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MALIK ALLAH v. MENEI

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


February 23, 1994

MINISTER MICHAEL MALIK ALLAH
v.
FATHER FRANCIS MENEI, CHAPLAIN EDWARD NEIDERHEISER

The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

MEMORANDUM AND ORDER

 AND NOW, this 23rd day of February, 1994, upon consideration of Defendants' Renewed Motion for Summary Judgment, it is hereby ORDERED that the defendants' motion is DENIED.

 DISCUSSION

 This action seeks the opportunity to practice the religion of an Islamic sect in a penal institution.

 The pro se *fn1" plaintiff, Minister Michael Malik Allah ("Minister Allah"), is an inmate at the Pennsylvania State Correctional Institution at Graterford ("Graterford"). The defendants are Father Francis Menei ("Father Menei"), Central Administrator of Religion and Family Services for the Pennsylvania Department of Corrections, and Chaplain Edward Neiderheiser ("Chaplain Neiderheiser"), Graterford's Institutional Chaplaincy Programs Director. Compl. p. 3.

 I. BACKGROUND

 On June 15, 1993, Minister Allah, as a representative of twenty-four (24) Graterford inmates, submitted a memorandum style letter (the "Memorandum") to William R. Winder, a Graterford Deputy Superintendent. Compl., Ex. Mem. Letter to William Winder (June 15, 1993). The Memorandum sought the establishment of "a religious organization under Muhammads [sic] Temple of Islam faith within this institution." Id. The Memorandum, which was attached to the instant Complaint, requested that the members of Muhammad's Temple of Islam (the "Temple of Islam") be afforded opportunities to practice their faith separate from, but consistent with, the opportunities offered Graterford's other religious communities, including the Nation of Islam. Id. Specifically, the Memorandum requested supplies *fn2" and "approval for the attendance of a spiritual leader (Minister) from the outside community during Friday service and the community nights here at the institution." *fn3" Id. at 2. Minister Allah identified Minister Al Muntaquin Ali ("Minister Ali") as a leader of the Temple of Islam from the outside community. Id. at 4; Pl.'s letter to the court (docketed as Document 10). The Memorandum sets forth a list of the Temple of Islam's practices. *fn4" Id.

 Minister Allah submitted similar written requests to Graterford Deputy Superintendent Thomas Stachelek on June 23 and June 26, 1993. Defs.' Mot. for Summ. J., Ex. E, P. In response to the Memorandum and the requests directed to Deputy Superintendent Stachelek, prison officials informed Minister Allah that prison regulations required him to meet with Chaplain Neiderheiser to review Pennsylvania Department of Correction procedures regarding recognition of faiths that are not well known. Id.

 The operative regulation is Pennsylvania Bureau of Correction BC-ADM 819 Administrative Directive, Religious Activities (the "Religion Directive"). The Religion Directive's stated purpose is to "establish general guidelines for institutional religious activities" and it details prison procedure regarding inmate access to chapel facilities, accoutrements, literature, special foods and religious advisors from the outside community. The Recognition of Faiths section of the Religion Directive provides:

 VIII. RECOGNITION OF FAITHS:

 

A. Requests for recognition of faiths that are not well known will be handled as follows:

 

1. Institutional official will secure information from the recognized outside faith group authority, including publications which describe the goals, beliefs and practices of the group.

 

2. All such information material will be forwarded to the Director of Chaplaincy Services for the Bureau who will determine the authenticity and religious needs of the group.

 Defendants maintain that the plaintiff and his supporters have failed to provide the appropriate prison officials with the information required by the Recognition of Faiths section and, consequently, are not entitled to the recognition and separate privileges they seek. *fn5" See Defs.' Mot. for Summary Judgment p. 5, 8; Defs.' Renewed Mot. for Summ. J. p. 1.

 On September 15, 1993, the plaintiff initiated this action by motion to proceed in forma pauperis.6 On September 20, 1993, the court ordered the Graterford officials responsible for ensuring inmates' rights to undertake a review of the subject matter of the Complaint and file a report with the court within thirty (30) days. Order of September 20, 1993.

 On October 22, 1993, Chaplain Neiderheiser sent a letter to Minister Ali stating that the materials submitted by the plaintiff and his other supporters were insufficient to warrant recognition. The letter further states that the "Department Directives require the following as noted in Father Menei's memo: *fn7"

 

1) Goals, objectives, beliefs of the said faith group.

 

2) Request for recognition by the outside authority of the said faith group.

 

3) Reasons why the religions [sic] needs of the said faith group cannot be satisfied by the already existing Islamic faith groups practicing at SCI Graterford." *fn8"

 Defs.' Mot. for Summ. J. Ex. J.

 On November 3, 1993 the defendants filed the report ordered by the court and an accompanying motion for summary judgment. Defs.' Mot. for Summ. J. In response, the plaintiff filed his Motion in Objection to the Defendant's Summary Judgment Motion. The plaintiff's motion opposing summary judgment contained as an exhibit a November 10, 1993 letter from Minister Ali to Father Menei. That letter outlines the goals and beliefs of the Temple of Islam, requests recognition for the Temple of Islam and expresses why the religious needs of the plaintiff and those he represents cannot be satisfied by existing Graterford faith groups. Pl.'s Mot. in Objection to Defs.' Mot. for Summ. J., Ex. A; Defs.' Renewed Mot. for Summ. J., Ex. B. The plaintiff's objection to summary judgment also contained a twelve (12) point statement subtitled "What the Muslims Believe" and a ten (10) point statement subtitled "What the Muslims Want". Pl.'s Mot. in Objection to Def.s' Mot. for Summ. J., Ex. A2. Upon review of the defendants' report and accompanying motion for summary judgment and the objections of the plaintiff, the court ordered the defendants to prepare a supplemental report. Order of November 22, 1993. During the time allowed for preparation of the supplemental report, the plaintiff, in a paper also signed by Minister Rasul Muhammad Ay, inmate minister of the Nation of Islam, submitted to Graterford officials a list of sixteen (16) differences between the Temple of Islam and the Nation of Islam. Defs.' Mot. for an Enlargement of Time, Ex. A. *fn9"

  The defendants' supplemental report and its accompanying Renewed Motion for Summary Judgment are the subject of this Order. *fn10"

 II. DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT

 The defendants seek judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *fn11" The defendants offer two alternative theories in support of their motion for summary judgment. First, they contend that the plaintiff is not entitled to relief because neither the plaintiff nor his associates have provided Graterford's staff with sufficient documentation to warrant recognition under the Recognition of Faiths section of the Religion Directive. Defs.' Renewed Mot. for Summ. J. p. 1. Second, the defendants argue that, even if the prerequisites of the Religion Directive were satisfied, the plaintiff would not be entitled to recognition and its attendant rights because the "Temple of Islam and the Nation of Islam are religiously identical." Id.

 A

 Because this suit concerns the efficacy of restrictions on the fundamental rights of inmates, the analysis begins with the recognition of the competing interests at stake. Thornburgh v. Abbott, 490 U.S. 401, 407, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989). On the one hand, it is firmly established that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. O'Lone v. Estate Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987); Turner v. Safley, 482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) ("prison walls do not form a barrier separating prison inmates from the protections of the Constitution"). Indeed, the United States Supreme Court insists that "prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 333 (3rd. Cir. 1987) (citing Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)).

 On the other hand, lawful incarceration brings about the necessary withdrawal or limitation of many significant privileges and rights. O'Lone, 482 U.S. at 348; Abbott, 490 U.S. at 407. The considerations underlying our penal system justify this retraction of constitutional rights. Id. Limits on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives -- including deterrence of crime, rehabilitation of prisoners, and institutional security. O'Lone, 482 U.S. at 348.

 The plaintiff's claim alleges the abridgement of two fundamental rights protected by the Religion Clauses of the First Amendment and federal law; (1) the right to exercise one's faith free from undue state interference, and (2) the right to be free from state action that favors one faith over another. Compl. p. 2; U.S. CONST. amend. I; 42 U.S.C. § 2000bb. The defendants cite security risks and costs associated with recognizing the Temple of Islam as an independent faith group as the chief penological interests at stake. Defs. Mot. for Summ. J. p. 9. *fn12" See Defs.' Renewed Mot. for Summ. J.

 B

 The defendants' first argument consists of two propositions: (1) the Recognition of Faiths section of the Religion Directive provides a valid means for resolving the tension between inmate free exercise rights and penological objectives; and, (2) the plaintiff has failed to make an adequate showing of authenticity or religious need as required by the Recognition of Faiths section.

 1

 The defendants assert that the Recognition of Faiths section's requirements strike the appropriate balance between inmate rights and penological objectives. See Mot. for Summ. J. p. 8 (citing, Murphy v. Missouri Dept. of Corrections, 814 F.2d 1252, 1257 (8th Cir. 1987)); Defs.' Renewed Mot. for Summ. J., Neiderheiser Declaration P 4, 7. The essence of the plaintiff's position is that, the defendants' continued claim of non-compliance with the Religion Directive and corresponding refusal of recognition has placed an unlawful hurdle in the path of those wishing to worship under the doctrines of the Temple of Islam. At issue is whether Graterford authorities may deny recognition of the plaintiff's claimed faith group by operation of the Recognition of Faiths section. *fn13"

 Examining whether state action places an impermissible burden in the path of religious exercise requires application of the appropriate standard of review. See e.g., Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d at 337-344 (discussing the "reasonableness" standard in assessing the validity of a prison regulation concerning inmate's abortion rights); Thornburgh v. Abbott, 490 U.S. at 409. The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488, (the "Religious Freedom Act" or the "Act") *fn14" provides the standard of review in controversies involving prison rules that substantially burden prisoners' religious practices. *fn15" 42 U.S.C. § 2000bb.

 The Religious Freedom Act, by its terms, does not affect the Establishment Clause. *fn16" The Act provides, in pertinent part:

  SEC. 3. FREE EXERCISE OF RELIGION PROTECTED.

 

(a) IN GENERAL.--Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

 

(b) EXCEPTION.--Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--

 

(1) is in furtherance of a compelling governmental interest; and

 

(2) is the least restrictive means of furthering that compelling governmental interest.

 42 U.S.C. § 2000bb-1 (emphasis added).

 Prior to the enactment of the Religious Freedom Act, when a prison regulation impinged on an inmate's desire to worship, the regulation was valid so long as it was reasonably related to legitimate penological interests. See e.g., O'Lone, 482 U.S. at 349-350 (refusal to provide inmates with religious services on Friday afternoon was reasonable and therefore constitutional given the penological objectives of security and rehabilitation); Cruz v. Beto, 405 U.S. 319, 320, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Turner, 482 U.S. at 89. *fn17" The O'Lone "reasonableness" standard is different from and less demanding than the standard of review applicable when state action burdens the fundamental rights of the public at large. Compare O'Lone, 482 U.S. at 349 with Sherbert v. Verner, 374 U.S. 398, 406-407, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); Abbott, 490 U.S. at 407, 419 with Brandenburg v. Ohio, 395 U.S. 444, 448-449, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). The defendants, without mention of the Act, seek application of the O'Lone reasonableness standard. Mot. for Summ. J. p. 8 (citing Murphy v. Missouri Dept. of Corrections, 814 F.2d 1252, 1257 (8th Cir. 1987)).

 This is a case of first impression under the Religious Freedom Act. The Act is applicable to actions involving prisoners and supersedes O'Lone.18 S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993); H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993). The Senate Report makes clear Congress' intent that there be one standard for examining claims of substantial government infringement on religious practice. 42 U.S.C. §§ 2000bb(a)(5), 2000bb(b)(1); S. Rep. No. 103-111. The compelling interest test set forth in Sherbert, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790, now controls all controversies involving substantial state burdens on religious practice. 42 U.S.C. § 2000bb-1(b); S. Rep. No. 103-111. Courts must apply this test with regard to the relevant circumstances in each case. *fn19" 42 U.S.C. § 2000bb-1(b); S. Rep. No. 103-111. Specifically, the Act's adoption of the compelling interest test was intended "to restore the traditional protection afforded to prisoners to observe their religions which was weakened by the decision in O'Lone v. Estate of Shabazz." Id.; see also, H.R. Rep. 103-88. The Act rejects the O'Lone reasonableness standard and embraces the compelling interest test as articulated in Weaver v. Jargo, 675 F.2d 116 (6th Cir. 1982). Id., see also, H.R. Rep. 103-88. In Weaver, the Sixth Circuit held:

 

While recognizing that the courts may not substitute their judgments for those of prison administrators in matters of prison procedure and management, it nonetheless remains true that the "asserted justification of such restrictions on religious practices based on the State's interest in maintaining order and discipline must be shown to outweigh the inmates' First Amendment rights," and "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."

 S. Rep. No. 103-111 (citing Weaver, 675 F.2d at 119) (emphasis added).

 Here, the plaintiff claims that his right to practice the religion of his choice has been substantially burdened by the application of the Religion Directive. *fn20" Compl. p. 2. The defendants respond with the bald allegation that the Religion Directive is a valid means of balancing the plaintiff's interest in religious practice with the penological interests at stake. Id.; Mot. for Summ. J. p. 8. While, under the Act, "courts must give due deference to the expertise of prison administrators in establishing necessary regulations and procedures to maintain good order, security and discipline," S. Rep. No. 111, 103rd Cong., 1st Sess. 18 (1993); see also, Turner, 482 U.S. at 84, the defendants' mere assertion of compliance with the Religion Directive, without elaboration concerning the magnitude of the interests involved, *fn21" is insufficient to warrant summary judgment. S. Rep. No. 103-111 (citing Weaver, 675 F.2d at 119). As the Weaver court noted:

 

. . . the state must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health or safety in order to establish that its interests are of the "highest order". *fn22"

 Weaver, 675 F.2d at 119; S. Rep. No. 103-111; see also, Shabazz v. O'Lone, 782 F.2d 416, 420 (3rd Cir. 1986), rev'd, 482 U.S. 342, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987). The current record does not support the conclusion that the application of the Religion Directive in this case is within the bounds established by the Religious Freedom Act.

 2

 Further, the additional proposition that the plaintiff and his associates have not provided the information required under the Recognition of Faiths section does not entitle the defendants to summary judgment. Minister Allah and Minister Ali have provided Graterford officials with numerous documents detailing the goals, beliefs and practices of the Temple of Islam. See, e.g., Pl. Objections to Defs.' Mot. for Summ. J. Ex A, A2; Defs.' Mot. for an Enlargement of Time, Ex. A; Neiderheiser Declaration PP 4-6. The defendants have not established the plaintiff's failure to comply with the requirements of the Recognition of Faiths section. *fn23"

 C

 Defendants also argue that plaintiff is not entitled to the relief sought because his religious needs are met by the Nation of Islam services currently provided. *fn24" Defs.' Renewed Mot for Summ. J. p. 1. The defendants state that an inmate faith group's petition for separate but equivalent facilities may be refused as redundant if prison officials determine that the petitioning faith group is essentially identical to a currently recognized faith group. *fn25" Defs.' Renewed Mot. for Summ. J. p. 1; Neiderheiser Decl. P 8. Here, the defendants assert that the Temple of Islam and the Nation of Islam are religiously identical and, "there is, therefore, no religious need to provide Muhammad's Temple of Islam with meeting time and space, an external advisor, an inmate advisor, etc., separate and apart from that already provided to the Nation of Islam." *fn26" Defs.' Renewed Not. for Summ. J. p. 1; Shamsud-Din Ali Declaration P 2. The defendants' position leaves the plaintiff and other similarly situated members of his faith with one of two choices: either choose to have an outside coordinator and worship services controlled by the Nation of Islam or choose to have no outside coordinator and no group worship services.

 The defendants' position does not entitle them to summary judgment. There is a "long established policy of not picking and choosing among religious beliefs." Welsh v. United States, 398 U.S. 333, 338, 26 L. Ed. 2d 308, 90 S. Ct. 1792 (1970); United States v. Seeger, 380 U.S. 163, 175, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1965); see also Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 593, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989) (government may not convey a message that a particular religious belief is favored or preferred). Moreover, the Establishment Clause *fn27" protects religious practices as well as beliefs. Allegheny County, 492 U.S. at 590. The defendants have not challenged that the plaintiff's beliefs are sincerely held on the present record. See Defs.' Sum. J. Mot. p. 9 n.7. *fn28"

  There is a constitutional difficulty in the state's deciding whether two different religious beliefs are essentially the same. Allegheny County, 492 U.S. at 593. Further, the state may not "promote one religion or religious theory against another or even against the militant opposite." Id. At the very least, the Establishment Clause prohibits government from appearing to take a position on questions of religious belief. *fn29" Id. at 594.

 Government may not favor one legitimate faith group over another or question the rationale of honestly held beliefs. Wallace, 472 U.S. at 53 (citing Everson v. Board of Education, 330 U.S. 1, 15, 91 L. Ed. 711, 67 S. Ct. 504 (1947)); *fn30" United States v. Ballard, 322 U.S. at 86.

 The defendants' position appears to favor the Nation of Islam over the Temple of Islam. The Nation of Islam is a recognized faith group within Graterford. The defendants have thus far barred recognition of the Temple of Islam, a faith group that the plaintiff believes is substantially different from the Nation of Islam. The defendants seem to assert that prison officials may judge whether the plaintiff's honestly believed contentions of difference between his faith and the Nation of Islam are correct. The government has a constitutional obstacle to making any such judgments. Ballard, 322 U.S. 78, 86-87, 88 L. Ed. 1148, 64 S. Ct. 882 (1944); United States v. Seeger, 380 U.S. 163, 184-85, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1965); Lemon v. Kurtzman, 403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 589-94, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989).

 The appropriate balance between religious freedom and orderly prisons cannot be struck on the present record.

 BY THE COURT:

 MARVIN KATZ, J.


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