Sutton v. Rasheed , 323 F.3d 236 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-19-2003
Sutton v. Rasheed
Precedential or Non-Precedential: Precedential
Docket 97-7096
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PRECEDENTIAL
Filed March 19, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-7096
RICHARD X. SUTTON;
ROBERT X. WISE; MICHAEL X. WALKER,
Appellants
v.
IMAM ADEEB RASHEED;
JAMES SMITH, Chaplain; FRANCIS MENEI, Chaplain;
JOHN PALAKOVICH; KENNETH KYLER;
MARTIN F. HORN;
UNITED STATES OF AMERICA
(Intervenor in District Court)
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 94-cv-01865
(Honorable Edwin M. Kosik)
Argued: March 6, 2002
Before: BECKER, Chief Judge and SCIRICA, Circuit Judge,
and POLLAK, District Judge*
(Filed March 19, 2003)
* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
2
JEFFREY S. ISTVAN, ESQUIRE
(ARGUED)
Fine, Kaplan & Black
1845 Walnut Street, 23rd Floor
Philadelphia, Pennsylvania 19103
Attorneys for Appellants
FRANCIS R. FILIPI, ESQUIRE
(ARGUED)
Office of Attorney General of
Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, Pennsylvania 17120
Attorney for Appellees
WILLIAM E. FAIRALL, JR., ESQUIRE
Department of Corrections
55 Utley Drive
Camp Hill, Pennsylvania 17011
Attorney for Amicus-Appellee,
Pennsylvania Department of
Corrections
OPINION OF THE COURT
PER CURIAM:
This is an appeal from an order of the District Court
granting defendants summary judgment on claims that
defendants infringed upon, inter alia, plaintiffs’ rights
protected by the Free Exercise Clause of the First
Amendment. Plaintiffs, three members of the Nation of Islam,1
contend that the Pennsylvania Department of Corrections’
former policy of limiting inmates’ access to religious
material while they were confined in a special unit for high-
risk inmates was unconstitutional — both as applied and
facially — because defendants used “unlawful prison rules”
to “illegally ban” Nation of Islam texts.
1. The Nation of Islam movement is “based on the [Qur’an] as interpreted
by Elijah Muhammad and ministers within the Nation.” Cooper v. Tard,
855 F.2d 125, 126 (3d Cir. 1988).
3
We hold that there was a constitutional violation, but
because we conclude that defendants are protected by
qualified immunity, we will affirm.2
I.
In response to three days of riots in 1989 by prisoners at
the State Correctional Institute at Camp Hill (“SCI-Camp
Hill”), the Pennsylvania Department of Corrections
designed, and in April 1992 created, a Special Management
Unit (“SMU”) at SCI-Camp Hill. Prior to the establishment
of the SCI-Camp Hill SMU, high-risk inmates of
Pennsylvania prisons were placed in restricted housing
units (“RHUs”), maximum custody settings still used at a
number of correctional institutions other than Camp Hill.3
A salient aspect of the RHU regime, as it existed at the
commencement of this litigation, was its limitation on what
reading materials an RHU inmate could keep with him.
Department of Corrections Administrative Directive 802
(“DC-ADM 802”) provided that inmates in administrative
custody were permitted “no books other than legal
materials and a personal Bible, Holy Koran4 or other
religious equivalent . . . .”5 Department of Corrections
Administrative Directive 801 (“DC-ADM 801”) similarly
provided: “[administrative custody] inmates will be
permitted legal material that may be contained in one (1)
records center box . . . . A personal Bible, a Holy Koran, or
equivalent publication is permitted.”
2. We have jurisdiction under 28 U.S.C. § 1291.
3. According to Department of Corrections Regional Deputy
Commissioner Dr. Jeffrey Beard, “[T]he RHUs are used for both
disciplinary and administrative custody inmates, to provide secure
housing for both inmates who require long-term confinement in
maximum housing because of an inability to adjust to prison life in
general population as well as for those who need such custody only in
the short term to address a misconduct or temporary security need.”
4. “Koran” is an alternate spelling of “Qur’an.”
5. DC-ADM 802, section V provided authority for a “Program Review
Committee” or “Unit Management Team” to add privileges “based on an
individual’s need, on safety and security, and on behavioral progress of
the inmate.”
4
The regulations governing the SCI-Camp Hill SMU were
modeled on those governing the RHU.6 But unlike the
Department of Corrections’ traditional restricted housing
units, the SMU is a structured program that provides for
progression through a series of five phases, from Phase V to
Phase I, at which point the inmate is returned to the
general prison population.7 Progression from one phase to
the next is accomplished by compliance with specified goals
and is rewarded by additional privileges. The intent of the
program is to provide security for both staff and inmates
while at the same time giving inmates with a long history of
behavioral problems various incentives to modify their
behavior. The program functions to prepare such inmates
for reintegration into the general prison population.
Some inmates begin their time in the SMU at Phase IV,
but most begin at Phase V. Inmates in Phases III, IV, and
V are under restrictive regimes: they are placed under strict
security and control practices; they have short exercise
periods; and they have limited access to their own personal
property. At the outset of this litigation, a Phase V SMU
inmate’s access to personal property was confined to a
newspaper, one package of cigarettes every two weeks, one
records center box of legal materials (“with even exchange”),8
and religious materials consisting of one personal “Bible,
Quran or equivalent only.”9 Phase IV increased inmates’
privileges slightly, but still allowed them a “Bible, Quran, or
equivalent only.” At Phase III, an inmate was allowed to
have legal materials, a Bible or Qur’an, and “[two] other
religious reading materials.” At Phase II, an inmate was
6. The Department of Corrections’ summary of those regulations,
Appendix III to the SMU Inmate Handbook, is reprinted as an appendix
to this opinion.
7. In a June 29, 1992 Department of Corrections policy statement, the
SMU is defined as “A special unit within designated Department of
Corrections institutions designated to safely and humanely handle
inmates whose behavior presents a serious threat to the safety and
security of the facility, staff, other inmates, or him or herself.”
8. According to the appellees, “[a] records center box has approximate
interior dimensions of 15 inches (long) by 12 inches (wide) by 10 inches
(deep).”
9. “Quran” is another alternate spelling of “Qur’an.”
5
permitted legal materials, a Bible or Qur’an, and four other
religious reading materials. At Phase I, an inmate was
returned to the general population, with all privileges
“except that [his] movements [would] be controlled and
monitored.”
Plaintiff Richard X. Sutton was confined in the SMU from
October 5, 1993 until July 20, 1995, when he was
transferred to SCI-Greene. Plaintiff Robert X. Wise was
confined in the SMU from January 3, 1994 until December
27, 1994, when he was transferred to SCI-Graterford; as of
August 28, 2000, he was in the general population at SCI-
Albion. Plaintiff Michael X. Walker was confined in the SMU
from November 17, 1993 until August 28, 1996, when he
was transferred to SCI-Rockview. Plaintiff Walker has now
been released from prison. All three are adherents of the
Nation of Islam.
Several times between October 1993 and May 1994,
Sutton asked defendant Imam Adeeb Rasheed,10 the
Muslim Chaplain at SCI-Camp Hill, whether he would be
permitted to have access to various texts written by Fard
Muhammad, Elijah Muhammad and Louis Farrakhan from
his personal property.11 Believing the texts were not
religious, Imam Rasheed determined that Sutton should not
be permitted access to them. During the same period,
Sutton also asked Officer Olenowski, the SMU Property
10. The caption of this case spells the Imam’s name as “Rashid.” In
deposition testimony, the Imam stated that the proper spelling of his
surname is “R-A-S-H-E-E-D.” This opinion will use the latter spelling.
11. Fard Muhammad was the founder of the Nation of Islam, and
followers believe him to have been the Messiah. Elijah Muhammad is
believed by Nation of Islam faithful to have been a prophet. Louis
Farrakhan is a prominent minister in one of the branches of the Nation
of Islam. The texts in question are primarily those written by Elijah
Muhammad: Message to the Blackman, The Supreme Wisdom, How to
Eat to Live, Our Savior Has Arrived and The Fall of America. In addition,
plaintiff Wise attempted to obtain The Meaning of FOI by Louis
Farrakhan and The Wake of the Nation of Islam by Silas Muhammad. In
her deposition, plaintiffs’ expert, Aminah Beverly McCloud, a professor of
Islamic Studies in the Department of Religious Studies at DePaul
University, states that the texts in question are “required reading by the
faithful.” Her report is unrebutted.
6
Officer, for the books in question. The inmates’ personal
property, which includes the Nation of Islam texts at issue,
appears to have been stored in the SMU Property Room.
Olenowski, in turn, asked Imam Rasheed whether the
books were religious. Imam Rasheed responded negatively,
and Olenowski denied Sutton access to them. By May 27,
1994, Sutton reached Phase III of the program, and, under
the regulations, was permitted two religious texts in
addition to the Qur’an. He requested two Nation of Islam
texts from his personal property. But Acting Property
Officer Stone denied the request because “[n]o religious
books [were] found that were authorized by the Imam [i.e.,
Rasheed].”
On May 30, 1994, Sutton filed an Official Grievance
directed to defendant John A. Palakovich, the
Superintendent’s Assistant at SCI-Camp Hill from 1979
until July 1995. Palakovich forwarded the grievance to
defendant Reverend James W. Smith, the Facility
Chaplaincy Program Director at SCI-Camp Hill. In addition,
Sutton sought the assistance of defendant Kenneth D.
Kyler, the Superintendent of SCI-Camp Hill. In an attempt
to resolve the impasse, the SMU Unit manager, Arthur
Auxer, together with Reverend Smith and Imam Rasheed,
met with Sutton. That meeting appears to have been
contentious. Sutton expressed his belief that Message to the
Blackman, one of the principal works of Elijah Muhammad,
was religious and that Rasheed was “not an Imam” —
presumably meaning that he was not a Nation of Islam
Imam. Imam Rasheed and Reverend Smith insisted that
Message to the Blackman was not an Islamic text. The
meeting ended without resolution.
On June 9, 1994, Sutton filed a second grievance with
Palakovich, the Superintendent’s Assistant, stating he did
“not believe in the same doctrine as Rasheed.” On June 14,
Palakovich again denied Sutton’s request for the books
because “[t]he books in question were received by Chaplain
Rasheed and determined not to be religious in nature.” The
same day, Superintendent Kyler denied the appeal that
Sutton had initially filed, writing that “[s]ince the books in
question are not considered religious books, you may not
receive them at this time.” Kyler also wrote, “It should be
7
pointed out that Chaplain Rasheed as the Muslim Ima[m] is
considered the authority when making a determination on
this type of book.” When Sutton again wrote to Kyler asking
for the basis of Imam Rasheed’s authority, Kyler responded
that “Rev. Rasheed is an Islamic Minister and as such is
the recognized institution authority on the Muslim religion.”
On July 4, 1994, Sutton wrote to defendant Father
Francis T. Menei, Administrator of Religious and Family
Services at the Department of Corrections, explaining that
Imam Rasheed, as a Sunni Muslim, did not follow the
teachings of Elijah Muhammad. He again requested access
to his Nation of Islam texts. Father Menei asked Reverend
Smith to review the books. In a memorandum to Father
Menei, Reverend Smith wrote:
On July 26, 1994 I reviewed the following books
written by Elijah Muhammad:
Our Savior Has Arrived”
“Message to the Blackman”
“How to Eat to Live”
The general contents of each of the aforementioned
books appears to be of a social/political nature,
referencing both racial superiority and political
activism. Religious discussion is generally in the
context of a social agenda, making “religion” a vehicle
for the promotion of the central ideologies in these
books, the essence of which smacks of racism and
hatred.
Religion, by definition, begins and ends with a search
for and discovery of God.
These books are about attaining a political program,
“religion” merely attached to their itinerary as a useful
component to achieving this end.
It is therefore my opinion that these books are not
essentially religious in nature.
Two days later, without reviewing the books in question,
Father Menei wrote to Sutton regarding his appeal, stating,
“We have determined that these books are not essentially
religious in nature,” and that “these books smack of racism
8
and hatred, and I know of no God that wants us to worship
him in this way.”
Plaintiff Robert X. Wise appears to have gone through a
similar peregrination. At some point prior to June 6, 1994,
Wise attempted to gain access to various Nation of Islam
texts kept in the property lock-up. Wise was not allowed to
have any of his Nation of Islam books because he was at
Phase IV of the SMU program, which only permitted access
to a Bible, Qur’an or “equivalent religious text.” On June 6,
Wise filed a grievance with Palakovich, explaining that he
was a member of the Nation of Islam and that he had been
denied access to the texts, and questioning the authority of
Imam Rasheed to determine whether Nation of Islam texts
were religious. Reverend Smith responded to that grievance,
noting that Imam Rasheed had determined the material in
question was not religious and that an inmate at Phase IV
was only permitted access to “his main holy book.” Wise
appealed to Superintendent Kyler, arguing he did not
“worship the same God that Orthodox Imam Rasheed
worships.” Kyler denied that appeal, writing, “The Muslim
Chaplain is the religious authority in determining if the
books are religious or not.” He concluded, “Since [Rasheed]
has determined it not to be religious, you are not permitted
to have it while in the SMU.” Kyler also wrote, “I would
suggest you concentrate on improving your adjustment to
be released from the SMU at which time you may have the
book in question.”
At some point before July 12, 1994, Wise reached Phase
III in the SMU system, and again sought access to the
Nation of Islam texts. His requests were denied on the
ground that Imam Rasheed determined the texts were not
religious. On July 15, 1994, Wise filed a grievance with
Palakovich, who denied the request for the texts because
Reverend Smith determined the books in question were not
religious and not permitted in the SMU.
Between November 1993 and the fall of 1995, SMU
inmate Michael X. Walker also requested various Nation of
Islam tracts by Elijah Muhammad and Louis Farrakhan.
His requests were denied.
9
II.
Plaintiffs Sutton and Wise filed a pro se complaint in
November of 1994 against defendants Imam Rasheed,
Reverend Smith, and Father Menei. After retaining counsel
in the summer of 1995, Sutton and Wise, together with
plaintiff Walker, filed an amended complaint, adding
defendants Kyler and Palakovich and Commissioner of
Corrections Martin F. Horn. As the District Court
compendiously summarized, the principal claims put
forward in the amended complaint were that defendants’
“alleged deprivations of [plaintiffs’] religious materials . . .
violated [plaintiffs’] rights to: free exercise of religion under
the First Amendment and the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb-bb-4 (1993) (the
‘RFRA’); freedom from the establishment of religion by the
state under the First Amendment; due process and equal
protection under the Fourteenth Amendment; and the
rights secured by 42 U.S.C. §§ 1981, 1985(3), and 1986.”12
Sutton v. Rashid,13 No. 97-7096, unpub. op. at 2 (M.D. Pa.
Sept. 3, 1996). The amended complaint sought
“[c]ompensatory and punitive damages, as well as
declaratory and injunctive relief and attorneys’ fees.” Id. On
September 3, 1996, the District Court granted defendants’
motion for summary judgment as to plaintiffs’ free exercise
claims and denied plaintiffs’ motion for partial summary
judgment. On January 21, 1997, the District Court granted
defendants’ supplemental motion for summary judgment on
the remaining claims. Plaintiffs filed a timely appeal. In a
judgment order dated November 21, 1997, we affirmed the
judgment of the District Court. Plaintiff-appellants
subsequently filed a petition for panel rehearing, which was
granted.
On October 29, 1998, at oral argument before this court,
counsel for defendants argued that the policy under attack
had been changed, effective August 16, 1995. In making
12. Plaintiffs’ contentions based upon RFRA have been rendered moot by
the decision in City of Boerne v. Flores, 521 U.S. 507 (1997) (as applied
to the states and hence to state officials, RFRA exceeds congressional
power).
13. As noted, this caption misspells Rasheed.
10
this argument, counsel relied on two administrative
directives that allegedly amended DC-ADM 801 and 802 “to
allow inmates to maintain religious, as well as legal
material, in one (1) records center box”; and the declaration
of Dr. Jeffrey Beard, explaining the reasons for those
amendments. Counsel further represented that the Nation
of Islam texts in question are now “absolutely” permitted. In
response to these representations, plaintiffs filed, on
December 28, 1998, a “Motion to Supplement the Record
on Appeal.” Because the proposed additional information
was keyed to the question of mootness, we granted
plaintiffs’ motion and directed defendants to file a
memorandum addressing the record as supplemented. See
Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir. 1992) (en
banc) (“[B]ecause mootness is a jurisdictional issue, we may
receive facts relevant to that issue; otherwise there would
be no way to find out if an appeal has become moot.”).
The enlargements to the record include an affidavit from
Sutton and two institutional grievance forms. Together,
these documents suggest that Sutton, while assigned to the
Houtzdale RHU in December of 1998, requested, from his
personal property, the following texts: The Flag of Islam (by
Elijah Muhammad), Seven Speeches (by Louis Farrakhan),
A Torchlight for America (by Louis Farrakhan), The
Convention of the Oppressed (by Louis Farrakhan), How to
Teach Math to Black Students (by Shahid Muhammad),
Light from the Ancient African (author unknown), Creating
Wealth (by Robert G. Allen), Black Economics (by Jawanza
Kunjufu), My Life’s Journey Traveling with the Wise Man (by
Mother Tynnetta Muhammad14), The Corner by Night (by
Mother Tynnetta Muhammad), and This Is the One (by
Jabril Muhammad). According to his affidavit, Sutton was
denied access to these texts on the basis of regulation DC-
ADM 801, which limited inmates in the RHU to a Bible,
Qur’an, or equivalent religious text, despite Sutton’s
attempt to convince the officer involved that the cited policy
was no longer in effect. In the Department of Corrections’
responsive papers, Superintendent John McCullough
stated:
14. Mother Tynnetta Muhammad was the wife of Elijah Muhammad.
11
I am aware that an inmate currently at my institution,
Richard X. Sutton . . . has submitted an affidavit in
which he represents that the amendments to [DC-ADM]
801 and 802 effective August 16, 1995 are either not in
effect or not being faithfully followed.
That is not correct. To the contrary, the bulletins that
were issued and made effective from August 16, 1995
. . . have been in full force and in effect the entire time
SCI-Houtzdale has been open to confine inmates.
. . . .
I appreciate that Mr. Sutton’s December 3, 1998
grievance . . . would lead the casual reader to the
conclusion that Mr. Sutton was denied the additional
books because he was limited by the former policy to
one Bible, Holy Koran or its religious equivalent. This
is simply incorrect. The issue being addressed through
Mr. Sutton’s grievance (although this is not clear either
from his grievance or from the response he ultimately
received) was whether the two books written by Mother
Tynnetta Muhammad were religious books (which
would have been permitted so long as they could be
contained with Mr. Sutton’s other legal and religious
material in a records center box) or were educational
books (which the inmate is not permitted to possess in
the status that Mr. Sutton was then in).
On April 19, 1999, appellants filed a Second Motion to
Supplement the Record on Appeal, containing an affidavit
from Wise, stating that the prior policy remained in effect at
SCI-Albion, where he was confined. Concluding that the
record on appeal had been sufficiently augmented, we
denied that motion.
On July 12, 1999, we entered an order directing the
parties to “file succinct memoranda reflecting relevant
changes in policy, law or additional submissions.” In light
of these submissions, we remanded the case on September
20, 1999 (while retaining jurisdiction) to the District Court
with “instructions to determine whether the claim for
injunctive and declaratory relief is moot in view of the
putative change in policy.” We stated that “[i]n making this
determination, the Court may wish . . . . to ascertain how
12
Corrections officials determine whether a book requested by
a prisoner qualifies as religious material under the current
policy, and whether the [Nation of Islam books requested]
are available to inmates as religious materials . . . .”
Accordingly, the District Court held a hearing on January
27, 2000, on the most recent incarnation of the Department
of Corrections policy and its implementation. In a
subsequent Order, the District Court found the August 16,
1995 changes to the Department of Corrections policy were
poorly enforced. The District Court also found that even
after state correctional facility superintendents were
informed of policy misinterpretations on April 28, 1999,
“distinctions and limitations persisted . . . . Although an
administrative procedure was in place where disputes
arose, the prison authorities continued to follow previous
practices in determining what was religious material. This
practice continues.” The District Court also referenced a
Department of Corrections policy change made in February
2000 and observed that the new policy failed to define
religious materials, an issue “which continues to be at the
root of continuing misinterpretations.”
After the District Court’s memorandum, the putative
February 2000 SMU policy change became effective April
17, 2000.15 Because the effects of this latest policy change
had not yet been determined, we again remanded on June
16, 2000 to the District Court “with directions to determine
whether plaintiffs’ claims for injunctive and declaratory
relief are moot.”
On remand, the District Court entered an order on
August 21, 2000, advising that plaintiffs’ claims for
injunctive and declaratory relief were not moot. But in a
Supplemental Memorandum dated October 30, 2000, the
District Court stated the injunctive and declaratory relief
15. The February 2000 policy change (targeted to go into effect on March
15, 2000) provides that “[disciplinary custody] inmates will be permitted
to retain religious, as well as legal materials that may be contained in
one record center box. Any additional or religious materials will be stored
and made available upon request on an even exchange basis. Not more
than one subject for every day unless approved by the Department of
Corrections.”
13
claims were moot.16 To resolve this confusion, we remanded
again with instructions to “fully comply” with our June 16,
2000 Order.17 We also granted motions to file supplemental
briefs on mootness and granted leave to supplement the
record on appeal. On March 21, 2001, we reaffirmed our
prior remand requesting the District Court to issue a final
order on mootness and to make a determination whether
this was an injury capable of repetition yet evading review.
We also requested the District Court to make findings of
fact and determine whether plaintiffs still pressed damage
claims.
After this remand, the District Court held that the claims
for injunctive and declaratory relief were moot. The District
Court based this holding on submissions from the
Department of Corrections about a new SMU directive
adopted October 5, 200118 that “virtually allow[s] each
inmate to determine what is religious material.” The District
Court observed “because we concluded that the changes to
Directives 801 and 802 have force of law, we do not believe
that the injury was of a type likely to happen to plaintiff
again regardless of declaratory and injunctive relief.” The
District Court also stated that damages claims remained
pending.
The October 5, 2001 amendment of DC-ADM 801
provides:
16. In the Supplemental Memorandum, the District Court found: (1) the
specific books plaintiffs sought have been provided to them; (2) it is
undisputed that the policy change of February 2000, which became
effective on April 17, 2000, was issued throughout the Pennsylvania
Department of Corrections facilities; (3) employees were not provided
with a definition of religious material in the policy change; (4) an inmate
may have as much combined legal or religious material as will fit inside
one records center box; and (5) an inmate aggrieved by a decision on
what is “religious material” may file a grievance challenge. The District
Court also stated “the broader issue of what is defined as ‘religious’
material in the present case remains constitutionally questionable.”
17. Just prior to this Order, the District Court submitted the
Supplemental Memorandum clarifying his previous memorandum.
18. The District Court was advised by the Office of the Attorney General
for Pennsylvania that another policy was “formally adopted on October 5,
2001, and is contained in Administrative Directives 801 and 802.”
14
5. [Disciplinary Custody] status inmates shall be
permitted to maintain in their cells any combination of
personal property from the following list that will fit
into one standard sized records-center box:
a. Written materials in accordance with DC-ADM
803, “Inmate Mail and Incoming Publications”;19
b. One newspaper (one-for-one exchanges are
permitted for newly received editions);
c. Ten magazines (one-for-one exchanges are
permitted for newly received publications).
Additionally, each facility will establish procedures to
permit inmates to exchange legal materials from their
cells with stored legal materials once every 30 days.20
The Program Review Committee may authorize more
frequent exchanges based upon a demonstrated need
that the inmate requires additional exchanges for
active litigation. Such legal material exchanges,
however, may not exceed one per week.
DC-ADM 801-3, “Disciplinary Custody Status Inmates,”
amending section IV, M.
The October 5, 2001 amendment to DC-ADM 802
provides:
4. [Administrative Custody] status inmates shall be
permitted to maintain in their cells any combination of
personal property from the following list that will fit
into one standard-sized, records-center box:
a. Written materials in accordance with DC-ADM 803,
“Inmate Mail and Incoming Publications”;
b. One newspaper (one-for one exchanges are permitted
for newly received editions)
c. Ten magazines (one-for-one exchanges are permitted
for newly received publications).
19. DC-ADM 803 (effective June 24, 2002) establishes “policy and
procedures governing inmate mail privileges and incoming publications.”
20. Based on the Department of Corrections’ oral representations to this
Court and the District Court, we interpret the October 2001 policy to
permit inmates to exchange religious or legal materials.
15
5. Inmates will be provided access to the facility law
library by requesting legal materials in accordance with
local procedures. Leisure reading material may be
requested on a weekly basis from the library.
Additionally, each facility will establish procedures to
permit inmates to exchange legal materials from their
cells with stored legal materials once every 30 days.21
DC-ADM 802-10, “Administrative Custody Housing Status,”
amending section IV, M, subsections 4 and 5.
At oral argument on March 6, 2002, a Department of
Corrections representative stated that under the new policy,
the contents of inmates’ records center boxes were “not
examined.” The Department of Corrections representative
also explained that grievance procedures were available for
inmates claiming the new policy was not being properly
applied.
III.
Our review of the District Court’s grant of summary
judgment is plenary. Johnson v. Horn, 150 F.3d 276, 281
(3d Cir. 1998). A grant of summary judgment is appropriate
if there are no genuine issues of material fact22 and the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
A.
As a preliminary matter, we must determine whether the
inmates’ claims are moot because “a federal court has
neither the power to render advisory opinions nor to decide
questions that cannot affect the rights of litigants in the
case before them.” Preiser v. Newkirk, 422 U.S. 395, 401
(1975) (quotations omitted); see also Abdul-Akbar v.
Watson, 4 F.3d 195, 206 (3d Cir. 1993). An inmate’s
transfer from the facility complained of generally moots the
21. As noted, we interpret the October 2001 policy to permit inmates to
exchange religious or legal materials.
22. At oral argument on March 6, 2002, both parties agreed that no
issues of material fact remain.
16
equitable and declaratory claims. Abdul-Akbar, 4 F.3d at
197 (former inmate’s claim that the prison library’s legal
resources were constitutionally inadequate was moot
because plaintiff was released five months before trial). But
these claims are not mooted when a challenged action is (1)
too short in duration “to be fully litigated prior to its
cessation or expiration”; and (2) “there [is] a reasonable
likelihood that the same complaining party would be
subjected to the same action again.” Id. at 206; see also
Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283, 298 n.10
(1982). When there is a voluntary cessation of a policy, a
claim will not be rendered moot if there remains the
possibility that plaintiffs will be disadvantaged “in the same
fundamental way.” Northeastern Fla. Chapter of Assoc. Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662
(1993). Instead, the dismissal of an action on mootness
grounds requires the defendant to demonstrate that “there
is no reasonable expectation that the wrong will be
repeated.” Id. (quotation omitted); see also United States v.
W.T. Grant Co., 345 U.S. 629, 633 (1953) (discussing
several factors, including “bona fides of expressed intent to
comply, effectiveness of discontinuance, and, in some
cases, character of past violations”).
Here, none of the plaintiffs remains confined at SCI-
Camp Hill, and class action status has not been sought.
Wise and Sutton have been provided with the specific
Nation of Islam books requested, and Walker has been
released from prison. Since October 5, 2001, a new SMU
policy has been in effect allowing inmates access to “any
combination of personal property” that can fit into one
records center box.23 We are satisfied this one-box policy
will not be rescinded based on the representations of the
Department of Corrections made before us on March 6,
2002. Furthermore, there are strong administrative
incentives making it unlikely that the new policy will be
reversed.24 We conclude plaintiffs no longer present a
justiciable claim for declaratory and injunctive relief.
23. This policy is similar to one of plaintiffs’ prior proposals.
24. Indeed, plaintiffs themselves recognized these incentives, stating “the
primary impact . . . eliminating the rules restricting inmate access to
religious books would have on guards and prison resources would be to
reduce the amount of time and resources prison officials spend making
decisions on whether books are ‘religious’ and whether they are
particular inmates’ ‘main holy book.’ ”
17
But plaintiffs’ damages claims are still extant. As noted,
under the now-defunct SMU policy, SMU inmates in Phases
IV and V were allowed access to one box of legal materials
and a Bible, Qur’an or equivalent only. In Phase III, SMU
inmates were allowed legal materials, a Bible, Qur’an or
equivalent, as well as “[two] other religious reading
materials (total [three]).” In Phase II, SMU inmates were
allowed legal materials, a Bible or Qur’an, and “[four] other
religious materials.”25 But even though the prior SMU policy
permitted access to additional “religious materials,”
plaintiffs were repeatedly denied access to Nation of Islam
texts over a period of several years while SMU policy
changes were being implemented. As noted, plaintiffs were
not allowed access to books by Elijah Muhammad, among
others, because prison officials determined they were not
religious. Hence, plaintiffs’ claims for damages remain
despite their transfer out of the SMU and the recent policy
changes.
B.
We now turn to defendants’ contention that
Commissioner Horn and Father Menei were not personally
involved in the complained-of actions and are thus entitled
to judgment in their favor.26 Under our cases, “[a] defendant
in a civil rights action must have personal involvement in
the alleged wrongs” to be liable. Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988). Here, there is no evidence
that Commissioner Horn had any personal involvement in
the application to plaintiffs of the challenged policies.
Therefore, any damage claims against Commissioner Horn
were properly dismissed. We find otherwise with respect to
Father Menei. On July 4, 1994, Father Menei received from
Sutton a letter, styled “Final Appeal of Grievance #94-
0768,” complaining that Imam Rasheed and Reverend
Smith had denied him access to the Nation of Islam texts,
pointing out that Imam Rasheed was a Sunni Muslim and
25. In Phase I, inmates were returned to their “designated institutions”
and allowed general population privileges.
26. Defendants do not raise this argument with respect to the other
individual defendants.
18
not an adherent of the Nation of Islam, and requesting
access to the Nation of Islam material. Father Menei
referred the matter to Reverend Smith, and, on the basis of
Reverend Smith’s memorandum (quoted supra), Father
Menei wrote to Sutton denying his appeal because “[w]e
have determined the books are not essentially religious in
nature.” He continued on to say “these books smack of
racism and hatred, and I know of no God that wants us to
worship him in this way.” Because Father Menei appears to
have played an active role, he was not entitled to summary
judgment on the grounds that he was not personally
involved.
C.
We now address the merits of plaintiffs’ free exercise
claim that the Department of Corrections’ prior regulations
were unconstitutional, both as applied and facially.
Plaintiffs, members of the Nation of Islam, allege that “they
were unlawfully denied ‘access to religious literature
contained within [their] personal property while confined in
the SMU at Camp Hill,’ and, consequently, ‘defendants
prevented plaintiffs from practicing a central tenet of their
faith.’ ” Sutton, No. 97-7906, at 1-2 (citation omitted).
Defendants claim no constitutional violation occurred
because there was a rational connection between the prison
rules and a legitimate governmental interest in
rehabilitation and security under Turner v. Safley, 482 U.S.
78 (1987).27
27. Defendants also contend that they are protected by qualified
immunity from the damages claim. Prior to addressing that contention,
however, we must first conclude that plaintiffs have alleged or evinced
the violation of a constitutional right. Wilson v. Layne, 526 U.S. 603, 609
(1999) (“A court evaluating a claim of qualified immunity ‘must first
determine whether the plaintiff has alleged the deprivation of an actual
constitutional right at all, and if so, proceed to determine whether that
right was clearly established at the time of the alleged violation.’ ”)
(quoting Conn v. Gabbert, 526 U.S. 286 (1999)); Jones v. Shields, 207
F.3d 491 (8th Cir. 2000) (treating the “must” language in Wilson as
mandatory); Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000)
(same); Hartley v. Parnell, 193 F.3d 1263, 1270-71 (11th Cir. 1999)
(same); B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1265-66 (9th
19
Before commencing the requisite Turner inquiry, we must
first determine whether plaintiffs’ request for the Nation of
Islam texts stemmed from a constitutionally protected
interest. DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000) (en
banc) (explaining that if a prisoner’s request is “not the
result of sincerely held religious beliefs, the First
Amendment imposes no obligation on the prison to honor
that request, and there is no occasion to conduct the
Turner inquiry”). The Free Exercise Clause of the First
Amendment provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof . . . .” U.S. CONST. amend. I. Only
beliefs which are both “sincerely held”28 and “religious in
nature” are protected under the First Amendment. DeHart,
227 F.3d at 52. Purely secular views are not protected.
Frazee v. Ill. Dept. of Employment Sec., 489 U.S. 829, 833
(1989) (“There is no doubt that only beliefs rooted in
religion are protected by the Free Exercise Clause . . . .”)
(quotation and citation omitted).
It is often difficult to determine whether a proffered
viewpoint is in fact “religious” or “secular” in nature.29
Cir. 1999) (same). Other circuits have treated the “must” language in
Wilson as describing what the courts ordinarily should do, rather than
as a command. See Kalka v. Hawk, 215 F.3d 90, 95 (D.C. Cir. 2000)
(treating Conn and Wilson as “not always requiring” federal courts to
dispose of the constitutional claim before upholding a qualified immunity
defense and assuming that “humanism” was a religion protected under
the First Amendment before holding that federal prison officials were
shielded by qualified immunity); Horne v. Coughlin, 191 F.3d 244, 246-
47 (2d Cir. 1999) (discussing the doctrine of judicial restraint and
observing that “where there is qualified immunity, a court’s assertion
that a constitutional right exists would be pure dictum . . . .”).
We believe that the Supreme Court directive in Wilson v. Layne is
mandatory. Accordingly, the District Court can decide the issue of
qualified immunity only after it has concluded that a cause of action has
been stated. Therefore, we initiate our inquiry by examining whether
plaintiffs have alleged a constitutional violation.
28. The District Court found that plaintiffs sincerely believed in the
teachings of the Nation of Islam, and defendants do not contest this.
Sutton, No. 97-7096, at 5-6.
29. For a helpful discussion of the problems associated with defining the
term “religion,” see generally John Garvey & Frederick Schauer, The First
20
Nonetheless, we have tried our hand at defining “religion.”
See Africa v. Commonwealth of Pennsylvania, 662 F.2d
1025, 1030 (3d Cir. 1981) (describing three indicia of
religion).30 The Supreme Court has provided some guidance
on this question in Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 531 (1993) (concluding
that Santeria, a hybrid African/Catholic faith mandating
animal sacrifice, was a “religion” meriting First Amendment
protection based partly on the “historical association
between animal sacrifice and religious worship”). In
Hialeah, the Court reasoned:
The city does not argue that Santeria is not a “religion”
within the meaning of the First Amendment. Nor could
it. Although the practice of animal sacrifice may seem
Amendment: A Reader 595-96 (2d ed. 1996):
We cannot apply the free exercise clause without understanding the
meaning of its terms. The most difficult problems have concerned
the meaning of the term “religion.” This is an interpretative problem
like the meaning of the word “speech” in the free speech clause. The
First Amendment singles out some activities for special treatment,
and leaves the rest to the weaker protection of the due process
clause. It is thus very important to determine exactly what is
covered.
The increasing religious diversity of the United States makes this
job much harder than it once was. Many free exercise claimants will
not belong to well known denominations within the Judeo-Christian
tradition . . . . It is difficult to find a common thread running
through all these claims. To take only the most obvious example,
many (like Buddhists) do not believe in God . . . . The First
Amendment should not favor western religions, or traditional
religions, over others. But neither can it extend protection to
everyone who wants it. That would invite false claims for special
treatment. It would also dilute the strength of the free exercise
clause.
See also Kent Greenawalt, Religion as a Concept in Constitutional Law,
72 CAL. L. REV. 753 (1984).
30. These indicia included: (1) an attempt to address “fundamental and
ultimate questions” involving “deep and imponderable matters”; (2) a
comprehensive belief system; and (3) the presence of formal and external
signs like clergy and observance of holidays. Id.21
abhorrent to some, “religious beliefs need not be
acceptable, logical, consistent, or comprehensible to
others to merit First Amendment protection.” Thomas
v. Review Bd. of Indiana Employment Security Div., 450
U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425(1981). Given the historical association between animal
sacrifice and religious worship, petitioners’ assertion
that animal sacrifice is an integral part of their religion
“cannot be deemed bizarre or incredible.” Frazee v.
Illinois Dept. of Employment Security, 489 U.S. 829,
834 n.2, 109 S.Ct. 1514 (1989). Neither the city nor
the courts below, moreover, have questioned the
sincerity of petitioners’ professed desire to conduct
animal sacrifices for religious reasons. We must
consider petitioners’ First Amendment claim.
Hialeah, 508 U.S. at 530 (citations omitted).
We too “must consider” plaintiffs’ First Amendment
claim. Nation of Islam Muslims believe in the teachings of
the “One God whose proper Name is Allah,” as they are
contained in the Holy Qur’an, the Scriptures of all the
Prophets of God, and the Bible. The Nation of Islam Online,
available at http://www.noi.org (last visited Aug. 5, 2002).
They believe that Allah (God) appeared in the person of
Master W. Fard Muhammad in July 1930 and that Fard
Muhammad is the long-awaited “Messiah” of the Christians
and the “Mahdi” of the Muslims. Id. The official Nation of
Islam website states that members want to establish a
separate territory where black people can live independently
and “believe the offer of integration is hypocritical and is
made by those who are trying to deceive the black peoples
into believing that their 400-year-old open enemies of
freedom, justice and equality are, all of a sudden, their
‘friends.’ ” Id. The central and foundational tenets of the
Nation of Islam meet the definition of religion as set forth in
Hialeah and Africa. Furthermore, we cannot say they are
“so bizarre, so clearly nonreligious in motivation, as not to
be entitled to protection under the Free Exercise Clause.”
Thomas, 450 U.S. at 715. Therefore, we conclude that
plaintiffs’ sincerely-held views are sufficiently rooted in
religion to merit First Amendment protection.
22
But “the constitutional rights that prisoners possess are
more limited in scope than the constitutional rights held by
individuals in society at large.” Shaw v. Murphy, 532 U.S.
223, 229 (2001) (quoting Pell v. Procunier, 417 U.S. 817,
822 (1974)); see also Waterman v. Farmer, 183 F.3d 208,
213 (3d Cir. 1999) (prisoners’ constitutional rights “are
necessarily limited”). As we recently observed,
“incarceration almost always results in a narrowing, not a
broadening, of constitutional protections.” Fraise v.
Terhune, 283 F.3d 506, 515 n.5 (3d Cir. 2002). Although
prison walls “do not form a barrier separating prison
inmates from the protections of the Constitution,” inmates’
First Amendment rights “must in some respects be limited
in order to accommodate the demands of prison
administration and to serve valid penological objectives.” Id.
at 515 (quoting Turner, 482 U.S. at 84).
The Supreme Court has established that regulations
reasonably related to legitimate penological interests
generally pass constitutional muster. See Turner, 482 U.S.
at 84; O’Lone v. Shabbaz, 482 U.S. 342 (1987). Under
Turner, we must weigh four factors in making this
determination:
first, whether the regulation bears a “valid, rational
connection” to a legitimate and neutral governmental
objective; second, whether prisoners have alternative
ways of exercising the circumscribed right; third,
whether accommodating the right would have a
deleterious impact on other inmates, guards, and the
allocation of prison resources generally; and fourth,
whether alternatives exist that “fully accommodate[ ]
the prisoner’s rights at de minimis cost to valid
penological interests.”
Fraise, 283 F.3d at 513-14 (quoting Turner, 482 U.S. at 89);
see also Wolf v. Ashcroft, 297 F.3d 305, 310 (3d Cir. 2002)
(discussing Turner in the context of a prison policy
providing that no movies rated R, X, or NC-17 may be
shown to inmates); Waterman, 183 F.3d at 212(“Constitutional challenges to laws, regulations, and
policies governing prison management must be examined
under the framework of Turner v. Safley . . . .”).
23
Under the first Turner prong, we accord great deference
to the judgments of prison officials “charged with the
formidable task of running a prison.” O’Lone, 482 U.S. at
353; see also Shaw, 532 U.S. at 230 (“[U]nder Turner and
its predecessors, prison officials are to remain the primary
arbiters of the problems that arise in prison management”)
(quoting Martinez, 416 U.S. at 405 (“ ‘[C]ourts are ill
equipped to deal with the increasingly urgent problems of
prison administration and reform.’ ”)). The first factor is
“foremost in the sense that a rational connection is a
threshold requirement — if the connection is arbitrary or
irrational, then ‘the regulation fails, irrespective of whether
the other factors tilt in its favor’ . . . But, as we made clear
in DeHart, we do not view it as subsuming the rest of the
inquiry.” Wolf, 297 F.3d at 310 (quoting Shaw, 532 U.S. at
229-30); see also DeHart, 227 F.3d at 52 (examining
whether a prison regulation prohibiting a Buddhist inmate
from following a vegetarian diet was justified by “legitimate
and neutral concerns” under Turner).
The first Turner factor requires a “multifold” analysis: “we
must determine whether the governmental objective
underlying the regulations at issue is legitimate and
neutral, and that the regulations are rationally related to
that objective.” Thornburgh v. Abbott, 490 U.S. 401, 414-15
(1989). Where “prison administrators draw distinctions
between publications solely on the basis of their potential
for prison security, the regulations are ‘neutral’ in the
technical sense in which [the Supreme Court] meant and
used the term in Turner.” Id. at 415-16.
In this case, the prior version of DC-ADM 802 provided
that inmates in restrictive status could have “no books
other than legal materials and a personal Bible, Holy Koran
or other religious equivalent.” Similarly, DC-ADM 801
provided: “inmates will be permitted legal material that may
be contained in one (1) records center box . . . . A personal
Bible, a Holy Koran, or equivalent publication is permitted.”
As an inmate progressed to Phases III and II, additional
religious texts were permitted.
Defendants assert the prior Department of Corrections
policy of allowing prisoners in SMU Phases IV and V access
to one box of legal materials and one Bible, Qur’an or
24
“equivalent” religious publication was rationally related to
the penological goals of “maintaining a secure environment
in the SMU (both concerning searches of cells and fire
safety) and as an integral part of a global, behavior-driven
program to encourage the most recalcitrant prisoners in the
system to engage in more responsible and acceptable
behavior.” Defendants contend that, to the extent some of
those inmates are religious, conditioning increased access
to religious material on improved behavior served as an
incentive for the desired behavior change because, once
returned to the general prison population, the inmates
would re-gain access to additional religious books. As the
District Court found, “[t]he limit on the number of books in
an SMU cell or the number of religious materials in general
was just another incentive to improve the behavior of
prisoners who behaved badly.” Sutton, No. 97-7096, at 13.
Plaintiffs contend that defendants’ “book ban” was
“fundamentally irrational” because under these policies,
essential Nation of Islam texts “were completely banned
from all levels of the SMU, it did not matter how well
plaintiffs behaved.” In addition, they contend the ban was
clearly “not neutral, and it was made only because of the
content of the expression . . . . according to defendants, the
books were ‘not religious’ and plaintiffs could not have
them.”
As noted, the prior Department of Corrections policy
provided only that Phase V and Phase IV inmates could
have a: “Bible, Quran, or equivalent.” Once an inmate
“graduated” from Phase IV to Phase III, he was entitled to
“two additional religious texts”; in Phase II, “four additional
religious texts”; and in Phase I (general population), no
restrictions. Because the prison authorities found Nation of
Islam texts “not religious,” none were permitted at Phases
II through V.
We need not address the facial challenge because in
applying the policy, the Department of Corrections
interfered with the free exercise of religion. The prison
administrators impermissibly denied access to Nation of
Islam materials because they improperly found the
documents were not religious. On this point, the facts are
25
not in dispute.31 It is difficult, therefore, to discern a
legitimate penological interest in the denial of Nation of
Islam texts to plaintiffs. Notwithstanding defendants’
arguments and the deference we accord the judgment of
prison officials, on balance, we believe that defendants
cannot satisfy the first Turner prong.
The second Turner prong requires “a court to assess
whether inmates retain alternative means of exercising the
circumscribed right . . . . When assessing the availability of
alternatives, the right in question must be viewed ‘sensibly
and expansively.’ ” Fraise, 283 F.3d at 518. The second
factor is not “intended to require courts to determine
whether an inmate’s sincerely held religious belief is
sufficiently ‘orthodox’ to deserve recognition.” DeHart, 227
F.3d at 55. Under this factor, “we must of course focus on
the beliefs of the inmate asserting the claim. It is obviously
impossible to determine whether a regulation leaves an
inmate with alternative ways of practicing the inmate’s
religion without identifying the religion’s practices.” Fraise,
283 F.3d at 518.
Here, the inmates in question are adherents of various
Nation of Islam sects.32 Nation of Islam members follow
teachings contained in the “the Holy Qur’an, the Scriptures
of all the Prophets, and in the Holy Bible.” The Nation of
Islam Online, available at http://www.noi.org (last visited
31. Imam Rasheed, while acknowledging that members of the Nation of
Islam view themselves as Muslims, nonetheless concluded that the
books were not “Islamic,” because they did not comport with what he
deemed the orthodox conception of Islam. Reverend Smith, beginning
from the view that “[r]eligion, by definition, begins and ends with the
search for and discovery of God,” concluded “these books are not
essentially religious in nature” because they referenced racial superiority
and political activism. Father Menei echoed this view when he wrote that
“these books smack of racism and hatred, and I know of no God that
wants us to worship in this way.”
We express no opinion on the restriction of religious materials that
might advocate violence.
32. Sutton is a member of a Nation of Islam sect led by Minister
Farrakhan, Wise is a member of the Lost-Found Nation of Islam, Inc.,
and Walker is a member of both.
26
Aug. 5, 2002). Plaintiffs’ expert stated in her uncontradicted
deposition testimony that the Nation of Islam books
requested and denied were “essential religious texts of the
Nation of Islam” and “required reading by the faithful,” and
that without them, “a person could not function well in the
Nation of Islam’s religious community.” Consequently,
plaintiffs contend that, under the prior policy, the “only
form of religious expression available to plaintiffs and other
members of the Nation of Islam is individual prayer in their
cells, without the essential books to teach them how to
pray.”
This Court has held that in a free exercise case, we must
consider whether the inmate has “alternate means of
practicing his or her religion generally, not whether [the]
inmate has alternative means of engaging in [any]
particular practice.” DeHart v. Horn, 227 F.3d 47, 55 (3d
Cir. 2000) (en banc). In DeHart, we overruled the analysis
in Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), that
focused on “ ‘the centrality of the religious tenet’ at issue
and distinguished between ‘religious commandments’ and
‘positive expression of belief,’ suggesting that ‘the
importance of alternative means of religious observance is
an irrelevant consideration’ when the practice in question is
a commandment.” 227 F.3d at 54. We then said:
Thus, under Johnson where the religious practice
being prohibited by the prison is commanded by the
believer’s faith, the existence of other opportunities for
exercising one’s religious faith is wholly irrelevant to
the analysis. The “religious commandment”/“positive
expression of belief ” distinction on which the panel in
Johnson relied, however, directly conflicts with the
Supreme Court’s analysis in O’Lone. The Court there
expressly held that, although attendance at Jumu’ah
was a requirement of the respondents’ religion (i.e., a
“religious commandment”), because other means of
practicing their religion were available, the second
Turner factor weighed in favor of the relevant
restriction’s reasonableness. Recognition that a
particular practice is required by an inmate’s religion,
thus, does not end this portion of the analysis. Rather,
as the Supreme Court made clear in O’Lone and
27
Thornburgh, courts must examine whether an inmate
has alternative means of practicing his or her religion
generally, not whether an inmate has alternative
means of engaging in the particular practice in
question. . . . In this case, the record shows that, while
the prison’s regulations have prohibited DeHart from
following a diet in conformity with his religious beliefs,
he has some alternative means of expressing his
Buddhist beliefs.
Id. at 55, 57.
We also said that where “other avenues remain available
for the exercise of the inmate’s religious faith, courts should
be particularly conscious of the measure of judicial
deference owed to correction officials. . . .” Id. at 59(quoting Turner, 482 U.S. at 90) (internal quotations
omitted).
Here, while the plaintiffs had access to the Bible and
Qur’an, and could pray in their cells and celebrate
Ramadan and other religious holidays, they were deprived
of texts which provide critical religious instruction and
without which they could not practice their religion
generally.33 In so concluding, we are mindful of DeHart’s
33. The crucial religious significance of the writings that plaintiffs were
foreclosed from reading is made plain by the expert report and
deposition testimony of plaintiffs’ expert, Dr. Aminah Beverly McCloud,
an Assistant Professor in DePaul University’s Department of Religious
Studies. Professor McCloud, a specialist in Islamic studies, had this to
say in her expert report:
8. The Nation of Islam is a religious community founded by Wali
Fard Muhammad and developed by Elijah Muhammad. Within
the Nation of Islam, Allah is God, Fard Muhammad is the
Messiah, and Elijah Muhammad is a prophet. The teachings of
Fard Muhammad and Elijah Muhammad are essential
components of the religious beliefs and practices of the Nation
of Islam.
9. Minister Louis Farrakhan is the religious leader of a
prominent branch of the Nation of Islam. Like the teachings of
Fard Muhammad and Elijah Muhammad, the teachings of
Minister Farrakhan are an essential component of the religious
beliefs and practices of this branch of the Nation of Islam.
28
proscription against drawing distinctions between “religious
commandments” and “positive expressions of belief ” in
determining what religious practices may be curtailed by
prison officials, and we do not here treat the reading of
10. I am familiar with Elijah Muhammad’s books entitled The
Supreme Wisdom, Message to the Blackman in America, Our
Savior Has Arrived, How to Eat to Live and The Fall of America.
It is my considered opinion that all of these publications are
“religious” in nature. Indeed, all of Fard Muhammad’s and
Elijah Muhammad’s teachings and writings are essential to the
worldview of members of the Nation of Islam, and are
undeniably religious to members of that community.
11. I am also familiar with the periodicals entitled Muhammad
Speaks and The Final Call. These publications are also
“religious” in nature.
12. Professor C. Eric Lincoln refers to two of the above religious
publications on page 129 of the 1994 edition of his
authoritative treatise, The Black Muslims in America:
In a book entitled Message to the Blackman (first
published in 1965), [Elijah] Muhammad spelled out the
essential doctrines of Black Islam as taught him by Fard,
with his own elaborations. Message to the Blackman is
required reading by the faithful, and it has found its way
into the homes and libraries of non-Muslims. Since proper
diet is a key aspect of Muslim commitment, Message was
logically followed by a volume entitled How to Eat to Live,
also by [Elijah] Muhammad. Together, these two books refine
and extend the doctrines laid down in The Supreme Wisdom.
13. I agree with Professor Lincoln’s characterization of The
Supreme Wisdom, Message to the Blackman and How to Eat to
Live as essential religious texts of the Nation of Islam. Our
Savior Has Arrived, The Fall of America, Muhammad Speaks
and The Final Call are also essential religious texts of the
Nation of Islam.
14. For followers of Minister Farrakhan within the Nation of
Islam, his writings are likewise essential religious texts.
15. Without these materials, a person could not function well in
the Nation of Islam’s religious community. To borrow Professor
Lincoln’s phrase, they are “required reading by the faithful.”
On deposition the following colloquy was had:
Q. Does the Nation of Islam have what you refer to as inspired
text?
29
these texts as religious commandments, but rather as a
necessary element of exercising the right in question viewed
“sensibly and expansively”: the right to free exercise of the
Nation of Islam faith.
We are also mindful of this Court’s holding in Fraise v.
Terhune, 283 F.3d 506 (3d Cir. 2002). There, this court
said: “While the STG Policy forbids possession of
distinctively Five Percent Nation literature, it is undisputed
that the Policy allows inmates to possess, study, and
discuss the Bible and the Koran. Accordingly, study of the
Five Percent Nation’s teachings is only partially restricted.”
Id. at 519. However, although Fraise refers to testimony
identifying certain texts — The 120 Degrees, Supreme
Mathematics, and Supreme Alphabet — which, like the Bible
and the Qur’an, contain Five Percent teachings, id. at 511,
nothing in Fraise purports to identify these or other items
of “distinctively Five Percent literature” as having the
sacrosanct and fundamental quality which the writings of
the prophet, Elijah Muhammad, or the writings of Minister
Farrakhan, have for members of one or another sect of the
Nation of Islam. Those writings are, as plaintiffs’ expert
Professor Aminah Beverly McCloud explained, “not just the
words of Elijah Muhammad or Louis Farrakhan. They are
the words of Elijah Muhammad and Louis Farrakhan as
inspired by God.”34
In O’Lone, the Supreme Court held that the proper
analysis of the second Turner prong required the Court not
to determine if the inmates had alternative means to
A. Yes. I would classify this set of texts as both scriptural and
inspired because the members believe that these are not just
the words of Elijah Muhammad or Louis Farrakhan. They are
the words of Elijah Muhammad and Louis Farrakhan as
inspired by God.
Q. Okay. Are Elijah Muhammad’s books religious both for Silas
Muhammad’s group based in Atlanta and Louis Farrakhan’s
group based in Chicago?
A. Oh, yes.
34. See note 33, supra.30
celebrate Jumu’ah, but rather whether they had alternative
means to practice their religion in general. Because they
teach adherents the proper way to pray and are viewed as
divinely inspired, however, deprivation of the Nation of
Islam texts in question here implicates not just the right to
read those particular texts, but the prisoners’ ability to
practice their religion in general. To illustrate this principle,
while we believe that a Christian inmate could practice his
religion generally even if prevented from attending
Christmas or Easter services, we do not believe he could
practice his religion if deprived of access to the Bible. The
distinction in this example is not between religious
commandments and positive expressions of belief, but
between the deprivation of a single aspect of religious
worship and the removal of any ability to undertake the free
exercise of the Christian religion generally.35
For example, had the plaintiff-inmates been Mormons, we
do not think that prison authorities, in furtherance of a
program of behavior modification, could, compatibly with
the Constitution, have restricted the inmates’ religious
reading to the Old and New Testaments, withholding the
inmates’ own copies of The Book of Mormon.36 There can be
no fault line in the Constitution that would place the
followers of Jesus Christ and Joseph Smith on the
preferred side of the line and the followers of Elijah
Muhammad and Louis Farrakhan on the other side.
Therefore, because the original SMU policy deprived the
plaintiffs of texts without which they could not practice
their religion generally, we conclude that the second Turner
prong favors the plaintiffs.
35. By the use of this example, we do not mean to imply that the
deprivation of texts, as opposed to restrictions on religious practices, is
more likely to mean that a prisoner cannot practice his religion
generally. For example, we suspect that a complete prohibition on a
Catholic’s ability to attend Mass would mean a deprivation of his right
to practice his religion generally, much as we would draw that
conclusion about a regulation barring the inmate’s access to the Bible.
36. The Book of Mormon is “accepted as holy scripture, in addition to the
Bible, in the Church of Jesus Christ of Latter-day Saints and other
Mormon churches.” 8 New Encyclopaedia Britannica 329.
31
The final two Turner factors also favor plaintiffs. “The
third and fourth factors . . . focus on the specific religious
practice or expression at issue and the consequences of
accommodating the inmate for guards, for other inmates,
and for the allocation of prison resources.” DeHart, 227
F.3d at 57.37 Here, the consequences of accommodation
appear de minimis and would not have a deleterious impact
on prison personnel or resources. The Department of
Corrections itself obviously did not consider the
consequences of accommodation burdensome because they
have changed their policy and adopted a policy similar to
what plaintiffs sought. Prison resources are more efficiently
allocated now because the one-box rule no longer requires
prison administrators to make repeated individualized
decisions about what are “religious” texts.
In sum, each of the four Turner factors — the existence
of a legitimate and neutral government objective with
regulations rationally related to that objective; whether
there are alternative means of exercising the circumscribed
right; the specific religious practice at issue; and the
consequences of accommodating the inmate — weigh in
favor of the plaintiffs’ claim. For these reasons, we hold
that, as applied to plaintiffs, the prior policy was
constitutionally infirm under Turner.
D.
But this does not end our analysis. We must also
consider whether defendants are protected under the
doctrine of qualified immunity.38 Wilson, 536 U.S. at 609.
Government officials performing discretionary functions,
“generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
constitutional rights of which a reasonable person would
have known.” Abdul-Akbar, 4 F.3d at 201-02 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982)). The right
allegedly violated must be defined at the appropriate level of
37. Unlike Fraise, defendants concede the books at issue pose no
security risks. Sutton, No. 97-7096, at 1.
38. Defendants were sued in their official and individual capacities.
Sutton, No. 97-7096, at 1.
32
specificity before a court can determine if it was “clearly
established.” Wilson, 536 U.S. at 615; see also Abdul-
Akbar, 4 F.3d at 202 (quoting Good v. Dauphin County Soc.
Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir.
1989) (explaining that the contours of the right must be
sufficiently clear for “reasonable officials in the defendant’s
position at the relevant time [to] believe[ ], in light of what
was in the decided case law, that their conduct would be
unlawful”)).
In this case, we must address defendants’ claims of
qualified immunity as they relate to damages claims
asserted against them on the basis of their actions under
the prior SMU policy and predicated upon decisions that
Nation of Islam texts were “not religious.”
The law in this area is murky. There has not always been
a clear consensus whether the Nation of Islam is a religion
for purposes of protection under the First Amendment. See,
e.g., Cooper, 855 F.2d at 127 (applying O’Lone and rejecting
free exercise claims of Nation of Islam plaintiffs seeking to
engage in group prayer); Long v. Parker, 390 F.2d 816, 819-
20 (3d Cir. 1968) (describing the “Black Muslim” movement
as “an alleged sect of the religion of Islam” and observing
that it “cannot be classified as purely religious in nature,”
in part because the “inexorable hatred of white people” is a
basic part of the faith) (quotation omitted);39 Cooper v. Pate,
382 F.2d 518, 523 (7th Cir. 1967) (“Viewed as ordinary
39. We do not agree with plaintiffs that Long “clearly established” a free
exercise right that has been violated in this case, in part because Long
was decided more than a decade before either Turner or O’Lone, two
Supreme Court cases narrowing the scope of constitutional protection
afforded inmates. In Long, we considered the claims of “Black Muslim”
inmates contending they had been “unconstitutionally denied the right to
receive and read authoritative publications of their religious sect,
including the weekly newspaper ‘Muhammad Speaks.’ ” Id. at 822.
Access to this publication was restricted because of its alleged
inflammatory nature. Id. We assumed without deciding that plaintiffs
were entitled to the protections of the First Amendment because
defendants did not challenge the legitimacy of treating Black Muslim
beliefs as a religion. Id. at 819-820. After examining the inmates’ claims,
we required a hearing on the religious significance of “Muhammad
Speaks.” Id. at 822.
33
reading matter, with only slight relevance to religion, it
would be most difficult to establish that exclusion of any
[publications containing articles by Elijah Muhammad]
from a prison is unlawful. Considered as religious material,
one question would be whether material of the same degree
of religious relevance is permitted prisoners of other faiths.
And the extent or tone with which the race doctrine of this
particular faith is emphasized would, we think, be a
legitimate consideration.”); see generally Right to Practice
Black Muslim Tenets in State Prisons, 75 HARV. L. REV. 837,
837 40 (1962).
Nor have the courts always provided clear guidance on
the question of what restrictions on prisoners’ rights pass
constitutional muster. See, e.g., Hudson v. Palmer, 468 U.S.
517, 523-34 (1984) (“[C]onstraints on inmates, and in some
cases the complete withdrawal of certain rights, are
justified by the considerations underlying our penal system
. . . .”); Canedy v. Boardman et al, 91 F.3d 30, 34 (7th Cir.
1996) (“But in 1992, the time of the events in question
here, it was not at all clear that [plaintiff ’s interest in
observing Islam’s nudity taboos] decisively outweighed [the
interests] of the prison.”); Wilson v. Prasse, 463 F.2d 109,
111 (3d Cir. 1972) (“The question of the distribution of
Muslim literature [including the writings of Elijah
Muhammad] among prison populations is not free from
difficulty.”); Cooper, 855 F.2d at 129 (“While plaintiffs
invoke the highest principles of our law, they are dangerous
persons who even among inmates convicted of the most
serious offenses were singled out for special security
treatment . . . . Clearly, there is a valid, rational reason for
not permitting plaintiffs to establish an infrastructure
within the [restrictive custody unit] and have it openly
function merely because plaintiffs claim a right to engage in
their activities on the basis of their religion.”) (citing O’Lone,
482 U.S. at 342); Knuckles v. Prasse, 302 F.Supp. 1036,
1050 (E.D. Pa. 1969) (Higginbotham, J.) (“Since the [Black
Muslim] literature could be subject to inferences urging
[defiance of whites] . . . I rule that it is not necessary that
the prison authorities make available to prisoners the
writings”), aff ’d 435 F.2d 1255 (3d Cir. 1970).40
40. Cf. Williams v. Lane, 851 F.2d 867, 878 (7th Cir. 1988) (examining
the rights of inmates in protective custody status, which is made
34
Accordingly, it is questionable whether the likely
invalidity of the application of the Department of
Corrections’ SMU policy was clearly established so that it
should have been apparent to defendants. Cf. Abdul-Akbar,
4 F.3d at 205 (“Indeed, if members of the judiciary cannot
reach a clear consensus regarding ‘[t]he contours of the
right’ . . . can we reasonably expect more from those who
are required to implement those rights?”) (citation and
quotation omitted); see also Kalka, 215 F.3d at 99 (“Given
the judiciary’s exceedingly vague guidance, in the face of a
complex and novel question, the actions of the defendants
therefore did not violate ‘clearly established’ law.”).
Furthermore, the first and second prongs of the Turner
analysis present close calls on these facts, especially in
light of the great deference we accord the judgments of
prison officials.
For these reasons, we hold that the defendants are
protected by qualified immunity from plaintiffs’ damages
claims.
available to inmates who fear for their own safety); McCabe v. Arave, 827
F.2d 634, 638 (9th Cir. 1987) (addressing a “ban” of Church Jesus
Christ Christian books touting white supremacy from a prison library
and holding “literature advocating racial purity, but not advocating
violence or illegal activity as a means of achieving this goal, and not so
racially inflammatory as to be reasonably likely to cause violence at the
prison, cannot be constitutionally banned as rationally related to
rehabilitation”); Murphy v. Mo. Dep’t of Corrections, 814 F.2d 1252, 1256
(8th Cir. 1987) (concluding that a total ban of Aryan Nations materials
“is too restrictive a mail censorship policy”); Rowland v. Jones, 452 F.2d
1005, 1006 (8th Cir. 1971) (“We reject as an intrusion of a prisoner’s
First Amendment rights the granting of possession of some [religious
medallions] and not others contingent upon their meeting an official
standard of religious orthodoxy.”); Walker v. Blackwell, 411 F.2d 23, 29
(5th Cir. 1969) (“The order is merely to direct that the warden not
arbitrarily deny Black Muslims the right to read [the “Muhammad
Speaks” newspaper], within the normal framework of prison rules and
regulations, administration and security.”); Sostre v. McGinnis, 334 F.2d
906, 911 (2d Cir. 1964) (“In other words the nub of this situation is not
to be found in the existence of theoretical rights, but in the very practical
limitations on those rights which are made necessary by the
requirements of prison discipline”).
35
IV.
Therefore, we will affirm the District Court’s entry of
summary judgment. Parties to bear their own costs.
36
SCIRICA, Circuit Judge, concurring:
Although I believe the revised Department of Corrections
policy represents the better practice and avoids potential
problems in the free exercise of an inmate’s religion, I
believe the prior policy was facially valid. But the prison
administrators impermissibly denied access to Nation of
Islam materials because they found, improperly in my view,
that the documents did not constitute religious material.
For this reason, I agree that the prior policy was
unconstitutional as applied.
I.
But it seems to me that under Turner v. Safley, 482 U.S.
78 (1987), the prison authorities promulgated a rational
and neutral policy, reasonably grounded on behavior
modification principles. Arguably, had the corrections
officials adopted a broader view of “religion,” the Nation of
Islam materials, at least, in Phases III and II would have
been permitted. And depending on whether the officials
considered Nation of Islam materials the equivalent of the
Bible or Qur’an, they could have been permitted at Phases
V and IV.
Under an expansive interpretation of what constitutes
religious materials, therefore, the prior policy arguably
could be rational and neutral, and reasonably grounded on
acceptable behavior modification principles. Department of
Corrections Regional Deputy Commissioner Dr. Beard
explained that this incentive-based program was developed
to improve upon traditional restrictive housing units which
were not programmed to address the needs of inmates with
a long-term inability to adjust to general population status.
To this end, the SMU “provide[d] structured progression
through five phases . . . . The program provide[d] security
for staff and inmates alike while giving the inmate an
incentive to progress through the phases of the program
. . . .” To the extent that some of those inmates were
religious, conditioning access to religious materials on
37
improved behavior might very well have served as a
powerful incentive for the desired change in behavior.1
Furthermore, the District Court found that “the SMU
rules were not created to target [Nation of Islam] members,
and the rules applied to each prisoner no matter what his
religion.” Sutton, No. 97-7096, at 12. It bears noting as well
that as the prisoner progressed through administrative
confinement, he regained other privileges besides access to
additional religious materials. For these reasons,
defendants have arguably demonstrated a “valid, rational
connection” to the “legitimate and neutral governmental
objective” of behavior modification. Cf. Thornburgh v.
Abbott, 490 U.S. 401, 414-15 (1989).
II.
I also believe that the second Turner prong favors
defendants. As the court notes, in a free exercise case, we
must consider whether the inmate has “alternate means of
practicing his or her religion generally, not whether [the]
inmate has alternative means of engaging in [any]
particular practice.” DeHart v. Horn, 227 F.3d 47, 55 (3d
Cir. 2000) (en banc). “When assessing the availability of
alternatives, the right in question must be viewed ‘sensibly
and expansively.’ ” Fraise, 283 F.3d at 518 (quoting DeHart,
227 F.3d 53-55). In DeHart, we overruled the analysis in
Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), that focused
on “ ‘the centrality of the religious tenet’ at issue and
distinguished between ‘religious commandments’ and
‘positive expression of belief,’ suggesting that ‘the
importance of alternative means of religious observance is
an irrelevant consideration’ when the practice in question is
a commandment.” 227 F.3d at 54. We then said:
Thus, under Johnson where the religious practice being
prohibited by the prison is commanded by the
1. As the District Court found, the SMU incentive-based program was
“very successful” because from “April 1992 to October 1993 of the 45
inmates admitted to the program 19 graduated to general population
status and only 3 of those had [to] be returned to the SMU.” Sutton, No.
97-7096, at 12.
38
believer’s faith, the existence of other opportunities for
exercising one’s religious faith is wholly irrelevant to
the analysis. The “religious commandment”/“positive
expression of belief ” distinction on which the panel in
Johnson relied, however, directly conflicts with the
Supreme Court’s analysis in O’Lone. The Court there
expressly held that, although attendance at Jumu’ah
was a requirement of the respondents’ religion (i.e., a
“religious commandment”), because other means of
practicing their religion were available, the second
Turner factor weighed in favor of the relevant
restriction’s reasonableness. Recognition that a
particular practice is required by an inmate’s religion,
thus, does not end this portion of the analysis. Rather,
as the Supreme Court made clear in O’Lone and
Thornburgh, courts must examine whether an inmate
has alternative means of practicing his or her religion
generally, not whether an inmate has alternative
means of engaging in the particular practice in
question. . . . In this case, the record shows that, while
the prison’s regulations have prohibited DeHart from
following a diet in conformity with his religious beliefs,
he has some alternative means of expressing his
Buddhist beliefs.”
Id. at 55, 57.
We further said that where “other avenues remain
available for the exercise of the inmate’s religious faith,
courts should be particularly conscious of the measure of
judicial deference owed to correction officials. . . .” DeHart,
227 F.3d at 59 (quoting Turner, 482 U.S. at 90) (internal
quotations omitted). The second factor is not “intended to
require courts to determine whether an inmate’s sincerely
held religious belief is sufficiently ‘orthodox’ to deserve
recognition.” DeHart, 227 F.3d at 55. Under this factor, “we
must of course focus on the beliefs of the inmate asserting
the claim. It is obviously impossible to determine whether
a regulation leaves an inmate with alternative ways of
practicing the inmate’s religion without identifying the
religion’s practices.” Fraise, 283 F.3d at 51.
In Fraise, we concluded the second Turner prong was
39
satisfied where inmates’ access to Five Percent2 literature
was only “partially restricted.” Id. at 519. The Fraise prison
regulations allowed New Jersey correctional officers to
designate security threat groups (STGs) and transfer core
members to a special unit where their ability to “study the
lessons” (a central Five Percent practice) was strictly
controlled for fear of gang violence linked with the group.
Id. Although Five Percenters were not allowed possession of
“distinctively Five Percent Nation literature,” they were still
permitted to “possess, study and discuss” the Bible and the
Qur’an. Id. We stated, “To be sure, the STG Policy restricts
the ability of Five Percenters to achieve [self-knowledge,
self-respect, responsible conduct or righteous living] by
following what the group may regard as the best avenue,
i.e., by studying and discussing doctrines and materials
distinctive to the Five Percent Nation. But alternative
avenues clearly remain open.” Id.As the court notes, the inmates in question here are
adherents of various Nation of Islam sects.3 Plaintiffs’ expert
opined that the Nation of Islam Books requested were
“essential” to the practice of their religion. But alternative
means of worship were clearly available to the plaintiffs.
Even though plaintiffs were denied access to distinctly
Nation of Islam texts, they were still allowed access to the
Qur’an or Bible, like the Fraise inmates. As the District
Court found, Nation of Islam members in the SMU were
“permitted to exchange books, e.g., the Bible for the Koran
. . . . and [t]hey could celebrate religious holidays such as
Ramadan in the company of other prisoners.” Sutton, No.
97-7096, at 5. Thus, SMU inmates had access to the Bible,
Qur’an, or equivalent religious texts, and they could pray
2. The Five Percenters broke away from the Nation of Islam in the 1960s.
They believe in a “Supreme Mathematics.” The “Five Percent” includes
African Americans who have achieved self-knowledge. Fraise, 283 F.3d at
511. Five Percenters “reject[ ] belief in the transcendent and instead
focus[ ] on human enlightenment and conduct as ends in themselves.”
Id. at 518 (examining evidence of the Five Percenters beliefs and
practices as submitted by an editor of a Five Percent newspaper).
3. Sutton is a member of a Nation of Islam sect led by Minister
Farrakhan, Wise is a member of the Lost-Found Nation of Islam, Inc.,
and Walker is a member of both.
40
by themselves, speak with and be visited by religious
advisors, and celebrate religious holidays. Cf. Fraise v.
Terhune, 283 F.3d 506, 519-20 (upholding a prison policy
in an as-applied challenge where inmates in restrictive
custody were only “partially restricted” in their ability to
practice religion because “the policy allowed inmates to
possess, study and discuss the Bible and the Koran” and
did not restrict religious inmates from seeking “self-
knowledge” or “righteous living”). While the original SMU
policy undoubtedly imposed restrictions on the ability of
Nation of Islam members to engage in activities related to
the group, plaintiffs retained sufficient alternative means of
studying and practicing doctrines distinct to their religion.4
Cf. Fraise, 283 F.3d at 520. I see no principled distinction
here from the circumstances we faced in Fraise, which
found that sufficient alternative means of worship were
retained. Therefore, I believe the second Turner prong favors
defendants here.
In all other respects, I join the court’s opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
4. As noted, we said in DeHart, “[T]he Supreme Court made clear in
O’Lone and Thornburgh, courts must examine whether an inmate has
alternative means of practicing his or her religion generally, not whether
an inmate has alternative means of engaging in the particular practice
in question.” 227 F.3d at 55.