Henderson, Titus v. Berge, Gerald

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 14, 2006*
Decided August 3, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2684
TITUS HENDERSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin
v.
No. 04-C-0039-C
MATTHEW J. FRANK and GERALD
A. BERGE, Barbara B. Crabb,
Defendants-Appellees. Chief Judge.
ORDER
Wisconsin inmate Titus Henderson sued his warden and the head of the
Wisconsin prison system under 42 U.S.C. § 1983. He claims that they violated the
Establishment Clause by (1) broadcasting Christian programming on the prison’s
television network and (2) denying him parole and other privileges for not
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2684 Page 2
participating in a Christian behavior-modification program. The district court
dismissed two additional claims for failure to exhaust, a decision that Henderson
does not challenge on appeal, and granted summary judgment in favor of the
defendants on the Establishment Clause claim. We affirm.
Henderson, who is a Taoist, is confined at the Wisconsin Secure Program
Facility (WSPF); the facility employs a five-level security program in which inmates
demonstrating good behavior are promoted to successively higher levels and receive
increased privileges. Henderson entered WSPF at Level 1 and since that time has
periodically moved between Level 1 and Level 3, depending on his behavior.
Henderson was denied parole in December 2003 because he had “major misconduct
difficulties” including a serious battery committed against another inmate. The
parole commissioner noted at the time, however, that Henderson had “successfully
completed all recommended programming, and more.”
WSPF inmates can watch television at various times. Inmates have access to
five video channels and two audio channels from the prison’s satellite-television
provider and six in-house channels. Before March 2004, one of the satellite
channels was the Eternal Word Television Network (“EWTN”), a 24-hour Christian-
oriented channel. On March 1, 2004, WSPF stopped providing EWTN, but
prisoners continued to have access to various religious programs, including Taoism,
on two of the in-house channels. Other channels included CNN News, PBS Local,
and the Discovery Channel. Inmates have no say in the programming choices, but
may change channels or turn off their televisions at any time as they please.
The district court requested that Henderson provide documentary evidence
that he was denied parole for failing to complete a Christian-oriented course of
instruction. Henderson responded by asserting that in addition to being denied
parole, he received negative remarks which prevented both his advancement in the
level system and his transfer to a less-restrictive prison. Henderson did not provide
documentary evidence that these denials resulted from his refusal to submit to
Christian programming.
The district court then applied the three-part test laid out in Lemon v.
Kurtzman, 403 U.S. 602 (1971). Under Lemon, a state action violates the
Establishment Clause if (1) it does not have a secular purpose; (2) its primary effect
is to advance or inhibit religion; or (3) it fosters an excessive entanglement with
religion. Id. at 612-13; see Kaufman v. McCaughtry, 419 F.3d 678, 683 (7th Cir.
2005). The district court determined that in light of the financial constraints of the
facility, the number of channels devoted to non-Christian and non-religious
programming, and each inmate’s ability to change channels or turn off his
television, one could not infer any institutional preference for Christianity.
No. 05-2684 Page 3
On appeal Henderson repeats his argument that as a result of his refusal to
participate in a Christian study program the prison denied him parole and refused
to change his level classification or transfer him to a less-restrictive prison. As the
district court recognized, if the defendants had in fact denied Henderson these
benefits based on his refusal to complete a prescribed course of Christian study,
they would have violated the Establishment Clause. See e.g., Kerr v. Farrey, 95
F.3d 472, 479-80 (7th Cir. 1996) (inmate could not be forced, under threat of being
rated a higher security risk and suffering adverse effects that might affect his
chances for parole, to participate in treatment program referring to “God” in its
treatment approach); Warner v. Orange County Dep’t of Prob., 115 F.3d 1068,
1075-76 (2d Cir. 1996) (government agency could not condition plaintiff’s criminal
probation on his participation in Alcoholics Anonymous program with substantial
religious content).
But Henderson never provided any evidence that he was denied parole,
advancement through the level system, or a transfer for refusing to complete a
behavior modification program. In fact, Henderson’s parole-denial form states that
he was denied parole based on his misconduct in prison. Henderson points to
affidavits from other inmates as support for his claim, but those prisoners state
only that they were offended by the Christian programming because it attempted to
convert viewers to Christianity and disparaged non-Christian religions. The
inmates say nothing about being denied parole, a higher security classification, or
transfer based on their refusal to watch Christian programming.
To the extent that Henderson argues that the defendants favored Christian
views by having previously provided a satellite channel at WSPF devoted
exclusively to Christian programming and not similar channels for other religions,
his claim also fails. Although the Establishment Clause prohibits the government
from favoring one religion over another, see Kaufman, 419 F.3d at 683, that Clause
does not require a prison to provide identical worship opportunities for every
religious sect or group, see Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam);
Young v. Lane, 922 F.2d 370, 377 (7th Cir. 1991). A prison is required only to afford
all prisoners “reasonable opportunities” to exercise their religious freedom. Cruz,
405 U.S. at 322 n.2. WSPF provided non-Christian and non-religious television
programming in addition to the Christian programming. It also provided a variety
of other religious accommodations, including library books related to the Taoist
religion. Further, there is no evidence that WSPF forced or even encouraged
Henderson to watch Christian programming; inmates could change the channel or
turn off their televisions at any time. As a result, WSPF has not violated the
Establishment Clause. See Freedom from Religion Found., Inc. v. McCallum, 324
F.3d 880, 882-83 (7th Cir. 2003) (no violation of Establishment Clause where
inmate could choose between religious-themed or secular halfway house); Tanford v.
Brand, 104 F.3d 982, 985-86 (7th Cir. 1997) (religious invocation at public-
No. 05-2684 Page 4
university graduation ceremony not violation of Establishment Clause because
participants were free to enter or leave at any time).
AFFIRMED.