April 23, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-1822 

                      RICHARD A. STREET,

                    Plaintiff, Appellant,

                              v.

                 MICHAEL T. MALONEY, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                         

                            Before

                     Breyer, Chief Judge,
                                        
                Selya and Cyr, Circuit Judges.
                                             

                                         

Richard A. Street on brief pro se.
                 
Irene  M.  Carr, Counsel,  Department  of  Correction,  and  Nancy
                                                                  
Ankers  White,  Special  Assistant  Attorney  General,  on  brief  for
         
appellees.

                                         

                                         

          Per Curiam.  Plaintiff-appellant Richard A. Street,
                    

a Massachusetts  prison inmate, appeals the  grant of summary

judgment   in  favor  of  defendant  correctional  officials.

Summary judgment was entered by the district court after this

court upheld the dismissal of certain claims but reversed the

dismissal of plaintiff's  free exercise and equal  protection

claims.  Street v.  Maloney, No. 90-1280, slip op.  (Dec. 29,
                           

1990).  For the reasons that follow, we vacate and remand.

                              I
                               

          Street  is  an adherent  of  a  sect of  the  Hindu

religion  commonly known as Hare Krishna.   He initiated this

action  under 42  U.S.C.    1983  after  prayer beads  and  a

religious  necklace   that  he  had  ordered   in  1988  were

confiscated  by prison  officials.   At the time,  Street was

confined  to the  Departmental  Segregation Unit  (DSU),  the

prison's  highest  security  unit.    His  amended  complaint

charged that defendants Smith,  the prison property  officer,

Captain Gallagher, then administrator of the DSU, Maloney and

Raikey, former and present  prison superintendents, and Hall,

a former deputy  superintendent, were  responsible, in  their

individual  and official  capacities, for  the expropriation.

The  core  of  Street's  complaint  is  that  the  defendants

infringed his  First and Fourteenth Amendment  rights to free

exercise  of  religion and  equal protection  of the  laws by

confiscating the prayer beads and religious necklace while at

the  same time  allowing  Roman Catholic  inmates to  possess

rosary beads and wear crucifixes.1

          On  remand,   the  defendants  moved   for  summary

judgment.   They  argued  that  1)  the confiscation  of  the

plaintiff's  prayer beads  was  justified  because  of  their

"great  potential  as a  dangerous  weapon,"  2) the  unusual

security  risks  posed  by  the prayer  beads  constituted  a

rational basis  for any  difference in treatment  between the

plaintiff and Catholic inmates, 3) the claims against Captain

Gallagher  should  be dismissed  under Fed.  R. Civ.  P. 4(j)

because of failure to  effect service of process, and  4) the

claims against the remaining  defendants should be  dismissed

because  of plaintiff's  failure to  individuate the  claims,

that is,  to allege facts showing  which defendants performed

the acts that purportedly impaired his constitutional rights.

          Defendants'  motion was  supported by  Smith's two-

page  affidavit.  As  the prison property  officer, Smith was

                    

1.   Plaintiff's  amended  complaint  also  alleged  that the
confiscation  was  in contravention  of the  Fourth Amendment
right to be free of unreasonable seizures and  the Fourteenth
Amendment  right to due  process, and that  the processing of
the   incoming   religious   items   violated   institutional
regulations regarding  inmate mail.   Defendants here  assert
that  only plaintiff's free  exercise/equal protection claims
survive  our prior  ruling  in this  case.   We  reject  that
contention.    Our  prior  opinion   explained  that  because
plaintiff's amended complaint was not in the record, we would
not  presume  that  it was  before  the  district court  and,
consequently, we  would not address the  allegations therein.
Thus, plaintiff  remained free to  pursue the above-mentioned
claims on remand.

                             -3-

responsible for handling  all incoming property,  maintaining

records of  cell contents  and contraband, and   transferring

property  to   other  institutions.     Smith  recalled  that

plaintiff's  prayer beads  consisted  of  "approximately  100

beads strung together on a strong  cord and joined to form  a

circle which measured approximately 36 inches, doubled."  The

beads,  he attested, "were a  solid, hard material" and "were

large, approximately 3/4 inch in diameter."  The prayer beads

"did  not  resemble in  any way  the  rosary beads  which are

allowed inside the  institution.  The  rosary beads that  are

allowed  . . . generally consist of very small hollow plastic

beads joined  on a  weak chain  with small,  easily breakable

links."  Based on his experience, Smith felt that plaintiff's

prayer  beads  "posed  a  security risk  to  the  institution

because  of their potential use  as weapons such  as a `sap',

`numchucks', or  as a  `garotte'."2  Finally,  Smith affirmed

that DSU inmates "have  been placed there as a result  of the

most   serious  rules   violations,  involving   violent  and

extremely   disruptive   behavior,"   and   that   "the   DSU

administrator  and the  officer in  charge  of the  West Wing

Segregation Unit also saw the  beads and determined that they

                    

2.   According  to  Smith,  a "sap"  consists  of  a  sock or
similar  container into  which hard  objects are  placed, and
which  is  used to  inflict  blows; "numchucks"  are  sets of
batons connected by  a length of  cable or chain, used  for a
similar  purpose; a "garrotte" is a cord, thong, or length of
wire, used to strangle a victim.

                             -4-

must be removed because of the serious security concerns they

posed."   The affidavit  identified neither of  the other two

officers by name.

          Plaintiff's opposition contested the rationality of

the  defendants' asserted  security  justification.    In  an

accompanying affidavit,  Street stated  that the  108 knotted

beads  were  1/2 inch  in diameter  and  made of  very light-

weight, easily breakable wood, similar  to balsa wood.   "The

beads  are not  solid, but  are hollow, like  Catholic rosary

beads, with a hole in the  center so they can be strung  on a

string."   The  string, about  36 inches  long and  1/64 inch

around, was asserted to be very weak and easily  broken.  The

religious necklace was described as 18 inches long consisting

of  54 tiny  wooden beads  (3/16 inch  long and  1/8 inch  in

diameter)  strung on a "thin weak string" which a young child

could "easily break."

          With  respect to  his religion,  Street's affidavit

explained  that  his faith  required  1728  repetitions of  a

particular  mantra daily,  using special  prayer beads.   The

plaintiff  claimed  that  "[w]ithout  said beads  it  is  not

possible for  me to  obey this  commandment of  my religion."

Street  maintained  that he  had  been  allowed prayer  beads

during  a 1985  confinement in  the DSU,  and that  after his

return there in June 1988 he received permission from Hall to

order  the  beads.    When  they  arrived,  however,  Captain

                             -5-

Gallagher  refused  to  allow  him  to  have  them.    Street

protested  to  Hall,  and  to Hall's  superiors,  Raikey  and

Maloney,  about   the  confiscation,  but   they  refused  to

intervene.  Street  declared that neither  he nor the  sender

received the  required notice that the  beads were considered

contraband.   Finally, Street's  affidavit asserted  that his

jailers said to  him that  "the Hare Krishnas  are fools  and

worship a false God."

          The district  court granted the  defendants' motion

for  summary  judgment.   The  court's  order  states in  its

entirety:

     Motion allowed.  Alleged  refusal to permit  inmate
     to possess hare krishna [sic] beads and necklace in
     the  Departmental Segregation Unit is not violative
     of  Plaintiff's  Constitutional  rights,   as  such
     refusal   is   reasonably  related   to  legitimate
     penological  interests.  Turner v. Safley, 482 U.S.
                                              
     78, 85 (1987).

The standard  of review  is familiar,  see, e.g., Garside  v.
                                                         

Osco Drug, Inc., 895  F.2d 46, 48-49 (1st Cir. 1990),  and it
               

would be pleonastic to repeat the standard here.

                              II
                                

            Prison restrictions that implicate constitutional

rights  are  judged  by  the reasonableness  standard.    See
                                                             

Washington  v. Harper,  494 U.S. 210,  224 (1990);  O'Lone v.
                                                          

Estate of Shabazz, 482 U.S. 342 (1987); Turner v. Safley, 482
                                                        

U.S.  78 (1987).    Under this  standard,  an inmate's  First

Amendment right  must yield  to prison rules  and regulations

                             -6-

that   are  "reasonably  related  to  legitimate  penological

interest."   Turner, 482 U.S. at  89.  To  ensure that judges
                   

accord   appropriate  deference   to   decisions  of   prison

administrators  anent the delicate balance of these competing

principles,  the Court  put in  place a  "reasonableness test

less  restrictive than  that  ordinarily  applied to  alleged

infringements of fundamental constitutional rights."  O'Lone,
                                                            

482 U.S. at 349 (punctuation and citation omitted).  Thus, if

prohibiting plaintiff's possession  of certain  paraphernalia

in  the DSU strikes a reasonable balance between the right to

free exercise of religion  and the prison's asserted interest

in security,  plaintiff's First  Amendment claim will  fail.3

See Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).
                    

          The parties have briefed the appeal in terms of the

Turner rubric.   Assuming,  arguendo, that Turner  applies to
                                                 

the individualized decision here at issue, see, e.g., Frazier
                                                             

v. Dubois,  922  F.2d 560,  562  (10th Cir.  1990)  (applying
         

Turner to an individualized  prison action), the Turner Court
                                                       

identified four factors that "are relevant to, and that serve

to  channel,  the  reasonableness inquiry."    Thornburgh  v.
                                                         

Abbott,  490  U.S. 401,  414 (1989).    In O'Lone,  where the
                                                 

curtailment  of  Muslim inmates'  rights to  attend religious

                    

3.  We  assume,  for  present  purposes,  the   sincerity  of
Street's  professed  religious  beliefs.    Since  defendants
elected  not to dispute this issue below, they cannot dispute
it for the first time on appeal.

                             -7-

services was upheld, the  Court summarized the Turner factors
                                                     

in the following manner:

          1)   Does  the  challenged  regulation have  a
               logical  connection   to  the  legitimate
               governmental interests invoked to justify
               it?

          2)   Do  alternative  means of  exercising the
               right remain open to prison inmates? 

          3)   What  impact  would the  accommodation of
               the inmate's asserted right have on other
               inmates,  on  prison  personnel,  and  on
               prison resources generally?

          4)   Are there obvious,  easy alternatives  to
               the   policy   adopted   by  the   prison
               administrators?

O'Lone, 482 U.S. at 350-53 (citing Turner, 482 U.S. at 89-90,
                                         

93).     These  factors   have  regularly  been   applied  in

determining whether a prison policy violates an inmate's free

exercise rights.   See, e.g.,  Abdullah v.  Gunter, 949  F.2d
                                                  

1032,  1035-36 (8th Cir. 1991), cert. denied, 112 S. Ct. 1995
                                            

(1992);  Fromer v. Scully, 874 F.2d 69, 74-76 (2d Cir. 1989);
                         

Cooper v. Tard, 855 F.2d 125, 128-30 (3d Cir. 1988); Williams
                                                             

v.  Lane, 851 F.2d 867, 876-78 (7th Cir. 1988), cert. denied,
                                                            

488 U.S. 1047 (1989);  cf. Skelton v. Pri-Cor Inc.,  963 F.2d
                                                  

100, 103-04 (6th Cir. 1991).

                             III
                                

          With respect to plaintiff's free exercise claim, we

think that  genuine issues of material  fact precluded brevis
                                                             

disposition.  There are, for example, unanswered questions of

fact  as to  the  composition of  the  prayer beads  (weight,

                             -8-

density,  etc.) which,  in turn,  prevent a  determination of

whether the ban on  them is reasonable, or, for  that matter,

whether  rosary beads in the  hands of other  DSU inmates are

deserving of  materially different treatment.   We accept the

defendants' legitimate  concern that  religious items in  the

possession of inmates may lead to security problems.  But, we

believe that the plaintiff has sufficiently put into question

the  possible danger to the  security of the  prison posed by

the prayer beads here at issue.

          It  also seems  logical  that the  more solitary  a

religious practice, the  less plausible is the claim  that an

institutional  security  interest  is  compromised.    Turner
                                                             

instructs that  "a regulation  cannot be sustained  where the

logical connection  between the  regulation and  the asserted

goal  is so  remote  as to  render  the policy  arbitrary  or

irrational."    Turner, 482  U.S.  at  89-90.    Unlike  free
                      

exercise  claims  involving  otherwise   non-religious  items

(diet,  grooming,  name  changes,  and  the  like)  or  those

involving  group associations  (such as  congregate worship),

any  of which might impact the general prison population, the

religious activity  associated with the described  use of the

prayer beads appears to involve solely private conduct.   The

significance  of this  fact is  highlighted here  because, as

plaintiff  points out,  he would  never be  able to  take the

prayer beads outside  his cell; according to him, DSU inmates

                             -9-

are uniformly searched,  cuffed, and shackled before  leaving

their cells.   Such a restriction, if true - - and defendants

have not challenged  the veracity of plaintiff's  account - -

posits  an  accommodation  that  both  undercuts  defendants'

stated security  concerns and raises questions  as to whether

they overreacted in denying Street the prayer beads.  Cf. id.
                                                             

at 90 (under the fourth factor of the test, "the existence of

obvious,  easy  alternatives   may  be   evidence  that   the

regulation   is  not  reasonable,   but  is  an  `exaggerated

response' to prison concerns") (citation omitted).

          We  note, therefore,  without implying any  view of

the  merits, that the record reveals a genuine question as to

whether defendants' justification is sufficient to outlaw the

prayer  beads.4  See Mosier  v. Maynard, 937  F.2d 1521, 1527
                                       

(10th  Cir.  1991)  (remanding  for factual  development  and

application  of  Turner  factors  where  plaintiff  raised  a
                       

genuine  issue of material fact as to the reasonableness of a

prison  policy); Swift  v. Lewis,  901 F.2d 730,  731-32 (9th
                                

Cir.  1990) (vacating  summary  judgment in  favor of  prison

officials in the absence of evidence that officials' asserted

                    

4.  Although we have been discussing plaintiff's prayer beads
to  this  point, the  same  analysis  applies to  plaintiff's
religious necklace.   Appellees,  in their brief,  argue that
the physical  characteristics of  the beads and  the necklace
are so similar as to be  virtually indistinguishable from one
another, and  that both items  pose the same  security risks.
On remand, of course, the defendants will have an opportunity
to revisit this issue, should they so desire.

                             -10-

reason   for  prison   grooming  policy   justified  treating

appellants differently from other religious groups); see also
                                                             

Ali v.  Dixon, 912  F.2d 86,  91 (4th  Cir. 1990);  Hunafa v.
                                                          

Murphy,  907 F.2d  46,  48 (7th  Cir.  1990); cf.  Friend  v.
                                                         

Kolodzieczak, 923 F.2d 126 (9th Cir. 1991) (affirming summary
            

judgment  in favor  of  prison  officials because  regulation

prohibiting Roman Catholic  inmates from possessing  rosaries

in their cells satisfied Turner test).5
                               

                              IV
                                

          We turn next to plaintiff's claim  that he has been

subjected  to differential treatment because of his religion.

The essence of the Equal Protection Clause is that government

should treat  similarly situated  persons alike.   See, e.g.,
                                                            

Cleburne  v.  Cleburne  Living  Center, Inc.,  473  U.S.  432
                                            

(1985).    Prison  administrators  confronted with  an  equal

protection claim "need only  demonstrate a rational basis for

their distinctions between organizational groups."  Jones  v.
                                                         

North Carolina  Prisoners' Union,  433 U.S. 119,  134 (1977).
                                

Courts must defer to such differentiation  unless it is clear

that  "the two groups are so similar that discretion has been

abused."   Id. at 136;  see also Feeley  v. Sampson, 570 F.2d
                                                   

364, 371 (1st Cir. 1978) (explaining that prison authorities'

                    

5.  Because  the  case  must   be  remanded  to  resolve  the
questions we have mentioned,  we need not address  the second
and  third  Turner factors.   We  think  it fitting  to note,
                  
however,  that  neither  defendants'  moving  papers  nor the
district court's order addressed either point.

                             -11-

decisions cannot be arbitrary);  Nadeau v. Helgemoe, 561 F.2d
                                                   

411,  416 (1st  Cir. 1977) (similar).   Thus, so  long as the

prison  officials'   response  is  shown   to  be  rationally

supported, an equal  protection claim must  fail.  See  Reed,
                                                            

842  F.2d  at 962;  Brandon v.  District  of Columbia  Bd. of
                                                             

Parole,  823 F.2d  644,  650 (D.C.  Cir. 1987).   Conversely,
      

arbitrary enforcement of a stated security rationale violates

prisoners' rights.  See, e.g., Benjamin v. Coughlin, 905 F.2d
                                                   

571, 578 (2d Cir.), cert. denied, 498 U.S. 951 (1990).
                                

          Here, it is undisputed that Roman Catholic  inmates

in  the DSU are allowed rosary beads.  How prison authorities

have  accommodated  other  religions  is  relevant,  but  not

determinative,  in  deciding  whether a  plaintiff  has  been

treated in  an unduly  restrictive manner.   See  Feeley, 570
                                                        

F.2d at 371.  Assuming that prayer beads and rosary beads can

be equated for purposes of equal protection analysis, see id.
                                                             

at  375; Hatch  v. Sharp,  919 F.2d  1266, 1268-69  (7th Cir.
                        

1990),  cert. denied,  111  S. Ct.  1693  (1991), it  is  not
                    

obvious if (or how)  the asserted security concerns  posed by

plaintiff's  confiscated  prayer  beads  and  necklace6  were

satisfied  so as to permit another religious group in the DSU

to possess rosary  beads.  If  the comparison between  prayer

and  rosary   beads  can  fairly  be   made,  such  differing

                    

6.  The defendants' affidavit is  silent anent the wearing of
religious necklaces or crucifixes in the DSU.

                             -12-

restrictions  point to  (but, again,  are not  conclusive of)

"possible  arbitrariness."    Feeley,  570 F.2d  at 364.   As
                                    

noted earlier, the defendants' affidavit describing the  type

of rosary beads  that are "generally"  allowed to others  was

sufficiently countered by the plaintiff's  opposing affidavit

so as to  create material  questions as to  the relative  and

relevant differences between the religious items in question.

The affidavits also leave unresolved  questions about whether

the  treatment  accorded  the  plaintiff  was   disparate  or

intentional.   These conflicts preclude  summary judgment  on

this count.

                              V
                               

          We  need go no further.  We have considered most of

the  parties' other arguments on  appeal and find  them to be

without merit.7   We hold,  however, on  the present  record,

that  the district court erred to the extent that it accepted

defendants'  proffered  security  rationale   as  conclusive.

                    

7.  We  say "most"  rather  than "all"  because the  district
court  did   not  address  two  other   questions  raised  on
defendants' motion for summary  judgment, namely, a  supposed
failure to  allege  defendants' personal  involvement and  an
asserted service-of-process  deficiency.  We take  no view of
these issues.   See Nereida-Gonzalez  v. Tirado-Delgado,  No.
                                                       
92-2084,  slip op. at  13 (1st Cir.  April 14, 1993).   We do
note,  however,  plaintiff's  sworn  statement  that  despite
repeated  requests on  his  part, prison  officials have  not
provided him with  the address  of a defendant  who has  left
their  employ.    On  remand, plaintiff  should  be  afforded
another  opportunity to  perfect service  of process  on this
defendant.   By  the same  token,  defendants remain  free to
reassert the defenses mentioned.

                             -13-

Accordingly,   since   the   facts  surrounding   defendants'

justification for  refusing  to allow  plaintiff  to  possess

prayer  beads and  a religious  necklace in  the DSU  require

further development, we vacate  the grant of summary judgment

in  favor   of  the   defendants,  and  remand   for  further

proceedings to  be held before  another trier pursuant  to D.

Mass. Loc. R. 40.1(i).

          Vacated and remanded.  Costs to appellant.
                                                   

                             -14-
