The opinion of the court was delivered by: MUIR
Schlesinger filed this action in which he seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 or, in the alternative, an order in the nature of mandamus pursuant to 28 U.S.C. § 1361 alleging that the respondents-defendants have failed to provide him with facilities and food to enable him to observe the Jewish dietary laws. On the same day the petition was filed, Schlesinger filed an application for a temporary restraining order. The petition and the application for a temporary restraining order request the Court to order the respondents-defendants to provide Schlesinger with strictly kosher food or to order his release from confinement. The Court conducted hearings on a daily basis, with the exception of March 25, 1980, from March 24 through March 28, 1980 and on March 31, 1980. Because until 6:40 P.M. on March 28, 1980 the Court was trying a murder case, the hearings on this matter had been sandwiched between the trial of the murder case. Although Schlesinger raises several points, the parties have agreed at this time to consider only his allegations with respect to his inability to observe the Passover holiday which began at sundown March 31, 1980. This opinion will constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).
Schlesinger's claim is based on the First Amendment to the Constitution and on Bureau of Prisons regulations. Specifically, 28 C.F.R. § 547.13(a) (1979) provides that all foods, with the exception of raw eggs, fruits and vegetables, which are provided to inmates who observe the Kashruth Jewish dietary laws shall be certified or deemed acceptable by the Kashruth division of the Union of Orthodox Jewish Congregations of America or any other Jewish agency deemed acceptable by the inmates at the local institution. Title 28 C.F.R. § 547.13(b) (1979) requires the staff to provide proper utensils for the "preparing, storing, serving, and eating (of) Kosher food." In addition, Schlesinger appears to be taking the position that the First Amendment requires that he be given foods which are kosher for Passover according to his interpretation of the Kashruth and that he be provided with utensils and facilities, also kosher to those standards, with which to prepare those foods.
At the hearing the following facts were established. Schlesinger is a devout Jew and a member of the ultra orthodox Satmar Hassidic sect. He strictly adheres to the Kashruth. He genuinely believes that the kitchen facilities at Allenwood are not kosher for Passover. He is able to eat during Passover certain chickens, meats, vegetables and potatoes available to him at Allenwood. There are also at Allenwood shmura matsos which are kosher for Passover and which were purchased by the Bureau of Prisons with funds donated by the Hassidic community. Schlesinger believes, however, that he is unable to prepare those foods in the kosher kitchen at Allenwood because in his view that kitchen is not, and cannot be made, kosher for Passover despite most unusual efforts towards that end on behalf of the staff at Allenwood and the Jewish inmates.
Jewish dietary laws applicable during Passover require that only foods certified kosher for Passover by appropriate Rabbinical authorities be eaten. This requirement is based on the Biblical injunction that during Passover no chometz be eaten. A grossly simplified explanation of chometz is any food containing leavening agents, certain entire groups of food, and in general any food which is not prepared in a manner which assures that no forbidden matter is introduced into the food. In addition, the utensils used to prepare, cook, serve and eat the food must not have been used at any other time of the year. To do so renders them not kosher for Passover. Further, the kitchen itself and equipment such as ranges, sinks and preparation tables must be made kosher for Passover. These dietary laws apply in addition to the usual kosher laws which again, to oversimplify grossly, prohibit the mixing of dairy and meat products as well as the consumption of certain types of food, most familiarly pork products. Consequently, two sets of all utensils, one for dairy and one for meat, are required.
Allenwood Prison Camp attempts to maintain a kosher kitchen. In that kitchen separate ranges, ovens, utensils, and dishes are provided which are only to be used for kosher foods. As of March 28, 1980, three Rabbis had testified at the hearing that as of that time the Allenwood kitchen was not kosher for Passover. Rabbi Jacob T. Hoenig, employed full-time by the Bureau of Prisons and the chief chaplain at the federal Metropolitan Correctional Center, New York, New York, and Rabbi Abraham Yeret, the Jewish chaplain at Allenwood under a contract with the Bureau of Prisons, are satisfied that the kosher for Passover products at Allenwood had been maintained in a kosher manner. In addition, these Rabbis believe that if they could prepare foods themselves at Allenwood the foods would be kosher for Passover. Rabbi Hoenig also believes that Schlesinger is capable of kashering making kosher the range and that if Schlesinger did so Rabbi Hoenig would eat food prepared by Schlesinger on that range during Passover.
Rabbi Hillel Handler, an Hassidic Orthodox Rabbi from New York who toured the Allenwood kitchen on March 27, 1980, is of the opinion that the storage facilities of the kosher foods render them non-kosher. He testified that the kitchen could not be made kosher for Passover in time for the Passover holiday this year.
In accordance with Rabbi Hoenig's instructions, none of the equipment in the kosher kitchen was used for 24 hours before the kashering process began at approximately 6:30 P.M., Saturday, March 29, 1980. All movable equipment in the kosher kitchen, such as preparation tables, was steam cleaned, then cleaned with a cleaning system in which water was under a pressure of 750 p.s.i., sanded by hand, and then scrubbed with kosher cleanser. Watkins tried to heat bricks for the cleansing process to a red hot stage as suggested by Schlesinger but the bricks exploded before reaching that point. After the tables were thoroughly cleansed they were then covered with aluminum foil in accordance with Rabbis Hoenig's and Yeret's instructions.
To kasher the cooking range, Watkins and the inmates took the range apart to the extent that only the frame remained standing. The broiling elements and grill were removed as was the gas line. All of the parts which could be removed were steamed clean and cleaned with kosher oven cleaner. They were then hand scrubbed and scraped with paint scrapers. The high pressure cleaning machine was then used. Two types of blow torches were used in an attempt to get the metal to the point of being red hot, but this was not possible.
The frame was sprayed twice with oven cleaner and was completely cleaned on all sides, as well as the area underneath it. The gas line and all exposed parts of the stove were wrapped in aluminum foil. Watkins purchased grates similar to those used on charcoal grills to place over the grates on the stove because Schlesinger was concerned that the inability to heat the grates to red hot prevented them from being properly kashered. The additional set of grates was to prevent the kosher pots from touching the perhaps non-kosher range.
The pots and pans were steamed clean, washed and scraped. A sledge hammer head was heated for hours in an attempt to get it red hot and then dumped into a large pot containing water in order to kasher the pot. Many new skillets were purchased especially for Passover as were dishes, bowls, and silverware. A number of pieces of preparation equipment were steam cleaned. In addition to the new utensils, last year's Passover utensils which had been sealed in boxes were brought into the kitchen.
The walk-in refrigerator was completely cleaned. That unit measuring 8 feet by 8 feet by 16 feet was emptied of food and cleaned with kosher cleaners and sanded. The shelves in the refrigerator were removed, steam cleaned, and washed with kosher soap. The shelves were then covered with aluminum foil. The kosher for Passover food which had been stored in sealed boxes in a separate part of the food warehouse was placed in the refrigerator. Schlesinger was satisfied that the refrigerator was made kosher for Passover.
To kasher the double stainless steel sink, it was filled to overflowing with boiling water. Heated metal grates were placed in the sinks which caused the water to bubble up over the sides. This was done twice because Schlesinger was not satisfied that when it was first done the water actually boiled over. The sinks were then sanded inside and out. A can of Drano was used in each of the drains. Aluminum foil was then wrapped around the sinks and faucets in accordance with the instructions of Rabbi Hoenig.