                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2006

Wilson v. Tillman
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4249




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Recommended Citation
"Wilson v. Tillman" (2006). 2006 Decisions. Paper 964.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4249
                                      ___________

                                   JOHN D. WILSON,
                                             Appellant

                                            v.

                                 WILLIAM TILLMAN;
                                    JOHN FAUNCE
                                _____________________

                    On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civil No. 04-cv-00839)
                      District Judge: Honorable Edwin M. Kosik
                                ____________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 1, 2006

               Before: RENDELL, AMBRO and *ROTH, Circuit Judges.

                                  (Filed: June 2, 2006 )
                                     _____________

                              OPINION OF THE COURT
                                  _____________


PER CURIAM

      John D. Wilson, a state prisoner, filed an in forma pauperis civil rights action in

United States District Court for the Middle District of Pennsylvania against numerous

________________

   *The Honorable Jane R. Roth assumed senior status on May 31, 2006
individuals, including William Tillman, Director of Adappt, Inc., and John Faunce,

records custodian of Adappt. In his amended complaint, Wilson alleged First

Amendment and equal protection violations in connection with Adappt’s refusal to allow

him to practice his Jewish faith, as well as a claim of intentional infliction of emotional

distress.1 Wilson is a descendant of Ethiopian Jews and he practices Judaism. The

Adappt House is a residential facility that contracts with the Pennsylvania Department of

Corrections to provide both chemical dependency treatment and group home services for

pre-release and parole candidates.

       Wilson arrived at Adappt on August 27, 2003. On August 29, he asked to be

allowed to attend Shabbat services. He was told that a request to attend religious services

had to be in writing. On Friday, September 5, he submitted a written request to attend

Shabbat services the next day. This request was approved, although Wilson may not have

known of the approval. Importantly, however, he was not permitted to attend Shabbat

services the next day because of a mandatory group outing to a local park. On September

8, 2003, Wilson left the Adappt House, and was transported to the Berks County prison

and charged with a parole violation.

       Faunce and Tillman answered the amended complaint, discovery ensued, and

Wilson was deposed. The defendants then moved for summary judgment, contending that

Jewish clients of Adappt House may attend Shabbat services provided they submit a




  1
    Other claims in the amended complaint were dismissed by the District Court pursuant
to 28 U.S.C. § 1915A, and have not been argued on appeal. We hold that they are
waived. See Laborers' Int'l Union of North America v. Foster Wheeler Corp., 26 F.3d
375, 398 (3d Cir. 1994) (issue is waived unless party raises it in opening brief).

                                              2
request in writing, that Wilson’s first request came too late and was not in writing, and

that Faunce approved his written (second) request to attend Shabbat services. However,

the defendants also admitted that Wilson was not ultimately allowed to attend Shabbat

services on the approved day. He was instead required to go on an outing with the other

residents.

       The District Court, applying the factors discussed in Turner v. Safley, 482 U.S. 78,

89-91 (1987), granted summary judgment to the defendants on the free exercise claim,

because Wilson was only prevented from attending Shabbat services on two occasions,

and he did not allege that he had been prevented from praying privately or reading the

Torah. Moreover, permitting Wilson to attend Shabbat services when all staff and clients

were at a group outing would have jeopardized the safety and order of the halfway house.

(District Court Memorandum, at 16.) In addition, the District Court rejected Wilson’s

equal protection and intentional infliction of emotional distress claims as incoherent

and/or wholly unsupported.2

       In addition, the District Court concluded that Wilson abandoned any First

Amendment claim concerning being required to recite the Serenity Prayer when he failed

to allege any such claim in his amended complaint. (District Court Memorandum, at 17

n.2 and 19 n.3.) The court also denied a timely motion for reconsideration. In that

motion for reconsideration, Wilson challenged the District Court’s conclusion that a

reading of the Torah constituted an acceptable alternative to attending Shabbat services.




  2
   We agree that these claims lack merit for the reasons given by the District Court, and
we will not discuss them separately.

                                             3
Wilson appeals.

       We will affirm. Our review of the District Court's grant of summary judgment is

plenary and we must affirm summary judgment if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). We agree with the District Court that there are no

disputed material facts and that the evidence of record establishes that Wilson would be

unable to prevail on his claim.

       Although a prisoner’s personal liberties are curtailed during incarceration, he does

not forfeit all constitutional protections by reason of his confinement in prison. DeHart v.

Horn, 227 F.3d 47, 50 (3d Cir. 2000) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)).

“‘Inmates clearly retain protections afforded by the First Amendment, ... including its

directive that no law shall prohibit the free exercise of religion.’” Id. (quoting O'Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987)). However, certain restrictions are justified

by the valid penological objectives of deterrence of crime, rehabilitation of prisoners, and

institutional security. Id. at 50-51.

       In Turner v. Safley, the Supreme Court held that "when a prison regulation

impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related

to legitimate penological interests." 482 U.S. at 89. In DeHart we noted that Turner

counsels consideration of the following four factors: "First, there must be a valid, rational

connection between the prison regulation and the legitimate governmental interest put

forward to justify it, and this connection must not be so remote as to render the policy

arbitrary or irrational." 227 F.3d at 51 (quoting Waterman v. Farmer, 183 F.3d 208, 213


                                               4
(3d Cir.1999) (internal quotations removed)). “Second, a court must consider whether

inmates retain alternative means of exercising the circumscribed right.” Id. “Third, a

court must take into account the costs that accommodating the right would impose on

other inmates, guards, and prison resources generally.” Id. “And fourth, a court must

consider whether there are alternatives to the regulation that fully accommodate the

prisoner's rights at de minimis cost to valid penological interests." Id.

       The District Court correctly applied Turner and concluded that Wilson’s First

Amendment right to practice his religion was not violated. The Adappt House has no

affiliations with any religious group. It is undisputed that a religious directory setting

forth the times and locations of all area religious services, including Shabbat services, is

posted in the Adappt House for reference by clients, and that Wilson saw the posting. It

is also undisputed that, if a client wishes to attend a religious service, he or she need only

submit a written request. Wilson does not challenge the written request requirement, and

he admittedly did not follow this simple procedure of submitting the request in writing the

first time he asked to attend Shabbat services. There was no First Amendment violation

with respect to Saturday, August 30, and we will limit our focus to the events of Saturday,

September 6.

       On September 6, Wilson was made to go on an outing to the park and denied the

opportunity to attend Shabbat services. The appellees admit that Wilson was prohibited

from attending Shabbat services on September 6. However, they assert that their policy

of requiring full participation in house-wide group outings is reasonably related to a

legitimate penological interest and is thus valid. The Turner factors support appellees’


                                              5
argument. As part of the therapy administered in this structured environment, all

residents of Adappt House must attend group activities. This requirement satisfies the

first Turner prong for the simple and straightforward reason that, with respect to

residential treatment programs, group participation is synonymous with therapeutic

efficacy.

       The second Turner factor – the availability of alternative means of exercising the

right – presents a closer question, see Fraise v. Terhune, 283 F.3d 506, 518-19 (3d Cir.

2002), but we hold that it too is satisfied. In O’Lone, the Supreme Court held that

analysis of the second Turner prong does not require a court to determine if the prisoner

had alternative means to celebrate Jumu’ah, or even Mass or Shabbat services for that

matter, because, obviously, there are no substitutes for these ceremonies or rituals. But

rather, unless there has been a complete prohibition on these ceremonies or rituals, the

court should determine whether a prisoner had alternative means to practice his religion

in general. 482 U.S. at 351-52. See also Sutton v. Rasheed, 323 F.3d 236, 257 & n.35

(3d Cir. 2003). Here, Wilson observed Shabbat services on his own by reading the Gates

of Prayer, according to his deposition testimony, and thus he not only had an alternative

means to practice his religion, he took advantage of it. Under the facts and circumstances

of this case, Wilson cannot show that he had no alternative means to practice his religion

in general where, on one occasion, his right to attend Shabbat services was denied.

       The third Turner prong is also satisfied. Accommodating Wilson on a day when

an all-house outing was already scheduled would have impacted staffing, scheduling, and

resources, at least to some extent. Wilson contends in his brief on appeal that the District


                                             6
Court erred by raising on its own the defense of public safety, but even if public safety

was never an issue, the fact remains that accommodating Wilson on Saturday, September

6, would have negatively impacted the all-house group outing with respect to allocation

of staff and resources. As to the fourth Turner prong, there was no alternative that would

have fully accommodated Wilson at de minimis cost to Adappt’s legitimate

penological/therapeutic interests.

       Wilson’s only other contention on appeal is that the District Court overlooked his

First Amendment claim with respect to the Serenity Prayer. Wilson asserts that the

words, “God grant me the serenity to accept the things I cannot change,” offend Judaism,

because the power to change is freely given. In his reply brief, he makes similar

arguments. Wilson made no mention, however, of any First Amendment claim involving

the Serenity Prayer in his amended complaint. We note also that his timely filed motion

for reconsideration also makes no mention of any First Amendment claim involving this

prayer. We will not consider an issue raised for the first time on appeal. See Harris v.

City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (rule essential in order that litigants

are not surprised on appeal by decision there of issues upon which they have had no

opportunity to introduce evidence).

       We will affirm the order of the District Court.




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