           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 23, 2009

                                     No. 08-40966                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



FREDRICK GOODEN, also known as Ma’Min Al-Naba

                                                   Plaintiff-Appellant
v.

C. CRAIN; TEXAS BOARD OF CRIMINAL JUSTICE;
BILLY PIERCE; D. DRETKE

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 6:04-cv-00127


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Fredrick Gooden (“Gooden”) brought this suit against the Defendants-
Appellees, asserting that they violated his rights under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq. After




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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trial, judgment was entered for Appellees. Gooden then brought this appeal.1
We AFFIRM.
                    I. FACTS AND PROCEDURAL HISTORY
         Gooden, a Muslim inmate confined to a unit of the Texas Department of
Criminal Justice (“TDCJ”), brought this suit alleging that TDCJ’s grooming
policy, which prohibits all inmates from wearing beards unless they have a
medical exception, violated his rights under RLUIPA. Specifically, Gooden
argues that the grooming policy substantially burdened his ability to exercise his
faith by preventing him from wearing a beard as his faith demands. In order to
satisfy the demands of his faith, Gooden brought this suit and sought injunctive
relief to allow him to wear a quarter-inch beard.
         Gooden consented to a bench trial of his RLUIPA claim before a magistrate
judge.       After trial, the judge found that the grooming policy “imposes a
substantial burden on [Gooden’s] exercise of his religious beliefs.” Gooden v.
Crain, No. 6:04-cv-00127, 2008 WL 3271557, *13 (E.D. Tex. Aug. 6, 2008).
However, she also found that Appellees had not violated RLUIPA and entered
judgment in their favor because the policy was the least restrictive means of
furthering a compelling governmental interest in security of prisoners. This
appeal followed.
                                  II. DISCUSSION
         Under RLUIPA, “[n]o government shall impose a substantial burden on
the religious exercise of [an inmate] . . . unless the government demonstrates that
imposition of the burden on that person -- (1) is in furtherance of a compelling

         1
        Gooden has moved for appointment of appellate counsel. However, he has not
demonstrated the sort of exceptional circumstances that permit appointment of such counsel.
See Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

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governmental interest; and (2) is the least restrictive means of furthering that
. . . interest.” 42 U.S.C. § 2000cc-1 (emphasis added).
       The trial court entered judgment for Appellees, because it found that they
had proved that the grooming policy was the least restrictive means of achieving
a compelling governmental interest, namely TDCJ’s interest in security. Gooden
challenges the trial court’s factual findings and legal conclusions in support of
this holding.
A. Standard of Review
       “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Kona
Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).
B. Compelling Governmental Interest
       Gooden challenges the trial court’s finding that the grooming policy
furthers TDCJ’s compelling governmental interest in security.2 Appellees had
the burden of proving that the grooming policy furthered a compelling
government interest.         42 U.S.C. §§ 2000cc-1, 2000cc-2(b) (stating that the
government bears the burden of persuasion on every element of a RLUIPA claim
except substantial burden). To meet their burden of proof, Appellees only had
“‘to take the unremarkable step of providing an explanation for the policy’s
restrictions that takes into account [their] institutional need to maintain good
order, security, and discipline or to control costs.’” Smith v. Ozmint, 578 F.3d



       2
         We have held that “security” is a compelling governmental interest, and Gooden does
not contest that “security” is a compelling governmental interest. Diaz v. Collins, 114 F.3d 69,
73 (5th Cir. 1997) (“We agree with our colleagues in the Eighth and Eleventh Circuits that a
prison regulation on hair length is related to security and, as such, involves a compelling state
interest.”).

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246, 252 (4th Cir. 2009) (quoting Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir.
2006)). Courts are required to apply the “compelling interest” analysis with
“‘due   deference   to   the   experience       and   expertise   of   prison   and   jail
administrators.’” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (quoting 146
Cong. Rec. 16699 (2000)).
        According to the trial court, the grooming policy furthers TDCJ’s interest
in security because it allows TDCJ to accurately identify inmates and it
eliminates the threat that “contraband and weapons” could be carried in beards.
Gooden, 2008 WL 3271557 at *13. Gooden challenges both the court’s factual
findings and the court’s conclusion, based on those findings, that the grooming
policy furthers TDCJ’s compelling interest in security.
        The trial court’s findings of facts regarding TDCJ’s identification and
contraband concerns are supported by the record and are not clearly erroneous.
William Stephens, a regional director for TDCJ, testified that inmates are
identified by their clean-shaven photos on their prison identification cards, and
the grooming policy, which requires inmates to be clean-shaven, allows
correctional officers to easily identify inmates based on their photos. Director
Stephens testified that identification furthers the goal of security by allowing
correctional officers to ensure that inmates do not enter areas of the prison
where they do not belong, which prevents problems such as theft and the
extortion of other inmates. He also testified that identification furthers public
safety concerns, because beards would make it difficult to quickly identify and
recapture inmates if they escape. In addition, Director Stephens testified that
weapons, like razor blades, and contraband, such as handcuff keys, could be
secreted in beards. This testimony by Director Stephens shows that the trial


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court’s findings of fact are substantially supported by the record, so its findings
are not clearly erroneous. Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d
484, 488 (5th Cir. 2006) (stating “[c]lear error exists if . . . the findings are
without substantial evidence to support them”).
      The court’s factual findings, based on the testimony of Director Stephens,
show that the grooming policy is related to and furthers TDCJ’s interest in
security; therefore, the trial court did not err in finding that Appellees met their
burden in proving that the grooming policy furthers a compelling governmental
interest. See Fegans v. Norris, 537 F.3d 897, 906 (8th Cir. 2008) (finding that a
similar grooming policy furthered the government’s interest in security because
it was related to identification and contraband concerns); see also Baranowski
v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (holding that a policy furthered a
compelling interest when the government proved that it was related to
maintaining good order and controlling costs).
C. Least Restrictive Means
      Gooden also challenges the trial court’s finding that TDCJ’s grooming
policy is the least restrictive means of achieving its interest in security. Gooden
asserts that TDCJ’s interest in security could be furthered by a grooming policy
that provides a religious exception for quarter-inch beards. Appellees had the
burden of disproving Gooden’s assertion by explaining “why [his] alternative
[policy] would be unfeasible, or why [it] would be less effective in maintaining
institutional security.” 42 U.S.C. §§ 2000cc-1, 2000cc-2; Spratt v. R.I. Dep’t of
Corrs., 482 F.3d 33, 41 (1st Cir. 2007); see Sossamon v. Texas, 560 F.3d 316, 335
(5th Cir. 2009) (“Some of these options might not prove feasible . . . .”); Hamilton
v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996) (interpreting the Religious


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Freedom Restoration Act, which used the same test as RLUIPA, as requiring the
government to refute alternatives suggested by a plaintiff). The trial court
found that Appellees satisfied the “least restrictive means” prong by
demonstrating that Gooden’s suggested alternative was not administratively or
financially feasible. Gooden, 2008 WL 3271557 at *13.
      The trial court found that a quarter-inch beard religious exception would
not be feasible, because it would require the prison to “have to build additional
barber shops in order to allow Muslim inmates to use clipper shavers. . . . The
process of issuing clipper shave passes . . . would also place an additional burden
on chaplains, who are already burdened by the strain of their administrative
duties at the expense of their ministerial duties.” Gooden, 2008 WL 3271557 at
*13. Gooden offered no contrary testimony. Thus, some evidence supports the
trial court’s conclusion that the exception would not be feasible.
      Even if we found that the evidence did not support this finding, the court’s
findings of fact show that Appellees proved that such an exception “would be less
effective in maintaining institutional security.” Spratt, 482 F.3d at 41. The trial
judge did not expressly use this language in her opinion, but this conclusion can
be fairly inferred from her findings and her decision to deny relief. It is a firmly
established rule that this court may “‘affirm the district court’s judgment on any
grounds supported by the record,’” even if “our affirmance is upon grounds not
relied upon by the district court.” Securities & Exchange Comm’n v. Chenery
Corp., 318 U.S. 80, 88 (1943) (stating that a “decision of a [district] court . . .
must be affirmed if the result is correct” and if there are no additional findings
of fact to be made); Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr.
Corp., 509 F.3d 216, 221 (5th Cir. 2007) (quoting Sojourner T v. Edwards, 974


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F.2d 27, 30 (5th Cir. 1992)); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804
(5th Cir. 1997).
       As stated earlier, there is substantial evidence to support the trial court’s
finding that the accurate identification of inmates based on their clean-shaven
photos furthers TDCJ’s interest in security, because accurate identification
allows correctional officers to ensure that inmates are not out of place and it
assists in the recapture of escapees. See supra Part II.B. In addition to these
findings, the court found that granting Muslim inmates the right to wear “one-
fourth inch beards” would “make[] identification more difficult.” Gooden, 2008
WL 3271557 at *13. Again, Gooden offers little in the way of response to this
point, other than to note that some inmates are given a medical exception to the
policy and that the policy is not always uniformly enforced.3
       The trial court’s finding that quarter-inch beards would increase the
difficulty of identifying inmates is not clearly erroneous because it is supported
by substantial evidence in the record. Water Craft Mgmt. LLC, 457 F.3d at 488.
Director Stephens testified that if inmates were allowed to grow quarter-inch
beards, they could resemble other inmates and use their identification cards to
get into areas of the prison where they do not belong. He also testified that
quarter-inch beards would make it harder for correctional officers to identify
inmates when transferring them within the prison. Finally, Director Stephens
testified that, in his opinion, the “security concepts . . . outweigh the fact of
allowing everybody [to walk] around with a quarter inch beard.”



       3
          Thus, we make no broad holding that the grooming policy, as it applies to quarter-
inch beards, will always be upheld. Our decision is based solely upon the evidence presented
in this case.

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       The trial court’s findings of fact show that Appellees, based on this
evidence, proved that an exception for quarter-inch beards would be less
effective in maintaining prison security, because such beards would make
identification more difficult.4 Since Appellees met their burden, the trial court
did not err in denying Gooden relief in this case upon this record.
                                 III. CONCLUSION
       For the foregoing reasons, we AFFIRM the trial court’s judgment in favor
of Appellees. Accordingly, Gooden’s motion for injunctive and declaratory relief
is DENIED. Gooden’s motion to appoint appellate counsel is also DENIED.




       4
        While we have observed that “the identification problem” posed by beards generally
“would be significantly reduced” in the context of quarter-inch beards, we did not determine
that quarter-inch beards must always be permitted. Green v. Polunsky, 229 F.3d 486, 490 (5th
Cir. 2000). On the record here, we cannot hold that the trial court’s findings were “clearly
erroneous.”

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