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Africa v. Commonwealth of Pennsylvania Leroy S. Zimmerman Bureau of Corrections Ronald Marks

decided: October 30, 1981.



Before Seitz, Chief Judge, and Van Dusen and Adams, Circuit Judges.

Author: Adams


Frank Africa, who claims to be a "Naturalist Minister" for the MOVE organization and who is a prisoner of the Commonwealth of Pennsylvania, appeals from a district court judgment holding that the state government is not required, under the religion clauses of the first amendment, to provide him with a special diet consisting entirely of raw foods. He maintains that to eat anything other than raw foods would be a violation of his "religion." After a careful consideration of the record in this case, we affirm.


On July 15, 1981, Frank Africa was convicted of various state offenses by a Pennsylvania court and was sentenced to serve a term of up to seven years at the State Correctional Institution at Graterford, Pennsylvania. Prior to his sentence, Africa had been incarcerated in Holmesburg Prison, a facility under the jurisdiction of Philadelphia County. While at Holmesburg, Africa requested and received a special diet of uncooked vegetables and fruits.

Africa filed a motion for a temporary restraining order in federal district court on July 16, 1981, seeking an order either that he remain in Holmesburg for the duration of his sentence or that Graterford, upon his transfer there, be required to provide him with his dietary needs. In his pleading for relief, Africa averred that, as a Naturalist Minister for MOVE, "I eat an all raw food diet in accordance with my Religious principle. To eat anything else ... would be a direct violation of my Religion and I will not violate my Religion for anyone."*fn1 Africa's motion was assigned to Judge Hannum, who classified the matter as a civil rights action under 42 U.S.C. ยง 1983.

State authorities transferred Africa from Holmesburg to Graterford on July 17, 1981. Later that same day, at Judge Hannum's request, the Common Pleas Court of Philadelphia entered an order directing that Africa be returned to Holmesburg pending resolution of his request for injunctive relief. Pursuant to that order, Africa was sent back to Holmesburg on July 20 and his special diet was restored.

On July 27, 1981, the district court conducted a hearing on Africa's motion, which was treated as an application for a permanent injunction, and received testimony from Africa himself, Ramona Johnson, a "supporter" of MOVE, and Julius T. Cuyler, the superintendent of Graterford. At the hearing, Africa acted pro se and was questioned directly by the court. Judge Hannum sought to determine, among other things, whether Africa's diet was mandated by his "religion," and, if so, whether the Commonwealth could demonstrate a compelling interest sufficient to infringe upon Africa's dietary practices. Because our disposition of Africa's appeal depends so heavily upon the particular facts of this case, it will be necessary to set forth in some detail the evidence introduced in the proceeding below.

Based on Africa's testimony and on materials he provided the district court, MOVE is a "revolutionary" organization "absolutely opposed to all that is wrong." MOVE was founded, although the record does not reveal when, by John Africa, who serves as the group's revered "coordinator" and whose teachings Frank Africa and his fellow "family" members follow. MOVE has no governing body or official hierarchy; instead, because "everything is level" and "there are no ups or downs," all MOVE members, including John Africa, occupy an equivalent position within the organization. In fact, MOVE really has only "one member, one family, one body" since, according to Frank Africa, to talk to an individual MOVE "disciple" is to "talk to everybody."

Africa also summarized what he believed to be the tenets that defined the MOVE organization. MOVE's goals, he asserted, are "to bring about absolute peace, ... to stop violence altogether, to put a stop to all that is corrupt." Toward this end, Africa and other MOVE adherents are committed to a "natural," "moving," "active," and "generating" way of life. By contrast, what they alternatively refer to as "this system" or "civilization" is "degenerating": its air and water are "perverted"; its food, education, and governments are "artificial"; its words are "gibberish." Members of MOVE shun matters "systematic" and "hazardous"; they believe in "using things (but) not misusing things." Thus, according to Africa:

the air is first, but pollution is second. Water is first, but poison is second. The food is first, but the chemicals that hurt the food are second.... We believe in the first education, the first government, the first law.... This is the perception that John Africa has given us. The water's existence is to be drunk and not poisoned, the air's presence is to be breathed and not polluted, the food's purpose is to be eaten and not distorted. The abuse that life suffers MOVE suffers the same.

MOVE endorses no existing regime or lifestyle; it yields to none in its uncompromising condemnation of a society that it views as "impure," "unoriginal," and "blemished."

According to Africa, MOVE is a religion. In fact, he insists that "just as there is no comparison between the sun's perfection and the lightbulb's failure, there is no comparison between the absolute necessity of our belief and this system's interpretation of religion." Africa testified that MOVE members participate in no distinct "ceremonies" or "rituals"; instead, every act of life itself is invested with religious meaning and significance. In his words:

We are practicing our religious beliefs all the time: when I run, when I put information out like I am doing now, when I eat, when I breathe. All of these things are in accordance to our religious belief.... We don't take a date out of the week to practice our religion and leave the other days and say that we are not going to practice our religion ... It is not a one-day thing or a once-a-week thing or a monthly thing. It doesn't have anything to do with time. Our religion is constant. It is as constant as breathing.... Every time a MOVE person opens their mouth, according to the way we believe, according to the way we do things, we are holding church.

Similarly, Africa contends that, since no one day is any more special than another, for MOVE members every day of the year can be considered a religious "holiday."

Africa did not provide the district court with any purportedly official guidelines setting forth MOVE's religious credo. He did submit, however, a document, which he apparently authored, entitled Brief to Define the Importance of MOVE's Religious Diet. That document, which Africa asserts is wholly consonant with the teachings of John Africa, sets forth an elaborate explanation of the MOVE philosophical framework and consequently constitutes extremely pertinent evidence for purposes of assessing the nature of the organization. In the Brief, Africa contends that "while religion is seen as a way of life, our religion is simply the way of life, as our religion in fact is life." Individuals who subscribe to the MOVE ideology must live in harmony with what is natural, or untainted:

Water is raw, which makes it pure, which means it is innocent, trustworthy, and safe, which is the same as God.... Our religion is raw, our belief is pure as original, reliable as chemical free water, ... nourishing as the earth's soil that connects ...

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