocks.
(Doc. 1 p. 1) Defendant Ellis at that time informed Aresaba that
there were no exceptions to the Warden's bulletin. (Doc. 1 p. 1;
Doc. 32, Exhibit B, p. 16).
On February 26, 2002 Aresaba filed a grievance concerning the
Warden's bulletin on hair (Doc. 1, p. 1, Exhibit. A). In the
grievance Aresaba states that the "substance of the bulletin
itself implies and or threatens to cut my dreadlocks by force if
necessary for reasons unclear to me. Not-withstanding [sic] any
alleged reason . . . my faith and vow of the Nazarite prohibit me
from cutting my hair." (Doc. 1, Exhibit. A) On or about February
28, 2002 Counselor Goforth responded in writing that Rastifarians
are not exempt from the Individual Grooming Policy. She further
wrote that the policy stated that there were security and safety
concerns and that hair/dreadlocks may be cut due to the inability
to conduct a thorough search. (Doc. 1, Exhibit. A).
Aresaba further alleges that between February 29 and August 21,
2002 that he was subject to threats and harassment by defendants
for refusing to sign a waiver form that would in essence be an
agreement by him that his hair would be cut. (Doc. 1, p. 2) In
his deposition of May 25, 2004 he testified that he was threatened and harassed by
defendant Ellis on two occasions, February 18, 2002 and August
20, 2002. (Doc. 32, Exhibit B, p. 17) He stated that he was
placed on lockdown from July 20-28 (Doc. 1, Exhibit D; Doc. 32,
Exhibit B, p. 18) and that during this time he was unable to
leave his cell. (Doc. 1, p. 2; Doc. 32, Exhibit B, p. 19) Aresaba
alleges that on August 20, 2002 defendant Ellis informed him that
his transfer would be stopped and that he would be taken to
segregation unless he signed a waiver agreeing to cut his hair.
(Doc. 1 p. 2; Doc. 32, Exhibit B, p. 16) Aresaba further states
that he refused to sign the waiver and the barber was called and
his hair was forcibly cut. (Doc. 1, p. 2; Doc. 1 Exhibit. E).
Additionally, Aresaba filed another grievance regarding the
policy and the cutting of his dreadlocks on September 5, 2002.
(Doc. 1, Exhibit. E). On September 19, 2002 the Administrative
Review Board (ARB) denied his grievance as being without merit.
(Doc. 1, Exhibit. F). Defendant Donald Snyder, Director of the
Illinois Department of Corrections, concurred with the decision
of the ARB. (Doc. 1, Exhibit. F).
On March 12, 2003, Aresaba filed this Complaint. (Doc. 1). On
July 20, 2004 the defendants filed a motion for summary judgment.
(Doc. 31). On that same date, the defendants also filed a notice
informing Aresaba of the consequences of his failure to respond
to their motion for summary judgment. (Doc. 33). On July 27, 2004
Aresaba filed a Motion for Extension of Time. (Doc. 34).
Magistrate Judge Gerald B. Cohn granted Aresaba until October 21,
2004 to respond to defendants' motion for summary judgment. (Doc.
35). Aresaba filed a second motion for extension of time on
October 8, 2004 requesting that he granted until November 21,
2004 to respond to defendants' motion for summary judgment. (Doc.
36) On January 4, 2005 this case was reassigned to Magistrate
Judge Donald G. Wilkerson. (Doc. 37) On January 28, 2005 Judge Wilkerson granted Aresaba's motion for
extension of time and gave him until February 16, 2005 to respond
to defendants' motion for summary judgment. (Doc. 38)
Subsequently, this Court ordered Aresaba to respond to the
defendants' motion for summary judgment in an Order dated March
10, 2005 (Doc. 39). Said order granted Aresaba until April 12,
2005 to respond. Additionally the order informed Aresaba, in
plain language, pursuant to Lewis v. Faulkner, 689 F. 2d 100
(7th Cir. 1982) and Bryant v. Madigan, 84 F.3d 246 (7th
Cir. 1996) of the consequences of his failure to respond to the
motion for summary judgment. To date, Aresaba has not responded
to defendants' motion for summary judgment.
Aresaba was deposed by the defendants on May 25, 2004. (Doc.
32, Exhibit B) In his deposition Aresaba stated that the Piby,
the religious book that Rastafarians believe in, requires that he
not cut his hair but the Piby does not state how long or thick
his dreadlocks must be. (Doc. 32, Exhibit. B, p. 7) He testified
that after his hair was cut he still had some dreadlocks. (Doc.
32, Exhibit B., p. 26) Aresaba further testified that defendant
Cowan violated his First Amendment rights by implementing the
hair grooming policy at Menard. (Doc. 32, Exhibit B, p. 29) He
testified that defendant Snyder violated his First Amendment
rights by implementing the policies and directives of the
Illinois Department of Corrections, which contained the 502 hair
grooming policy. He testified that Warden Walls violated his
First Amendment rights by adopting the 502 hair grooming policy.
(Doc. 32, Exhibit B, p. 29) In his deposition Aresaba stated that
he saw a copy of the administrative directive regarding the hair
grooming policy and defendant Ellis spoke to him about the
policy. (Doc. 32, Exhibit B, p. 29) He further stated in his
depositon that none of the defendants ever informed him that he
was being required to cut his dreadlocks because he was a
Rastafarian or to hinder his religion. (Doc. 32, Exhibit B, p.
30-31) Conclusions of Law
Federal Rule of Civil Procedure 56(e) states in pertinent part,
. . . When a motion for summary judgement is made and
supported as provided in this rule, an adverse pa
adverse party's pleading, but the adverse party's
response, affidavits or as otherwise provided in this
rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, where
appropriate, shall be entered against the adverse
However, the law is clear that Aresaba's failure to respond
must be afforded a heightened level of scrutiny because of his
status as a pro se plaintiff. Lewis v. Faulkner, 689 F.2d 100
(7th Cir. 1982); Timms v. Frank, (7th Cir. 1992) (The
Federal Rules of Civil Procedure forbids a District Court from
acting on a summary judgment motion without giving the non-movant
a reasonable opportunity to present counter affidavits). The
inquiry then turns upon a reasonableness standard and whether
Aresaba had notice and opportunity to respond. As previously
stated, the record is replete with instances in which Aresaba had
notice and opportunity to respond to defendants's motion for
summary judgment. His motions for extension of time were granted.
(Doc. 34, 36, and 38). Additionally, because of his status as a
pro se plaintiff, this Court granted him until April 12, 2005 to
respond to the defendants' motion for summary judgment. (Doc. 39)
Aresaba received a total of seven months in which to file a
response to defendants' motion for summary judgment. This Court
finds that the record is clear and unambiguous and Aresaba had
notice and a opportunity to respond.*fn1
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated "that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Haefling v.
United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir.
1999); Dempsey v. Atchison, Topeka and Santa Fe Railway
Company, 16 F.3d 832, 836 (7th Cir. 1994). The burden is
upon the moving party to establish that no material facts are in
genuine dispute, and any doubt as to the existence of a genuine
issue must be resolved against the moving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610,
26 L.Ed.2d 142, 155 (1970); Miller v. Borden, Inc., 168 F.3d 308, 312
(7th Cir. 1999). A fact is material if it is outcome
determinative under applicable law. Hardin v. S.C. Johnson &
Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999); Smith v.
Severn, 129 F.3d 419, 427 (7th Cir. 1997); Estate of
Stevens v. City of Green Bay, 105 F.3d 1169, 1173 (7th Cir.
1997). Even if the facts are not in dispute, summary judgment is
inappropriate when the information before the court reveals a
good faith dispute as to inferences to be drawn from those facts.
Plair v. E.J. Brach & Sons, Incorporated, 105 F.3d 343, 346
(7th Cir. 1997); Lawshe v. Simpson, 16 F.3d 1475, 1478
(7th Cir. 1994); Dempsey, 16 F.3d at 836. Finally, summary
judgment "will not be defeated simply because motive or intent
are involved." Roger v. Yellow Freight Systems, Inc.,
21 F.3d 146, 148 (7th Cir. 1994). See also Miller,
168 F.3d at 312; Plair, 105 F.3d at 347; Cf. Hong v. Children's Memorial
Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993); Lac Du
Flambeau Indians v. Stop Treaty Abuse-Wisconsin, Inc.,
991 F.2d 1249, 1258 (7th Cir. 1993).
In deciding a motion for summary judgment, the trial court must
determine whether the evidence presented by the party opposed to
the summary judgment is such that a reasonable jury might find in
favor of that party after a trial. The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial
whether, in other words, there are any genuine
factual issues that properly can be resolved only by
a finder of fact because they may reasonably be
resolved in favor of either party.
[T]his standard mirrors the standard for a directed
verdict under Federal Rule of Civil Procedure 50(a),
which is that the trial judge must direct a verdict
if, under the governing law, there can be but one
reasonable conclusion as to the verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)
See also: Celotex Corporation v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273 (1986);
Haefling, 169 F.3d at 497-98; Sybron Transition Corporation v.
Security Insurance Company of Hartford, 107 F.3d 1250, 1255
(7th Cir. 1997); Weinberger v. State of Wisconsin,
105 F.3d 1182, 1188 (7th Cir. 1997).
Defendants argue that Aresaba has failed to prove that his
First Amendment rights were violated when departmental and
institutional directives at Menard Correctional Center required
the cutting of Aresaba's hair. Defendants assert that there was a
legitimate penological interest involved concerning the style of
inmates' hair. They argue that the length of hair was not the
issue as long as it did not, among other things, create a
security risk. Furthermore they state that the policy did not
solely apply to inmates with dreadlocks, (Doc. 32, p. 6) that it
applied to any inmate whose hairstyle was determined to be a
health, sanitation, or security risk. (Doc. 32, p. 6) The
defendants state that the directives that were issued were
religiously neutral. (Doc. 32, p. 6) Moreover, they assert that
Aresaba was in protective custody (Doc. 32, Exhibit A, p. 1;
Exhibit B, p. 20-21) and that protective custody is used for
inmates who have special security needs. (Doc. 32, Exhibit A, p.
1) The defendants' maintain that any inmate at Menard could be searched to determine if they possessed contraband and that a
search would included the possible search of an inmate's hair.
(Doc. 32, Exhibit A, p. 1) Defendant Walls stated in his
affidavit that dreadlocks are harder to search. That dreadlocked
hair is usually thick and matted together and that adequate
visual and tactile searches cannot be performed. (Doc. 32,
Exhibit A, p. 7) Walls stated, therefore, Aresaba's hairstyle
posed a safety and security concern. (Doc. 32, Exhibit A, p. 7)
Additionally based upon Walls experience in the Illinois
Department of Corrections, inmates can hide items in their hair,
including but not limited to, razor blades, glass, drugs, and
needles. (Doc. 32, Exhibit A, p. 2) Some of these items cannot be
detected by running fingers through the hair or with metal
detectors. (Doc. 32, Exhibit A, p. 2) In attempting to manually
search an inmates hair, staff may be injured by needles, razor
blades or shards of glass. (Doc. 32, Exhibit A, p. 3)
Additionally the manual search of hair, leaves the staff
susceptible to cuts which can lead to infection or transmission
of diseases such as Tuberculosis, Hepatitis, or HIV. (Doc. 32,
Exhibit A, p. 3) The Individual Hair Grooming Policy was one of a
number of progressive steps taken by the Administrators to
improve the safety and security of staff and inmates. (Doc. 32,
Exhibit A, p. 2) Based on the foregoing, this Court finds that
there is no genuine issue as to any material fact. Furthermore,
Aresaba has not presented any evidence in response to defendants'
motion for summary judgment.
It is well established that prisoners have the right to freely
exercise their religious beliefs. O'Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987). However, this right does not depend on
the ability to pursue each and every aspect of a preferred
religious practice . Rather:
A prison may restrict a prisoner's ability to adhere
absolutely to a particular tenet of his religion, and
if the prison has sound penological interests
supporting the restriction, and if those interests
outweigh the prisoner's religious interests, the
restriction does not violate the First Amendment. Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996) (citing
O'Lone, 482 U.S. at 352) Four factors guide the balancing
approach: (1) whether there is a valid, rational connection
between the prison regulation and the legitimate governmental
interest put forward to justify it; (2) whether alternative means
of exercising the constitutional right remain open to the inmate;
(3) the impact accommodation of the constitutional right will
have on guards and other inmates, as well as on prison resources
generally; and (4) whether an alternative exists that fully
accommodates the prisoner's rights at de minimis cost to valid
penological interests. Turner v. Safley, 482 U.S. 78, 88-91
Construing the facts in Aresaba's favor, Aresaba was informed
of the Warden's bulletin on the Individual Hair Grooming Policy
in February of 2002. He saw a copy of the directive. He was asked
on two occasions to sign a waiver, agreeing to cut his hair. He
refused each time. He was informed that if he failed to agree to
cut his hair, his hair would be cut anyway. He was placed in
locked down for eight days in July 2002. On August 20, 2002 he
was taken to defendant Ellis' office and informed that his
transfer would be stopped and that he would be taken to
segregation, if he did not agree to cut his hair. Aresaba
refused. His ...