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April 19, 1971

Perley WILSON,
Arthur T. PRASSE, Commissioner of Correction, Commonwealth of Pennsylvania, Harrisburg, James F. Maroney, Superintendent, Herbert E. Welch, Deputy Supt., and Allyn Sielaff, now Commissioner

Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 This is a prisoner's civil rights action brought by an inmate of the Pennsylvania Western Correctional Institution at Pittsburgh, Pennsylvania. Plaintiff has sued the State Commissioner of Corrections and the Warden and Deputy Warden of the Institution claiming that they have interfered with his religious freedom to worship as a Black Muslim and that they have discriminated against him as a Black Muslim in the prison and thereby have denied him his religious freedom as guaranteed by the First Amendment to the Constitution. The action was brought pursuant to the Civil Rights Act 42 U.S.C. Sections 1981, 1983 and 1985(3), and 28 U.S.C. ยง 1343. The action seeks both injunctive relief and damages. Case was tried to a jury which returned a general verdict for the defendant.

 This case has had a long and checkered history. Plaintiff originally brought his suit in the Middle District of Pennsylvania where the State Commissioner of Corrections had his residence and office. The Middle District transferred the case to the Western District. In the original complaint, plaintiff sought both injunctive relief and damages and demanded a jury trial. He also claimed he had been denied access to the courts. On a Motion to Dismiss by the defendants, this court originally dismissed the complaint. Plaintiff, however, took an appeal to the Court of Appeals for the Third Circuit which reversed ( Wilson v. Prasse, 404 F.2d 1380 (1968), holding that the plaintiff's claims for interference with his religious freedom presented proper issues necessitating a full trial. It was, however, determined that since plaintiff was no longer an inmate at the correctional institution for Western Pennsylvania at Pittsburgh, but instead had been removed to the correctional institution for Eastern Pennsylvania, in the Eastern District, the claim for injunctive relief against the defendants was, therefore, moot. The case was, therefore, processed for trial on the question of damages only, and since plaintiff had demanded a jury trial, was placed upon the jury trial list. While it was there pending, plaintiff was returned to the Western Correctional Institution at Pittsburgh and again renewed his prayer for injunctive relief.

 The court determined that the prayer for injunctive relief would be dealt with by the court following submission of the issues to the jury for an advisory verdict under Rule 39(c) of the Rules of Civil Procedure. To assist the court in determining disposition of the prayer for injunction, six special interrogatories were presented to the jury. Two interrogatories were returned by the jury unanswered in connection with their general verdict. The remainder were answered favorably to the defendants. Plaintiff has moved for new trial claiming various errors in the instructions of the court and that the verdict is against the weight of the evidence. He also claims the court erred in refusing to grant a mistrial as the result of arguments made by the defendant's attorney to the jury concerning the source of damage payments.

 Plaintiff's complaints upon which he grounded his action for deprivation of civil rights were as follows:

1. That he was prevented from corresponding with others of the Black Muslim Faith.
2. He was not permitted to have Black Muslim Ministers visit him in prison and perform services to him as a chaplain.
3. He was not permitted to obtain and wear medals and medallions symbolic of his faith.
4. He was prevented from receiving religious literature. He claimed he could not receive an approved edition of the Koran, "How to Eat to Live", "Muhammad Speaks" and other Black Muslim Publications.
5. That he was prevented from holding religious services with his fellow Black Muslims within the penal institution.
6. That the defendants failed to comply with his requests as to diet with the result that he was compelled to eat pork and foods fried in or otherwise prepared with the essence of pork on them.

 It was conceded by the defendants that the Black Muslim Faith was a religion within the protection of the First Amendment.

 This is another in the growing series of prisoners' civil rights cases complaining that they are deprived of their constitutional rights by prison authorities. Such cases were practically unknown ten years ago and have now reached sizable proportions. It is recognized that prisoners do have freedom of religion and have the rights to exercise other such Federal Constitutional Rights even though they are incarcerated in prisons unless it appears that such exercise interferes with prison discipline and operation. This much has been clear since the decision of the U.S. Supreme Court in Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964). It is undoubtedly true that prison officials have wide authority to exercise disciplinary control over the inmates within their institutions and they have wide discretions in the exercise of this authority. A long series of violent prison riots have taught the courts that we should be hesitant in injecting hampering restrictions upon those who are charged with maintaining order in what is often an explosive situation. It is a question of competition of two competing interests. First, the interest of the Federal Government in seeing to it that all persons are accorded such rights as are proper for the exercise of religious freedom and also the right to access to literature, against the competing right of the states to preserve order and prevent riots in their penal institutions. In this area, the courts have to walk a very tight rope very carefully indeed.

 For us in the Third Circuit, we have guidance of not only Cooper v. Pate, supra, from the U.S. Supreme Court but also the specific guidance of the Court of Appeals of this Circuit which has had occasion to consider the problem at various times. We have Long v. Parker, 390 F.2d 816 (3rd Cir. 1968) which indicates at least as to religious literature the prison officials must prove that the presence of such literature creates a clear and present danger of a breach of security of the prison or discipline or some other substantial interference with the orderly functioning of the institution. See also Gittlemacker v. Prasse, 428 F.2d 1 (3rd Cir. 1970). We further have the very learned and exhaustive decision of Judge Higginbottham in the Eastern District of Pennsylvania in the case of Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969) whose opinion was affirmed by the Court of Appeals for ...

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