Taylor v. Johnson, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-21155
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MAURICE TAYLOR,
Plaintiff-Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice, Institutional Division;
JERRY GROOM, Chaplain Director;
AKBAR SHABAZZ, Islamic Chaplain;
DONALD KASPAR, Regional Chaplain,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 24, 2001
Before SMITH, DUHÉ, and WIENER,
Circuit Judges.
PER CURIAM:
Maurice Taylor filed a civil rights complaint
under 42 U.S.C. § 1983 alleging that a Texas
Department of Criminal Justice policy violates
his free exercise rights under the First Amend-
ment. The policy forbids inmates to wear
beards, and Taylor alleges that his Muslim
beliefs require him to wear a one-quarter-inch
beard and that the policy violates his equal
protection rights because the grooming policy
allows beards for medical reasons but forbids
them for religious purposes.

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The district court dismissed Taylor’s com-
plaint as frivolous under 28 U.S.C. § 1915(e)-
(2)(B).1 Taylor appealed, then filed a motion
for reconsideration, claiming for the first time
that the grooming policy violates the Religious
Land Use and Institutionalized Persons Act of
2000, 42 U.S.C. § 2000cc. The district court
denied this motion. We affirm the dismissal, as
frivolous, of the free exercise claim, dismiss
for want of jurisdiction the appeal from the
denial of the motion for reconsideration, and
vacate the dismissal of the equal protection
claim and remand it for further consideration.
I.
A complaint is frivolous if it lacks an argu-
able basis in law or fact, and a complaint lacks
such a basis if it relies on an indisputably mer-
itless legal theory. Harper v. Showers, 174
F.3d 716, 718 (5th Cir. 1999). We review for
abuse of discretion a dismissal of a prisoner’s
complaint as frivolous. Id.
II.
Taylor’s free exercise claim is foreclosed by
Green v. Polunsky, 229 F.3d 486 (5th Cir.
2000), in which an inmate challenged the same
grooming policy at issue here. He, like Taylor,
contended that the policy violated his free
exercise rights because prison officials would
not let him wear a one-quarter-inch beard in
accordance with the tenets of his Muslim faith,
yet allowed prisoners with certain medical
conditions to wear three-quarter-inch beards.
Id. at 488. We disagreed and concluded that
the policy was reasonably related to legitimate
penological interests. Id. at 490. Because this
decision is binding precedent, United States v.
Short, 181 F.3d 620, 624 (5th Cir. 1999), cert.
denied, 528 U.S. 1091 (2000), the district
court did not abuse its discretion in deciding
that the free exercise claim lacks an arguable
basis in law.
III.
Taylor contends that the grooming policy
violates the Equal Protection clause of the
Fourteenth Amendment. He claims that be-
cause the prison policy threatens his funda-
mental First Amendment rights, strict scrutiny
applies.
To maintain his equal protection claim inde-
pendently of his free exercise claim, Taylor
must allege and prove that he received treat-
ment different from that received by similarly
situated individuals and that the unequal treat-
ment stemmed from a discriminatory intent.
See, e.g., City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439-40 (1985). “Discrim-
inatory purpose . . . implies that the decision-
maker singled out a particular group for dispa-
rate treatment and selected his course of action
at least in part for the purpose of causing its
adverse effect on an identifiable group.” La-
vernia v. Lynaugh, 845 F.2d 493, 496 (5th
Cir. 1988) (internal quotation marks omitted).
Taylor alleges that he is situated similarly to
inmates who cannot shave for medical reasons
and claims that accommodating these inmates
privileges Eighth Amendment rights over his
First Amendment rights. Acknowledging the
legitimate penological interest in prohibiting
beards of indeterminate length, Taylor con-
tends that the failure to grant him the same
accommodation as those with medical condi-
tions fails strict scrutiny and lacks a rational
relationship to a legitimate governmental inter-
1 Although the court’s opinion leaves doubt
whether the court dismissed the claim as frivolous
or for failure to state a claim, the final judgment
states that “this civil action is DISMISSED, with
prejudice, as frivolous under 28 U.S.C. § 1915(e)-
(2)(B).”

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est. He also alleges that the prison officials
refused his request for exemption at least in
part because of the adverse effect it has on the
exercise of his faith.
Strict scrutiny is appropriate only where a
government classification implicates a suspect
class or a fundamental right. Rublee v. Flem-
ing, 160 F.3d 213, 217 (5th Cir. 1998) (inter-
nal citations omitted).2 Taylor claims that
growing a beard in accordance with the tenets
of Islam is a fundamental right. We have held
that “[r]ights are fundamental if their source,
explicitly or implicitly, is the Constitution.”
Ball v. Rapides Parish Police Jury, 746 F.2d
1049, 1059 n.38 (5th Cir. 1984).
Even assuming, arguendo, that the right to
grow a beard is a fundamental free exercise
right, we temper our application of strict scru-
tiny in the prison context.3 Although convict-
ed prisoners do not forfeit all constitutional
protections, we must balance those protections
against the fact that lawful incarceration neces-
sarily requires the limitation of many rights and
privileges and against the legitimate peno-
logical objectives of the prison. See O’Lone v.
Shabazz, 482 U.S. 342, 348-49 (1987).4
“To ensure that courts afford appropriate
deference to prison officials, . . . prison regula-
tions alleged to infringe constitutional rights
are judged under a ‘reasonableness’ test less
restrictive than that ordinarily applied to al-
leged infringements of fundamental constitu-
tional rights.” O’Lone, 482 U.S. at 349. Ap-
plying an “inflexible strict scrutiny analysis
would seriously hamper [the prison administra-
tors’] ability to anticipate security problems
and to adopt innovative solutions to the intrac-
table problems of prison administration.” Tur-
ner v. Safley, 482 U.S. 78, 89 (1987). Thus,
a prison regulation “is valid if it is reasonably
related to legitimate penological interests,” and
prison officials need not “set up and then shoot
down every conceivable alternative method of
accommodating the claimant’s constitutional
complaint.” Id. at 89, 90-91.
In Green, 229 F.3d at 489-91, we examined
the same policy in light of the disparate treat-
ment of medical and religious exemptions and
found that the policy served a legitimate peno-
logical interest. Additionally, Taylor has not
alleged any facts that demonstrate that the
prison administrators purposefully intended to
discriminate against him as a member of an
identifiable group.
Green, however, specifically left open the
question whether the regulation unconstitu-
2 An individual religion might constitute a
suspect class. See City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976) (dictum). We do not
reach this question, however, because Taylor has
framed his argument solely in terms of fundamental
rights.
3 See Thornburgh v. Abbott, 490 U.S. 401
(1989) (finding that even where strict scrutiny
otherwise would apply to the policy in question, the
exigencies of prison administration require only
that the regulations be reasonably related to a
legitimate penological interest).
4 See also Morrison v. Garraghty, 239 F.3d
648, 654-55 (4th Cir. 2001) (using the “legitimate
penological interest” standard to evaluate a pri-
soner’s equal protection claim based on racial
discrimination). “This more deferential standard
applies even where the alleged infringed constitu-
tional right would otherwise warrant higher scru-
tiny.” Id. at 655.

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tionally treated similarly situated prisoners dif-
ferently. Id. at 489 n.6. Moreover, “[d]is-
criminatory enforcement of facially neutral
grooming regulations may, under some
circumstances, violate the Equal Protection
Clause.” Shiloh-Bryant v. Garner, No. 93-
8159 (5th Cir. June 28, 1993) (unpublished)
(citing Scott v. Miss. Dep’t of Corrections,
961 F.2d 77, 82 n.21 (5th Cir. 1992)). Be-
cause Taylor’s claims lack neither an arguable
basis in law or fact, he might have stated a
nonfrivolous claim had the district court al-
lowed him the opportunity to develop the fac-
tual basis of his claim through a Spears
hearing5 or questionnaire. See Eason v. Tha-
ler, 14 F.3d 8 (5th Cir. 1994). Consequently,
the district court abused its discretion in dis-
missing this claim as frivolous, so we vacate
the dismissal of the equal protection claim and
remand for further factual development.
IV.
Taylor contends that the grooming policy
violates the Religious Land Use and Institu-
tionalized Persons Act. Because he raised this
issue in the district court in a motion for re-
consideration filed more than ten days after the
judgment of dismissal and after he had filed his
notice of appeal, the motion arises under FED.
R. CIV. P. 60(b). See Harcon Barge Co. v. D
& G Boat Rentals, Inc., 784 F.2d 665, 667
(5th Cir. 1986) (en banc). The court denied
the motion on the ground that Taylor’s one-
sentence allegation failed to meet the require-
ments for relief under rule 60(b). Taylor did
not file a new notice of appeal or seek to
amend his previous notice of appeal after the
court denied the motion.
We consider sua sponte the basis of our jur-
isdiction to review this motion. See Williams
v. Chater, 87 F.3d 702, 704 (5th Cir. 1996).
A party may file a rule 60(b) motion at any
time within one year after judgment, even if an
appeal is pending, and the denial of that mo-
tion is appealable separately from the underly-
ing judgment. Id. at 704-05.
In general, we require a separate notice of
appeal to preserve the issue for our review.
McKethan v. Tex. Farm Bureau, 996 F.2d
734, 744 (5th Cir. 1993). We construe this
requirement liberally, however, and a brief may
serve as the “functional equivalent” of an
appeal if it is filed within the time specified by
FED. R. APP. P. 4 and gives the notice required
by FED. R. APP. P. 3. Smith v. Berry, 502 U.S.
244, 247-49 (1992).
Even under this liberal construction, Tay-
lor’s brief does not constitute a timely notice
of appeal. The rule 60(b) motion was denied
on January 3, 2001. Under rule 4(a)(1)(A),
the notice of appeal must be filed within thirty
days. Taylor’s appellate brief is dated Febru-
ary 3 and was filed on February 7. We con-
sider a prisoner’s pro se notice of appeal as
timely filed “if it is deposited in the institu-
tion’s internal mail system on or before the last
day for filing.” FED. R. APP. P. 4(c)(1). Tay-
lor, however, missed the February 2 deadline
by either reckoning. Therefore, we have no
jurisdiction to consider whether the district
court properly denied his rule 60(b) motion.
The dismissal, as frivolous, of Taylor’s free
exercise claim is AFFIRMED, the appeal from
the denial of the motion for reconsideration is
DISMISSED for want of jurisdiction, and the
dismissal of the equal protection claim is
VACATED and REMANDED for further
fact-finding and other proceedings consistent
with this opinion. We express no view on how 5 Spears v. McCotter, 766 F.2d 179, 181 (5th
Cir. 1985).

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the district court should resolve this claim on
remand.

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