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AL SHAKIR A.A.A. v. CARLSON (03/22/85)

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


March 22, 1985

AL SHAKIR A.A.A., A/K/A LAVIN, ROBERT B.; JABBAR, SHADID ABDUL, A/K/A ARMOUR, HERSCHEL L.; HAKIM, HAJJ M.M., A/K/A PALMER, ROBERT M.; HAFIZ, SEKOU KHALID A., A/K/A SAFFOLD, ARTHUR; AL QUDDUS, ZAID A.A., A/K/A GREEN, NATHAN L.; ABDUL, MUHAMMAD A.S., A/K/A GLOVER, LAMONT, MUMIT, JIHAD DA'UD, A/K/A BRYANT, DAVID; GHAFFAR, YUSUF ABDUL, A/K/A RONALD COUNTS; ALI, HAKIM A., A/K/A PERRY, CHARLES H.; MALIK, ABDUL, A/K/A FLOYD, LAMONT; RAQIB, BIN YAMIN A., A/K/A SMITH, BENJAMIN; SHA'EED, MUHAMMAD A., A/K/A GRAVES, GREGGORY A.
v.
CARLSON, NORMAN, INDIV. AND AS DIRECTOR OF THE FEDERAL BUREAU OF PRISONS; FENTON, CHARLES E., INDIV. AND AS WARDEN OF LEWISBURG FED. PRISON, JOHNSON, JOHN W., INDIV. AND AS ASSOC. WARDEN OF LEWISBURG FED. PRISON, CAINE, CHARLES, INDIV. AND AS CHAPLAIN AT LEWISBURG FED. PRISON; KASHEEM AAA AL SHAKIR, A/K/A ROBERT B. LAVAN, IMAM HAKIM ABDUL HAMID ALI, A/K/A CHARLES PERRY, IMAM JIHAD DAUD ABDUL MUMIT, A/K/A DAVID BRYANT, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS

Appeal From the United States District Court For the Middle District of Pennsylvania - Scranton, D.C. Civil No. 80-0033, District Judge: Honorable William J. Nealon, Jr.

Author: Hunter

Before: HUNTER, GARTH, and VAN DUSEN, Circuit Judges

MEMORANDUM OPINION OF THE COURT

HUNTER, Circuit Judge:

1. This is an appeal arises from a "Bivens action", see Bivens v. Six Unknown named Agents, 403 U.S. 388 (1971), brought in the United States District Court for the Middle District of pennsylvania by a group of Sunni Muslim inmates of the United States Penitentiary at Lewisburg, seeking damages, declaratory judgment, and injunctive relief for alleged violations by the Pentitentiary of their rights to free exercise of religion under the First Amendment, and to equal protection of the laws under the Fifth Amendment. By order dated may 28, 1981, the district court granted summary judgment to the defendant prison officials on the inmates' free exercise claims. The district court entered final judgment in the case on June 29, 1984. the inmates now appeal the 1981 summary judgment order. We will affirm the judgment of the district court.

2. As members of the Sunni Muslim faith, the appellants are required to perform a ritual called "salat," which consists of reciting prayers while bowing, prostrating oneself, and kneeling, five times daily. The Penitentiary permits performance of salat in individual cells or in the prison chapel, but not in work areas unless the supervising officer determines that it will not interfere with work or pose a security risk. Sunni Muslims are also required to abstain from food and drink from dawn until sunset during Ramadan, a month-long religious festival. In 1979, the Penitentiary provided neither pre-dawn nor post-sunset meals for Muslim inmates during Ramadan. Since 1979, they have provided post-sunset, but not pre-dawn, meals during Ramadan. Applying the decision of this court in St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.) rehearing denied, 634 F.2d 103 (1980), the district court concluded that the Penitentiary's policies with respect to salat and Ramadan do not violate the First Amendment.

3. In St. Claire, we set forth the standard for assessing claims that prison regulations violate the first amendment rights of inmates. If the plaintiff establishes that the regulation in question restricts first amendment rights, the burden shifts to the government to present "evidence that to permit the exercise of first amendment rights would create a potential danger to institutional security. This evidence may consist of expert testimony from the responsible officials, provided they testify to opinions that are 'held sincerely and [are] arguably correct.'" Id. (Supreme Court citations and footnote omitted). Once the government has met its burden, "the courts must defer to the expert testimony of the prison officials unless the prisoner proves by 'substantial evidence. . . that the officials have exaggerated their response' to security considerations." Id. at 115 (Supreme Court citations omitted). See also Dreibelbis v. Marks, 742 F.2d 792, 794 (3d Cir. 1984).

4. In this case, the Penitentiary's policies with respect to salat and Ramadan unquestionably implicate the first amendment rights of the appellants. The government, however, produced affidavits from prison officials to vindicate these policies. An affidavit from Associate Warden James R. Johnson stated that salat is permitted at work "so long as it can be done in a non-disruptive manner." App. at 57. Johnson stated, based on his seventeen years of service with the Bureau of prisons, that a risk of disruption is posed by performance of salat in the Penitentiary's common areas because "outward [religious] displays by inmates, . . . [especially] physical display bringing forth attention" are likely to provoke "verbal abuse [that] could escalate into a subsequent volatile situation." Id. at 56-57. Johnson also stated that "an individual laying, or kneeling, on the floor in work areas" might also cause industrial accidents that could cause injuries to inmates and staff and subject the penitentiary to civil liability. Id. at 56. An affidavit from Warden J.S. Petrovsky stated that in 1979 the Penitentiary suffered from serious understaffing. App. at 45. To have served a special post-sunset meal to Muslim inmates during Ramadan would have required the Penitentiary to divert personnel from other areas to the dining hall, thereby creating a security risk. Id. Petrovsky also stated that the Penitentiary does not serve a pre-dawn meal during Ramadan because to do so would require the staff to selectively rouse the more than 200 Muslim inmates, which could cause disruptions among the non-participating inmates. This, Petrovsky stated, would be "detrimental to the security and orderly running" of the Penitentiary. Id.

5. The district court correctly concluded that the affidavits submitted by Pentitentiary officials contained sincere and "arguably correct," testimony that, under St. Claire, shifted the burden to the appellants to prove that the Penitentiary's responses to the established security risks had been "exaggerated." 634 F.2d at 114-15. Because the appellants did not come forward with any evidence to meet this burden, the district court correctly granted summary judgment to the appellees.

6. The judgment of the district court will therefore be affirmed.

19850322

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