                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-1996

Small v. Lehman
Precedential or Non-Precedential:

Docket 95-7279




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"Small v. Lehman" (1996). 1996 Decisions. Paper 58.
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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                     ___________________

                         No. 95-7279
                     ___________________


                  ELWOOD SMALL, ERIC BAYNES,
                BRIAN ROSS, LAWRENCE ELLISON,
                    ALI JAMAL ABDUL-QUDDUS,

                               v.

  JOSEPH LEHMAN, Commissioner, PA Dept. of Corrections, ROBERT
  BITNER, Chief Hearing Examiner, J. HARVEY BELL, Pardons Case
 Specialist, J. DOE, Staff Attorney, WILLIAM J. LOVE, IRWIN S.
  OWENS, Protestant Chaplin, FATHER BECKER, Catholic Chaplin,
     STERYL GROVE, Grievance Coordinator at SCI-Huntingdon,
          in their individual and official capacities,
                                Appellees.

                  Elwood Small; Eric Baynes,
                               Appellants
                      __________________

        An Appeal from the United States District Court
            for the Middle District of Pennsylvania
                      D.C. No. 93-cv-01155
                      ___________________

   Submitted Under Third Circuit LAR 34.1(a)    August 13, 1996

                 Before: SLOVITER, Chief Judge,
                COWEN, and ROSENN, Circuit Judges.

                Opinion Filed October 22, 1996
                     _____________________


Elwood Small, AM-9183
Eric Baynes, AM-8345
SCI-HUNTINGDON
1100 Pike Street
Huntingdon, PA 16654-1112
Pro Se
Thomas W. Corbett, Jr., Attorney General
Michael L. Harvey, Deputy Attorney General
Calvin R. Koons, Sr., Deputy Attorney General
John G. Knorr, III, Chief Deputy Attorney General, Chief,
     Litigation Section
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellees.


                       ____________________

                       OPINION OF THE COURT
                      _____________________


ROSENN, Circuit Judge.
     This appeal by four present and former inmates of the
Pennsylvania State Correctional Institution at Huntingdon (SCI-
Huntingdon) (collectively "Inmates"), presents a troublesome
question relating to the provision of adequate facilities for
religious worship in a prison environment. The inmates, Elwood
Small, Eric Baynes, Brian Ross and Lawrence Ellison, members of
the Sunni Muslim Brotherhood, sued prison officials under 42
U.S.C. § 1983 for allegedly violating their First and Fourteenth
Amendment rights by providing only one Muslim worship service in
their prison for all Muslim sects. They filed suit pro se in
the United States District Court for the Middle District of
Pennsylvania on July 30, 1993. In their briefs filed in the
district court opposing the defendants' motion for summary
judgment, the Inmates asserted for the first time an alternative
claim under the Religious Freedom Restoration Act of 1993 (RFRA
or Act), 42 U.S.C. § 2000bb.
     The district court, adopting the Report and Recommendation
of a magistrate judge, found that the prison officials did not
violate the Inmates' First Amendment rights because the officials
provided sufficient alternative means for Muslim worship.
Further, the court found that the Inmates' RFRA claim was
untimely. It noted, however, that the Inmates' claim did not
implicate the Act. The Inmates filed a timely appeal to this
court. We vacate the judgment and remand the case to the
district court for further proceedings.

                                I.
     The Inmates are members of the Sunni Muslim religion, one
of five organized groups of practicing Muslims at SCI-
Huntingdon. The prison provides Jummah and Taleem services for
all the approximately two hundred Muslim inmates. All Muslim
sects are invited to attend services, and generally upon arrival
at services in the chapel separate into groups.
     The Inmates requested separate space for religious services
for Sunni Muslims, claiming that there are fundamental
differences between the Muslim sects that prevent them from
worshiping together in one service. The Sunni Muslim sect at
SCI-Huntingdon approximates 75 in number and is one of the two
largest at the institution. The Inmates claim that several empty
rooms are available at the prison at times when they wish to
worship, that they are one of the larger Muslim sects in the
installation, and that the institution could allow them to use
one of the available rooms without excessive expense or
additional security. They contend that the differences between
the Sunni Muslim Brotherhood and the other Muslim sects can be
compared to the differences between Catholics and Protestants,
who are provided facilities for separate services at Huntingdon.
They also assert that Pennsylvania provides separate facilities
for Sunni Muslim services at other maximum security prisons.
     Prison officials denied the request, stating that the
institution did not have the space or the resources to
accommodate separate worship services. Further, the officials
asserted that they had consulted an expert in the Muslim faith
who informed them that Muslim belief permits a combined worship
service of various sects.
     The Inmates submitted numerous unsworn written statements
by prisoners asserting that the teachings of the institution's
current Muslim worship service leader are in direct contradiction
to their faith. They assert that the Sunni Muslim religion
mandates adherence to the four "Schools of Thought," and that
they may not be led in prayer by anyone who does not subscribe to
these doctrines.   The unsworn declarations stated: "If I choose
to attend Jummah Services, I am required to practice it under the
teachings and practices ([e.g.,] language, Dress Code and
teachings of Iman Wallace Deem Muhammad) which are in direct
conflict with the four (4) School's [sic] of Thought of the Sunni
Muslim Brotherhood."
      In their brief opposing the defendants' motion for summary
judgment, the Inmates asserted that there are several unused
areas in the Huntingdon institution that could be used for
services on Fridays without burdening the State, and that the
prison's security staff had been increased. Further, they
contend that the policy at SCI-Huntingdon violates RFRA.
     The district court granted summary judgment for the
defendants. The court maintained that the Inmates provided no
support for their allegations, and thus accepted the defendants'
version of the facts as true. It held that the defendants had a
legitimate penological interest in denying the Inmates space for
a separate Sunni Muslim service, finding that the institution
lacked sufficient funds and staffing to provide the services.
Further, the court noted that prison officials had consulted with
an expert in the Muslim religion, who informed the officials that
all Muslims are united as one regardless of "personal"
designations such as Sunni Muslim.
     The court also held that the Inmates may not assert their
claim under RFRA because they did not raise it in their
pleadings. They sought reconsideration and moved the court to
vacate its judgment to permit them to amend their complaint and
add a claim under RFRA. The district court denied the motion.
Nonetheless, the court concluded that the Inmates' claim did not
implicate the Act because the State did not burden their exercise
of religion.

                               II.
     The district court's grant of summary judgment is subject
to plenary review. See Wheeler v. Towanda Area Sch. Dist., 950
F.2d 128, 129 (3d Cir. 1991).
     The threshold and critical question here is the proper
standard of review to be applied in addressing prisoners'
constitutional claims. We also must appropriately consider the
policy of judicial restraint regarding prisoner complaints first
set forth by the Supreme Court in Procunier v. Martinez, 416 U.S.
396 (1974), partially overruled by Thornburgh v. Abbott, 490 U.S.
401 (1989). There the Court recognized that "the problems of
prisons in America are complex and intractable, and more to the
point, they are not readily susceptible of resolution by decree."
Id. at 404-05. Over a decade later, the Supreme Court not only
reiterated these concerns, but pragmatically observed that where
a state penal system is involved, as we have here, "federal
courts have . . . additional reason to accord deference to the
appropriate prison authorities." Turner v. Safley, 482 U.S. 78,
85 (1986). Nonetheless, the Court also recognized the importance
of the right to religious worship, even as to state or federal
prisoners. The Court perceived that all prisoners must be
afforded reasonable opportunities to "exercise the religious
freedom guaranteed by the First and Fourteenth Amendments." Cruz
v. Beto, 405 U.S. 319, 322 n.2 (1972).
     In Turner, 482 U.S. at 93, and O'Lone v. Estate of Shabazz,
482 U.S. 342, 353 (1987), the Court held that a prison regulation
may validly impinge on an inmate's constitutional rights if it is
reasonably related to a legitimate penological interest. A court
may look to several factors in making its determination including
the connection between the prison regulation and the legitimate
governmental interest justifying the regulation, and whether
there are alternative means open for the prisoner to exercise the
right. Turner, 482 U.S. at 89-90. The court may also take into
consideration the impact that accommodation of the constitutional
right will have on prison resources and personnel. Id. at 90.
     In the instant case, the district court held that SCI-
Huntingdon's policy of permitting only one Muslim service was
reasonably related to a legitimate penological interest. It
noted the institution's budgetary and space limitations, and the
alternative Muslim services open to the Inmates. Thus, under the
standards set forth in Turner and O'Lone, the court granted
summary judgment for the defendants.
     Although the district court may have correctly applied the
standards established in Turner and O'Lone, Congress enacted the
Religious Freedom Restoration Act in 1993 to legislatively
overrule the Supreme Court's standard of review of religious
claims as set forth in those cases. Through RFRA, Congress
intended to "restore the compelling interest test . . . and to
guarantee its application in all cases where free exercise of
religion is substantially burdened." 42 U.S.C §
2000bb(b)(1)(Supp. 1996). Although the Inmates may not have
mentioned RFRA in their amended complaint, they did refer to it
in their opposition-brief to the defendants' motion for summary
judgment and in their motion for a second amendment to their
complaint. The Act was in force and as it was the applicable
law, the district court was required to apply the compelling
interest test to the facts of the instant case, particularly
since it had been called to its attention. As Judge Pollak
aptly observed in Muslim v. Frame, 897 F. Supp. 215, 216 (E.D.
Pa. 1995), "RFRA is the law regardless of whether parties mention
it." We therefore hold that RFRA, being in effect at the time
the district court heard this case, should have been considered
by the district court before entering summary judgment.


                              III.
     RFRA provides, in pertinent part:
              (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 (Supp. 1996). We agree with other courts of
appeal that have interpreted RFRA to hold that the Act applies to
the claims of prisoners. See, e.g., Werner v. McCotter, 49 F.3d
1476, 1479 (10th Cir.), cert. denied, Thomas v. McCotter, 115 S.
Ct. 2625 (1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.
1995).
     Thus, the first question to be determined under RFRA is
whether the State has substantially burdened the Inmate's
exercise of religion; and, if so, whether the State can justify
the imposition of that burden. Although the district court did
not believe it need reach the Inmates' RFRA claim, it apparently
decided to address the issue. The court concluded that the
Inmates' claim did not implicate the Act. It adopted the
magistrate judge's recommendation, which stated that the Inmates:
         have not alleged that the government has "burdened"
         their exercise of religion. Rather they [complain]
         that the government has not taken affirmative steps to
         provide them with a place to worship. . . .
         Accordingly, because the Act restricts only burdensplaced upon
the exercise of religion, it is not
         applicable to this claim of failure to provide the
         plaintiffs with a worship service of their choice.

Thus, the court found that the Inmates had not proven that the
State has substantially burdened their exercise of religion under
the Act.
     In their objections to the magistrate judge's report, the
Inmates claimed that their rights to free exercise of their
religion have been substantially burdened by the defendants
because they are compelled to attend Jummah and Taleem services
that are led by the American Muslim Mission, which has different
practices, teachings, dress codes, and Imams. The American
Muslim Mission's spiritual leader is Imam Wallace Deem Muhammad,
who they assert does not follow the four (4) Schools of Thought
of the Sunni Muslim Brotherhood. The Inmates maintain that the
American Muslim Mission's "teachings and beliefs" are "in direct
contradiction" with their beliefs. In particular, they claim
that their religion prohibits them from "being led in Jummah
prayer by someone who does not follow one of the Four Schools of
Thought, which the American Muslims do not."
     Under RFRA, the Inmates are required to show that a
"substantial burden" to their free exercise of religion has
resulted from the State's actions. Goodall v. Stafford County
Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995), cert. denied, 116 S.
Ct. 706 (1996); Werner v. McCotter, 49 F.3d 1476, 1480 (10th
Cir.), cert. denied, 115 S. Ct. 2625 (1995). If they establish a
substantial burden, then the burden of proof shifts to the State
to show that it has a "compelling interest" in its actions and is
furthering that interest by the "least restrictive means."
Werner, 49 F.3d at 1480 n.2; Campos v. Coughlin, 854 F. Supp.
194, 206 (S.D.N.Y. 1994).
     The showing, however, required to prove a substantial
burden under RFRA seems to be unsettled. In Werner v. McCotter,
the Tenth Circuit Court of Appeals provided the following summary
of standards which seem to be applicable under RFRA:
         To exceed the "substantial burden" threshold,
         government regulation must significantly
         inhibit or constrain conduct or expression
         that manifests some central tenet of a
         prisoner's individual beliefs; must
         meaningfully curtail a prisoner's ability to
         express adherence to his or her faith; or
         must deny a prisoner reasonable opportunities
         to engage in those activities that are
         fundamental to a prisoner's religion.

49 F.3d at 1480 (citations omitted); see also Bryant v. Gomez, 46
F.3d 948, 949 (9th Cir. 1995) (to survive summary judgment under
"substantial burden" test, plaintiff must prove facts that "show
that the activities which he wishes to engage in are mandated by
[his] religion.")
     In the instant case, the district court concluded that the
State had not burdened the Inmates' free exercise of religion
because the Inmates alleged only that the prison institution had
not taken any affirmative action and had not provided them with
the separate facilities that they requested and considered
necessary for worship. We agree that the State does not have an
affirmative duty to provide every prison inmate with the clergy
person or the service of his choice. Gittlemacker v. Prasse, 428
F.2d 1, 4-5 (3d Cir. 1970). However, an opportunity to worship
as a congregation by a substantial number of prisoners may be a
basic religious experience and, therefore, a fundamental exercise
of religion by a bona fide religious group.
         The exercise of religion commonly involves
         group worship, and when the only option
         available for a prisoner is under the
         guidance of someone whose beliefs are
         significantly different from or obnoxious to
         his, the prisoner has been effectively denied
         the opportunity for group worship and the
         result may amount to a substantial burden on
         the exercise of his religion. See SapaNajin
         v. Gunter, 857 F.2d 463, 464-65 (8th Cir.
         1988).

Weir v. Nix, 890 F. Supp. 769, 788 (S.D. Iowa 1995) (citations
omitted). The failure to provide otherwise available facilities
may therefore be, depending on whether it is compelled, as
substantial a burden on that right as would the removal of
pertinent facilities from actual congregational worship. It may
meaningfully bar their ability to express adherence to their
faith.
     Here, the Inmates claimed to have significant ideological
differences with other Muslim sects, and that the prison's
insistence on requiring all Muslims to worship collectively
places a burden on their free exercise of religion. In
particular, they urge that their faith "mandates" that they not
be led in worship by a non-Sunni Muslim. On the other hand, the
defendants assert that they have been informed by a reliable
Muslim authority that the Inmates can comply with their religious
faith if they worship in a combined service with other Muslims.
With this factual and material issue in serious dispute, we do
not believe that it can be determined on a motion for summary
judgment, particularly with the compelling standard now
prescribed by RFRA.
     Even if the Inmates are able to establish that their
religious right to worship has been substantially burdened by the
defendants' inaction, this is not the end of the matter. A
remaining question is whether conditions and circumstances at the
prison compel the combined worship service and whether the action
taken by the prison authorities is the least restrictive means of
furthering the alleged compelling governmental interest.
Although the State may have a compelling interest in operating an
efficient and reasonably cost driven penal institution, the
Inmates dispute whether the prison officials have taken the least
restrictive measures in furthering that interest. Prison
officials may not take shelter in the mere words of "security"
and "lack of funds"; they must substantiate the permissibility
of their conduct under the statute. The disputes of material
fact do not permit a trial court to resolve them on a motion for
summary judgment.
                               IV.
     In summary, we hold that RFRA was the law of the land when
the Inmates filed their complaint and that it applies to State
and Federal prisons. The Inmates therefore were entitled to
amend their complaint accordingly. We further hold that under
RFRA the compelling interest standard applies to a claim charging
state prison officials with substantially burdening the rights of
prisoners to the free exercise of their religion. Therefore, the
district court should not have decided genuine issues of material
fact by summary judgment when it concluded that RFRA was
inapplicable to the Inmates' claims. Accordingly, the judgment
of the district court will be vacated and the case remanded to
the district court for further proceedings consistent with this
opinion.
     Each side to bear its own costs.
