Meir Kahane, Plaintiff-Petitioner-Appellee v. Norman Carlson, Director of the Federal Bureau of Prisons, Defendants-Respondents-Appellants , 527 F.2d 492 ( 1975 )

J. JOSEPH SMITH, Circuit Judge:

In 1971, appellant Kahane, an orthodox Jewish rabbi, was sentenced in the Eastern District of New York to imprisonment and fine for conspiracy to violate the federal Firearms Act. 18 U.S.C. § 371. However, the sentence of imprisonment was suspended by the court, and Kahane was placed on probation. Kahane and his family had made their home in the Eastern District for many years prior to his conviction. While Kahane was on probation, they had removed to Israel with the permission of the court and Kahane had become a candidate for election to the Knesset, the Israeli Parliament. Kahane subsequently admitted to violating the terms of his probation. His probation was accordingly revoked, but his sentence of imprisonment was reduced to a term of one year. Kahane then sought, by several forms of action in the Eastern District of New York, orders requiring the prison administrators to conform the conditions of his incarceration to his religious beliefs concerning diet and prayer. The court, Jack B. Weinstein, Judge, found jurisdiction and venue in the Eastern District of New York and granted Kahane relief in the nature of mandamus.

We conclude that jurisdiction and venue were properly found by the district court in the instant action, that a need for relief was shown, but that the relief granted by the court was somewhat broader than required. We therefore modify the order and, as modified, affirm.

Jurisdiction in the court below was founded upon the mandamus power provided by 28 U.S.C. § 1361:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

The United States contends however that, even though mandamus jurisdiction exists generally in the district courts, venue does not properly lie in the Eastern District of New York for this particular mandamus action.¹

28 U.S.C. § 1391(e) governs venue in mandamus cases.² According to the government, neither the prisoner’s present or contemplated place of incarceration, nor the residence of any respondent was in the Eastern District. No real property is involved in the instant action nor could the cause of action regarding deprivation of kosher diet be said to have arisen in the Eastern District. Finally, the government maintains, plaintiff’s residence is not in the Eastern District of. New York. With this last assertion, we disagree.

The parties agree that the case does not qualify under subdivisions (1) and (3) of § 1391(e). We need not pass upon Kahane’s contention that venue can be sustained under subdivision (2) since the circumstances do qualify the case under § 1391(e)(4), which establishes mandamus venue in the district of the plaintiff’s residence. To be sure, residence for the purposes of § 1391 is often interpreted as equivalent to domicile, and there are some indications that Kahane has changed his domicile from the Eastern District of New York. 1 J. Moore, Federal Practice 10.142[5.1-1, 5.1-2, 7]; Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972); Ott v. United States Board of Parole, 324 F.Supp. 1034, 1037 (W.D.Mo.1971).

After his sentencing, Kahane moved to Israel with his family and ran for office there. Under ordinary circumstances that would be strong support for a finding of Israeli domicile. At the time of his conviction and sentence, however, he was a long-time resident of the Eastern District and was under active probation supervision there, a probation which he violated. Under these circumstances we hold that, until he had successfully completed probation and had been released from supervision, Kahane should have been considered a resident of the Eastern District for the purpose of venue, entitled to turn to the court for that district.

Venue is a doctrine of convenience of the forum. Denver & R. G. W. R. R. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 560, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967); Rutland Ry. v. Brotherhood of Locomotive Engineers, 307 F.2d 21, 29 (2d Cir. 1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963); Penrod Drilling Co. v. Johnson, 414 F.2d 1217 (5th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 495 (1970). Domicile is usually the best measure of that convenience since removal, with intent to relinquish personal ties to the old home and remain indefinitely at the new, is the handiest dividing line in measuring relative convenience of the forum. Here, however, continuing probation obligations to the court of the Eastern District made it more sensible to consider that district as Kahane’s residence for the purposes of the venue statute. Because of the unusual circumstances here — Kahane’s long-time residence in the Eastern District combined with his probation obligations to the court of that district — we conclude that venue was properly laid in the Eastern District of New York.³

We therefore reach the merits of the matter.

It is by now quite well established that, while prisoners in penal institutions are subject to restrictions on their freedoms,⁴ the restrictions are not without limit. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Where they operate on fundamental rights such as the freedom of worship, the degree of restriction must be only that which can be justified by an “important or substantial government interest” in the restriction by the penal institution.⁵ Id. at 413, 94 S.Ct. 1800.⁶

The courts have properly recognized that prison authorities must accommodate the right of prisoners to receive diets consistent with their religious scruples. Chapman v. Kleindienst, 507 F.2d 1246, 1251 (7th Cir. 1974); Ross v. Blackledge, 477 F.2d 616 (4th Cir. 1973); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969).

Their [Muslims’] request for “one full-course pork-free diet once a day and coffee three times daily” is essentially a plea for a modest degree of official deference to their religious obligations. Certainly if this concession is feasible from the standpoint of prison management, it represents the bare minimum that jail authorities, with or without specific request, are constitutionally required to do, not only for Muslims but indeed for any group of inmates with religious restrictions on diet.

Barnett v. Rodgers, supra at 1001.

The evidence in this case justifies the court’s finding of the deep religious significance to a practising orthodox Jew (which this prisoner concededly is) of the laws of Kashruth. The dietary laws are an important, integral part of the covenant between the Jewish people and the God of Israel.

The district court on the evidence before it was thoroughly justified in its finding of the religious importance to the prisoner of the Jewish dietary rules. We agree with the court below that the prison authorities are proscribed by the constitutional status of religious freedom from managing the institution in a manner which unnecessarily prevents Kahane’s observance of his dietary obligations. The difficulties for the prisons inherent in this rule would seem surmountable in view of the small number of practising orthodox Jews in federal prisons (which the evidence indicated would not exceed approximately twelve), and in view of the fact that state and city prisons provide kosher food, that federal institutions do so on high holidays and that medical diets are not unknown in the federal system.

The order under review indicates that there are several means within the reach of the respondents by which Kahane’s rights may be respected. Some of these means, such as methods for self-preparation of vegetables and fruits, are suggested by respondents themselves. Provision of tinned fish, boiled eggs and cheese may be made from regular institution supplies. The language of the opinion incorporated in the order⁷ may be interpreted to require hot kosher TV dinners. If these are merely suggested methods, we find no fault with them. If, however, the order requires implementation of each and every one of these methods, it would go further than necessary to reach the required result. Such details are best left to the prison’s management which can provide from the food supplies available within budgetary limitations. Prison authorities have reasonable discretion in selecting the means by which prisoners’ rights are effectuated. See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Shakur v. Malcolm, 525 F.2d 1144, 1148, n. 3 (2d Cir. 1975).

The use of frozen, prepared foods, while perhaps helpful, is not constitutionally required if another acceptable means of keeping kosher is provided. We therefore modify the order to require the provision of a diet sufficient to sustain the prisoner in good health without violating the Jewish dietary laws, without otherwise mandating specific items of diet. As so modified, the order is affirmed.

Mandate may issue forthwith.

1 . Our Brother Friendly, in his concurring opinion, argues that mandamus under § 1361 is inappropriate for cases such as this because prisoners who reside in states far removed from the site of their incarceration will be able to bring suit over prison conditions in their home states, causing great inconvenience to all concerned. We simply note that 28 U.S.C. § 1404(a) gives the district judge very broad discretion to remove the prisoner’s cause of action to another judicial district. If the district of the prisoner’s residence is an inconvenient location for the mandamus action, § 1404(a) authorizes a shift of the lawsuit to the district of incarceration. Several other circuits have granted § 1361 relief against prison officials, see, e. g., Taylor v. Blackwell, 418 F.2d 199 (5th Cir. 1969); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969); Long v. Parker, 390 F.2d 816 (3d Cir. 1968), vacated and remanded on other grounds, 384 U.S. 32, 86 S.Ct. 1285, 16 L.Ed.2d 333 (1969); Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966). Indeed, the present action is a more appealing candidate for mandamus than those earlier cases, since Kahane is in effect challenging a nationwide policy of the Bureau of Prisons rather than the conditions of confinement in a single penitentiary.

2 . 28 U.S.C. § 1391(e) provides:

A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.

3 . Venue was broadened generally in mandamus actions against federal agencies to end concentration of actions in the District of Columbia and inconvenience to petitioners in the many distant districts in which the agencies operate. The Congress might well, however, consider narrowing the provisions for cases such as this which seek to affect the conduct of fixed institutions to the districts in which the institutions lie. See Coleman, J., dissenting in Ellingburg v. Connett, 457 F.2d 240 (5th Cir. 1972).

4 . We start with the familiar proposition that “[1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). See also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 3 L.Ed.2d 263 (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.

Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).

5 . When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969).

Procunier v. Martinez, supra, 416 U.S. at 405-06, 94 S.Ct. at 1807.

6 . Because we hold that the denial of kosher food is not justified by any “important or substantial government interest,” we need not decide whether restrictions on prisoners’ First Amendment rights need be justified by an “important or substantial government interest” or by the more stringent demands of a “compelling government interest.” This court expressly adopted the “compelling interest” formula in Goodwin v. Oswald, 462 F.2d 1237, 1244 (2 Cir. 1972). However, subsequent Supreme Court decisions, see Procunier v. Martinez, supra, use the language of an “important or substantial interest.” Under that latter test, the government must presumably sustain a lesser burden in justifying restrictions on prisoners’ rights. Because we hold that the denial of kosher food is unconstitutional using the standard more favorable to the government, we need not decide whether the more stringent “compelling interest” test is the one which is ultimately controlling.

7 . The relevant portion of Judge Weinstein’s order reads a follows:

Under the precedents established by the Muslim dietary cases, at a minimum federal prisons must provide dietary alternatives to Jewish prisoners observing dietary laws that would not violate kosher requirements — for example, certain fruits, acceptable breads, cheeses, tinned fish, boiled eggs and vegetables, supplemented by hot kosher precooked frozen meals.

App. at 198-99.