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Sutton v. Rasheed

March 19, 2003

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)

Before: Becker, Chief Judge and Scirica, Circuit Judge, and Pollak, District Judge*fn1

The opinion of the court was delivered by: Per Curiam

As amended May 29, 2003.

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)

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

Before: Becker, Chief Judge and Scirica, Circuit Judge, and Pollak, District Judge*fn1

The opinion of the court was delivered by: Per Curiam

PRECEDENTIAL

Argued: March 6, 2002

OPINION OF THE COURT

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, *fn2 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.

We hold that there was a constitutional violation, but because we conclude that defendants are protected by qualified immunity, we will affirm. *fn3

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. *fn4 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 Koran *fn5 or other religious equivalent . . . ." *fn6 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."

The regulations governing the SCI-Camp Hill SMU were modeled on those governing the RHU. *fn7 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. *fn8 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"), *fn9 and religious materials consisting of one personal "Bible, Quran or equivalent only." *fn10 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 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, *fn11 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. *fn12 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 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 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 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 ...


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