BEFORE: EDWARDS and KEITH, Circuit Judges; and JOHNSTONE, District Judge*fn*
Plaintiff requests counsel in his appeal from the district court's denial of injunctive relief in this civil action. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record, this panel agrees unanimously that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.
Plaintiff initiated this action on December 14, 1983. The complaint alleges that prison policies violate plaintiff's First Amendment right to freedom of religion. Plaintiff is seeking monetary and injunctive relief. On February 2, 1984, plaintiff filed a motion for a temporary restraining order requesting that prison officials be restrained from taking disciplinary action against him for refusing to cut his shoulder length hair. Upon consideration of plaintiff's motion and defendants' response, the district court denied the motion holding that plaintiff had failed to show a likelihood of success on the merits and was, therefore, not entitled to injunctive relief. Defendants have filed a motion to dismiss in this Court.
The threshold issue in this case is whether the May 23rd order denying the motion for temporary restraining order is an appealable order. Generally, a temporary restraining order is a non-appealable order. One exception to the general rule is when the order operates as a denial of a preliminary injunction. Coalition for Basic Human Needs v. King, 654 F.2d 838 (1st Cir. 1981); Massachusetts Air Pollution and Noise Abatement Committee v. Brinegar, 499 F.2d 125 (1st Cir. 1974). The nomenclature or characterization of the order is not controlling. American Motors Corp. v. F.T.C., 601 F.2d 1329 (6th Cir.), cert. denied, 444 U.S. 941 (1979). The order in this case appears to be a denial of preliminary injunctive relief and is, therefore, reviewable pursuant to 28 U.S.C. § 1292(a)(1).
Turning to the merits, the Court concludes that the district court did not abuse its discretion in denying injunctive relief. Mason County Medical Association v. Knebel, 563 F.2d 256 (6th Cir. 1977). In determining whether the district court abused its discretion this Court must consider: 1) whether plaintiff has shown a substantial likelihood of success on the merits; 2) whether plaintiff has shown irreparable harm; 3) whether a preliminary injunction would cause substantial harm to others; and 4) whether the public interest would be served by issuing a preliminary injunction. Id at 258.
Plaintiff has failed to show a likelihood of success on the merits of his claim that hair length is a deeply rooted religious belief. Wisconsin v. Yoder, 406 U.S. 205 (1952); Fiedler v. Marumsco Christian Church School, 631 F.2d 1144 (4th Cir. 1980). See also Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980). Although we are mindful of the harm which may result from disciplinary actions taken against plaintiff for failure to cut his hair, in balancing all of the factors, it does not appear that the district court abused its discretion in denying injunctive relief.
Accordingly, it is ORDERED that the district court's order be, and is hereby, affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit. It is further ORDERED that the motion to dismiss be, and is hereby, denied.
* The Honorable Edward H. Johnstone, U.S. District Judge for the Western District of Kentucky, sitting by designation.