Before SMITH, DUHÉ, and WIENER,
Circuit Judges.
PER CURIAM:
Maurice Taylor filed a civil rights complaint under 42 U.S.C. § 1983 alleging that a
Texas Department of Criminal Justice policy
violates his free exercise rights under the First
Amendment. The policy forbids inmates to
wear beards, and Taylor alleges that his Muslim beliefs require him to wear a one-quarter-inch beard and that the policy violates his
equal protection rights because the grooming
policy allows beards for medical reasons but
forbids them for religious purposes.
The district court dismissed Taylor's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B).(1) Taylor appealed, then filed a motion
for reconsideration, claiming for the first time
that the grooming policy violates the Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C. § 2000cc. The district
court denied this motion. We affirm the dismissal, as frivolous, of the free exercise claim,
dismiss for want of jurisdiction the appeal
from the denial of the motion for reconsideration, and vacate the dismissal of the equal protection claim and remand it for further consideration.
I.
A complaint is frivolous if it lacks an arguable basis in law or fact, and a complaint lacks
such a basis if it relies on an indisputably meritless legal theory. Harper v. Showers, 174
F.3d 716, 718 (5th Cir. 1999). We review for
abuse of discretion a dismissal of a prisoner's
complaint as frivolous. Id.
II.
Taylor's free exercise claim is foreclosed
by Green v. Polunsky, 229 F.3d 486 (5th Cir.
2000), in which an inmate challenged the
same grooming policy at issue here. He, like
Taylor, contended that the policy violated his
free exercise rights because prison officials
would not let him wear a one-quarter-inch
beard in accordance with the tenets of his
Muslim faith, yet allowed prisoners with certain medical conditions to wear three-quarter-inch beards. Id. at 488. We disagreed and
concluded that the policy was reasonably
related to legitimate penological interests. Id.
at 490. Because this decision is binding precedent, United States v. Short, 181 F.3d 620,
624 (5th Cir. 1999), cert. denied, 528 U.S.
1091 (2000), the district court did not abuse
its discretion in deciding that the free exercise
claim lacks an arguable basis in law.
III.
Taylor contends that the grooming policy
violates the Equal Protection clause of the
Fourteenth Amendment. He claims that because the prison policy threatens his fundamental First Amendment rights, strict scrutiny
applies.
To maintain his equal protection claim independently of his free exercise claim, Taylor
must allege and prove that he received treatment different from that received by similarly
situated individuals and that the unequal treatment stemmed from a discriminatory intent.
See, e.g., City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439-40 (1985). "Discriminatory purpose . . . implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action
at least in part for the purpose of causing its
adverse effect on an identifiable group." Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir.
1988) (internal quotation marks omitted).
Taylor alleges that he is situated similarly
to inmates who cannot shave for medical reasons and claims that accommodating these inmates privileges Eighth Amendment rights
over his First Amendment rights. Acknowledging the legitimate penological interest in
prohibiting beards of indeterminate length,
Taylor contends that the failure to grant him
the same accommodation as those with medical conditions fails strict scrutiny and lacks a
rational relationship to a legitimate governmental interest. He also alleges that the prison
officials refused his request for exemption at
least in part because of the adverse effect it
has on the exercise of his faith.
Strict scrutiny is appropriate only where a
government classification implicates a suspect
class or a fundamental right. Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir. 1998) (internal citations omitted).(2) Taylor claims that
growing a beard in accordance with the tenets
of Islam is a fundamental right. We have held
that "[r]ights are fundamental if their source,
explicitly or implicitly, is the Constitution."
Ball v. Rapides Parish Police Jury, 746 F.2d
1049, 1059 n.38 (5th Cir. 1984).
Even assuming, arguendo, that the right to
grow a beard is a fundamental free exercise
right, we temper our application of strict scrutiny in the prison context.(3) Although convicted prisoners do not forfeit all constitutional
protections, we must balance those protections
against the fact that lawful incarceration necessarily requires the limitation of many rights
and privileges and against the legitimate penological objectives of the prison. See O'Lone v.
Shabazz, 482 U.S. 342, 348-49 (1987).(4)
"To ensure that courts afford appropriate
deference to prison officials, . . . prison regulations alleged to infringe constitutional rights
are judged under a 'reasonableness' test less
restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone, 482 U.S. at 349. Applying an "inflexible strict scrutiny analysis
would seriously hamper [the prison administrators'] ability to anticipate security problems
and to adopt innovative solutions to the intractable problems of prison administration."
Turner v. Safley, 482 U.S. 78, 89 (1987).
Thus, a prison regulation "is valid if it is
reasonably related to legitimate penological
interests," and prison officials need not "set up
and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Id. at 89,
90-91.
In Green, 229 F.3d at 489-91, we examined
the same policy in light of the disparate treatment of medical and religious exemptions and
found that the policy served a legitimate penological interest. Additionally, Taylor has not
alleged any facts that demonstrate that the
prison administrators purposefully intended to
discriminate against him as a member of an
identifiable group.
Green, however, specifically left open the
question whether the regulation unconstitutionally treated similarly situated prisoners
differently. Id. at 489 n.6. Moreover, "[d]iscriminatory enforcement of facially neutral
grooming regulations may, under some
circumstances, violate the Equal Protection
Clause." Shiloh-Bryant v. Garner, No. 93-8159 (5th Cir. June 28, 1993) (unpublished)
(citing Scott v. Miss. Dep't of Corrections,
961 F.2d 77, 82 n.21 (5th Cir. 1992)). Because Taylor's claims lack neither an arguable
basis in law or fact, he might have stated a
nonfrivolous claim had the district court allowed him the opportunity to develop the factual basis of his claim through a Spears hearing(5) or questionnaire. See Eason v. Thaler, 14
F.3d 8 (5th Cir. 1994). Consequently, the
district court abused its discretion in dismissing this claim as frivolous, so we vacate the
dismissal of the equal protection claim and remand for further factual development.
IV.
Taylor contends that the grooming policy
violates the Religious Land Use and Institutionalized Persons Act. Because he raised this
issue in the district court in a motion for reconsideration filed more than ten days after
the judgment of dismissal and after he had
filed his notice of appeal, the motion arises
under Fed. R. Civ. P. 60(b). See Harcon
Barge Co. v. D & G Boat Rentals, Inc., 784
F.2d 665, 667 (5th Cir. 1986) (en banc). The
court denied the motion on the ground that
Taylor's one-sentence allegation failed to
meet the requirements for relief under rule
60(b). Taylor did not file a new notice of
appeal or seek to amend his previous notice of
appeal after the court denied the motion.
We consider sua sponte the basis of our
jurisdiction to review this motion. See Williams v. Chater, 87 F.3d 702, 704 (5th Cir.
1996). A party may file a rule 60(b) motion at
any time within one year after judgment, even
if an appeal is pending, and the denial of that
motion is appealable separately from the underlying judgment. Id. at 704-05.
In general, we require a separate notice of
appeal to preserve the issue for our review.
McKethan v. Tex. Farm Bureau, 996 F.2d
734, 744 (5th Cir. 1993). We construe this
requirement liberally, however, and a brief
may serve as the "functional equivalent" of an
appeal if it is filed within the time specified by
Fed. R. App. P. 4 and gives the notice required
by Fed. R. App. P. 3. Smith v. Berry, 502 U.S.
244, 247-49 (1992).
Even under this liberal construction, Taylor's brief does not constitute a timely notice
of appeal. The rule 60(b) motion was denied
on January 3, 2001. Under rule 4(a)(1)(A),
the notice of appeal must be filed within thirty
days. Taylor's appellate brief is dated February 3 and was filed on February 7. We consider a prisoner's pro se notice of appeal as
timely filed "if it is deposited in the institution's internal mail system on or before the
last day for filing." Fed. R. App. P. 4(c)(1).
Taylor, however, missed the February 2 deadline by either reckoning. Therefore, we have
no jurisdiction to consider whether the district
court properly denied his rule 60(b) motion.
The dismissal, as frivolous, of Taylor's free
exercise claim is AFFIRMED, the appeal from
the denial of the motion for reconsideration is
DISMISSED for want of jurisdiction, and the
dismissal of the equal protection claim is
VACATED and REMANDED for further
fact-finding and other proceedings consistent
with this opinion. We express no view on
how the district court should resolve this
claim on remand.
