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Higgins v. Burroughs

filed as amended may 11 1987.: April 10, 1987.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. No. 85-3655.

Author: Garth

BEFORE: ADAMS, HIGGINBOTHAM, and GARTH, Circuit Judges; BEFORE: GIBBONS, Chief Judge and HIGGINBOTHAM and GARTH, Circuit Judges.


GARTH, Circuit Judge:

This appeal presents the question as to whether under the standard announced in Shabazz v. O'Lone*fn1, a state prison's regulations which prohibit a prisoner from carrying his rosary beads into the prison visiting area may be sustained. The district court held the regulation valid. We reverse.


William Higgins, a fifty-six year old prisoner serving a long-term sentence for homicide at the State Correctional Institute at Graterford (SCIG), is an observant Catholic who has been carrying rosary beads in his pockets at all times since his teen years, and who believes that he should carry them at all times, including during his term in prison. App. at 64-66. Higgins attended Catholic schools, and he often attends religious services at the prison. Higgins has been carrying rosary beads in his pockets since he first was incarcerated, in 1977. Neither the sincerity of Higgins' beliefs, nor his religious attachment to rosary beads, which are used by practicing Catholics to properly count and sequence prayers, is in dispute.

Higgins states that until June 3, 1985, he carried beads into all areas of the prison, including the visiting area, without difficulty. In October 1984, however, SCIG provided inmates with new trousers to be worn only in the visiting area. These trousers had no pockets into which Higgins could place his beads; he therefore resorted to carrying them in his hands. From October, 1984 until June 3, 1985, Higgins asserts, he carried the beads without incident into the visiting area, in his hands.

When he tried to carry his rosary beads into the visiting area on June 3, 1985, however, he was forbidden from doing so by the first-time enforcement of a standing rule which only permitted "wedding ring, glasses and approved medal[s]" to be brought into the visiting areas. App. at 171. Religious medals, the prison regulations state, are to be "worn", not carried; and they cannot exceed the size of a 50-cent piece. Id.

Deprived of the ability to keep the beads with him in the visiting area Higgins filed a pro se complaint, which protested the infringement of his first amendment rights. SCIG defended its practice by alleging the security considerations dictated the prohibition. SCIG supported this claim by submitting to the court the opinions of two officials from the prison. Based on the facts SCIG presented, the district court granted summary judgment in favor of SCIG and against Higgins.

The district court's opinion purportedly measured the evidence presented by SCIG against the newly minted standard for the accommodation of the religious rights of prisoners set forth in Shabazz v. O'Lone, 782 F.2d 416 (3d Cir.)(in banc), cert. granted, 54 U.S.L.W. 3247, 3257 (U.S. Oct. 14, 1986)(No. 85-1722). It concluded that the record supports SCIG's position that the regulations serve security goals and accommodate prisoners' religious rights. Contrary to the district court, we hold that the Shabazz standard was not met in this case.


In Shabazz, minimum security Muslim prisoners discovered that as a result of new prison security regulations designed to help deal with overcrowding at the prison, some prisoners were denied the right to return from work details at varying distances from the main prison to attend "Jumu'ah," a weekly communal religious service. The prison introduced credible evidence, through experts and experiences prison officials, which indicated that the practice of sending out details of guards to accompany prisoners back from work entailed (1) severe inefficiencies and logistical problems in the allocation of prison resources, with attendant security risks, when guards were detached from normal duties at a period when the prison was seriously overcrowded; and (2) serious rehabilitation goals which would be jeopardized by any of the various alternatives that might be mandated by efforts at "mutual accommodation." Evidence also indicated that many of the requests by prisoners to attend services were made by persons who were insincere in their religious beliefs and who wished only to avoid outside work details. 782 F.2d at 426-29.

The court in Shabazz remanded the proceeding for another hearing after promulgating a new standard designed to accommodate the religious rights of prisoners. It did so because under the earlier standard announced in St. Claire v. Cuyler, 634 F.2d 109 (3d Cir. 1980), a mere declaration by prison officials "that certain religious practices raise potential security concerns [was] sufficient to override a prisoner's first amendment right . . . " Id.

Creating a new, two-part test, the Shabazz court demanded that the State prove "[1] that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and [2] that no reasonable method exists by which appellants' religious rights can be accommodated without creating bona fide security problems." 782 F.2d at 420. Shabazz criticized the older St. Claire standard for failing to place on the state a "burden of showing that bona fide security problems occurred or are likely to arise because of the religious practice at issue." Id. at 419 (emphasis added).

Thus, at least two major differences emerged between the older St. Claire standard and the recently adopted Shabazz standard. One difference emphasized the state's burden of demonstrating that a bona fide security problem existed or was likely to arise. The second difference emphasized that whatever deference must be given to decisions by prison officials in areas concerning prison security, when first amendment values are implicated this deference must be tempered to accommodate free exercise values.

We turn now to the record which SCIG claims meets the tests set by this standard.



In full, the record pertaining to prison security concerns, consists of no more than a two-page affidavit and two pages of dialogue in a deposition of longer length. App. at 12-13, 206-08, 222. Major William Winder, a guard at SCIG, asserted:

Rosary beads do not fall within SCIG's visiting area regulations' definition of approved medal. Rosary beads could be used in the visiting area as a weapon or to hide contraband which would jeopardize the security at SCIG [Graterford].

App. at 13.

The other expression of concern about security was provided in response to questions that were asked of Officer Donald Vaughn, now the Deputy Superintendent for Operations at SCIG. Officer Vaughn touched on the two problems that Winder had alluded to: (1) weapons and (2) contraband. He stated that it was possible for him to envision circumstances in ...

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