                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2004

Brown v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4766




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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-4766


                                WILLIAM BROWN,

                                                    Appellant
                                         v.

                       SUPERINTENDENT P. JOHNSON;
                     REVEREND KATHY HIGGINS; MAJOR
                     HASSETT; FATHER GEORGE MONECK,
                           all at SCI-Greene at time of
                      events; FATHER FRANCIS T. MENEI




                     Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Civil Action No. 99-cv-00915)
                    District Judge: Honorable William L. Standish


                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 28, 2004

             Before: NYGAARD, AM BRO, and GARTH, Circuit Judges

                         (Opinion filed November 18, 2004)




                                     OPINION


AM BRO, Circuit Judge

      William Brown appeals the District Court’s order granting summary judgment in
favor of the Superintendent and other Department of Corrections (“DOC”) officials at the

State Correctional Institution at Greene, Pennsylvania (“SCI-Greene”). Brown alleges in

this § 1983 claim that enforcing the DOC’s grooming policy against him violated his First

Amendment and equal protection rights under the United States Constitution and

constituted illegal retaliation. As the District Court correctly granted summary judgment

on Brown’s First Amendment claim and he waived his equal protection and retaliation

claims, we affirm the District Court’s order.

1.     BACKGROUND

       Brown was an inmate at SCI-Greene from 1994 through 2002. He was also

recommitted to that facility from 2003 until 2004 and has now been released on parole.

He asserts that he practices Rastafarianism and did so during his incarceration.

       The DOC’s grooming policy requires that, among other things, the length of an

inmate’s hair not fall below the top of his shirt collar. During some of Brown’s time at

SCI-Greene, his hair length violated this policy. Brown received several misconduct

reports and spent two years and seven months in a Restricted Housing Unit (“RHU”) for

failing to comply with direct orders to cut his hair. Indeed, Brown was kept in RHU until

he so complied. Because Rastafarianism prohibits its followers from cutting their hair,

Brown asserts he was entitled to a religious exemption to the DOC grooming policy.

       Exemptions from the grooming policy’s hair length requirements are granted for

legitimate religious reasons on a case-by-case basis. In 1996 and September of 1997,



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Brown made requests for grooming exemptions because of his religious beliefs. On each

occasion, Brown met with a Facility Chaplain who concluded Brown demonstrated little

knowledge of the beliefs and practices of Rastafarianism. Additionally, Chaplaincy

Department records show that Brown had previously practiced the Muslim, Protestant,

and Native American religions, and also had attended numerous services with the

Moorish Science Temple of America. Based on the Facility Chaplain’s recommendation,

the Superintendent thereafter denied Brown’s requests.

       In December 1997, the DOC amended its grooming policy to require an inmate

seeking a religious exemption to submit a written document, apparently from an outside

source, indicating that he had a history of adhering to the tenets of the particular faith

group. In 1998, Brown submitted a letter from an acknowledged Rastafarian leader

stating that Brown had written to join the leader’s church only one month earlier. The

Superintendent again denied Brown’s request, finding that the letter did not show Brown

had a sufficiently long history of adhering to Rastafarianism.

       Brown filed a complaint with the United States District Court for the Western

District of Pennsylvania alleging various constitutional violations. Thereafter, the

defendants sought and obtained summary judgement. Brown appeals, asserting that the

District Court did not adequately analyze his First Amendment claim and failed to

consider both his equal protection and retaliation claims.




                                               3
2.     ANALYSIS

       a.     Brown’s First Amendment Claim

       Prison regulations need only be rationally related to legitimate penological

interests to survive constitutional challenge. Overton v. Bazzetta, 539 U.S. 126, 132

(2003) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). In addition, our Court has held

that a prisoner challenging a prison regulation on the ground that it interferes with the

prisoner’s right to exercise religion freely must first establish that his alleged beliefs are

both sincerely held and religious in nature. DeHart v. Horn, 227 F.3d 47, 51-52 (3d Cir.

2000) (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981)).

       In Turner, the United States Supreme Court provided four factors to determine

whether a prison regulation rationally relates to legitimate penological objectives. 482

U.S. at 89-91. First, there must be a “valid, rational connection” between the regulation

and the legitimate governmental interest put forward to justify it. Id. at 89 (quoting Block

v. Rutherford, 468 U.S. 576, 586 (1984)). Second, where inmates have alternative means

of exercising the asserted right, courts should be “particularly conscious” of the deference

owed to corrections officials in establishing prison regulations. Id. at 90. Third, if

accommodation of the asserted right will have a significant effect on other inmates,

prison staff, or the allocation of prison resources, courts should be particularly deferential

to the informed decisions of corrections officials. Id. Last, an absence of ready

alternatives is evidence of the reasonableness of a regulation. Id.



                                               4
       The District Court, by adopting the Magistrate’s Report and Recommendation,

found against Brown on all four factors. Brown has not challenged these findings in his

brief to us. Rather, he asserts that our holding in DeHart required the District Court first

to determine whether Brown’s beliefs were both sincerely held and religious in nature

before conducting a Turner analysis.

       Brown is correct insofar as DeHart did conclude that the mere assertion of First

Amendment rights does not automatically bestow constitutional protections — “if a

prisoner’s request for [a religious accommodation] is not the result of sincerely held

religious beliefs, the First Amendment imposes no obligation on the prison to honor that

request.” DeHart, 227 F.3d at 52. Therefore, the DeHart requirements of both sincerity

and religious nature must be satisfied before a court need undertake a Turner analysis. Id.

       In this case defendants explicitly assumed in their summary judgment motion that

Brown’s beliefs were sincerely held and religious in nature. This effectively resolved any

DeHart issues in Brown’s favor. Furthermore, as DeHart makes clear, it is up to the

prisons themselves to assert challenges to the sincerity or religious nature of a prisoner’s

beliefs, and where no such challenges are made, the religious nature and sincerity of the

beliefs are assumed. 227 F.3d at 52. Here, as in DeHart, defendants made no such

challenge. Brown claims that defendants did not stipulate that Brown’s beliefs were

sincerely held and religious in nature. Even were this true, it would be irrelevant. If,

instead of assuming the validity of Brown’s beliefs and undertaking the Turner analysis,



                                              5
the District Court had addressed whether Brown’s beliefs were sincerely held and

religious in nature and concluded that they were not, Brown would still lose. The District

Court therefore did not err by considering the Turner factors without undertaking a

DeHart analysis. Thus, we affirm summary judgment against Brown on his First

Amendment claim.

       b.     Brown’s Equal Protection and Retaliation Claims

       Brown also appeals the District Court’s failure to consider his equal protection and

retaliation claims. Though he made these claims in his initial complaint, neither the

Order of the District Court granting summary judgment, nor the Report and

Recommendation of the Magistrate that informed that Order, considered them.

Defendants respond that, though Brown raised equal protection and retaliation in his

complaint and the District Court failed to address these matters, his failure to raise them

at the summary judgment stage was a waiver. We agree.

       In its scheduling order of September 26, 2003, the Magistrate Judge ordered that

Brown file a response to defendants’ motion for summary judgment by October 16, 2003.

In that order the Magistrate Judge warned that “failure to file a response to the motion

will be construed as consent to the granting of [it].” Brown responded only by filing a

motion to extend time to file a response (and then but two days before the response was

due). Though Brown’s request was denied, he still filed nothing. This waives both

claims. As the First Circuit stated in Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667 (1st



                                              6
Cir. 1995), “[e]ven an issue raised in the complaint but ignored at summary judgment

may be deemed waived. ‘If a party fails to assert a legal reason why summary judgment

should not be granted, that ground is waived and cannot be considered or raised on

appeal.’” Id. at 678 (quoting Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986)).

Furthermore, “[i]t is a well-settled rule that a party opposing a summary judgment motion

must inform the trial judge of the reasons, legal or factual, why summary judgment should

not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on

appeal.” Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983). That is this

case.

                                       * * * * *

        For these reasons, we affirm the District Court’s grant of summary judgment.




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