Donald Duane Ochs v. John A. Thalacker , 90 F.3d 293 ( 1996 )


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  •                                         ___________
    No. 95-2314
    ___________
    Donald Duane Ochs,                  *
    *
    Plaintiff - Appellant,        *
    *
    v.                            *
    * Appeal from the United States
    John A. Thalacker, Warden, Iowa     * District Court for the
    Men's Reformatory; John Sissel; * Northern District of Iowa.
    Russell Behrends; Ralph             *
    Schafer; Mona Burns; Larry          *
    Hebron; Jerome Manternach,          *
    *
    Defendants - Appellees.       *
    ___________
    Submitted:     February 22, 1996
    Filed:     July 22, 1996
    ___________
    Before FAGG, BOWMAN, and LOKEN, Circuit Judges.
    ___________
    LOKEN, Circuit Judge.
    In this § 1983 action, Iowa inmate Donald Duane Ochs claims that
    officials    at    the   Iowa   Men's   Reformatory     ("IMR")   violated   his   First
    Amendment and Due Process rights by refusing to honor his religiously-
    motivated request to be housed with persons of his own race and by
    segregating him for making that request, and violated his Eighth Amendment
    rights by being deliberately indifferent to his allergic reaction to metal
    handcuffs.        After a bench trial, the district court1 dismissed these
    claims.   Ochs appeals.      The primary issue is whether IMR's response to his
    request to be racially
    1
    The HONORABLE JOHN A. JARVEY, Chief United States Magistrate
    Judge for the Northern District of Iowa, who tried the case by
    consent of the parties pursuant to 28 U.S.C. § 636(c).
    segregated substantially burdened his free exercise of religion and was not
    the "least restrictive means of furthering [a] compelling government
    interest,"    the   new   governing   standard     under   the   Religious    Freedom
    Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb-1.               We affirm.
    I.
    On February 2, 1994, sixty to seventy inmates housed in IMR's Living
    Unit B took part in a racially-charged fight between members of white and
    African-American gangs.     This was the most serious disturbance at IMR since
    a major riot in the 1970s.       It was followed by a smaller, but serious,
    racial incident on February 18, which began as a fight but evolved into a
    scheme by Unit B inmates to trap prison guards who responded to the fight.
    As a result, IMR officials locked down Unit B, confining its 550 inmates
    to their cells while the causes of these disturbances were investigated.
    At this time, Donald Ochs was serving a ten-year sentence for second
    degree robbery, housed in IMR's Unit B.        Although Ochs had lived with non-
    white cellmates in the past, on February 16, in the midst of these racial
    tensions, Ochs sent the following "notice" to IMR officials:
    I am a white American. My race is Anglo-Saxon. The tone and color
    of my skin is white.     My religious, political and moral beliefs
    forbid my integrating with any member of any other race. I therefore
    give notice that I do not wish to be integrated now or anytime in the
    future, and if I must be housed with another person (i.e., in the
    same cell) I request that person be of my own race.
    On February 24, IMR officials lifted Unit B's lockdown status and
    began    reintegrating    its   inmates    "into    the    everyday    flow   of   the
    institution," as Security Director Russell Behrends put it at trial.
    However, Ochs and twenty-five others were placed in "non-voluntary, non-
    disciplinary" status, and Ochs was randomly assigned
    -2-
    an African-American cellmate, Nelson McAlpine.2               Ochs filed a grievance,
    asking to be released to the general inmate population or transferred to
    the Iowa State Penitentiary.             At a March 3 classification review hearing,
    Ochs stated that he is a "Neo-Nazi skinhead" who advocates white separatism
    and shaves his head to show his beliefs.                  He did not claim that his
    separatist views were religiously motivated.             He was told that he would not
    be released from segregated status until his hair grew long enough to cover
    his shaved head.            On March 22, Ochs was transferred to Iowa State
    Penitentiary.       Two months later, he filed this damage action.
    II.
    Ochs first argues that IMR officials violated his First Amendment
    right to the free exercise of religion when they refused his request that
    he be assigned only caucasian cellmates.                  At trial, Warden Thalacker
    testified that it was IMR's policy not to racially segregate inmates
    because      segregation    would    foster    gang    activity   and   escalate   racial
    tensions, and because it would be very difficult to accommodate inmates'
    various preferences.        The district court credited Thalacker's testimony and
    concluded that this policy did not violate Ochs's First Amendment rights.
    RFRA provides:      "Government shall not substantially burden a person's
    exercise of religion [unless] application of the burden to the person (1)
    is in furtherance of a compelling governmental interest; and (2) is the
    least       restrictive    means    of    furthering   that   compelling   governmental
    interest."        42 U.S.C. §§ 2000bb-1(a) and (b).               RFRA was enacted to
    legislatively overrule Employment Division v. Smith, 
    494 U.S. 872
    (1990),
    and restore the "compelling interest" test of earlier cases.               See 42 U.S.C.
    §§ 2000bb(a)(4) and
    2
    During their week as cellmates, Ochs and McAlpine ignored one
    another.   McAlpine testified that there was tension when they
    shared the cell because Ochs is a racist.
    -3-
    (b)(1).   Congress intended that RFRA apply to prison inmate Free Exercise
    Clause cases.   However, the legislative history urges courts to "continue
    the tradition of giving due deference to the experience and expertise of
    prison and jail administrators in establishing necessary regulations and
    procedures to maintain good order, security and discipline, consistent with
    consideration of costs and limited resources."        S. Rep. No. 111, 103d
    Cong., 1st Sess., at 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1900.
    Under the prior law restored by RFRA, Ochs must first prove that
    prison officials substantially burdened a sincerely held religious belief.
    Iron Eyes v. Henry, 
    907 F.2d 810
    , 813 (8th Cir. 1990).      If he makes that
    showing, the burden on his free exercise of religion must be balanced
    against the penological interest justifying that burden.      Though burdens
    on free exercise may be no greater than necessary to protect the government
    interest, "prison officials ordinarily must have wide latitude within which
    to make appropriate limitations to maintain institutional security."
    Hamilton v. Schriro, 
    74 F.3d 1545
    , 1554 (8th Cir. 1996), applying RFRA,
    Pell v. Procunier, 
    417 U.S. 817
    (1974), and Procunier v. Martinez, 
    416 U.S. 396
    (1974).
    Like the district court, we are skeptical that Ochs's request to be
    racially segregated, first made in the midst of prison racial disturbances,
    reflected a sincerely held religious belief.     See Winters v. Iowa, No. 95-
    723, 
    1996 WL 333156
    (Iowa June 19, 1996), rejecting a similar claim by
    another white separatist inmate at IMR.    Purely secular views or personal
    preferences will not support a Free Exercise Clause claim.         Frazee v.
    Illinois Employment Sec. Dept., 
    489 U.S. 829
    , 833 (1989).        Though Ochs
    testified that he follows the "Church of Jesus Christ Christian," he did
    not explain why this religion suddenly mandated that he no longer share his
    cell with an African-American.   However, we decline to decide the case on
    this ground.    Courts must be cautious in attempting to separate real from
    fictitious religious beliefs.    See Thomas v.
    -4-
    Review Bd. of Ind. Employment Sec. Div., 
    450 U.S. 707
    , 713-16 (1981).             The
    district court did not make a specific finding on this issue, and we held
    in Wiggins v. Sargent, 
    753 F.2d 663
    , 666-67 (8th Cir. 1985), that professed
    Church of Jesus Christ Christian beliefs cannot be dismissed out of hand
    in a Free Exercise Clause case.          See also Murphy v. Missouri Dept. of
    Corrections, 
    814 F.2d 1252
    , 1255-57 (8th Cir. 1987) (total ban on Aryan
    Nation racist literature overbroad); Van Dyke v. Washington, 
    896 F. Supp. 183
    , 187 (C.D. Ill. 1995).
    We also question whether IMR officials "substantially burdened" a
    sincere religious belief, a RFRA term discussed at some length in Young v.
    Crystal Evangelical Free Church, 
    82 F.3d 1407
    , 1418 (8th Cir. 1996).
    RFRA's legislative history urges courts to weed out "false religious claims
    that are actually attempts to gain special privileges or to disrupt prison
    life."      S. Rep. No. 111, 1993 U.S.C.C.A.N. at 1900.               Ochs claims a
    "religious" mandate directed at an entirely secular aspect of life, the
    race of his cellmate.    Inmates could similarly claim religious preferences
    for the timing of meals, the number of showers, the television programs and
    movies to be viewed, or most any other aspect of prison life.           In Green v.
    White, 
    525 F. Supp. 81
    (E.D. Mo. 1981), aff'd, 
    693 F.2d 45
    (8th Cir. 1982),
    cert. denied, 
    462 U.S. 1111
    (1983), for example, free exercise claims were
    made for conjugal visits, banquets, and payment for services as chaplain.
    The district court rejected those claims, we affirmed, and Green was cited
    favorably in the RFRA legislative history.             See S. Rep. No. 111, 1993
    U.S.C.C.A.N. at 1901 n.30.
    We note these threshold RFRA issues but do not decide them.            Rather,
    we hold that IMR officials properly rejected Ochs's request            for racially
    segregated    living   quarters   even   if    that   substantially    burdened   his
    sincerely held religious beliefs.        IMR's decision was made to further the
    most compelling governmental interest in a prison setting, institutional
    security.    IMR policy makers believe
    -5-
    that random cell assignments lessen racial tensions and promote security,
    and that no less restrictive policy can meet their security objectives,
    particularly at a time of racial tension like February and March of 1994.
    We must give great deference to these penological judgments regarding
    security.        See Bell v. Wolfish, 
    441 U.S. 520
    , 550-51 & n.32 (1979);
    
    Hamilton, 74 F.3d at 1554
    .             Thus, while Ochs argues that it would be
    relatively easy for IMR to quietly accommodate the requests of a few white
    racists,    we    may   not   ignore   defendants'   response   that   allowing   such
    3
    exceptions would create serious administrative and security problems.                 In
    these circumstances, we affirm the dismissal of this claim.
    III.
    Ochs next argues that IMR officials violated his First Amendment and
    Due Process rights when they segregated him from the general inmate
    population as punishment for his request for white cellmates.            The district
    court rejected this claim because it found that IMR officials segregated
    Ochs not to punish him, but to protect him and others because he had
    identified himself as a racist at a time of racial tensions in the prison.
    We agree.
    When IMR officials began to integrate Unit B inmates into the general
    population after the racial disturbances, they segregated Ochs (and four
    others who had expressed similar views) because his blatant racism --
    reflected in the notice of separatist views and
    3
    It is also relevant that Ochs seeks to compel IMR, in the
    name of his religion, to violate the public policy of this country
    against racial segregation. IMR would risk § 1983 litigation if it
    assigned cells based upon inmate racial preferences. Finney v.
    Arkansas Bd. of Correction, 
    505 F.2d 194
    , 209 (8th Cir. 1974). In
    our pluralistic society, Ochs is free to hold beliefs, including
    religious beliefs, that are contrary to public policy or the
    majority's views. But he should not be permitted to compel prison
    administrators to accommodate those beliefs through secular actions
    that would put the prison in conflict with federal and state laws
    and policies.
    -6-
    his shaved head -- made him a risk to prison security, and because they
    were still investigating whether Ochs had played any role in the recent
    disturbances.      At the March 3 review hearing, Ochs admitted to being a Neo-
    Nazi.       Accordingly, IMR officials kept him segregated until he could be
    transferred to another prison.
    Ochs argues that the district court's finding that he publicly
    espoused his racism is clearly erroneous because he did not publicize his
    request for white cellmates to other inmates.       But Ochs's shaved head and
    blatantly racist comments at the review hearing justified defendants'
    belief that his immediate release into the general prison population after
    two racial disturbances would create an unacceptable security risk.        Ochs
    had no First Amendment right to flaunt beliefs that jeopardized prison
    security.      See Leonard v. Nix, 
    55 F.3d 370
    , 374-75 (8th Cir. 1995).   Thus,
    he failed to prove that the defendants' motive in placing him in segregated
    status was punishment or impermissible retaliation.        See Goff v. Burton,
    
    7 F.3d 734
    , 737 (8th Cir. 1993), cert. denied, 
    114 S. Ct. 2684
    (1994).4
    IV.
    Finally, Ochs argues that defendants violated his Eighth Amendment
    rights when they were deliberately indifferent to his serious medical need
    for protection from metal handcuffs.      See generally Estelle v. Gamble, 
    429 U.S. 97
    , 104 (1976).       Following the racial disturbances, Ochs and other
    inmates were taken to the shower in handcuffs.         Because of his allergy
    condition, IMR Health Services had issued Ochs stockinettes to protect his
    wrists when handcuffed.       However, the stockinettes were lost, and two or
    three
    4
    It is not clear whether Ochs intended to raise a separate due
    process claim regarding his segregation.      If so, it is without
    merit, because his administrative segregation was not "the type of
    atypical, significant deprivation" to which due process protections
    attach under Sandin v. Conner, 
    115 S. Ct. 2293
    , 2301-02 (1995).
    -7-
    times during the Unit B lockdown, Ochs walked to the shower in handcuffs
    without protection for his wrists.     He developed a skin rash that itched
    but was not painful.    Warden Thalacker told Ochs to notify the nurse of
    this problem.    When he did so four or five days later, he received new
    stockinettes to protect his wrists.
    We agree with the district court that Ochs failed to prove a "serious
    medical need."   IMR Health Services diagnosed Ochs's allergy and provided
    him   with stockinettes to protect his wrists while handcuffed.          The
    stockinettes were missing when Ochs needed to be handcuffed during a
    lockdown.   As a result, Ochs experienced mild discomfort from two or three
    brief exposures to metal handcuffs.    He was issued new stockinettes as soon
    as he requested help from a medical professional.    In these circumstances,
    Ochs has not established that IMR officials "ignored an acute or escalating
    situation involving a serious medical condition."      Givens v. Jones, 
    900 F.2d 1229
    , 1233 (8th Cir. 1990); see also Beyerbach v. Sears, 
    49 F.3d 1324
    ,
    1326 (8th Cir. 1995).
    The judgement of the district court is affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -8-
    

Document Info

Docket Number: 95-2314

Citation Numbers: 90 F.3d 293

Judges: Fagg, Bowman, Loken

Filed Date: 7/22/1996

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (17)

johnny-clint-wiggins-james-martin-garner-and-edward-eugene-little-v , 753 F.2d 663 ( 1985 )

clovis-carl-green-jr-on-behalf-of-himself-and-all-other-inmates-similarly , 693 F.2d 45 ( 1982 )

Sandin v. Conner , 115 S. Ct. 2293 ( 1995 )

Employment Div., Dept. of Human Resources of Ore. v. Smith , 110 S. Ct. 1595 ( 1990 )

Bell v. Wolfish , 99 S. Ct. 1861 ( 1979 )

Estelle v. Gamble , 97 S. Ct. 285 ( 1976 )

robert-iron-eyes-v-dan-henry-assistant-superintendent-individually-and , 907 F.2d 810 ( 1990 )

mark-juan-hamilton-united-states-of-america-intervenor-v-dora-schriro , 74 F.3d 1545 ( 1996 )

Larry Beyerbach v. Hobert Sears, Co II Melvin H. Smith ... , 49 F.3d 1324 ( 1995 )

Stephen C. Leonard v. Crispus C. Nix , 55 F.3d 370 ( 1995 )

Van Dyke v. Washington , 896 F. Supp. 183 ( 1995 )

Pell v. Procunier , 94 S. Ct. 2800 ( 1974 )

Thomas v. Review Board of the Indiana Employment Security ... , 101 S. Ct. 1425 ( 1981 )

Frazee v. Illinois Department of Employment Security , 109 S. Ct. 1514 ( 1989 )

David Wayne Givens v. Jimmy Jones, Terry Morris, Zak A. ... , 900 F.2d 1229 ( 1990 )

robert-finney-v-arkansas-board-of-correction-and-terrell-don-hutto-james , 505 F.2d 194 ( 1974 )

michael-murphy-ron-seiter-sammy-barnard-gary-niswonger-similarly , 814 F.2d 1252 ( 1987 )

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