Street v. Maloney, et at. ( 1993 )


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  • USCA1 Opinion









    April 23, 1993
    [NOT FOR PUBLICATION]


    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 92-1822

    RICHARD A. STREET,

    Plaintiff, Appellant,

    v.

    MICHAEL T. MALONEY, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Edward F. Harrington, U.S. District Judge]
    ___________________

    ____________________

    Before

    Breyer, Chief Judge,
    ___________
    Selya and Cyr, Circuit Judges.
    ______________

    ____________________

    Richard A. Street on brief pro se.
    _________________
    Irene M. Carr, Counsel, Department of Correction, and Nancy
    _______________ _____
    Ankers White, Special Assistant Attorney General, on brief for
    _____________
    appellees.


    ____________________


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    Per Curiam. Plaintiff-appellant Richard A. Street,
    __________

    a Massachusetts prison inmate, appeals the grant of summary

    judgment in favor of defendant correctional officials.

    Summary judgment was entered by the district court after this

    court upheld the dismissal of certain claims but reversed the

    dismissal of plaintiff's free exercise and equal protection

    claims. Street v. Maloney, No. 90-1280, slip op. (Dec. 29,
    ______ _______

    1990). For the reasons that follow, we vacate and remand.

    I
    I
    _

    Street is an adherent of a sect of the Hindu

    religion commonly known as Hare Krishna. He initiated this

    action under 42 U.S.C. 1983 after prayer beads and a

    religious necklace that he had ordered in 1988 were

    confiscated by prison officials. At the time, Street was

    confined to the Departmental Segregation Unit (DSU), the

    prison's highest security unit. His amended complaint

    charged that defendants Smith, the prison property officer,

    Captain Gallagher, then administrator of the DSU, Maloney and

    Raikey, former and present prison superintendents, and Hall,

    a former deputy superintendent, were responsible, in their

    individual and official capacities, for the expropriation.

    The core of Street's complaint is that the defendants

    infringed his First and Fourteenth Amendment rights to free

    exercise of religion and equal protection of the laws by

    confiscating the prayer beads and religious necklace while at























    the same time allowing Roman Catholic inmates to possess

    rosary beads and wear crucifixes.1

    On remand, the defendants moved for summary

    judgment. They argued that 1) the confiscation of the

    plaintiff's prayer beads was justified because of their

    "great potential as a dangerous weapon," 2) the unusual

    security risks posed by the prayer beads constituted a

    rational basis for any difference in treatment between the

    plaintiff and Catholic inmates, 3) the claims against Captain

    Gallagher should be dismissed under Fed. R. Civ. P. 4(j)

    because of failure to effect service of process, and 4) the

    claims against the remaining defendants should be dismissed

    because of plaintiff's failure to individuate the claims,

    that is, to allege facts showing which defendants performed

    the acts that purportedly impaired his constitutional rights.

    Defendants' motion was supported by Smith's two-

    page affidavit. As the prison property officer, Smith was



    ____________________

    1. Plaintiff's amended complaint also alleged that the
    confiscation was in contravention of the Fourth Amendment
    right to be free of unreasonable seizures and the Fourteenth
    Amendment right to due process, and that the processing of
    the incoming religious items violated institutional
    regulations regarding inmate mail. Defendants here assert
    that only plaintiff's free exercise/equal protection claims
    survive our prior ruling in this case. We reject that
    contention. Our prior opinion explained that because
    plaintiff's amended complaint was not in the record, we would
    not presume that it was before the district court and,
    consequently, we would not address the allegations therein.
    Thus, plaintiff remained free to pursue the above-mentioned
    claims on remand.

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    responsible for handling all incoming property, maintaining

    records of cell contents and contraband, and transferring

    property to other institutions. Smith recalled that

    plaintiff's prayer beads consisted of "approximately 100

    beads strung together on a strong cord and joined to form a

    circle which measured approximately 36 inches, doubled." The

    beads, he attested, "were a solid, hard material" and "were

    large, approximately 3/4 inch in diameter." The prayer beads

    "did not resemble in any way the rosary beads which are

    allowed inside the institution. The rosary beads that are

    allowed . . . generally consist of very small hollow plastic

    beads joined on a weak chain with small, easily breakable

    links." Based on his experience, Smith felt that plaintiff's

    prayer beads "posed a security risk to the institution

    because of their potential use as weapons such as a `sap',

    `numchucks', or as a `garotte'."2 Finally, Smith affirmed

    that DSU inmates "have been placed there as a result of the

    most serious rules violations, involving violent and

    extremely disruptive behavior," and that "the DSU

    administrator and the officer in charge of the West Wing

    Segregation Unit also saw the beads and determined that they



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    2. According to Smith, a "sap" consists of a sock or
    similar container into which hard objects are placed, and
    which is used to inflict blows; "numchucks" are sets of
    batons connected by a length of cable or chain, used for a
    similar purpose; a "garrotte" is a cord, thong, or length of
    wire, used to strangle a victim.

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    must be removed because of the serious security concerns they

    posed." The affidavit identified neither of the other two

    officers by name.

    Plaintiff's opposition contested the rationality of

    the defendants' asserted security justification. In an

    accompanying affidavit, Street stated that the 108 knotted

    beads were 1/2 inch in diameter and made of very light-

    weight, easily breakable wood, similar to balsa wood. "The

    beads are not solid, but are hollow, like Catholic rosary

    beads, with a hole in the center so they can be strung on a

    string." The string, about 36 inches long and 1/64 inch

    around, was asserted to be very weak and easily broken. The

    religious necklace was described as 18 inches long consisting

    of 54 tiny wooden beads (3/16 inch long and 1/8 inch in

    diameter) strung on a "thin weak string" which a young child

    could "easily break."

    With respect to his religion, Street's affidavit

    explained that his faith required 1728 repetitions of a

    particular mantra daily, using special prayer beads. The

    plaintiff claimed that "[w]ithout said beads it is not

    possible for me to obey this commandment of my religion."

    Street maintained that he had been allowed prayer beads

    during a 1985 confinement in the DSU, and that after his

    return there in June 1988 he received permission from Hall to

    order the beads. When they arrived, however, Captain



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    Gallagher refused to allow him to have them. Street

    protested to Hall, and to Hall's superiors, Raikey and

    Maloney, about the confiscation, but they refused to

    intervene. Street declared that neither he nor the sender

    received the required notice that the beads were considered

    contraband. Finally, Street's affidavit asserted that his

    jailers said to him that "the Hare Krishnas are fools and

    worship a false God."

    The district court granted the defendants' motion

    for summary judgment. The court's order states in its

    entirety:

    Motion allowed. Alleged refusal to permit inmate
    to possess hare krishna [sic] beads and necklace in
    the Departmental Segregation Unit is not violative
    of Plaintiff's Constitutional rights, as such
    refusal is reasonably related to legitimate
    penological interests. Turner v. Safley, 482 U.S.
    ______ ______
    78, 85 (1987).

    The standard of review is familiar, see, e.g., Garside v.
    ___ ____ _______

    Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990), and it
    _______________

    would be pleonastic to repeat the standard here.

    II
    II
    __

    Prison restrictions that implicate constitutional

    rights are judged by the reasonableness standard. See
    ___

    Washington v. Harper, 494 U.S. 210, 224 (1990); O'Lone v.
    __________ ______ ______

    Estate of Shabazz, 482 U.S. 342 (1987); Turner v. Safley, 482
    _________________ ______ ______

    U.S. 78 (1987). Under this standard, an inmate's First

    Amendment right must yield to prison rules and regulations



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    that are "reasonably related to legitimate penological

    interest." Turner, 482 U.S. at 89. To ensure that judges
    ______

    accord appropriate deference to decisions of prison

    administrators anent the delicate balance of these competing

    principles, the Court put in place a "reasonableness test

    less restrictive than that ordinarily applied to alleged

    infringements of fundamental constitutional rights." O'Lone,
    ______

    482 U.S. at 349 (punctuation and citation omitted). Thus, if

    prohibiting plaintiff's possession of certain paraphernalia

    in the DSU strikes a reasonable balance between the right to

    free exercise of religion and the prison's asserted interest

    in security, plaintiff's First Amendment claim will fail.3

    See Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).
    ___ ____ ________

    The parties have briefed the appeal in terms of the

    Turner rubric. Assuming, arguendo, that Turner applies to
    ______ ________ ______

    the individualized decision here at issue, see, e.g., Frazier
    ___ ____ _______

    v. Dubois, 922 F.2d 560, 562 (10th Cir. 1990) (applying
    ______

    Turner to an individualized prison action), the Turner Court
    ______ ______

    identified four factors that "are relevant to, and that serve

    to channel, the reasonableness inquiry." Thornburgh v.
    __________

    Abbott, 490 U.S. 401, 414 (1989). In O'Lone, where the
    ______ ______

    curtailment of Muslim inmates' rights to attend religious



    ____________________

    3. We assume, for present purposes, the sincerity of
    Street's professed religious beliefs. Since defendants
    elected not to dispute this issue below, they cannot dispute
    it for the first time on appeal.

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    services was upheld, the Court summarized the Turner factors
    ______

    in the following manner:

    1) Does the challenged regulation have a
    logical connection to the legitimate
    governmental interests invoked to justify
    it?

    2) Do alternative means of exercising the
    right remain open to prison inmates?

    3) What impact would the accommodation of
    the inmate's asserted right have on other
    inmates, on prison personnel, and on
    prison resources generally?

    4) Are there obvious, easy alternatives to
    the policy adopted by the prison
    administrators?

    O'Lone, 482 U.S. at 350-53 (citing Turner, 482 U.S. at 89-90,
    ______ ______

    93). These factors have regularly been applied in

    determining whether a prison policy violates an inmate's free

    exercise rights. See, e.g., Abdullah v. Gunter, 949 F.2d
    ___ ____ ________ ______

    1032, 1035-36 (8th Cir. 1991), cert. denied, 112 S. Ct. 1995
    _____ ______

    (1992); Fromer v. Scully, 874 F.2d 69, 74-76 (2d Cir. 1989);
    ______ ______

    Cooper v. Tard, 855 F.2d 125, 128-30 (3d Cir. 1988); Williams
    ______ ____ ________

    v. Lane, 851 F.2d 867, 876-78 (7th Cir. 1988), cert. denied,
    ____ _____ ______

    488 U.S. 1047 (1989); cf. Skelton v. Pri-Cor Inc., 963 F.2d
    ___ _______ ____________

    100, 103-04 (6th Cir. 1991).

    III
    III
    ___

    With respect to plaintiff's free exercise claim, we

    think that genuine issues of material fact precluded brevis
    ______

    disposition. There are, for example, unanswered questions of

    fact as to the composition of the prayer beads (weight,


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    density, etc.) which, in turn, prevent a determination of

    whether the ban on them is reasonable, or, for that matter,

    whether rosary beads in the hands of other DSU inmates are

    deserving of materially different treatment. We accept the

    defendants' legitimate concern that religious items in the

    possession of inmates may lead to security problems. But, we

    believe that the plaintiff has sufficiently put into question

    the possible danger to the security of the prison posed by

    the prayer beads here at issue.

    It also seems logical that the more solitary a

    religious practice, the less plausible is the claim that an

    institutional security interest is compromised. Turner
    ______

    instructs that "a regulation cannot be sustained where the

    logical connection between the regulation and the asserted

    goal is so remote as to render the policy arbitrary or

    irrational." Turner, 482 U.S. at 89-90. Unlike free
    ______

    exercise claims involving otherwise non-religious items

    (diet, grooming, name changes, and the like) or those

    involving group associations (such as congregate worship),

    any of which might impact the general prison population, the

    religious activity associated with the described use of the

    prayer beads appears to involve solely private conduct. The

    significance of this fact is highlighted here because, as

    plaintiff points out, he would never be able to take the

    prayer beads outside his cell; according to him, DSU inmates



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    are uniformly searched, cuffed, and shackled before leaving

    their cells. Such a restriction, if true - - and defendants

    have not challenged the veracity of plaintiff's account - -

    posits an accommodation that both undercuts defendants'

    stated security concerns and raises questions as to whether

    they overreacted in denying Street the prayer beads. Cf. id.
    ___ ___

    at 90 (under the fourth factor of the test, "the existence of

    obvious, easy alternatives may be evidence that the

    regulation is not reasonable, but is an `exaggerated

    response' to prison concerns") (citation omitted).

    We note, therefore, without implying any view of

    the merits, that the record reveals a genuine question as to

    whether defendants' justification is sufficient to outlaw the

    prayer beads.4 See Mosier v. Maynard, 937 F.2d 1521, 1527
    ___ ______ _______

    (10th Cir. 1991) (remanding for factual development and

    application of Turner factors where plaintiff raised a
    ______

    genuine issue of material fact as to the reasonableness of a

    prison policy); Swift v. Lewis, 901 F.2d 730, 731-32 (9th
    _____ _____

    Cir. 1990) (vacating summary judgment in favor of prison

    officials in the absence of evidence that officials' asserted



    ____________________

    4. Although we have been discussing plaintiff's prayer beads
    to this point, the same analysis applies to plaintiff's
    religious necklace. Appellees, in their brief, argue that
    the physical characteristics of the beads and the necklace
    are so similar as to be virtually indistinguishable from one
    another, and that both items pose the same security risks.
    On remand, of course, the defendants will have an opportunity
    to revisit this issue, should they so desire.

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    reason for prison grooming policy justified treating

    appellants differently from other religious groups); see also
    ___ ____

    Ali v. Dixon, 912 F.2d 86, 91 (4th Cir. 1990); Hunafa v.
    ___ _____ ______

    Murphy, 907 F.2d 46, 48 (7th Cir. 1990); cf. Friend v.
    ______ ___ ______

    Kolodzieczak, 923 F.2d 126 (9th Cir. 1991) (affirming summary
    ____________

    judgment in favor of prison officials because regulation

    prohibiting Roman Catholic inmates from possessing rosaries

    in their cells satisfied Turner test).5
    ______

    IV
    IV
    __

    We turn next to plaintiff's claim that he has been

    subjected to differential treatment because of his religion.

    The essence of the Equal Protection Clause is that government

    should treat similarly situated persons alike. See, e.g.,
    ___ ____

    Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432
    ________ ______________________________

    (1985). Prison administrators confronted with an equal

    protection claim "need only demonstrate a rational basis for

    their distinctions between organizational groups." Jones v.
    _____

    North Carolina Prisoners' Union, 433 U.S. 119, 134 (1977).
    ________________________________

    Courts must defer to such differentiation unless it is clear

    that "the two groups are so similar that discretion has been

    abused." Id. at 136; see also Feeley v. Sampson, 570 F.2d
    ___ ___ ____ ______ _______

    364, 371 (1st Cir. 1978) (explaining that prison authorities'


    ____________________

    5. Because the case must be remanded to resolve the
    questions we have mentioned, we need not address the second
    and third Turner factors. We think it fitting to note,
    ______
    however, that neither defendants' moving papers nor the
    district court's order addressed either point.

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    decisions cannot be arbitrary); Nadeau v. Helgemoe, 561 F.2d
    ______ ________

    411, 416 (1st Cir. 1977) (similar). Thus, so long as the

    prison officials' response is shown to be rationally

    supported, an equal protection claim must fail. See Reed,
    ___ ____

    842 F.2d at 962; Brandon v. District of Columbia Bd. of
    _______ _____________________________

    Parole, 823 F.2d 644, 650 (D.C. Cir. 1987). Conversely,
    ______

    arbitrary enforcement of a stated security rationale violates

    prisoners' rights. See, e.g., Benjamin v. Coughlin, 905 F.2d
    ___ ____ ________ ________

    571, 578 (2d Cir.), cert. denied, 498 U.S. 951 (1990).
    _____ ______

    Here, it is undisputed that Roman Catholic inmates

    in the DSU are allowed rosary beads. How prison authorities

    have accommodated other religions is relevant, but not

    determinative, in deciding whether a plaintiff has been

    treated in an unduly restrictive manner. See Feeley, 570
    ___ ______

    F.2d at 371. Assuming that prayer beads and rosary beads can

    be equated for purposes of equal protection analysis, see id.
    ___ ___

    at 375; Hatch v. Sharp, 919 F.2d 1266, 1268-69 (7th Cir.
    _____ _____

    1990), cert. denied, 111 S. Ct. 1693 (1991), it is not
    _____ ______

    obvious if (or how) the asserted security concerns posed by

    plaintiff's confiscated prayer beads and necklace6 were

    satisfied so as to permit another religious group in the DSU

    to possess rosary beads. If the comparison between prayer

    and rosary beads can fairly be made, such differing



    ____________________

    6. The defendants' affidavit is silent anent the wearing of
    religious necklaces or crucifixes in the DSU.

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    restrictions point to (but, again, are not conclusive of)

    "possible arbitrariness." Feeley, 570 F.2d at 364. As
    ______

    noted earlier, the defendants' affidavit describing the type

    of rosary beads that are "generally" allowed to others was

    sufficiently countered by the plaintiff's opposing affidavit

    so as to create material questions as to the relative and

    relevant differences between the religious items in question.

    The affidavits also leave unresolved questions about whether

    the treatment accorded the plaintiff was disparate or

    intentional. These conflicts preclude summary judgment on

    this count.

    V
    V
    _

    We need go no further. We have considered most of

    the parties' other arguments on appeal and find them to be

    without merit.7 We hold, however, on the present record,

    that the district court erred to the extent that it accepted

    defendants' proffered security rationale as conclusive.



    ____________________

    7. We say "most" rather than "all" because the district
    court did not address two other questions raised on
    defendants' motion for summary judgment, namely, a supposed
    failure to allege defendants' personal involvement and an
    asserted service-of-process deficiency. We take no view of
    these issues. See Nereida-Gonzalez v. Tirado-Delgado, No.
    ___ ________________ ______________
    92-2084, slip op. at 13 (1st Cir. April 14, 1993). We do
    note, however, plaintiff's sworn statement that despite
    repeated requests on his part, prison officials have not
    provided him with the address of a defendant who has left
    their employ. On remand, plaintiff should be afforded
    another opportunity to perfect service of process on this
    defendant. By the same token, defendants remain free to
    reassert the defenses mentioned.

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    Accordingly, since the facts surrounding defendants'

    justification for refusing to allow plaintiff to possess

    prayer beads and a religious necklace in the DSU require

    further development, we vacate the grant of summary judgment

    in favor of the defendants, and remand for further

    proceedings to be held before another trier pursuant to D.

    Mass. Loc. R. 40.1(i).

    Vacated and remanded. Costs to appellant.
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