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Florida may never free this prisoner, but court says one of his freedoms must be restored

by Camellia Burris, McClatchy Washington Bureau | August 19, 2023 at 10:40 p.m.

It will be a long time if ever before Durell Sims tastes real freedom, but an appeals court has validated one freedom: the ability to grow a bushy beard behind bars.

In the latest twist in litigation that has lasted years and spanned multiple courts, a federal appeals court upheld a lower court ruling that the Martin County man serving life in Florida prison may grow his beard in conformity with his religious beliefs -- setting a precedent that could have nationwide ramifications for prisoners' religious rights.

The 11th Circuit Court of Appeals rejected the state's argument that the 40-year-old Muslim man, currently held in South Bay Correctional Facility in Palm Beach, failed to exhaust all administrative remedies before he filed a civil action against the secretary of the Florida Department of Corrections. He claimed that the FDC's grooming policy violated the Religious Land Use and Institutionalized Persons Act because it prevented him from growing a fist-length beard -- a tenet of his religion, at least in the view of some scholars.

The act prohibits imposing a "substantial burden" on an incarcerated person's religious exercise unless that burden furthers a compelling government interest using the least-restrictive means.

Prisons have become a battleground over religious rights, including a high-profile case last year in Texas in which a Death Row inmate won the right to have his pastor next to him as the inmate was executed by lethal injection.

The Florida Department of Corrections' "grooming policy" mandates that prisoners can either be "clean shaven" or "grow and maintain a half-inch beard." There are no exceptions.

Olivia Kelman and Joshua Carpenter, who represented Sims pro bono, believe this decision can have far-reaching ramifications for the department's evaluation of other inmates who request exceptions on religious grounds.

"The Religious Land Use and Institutionalized Persons Act protects religious freedom for all. And so the importance of this is that folks who have various religious beliefs are entitled to exceptions that meet the standards of the law in order to practice and fulfill their religious beliefs, even while incarcerated, and that was the intent of Congress to provide for religious freedom of inmates who are incarcerated," Kelman said in an interview with the Herald.

Carpenter hopes the ramifications of the court case will be nationwide, asserting that the decision will be directly binding throughout the 11th Circuit, which covers Florida, Georgia, and Alabama. He also said that it may be a benchmark for courts grappling with similar issues throughout the country.

"This opinion makes clear that prisoners' substantive religious rights ... matter, and the state cannot take away prisoners' abilities to vindicate those rights in court by utilizing misleading procedural technicalities," he said.

Muslim Advocates, a civil rights organization focused on ending what it views as discrimination against Muslims in America, found that in 2018 the number of Muslims in U.S. prisons was 84,882. According to the Council on American-Islamic Relations, a nationwide Muslim civil liberties and advocacy group, about 10,000 of those Muslims are incarcerated in Florida.

Beard policies may vary from one state prison system to the next. The federal Bureau of Prisons imposes no restriction length. Courts around the country have issued similar rulings striking down restrictions in recent years.

One rationale given for requiring beards to be short-cropped is that anything from contraband drugs to razor blades to cell phone SIM cards could be concealed in a bushy beard.

Sims, who began serving a life sentence for first-degree attempted murder in 2006, initially challenged this policy by seeking relief though the department's grievance policy. First, Sims addressed the prison chaplain, explaining in his "informal grievance" form that the department's grooming policy prevented him from growing his beard. The chaplain denied his request, concluding that the prison's rules did not conflict with Sim's religious beliefs.

Sims' second approach -- filing a "formal grievance" with the assistant warden -- was also denied. His third step, in which he appealed to the FDC secretary, was rejected as well.

Believing he had exhausted all remedies available administratively, Sims turned to the justice system and filed his civil action in federal court.

Moving to dismiss Sims' complaint, the department argued that he had failed to exhaust all internal remedies before filing suit -- a requirement under the Prison Litigation Reform Act. The secretary acknowledged that Sims had completed the three steps of the prison's grievance process, but insisted that Sims could have done more before turning to the courts.

Specifically, the secretary pointed to the Florida Administrative Procedure Act, which provides that any "person regulated by an agency or having substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule." According to this provision, the secretary argued, Sims should have asked the department to "amend" its grooming policy before seeking a legal remedy.

The appeals court denied this motion to dismiss, ruling that the Prison Litigation Reform Act only requires prisoners to exhaust all administrative remedies. It does not require that they file a petition for rule-making. Moreover, the court ruled that the FDC does not even inform prisoners that filing a petition is a required step.

The secretary raised the exhaustion defense again at the time when the court considered a summary judgment. The appeals court rejected it again.

The case then went to a bench trial, with the court ruling for Sims, finding that the "whole point of [the Institutionalized Persons Act] is to require accommodation of religion -- to allow an inmate an exception to an otherwise uniform policy that substantially burdens the inmate's religious exercise."

Furthermore, the court found that the department's grooming policy substantially burdened Sims' sincere religious exercise, and the secretary had not shown that its half-inch beard policy was the least-restrictive means of furthering a compelling government interest.

The court ordered that the secretary grant Sims an exception to the grooming rule.

In its appeal, the department again argued that Sims failed to exhaust available remedies.

The 11th Circuit Court rejected this argument.

The federal appeals court cited Florida's "Inmate Grievance Procedure," which outlines the steps that Sims followed, but does not mandate a petition to initiate rule-making.

The Florida Department of Corrections did not respond to request for comment.


©2023 McClatchy Washington Bureau.

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