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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-21155
_______________
MAURICE TAYLOR,
Plaintiff-Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice, Institutional Division;
JERRY GROOM, Chaplain Director;
AKBAR SHABAZZ, Islamic Chaplain;
DONALD KASPAR, Regional Chaplain,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 24, 2001
Before SMITH, DUHÉ, and WIENER,
his free exercise rights under the First Amend-
Circuit Judges.
ment. The policy forbids inmates to wear
beards, and Taylor alleges that his Muslim
PER CURIAM:
beliefs require him to wear a one-quarter-inch
beard and that the policy violates his equal
Maurice Taylor filed a civil rights complaint
protection rights because the grooming policy
under 42 U.S.C. § 1983 alleging that a Texas
allows beards for medical reasons but forbids
Department of Criminal Justice policy violates
them for religious purposes.

The district court dismissed Taylor's com-
penological interests. Id. at 490. Because this
plaint as frivolous under 28 U.S.C. § 1915(e)-
decision is binding precedent, United States v.
(2)(B).1 Taylor appealed, then filed a motion
Short, 181 F.3d 620, 624 (5th Cir. 1999), cert.
for reconsideration, claiming for the first time
denied, 528 U.S. 1091 (2000), the district
that the grooming policy violates the Religious
court did not abuse its discretion in deciding
Land Use and Institutionalized Persons Act of
that the free exercise claim lacks an arguable
2000, 42 U.S.C. § 2000cc. The district court
basis in law.
denied this motion. We affirm the dismissal, as
frivolous, of the free exercise claim, dismiss
III.
for want of jurisdiction the appeal from the
Taylor contends that the grooming policy
denial of the motion for reconsideration, and
violates the Equal Protection clause of the
vacate the dismissal of the equal protection
Fourteenth Amendment. He claims that be-
claim and remand it for further consideration.
cause the prison policy threatens his funda-
mental First Amendment rights, strict scrutiny
I.
applies.
A complaint is frivolous if it lacks an argu-
able basis in law or fact, and a complaint lacks
To maintain his equal protection claim inde-
such a basis if it relies on an indisputably mer-
pendently of his free exercise claim, Taylor
itless legal theory. Harper v. Showers, 174
must allege and prove that he received treat-
F.3d 716, 718 (5th Cir. 1999). We review for
ment different from that received by similarly
abuse of discretion a dismissal of a prisoner's
situated individuals and that the unequal treat-
complaint as frivolous. Id.
ment stemmed from a discriminatory intent.
See, e.g., City of Cleburne v. Cleburne Living
II.
Ctr., 473 U.S. 432, 439-40 (1985). "Discrim-
Taylor's free exercise claim is foreclosed by
inatory purpose . . . implies that the decision-
Green v. Polunsky, 229 F.3d 486 (5th Cir.
maker singled out a particular group for dispa-
2000), in which an inmate challenged the same
rate treatment and selected his course of action
grooming policy at issue here. He, like Taylor,
at least in part for the purpose of causing its
contended that the policy violated his free
adverse effect on an identifiable group." La-
exercise rights because prison officials would
vernia v. Lynaugh, 845 F.2d 493, 496 (5th
not let him wear a one-quarter-inch beard in
Cir. 1988) (internal quotation marks omitted).
accordance with the tenets of his Muslim faith,
yet allowed prisoners with certain medical
Taylor alleges that he is situated similarly to
conditions to wear three-quarter-inch beards.
inmates who cannot shave for medical reasons
Id. at 488. We disagreed and concluded that
and claims that accommodating these inmates
the policy was reasonably related to legitimate
privileges Eighth Amendment rights over his
First Amendment rights. Acknowledging the
legitimate penological interest in prohibiting
1
beards of indeterminate length, Taylor con-
Although the court's opinion leaves doubt
tends that the failure to grant him the same
whether the court dismissed the claim as frivolous
accommodation as those with medical condi-
or for failure to state a claim, the final judgment
states that "this civil action is DISMISSED, with
tions fails strict scrutiny and lacks a rational
prejudice, as frivolous under 28 U.S.C. § 1915(e)-
relationship to a legitimate governmental inter-
(2)(B)."
2

est. He also alleges that the prison officials
Shabazz, 482 U.S. 342, 348-49 (1987).4
refused his request for exemption at least in
part because of the adverse effect it has on the
"To ensure that courts afford appropriate
exercise of his faith.
deference to prison officials, . . . prison regula-
tions alleged to infringe constitutional rights
Strict scrutiny is appropriate only where a
are judged under a `reasonableness' test less
government classification implicates a suspect
restrictive than that ordinarily applied to al-
class or a fundamental right. Rublee v. Flem-
leged infringements of fundamental constitu-
ing, 160 F.3d 213, 217 (5th Cir. 1998) (inter-
tional rights." O'Lone, 482 U.S. at 349. Ap-
nal citations omitted).2 Taylor claims that
plying an "inflexible strict scrutiny analysis
growing a beard in accordance with the tenets
would seriously hamper [the prison administra-
of Islam is a fundamental right. We have held
tors'] ability to anticipate security problems
that "[r]ights are fundamental if their source,
and to adopt innovative solutions to the intrac-
explicitly or implicitly, is the Constitution."
table problems of prison administration." Tur-
Ball v. Rapides Parish Police Jury, 746 F.2d
ner v. Safley, 482 U.S. 78, 89 (1987). Thus,
1049, 1059 n.38 (5th Cir. 1984).
a prison regulation "is valid if it is reasonably
related to legitimate penological interests," and
Even assuming, arguendo, that the right to
prison officials need not "set up and then shoot
grow a beard is a fundamental free exercise
down every conceivable alternative method of
right, we temper our application of strict scru-
accommodating the claimant's constitutional
tiny in the prison context.3 Although convict-
complaint." Id. at 89, 90-91.
ed prisoners do not forfeit all constitutional
protections, we must balance those protections
In Green, 229 F.3d at 489-91, we examined
against the fact that lawful incarceration neces-
the same policy in light of the disparate treat-
sarily requires the limitation of many rights and
ment of medical and religious exemptions and
privileges and against the legitimate peno-
found that the policy served a legitimate peno-
logical objectives of the prison. See O'Lone v.
logical 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.
2 An individual religion might constitute a
Green, however, specifically left open the
suspect class. See City of New Orleans v. Dukes,
question whether the regulation unconstitu-
427 U.S. 297, 303 (1976) (dictum). We do not
reach this question, however, because Taylor has
framed his argument solely in terms of fundamental
rights.
4 See also Morrison v. Garraghty, 239 F.3d
648, 654-55 (4th Cir. 2001) (using the "legitimate
3 See Thornburgh v. Abbott, 490 U.S. 401
penological interest" standard to evaluate a pri-
(1989) (finding that even where strict scrutiny
soner's equal protection claim based on racial
otherwise would apply to the policy in question, the
discrimination). "This more deferential standard
exigencies of prison administration require only
applies even where the alleged infringed constitu-
that the regulations be reasonably related to a
tional right would otherwise warrant higher scru-
legitimate penological interest).
tiny." Id. at 655.
3

tionally treated similarly situated prisoners dif-
isdiction to review this motion. See Williams
ferently. Id. at 489 n.6. Moreover, "[d]is-
v. Chater, 87 F.3d 702, 704 (5th Cir. 1996).
criminatory enforcement of facially neutral
A party may file a rule 60(b) motion at any
grooming regulations may, under some
time within one year after judgment, even if an
circumstances, violate the Equal Protection
appeal is pending, and the denial of that mo-
Clause." Shiloh-Bryant v. Garner, No. 93-
tion is appealable separately from the underly-
8159 (5th Cir. June 28, 1993) (unpublished)
ing judgment. Id. at 704-05.
(citing Scott v. Miss. Dep't of Corrections,
961 F.2d 77, 82 n.21 (5th Cir. 1992)). Be-
In general, we require a separate notice of
cause Taylor's claims lack neither an arguable
appeal to preserve the issue for our review.
basis in law or fact, he might have stated a
McKethan v. Tex. Farm Bureau, 996 F.2d
nonfrivolous claim had the district court al-
734, 744 (5th Cir. 1993). We construe this
lowed him the opportunity to develop the fac-
requirement liberally, however, and a brief may
tual basis of his claim through a Spears
serve as the "functional equivalent" of an
hearing5 or questionnaire. See Eason v. Tha-
appeal if it is filed within the time specified by
ler, 14 F.3d 8 (5th Cir. 1994). Consequently,
FED. R. APP. P. 4 and gives the notice required
the district court abused its discretion in dis-
by FED. R. APP. P. 3. Smith v. Berry, 502 U.S.
missing this claim as frivolous, so we vacate
244, 247-49 (1992).
the dismissal of the equal protection claim and
remand for further factual development.
Even under this liberal construction, Tay-
lor's brief does not constitute a timely notice
IV.
of appeal. The rule 60(b) motion was denied
Taylor contends that the grooming policy
on January 3, 2001. Under rule 4(a)(1)(A),
violates the Religious Land Use and Institu-
the notice of appeal must be filed within thirty
tionalized Persons Act. Because he raised this
days. Taylor's appellate brief is dated Febru-
issue in the district court in a motion for re-
ary 3 and was filed on February 7. We con-
consideration filed more than ten days after the
sider a prisoner's pro se notice of appeal as
judgment of dismissal and after he had filed his
timely filed "if it is deposited in the institu-
notice of appeal, the motion arises under FED.
tion's internal mail system on or before the last
R. CIV. P. 60(b). See Harcon Barge Co. v. D
day for filing." FED. R. APP. P. 4(c)(1). Tay-
& G Boat Rentals, Inc., 784 F.2d 665, 667
lor, however, missed the February 2 deadline
(5th Cir. 1986) (en banc). The court denied
by either reckoning. Therefore, we have no
the motion on the ground that Taylor's one-
jurisdiction to consider whether the district
sentence allegation failed to meet the require-
court properly denied his rule 60(b) motion.
ments for relief under rule 60(b). Taylor did
not file a new notice of appeal or seek to
The dismissal, as frivolous, of Taylor's free
amend his previous notice of appeal after the
exercise claim is AFFIRMED, the appeal from
court denied the motion.
the denial of the motion for reconsideration is
DISMISSED for want of jurisdiction, and the
We consider sua sponte the basis of our jur-
dismissal of the equal protection claim is
VACATED and REMANDED for further
fact-finding and other proceedings consistent
5 Spears v. McCotter, 766 F.2d 179, 181 (5th
with this opinion. We express no view on how
Cir. 1985).
4