Paul Phelps v. Wayne Dunn and Clark Edwards

93 did nоt violate Randies’s Fourth Amend- merman had been named in the first com plaint, rights, the district ment Sheriff Edmonds could not court was well within its discretion in dismissing pur these acquiesced any act that violated actions have suant to the doctrine of nonmutual claim or rights. Randies’s constitutional preclusion. issue United States v. Mendo press appeal Randles has continued to on za, 154, 158-59, 464 568, 571, U.S. 104 S.Ct. a citizen’s constitutional to bear arms (1984); 78 L.Ed.2d 379 Parkland Hosiery property protect on his own his livestock Shore, 322, 331, Co. v. 439 U.S. 99 S.Ct. marauding Although foxes. this 645, 651, (1979). See, 58 L.Ed.2d 552 e.g., sympathetic indigna- court is to Randies’s . Hazzard Weinberger, 225, v 382 F.Supp. tion and the conscientious effort (S.D.N.Y.1974), 226-29 aff'd, 519 F.2d 1397 pursuit has demonstrated in the his con- (2d Cir.1975) (nonmutual preclusion claim is, rights, stitutional this court unfortu- approрriate pro litigant brings se re nately, jurisdiction without review peated upon operative actions same facts “judgment” prompted exercise of slight change legal theories and deputy sheriffs to stalk and cite this el- “cast of characters-defendants”). Judge derly gentleman attempting to rid his Long Kenneth E. protected by absolute property of killing varmints that were immunity from liability for his challenged fowl, “tenacity” prosecutor, who, of the actions in presiding over Randies’s trial. efforts, finally after successive drafted a Stump Sparkman, 349, v. 435 U.S. 98 against criminal offense to invoke this sen- 1099, (1978). S.Ct. 55 L.Ed.2d 331 citizen, “judicious” ior and the court’s con- properly granted district court disposition charged sideration and 12(b)(6) defendants’ Fed.R.Civ.P. motion activity” golden age “criminal farm- dismissing against the claims Eighth er. District Gregart. Court and Prosecutor addition, the properly district court also Finally, charges Randies’s granted summary judgment to the remain- against Gregart arising Prosecutor from a ing defendants since there was no material prosecution de minimis are barred issue of give fact that would rise to a prosecutor’s immunity bringing absolute infringe- Fourth Amendment constitutional against the state court action Randles. Finally, ment. the district court properly Pachtman, 409, 427, Imbler v. 96 complaint grounds dismissed the second 984, 993, (1976); S.Ct. 47 L.Ed.2d 128 Jo Thus, judicata. of res judgments the final Patterson, 549, seph v. 795 F.2d 552-55 appealed in appeal ‍‌‌​​‌​​​‌​‌​‌​‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌‌​‍this consolidated are (6th Cir.1986), denied, 1023, cert. U.S. entirety. AFFIRMED their (1987). 107 S.Ct. 95 L.Ed.2d 516 charge pursuant Since this was dismissed 12(b)(6)

to the defendants’ mo Fed.R.Civ.P. action,

tion in his initial district court properly action second dismissed it as judicata. Department res Federated PHELPS, Plaintiff-Appellant, Paul Stores, Moitie, 394, 398, Inc. v. U.S. (1981); 69 L.Ed.2d 103 v. Hartman, Guzowski v. 849 F.2d Wayne DUNN and Clark (6th Cir.1988). Similarly, the assertions Defendants-Appellees. brought against Deputy Sheriff Edmonds No. 91-5835. complaint and Sheriff Brooks the second Appeals, United States Court of litigated were identical to those in the first Sixth Circuit. complaint, which had been denied on sum Argued 1992. Feb. Thus, mary judgment. charges those were properly judicata also dismissed as res May Decided the second case.

Although Judge neither Kenneth Long

E. nor Sheriff William Tim- McSwain, Sturgill & Ogden,

Douglas L. (argued and Welch, Ky., Lexington, briefed), plaintiff-appellant. Gen., Linda Sexton, Atty. Asst. A. David Gen., Atty. Barbara Cooper, Office G. (argued and Jones, T. Damron John W. Gen, Correc- briefed), Counsel Office of Frankfоrt, defen- Cabinet, Ky., for tions dants-appellees. BOGGS, Phelps participated Circuit ser- NELSON

Before: KRUPANSKY, regularly Senior Circuit for thirteen Judges; and vices months without incident, Judge. August time, until 1986. At that Chaplain Polk went on vacation for two BOGGS, Judge. Circuit regular weeks and his services were con- prisoner, alleges Phelps, a state Paul ducted one of NTC’s volunteer chap- rights his un- prison officials violated lains, that Rev. Clark who had been and Estab- the Free Exercise Clause der conducting one or two services a week at lishment Clause of the first amendment signed NTC since he had on as a volunteer prison in reli- denying participation him February Phelps alleges in that is a gious services because he homosexual. vacation, Phelps Polk was on while and court, F.Supp. granted The district conversation, disagree- Rev. Edwards had a summary judgment to defendants on the ing on whether Christians could be homo- security grounds that there were sufficient Phelps alleges sexuals. that Rev. Edwards against the justify concerns to their actions participation then denied him in the reli- that, fact, he was not de- prisoner and gious Phelps’s services because of homo- religion. practice his We nied sexuality. period, After this two-week ten- gen- there are and remand because reverse began allegedly sions to mount between of material fact as to whether uine issues pro- anti-gay Christian factions of the prisoner posed security risk and However, prison community. Phelps con- he was denied attendance at regular religious activity tinued his service religious services. Chaplain under Polk when he returned and throughout the fall. No incidents occurred I during this time. prisoner Plaintiff Paul is a state during the fall of Sometime Northpoint imprisoned at who was spo- told Rev. Edwards that the Lord had (“NTC”) Burgin, Ken- Training Center hospital ken to him he in the while was tucky part of all of spleen injury no with a and that he was practicing is a Chris- most of 1987. time, longer homosexual. At that Rev. Ed- Phelps alleges homosexual. that tian and a Phelps sing give let solos and testi- wards equal partic- while at NTC he was Tuesday night monies at his services. This ipation and attendance at participation subsequently denied was chapel of his homo- because caught a homosexual sexuality. again acknowledged his homo- act and once NTC, discussing entering and after Upon 2, 1986, identity. On December sexual prison chap- status with the his homosexual give if he Phelps asked Rev. Edwards could Polk, Jr., lain, C. became Willie night Edwards’s testimony that Rev. servic- participant active NTC’s night Rev. Ed- regular Tuesday service. sang at the both as a es. He citing security request, wards denied part group, sang of a he soloist and as allegedly Edwards was then risks. Rev. Hope Singers performed for the New who congre- some members of the warned that audiences, chapel jani- he served as outside planning a demonstration of gation were tor, testimony during gave service. cоn- night, That some sort. Polk, knowing that Chaplain himself. At one the entire service ducted homosexual, object did not Cap- up speak. as if to point, Phelps stood Chaplain Polk felt that it was his ipation. Sims, had, at Rev. Edwards’s tain guarantee that all services responsibility service with some other quest, attended the equal partic- open were for attendance problems, then potential officers to curb inmates, such attend- ipation by all unless foyer. Chapel from the entered the security At no time did posed a risk. ance glad he was Phelps, expressing how security after Polk view as Chaplain service, immediately sat attending the to be risk. down, agree philosophy incidents occurred that I do not and no other only permitted certain inmates should be night. roles in activities. All inmates possible this event could While it is should be afforded the opportunity to show that was a have found to been leadership regardless roles risk, eventually issue was ad- preference. of sexual Phelps filed an Inmate judicated after J.A. 5, 1986, claiming on December Grievance response ruling, In to Warden Sowders’s equal denied him Edwards had Chaplain Polk issued a memorandum on participation in the December service. January part: which stated in Dunn, in Wayne an infor- Warden response to inmate 11, 1986, up- December mal resolution on chapel grievance # services decision, stating: held Edwards’s Rev. please following note thе mandates as encouraged All are to attend given by Dewey Warden All Sowders ... service, program. any religious study or religious by activities conducted by If to lead a service Mr. wants participated by volunteers or cetera, speaking, singing, et this is not volunteers, must be at the access of the acceptable of his admitted homo- because inmates, general population. inmate All activity. The other men sexual Gay alleged Christians and homosexuals position support the taken the services alike, provided opportunity must be chaplain. by the volunteer actively participate in free J.A. at 22. expression. appealed to the full Griev- then J.A. at 25. Committee, Deputy included ance which political infighting After some between Bain, supervisor direct William Warden, Deputy the Warden and on Febru- 24, 1986, Chaplain Polk. On December 2, 1987, ary Warden Sowders issued the Committee found that following response statement in to Polk’s services; Mr. is not barred from memorandum: figure due to his but he is a controversial 16, 1987, January A memorandum dated (homosexual). preference sexual by Chaplain issued Willie Polk contains Polk, Chief, sees no Chaplain Willie inaccurate information that needs clarifi- wrong taking part in his services grievance cation. A filed an in- However, leadership. the volunteer being par- mate who was denied active Chaplain, does concur ticipation services held at Gay Community lead- membеrs Northpoint Training My Center. deci- ing worship service. Warden sion on this issue was that all inmates Dunn, Wayne responsibilities in- whose given opportunity should be Chapel Religious clude our Pro- ipate worship question services. The grams, concurs with Rev. Edwards. preference ‍‌‌​​‌​​​‌​‌​‌​‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌‌​‍of sexual was not considered If Recommendations: Mr. [sic] in the decision. Chapel leadership in the Service is caus- Northpoint offers a valuable service trauma which is dam- ing disruption with providing non- denominational as well as aging program, he should not overall denominational outlets for its Whereas, leadership role. be allowed profess residents. How can we who only minority if of two residents it is judgment Christians make a to include be leadership objecting to Mr. [sic] or exclude certain individuals who some role, par- he should allowed full then be may inappropriate deem based on sexual ticipation .... preference? J.A. (emphasis original). at 94 J.A. level, appealed appeal, Phelps to the next Phelps then In the trial court and on Sowders, who, maintained, January on de- Dewey based on Warden Sowders’s Warden cision, 13, 1987, found to that he was never be held: security interrogatories, risk and Rev. Edwards and swers to and admissions on file, Deputy Dunn failed to enforce the Ward- together affidavits, any, if grievance en’s decision. asserts genuine show that there is no issue as to specifically required that Warden Sowders any material fact and thаt moving par- participate in that he be allowed to reli- ty judgment is entitled to a as a matter of gious as he not a Pharmacal, law.” Canderm Ltd. v. Elder Yet, homosexuality. risk on account of his Pharmaceuticals, Inc., 862 F.2d decision, despite Phelps alleges (6th Cir.1988). genuine, To be dispute was thereafter never allowed to must concern upon evidence which “a rea- chapel. enter even J.A. jury sonable could return a verdict for the alleges subjected at 524. He that he was nonmoving party.” Liberty Anderson v. to continuous harassment and was threat- Inc., Lobby, “write-ups” “lock-ups” ened with if he 2505, 2510, (1986). 91 L.Ed.2d 202 attended services. claims he was standard, To meet this “the burden against by being subject retaliated to three moving party may discharged be “write-ups” in following the two weeks is, ‘showing’ pointing out to the dis —that Warden decision. Sowders’s Until trict court—that there is an absence of time, “scores,” good custody had support evidence to the nonmoving party’s awards, good received meritorious time and Catrett, case.” Corp. Celotex v. 477 U.S. a commendation received from his dorm 317, 325, 2548, 2554, 106 S.Ct. 91 L.Ed.2d during for emergency officers his actions (1986). requires 265 It a determination of April conditions 1986. party bearing the burden of against Deputy filed suit Dunn proof presented jury question has as to under 42 U.S.C. 1983 § Celotex, each element of its case. 477 U.S. in district court in October 1987. United 322, 2552; at 106 Taylor S.Ct. at v. Med Magistrate Joseph States Hood recom- tronics, Inc., 980, (6th F.2d 861 987 Cir. summary judgment plain- mended for the 1988). words, “In other the movant could liability assigning on the issue of tiff challenge opposing party ‘put up damages. case trial on the issue of up’ shut on a critical issue.” Street v. J. C. judge rejected The district court this rec- Co., 1472, (6th 886 & F.2d 1478 Bradford parties ommendation and directed the Cir.1989). file summary judgment. cross-motions for summary judgment test for is the summary judgment did not file for same as for a directed mere verdict: “[t]he but instead asked for a trial date. On sup- existence of a scintilla of evidence remand, Magistrate Judge United States port plaintiff’s position of the will be insuf- summary judg- James Cook recommended ficient; there must be evidence on which ment for The district court defendants. jury reasonably plain- could find for the agreed granted summary judgment оn Anderson, 252, tiff.” 477 U.S. at 106 S.Ct. grounds that there were sufficient se- Accordingly, viewing the evidence curity justify Deputy concerns to Dunn’s light most favorable to the nonmov- Phelps appeals, seeking actions. reversal ing party, the court should determine and remand for trial. presents

“whether the evidence a sufficient II disagreement require to a submission jury or whether it is so that one one-sided A party prevail matter must as a of law.” grant This court reviews a of sum Anderson, 251-52, at at 477 U.S. 106 S.Ct. mary judgment novo and it de uses 2512. same test as used the district court. Detroit, University See v. 904 EEOC B 331, (6th Cir.1990). F.2d 334 Under Rule 56(c), Fed.R.Civ.P., summary judgment prisoners Convicted do not forfeit proper pleadings, depositions, protections by “if the reason of an- all constitutional

98 prison- afforded fellow opportunity to the prison. confinement their conviction 520, 545, conventional 99 ‍‌‌​​‌​​​‌​‌​‌​‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌‌​‍S.Ct. ers who adhere 441 U.S. Wolfish, v. Bell Beto, (1979). “Prison v. 405 U.S. 1861, 1877, precepts_” Cruz 60 L.Ed.2d 447 pris- separating 322, These indicate form a barrier cases do not 92 S.Ct. at walls of the Con- protections from the freedom of an individual’s 78, Safley, v. constitutionally Turner stitution.” be expression cannot 2259, 2254, 96 L.Ed.2d 64 84, 107 S.Ct. perceived “group” secu- to solve a stricted degree some clearly retain (1987). Inmates similarly all other situ- rity problem, unless v. protection. O’Lone of first amendment groups are supposed of the ated members 342, 348, 107 Shabazz, 482 U.S. Estate likewise restricted. (1987), 282 L.Ed.2d 96 S.Ct. dealing not a case This is 817, 822, Procunier, U.S. citing Pell v. prohibits homosex- regulation or policy (1974). 41 L.Ed.2d in reli- participating generally frоm uals amendment the fourteenth Specifically, Nor security reasons. gious services making prohib- a law prohibits a state prison- rights of other it concern does v. religion. Cruz exercise iting the free without pastors to have a ers or service 319, 322, 92 S.Ct. Beto, 405 U.S. NTC’s may consider sinners. they those (1972). The court Cruz L.Ed.2d 263 purpose regulations Buddhist, is a prisoner, who if a held that prison’s opportunity of a reasonable was denied right of in- constitutional oppor- To ensure the comparable to faith pursuing his subject religion, their prisoners practice who ad- fellow mates tunity afforded religious precepts, necessary to main- only to the limitations here to conventional security.... discrimination order and clear tаin institutional then there was religion. Ibid. against the Buddhist regula- no Reg. 23-01-01. NTC has NTC in However, participation prisoner’s exercise of homosexual a tions that limit by the To security limited reasons. rights religious can be for services constitutional risk, Phelps valid found security itself must be pose of incarceration a fact deter include objectives, which individual penological such an basis. to be on prisoners, crime, of rehabilitation of rence main- chaplain Edwards Volunteer O’Lone, 482 security. institutional tained, agreed, that Deputy Dunn 348, 2404. When a S.Ct. at at 107 U.S. any “lead- excluded from Phelps should be prisoner’s impinges on a regulation prison in services because ership roles” regulation is valid rights, the constitutional The dis- “security Phelps posed a risk.” pe legitimate to reasonably related if it is evidence held that insufficient trict court 482 U.S. at nological interests. Turner Phelps contest the fact existed to O’Lone, at 2261; 482 U.S. S.Ct. at 107 granting In sum- security risk. posed a “reasonably relat This held judgment, the district court mary ability of correc ensures the ed” standard to bar Dunn’s decision Deputy Warden prob security anticipate tions officials “leadership role” having a Phelps from to the solutions adopt innovative lems and “reasonably related religious services was administra prison problems intractable security and penological interests to the unnecessary intrusion of tion, and it avoids by providing reli- rehabilitation of ill- particularly problems intо judiciary as a whole.” for inmates gious programs O’Lone, resolution decree. suited to is whether in this question case The basic Thus, at at S.Ct. Phelps had was interest that any protected regula prison upheld a court the O’Lone so, and, there was if whether infringed group of Muslims a tion that restricted infringement. for that adequate Cruz, reason However, in security reasons. summary judg- Phelps defeat For actions of unconstitutional court held genuine issue motion, must abe ment there an indi simply prison officials items. as to both of these of material fact op prisoner “reasonable vidual Buddhist interest, protected regard to the comparable With faith pursuing his portunity Phelps appears asserting to be an interest аttention from the issue of homosexuality service, attending particular this both in participation given to the to all “actively participating” and in in it. inmates. February Sowders’s 1987 let- ter stated: Phelps appeal, On claims that suffi My decision on this issue was that all evidence, ig cient which district court given inmates should be the opportunity nored, security does exist that he was not a participate worship services. The risk and that instead was discriminated question preference of sexual was not against participating and banned from considered the decision.... How can because of his homosexu profess we who to be Christians make a ality. Upon examining the record and judgment to include or exclude certain hearing argument, oral find sufficient we may individuals who some inappro- deem disagreement require factual a trial on priate preference? based on sexual Phelps posed security a risk and whether he was denied attendance at the Additionally, it not at all clear that a prison’s religious services. finding griev- was ever made in any of the proceedings did, fact, ance jury

The record indicates that a could pose security risk. Dunn’s initial reasonably pose find that did not holding, agreed where he security prison risk. Both the with Rev. Ed- warden and wards’s chaplain exclusion from the De- determined that service, cember was not security actually did constitute a risk. not Under based reasons, prison regulations, prison chaplain (i.e., security Phelps’s but rather on Polk) “[responsible activity. homosexual “If Mr. Chaplain security wants chapel.” Reg. by speaking, to lead a service singing, 23-01-01. 1.10 et cetera, 1, 1983). affidavit, (July acceptable Chaplain because of activity. his admitted homosexual Polk twice stated that no time did Other support men pose po- risk because of his the services chaplain.” sition taken the volunteer pref- or because of his sexual added). times, (emphasis grievance Chaplain erence. At all Polk The full com- al- mittee, allowing by Deputy the decision lowed in his stand, Then, merely Dunn and Rev. Edwards to after was denied Phelps fig- noted that was “a controversial on December 1986 Rev. Edwards, Phelps through preference” ure due to his sexual and that prison went the grievance procedure appealed both Rev. Edwards and Dunn did all the Warden, Chaplain “not concur in mem- way up Depu- to the who reversed [with Polk] Gay Community leading bers of the the ty Phelps Dunn and held that should be worship finding or participate in service.” No decision allowed to services. Phelps actually made on was The Warden stated: posed security a risk. agree philosophy I do not that permitted only certain inmates should be addition, Phelps’s contention that he is chapel All roles activities. supported by the security not a risk is opportunity be afforded the to should Polk, Chaplain Warden Sow- affidavits pаrticipate leadership regardless roles ders, Sims, Capt. Phelps. As noted preference. of sexual above, Chaplain thought Polk never or Although appellees argue Phelps posed any that found that sort of securi- Warden holding chapel ty Sowders later retracted this vir- risk to his specifically Chaplain tue of his letter to Polk on held that Febru- Warden Sowders ary Phelps it is not at all clear that the be allowed to changed holding his and should not denied Warden initial be letter, along ipation The text the because of his sexual orientation. this letter. finding that testimony, Implicit indi- in this decision was a with Warden Sowders’s rephrased Phelps pose any security risk. Ad- merely cates that the letter did not he holding attеmpt ditionally, Captain Sims testified that earlier to refocus C security pose to a considered never prison or on the in the threat either simple at- the issue of regard to With their asser- Also, to substantiate grounds. claim- tendance, Phelps provided affidavits threat, security posed a that tion attend right the to was ing that he incident of rely only on appellees that af- Phelps averred religious services. actually nothing where December the subse- 2 incident and ter the December However, Phelps attests that happened. he was ruling by Sowders: quent Warden against taken were discriminatory actions services after from prohibited incident. and after that prior to him both attendance; he recеived regular months of however, that court, found district The “write-ups” in two three misbehavior “leadership” role a barring lauded weeks, previously had been while inter- penological to reasonably related inmate”; alleg- and he was an “honor as finding Deputy Dunn’s upheld ests and guards. by prison edly threatened spite risk Phelps was that incomplete to whether as record the con- holding appeal to the Warden’s Additionally, “write-ups.” such received under- court held The district trary. “[t]he un- testified Sowders Warden that Sow- opinion signed is of Warden that “write-ups” occurred but if such sure capricious,” arbitrary and ders ’s decision re- “write-ups” could be such records of added), and that: (emphasis at 39 J.A. However, files. from institutional trieved con- courage to the warden lacked that testify he remembered he did him the situation before squarely front to after something happened had assure necessary to steps take the and to decision, prison that some his favorable religion practice inmates’ all stay might have told officials order and maintaining institutional while and that away from merely Instead, he chose security. Similarly, up. locked might have been squeaky wheel. grease the had testified Capt. Sims court Although the district J.A. deci- “write-ups” the favorable after ceived situation, we takes this view of On other Sowders. sion Warden light most fa- the evidence examine evidence, provided no side, officials ap- nonmoving party, thеre vorable retaliatory assertion, no such except disagree- factual pears to be substantial conflicting affida- occurred. The conduct disagreement to (and thus sufficient ment of an paradigm appear present vits Phelps consti- trial) on whether require requires resolu- fact that issue of material Sow- Both security risk. Warden tuted by trial. tion Polk, charge the one Chaplain ders and summary However, court’s the district charge the other prison, entire on a distinc- holding was based judgment se- no such found religious programs, the magistrate it, appellees, and the tion the subordinates, Deputy curity risk. Their and participation” “general made between contend that now Rev. and Dunn “leadership rolеs.” participation” or “active occurred, were deny actions, they which did appellees’ actions held The court such a of on the basis justified participating generally from not bar agree appears to judge The district risk. merely de- rather religious but allowing subordinates, a without with role. leadership active nied him an weigh or to hear opportunity an fact-finder mere between this distinction objects to Assum- conflicting evidence. obviously leadership, claim- active and participation subordinate deciding, that a ing, without was asking for and only was ing of on the basis actions justify ever can Thus, rights. general participation he existence over whose prison ‍‌‌​​‌​​​‌​‌​‌​‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌‌​‍conditions what issue of cоnstitutes is a factual there certainly superior, there with his disagrees and services” “participation fact as issue of material genuine a remains was denied security whether such conditions, the those to whether Phelps. existed. Phelps, actually by posed risk question “partic- moot, however, regard to the of state law is With in view of would, ipation,” a of attendance of denial the ultimate by conclusion reached course, obviously par- constitute a denial undersigned. well, “general” ticipation as or J.A. Thus the district court did not exception “active.” With the of the De- rule ground. for defendants on this service, cember which Rev. Edwards In finding that Rev. Edwards was not a himself, entirely conduct chose to actоr, magistrate relied on West any way thus did not in discriminate which Atkins, v. inmates, between and other neither (1988): 101 L.Ed.2d 40 alleges side instances where was “The traditional acting definition of un- “participate.” not allowed to attend but requires der color of state law that the But, quite specific evi- absence of defendant in a 1983 action have exer- § dence of concrete discrimination on an im- power ‘possessed by cised virtue of state permissible ground, federal courts should possible only law and made because the determining ques- not become involved wrongdoer is clothed authority ” lay people liturgical tions of selection of of state law.’ “To constitute state ac- They participatiоn. should no more review tion, deprivation ‘the must be caused general choice of soloists and readers the exercise of some privilege or among group a of candidates than person created the State ... or they of second should réview choice responsible,’ for whom the state is addition, prison trustys. baseman party charged deprivation ‘the against prison’s policies policies and other person may fairly must be a be said ” religion” do “discrimination on the basis of abe state actor.’ apply persons not the choice (citations omitted) J.A. ipate Magistrate The then reasoned that Therefore, appears question it that the Notwithstanding agreement between participation”

what constitutes “active is Edwards, whereby NTC and Edwards presented this set facts. The permitted to conduct ser- attendance, however, question square- NTC, Edwards, performing vices at while ly presented genuine and raises a issue of interpreting his ministerial duties of injury material fact as to whether Bible, preaching the words protected done to a interest. chap- tained the essential attributes of a performing religious lain in a Ill non-prison setting. this extent he To appeal, parties agree that On both independent of the state.... granted summary the district court also J.A. at 55. judgment appellees grounds on the However, in order for bring Phelps could not 1983 action § chaplain at the NTC bеcome volunteer against Rev. Edwards because was not prison he had to meet all the criteria estab- party a state actor. Neither had raised or by the NTC Citizen lished Involvement this issue the district court. briefed before Program. Reg. Volunteer Services magistrate found that Edwards program “operate[s] under 26-01-01. This However, although was not a state actor. auspices guidelines by the and established ruling the district court’s was based on Kentucky Cabinet” and the Corrections magistrate’s adoption of the recommenda process Volunteer selection is sim- “[t]he tions, actually never ruled on the the court paid per- selecting ilar to that used state actor issue. sonnel_” (em- Reg. NTC 26-01-01.F agree plain- The сourt does not added). phasis Magistrate tiff’s contention that the regulations re- finding regard importantly, Most the erred his with to defen- sign shall question quire The of that volunteers dant Edwards. whether “[a]ll poli- agreement by to all institutional acting the defendant was under color of abide 102 from significant aid or has obtained Reg. 26-01- er with NTC procedures.” and cies is officials, his conduct or because state report the estab- to must 01.J. Volunteers Ibid. chargeable to state. otherwise regula- The chapel command. line of

lished “shall be volunteers provide also tions to conduct Rev. Edwards’s Here card identification an institutional issued privi- a chapel was prison services orien- training and completion upon As to whеther by state. lege created NTC for the task....” required tation a fairly said to be may be Finally, Reg. 26-01-01.1. “something actor, requires Lugar state pro- gov- pursuant individuals to action are trained than more” mere [v]olunteers basis; “something there- regular authority. a Whether viding ernmental guest pri- exists, distinguished from convert a fore, which would are more” [sic] actor, musicians, other varies guests or into state party a speakers, vate person- Id. at of the case. by Corrections the circumstances are not “trained” regular scheduled provide not S.Ct. nel and do institu- not receive do Guests contract, Rev. Edwards By signing the cards. tional identification operate under all institutional agreed to A Reg. NTC. procedures 26-01-01.N. pоlicies NTC and part and as chaplain functions volunteer to become a signing this contract By structure the institutional within NTC, Edwards chaplain at Rev. volunteer guests from distinguished He is command. regulations and by NTC’s agreed to abide given privileges by being and visitors Reg. 23-01-01 that including NTC policies, including employees, only to granted NTC prac- to the freedom all inmates guarantees identifi- training and an institutional special security restric- to subject religion, tice may well While Rev. Edwards cation card. regulat- having and purpose of tions. of a general attributes have retained ensure religious services prison ing “[t]o set- non-prison in a performing clergyman prac- right of inmates the constitutional conducting Rev. ting he was only the limi- religiоn, subject tice their setting. non-prison in a was not Edwards necessary to institutional maintain tations had Rather, working he was Reg. 23-01- security_” order specifically agreement that signed an Phelps alleges that 1, 1983). (July access denying prisoners him stricted prison policies, as violated Edwards own religious services on basis decision, by Sowders’s Warden interpreted Thus, district even if the religious beliefs. from at- barring him by participating grounds, on state relied action court had interfering with his tending chapel, been correct not decision would have religion for reasons practice his right to circumstances. under factual these security. related court, holding the district We REVERSE Inc., Co., Oil v. Edmondson Lugar as inappropriate summary judgment is 922, 102 73 L.Ed.2d S.Ct. as tо fact exist of material genuine issues a two- set forth (1982), Supreme Court security risk Phelps posed a the ac determining whether part test servic- depri causing the party private of a tions proceedings for further REMAND es. We right are attributable of a federal vation opinion. with this consistent must be deprivation First, the state. right or of some exercise by the caused NELSON, Judge, Circuit A. DAVID by a rule or privilege created dissenting part. part and concurring in by the state imposed conduct presents genu- record agree that the I responsible. the state person for whom to whether of fact as Second, ine issue 102 S.Ct. at Id. Mr. barred improperly Dunn Warden must be deprivation charged with the party religious services. Phelps frоm to be a fairly said may be person who view, my in presented, is issue No such he is a may be because This actor. state Edwards. the Rev. Mr. respect togeth- with acted official, he has because deposition equal participation chapel in me in gave a sworn services.” Rev. Edwards “specifically let Phelps go that he continued to to the which he testified services— he in Phelps] know that was welcome dispute there is no about this—and he com- [Mr. congregation any at time.” my service and plains together that Rev. Phelps it only asked what Dunn, It was Deputy Warden “barred me from to lead take for him to be allowed would participant active being chapel in sing “special” that Rev. singing or (Emphаsis supplied.) services.” Both him “he would have to be Edwards told Phelps and Rev. Edwards draw a distinc- (The scrip- looked at the Biblical.” men tion between active and sim- pointed Edwards together, tures and Rev. ple attendance. interpreted saying as passages out Phelps’ affidavit indicates that there homosexuality permitted not for is “effectively came a time was Christians.) undisputed It is barred,” chapel, from the but it is that he could not given to understand kept him Warden Dunn who is said have sing- leading singing or away: ing long engaged as he what solos as “Although Deputy Dunn not the gay referred to as “active Rev. Edwards services, responsible warden repeatedly testi- practice.” Rev. Edwards effectively me from the he still barred hand, fiеd, that he never on the other chapel. During early stages my attending servic- Paul from barred grievance, or defendant Dunn instructed es. Capt. to tell me that if I allowed Sims Mr. to initiate prompted What coming chapel I keep continued to “equal denial of this lawsuit was the up. Effectively, Dunn would be locked That is ipation” keep chapel by me out of the contin- did Phelps said the affidavit what Mr. ually having up me written or locked taking Rev. Ed- subsequent to the filed up.” is he said deposition, and that what wards’ (That complaint original complaint. in his unequivocal testimo- Given Rev. Edwards’ barring Edwards of did not accuse Rev. (Rev. Edwards) never barred ny that he servic- Phelps from attendance attending it Paul es; said, rather, was that the defеn- what it Phelps’ to me that affidavit does not seem part “denied me an active dants create a triable issue of fact is sufficient to services_”) I is concerned.2 as far as Rev. Edwards judgment of the therefore affirm the would Phelps’ cites It true that Mr. affidavit Edwards. court in favor of Rev. district one occasion which practicing “that a supposed to have said to attend his

homosexual was not allowed I not

services and that was welcome ‍‌‌​​‌​​​‌​‌​‌​‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌‌‌​‍The next sentence of the affida-

chapel.” however, brought

vit, says Sims, Capt. who

incident to the attention deny that he could

“instructed Edwards properly inter- "security could not eluded that the courts that he had Rev. Edwards indicated 1. wanting choice in freedom of for not active homosexuals with Rev. Edwards’ reasons” fere testimony, singing give matters, he said fully agree. but lead the and I such deposi- reasons.” The he also had "conviction as con- such considerations tion never mentions interesting question have been would An AIDS, spread fact that or the cern over the sought to bar presented had if Rev. Edwards engaged practices which violated and had the services from even law; Kentucky prison regulations Rev. Ed- doing Rev. Ed- so. cited doctrinal reasons concern, deposition makes real as wards' very allowing all problem with had no wards said he clear, people openly flouted was that however; attend, just in churches as teachings to he the Rev. Edwards took what outside, be welcome as "would homosexuals be selected to lead the Bible should not the liturgy. My congregation.” they be in the could colleagues panel on the have con-

Case Details

Case Name: Paul Phelps v. Wayne Dunn and Clark Edwards

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 28, 1992

Citation: 965 F.2d 93

Docket Number: 91-5835

Court Abbreviation: 6th Cir.