APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: GIBBONS, GARTH and MARIS, Circuit Judges
This civil action brought under 42 U.S.C. § 1983 by a prisoner at the Dallas, Pennsylvania State Correctional Institution sought declaratory, injunctive, compensatory and punitive relief against the Pennsylvania Commissioner of Corrections and the Superintendent and certain other officers at the Dallas institution by reason of their alleged infringement of his first amendment right to practice his religion. The plaintiff is an ordained minister of a religious faith known as the Church of Prophetic Meditation, one of the tenets of which prohibits members from cutting hair from any part of their bodies. During 1980 the plaintiff received three misconduct reports resulting in loss of privileges, segregated confinement and loss of his prison job. The misconduct alleged was his refusal to obey orders to have his hair cut in compliance with Administrative Directive 807. That directive, which regulated resident grooming, provided:*fn1
Hair that does not fall below the top of the collar in length, a beard or goatee no longer than three inches, a mustache and sideburns shall be permitted provided they are neat and clean.
A. Any feminine hair style shall be permitted.
B. Unless otherwise determined by the Superintendent of the State Correctional Institution at Muncy, hair dyeing and tinting shall be done only by the institutional beautician.
C. The use of all cosmetics shall be permitted in good taste.
The magistrate to whom the case was referred recommended that it be dismissed as frivolous. The district court adopted the magistrate's recommendation and dismissed the complaint without service. An appeal to this court followed. On this first appeal this court, holding that the district court had abused its discretion in treating the complaint as frivolous and that a factual record was required to strike a balance between the two competing interests in the case, reversed the judgment of dismissal and remanded the case for further proceedings. Dreibelbis v. Marks, 675 F.2d 579 (3d Cir. 1982).
On remand the district court, in compiling a factual record, accepted the plaintiff's representations that his religious beliefs were sincerely held and required that he never cut his hair or beard. The parties agreed that the plaintiff's uncut hair and beard violated Directive 807. The defendants moved for summary judgment, submitting supporting affidavits, including an affidavit by the defendant, Commissioner of Corrections Marks, an official with more than twenty years of service in the Pennsylvania correctional system. In his affidavit Commissioner Marks set forth the potential for disruption of prison security which Directive 807 was intended to prevent. The plaintiff opposed the motion for summary judgment for the defendant, filing numerous affidavits of prisoners in the Dallas and other Pennsylvania correctional institutions to the general effect that Directive 807 was not uniformly enforced. He did not, however, offer any affidavits controverting the security dangers referred to by Commissioner Marks in his affidavit.
The district court held that the reasons set forth by the defendants for the policy involved in adopting Directive 807 were sufficient concerns which go directly to the general concept of prison regulation and security which legally justified the directive. The court concluded that the affidavits filed by the plaintiff were not relevant to his first amendment argument and that he had not made a selective enforcement claim as to which ...