The opinion of the court was delivered by: HANNUM
Initially, the Court notes that the plaintiff has essentially requested the alternate relief earlier related. Because of the operation of Pa.Cons.Stat.Ann. tit. 42, § 9762 and because the plaintiff was sentenced to serve a period of incarceration in excess of five (5) years, one of the alternate requests for relief is wholly unavailable. Pa.Cons.Stat.Ann. tit. 42 § 9762 provides as follows:
All persons sentenced to total or partial confinement for:
(1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement....
The plaintiff's maximum term exceeds five years and, accordingly, the state Bureau of Corrections and not the County of Philadelphia prisons has jurisdiction. The requested relief of continued maintenance in a county facility is thus wholly unavailable to the plaintiff. The Court will direct its attention to a determination concerning the plaintiff's entitlement, if any, to a special and allegedly religious diet while incarcerated at a state prison facility such as Graterford.
As respects the merits of the plaintiff's application for relief requested and thus narrowed, the Court is confronted with an inquiry that involves several interrelated issues. First and foremost, the Court must determine whether MOVE may be classified as a "religion" within the purview of the first amendment and thus entitled to first amendment protections. In this regard, the Court notes that the plaintiff has raised the Eighth Amendment for the first time in his Memorandum. See Docket Entry No. 11, page 7. The underlying basis for its assertion are first amendment arguments and this will be the scope of the Court's inquiry. Second and closely related to the first level of inquiry, the Court must determine whether the first amendment envisions the relief requested by the plaintiff in his application. In essence, whether the first amendment by its operation requires state prison officials to affirmatively provide to the plaintiff his special and allegedly religious diet or does the first amendment merely require the defendants not to preclude others from supplying to the plaintiff his dietary staples. Finally and of course depending upon the resolution pertaining to the first two (2) levels of inquiry, the Court must determine whether a legitimate and reasonably exercised penological interest outweighs any infringement upon the plaintiff's purported first amendment protections.
The Court will first discuss the question whether MOVE may be classified as a "religion" within the purview of the first amendment. Before undertaking this discussion, however, it must be noted that no case has been cited by the parties nor revealed by the Court's research in which the present issue has been decided. Accordingly, a definitional approach to the inquiry must be utilized. As the district court stated in Malnak v. Yogi, 440 F. Supp. 1284, 1315 (D.N.J.1977), aff'd per curiam, 592 F.2d 197 (3d Cir. 1979):
When courts are faced with forms of the press or forms of religion unknown in prior decisional law, they must look to the prior interpretations of the constitutional provisions for guidance as to the substantive characteristics of theories or practices which have been found to constitute religion under the first amendment.
As earlier related, the threshold issue concerns "whether the beliefs professed are sincerely held and whether they are, in their own scheme of things, religious." United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733 (1964). See also Theriault v. Carlson, 495 F.2d 390, 395 (5th Cir. 1974). The subjective characterization of the proponent may be considered in this regard but it is not, of course, determinative. See Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970); Malnak v. Yogi, supra at 1314 & 1319. Rather, the inherently vague definitional approach cogently provided in Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) by Judge Adams in his concurring opinion will be referenced.
The Court finds that the plaintiff has failed to satisfy the first level of inquiry; that is, the Court finds that MOVE is not a religion within the purview and definition of the first amendment. In essence, the Court finds that MOVE is merely a quasi-back-to-nature social movement of limited proportion and with an admittedly revolutionary design. See Notes of Testimony, pages 43-47. In this regard, the Court notes that the plaintiff's testimony revealed only that MOVE was concerned with concepts of health and a return to simplistic living. Its precepts are concerned only with a social philosophy and thus quite apart from a religion within the purview of the first amendment. While MOVE members may respect and respond to religious concepts, these concepts are not subsumed by the MOVE ideology. Rather MOVE exists, as do virtually all other organizations in our society, independent of religion and with separate and distinct purposes while still respecting and abiding by external religious principles. See Notes of Testimony, pages 39-74. As a consequence, the Court finds that MOVE, and more particularly the plaintiff, are not entitled to the first amendment protections and rights respecting the exercise of religion.
Notwithstanding the Court's ruling that MOVE is not a "religion" within the purview of the first amendment, several matters may be additionally addressed for the sake of practicality. Of course, it will be assumed arguendo for the purpose of addressing these additional points that the Court determined MOVE to be a religion. First and as respects the second level of inquiry earlier related, the Court does not find persuasive the plaintiff's assertion that the state prison authorities have the affirmative duty to provide the plaintiff his dietary requisites. In Cruz v. Beto, 405 U.S. 319, 323, 92 S. Ct. 1079, 1082, 31 L. Ed. 2d 263 (1972), Chief Justice Burger stated the following in a concurring opinion:
There cannot possibly be any constitutional or legal requirement that the government provide materials for every religion and sect practiced in this diverse country. At most, Buddhist materials cannot be ...