Sutton v. Rasheed

Second, that the Dis we conclude Wise; SUTTON; X. X. Robert Richard affirming the by err did not

trict Court Walker, Appellants Michael X. calculation of CVC’s Bankruptcy Court’s it could that because argues profit. CVC profit on the claim realized only have equivalent Smith, cash RASHEED; if the

purchases Adeeb James Imam it could receive under Menei, Chaplain; that BDK Chaplain; Units Francis million that Kyler; Palakovich; $10.5 BDK Plan exceeded Kenneth John claims, the calculation Horn; paid CVC F. Martin market value of those fair must be the (Intervenor than sufficient evidence More America

BDK Units. States of United Court). Bankruptcy that Court demonstrates District profit based valuing CVC’s by did not err No. 97-7096. time of value at the reorganization on the All Plan confirmation. the BDK Appeals, States Court United CVC, creditors, including were to receive Third Circuit. basis, equal determined BDK on an Units of interests 2002. proportional Argued share March by their uphold the entity, and we reorganized Filed March of the Bank affirmation District Court’s calculations. ruptcy Court’s argues

Finally, the Committee by reducing Court erred the District

that of lost inter on account

the subordination $50,123. $956,250 to This

est income Because there was is meritless.

argument of the delay the issuance

a four-month securities, Bankruptcy Court

debt $965,250 by multiplying figure

came to the all the $239,062 monthly interest on The District by four.

debt securities correctly noted the securities

Court notes, provide which would ten-year years of interest re ten

the Committee - they were issued. Mem. of when gardless (Feb. 2002), at 24-25. We

Order that the District Court conclude

therefore calculating the lost interest

did not err delay years of the ten

by a four-month

interest. reasons, we will af- foregoing

For the

firm District Court. judgment THE COURT

OPINION OF PER CURIAM: appeal an from an order of This is sum- granting defendants District Court on claims that defendants mary judgment alia, upon, plaintiffs’ rights inter infringed protected by the Free Exercise Clause Plaintiffs, three the First Amendment. Islam,1 contend members of the Nation Department of Pennsylvania Cor- limiting inmates’ rections’ former while access to material special high- unit for confined — was unconstitutional both risk inmates — applied facially because defen- “ille- “unlawful rules” to dants used ban” Nation of Islam texts. gally a hold that there was constitutional We violation, that but because we conclude protected by qualified im- defendants are munity, we will affirm.2 I. Fine, Kaplan Jeffrey (Argued), Istvan S. response days to three of riots PA, Black, Philadelphia, Appellants. for

& by prisoners at the State Correctional of At- Filipi (Argued), R. Office Francis Hill”), Camp (“SCI-Camp at Hill Institute Pennsylvania, Harris- torney General Department Pennsylvania of Correc- PA, burg, Appellees. for created, April designed, tions (“SMU”) at Special Management Unit Fairall, Jr., Department E. William SCI-Camp Hill. Prior to the establishment Corrections, Hill, PA, for Amicus- Camp SMU, SCI-Camp high-risk Hill in- Pennsylvania Department Appellee, Pennsylvania prisons placed were mates of Corrections. (“RHUs”), max- housing units restricted BECKER, num- custody settings imum still used at a Judge Chief Before: POLLAK, SCIRICA, institutions other than Judge, and ber of correctional Circuit aspect A of the RHU Camp Hill.3 salient Judge.* District * Poliak, jurisdiction 2. We have under 28 U.S.C. Honorable Louis H. United States The § 1291. Judge for the Eastern District of District Pennsylvania, sitting by designation. Department According of Corrections Re- Jeffrey gional Deputy Dr. Commissioner 1.The is "based on Nation of Islam movement Beard, disci- RHUs are used for both "[T]he [Qur’an] by Elijah interpreted Muham- inmates, custody plinary and administrative the Nation." Coo- mad and ministers within housing provide for both inmates secure Tard, (3d Cir.1988). per 855 F.2d long-term require confinement in maxi- who regime, as it at existed the commencement staff both and inmates while at the same litigation, this was its limitation on what time giving inmates with a long history of reading materials an RHU inmate could problems behavioral various incentives to keep Department with him. of Correc- modify their behavior. program The (“DC- tions Administrative Directive 802 prepare functions to such inmates for 802”) provided ADM that inmates in ad- reintegration into the general prison pop- custody ministrative “no ulation.

books other than legal materials and a Some begin inmates their time in the Bible, personal Holy Koran4 or other reli- IV, at Phase begin but most gious equivalent....”5 Department of Phase III, V. IV, Inmates in Phases and V Corrections Administrative Directive 801 are under regimes: restrictive (“DC-ADM 801”) they are similarly provided: “[ad- placed under strict security and control custody] ministrative per- inmates will be practices; they have short peri- exercise legal mitted material that may be con- ods; (1) and they have tained in limited one access to records center box.... their Bible, personal personal Koran, A own property. At Holy equiva- the outset of publication lent permitted.” litigation, V Phase SMU inmate’s personal access to property was confined regulations governing the SCI- to a newspaper, package one cigarettes Camp Hill SMU were modeled on those every weeks, two one records center box of governing RHU.6 But unlike the De- (“with legal materials even exchange”),8 partment of Corrections’ traditional re- consisting materials of one units, stricted housing the SMU is a “Bible, personal Quran or equivalent structured program provides pro- only.”9 Phase IV privi- increased inmates’ gression through a phases, series of five leges slightly, I, but still from Phase to allowed V Phase at them a point which “Bible, Quran, equivalent the inmate is or general only.” returned to the pris- At III, population.7 on Phase an Progression inmate from one was allowed to have to phase legal materials, the next accomplished by is Qur’an, com- Bible or and pliance specified with goals and “[two] is reward- other reading materials.” ed by additional privileges. II, The intent of At Phase an inmate permitted was program provide is to security materials, legal Qur’an, a Bible or and four housing mum inability 29, because adjust of an to Department 7. In a June of Correc- general to population life in as well as statement, tions the SMU is defined as for those custody who need only such in the special "A designated unit within Department short term to tempo- address a misconduct or designated Corrections safely institutions to rary security need.” humanely handle inmates whose behav- presents ior a serious safety threat to the 4. "Koran” spelling is an alternate staff, inmates, security facility, other "Qur'an.” him or herself.” 802, 5. DC-ADM provided section V authority "Program for a Review Committee” or "Unit According 8. appellees, “[a] records Management privileges Team” to add "based approximate center box has interior dimen- need, on an safety individual's and securi- (wide) (long) by sions of 15 inches 12 inches ty, progress and on behavioral of the inmate.” by (deep).” 10 inches Department 6. The summary Corrections’ "Quran” is spelling another alternate regulations, Appendix those III to the SMU “Qur’an.” Handbook, Inmate reprinted appen- as an opinion. dix to this issue, stored appears to have been At at reading materials. other Olenowski, in Property to the Room. I, was returned inmate SMU Phase an “ex- privileges turn, all with Imam Rasheed whether population, asked general con- be [would] movements cept that Imam Rasheed re- religious. [his] books were monitored.” trolled and and Olenowski denied sponded negatively, 27, 1994, May By to them. access Sutton confined X. was Richard Sutton Plaintiff program, III of the reached Phase Sutton 5, until from October in the SMU and, regulations, permitted was under the 20, 1995, was transferred when he July to the religious texts addition Robert X. two Plaintiff Wise SCI-Greene. 3, January of Is- Qur’an. requested from two Nation the SMU He was confined 27, 1994, he when December But personal property. 1994 until lam texts from his SCI-Graterford; was transferred denied the Property Officer Stone Acting 2000, in the general he was August religious books request “[n]o because Plaintiff Mi- at SCI-Albion. population by the that were authorized found [were] in the confined X. chael Walker [i.e., Imam Rasheed].” until August from November 30, 1994, filed an May Sutton Official On to SCI- he was transferred when A. directed to defendant John Grievance has now been Plaintiff Walker Rockview. Palakovich, Superintendent’s Assistant All are adher- prison. three released July Hill until SCI-Camp at from 1979 Islam. the Nation of ents of grievance 1995. Palakovich forwarded 1993 and October times between Several Smith, Reverend James W. to defendant Imam defendant Sutton asked May Director Facility Chaplaincy Program Rasheed,10 Chaplain at Muslim Adeeb addition, SCI-Camp Hill. In Sutton Hill, per- would be whether he SCI-Camp Ken- the assistance of defendant sought to various texts have access mitted to Superintendent D. of SCI- Kyler, neth Muhammad, Elijah Mu- Fard written resolve the Camp attempt Hill. an from his Louis Farrakhan hammad manager, Arthur impasse, the SMU Unit Believing the texts property.11 personal Auxer, together with Reverend Smith Imam Rasheed deter- religious, Rasheed, Sutton. That Imam met with not be Sutton should mined that appears to have been contentious. meeting period, During the same them. access to Message expressed his belief that Sutton Olenowski, the asked Officer Sutton also Blackman, principal one of the to Officer, in for the books Property SMU Muhammad, Elijah of was works personal property, The inmates’ question. — Imam” Rasheed was “not an of Islam texts and that the Nation which includes Blackman, Supreme Message The Wis- spells caption of this case the Imam’s 10. The dom, Live, deposition testimony, "Rashid." Eat Our Savior Has name as How to spelling addition, proper of stated that the Imam The America. In Arrived and Fall of This "R-A-S-H-E-E-D.” his surname is attempted The Mean- plaintiff Wise to obtain opinion will use the latter spelling. ing by Farrakhan and The Wake FOI Louis of by Silas Muhammad. the Nation Islam of of the founder of the Muhammad was 11. Fard deposition, plaintiffs' expert, Aminah In her Islam, and followers believe him Nation of McCloud, Beverly professor a of Islamic Stud- Elijah is the Messiah. Muhammad have been Religious Department Studies at ies by Islam faithful to have believed Nation of University, that the texts in DePaul states promi- a prophet. Louis Farrakhan is been a reading by "required the faith- question are of the branches of the minister in one nent report is unrebutted. ful.” Her question are Islam. The texts in Nation of primarily by Elijah Muhammad: those written presumably meaning that he was not a The general contents of each of the Nation of Islam Imam. Imam and Rasheed aforementioned books appears to be of a Reverend social/political nature, Smith insisted that Message to referencing both the Blackman not an racial superiority political Islamic text. activism. meeting Religious ended without discussion resolution. is generally in the context of a agenda, social making “reli- 9, 1994, On June Sutton filed a second gion” a vehicle for promotion grievance Palakovich, with Superinten- central ideologies in books, these Assistant, dent’s stating he did “not be- essence of which smacks of racism and lieve doctrine same as Rasheed.” hatred. On June Palakovich again denied Sut- Religion, definition, by begins and ends request ton’s for the books because “[t]he with a search for and discovery of God. in question books were received Chap- These books are about attaining politi- lain Rasheed and determined not to be cal program, “religion” merely attached religious in nature.” The day, same Su- to their itinerary as a component useful perintendent Kyler denied the appeal that to achieving this end. filed, initially Sutton had writing that It is my therefore opinion that these “[s]inee the books in question are not con- books are not essentially religious in books, sidered religious you may not re- nature. ceive them at Kyler this time.” also

wrote, “It pointed later, should be Two days out without reviewing the Chaplain Rasheed as in question, the Muslim books Ima[m] Father Menei wrote to considered authority when Sutton making regarding appeal, his stating, “We determination on type this have determined that book.” these books are not again When Sutton wrote to Kyler essentially religious nature,” asking and that for the basis of Imam Rasheed’s “these books smack authority, hatred, racism Kyler responded I that “Rev. is an know of no Rasheed God that wants us to Islamic worship Minister and as such is the him recog- way.” nized authority institution on the Muslim Plaintiff Robert X. appears Wise to have religion.” gone through a similar peregrination. At point prior some to June July

On Wise Sutton wrote to defen- attempted gain access to dant various Nation Menei, Father Francis T. Administra- of Islam kept texts in the property lock-up. tor of Religious Family Services at Wise was not allowed to any have Department Corrections, his explaining that Nation of Islam Rasheed, books because he Imam was at Muslim, as a Sunni did Phase IV of the program, only which follow the Elijah teachings Muhammad. Bible, access to Qur’an again requested He access to his Nation of “equivalent religious 6, text.” On June Islam texts. Father Menei asked Rever- Wise filed a grievance Palakovich, with end Smith to review the books. In a that he explaining was a member of the Menei, memorandum to Father Reverend Nation of Islam and that he had Smith been wrote: texts, denied access to the questioning and 26, July On 1994 I reviewed the follow- authority of Imam Rasheed to deter- ing Elijah books by written Muhammad: mine whether Nation of Islam texts were Our Savior Has Arrived” religious. Reverend responded Smith “Message to the Blackman” that grievance, noting that Imam Rasheed “How to Eat to Live” had determined the material in question and Palakovich and Commissioner Kyler and that an inmate at religious was not As the Dis Martin F. Horn. “his Corrections only permitted access to Phase IV summarized, compendiously trict Court Super- appealed to holy book.” Wise main in the principal put claims forward arguing he did not “wor- Kyler, intendent that defendants’ complaint amended Imam that Orthodox the same God ship [plaintiffs’] reli deprivations of “alleged ap- that worships.” Kyler denied Rasheed [plaintiffs’] ... violated gious materials Chaplain is the “The Muslim peal, writing, religion under rights to: free exercise if determining authority religious Religious First Amendment and concluded, or not.” He books Act, 42 Restoration U.S.C. Freedom it not to has determined [Rasheed] “Since (the (1993) ‘RFRA’); § free 2000bb-bb-4 permitted have you are not religious, be religion by dom from the establishment wrote, “I Kyler in the also it while SMU.” Amendment; under the First due the state improv- concentrate on suggest you would equal protection under the process and adjustment to be released from ing your Amendment; rights Fourteenth and you may time have the at which the SMU 1981, 1985(3), §§ and secured U.S.C. in question.” book Rashid,13 97-7096, No. Sutton v. 1986.”12 12,1994, July Wise point At some before (M.D.Pa. 3, 1996). Sept. unpub. op. at and system, III in the SMU Phase reached complaint sought “[compen The amended access to the Nation of Islam again sought satory punitive damages, and as well as requests were denied on texts. His declaratory injunctive relief and attor Imam Rasheed determined that ground 3, 1996, neys’ September Id. On fees.” 15, July religious. not On the texts were granted District defendants’ motion Court 1994, with Palako- grievance filed Wise summary plaintiffs’ free judgment for vich, request for the texts who denied plaintiffs’ exercise claims and denied mo determined the Smith because Reverend summary judgment. On partial tion for were not question books 21, 1997, grant January the District Court in the SMU. supplemental motion for ed defendants’ 1993 and the fall of Between November summary judgment remaining on the Michael X. also inmate Walker timely appeal. In claims. Plaintiffs filed Nation of Islam tracts various requested judgment order dated November and Louis Farrak- by Elijah Muhammad judgment of the we affirmed the were denied. requests han. His Plaintiff-appellants District subse Court. petition panel rehearing,

quently filed a II. granted. which was 29, 1998, argument pro and Wise filed a se On October oral Plaintiffs Sutton court, against before this counsel for defendants complaint in November Rasheed, policy under attack had argued Imam Reverend that the defendants Smith, retaining changed, August effective Father Menei. After been making argument, counsel relied in the summer Sutton counsel Walker, allegedly Wise, plaintiff with filed two administrative directives together and 802 “to allow complaint, adding defendants amended DC-ADM 801 an amended officials, plied upon RFRA to the states and hence to state contentions based 12. Plaintiffs' congressional power). exceeds by the decision in RFRA rendered moot have been 507, Flores, City 521 U.S. 117 Boerne noted, (as 2157, (1997) misspells ap- caption Rasheed. As 138 L.Ed.2d S.Ct. inmates to maintain religious, Bible, as well as in the Qur’an, RHU to a or equiva- (1) material, legal in one records center text, lent religious despite at- Sutton’s box”; Jeffrey and the declaration of Dr. tempt to convince the officer involved that Beard, explaining the reasons for those the cited policy was no longer effect. In represent- amendments. Counsel further Department of Corrections’ responsive that ed the Nation of Islam in ques- texts papers, Superintendent John McCullough permitted. tion are now “absolutely” stated: response representations, plain- to these I am aware that an inmate currently at filed, 28,1998, tiffs on December a “Motion institution, my Richard X. Sutton ... Supplement Appeal.” Record on has submitted an affidavit in which he proposed Because the additional informa- represents that the amendments keyed tion question to the of moot- [DC-ADM] and 802 August effective ness, granted we plaintiffs’ motion and di- 16, 1995 are either not in effect or not rected defendants to file a memorandum being faithfully followed. addressing supplemented. record as That is not correct. To the contrary, 965, See Clark v. K-Mart Corp., 979 F.2d the bulletins that were issued and made (3d Cir.1992) (en banc) (“[B]ecause 16, effective from August 1995 ... have jurisdictional issue, mootness is a may been in full force effect the entire issue; receive facts relevant to that other- time SCI-Houtzdale has open been

wise there would no way be to find out if confine inmates. moot.”). appeal an has become enlargements to the record include appreciate I that Mr. Sutton’s December an affidavit from Sutton and two institu- grievance ... would lead the grievance tional Together, forms. these casual reader to the conclusion that Mr. Sutton, suggest documents while as- Sutton was denied the additional books signed to the Houtzdale RHU in Decem- because he was by limited the former ber of requested, personal from his Bible, to one Holy Koran or its property, the following texts: The Flag of religious equivalent. This is in- simply (by Elijah Muhammad), Islam Seven correct. The issue being addressed (by Farrakhan), Speeches Louis A Torch- (al- through Mr. Sutton’s grievance light (by Farrakhan), America Louis though this is not clear either from his The Convention Oppressed (by grievance or from response he ulti- Farrakhan), Louis How to Teach Math to received) mately was whether the two (by Muhammad), Black Students Shahid books written Tynnetta Mother Mu- (author Light the Ancient African (which hammad books unknown), Creating (by Wealth Robert G. permitted would have been so long as Allen), Black (by Economics Jawanza they could be contained with Mr. Sut- Kunjufu), My Journey Traveling Life’s ton’s legal other and religious material with the (by Tynnetta Wise Man Mother box) in a records center or were edu- Muhammad),14 The by Night Comer (by (which cational books the inmate Tynnetta Muhammad), Mother and This Is possess in the status that Muhammad). (by One Jabril Accord- in). Mr. Sutton was then ing affidavit, to his Sutton was denied ac- cess to these texts on the regula- April basis of appellants On filed a Sec- tion DC-ADM which limited inmates ond Supplement Motion to the Record on Tynnetta 14. Mother Muhammad was the Elijah wife Muhammad. Wise, found that even after state correctional containing an affidavit

Appeal, facility superintendents in were informed of prior policy the remained stating that 28, 1999, SCI-Albion, misinterpretations April on policy where he was con- effect at persisted.... and limitations Concluding ap- that the record on “distinctions fined. procedure an administrative sufficiently augmented, Although we peal had been arose, place disputes in the where motion. that denied previous continued to follow authorities 1999, 12, we entered an order July On reli- practices determining what was to “file succinct mem- parties directing the practice continues.” gious material. This changes poli- reflecting relevant oranda The District Court also referenced a De- submissions.” additional law or cy, policy change partment Corrections submissions, we remanded these light of that February made in 2000 and observed (while 20, September on ease policy religious the new failed to define to the District Court jurisdiction) retaining materials, an issue “which continues be to determine whether “instructions with continuing misinterpreta- at the root of injunctive declaratory for claim tions.” putative view of the moot is relief memorandum, “[i]n We stated that policy.” the District change After Court’s determination, may February policy Court putative 2000 SMU making 17, how April to ascertain Corrections change .... became effective 2000.15 wish re- whether book policy determine Because the effects of this latest officials qualifies religious determined, prisoner as change yet had not been we quested policy, the current under remanded on 2000 to the again material June of Islam re- books [Nation “with directions to deter- whether District Court available to inmates as reli- plaintiffs’ injunc- quested] mine whether claims for ” gious declaratory materials.... relief are moot.” tive remand, the District entered the District Court held a On Court Accordingly, 27, 2000, 21, 2000, January August advising on that the most an order hearing on Department plaintiffs’ injunctive claims for and declara- recent incarnation implementation. tory Sup- and its relief were not moot. But in a policy Corrections Order, plemental Memorandum dated subsequent the District Court October In a injunc- changes to the the District Court stated the August found policy declaratory tive and relief claims were Department of Corrections confusion, re- The District Court also moot.16 To resolve this poorly enforced. February policy change (targeted February which became effective on 15. 15, 2000) 17, 2000, provides go effect on March April throughout into was issued custody] ''[disciplinary inmates will be Department Pennsylvania of Corrections facil- religious, legal retain as well as ities; (3) employees provided were not awith may be contained in one record materials that religious definition of in the material Any additional or mate- center box. (4) change; may an inmate have much upon stored and made available rials will be legal combined material as will fit exchange request on an even basis. Not more box; (5) inside one records center an subject every day ap- than one unless aggrieved by inmate a decision on what is Department proved by of Corrections.” may grievance ''religious material” file a challenge. The District also slated "the Court Memorandum, Supplemental In the 'religious' broader issue of what is defined as (1) specific Court found: books District them; present in the case remains constitu- material sought provided have been (2) tionally questionable.” undisputed policy change it that the again “fully manded with instructions to fit into one standard sized records-cen- 16, with ter box: comply” our June Order.17 supple- to file granted

We also motions a. Written materials in accordance granted on mootness and mental briefs 803, with DC-ADM “Inmate Mail and supplement appeal. leave to the record on Publications”;19 Incoming 21, 2001, On March we reaffirmed our (one-for-one newspaper b. One ex- prior requesting remand the District Court changes permitted newly are re- to issue a final order on mootness and to editions); ceived make a determination whether this was an (one-for-one magazines c. Ten ex- injury capable repetition yet evading changes permitted for newly re- requested review. We also the District publications). ceived findings Court to make of fact and deter- pressed mine whether still dam- Additionally, facility each will establish age claims. procedures permit to inmates to ex- change legal materials from their cells remand, After this the District Court legal with stored every materials once injunctive held that the claims for days.20 Program Review Com- declaratory relief were moot. The District mittee may authorize more frequent ex- on holding Court based submissions changes upon based a demonstrated Department from the of Corrections about need that the requires inmate additional adopted a new SMU directive October exchanges litigation. for active Such le- “virtually 2001 that each inmate allow[s] however, gal exchanges, material may to determine what is material.” per not exceed one week. The District Court observed “because we 801-3, DC-ADM “Disciplinary Custody changes concluded to Directives Inmates,” IV, amending Status section M. law, 801 and 802 have force we do not injury believe that type likely was of a The October 2001 amendment to DC- happen plaintiff again regardless of provides: ADM 802 declaratory injunctive relief.” The 4. Custody] [Administrative in- status District Court also stated that damages permitted mates shall be to maintain in claims remained pending. any personal their cells combination of The October 2001 amendment of DC- property following from the list that will provides: ADM 801 standard-sized, fit into one records-cen- ter box: [Disciplinary Custody] in- status mates shall be to maintain in a. Written materials accordance with any personal their cells combination of DC-ADM “Inmate Mail and Incom- Publications”; property following from the list that will ing Order, (effective 2002) prior 17. Just to this the District Court 19. DC-ADM 803 June es- "policy procedures governing Supplemental tablishes submitted the Memorandum privileges incoming publica- inmate mail clarifying previous his memorandum. tions.” 18. The District Court was advised the Of- Department 20. Based on the of Corrections' Attorney Pennsylvania fice of the General for representations oral to this Court and the policy "formally adopted that another Court, interpret District the October 2001 5, 2001, October and is contained in Adminis- permit exchange religious inmates trative Directives 801 and 802.” legal materials. (one-for A. one ex- newspaper b. One newly re- permitted changes matter, we preliminary aAs editions) ceived whether the inmates’ must determine court “a federal claims are moot because (cid:127) (one-for-one ex- magazines Ten c. advisory power to render has neither newly re- permitted for changes are can questions to decide that opinions nor publications). ceived litigants of the case rights not affect the access to provided Inmates will be 5. Newkirk, Preiser v. 422 them.” before library by requesting facility law 395, 401, 2330, 45 L.Ed.2d 95 S.Ct. U.S. with local in accordance materials legal (1975) omitted); see also (quotations 272 reading material Leisure procedures. Watson, 195, 4 206 F.3d Abdul-Akbar v. weekly on a basis requested may be (3d Cir.1993). An inmate’s transfer from library. from the moots facility complained generally of facility each will establish Additionally, declaratory claims. Ab equitable (former ex- dul-Akbar, inmates to permit 4 at inmate’s procedures F.3d 197 from their cells re legal prison library’s legal materials that change claim every legal constitutionally inadequate materials once with stored sources were plaintiff moot because was released days.21 30 was trial). But these claims five months before 802-10, “Administrative Custo- DC-ADM challenged action is are not mooted when IV, Status,” amending section dy Housing (1) fully litigat in duration “to be too short M, 4 subsections expiration”; prior to its cessation or ed 6, 2002, a (2) on March argument At oral likelihood “there a reasonable [is] representative Department of Corrections complaining party would be that the same policy, the con- under the new that subjected again.” stated action Id. to the same center boxes inmates’ records 206; tents of Mesquite v. Aladdin’s see also Department of Inc., 10, “not examined.” were 455 298 n. 102 Castle U.S. explained also representative (1982). Corrections 71 L.Ed.2d 152 When S.Ct. procedures were available grievance that policy, voluntary there is a cessation of claiming policy the new for inmates if there claim will not be rendered moot properly applied. being plaintiffs that will possibility remains the “in disadvantaged the same fundamen

be way.” Chapter Northeastern Fla. tal III. City Am. v. Assoc. Gen. Contractors Jacksonville, 656, 662, 508 113 S.Ct. grant the District Court’s U.S. Our review of (1993). Instead, plenary. 124 L.Ed.2d 586 judgment is John summary (3d Horn, grounds an action on mootness F.3d Cir. dismissal of son v. 1998). judgment requires the defendant to demonstrate summary is grant A expectation no reasonable genuine issues that “there is if there are no appropriate repeated.” Id. moving party wrong and the will be fact22 of material omitted); see also (quotation as a matter of law. United States judgment entitled 629, 633, 56(c). Co., v. W.T. Grant 345 U.S. Fed.R.Civ.P. 6, 2002, noted, 22. At oral interpret argument on both March 21. As the October exchange religious parties agreed issues of material fact that no policy permit inmates to remain. legal materials. (1953) (discussing prior policy S.Ct. 97 L.Ed. 1308 access to ad- factors, including several “bona fides of materials,” “religious ditional plaintiffs expressed comply, intent effectiveness repeatedly denied access to Nation discontinuance, and, cases, in some of Islam texts period over a of several violations”). past character of years while SMU changes were be- implemented. ing noted, plaintiffs As Here, none of the remains con- were not allowed access to books Eli- Hill, at SCI-Camp fined and class action jah Muhammad, others, among because status has not been sought. Wise and prison they officials determined were not provided Sutton have been specif- with the Hence, religious. plaintiffs’ claims for ic requested, Nation of Islam books and damages despite remain their Walker has been released transfer prison. from 5, 2001, out of the SMU and the recent policy policy Since October a new SMU changes. in allowing has been effect inmates access “any of personal property” combination

that can fit into one records center box.23 B. We are policy satisfied this one-box will now turn We to defendants’ con representa- not be rescinded based on the tention that Commissioner Horn and Fa Department tions of the of Corrections ther Menei personally were not involved in made before us on March 2002. Fur- complained-of actions and are thus en thermore, strong there are administrative titled to in judgment their favor.26 Under unlikely incentives it making that the new cases, our “[a] defendant in a rights civil policy will be reversed.24 We conclude action must personal have in involvement plaintiffs longer present justiciable no a alleged wrongs” to be liable. Rode v. claim for declaratory injunctive and relief. (3d Dellarciprete, 845 F.2d Cir. 1988). Here, there is no evidence that plaintiffs’

But damages claims are Commissioner Horn any personal had in noted, still extant. As under the now- in application plaintiffs volvement policy, defunct SMU SMU inmates Therefore, challenged policies. any Phases IV and were V allowed access to damage claims Bible, against one box Commissioner legal materials and a Qur’an properly Horn were dismissed. equivalent only. III, or In We find Phase respect otherwise with legal SMU inmates were allowed Father Menei. materi als, Bible, 4, 1994, Qur’an July On Father equivalent, as well Menei received letter, religious styled “[two] other from Sutton a “Final reading Appeal materi (total [three]).” II, 940768,” als # Grievance complaining Phase materials, inmates legal were allowed Imam Rasheed and Reverend Smith had Qur’an, Bible or other him “[four] reli denied access to the Nation of Islam gious texts, materials.”25 But even though pointing out that Imam Rasheed was 23. This plaintiffs’ 'religious’ is similar to one of books are and whether ” prior proposals. particular holy inmates' ‘main book.’ Indeed, I, plaintiffs 24. recognized themselves In Phase inmates were returned to their incentives, stating "designated primary impact general these "the institutions” and allowed eliminating population ... restricting privileges. the rules inmate access to books would have on guards prison argument resources would be to re- 26. Defendants do not raise this duce prison respect the amount of time and resources with to the other individual defen- spend making officials decisions on whether dants. property personal an tained within [their] Muslim and not adherent of Sunni Hill,’ Camp Islam, while confined the SMU requesting access to

Nation of and, prevented consequently, ‘defendants the Nation of Islam material. Father Me- practicing a central tenet of referred the matter to Reverend nei ” Sutton, 97-7096, at 1-2 their faith.’ No. Smith, and, on the basis Reverend omitted). (citation Defendants claim no (quoted supra), memorandum Fa- Smith’s violation because constitutional occurred denying Menei wrote to Sutton his ther there was a rational connection between appeal because have determined “[w]e a legitimate govern- rules and essentially in na- books are not mental interest rehabilitation and secu- say on to “these ture.” He continued Turner v. rity Safley, under U.S. hatred, I smack of racism and books (1987).27 107 S.Ct. 96 L.Ed.2d 64 worship know of no God that wants us to way.” Because Father Menei him this commencing requi Before role, appears played an active he have inquiry, first site Turner we must deter summary judgment not entitled to was plaintiffs’ request mine whether for the grounds personally that he was not Nation of Islam texts stemmed from a involved. constitutionally protected De interest. (3d Cir.2000) Horn, 47, Hart v. 227 F.3d 52

C. (en banc) (explaining prisoner’s that if a now address the merits of We sincerely of request is “not the result held De plaintiffs’ beliefs, free exercise claim that the the First Amendment im partment prior regulations of Corrections’ poses obligation prison no on the to honor unconstitutional, applied were both as and request, that and there is no occasion Plaintiffs, facially. inquiry”). members of the Nation the Turner The Free conduct Islam, “they unlawfully of allege that Exercise Clause of the First Amendment provides “Congress denied ‘access to literature con- that shall make no law pro describing 27. Defendants also contend that are Wilson as what the courts ordi do, by qualified immunity narily as a tected from the dam should rather than command. Hawk, 90, (D.C.Cir. ages addressing See Kalka v. 215 F.3d 95 claim. Prior to that conten 2000) tion, however, (treating Conn and Wilson as "not al we must first conclude that ways requiring” dispose federal courts to plaintiffs alleged have evinced the violation or upholding a the constitutional claim before right. Layne, of a v. constitutional Wilson immunity assuming qualified defense and that 603, 609, 1692, 526 U.S. 119 S.Ct. 143 religion protected "humanism” was under (1999) ("A evaluating L.Ed.2d 818 court holding the First Amendment before that fed qualified immunity claim of deter 'must first by qualified eral officials were shielded plaintiff alleged mine whether the has de 244, immunity); Coughlin, Horne v. 191 F.3d privation right an actual constitutional (2d Cir.1999) (discussing 246-47 the doctrine all, so, proceed if determine whether judicial observing restraint that right clearly that established at the time qualified immunity, "where there is a court’s ”) alleged (quoting violation.' Conn v. right that a exists assertion constitutional Gabbert, 286, 1292, 526 U.S. 119 S.Ct. 143 ”). pure would be dictum.... Shields, (1999)); L.Ed.2d v. 207 399 Jones (8th Cir.2000) (treating F.3d 491 the "must” Supreme We believe that Court di- language mandatory); in Wilson as Layne mandatory. Ac- Kitzman- rective in Wilson v. Warner, 454, (7th Kelley v. 203 F.3d 457 cordingly, Cir. the District Court can decide the 2000) Parnell, (same); Hartley v. F.3d qualified immunity only issue of after it has 1263, (11th Cir.1999) (same); 1270-71 B.C. v. concluded that a cause of action has been Dist., 1260, Therefore, Plumas inquiry Sch. 192 F.3d stated. we initiate our Unified (9th Cir.1999) (same). examining alleged 1265-66 cir Other whether have language cuits have treated violation. the "must” constitutional respecting religion, sacrifice, an establishment of or mandating animal was a “reli- exercise prohibiting free thereof....” gion” meriting First protec- Amendment CONST, Only U.S. amend. I. beliefs which tion based partly on the “historical associa- “sincerely are both held”28 “religious tion between animal sacrifice and religious protected in nature” are under the First Hialeah, worship”). the Court rea- DeHart, Amendment. 227 F.3d at 52. soned: Purely protected. secular views are not The city argue does not that Santería is See., Dept. Frazee v. Ill. Employment “religion” not a within the meaning of 829, 833, 489 U.S. S.Ct. the First Amendment. Nor could it. (1989) (“There L.Ed.2d 914 is no doubt Although practice of animal sacrifice only religion beliefs rooted in may some, seem abhorrent to “religious protected by the Free Exercise Clause beliefs need acceptable, not be ....”) logical, omitted). (quotation citation consistent, comprehensible to others It is often difficult to determine to merit First protection.” Amendment proffered viewpoint whether a is in fact v. Thomas Review Bd. Indiana Em “religious” or “secular” in nature.29 None Div., ployment Security 450 U.S. theless, defining we have tried our hand at 101 S.Ct. 67 L.Ed.2d 624 “religion.” See Commonwealth Africa (1981). Given the historical association (3d Pennsylvania, 662 F.2d between animal sacrifice and religious relig Cir.1981) (describing three indicia of petitioners’ worship, assertion that ani ion).30 Supreme provided Court has mal sacrifice an integral part is of their some guidance question on this Church religion “cannot be deemed bizarre or Aye, the Lukumi Babalu Inc. v. City of of Hialeah, incredible.” Frazee v. Illinois 520, 531, Dept. 2217, 508 U.S. 113 S.Ct. of (1993) 124 Employment Security, 829, L.Ed.2d 472 (concluding that 489 U.S. 834 Santería, 2, hybrid 1514, a faith n. 109 S.Ct. 103 L.Ed.2d 914 African/Catholic 28. The District Court found that sin- Many than it once was. free exercise cerely teachings belong believed in the of claimants the Nation will not to well known Islam, and defendants do not denominations within the contest this. Judeo-Christian Sutton, 97-7096, tradition.... No. It is difficult to find a at 5-6. com- running through mon thread all these only claims. To take the most obvious ex- helpful problems For a discussion of the (like Buddhists) ample, many do not believe defining “religion,” associated with the term in God.... The First Amendment should generally Garvey see John & Frederick religions, not favor western or traditional Schauer, The First Amendment: A Reader religions, over others. But neither can it (2d ed.1996): 595-96 protection everyone extend who wants it. apply We cannot the free exercise clause special That would invite false claims for understanding meaning without of its strength treatment. It would also dilute the problems terms. The most difficult have of the free exercise clause. meaning concerned the of the term "reli- Greenawalt, Religion See also Kent aas Con- gion." interpretative problem This is an Law, cept in Constitutional 72 Cal. L.Rev. 753 meaning "speech” like the of the word (1984). speech the free clause. The First Amend- singles ment special out some activities for (1) attempt 30.These indicia included: an treatment, and leaves the rest to the weaker ques- address "fundamental and ultimate protection process of the due clause. is It involving "deep imponderable tions” and matters”; very important (2) thus exactly to determine comprehensive system; belief (3) what is covered. presence of formal and external increasing religious diversity The signs clergy holidays. like and observance of job United States makes this much harder Id. 252 223, 229, 1475,

(1989). city Murphy, nor the courts 532 U.S. 121 S.Ct. Neither (2001) moreover, below, questioned (quoting have 149 L.Ed.2d 420 Pell v. Procunier, 817, 822, professed 417 sincerity petitioners’ desire U.S. 94 S.Ct. 2800, (1974)); 41 also animal L.Ed.2d 495 see to conduct sacrifices Farmer, 208, petitioners’ consider Waterman v. 183 F.3d 213 reasons. We must Cir.1999) (3d (prisoners’ constitutional First Amendment claim. limited”). rights necessarily “are As we Hialeah, 530, 508 U.S. at 113 S.Ct. 2217 observed, recently “incarceration almost (citations omitted). always narrowing, in a a broad results plaintiffs’ We too “must consider” First ening, protections.” constitutional claim. Nation of Islam Mus- Amendment Terhune, 5 Fraise v. 283 F.3d 515 n. teachings in the of the “One lims believe (3d Cir.2002). Although prison walls “do Allah,” proper Name is God whose prison in separating not form barrier Qur’an, Holy in the are contained protections mates from the of the Consti God, Scriptures Prophets of all tution,” rights inmates’ First Amendment Online, the Bible. The Nation of Islam respects “must in some be limited order (last http://www.noi.org available at visited to accommodate the demands 2002). They that Allah Aug. believe penologi administration to serve valid (God) appeared person in the of Master W. objectives.” cal Id. at 515 Tur (quoting in July Fard Muhammad 1930 and that 2254). ner, 84, 107 atU.S. S.Ct. Fard is the long-awaited Muhammad “Messiah” of the Christians and the “Mah- Supreme has Court estab Id. di” the Muslims. The official Nation regulations reasonably lished that related of Islam website states that members want legitimate penological general interests separate territory where establish Turner, ly pass constitutional muster. See people independently black can live 2254; U.S. S.Ct. O’Lone integration hypocri- “believe the offer of is Shabazz, 482 U.S. S.Ct. tical and made who trying those (1987). Turner, L.Ed.2d 282 Under peoples believing to deceive the black into weigh four in making must factors open 400-year-old that their enemies of determination: freedom, are, justice equality and all of a first, regulation whether bears a ” sudden, their Id. The central ‘friends.’ “valid, legiti- rational connection” to a and foundational tenets of the Nation of objec- mate and neutral governmental Islam meet the of religion definition as set tive; second, prisoners whether have forth in Hialeah Further- Africa. ways exercising alternative of the cir- more, bizarre, say they we cannot are “so third, right; cumscribed whether ac- motivation, clearly nonreligious so in as commodating right would have a protection not to be entitled to under the inmates, impact deleterious on other Thomas, Free Exercise Clause.” 450 U.S. guards, prison and the allocation of re- Therefore, at 101 S.Ct. we con- fourth, generally; and sources whether plaintiffs’ sincerely-held clude that views “fully alternatives exist that accommo- sufficiently are in religion rooted to merit prisoner’s rights at min- date[] de protection. First Amendment penological imis cost to valid interests.” Fraise,

But rights (quoting “the constitutional 283 F.3d at 513-14 Tur ner, prisoners 2254); possess are more limited in 482 at 107 U.S. S.Ct. see (3d scope rights Ashcroft, than the 297 constitutional held also F.3d Wolf v. Cir.2002) society large.” (discussing individuals in at v. Turner in the context Shaw in rity, regulations are ‘neutral’ that no movies policy providing prison aof in Supreme to technical sense which R, X, may [the be shown or NC-17 rated Waterman, in at 212 meant and used the term Tur inmates); Court] 183 F.3d 415-16, 109 laws, (“Constitutional regula- ner.” Id. at S.Ct. 1874. challenges to man- tions, policies governing case, prior In this version of DC- examined under must be agement in provided ADM 802 that inmates restric- ”). .... Safley framework of Turner other than tive status could have “no books Bible, personal Holy and a prong, legal Turner we materials the first Under religious or other Sim- judgments equivalent.” to the of Koran great accord deference ilarly, provided: DC-ADM 801 “inmates “charged with the formida prison officials O’Lone, permitted legal may 482 will be material that running prison.” a ble task of (1) Shaw, 2400; 353, 107 be contained in one records center see also at S.Ct. U.S. (“[UJnder Bible, Koran, Holy A personal box.... at S.Ct. 532 U.S. publication permitted.” equivalent or is prison offi predecessors, its Turner and III progressed As an inmate to Phases primary arbiters cials are to remain II, permit- additional texts were prison manage problems that arise Martinez, ted. ment”) at (quoting U.S. (“ ill equipped are ‘[C]ourts

94 S.Ct. 1800 Department prior Defendants assert the increasingly urgent prob to deal with the allowing prisoners Corrections prison administration and re lems of in SMU Phases IV and V access to one box ”)). The first factor is “foremost form.’ Bible, Qur’an legal materials and one connection is a the sense that a rational “equivalent” religious publication was ra- — if the connection requirement threshold tionally penological goals related to the irrational, regula then ‘the arbitrary or environment in the “maintaining secure fails, irrespective of whether the other tion (both concerning searches cells But, ... tilt in its favor’ factors safety) integral part and fire and as an of a DeHart, it we do not view as made clear' program to encour- global, behavior-driven inquiry.” Wolf, rest of the subsuming the prisoners in the age the most recalcitrant Shaw, (quoting 297 F.3d at 310 532 U.S. responsible system engage more DeHart, 1475); 229-30, 121 S.Ct. see also acceptable Defendants contend behavior.” (examining pris whether a 227 F.3d at 52 that, to the extent some of those inmates in prohibiting a Buddhist regulation on religious, conditioning increased access following vegetarian diet was mate from behavior improved material justified by “legitimate and neutral con an incentive for the desired be- served as Turner). cerns” under because, returned to change havior once prison population, the inmates general the factor requires The first Turner religious re-gain would access to additional analysis: “we must determine “multifold” found, “[t]he As the District Court books. objective under governmental whether the in on the number of books an SMU limit legitimate lying regulations the at issue is in materials religious cell or the number neutral, regulations and that the to im- just another incentive general rationally objective.” related to that prisoners the who be- prove behavior Abbott, 401, 414- Thornburgh v. 490 U.S. Sutton, 97-7096, at 13. badly.” haved No. (1989). 1874, 104 L.Ed.2d 459 109 S.Ct. Plaintiffs contend that defendants’ “book “prison administrators draw dis Where “fundamentally irrational” be- publications solely on ban” was tinctions between Na- policies, under these essential potential prison the basis of their secu- cause anee, completely texts “were we believe that Islam defendants cannot tion of SMU, satisfy prong. levels of the it did the first Turner from all banned plaintiffs matter how well behaved.” prong The second Turner re addition, they contend the ban was “a court to quires assess whether inmates neutral, only and it was made clearly “not retain exercising alternative means of the expression of the content because right.... circumscribed assessing When defendants, according .... the books alternatives, availability the right in religious’ ‘not could not question ‘sensibly must be viewed and ex ” have them.” Fraise, pansively.’ 283 F.3d at 518. The noted, prior Department As of Cor- second factor is not “intended to require policy provided only rections that Phase V courts to determine whether an inmate’s inmates a: “Bi- and Phase IV could have sincerely religious sufficiently held belief is ble, Quran, equivalent.” an in- Once recognition.” ‘orthodox’ deserve De “graduated” Hart, mate from Phase Phase factor, IV to 227 F.3d at 55. Under this III, he was entitled to “two additional reli- “we must of course focus on beliefs of texts”; II, in Phase gious “four additional asserting the inmate the claim. It is obvi texts”; and in Phase I (general ously impossible to determine whether a population), no restrictions. Because regulation leaves an inmate with alterna prison authorities' found Nation of Islam ways practicing tive the inmate’s reli religious,” none were texts “not gion identifying religion’s prac without through II V. Fraise, Phases tices.” 283 F.3d at 518. Here, not address the facial challenge question We need the inmates in are adher- applying policy, Depart- because in ents of various Nation of Islam sects.32 ment of interfered teachings Corrections with the Nation of Islam members follow religion. free in Holy Qur’an, exercise of ad- contained the “the impermissibly Scriptures Prophets, ministrators denied access of all the in they Holy Online, to Nation of Islam materials because Bible.” The Nation of Islam (last improperly found the documents were not http://www.noi.org available at visited 2002). point, religious. Aug. On this the facts are not expert Plaintiffs’ stated difficult, therefore, dispute.31 It is deposition her testimony uncontradicted legitimate penological discern a in that interest the Nation of Islam books requested the denial of Nation of Islam texts to and denied were “essential religious texts plaintiffs. Notwithstanding “required defendants’ the Nation of Islam” and arguments faithful,” and the deference we accord reading and that without prison officials, them, the judgment of person on bal- “a could not function well Rasheed, hatred, acknowledging Imam while books smack of racism and and I members of the Nation of Islam view them- worship know of no God that wants us to Muslims, selves as nonetheless concluded that way.” "Islamic,” the books were not because express opinion We no on the restriction of comport did not with what he deemed the might materials that advocate vio- conception orthodox of Islam. Reverend lence. Smith, beginning from the view that "[r]eli- definition, gion, by begins and ends with the 32. Sutton is a member of a Nation of Islam God,” discovery search for and of concluded Farrakhan, by sect led Minister a Wise is essentially religious "these books are not in Islam, member of the Lost-Found Nation of superi- nature” because referenced racial Inc., a and Walker is member of both. ority political and activism. Father Menei echoed this view when he wrote that "these (i.e., spondents’ religion “religious a religious communi- of Islam’s Nation that, commandment”), plaintiffs contend because other means Consequently, ty.” form of policy, “only practicing religion their were avail- prior under able, expression weighed available the second Turner factor religious Islam the Nation of other members of in of the relevant restriction’s rea- and favor cells, without prayer in their Recognition partic- is individual that a sonableness. them how to books to teach practice by the essential ular an required inmate’s thus, pray.” portion religion, does not end this Rather, analysis. Supreme of the as the in a free exer has held that This Court made clear in O’Lone and Thorn- Court case, must consider whether cise examine an burgh, courts must whether practicing means of inmate has “alternate practic- inmate has alternative means of not whether religion generally, or her his ing religion generally, his or her not means of en inmate has alternative [the] an inmate has alternative whether De particular practice.” [any] in gaging particular in engaging means of (3d Cir.2000) Horn, 227 Hart v. F.3d case, practice in In this question.... (en banc). DeHart, In we overruled that, prison’s the record shows while the Horn, F.3d in analysis Johnson “ prohibited DeHart regulations have (3d Cir.1998), ‘the cen that focused on a following conformity diet with tenet’ at issue and trality religious beliefs, he alter- religious his has some ‘religious command distinguished between Buddhist expressing native means of his belief,’ ‘positive expression of ments’ and beliefs. alterna importance that ‘the suggesting is an religious means of observance tive Id. at 57. practice when the irrelevant consideration’ that where “other avenues We also said 227 F.3d question is a commandment.” remain available for the exercise of the at 54. We then said: faith, religious courts should be inmate’s Thus, religious where the under Johnson particularly conscious of the measure practice being prohibited by to correction offi- judicial deference owed faith, by the believer’s is commanded ” Turner, 482 (quoting cials .... Id. at 59 opportunities for exer- existence of other 2254) (internal quota- at U.S. S.Ct. wholly faith is ir- cising religious one’s omitted). tions analysis. “religious relevant to the Here, plaintiffs had access to while the

commandment”/“positive expression of pray in Qur’an, and could panel in the Bible distinction on which belief’ and oth- however, Ramadan relied, directly their cells and celebrate con- Johnson deprived holidays, they were analysis religious er Supreme Court’s flicts with provide which critical expressly of texts in O’Lone. The Court there they could that, and without which attendance instruction although held religion generally.33 practice their requirement of the re- Jumu’ah was studies, say in specialist Islamic had this to religious significance of the The crucial expert report: her writings plaintiffs were foreclosed from expert report 8. The Nation of Islam is reading plain by the is made Fard Mu- community founded Wali expert, testimony plaintiffs' deposition Elijah developed by Mu- hammad McCloud, Beverly an Assistant Dr. Aminah Islam, Within the Nation hammad. University’s Department Professor DePaul God, is the Fard Muhammad Allah is McCloud, Religious Professor Studies. Messiah, is a Elijah Muhammad Cir.2002). There, are mindful of DeHart’s concluding, we this court said: “While so Policy possession the STG forbids of dis against drawing distinctions proscription literature, tinctively Five Percent Nation it “religious commandments” and between undisputed Policy is the in allows expressions of belief’ in deter- “positive possess, study, mates to and discuss the religious practices may be mining what Accordingly, study Bible and the Koran. officials, by prison and we do not curtailed teachings of the Five Percent Nation’s is reading here treat of these texts as only partially restricted.” Id. at 519. commandments, religious but rather as a However, although Fraise refers to testi necessary exercising right element s — mony identifying certain text The 120 question “sensibly expan- viewed Mathematics, Degrees, Supreme and Su sively”: right to free exercise of the — which, preme Alphabet like the Bible faith. Nation of Islam Qur’an, and the contain Five Percent mindful of We are also this Court’s hold- teachings, nothing id. at in Fraise Terhune, (3d ing purports identify Fraise v. 283 F.3d 506 these or other items of ful, teachings prophet. way The of Fard Muham- and it has its found into the homes Elijah proper mad and Muhammad are essential and libraries of non-Muslims. Since commitment, components religious key aspect beliefs and diet is a of Muslim practices Message logically by of the Nation of Islam. followed a volume Live, Minister Louis Farrakhan by [Elijah] 9. reli- entitled How to Eat to also gious prominent Together, leader of branch of the Muhammad. these two books re- teachings Islam. Like Nation of fine and extend the doctrines laid down in Muhammad, Elijah Supreme Fard Muhammad Wisdom. teachings agree of Minister Farrakhan are 13. I with Professor Lincoln’s Wisdom, component religious Supreme an essential of the characterization of The practices Message beliefs and of this branch to the Blackman and How to Eat religious Nation of Islam. to Live as essential texts of the Arrived, Elijah 10. I am familiar with Muham- Nation of Islam. Our Savior Has America, Supreme mad’s books entitled The Spealcs Wis- The Fall Muhammad dom, Message to the Blackman in Amer- and The Final Call are also essential reli- ica, Arrived, gious Has Our Savior How to Eat texts of the Nation of Islam. my and The Fall Live America. It is 14. For followers of Minister Farrakhan Islam, opinion publi- considered that all of these writings within the Nation of his "religious” are religious cations deed, in nature. In- are likewise essential texts. materials, Elijah all of Fard person Muhammad's and 15. Without these teachings writings Muhammad's could not function well in the Nation of essential to the worldview religious community. of members of Islam’s To borrow Islam, undeniably phrase, Nation of and are Professor Lincoln’s are "re- community. quired of that reading by members the faithful.” periodi- 11. I am also familiar deposition following with the On colloquy was had: Q. Speaks cals entitled Muhammad and The Does the Nation of Islam have what publications Final you inspired Call. These are also refer to as text? "religious” classify in nature. A. Yes. I would this set of texts C. scriptural Professor Eric Lincoln inspired refers to as both because religious publications two of the above the members believe that these are not page just 129 of the 1994 edition of au- Elijah his words Muhammad or treatise, They thoritative The Black Muslims Louis Farrakhan. are the words of Elijah America: Muhammad and Louis Farrakhan Message In a book entitled inspired by to the Black- as Q. God. (first 1965), published [Elijah] Okay. man Elijah Mu- Are Muhammad’s books spelled hammad out the essential doctrines both for Silas Muhammad’s Fard, taught of Black Islam as group him with based in Atlanta and Louis Farrak- Message his own group Chicago? elaborations. to the han’s based in Oh, required reading by Blackman is yes. the faith- A. worship gle aspect of and the literature” as Five Percent “distinctively any ability to undertake the removal of and fundamental having the sacrosanct religion gen- free exercise of the Christian writings prophet, the quality which erally.35 Muhammad, writings of Min- Elijah Farrakhan, of one have for members

ister example, plaintiff-inmates had the For Nation of Islam. sect of the or another Mormons, think that pris- been we do not are, expert plaintiffs’ writings as Those authorities, program on in furtherance of a Beverly McCloud ex- Aminah Professor modification, could, compatibly of behavior Elijah Mu- just the words of plained, “not Constitution, with the have restricted the They are Farrakhan. hammad or Louis reading to the inmates’ Old and Louis Elijah Muhammad the words of Testaments, withholding the inmates’ New inspired by God.”34 Farrakhan as copies of The Book Mormon.36 own of can fault line in the There be no Constitu- O’Lone, held that Supreme Court place tion that would the followers Jesus Turner analysis of the second proper Joseph preferred on the Christ and Smith not determine the Court to prong required Elijah the line and the followers of side of means to had alternative if the inmates Farrakhan on the Muhammad and Louis Jumu’ah, whether but rather celebrate Therefore, origi- because the other side. practice means to they had alternative policy deprived nal they Because religion general. their practice which could not texts without way pray proper teach adherents that religion generally, their we conclude inspired, how- divinely as and are viewed prong plain- Turner favors the the second ever, of the Nation of Islam deprivation tiffs. just implicates not question texts in here texts, particular those but right to read final Turner factors also two reli- ability practice their prisoners’ “The third and fourth fac plaintiffs. favor princi- general. To illustrate this gion specific religious ... focus on the tors in- we believe that Christian ple, expression while at issue and the practice or generally practice religion his the in consequences accommodating mate could inmates, attending if Christ- prevented guards, even for for other mate services, do not believe prison Easter we the allocation of resources.” mas or DeHart, Here, deprived if the con practice religion his 227 F.3d at 57.37 he could appear de The distinction of accommodation sequences access to the Bible. have a deleterious religious com- minimis and example is not between would personnel or resources. expressions impact of be- on positive mandments itself obvi- Department of Corrections lief, deprivation of a sin- The but between the holy "accepted as Mormon is supra. 36. The Book 34. See note Bible, scripture, to the in addition example, By we do not the use of this Latter-day Saints Jesus Christ of Church of texts, deprivation imply mean to Ency- 8 New Mormon churches.” and other religious practices, opposed to restrictions clopaedia Britannica 329. likely prisoner cannot to mean that is more religion generally. example, practice For his Fraise, defendants concede 37. Unlike suspect complete prohibition on a that a Sutton, security pose no risks. books at issue ability attend Mass would mean Catholic’s 97-7096, at 1. No. right practice his reli- deprivation of his draw that gion generally, much as we would barring regulation the in- about a conclusion access to the Bible. mate's ously consequences did consider the of violated must be defined at the appropri accommodation they burdensome because specificity ate level of before a court can changed policy adopted their have determine if it “clearly was established.” policy plaintiffs Wilson, similar what sought. 615, 526 at 1692; U.S. 119 S.Ct. are more efficiently Abdul-Akbar, Prison resources allo- see also 4 F.3d at (quot 202 cated the now because one-box rule ing no Good v. Dauphin County Soc. Servs. requires prison longer Youth, administrators to 1087, Children & 891 F.2d 1092 for (3d repeated Cir.1989) make individualized decisions (explaining that the contours “religious” about what are texts. of the right must be sufficiently for clear “reasonable officials in po the defendant’s sum, In the each of four Turner fac- ], sition at the relevant time in [to] believe[ — legitimate the existence of a tors light law, of what inwas the decided case objective government neutral with regula- unlawful”)). that their conduct would be rationally objective; tions related to that are case, whether there alternative means of In this we must address defen- exercising the right; circumscribed the qualified dants’ claims of immunity as issue; specific religious practice at and the relate to damages claims against asserted consequences accommodating in- the them on basis of their actions under (cid:127)— in weigh plaintiffs’ mate favor of prior predicated upon reasons, that, claim. For these we hold as decisions that Nation of Islam were texts plaintiffs, applied prior policy “not religious.” infirm constitutionally under Turner. in law this area is murky. There has not always been a clear consensus

D. whether the Nation of Islam is a religion But this does not end our anal for purposes protection under the First ysis. See, We must also consider whether de e.g., Amendment. Cooper, 855 F.2d protected fendants under the doctrine at 127 (applying O’Lone and rejecting Wilson, of qualified immunity.38 526 U.S. free exercise claims of Nation of Islam at 119 S.Ct. 1692. offi plaintiffs Government seeking to engage in group performing functions, discretionary cials prayer); Parker, Long v. 390 F.2d “generally (3d liability Cir.1968) are shielded from 819-20 (describing damages civil insofar as their conduct does “Black Muslim” movement as alleged “an clearly not violate established constitution sect religion Islam” and observ- al rights of which a person reasonable ing that it “cannot be purely classified as Abdul-Akbar, would have known.” 4 nature,” F.3d religious in part because (quoting 201-02 Harlow Fitzgerald, v. “inexorable hatred of people” white is a 800, 813, 457 U.S. 102 faith) part S.Ct. 73 basic of the (quotation omit- (1982)). ted); L.Ed.2d 396 allegedly Pate, The right Cooper v. 382 F.2d 38. Defendants were sued protection their official afforded Long, inmates. Sutton, 97-7096, capacities. individual No. considered the claims of "Black Muslim” in- at 1. contending they mates had been "unconstitu- tionally right denied the to receive and read agree We plaintiffs do not Long publications with that authoritative of their "clearly sect, right established” a free including exercise that weekly newspaper 'Mu- ” case, has been part violated in this Speaks.’ because hammad Id. at 822. Access Long was decided publication more than a decade before was restricted of its because O’Lone, either Supreme Turner or alleged two inflammatory Court nature. Id. We as- narrowing cases scope of constitutional deciding sumed without observing Islam’s nu [plaintiffs interest Cir.1967) (“Viewed ordinary read- as (7th in decisively outweighed [the dity taboos] relevance to matter, only slight with ing Prasse, prison.”); to es- Wilson terests] most difficult it would be religion, Cir.1972) (“The (3d any [publications ques F.2d that exclusion tablish by Elijah Muhammad] Muslim litera articles of the distribution of containing tion unlawful. Considered Elijah Mu [including writings from a ture material, would be question one not religious among prison populations is hammad] of degree same material of the whether 855 F.2d at difficulty.”); Cooper, from free prisoners is relevance religious (“While plaintiffs highest invoke the 129 or tone And the extent faiths. of other law, they dangerous are of our principles par- of this doctrine the race which with inmates convict among who even persons would, we emphasized faith is ticular offenses were sin ed of the most serious consideration.”); see think, legitimate abe special security treatment.... gled out for Black Muslim Right to Practice generally valid, rational reason for Clearly, there is a Prisons, 75 Tenets in State HaRV. L.Rev. an plaintiffs to permitting not establish (1962). 837, 40 837 within the custo [restrictive infrastructure merely function openly and have it dy unit] always provided the courts Nor have engage a to right claim because of what question the on guidance clear the basis of their in their activities on pass con prisoners’ rights on restrictions 342, O’Lone, at (citing 482 U.S. See, religion.”) e.g., Hudson v. muster. stitutional Prasse, 2400); v. 302 517, 523-34, 107 S.Ct. Knuckles Palmer, 104 S.Ct. 468 U.S. (E.D.Pa.1969) (“[Constraints 1036, (1984) 1050 F.Supp. 3194, 393 82 L.Ed.2d J.) (“Since [Black the (Higginbotham, inmates, cases the com and in some subject to in could be jus literature rights, Muslim] are of certain plete withdrawal ... I of urging [defiance whites] underlying our ferences tified the considerations necessary prison that the rule that it is not ”); Board Canedy v. system.... penal Cir.1996) (7th prisoners the make al, 30, authorities 34 available et 91 F.3d man (3d F.2d 1255 Cir. writings”), aff'd 435 (“But 1992, the events the time of 1970).40 here, at all clear it was not question rationally related constitutionally banned as protections the Amend- of First entitled to rehabilitation”); Dep’t Murphy v. Mo. challenge did not because defendants ment of 1252, Corrections, (8th 1256 Cir. 814 F.2d treating Muslim be- legitimacy of Black Aryan 1987) (concluding that a total ban of religion. at After Id. 819-820. liefs as a a mail "is too restrictive Nations materials claims, required a examining the inmates’ Jones, 452 censorship policy”); Rowland v. significance "Mu- hearing of on the Cir.1971) 1005, (8th ("We reject as 1006 F.2d Speaks.” Id. at 822. hammad prisoner's Amendment First an intrusion of 867, Lane, 851 F.2d 878 Williams v. granting possession [reli of some rights the Cf. (7th 1988) (examining rights in Cir. contingent gious and not others medallions] status, custody which is protective mates in meeting official standard upon their an Blackwell, for their to inmates who fear available orthodoxy.”); made v. Walker Arave, 1969) ("The F.2d safety); (5th 827 McCabe is own Cir. order F.2d 29 411 Cir.1987) (9th (addressing a "ban” of 638 not arbitrari merely direct that the warden touting Christian books right [the Church Jesus Christ to read ly deny Black Muslims library prison newspaper], supremacy Speaks” from within white "Muhammad advocating purity, regula racial holding prison rules "literature framework of normal tions, activity illegal security.”); Sostre v. advocating violence or not administration but 1964) McGinnis, (2d Cir. achieving goal, and not so 334 F.2d 911 this as a means of ("In is of this situation reasonably words the nub inflammatory to be like other racially as theoretical the existence of to be found in prison, cannot be at the ly to cause violence

260 reason, prior it I

Accordingly, questionable agree whether that the likely invalidity application applied. was unconstitutional Department poli Corrections’ SMU I. cy clearly that it established so should apparent have been to defendants. But it to me seems that under Turner v. Cf. Abdul-Akbar, (“Indeed, Safley, F.3d at if U.S. S.Ct. (1987), cannot judiciary members of reach a L.Ed.2d 64 authorities clear regarding promulgated policy, ‘[t]he consensus contours rational and neutral ... right’ reasonably expect reasonably grounded can we on behavior modifica- tion required principles. Arguably, more those who im had the correc- (citation adopted tions officials plement rights?”) a broader view of quo those omitted); Kalka, materials, “religion,” the Nation of Islam tation see also 215 F.3d least, (“Given III II Phases and would at 99 the have judiciary’s exceedingly permitted. been And depending on vague in of a guidance, complex the face whether the officials considered Nation of and novel of question, the actions the de Islam of equivalent materials the the Bible ‘clearly fendants therefore did not violate Qur’an, they law.”). could have been Furthermore, established’ the first at Phases and IV. V prongs analysis and second of the Turner present facts, especial calls close on these expansive interpretation Under an of ly in the light great of deference we accord materials, what religious constitutes there- prison the of judgments officials. fore, prior policy the arguably could be neutral, rational reasonably reasons, For hold that these the grounded acceptable behavior modifica- protected by qualified im- defendants principles. tion Department of Correc- munity plaintiffs’ damages from claims. tions Regional Deputy Commissioner Dr. explained Beard that this incentive-based IV. program developed improve was upon to Therefore, we will affirm the District housing traditional restrictive units which entry judgment. Court’s of summary Par- programmed were not to address the ties to own bear their costs. needs of inmates with a long-term inability adjust general population status. To SCIRICA, Circuit Judge, concurring. end, “provide[d] the SMU structured Although Depart- I believe the revised progression through phases.... five The represents ment of Corrections the program provide[d] for security staff and practice better potential prob- avoids inmates alike while the giving inmate an lems in free the exercise an inmate’s progress through phases incentive to the ” religion, I the prior policy believe was of the program.... To the extent that facially prison valid. But the administra- religious, some of those inmates were con- tors impermissibly denied access Nation ditioning access to religious materials on found, Islam materials im- improved because might very behavior well have view, properly my powerful documents served as a for incentive the de- did not religious constitute change For sired behavior.1 material.

rights, found, very practical but in 1. As limitations on the District Court the SMU incen- program rights necessary "very those tive-based by which are made successful” be- "April cause requirements 1992 to October 1993 prison discipline”). program the 45 inmates admitted Thus, Furthermore, found under Johnson where the reli- District Court practice being prohibited gious by created to rules were not that “the SMU members, commanded the believer’s Islam] target [Nation faith, opportuni- existence other prisoner no matter applied to each rules faith is exercising ties one’s Sutton, 97-7096, religion.” No. what his wholly to the analysis. irrelevant as well that as the noting It at 12. bears “religious commandment”/“positive ex- through prisoner progressed administra- pression of distinction on which belief’ confinement, privi- regained other he tive however, relied, panel in Johnson to additional besides access leges directly Supreme conflicts with the reasons, For defendants these materials. analysis Court’s O’Lone. The Court “valid, ra- arguably have demonstrated that, at- expressly although there held “legitimate and tional connection” to was a requirement tendance Jumu’ah objective” of behav- governmental neutral (i.e., respondents’ religion of the a “reli- Thornburgh v. Ab- modification. ior Cf. commandment”), gious because other 414-15, bott, U.S. S.Ct. their practicing religion means of (1989). 104 L.Ed.2d available, factor the second Turner weighed favor relevant restric- II. Recognition that tion’s reasonableness. an particular practice required by is the Turner I believe that second also thus, inmate’s this religion, does not end the court prong favors defendants. As Rather, portion analysis. of as the the case, notes, must in a exercise free made in Supreme Court clear O’Lone inmate “alter- the has consider whether and courts examine Thornburgh, must or practicing religion of his her nate means an inmate has alternative whether has [the] inmate generally, whether religion his or practicing means of her par- engaging [any] in alternative means of whether an inmate has generally, not Horn, 227 v. practice.” ticular DeHart of in the engaging alternative means Cir.2000) (en banc). (3d 47, 55 F.3d practice question.... in In particular availability of alter- assessing “When that, case, while this the record shows natives, question must be right ” prison’s regulations prohibited have expansively.’ and ‘sensibly viewed following a in con- DeHart diet DeHart, Fraise, (quoting 283 F.3d at 518 beliefs, has religious he formity with his 53-55). DeHart, at In we over- 227 F.3d expressing means some alternative of Horn, analysis in v. ruled the Johnson Buddhist beliefs.” his (3d Cir.1998), that focused F.3d “ 55, 57. Id. at centrality religious tenet’ at ‘the ave- further that where “other ‘religious between We said distinguished issue and of for the exercise ‘positive expression of nues remain available commandments’ faith, religious inmate’s courts should belief,’ importance that ‘the of suggesting of particularly conscious of the measure religious observance be alternative means of offi- judicial deference owed to correction when is an irrelevant consideration’ ” DeHart, (quot- .... 227 F.3d at 59 practice question is a commandment.” cials 2254) Turner, 107 S.Ct. ing at 54. then said: 482 U.S. 227 F.3d We 97-7096, Sutton, at 12. general population SMU.” No. graduated status only be to the [to] 3 of those had returned (internal omitted). notes, quotations The second As the court in ques- inmates require factor is not “intended to courts to tion here are adherents various Nation an sincerely- whether inmate’s determine expert opined Islam sects.3 Plaintiffs’ religious sufficiently is held belief ‘ortho- requested the Nation of Islam Books DeHart, recognition.” dox’ to deserve practice were “essential” to the of their factor, “we F.3d at 55. Under must of religion. But worship alternative means of course focus on the beliefs of the inmate clearly plaintiffs. were available to the asserting obviously It impos- the claim. though Even plaintiffs were denied access regulation sible to determine whether a distinctly texts, Nation of Islam they ways leaves an inmate with alternative Qur’an were still allowed access to the or practicing the religion inmate’s without Bible, like the Fraise inmates. As the identifying religion’s practices.” found, District Court Nation of Islam Fraise, F.3d at “permitted members were SMU Fraise, we concluded the second Tur- books, exchange e.g., the Bible prong ner was satisfied where inmates’ Koran .... [t]hey could reli- celebrate to Five only access Percent2 literature was gious holidays such Ramadan “partially restricted.” Id. at 519. The Sutton, company prisoners.” other No. prison Fraise regulations allowed New 97-7096, Thus, at 5. inmates had Jersey designate correctional officers to Bible, Qur’an, (STGs) access to the equivalent security groups threat and transfer texts, special core to a religious members unit where their pray by could (a ability “study the lessons” central themselves, speak with and be visited practice) Percent strictly Five con- advisors, and celebrate trolled for fear gang violence linked Terhune, holidays. Fraise 283 F.3d Cf. with the group. Although Id. Five Per- (upholding 519-20 policy in possession centers not allowed as-applied an challenge where inmates in “distinctively Percent Five National litera- custody restrictive only “partially were re- ture,” they “pos- were still to ability stricted” in their practice religion sess, study and discuss” the Bible pos- because “the allowed inmates Qur’an. stated, sure, Id. We “To be sess, study and discuss the Bible and the Policy ability STG restricts the of Five Koran” and did not restrict in- Percenters to achieve [self-knowledge, mates seeking “self-knowledge” from self-respect, responsible or righ- conduct “righteous living”). While original living] by following group teous what the policy undoubtedly imposed restric- may avenue, i.e., regard as the best by tions on the ability Nation Islam studying discussing doctrines and ma- to engage members related activities terials distinctive Five Percent Na- the group, But retained clearly tion. alternative sufficient al- avenues re- main open.” Id. ternative means studying practicing 2. away The Five Percenters broke from the practices Five Percenters beliefs and They Nation Islam in the 1960s. believe in by submitted an editor of a Five Percent "Supreme Mathematics.” The "Five Per- newspaper). cent” includes African Americans who have Fraise, self-knowledge. achieved 283 F.3d 3. is a Sutton member a Nation of Islam "reject[] 511. Five Percenters belief in the Farrakhan, sect led Minister Wise is a transcendent and instead human focus[] Islam, member Lost-Found Nation of enlightenment and conduct as ends in them- Inc., and Walker is a member of both. (examining selves.” Id. at 518 evidence of religion.4 to their distinct doctrines Cf. princi

Fraise, at 520. see no F.3d I here the circum

pled distinction Fraise, which found faced

stances we of wor alternative means

that sufficient Therefore, I believe

ship retained. favors defen prong Turner

the second

dants here. respects, join the court’s I all other

opinion. America, STATES

UNITED

Plaintiff-Appellee, JENNINGS,

Raymond Defendant-

Appellant.

No. 01-4927. Appeals, Court of

United States

Fourth Circuit. Sept.

Argued: 2002. March

Decided: noted, DeHart, religion generally, not whether an in- Su- or her "[T]he 4. we said As engaging in the has alternative means preme made in O’Lone mate Court clear practice question.” 227 F.3d at particular Thornburgh, whether an courts must examine his practicing has alternative means of inmate

Case Details

Case Name: Sutton v. Rasheed

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 19, 2003

Citation: 323 F.3d 236

Docket Number: 97-7096

Court Abbreviation: 3rd Cir.