                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-7548



ALLEN MCRAE; PATRICK LAHENS; DENNIS BLYDEN;
DAVID EVICK, JR.; RASHID QAWI AL-AMIN,

                                              Plaintiffs - Appellants,

             and


CHARLES STEVENSON,

                                                             Plaintiff,

             versus


GENE M. JOHNSON, in his official capacity;
UNITED STATES OF AMERICA,

                                               Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:03-cv-00164-RLW)


Submitted:    November 19, 2007              Decided:   January 7, 2008


Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
John Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
Steven Rosenfield, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA,
Charlottesville, Virginia; Rebecca K. Glenberg, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
Appellants.   Robert F. McDonnell, Attorney General, William E.
Thro, State Solicitor General, Mark R. Davis, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee Gene M. Johnson.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Five male prison inmates (the Plaintiffs), in the custody of

the Virginia Department of Corrections (the VDOC), filed this civil

action against VDOC Director Gene Johnson (Director Johnson), in

his official capacity, challenging the VDOC’s inmate grooming

policy (the VDOC’s Grooming Policy) under the Religious Land Use

and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.

§§ 2000cc to 2000cc-5.1   Two of the five inmates are practicing

Rastafarians, while three are practicing Muslims.     Following the

partial grant of summary judgment in favor of the Plaintiffs and a

bench trial on the remaining dispositive issues, the district court

entered judgment in favor of the VDOC.   We affirm.



                                I.

     RLUIPA provides, in relevant part, that “[n]o government shall

impose a substantial burden on the religious exercise of a person

residing in or confined to an institution . . . even if the burden

results from a rule of general applicability, unless the government

demonstrates that” the burden “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of

furthering that compelling governmental interest.”     42 U.S.C. §

2000cc-1(a).   Of relevance in the present appeal, the VDOC’s



     1
      For ease of reference, we will refer to the defendant in this
action as “the VDOC.”

                                3
Grooming Policy requires that all beards be shaved, that male

inmates wear their hair no longer than their shirt collar, and that

mustaches extend no further than the corners of the mouth.                     The

VDOC formulated this policy in 1999, and the most current version

is dated July 1, 2003.        The VDOC’s Grooming Policy applies to all

approximately 31,000 inmates in the VDOC system, regardless of

security level and regardless of religious beliefs.              An inmate who

violates the VDOC’s Grooming Policy, for whatever reason, is

charged with an infraction.        If he continues to violate the VDOC’s

Grooming Policy, he is assigned to administrative segregation where

he is supervised closely and is isolated from other inmates from

whom   he   may   receive   contraband    or    to   whom   he   may    pass   it.

Continuous violation of the VDOC’s Grooming Policy also subjects an

inmate to possible reclassification to a higher security level and

a reduction in good conduct credit.

       The Plaintiffs allege that the VDOC’s Grooming Policy places

a substantial burden on their religious exercise by prohibiting

them    from   wearing   beards.      The      two   Rastafarian       Plaintiffs

additionally allege that the VDOC’s Grooming Policy places a

substantial burden on their religious exercise, because their

religion requires them to abstain from cutting their hair.                 One of

the three Muslim Plaintiffs also alleges that his religion requires

that he grow out his mustache.




                                      4
       The parties filed cross-motions for summary judgment.           During

litigation on such motions, the VDOC conceded that it could not

disprove the sincerity of any individual Plaintiff’s belief that

his respective religion required him to wear his hair or beard in

a manner that violated the VDOC’s Grooming Policy. Based upon this

concession and on other analysis, the district court concluded that

the VDOC’s Grooming Policy substantially burdened the Plaintiffs’

exercise of religion and, therefore, granted them summary judgment

on that issue.      Nonetheless, the district court held that genuine

issues of material fact still remained with respect to:                     (1)

whether    the   VDOC’s    Grooming       Policy   furthers    a   compelling

governmental interest; and (2) whether the VDOC’s Grooming Policy

is the least restrictive means to further such interest.

       On July 12, 2006, the district court held a bench trial on

these two issues, with each side presenting one expert witness.

The VDOC presented Director Johnson as its expert witness, while

the    Plaintiffs    presented    James     Aiken,   a   prison    management

consultant.

       Director Johnson has forty years of experience with the VDOC

at all levels of security.       At trial, he testified that the VDOC’s

Grooming Policy furthers the compelling government interests of

prison security, health and safety of inmates and prison staff, and

easy   identification     of   prisoners,    especially   in   the   case    of

attempted escape or escape.        Prison security is increased by an


                                      5
inmate’s lessened ability to conceal weapons and other contraband

on his person.      The health and safety of inmates is increased by

allowing for better hygiene.          Finally, inmates are more easily

identified because they are less able to quickly change their

appearance, for example, by shaving a beard.           This is extremely

important in the case of attempted escape or escape.              Director

Johnson also testified that the VDOC’s Grooming Policy is the least

restrictive means of addressing these interests.

     James Aiken is a prison management consultant with a total of

fifteen years’ experience as a warden or assistant warden in South

Carolina and a total of eight years’ experience as the director or

deputy director of the prison systems of Indiana and the U.S.

Virgin   Islands.     James   Aiken   opined   that   two   primary   lesser

restrictive means than the VDOC’s Grooming Policy exist to further

the VDOC’s interests in prison security, the health and safety of

inmates and staff, and easy identification of inmates.           The first

is that inmates who have sincere religious objections to the VDOC’s

Grooming Policy could be assigned to a separate, non-punitive,

living space or pod where they could wear their hair long as well

as wear beards.     According to James Aiken, although these inmates

would have access to each other, such inmates could be closely

monitored to ensure that no issues relating to contraband or escape

arise.   The second primary less restrictive means offered by James

Aiken is the transfer of inmates whose sincere religious beliefs


                                      6
conflict with the VDOC’s Grooming Policy to a different prison

system with no such conflicting policy.

     The district court was ultimately persuaded by the VDOC’s

evidence that the VDOC’s Grooming Policy was the least restrictive

means to promote the compelling governmental interests of prison

security, the health and safety of inmates and prison staff, and

the easy identification of prisoners.        Following the district

court’s entry of judgment in favor of the VDOC, the Plaintiffs

filed this timely appeal.



                               II.

     On appeal, Plaintiffs seek reversal of the district court’s

judgment in favor of the VDOC based upon a sufficiency of the

evidence argument.   Specifically, Plaintiffs argue that although

the VDOC’s Grooming Policy had been in place for seven years at the

time of trial, the VDOC failed to present sufficient evidence that

the policy prevented the concealment of contraband, made the

identification of inmates within the prison and in the event of

escape easier, or contributed to the health of inmates and staff by

allowing for better hygiene.    According to the Plaintiffs, the

VDOC’s only evidence that the VDOC’s Grooming Policy has actually

had an effect in any of these areas was the conclusory statements

of Director Johnson, which statements, the Plaintiffs argue, were

completely rebutted by its expert witness.


                                7
     On appeal from a bench trial, we review findings of fact under

the clearly erroneous standard and conclusions of law de novo.

Roanoke Cement Co., L.L.C. v. Falk Corp., 413 F.3d 431, 433 (4th

Cir. 2005).      A factual finding is clearly erroneous when “the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”                    United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

     “Whether something qualifies as a compelling interest is a

question of law,” United States v. Hardman, 297 F.3d 1116, 1127

(10th    Cir.   2002),   as   well   as       whether   the   challenged   policy

constitutes the least restrictive means of addressing a compelling

government interest, Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th

Cir. 2005), cert. denied, 127 S. Ct. 187 (2006).

     Once “a plaintiff produces prima facie evidence to support a

claim alleging a violation” of RLUIPA, “the government shall bear

the burden of persuasion on any element of the claim, except that

the plaintiff shall bear the burden of persuasion on whether [the

challenged practice or law] substantially burdens the plaintiff’s

exercise of religion.”2       42 U.S.C. § 2000cc-2(b).          “In particular,


     2
      The Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§§ 2000bb et seq., is the precursor statute to RLUIPA, and
contained nearly identical language concerning the requirements of
a compelling interest and least restrictive means.      RLUIPA was
enacted under the Spending Clause after RFRA was struck down as
applied to the states in City of Boerne v. Flores, 521 U.S. 507
(1997), as an over exercise of Congressional authority under the
Fourteenth Amendment. Thus, case law under RFRA remains helpful in
analysis of claims under RLUIPA.

                                          8
the government must prove that the burden in question is the least

restrictive      means    of    furthering      a     compelling     governmental

interest.”      Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006).

With respect to both the compelling interest standard and the least

restrictive      means   standard,     we   owe     “‘due   deference    to   the

experience and expertise of prison and jail administrators in

establishing necessary regulations and procedures to maintain good

order, security and discipline, consistent with consideration of

costs and limited resources.’”              Id. at 190 (quoting Cutter v.

Wilkinson, 544 U.S. 709, 723 (2005)).                   See also id. at 192

(instructing district court, in assessing              a RLUIPA claim, to give

due deference to any explanation by prison officials as to why its

policy is the least restrictive means of addressing compelling

government intertest(s)).

      Our careful review of the record in this case reveals no

reversible error.        First, the testimony of Director Johnson, the

testimony of Plaintiffs’ expert witness James Aiken, and relevant

case law amply support the district court’s conclusions of law

that, in the prison setting, suppression of contraband, maintaining

discipline and security among the inmate population, maintaining

the   health    and   safety    of   inmates    and    staff,   and   preventing

prisoners      from   quickly   changing       their    appearance    constitute

compelling governmental interests.             See Cutter, 544 U.S. at 722

(“We do not read RLUIPA to elevate accommodation of religious


                                        9
observances over an institution’s need to maintain order and

safety.”); Longoria v. Dretke, 2007 WL 3308856, at *5 (5th Cir.

November 9, 2007) (maintaining security in prison setting is a

compelling state interest); Washington v. Klem, 497 F.3d 272, 283

(3d Cir. 2007) (“Interests of safety and health play a particularly

important role in the institutional [prison] setting.”).            See also

Hines v. South Carolina Dep’t of Corrections, 148 F.3d 353, 358

(4th Cir. 1998) (holding, pre-RLUIPA, that, in the prison setting,

suppression of contraband, limiting gang activity, maintaining

discipline    and   security,   and   preventing   inmates   from   quickly

changing their appearance are legitimate governmental interests,

and additionally declaring in dicta that the same are compelling

governmental interests).        The testimony of both experts and the

relevant case law establish far beyond any reasonable debate that

the business of running prisons is a dangerous and exceedingly

difficult task, one which cannot be successfully done without

suppressing    contraband,      maintaining   discipline,     maintaining

security, maintaining the health and safety of the inmates and

staff, and limiting inmates’ abilities to quickly change their

physical appearance.

     Second, the testimony of Director Johnson and relevant case

law ably support the district court’s conclusion of law that the

VDOC’s Grooming Policy constitutes the least restrictive means of

addressing the compelling governmental interests just identified.


                                      10
Director   Johnson,    who   has   forty   years’   experience      in   prison

management in the VDOC, testified that the VDOC’s Grooming Policy

promotes security and discipline and the health and safety of

inmates and staff by eliminating an inmate’s ability to hide

contraband or weapons in his beard and significantly limiting his

ability to hide contraband or weapons in his hair.                   Director

Johnson testified that, on a number of occasions prior to the

imposition of the VDOC’s Grooming Policy, inmates had hidden

contraband and/or weapons in their hair or beard, with one prison

officer being injured while “trying to shake down an inmate and

shake down his hair, and there was a razor blade or something in

the hair . . . .”     (J.A. 59).   Director Johnson also testified that

the VDOC’s Grooming Policy significantly cuts down on the number of

inmate shakedowns during which a prison officer must run his hands

all through an inmates hair and beard if he has one in order to

check for hidden contraband or weapons.             According to Director

Johnson, prison officers are hesitant to perform shakedowns on long

haired and/or bearded inmates, “inmates don’t like you putting your

hands all through the[ir] hair to start with,” shakedowns are time

consuming, and the VDOC does “not have enough staff to continually

shake people down as they move from one area to another to prevent

transporting   contraband.”        Id.     In   sum,   the   less   need   for

shakedowns the better.        This fact was illustrated by Director

Johnson’s testimony that approximately six months earlier, officers


                                     11
shaking down an inmate placed in administrative segregation for

refusing to cut his hair “found pieces of wire and rope and rocks

and tobacco, . . . that were hidden in his hair.”                 (J.A. 61).

       Director Johnson’s testimony also supports that inmate hygiene

is    improved    by   compliance      with   the     VDOC’s   Grooming     Policy.

According to Director Johnson, the VDOC has had a number of fairly

serious medical problems that went undetected because of long hair,

for    example,    tumors     and   lesions.        Director     Johnson    further

testified that he knew of numerous cases over the years where

inmates with long hair and/or beards developed lice or had spiders

in them.

       Critically,     in   contrast    to    James    Aiken’s    testimony,      the

testimony of Director Johnson explained the administrative burdens

that would result from the two main alternatives suggested by

Aiken.     Specifically, Director Johnson explained that a special

housing unit for persons claiming religious exemption from the

VDOC’s Grooming Policy would not be feasible because the sheer

numbers of persons who would seek exemption would not allow it.

Additionally, the separate housing suggested by Aiken would not

alleviate the security concern associated with housing all inmates

claiming    religious       exemption   in    the   same   facility,       as   those

individuals, without being isolated from each other, would have

access to each other along with the ability to hide contraband in

their long hair and/or beards.            James Aiken never addressed this


                                         12
security concern nor the extra time guards with limited amounts of

time would have to spend searching for contraband on an inmate with

long hair and/or a beard as opposed to searching for contraband on

a short haired, clean shaven inmate.          We note that one of the key

features of the VDOC’s Grooming Policy that supports the district

court’s least restrictive means conclusion is that the VDOC’s

Grooming   Policy   does   not    mandate    the   forcible   cutting    of   an

inmate’s long hair and/or beard.          Rather, an inmate is allowed to

keep his long hair and/or beard.            If he does so, however, he is

quite reasonably required to live in a segregated housing unit

(without access among inmates housed in such unit) where the

safety, security, and health risks created by long hair and beards

can be lessened by more restrictions on the inmate.

     Finally,   the   record     fully    supports   the   district     court’s

conclusion that the other proffered less restricted means of

serving the compelling governmental interests at issue, i.e.,

transferring inmates whose religious beliefs conflict with the

VDOC’s Grooming Policy to other prison systems without a grooming

policy, is not workable.         As the district court explained, based

upon the testimony of Director Johnson:

     Arranging for prisoners to be moved out-of-state to
     jurisdictions with no grooming policy creates additional
     concerns for the agency.     Prisoners who are awaiting
     transfers for other reasons will be delayed if prisoners
     get moved first because the agency has to accommodate a
     religious interest of another prisoner.        The sheer
     numbers of prisoners who may seek transfers for religious
     accommodation reasons would threaten to overwhelm the

                                     13
     system. Since the VDOC only conducts prisoner transfers
     to other jurisdictions on a reciprocity basis, it would
     be virtually impossible to arrange exchanges.     There
     would also be resentment from those prisoners who see
     their own transfers delayed or made impossible because
     others were moved ahead of them.

(J.A. 258).

     In sum, given the record before us and the requirement that

courts give due deference to the expertise and experience of prison

officials, we affirm the district court’s judgment.   See Hoevenaar

v. Lazaroff, 422 F.3d 366 (6th Cir. 2005) (upholding prison ban on

long hair against RLUIPA challenge), cert. denied, 127 S. Ct. 187

(2006); Ragland v. Angelone, 420 F. Supp. 2d 507 (W.D. Va. 2006)

(upholding challenge to VDOC’s Grooming Policy under RLUIPA by

Rastafarian who wanted to maintain long hair and beard within

regular prison population and without adverse consequences), aff’d,

193 Fed. Appx. 218 (Aug. 2, 2006), cert. denied, 127 S. Ct. 1877

(2007).

                                                          AFFIRMED




                                14
