Case Information

*1 To: Pwoth Lour of MReals

Edidit 1-12 Re: 2016 C $*2492$ Re: SA-16-DA-75-0P

*2 End of D ocan ent $\circ 2017$ Thoe son Reutens. No ckln to ordinali S.G overum entM oaks.

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There are types of deprivation of rights which m ay be recognized as unconstitutional for purposes of federal civil rights statute only when they are judicially so declared; how ever, there are instances of gross abuse to hum an dignity so shocking to conscience as to requiteno judicialpronouncem ent for thelrgeneral recognition. 42 U S C A. $1983;U S C A Const.A m end.8.

Cases that cite this headnote [1] Civil rights $\odot$ G overum entA gencies and 0 fficezs Public officerm ay inflict harm which is a violation of a constitutionalprohibition without conscious plan or illicit purposes; how ever, test of liability ought not ignore entirely them ores of the tin es or even the particular m ores of prison guards, untrained in the law yestview of life.

1 Cases that cite this headnote

A ttomeys and Law Fim s

*273 D avid J. Fine, N ew Y ork C ity Ellsabeth M . Fisher, D avid R oemberg, and Paul, W eiss, R iftind, W harton &; G arrison, N ew Y ork C ity, of counse1), for appellant.

D avid L. B irch, D eputy A set. A tty. G en. of the State of N ew Y ork &;ouis J. Lefkow itz, A tty. G en., and Sam uelA . H isshow itz, F isstA set.A tty. G en., of counse1), for appellees.

Before FENBERG, G URFEIN and VAN GRAAFEILAND, C inculcJudges. 0 prison

G U RFEIN, C inculcJudge: The plaintiff, M asia M ukm uk, is a B lack M uslin leaderwho spent 15 years in N ew Y ork state prisons. ^[1] From his own allegations in his civil rights com plaint, he was an activist in prison. One cannot help but read between the lines *274 thathehasbeen a thom in the site of prison officialsduring m ostoffhisprison life. Such activism tendsto elititia reactive use of power. To persons in authority in the prison scene that power is readily available. The serious question raised is whether the boundaries of perm isable sanctions by the corrections officers were crossed and the constitutional rights of M ukm uk under the E ighth, Fourteenth and F isst Am endm ents violated.

1 H e was released on parole in January, 1975.

This is a s 1983 action which has long endured upon the docket of the D istrict Court for the Southern D istrict of N ew Y ork with but little m ovem ent. The action was begun in August 1970. The com plaint was twice am ended. In 0 ctober 1973, a m otion for sum m any judgm ent was m ade by the defendants, who are the C om m issinner of the D eparm ent of Correctional Services; J. Edw in LaV alles, Superintendent of the C 1nton Correctional Facility; V incent R . M ancus, Superintendentof theA titia CorrectionalFacility; and John L. Z eiker, Superintendentof theG reen H aven Correctional Facility. ^[2] 2 Earlier defensem otions to dien iss for lack of prosecution w eze denied.Varbus otherproceduralm oves are described in the opinion below. M ukm uk v. C om m issinner of D ep tofConsectional Services, 369 F Supp. 245 ( 1 D N Y 1974). A prayer for restoration of good tin e credits was dien issed as in the nature of a petition for habeas corpus w ithout exhaustion of state rem edies. See Freiser v.R odriguez, 411 U S. 475, 93 S Ct. 1827, 36 L Ed.2d 439 (1973).W e agree.

*4 *130 9.N either the R eplevin W th Bond A ctnor the rules expressly set forth that the Sheriff, pursuant to the writ w th bond, $m$ ay forcibly break and enteror thathem ay not break or enter. 10. In none of the individual cases did the Sheriff forcibly break and enter into the prem ires of plaintiffs. 11. N either the Sheriff nor his agents have any discretion in detem ining the underlying transaction giving rise to the replevin w th bond action. They are not required or perm ited to hear or detem ine any issues of the rights of either of the parties to the property in question. 12.The Sheriff, or his agents, after seizing and taking possession of the property nam ed in the writ, $m$ ust hold it in his custody for a period of seventy-tw o hours, during which tin e the defendantnam ed on the writm ay regain possession of the property by filing a counter-bond in the sam eam ount as the original bond. 13. The form of the writ required by Pennsylvania Rules of Civil Procedure, Rule 1354, contains no notice to the defendant thathem ay recover the property by posting a counter-bond, nor does it expressly prohibit this notice. 14. If the defendanton thew ritt fails to file the counter-bond within the seventy-two hour period, the Sheriff, orhis agents, is required to deliver the property seized to the plaintiff on the w rit, subject to Rule 1079 dealing with in pounding. 15.The plaintiff, Epps, and the defendant, G overem ent Em physes Exchange Corporation, are the parties to a contract entitled R etall Install ent Contract- Security A green ent' which provides, inter alia, the follow ing:

Y ou or assigns shall retain title to said m enhandise; I w ill be responsible for its loss or dam age; I w ill not rem ove or encum ber sam e; if I default in any paym entor breach any covenant herein, the entire balance shall be in m edistely due and payable and you or assignam ay retake them en enhandise, sell the sam e and hold me for any deficiency, or affirm the sale and hold me liable for the unpaid balance $ * * \mathrm{~N}$ otice by buyer: 1 . D o not sign this contract before you read it or if it contains any blank spaces.' 16.The property nam ed in the w rit to be repleved from plaintiff Epps consisted of one G E . stereo, two w edding rings, a diam ond w atth and band and a T V . roof antenna. 17. Plaintiff Epps, at the tin e of the institution of the replevin action, earned in excess of $\$10,000$ per year. 18. On February 1, 1969, the plaintiff, Paul Parham, and the defendant, Seam, R oebuck and Co., entered into a sin ilar retail credit contract also providing that the seller retain title in the goods sold and that upon default the seller m ay at his option repossess the goods. The plaintiff, Ellen Parham, wasnota party to the contract. 19.A H arm ony H ouse table and fourstools and a diam bed w e xedelivered to the plaintiff, PaulParham, and possession was retained by hin in his hom e until the goods w ere repleved by the Sheriff of Philadelphia County. 20.Theagreem ents entered into by plaintiffs Epps and Parham com ply w th the provisions of the Uniform Com m ercial Code of Pennsylvania and the G oods and Services Install ent Sales A ct. 21. The paym ent record of the plaintiff, Paul Parham, shows that there were defaults on his part as to the agreement of February 1, 1969 . 22. There were nine (9) telephone calls m ade by the defendant, Seam, or its representatives, to M r. Parham and five (5) written com m unizationaw ere also sent. The dateson which auch written com m unizationaw ere sentare respectively:M ay 16, 1970, M ay 22, 1970, June 22, 1970, July 22, 1970, and August 19, 1970. There were also two (2) personalvisits to the hom e of the plaintiff. A llof these telephone calls, letters and visits concerned the problem of the accountand its status. 131 23.0 n Septem ber 11, 1970, a W rit of R eplevin W th Bond was issued by the Prothonotary of Philadelphia County on behalf of the defendant, Seam, R oebuck and Co., upon the filing by it w th the Prothonotary of a bond as required

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b) CompleteM anualofC rin halF oum s, Bailey and R othblatt. (c) C rin halLaw R eporter, current subscription. (d) M odem C rin halProcedure, H alland K am iear. (e) ConstitutionalR ights of Prisoners, Palm er. (f) FederalH abeas Corpus, Sokol. (g) Y ou and the Law, R eadertsD iprst. (h) LegalR esearch in a N utshell, Cohen. (i) LegalR esearch, W riting and A nalysis, W ext Publishing C ompany. (9) Corrections and Prisoners'R ights, K rantz. (k) M anualfor Prison Law Libraries, W emer. (1) M odem Federal Practice D iprst, Volum es 16-18A, 26, 26A, 39, and 42. (n) M anual for CourtsM artial, U S.G overnm ent Printing O ffice. (11) Justice and theM illary, Public Law Education Institute (autofprints- keep current copies). (c) R ights of the Im prisoned, Singer. *611 (p) PracticeM anualon M illary D ischarge U pgrading, Am erican C isill libertiesU nion. (q) Prisoners'A existance D Isectory, TheN ationalPrison Project. (r) C rin halProcedure in a N utshell, Imueland LaF ave.

A ILC iations

790 F 2d 589

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them ain law library. Caltw elldoesnotargue thathis access to the basic library is inadequate in term sof thenumberof visits he is allow ed or the am ount of tin ehem ay rem ain in the library at any one tin e. [25] [26] Caltw ell claim s that thebasin law libraries cannotserve as a substitute fordirectacess to them ain law library. W edo notagree. Thebasin law libraries, if they contain them aterials listed in the appendix to the affilavilt filed in support ofM illertim otion for aum m ay jufgm ent (reproduced in A ppendix to thisopinion), are adequate to provide Caltw ell w ith the citations he needs to request caselaw m aterials and to complete his research. R estrictions on direct access to legalm aterialsm ay be justified in light of legitim ate security considerations. Cam pbell, at 226-29; see also P rroumier v. M arthez, 416 U S. 396,420,94 S C t. 1800, 1814-15,40 L Ed 2d 224 (1974). A a we noted at the outset, $M$ arion presents unique disciplinary and security considerations. This is true whether one is dealing with general population inm ates or w ith those in the ControlUnit. Becausewe find that the direct-access restrictions do not renderCaltwellsacess to the courts, as a generalm atter, unm eaningful, and that these restrictions are supported by legitim ate security considerations, we w illdefer to the jufgm ent of $M$ arion officials in adopting the procedures they have. P rroumier, 416 U S. at 420,94 S C t.at 1884; Bellv.W olfish, 441 U S.at 555,99 S C t.at 1882; Cam pbell, at 226 . [27] This, how ever, does not fully dispose of Caltw ell's access claim. Caltw ell was initially convicted and sentenced under, and hence needs access to, D istrict of Colum bis law in order to pursue post-conviction rem edies. H e argues that the district *607 court erred in assum ing that the reinstaten ent of the "Shawnee Plan" would, withoutm ore, rem edy the lack of D istrict of Colum bis caselaw in them ain law library. U nder the Shawnee Plan, prisoners needing caselaw m aterialsnot available in them ain law librarym ay request, by exactcite, them aterials from the Shawnee Law Library, and photocopies of these $m$ aterials would be provided then. Caltwell claim s, therefore, that aum m ay jufgm ent was in properon the basis of the affilavit aubm itred by M iller, and that there rem ain genuine issues ofm aterial fact in regard to his access claim .

W e agree w ith Caltw ell to the extent that factual issues rem ain as to the availability of D istrict of Colum bis caselaw m aterials, and as to whether there are sufficient reference and research m aterials available to hin to obtain cites to the caselaw m aterials he needs. ^[23] If the exactcite system is supplem ented by adequate reference m aterials in the basic law library, then the use of a law library outside $M$ arion to provide access to D istrict of Colum bis case m aterials is constitutionally perm iseble. If, how ever, the basic law library system has not been in plem ented, or if the libraries do not contain them aterials they have been represented to contain, then the constitutionality of the legalacoss program is placed into question. In either case, Caltwell would be able to pursue that part of his access claim on rem and. Thus, we hold that the district court erred in granting M illertim otion for aum m ay jufgm enton that part of Caltwells claim regarding the adequacy ofhis access to D istrict of Colum bis caselaw. In addition, if the conditions we have noted above as to the availability of adequate reference m aterials in thebasin law libraries arenot satisfied, then Caltwellm ay pursue his general challenge to the adequacy of $M$ arion is legalacoss program .

23 In Corgain v.M iller, 708 F 2d 1241 (?th C ir.1983), we held constitutionally inadequate the plan then in place atM arion for providing access to state caselaw m aterials. That plan required inm ates to give exact cites to them aterials they needed, but did notprovide for the basic reference m aterialsnecessary to obtain the cites.

E.CONFISCATION OF LEGALAND RELEVED US BOOKS.

Shortly follow ing the lockdown, prison officials atM arion confiscated allhardbound books in the possession of inm ates. A pparently, the inm ates were given notice only five minutes prior to the confiscations. Caltwells personal law and religiousbooks were taken. A ll inm ates, including Caltwell, were told that, at the inm ate is option, officialsw ould either (1) send the confiscated books to an inm ate's fam ily, (2) donate the books to an outside organization, or (3) destroy them. Caltwellhas no fam ily to whom he could have had his books sent, nor did he wish that they be destroyed. He was not given the chance to have the books sent to friends outside M arion. Faced with the available options, Caltwell specified outside charitable organizations to which prison officials could donate thebooks. A pprowin ately two months later, inm ates were once again allow ed to keep hardbound books in their cells.

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31; Rogers, 676 F 2d at 1216 ("prisoners in the general population m ay, consistent with the firstam endin ent, bedenied all congregate religious services during the nom al course of the operation of a prison only when param ount security interest (sicl so dictate"); A mbemy, 586 F 2d at 44; (restrictions on group religious services for inm ates in disciplinary segregation perm isable so long as adequate alternatives are available). H ence, It is in perative that M iller on rem and introduce evidence relating to the present need for a totalban on group religious services.

In aum, neitherw enor the districtcourthave any way ofdeteam ining, based on the *599 record, whether the continuing ban on group religious activities at M arion was reasonably adapted to achieving an in portant correctional goal. See Chills, 705 F 2d at 920; M adyun, 704 F 2d at 960 . The interest in preserving order and authority in a prison is selfevident, Jones v. N orth Carolina Prisoners'Labor Union, 433 U S.119, 132; 97 S C t. 2532, 2541, 53 L Ed 2d 627 (1977), and internal security is "central to all other correctionalgoals." Pell, 417 U S.at 823, 94 S C t. at 2804 . N onetheless, in the absence ofevidentiary support, M illers assertion that a totalban on allgroup religious services is and was reasonably necessitated by security considerations is conclusive, and hence, an insufficientbasis for aum m any judgment. [11] On rem and, M iller need notdem onstrate thatgroup religious servicesposea "presentdanger to security and order," see Jones, 433 U S. at 128, 97 S C t. at 2539 ; rather, he m ust introduce evidence that such services constitute a threat of potential violence or are disruptive of institutional security. Id. at 132, 97 S C t. at 2541 . That evidence m ay take m any form s. It m ay, for example, consist of the expert testin ony of prison officials routinely responsible for exercising the discretionary authority at issue here. St. C laire, 634 F 2d at 114 . A s noted above, thatevidence must relate notonly to the circum stances surrounding the lockdow n, but, m ors in portantoly, to the present state of affairs at M arion aswell.

In assessing the adequacy of the evidence adduced, the districtcourt should be particularly m indful that the lockdown, and resultantban on group religious activities, was not precipitated by a general strike or riot, see, e.g., W alker, 771 F 2d at 930 , but rather by a series of incidents involving individual inm ates. It is concesvable that the passage of tin e, here over two-and-one-half years, has notalleviated the necessity for extraordinary security precautions. M arion is the only level-etk institution in the federal penitentiary system, and we have often noted that security considerations there are unique. See, e.g., C am pbell v.M iller, 787 F 2d 217, 227 (?th C ir.1986); U nited States v. Silverstein, 732 F 2d 1338, 1342-43 (?th Cir.1984), cert. denied, — U S. ——, 105 S C t. 792,83 L Ed 2d 785 (1985); Garza, 688 F 2d at 482 ; Bonov. Saxbe, 620 F 2d 609, 611 (?th Cir.1980). It isquite possible that the very nature of M arion and the type of inm ate housed there, orother special circum stances, $m$ ay call for security $m$ esauresnot needed in other penitentiaries, and hence, justify a perm anentban on group religious activities. See W alker, 711 F 2d at 931.

A s the Suprem e Courtnoted in H ew it, 459 U S. at 474,103 S Ct. at 872-73:

In assessing the seriousness of a threat to institutional security, prison adm insurators necessarily draw on m ors than the specific facts surrounding a particular incident; instead, they m ust consider the character of the inm ates confined in the institution, recent and longstanding relations betw een prisoners and guards, prisoners inter se, and the like. In the volatile atm esphere of a prison ... in ponderable factors m ay suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, like that of those making parols decisions, turns largely on "purely subjective evaluations and on predictions of future behavior," Comecticut Board of Pa ralons v. D um schat, 452 U S. 458, 464, 101 S C t. 2460, 2464 ( 9 L Ed 2d 158) (1981); indeed, the adm insuratorsm ust predict not just one inm ate's future actions, as in parols, but those of an entire institution. [2] H ence, w edo notm een to foreclose theargum entthat the indirents leading up to the lockdown, although lin ited to a few inm ates, reflected an irreversible change in the institutional character of M arion. The FirstA m endin ent requires, how ever, that security considerations advanced to support a restrictive policy be directly in plicated by the protected activity, and sufficiently articulated to perm itm esningfulconstitutional review. Pell, 417 U S. at 822,94 S Ct. at 2804. 0 nor prison officials have satisfied this burden *600 by introducing evidence of this nature, wemust defer to their judgment, unless the inm ate can dem onstrate that these officials have exaggerated their response to those security

*8 to M r. C allw ell through his celldoor should notand cannotbe construed as an acceptable alternative or substitute for his direct and personal participation in $M$ ass." M iller does notchallenge either the sincerity of Calwells beliefs or the importance of congregate religious services to the Catholic faith. ^[13]

13 A t theoralargum ent on M illerim otion, C allw ell stated that there were no organized group religious activity of any sort at $M$ arion, and that he was provided "the very, very basset type of com m unization with the Priest." W hen asked by the court whether the total ban on congregational services was peren anent or ten porary, the A seistant U S.A thomey replied "at this time I would not be able to m ake that representation whether or not it is peren anent." B] On thebasis of theaffilavitsubm itred by M iller, it isnotpossible to detem ine whether a totalban on group religious activities is w amanted by security considerations atM arion. Challenges to prison restrictions that are alleged to inhibit the FirstA m endm ent rights of ihm ates "m ustbe analyzed in term sof the legitim ate policies and goals of the corrections system." Pell, 417 U S.at 822,94 S Ct.at 2804 . It is critically in portant then that the record reveal them anner in which security considerations are in plicated by the prohibited activity. See, e.g., W eaver v. Jago, 675 F 2d 116, 118-19 8th C ir.1982);D reibelisv.M arks, 675 F 2d 579, 581 0d C ir.1982). This is notto say thatan issue such as thatbefore usnow can neverbe *598 decided on aum m any judge ent. See, e.g., M cD onall v.H all, 579 F 2d 120, 121 0stC ir.1978) (imn ates held in disciplinary detention); Sweet v. South Carolina D spartm ent of Corrections, 529 F 2d 854, 864 4th C ir.1975) (asm e). R ather, the govemm ental interest asserted in support of a restrictive policy m ust be sufficiently articulated to allow form esningful review of the regulation in question and its effect on the inm ate is asserted rights. ^[14]

14 D avis, the paralegal specialist at M arion, stated that the "O ctober 28, 1983, declaration of en ergency w a sboth justified and reasonable. Staff, prior to m aking their decision, considered the 0 ctober 22, 1983, staff m unless and the 0 ctober 27, 1983, staff assaults and inm ate killing. Staff considered, as an overview, all the serious inm ate disturbances/assaults since 1980 and particularly those incidents which have occurred since July 1983." D avis does not, how ever, indirate whether these incidents were connected to the security m attems in plicated by group religious services.

The Suprem eC ourthasrepeatedly held that routine and autom aticargum ents to the effect that "every step taken to protect constitutional rights ofprisonersw filled to a breskdown in institutionaldiscipline and security" are inadequate to support restrictive prison regulations or policies. See, e.g., C leavinger v. Saxner, 474 U S.193, ——, 106 S Ct. 496, 504, 88 L Zd 2d 507 (1985); P rocurier v.M arthez, 416 U S. 396, 405, 94 S Ct. 1800, 1807, 40 L Zd 2d 224 (1974); Johnson v. A vezy, 393 U S. 483, 486-87, 89 S Ct. 747, 749-50, 21 L Ed 2d 718 (1969). W e find that M illers argum ent falls squarely with in the Suprem eCourtsonvest. [D] The sole evidence offered by M iller in regard to C allw ell's free-exercise claim was D avists affilavits. There is no indiration that D avis, a paralegal specialist, possesses any degree of expertise as to m attems of prison security. N or does he state that he is responsible form aking the type of discretionary decision at issue here. See St. C laire v. Cuyler, 634 F 2d 109, 115 0rd C ir.1980). M iller subm ited no further affidavits in response to R everend Lam b s affilavits. It is true D avis averted that, following the lockdown, a Bureau task force recom m ended a number of changes in the operation of $M$ arion. He did not state, how ever, nor do we find any conclusive m ention elsewhere in the record of, the nature of those changes, whether $M$ arion officials had adopted them, or what specific security or operational considerations support them. D avisdid not even indirate whether a ban on group religious activities was recom m ended by the Bureau task force, or whether it grew out of the task force's other recom m endations. In addition, M illerdid notappend a copy of the task force's findings, recom m endations, or report to hism otion for aum m any judge ent. In short, D avistsaffilavits offersno insight into why group religious services threaten the security or operation of $M$ arion.

The evidence, what little there m ay be, offered by M iller to support the ban on group religious activities is defective for another fundam ental reason:D avistsaffilavitselated only to the period in m edately following the lockdow n atM arion. M illermakes no attempt to substantiate whether the conditions that in his judge ent necessitated the lockdow n had persisted to the tim eof theoralargum enton hism otion for aum m any judge ent, som eninem onths later. It isundoubtably easier to justify restrictions on group religious activities during the period in m edately follow ing a declared state of en ergency, see, e.g., W alker v.M intzes, 771 F 2d 920, 930-31 8th C ir.1985);R ogers v. Scurr, 676 F 2d 1211, 1216 8th C ir.1982), but it is yet another question whether security concerns w amant a peren anentban. W alker, 771 F 2d at 930-

*9 It is far from clear what force C ooper should be given in a case not involving the discrin inatory tream ent of $m$ en beas of a particular faith. We also decided Cooper w fhout the benefit of $m$ uch of the Supram e C oust juricprudence in the area of inm ate rights, $m$ ost notably C nuz v. Beto, 405 U S. 319, 92 S Ct. 1079, 31 L Ed 2d 263 (1972); P roonier v. M artinez, 416 U S. 396, 94 S Ct. 1800, 40 L Ed 2d 224 (1974); Pellv. P roonier, 417 U S. 817, 94 S Ct. 2827, 41 L Ed 2d 495 (1974); W olffv.M cO ornell, 418 U S. 539, 94 S Ct. 2963, 41 L Ed 2d 935 (1974); Jones v. N orth Carolina Prisoners'U nim, 433 U S. 119, 97 S Ct. 2532, 53 L Ed 2d 629 (1977); Bellv. W olfish, 441 U S. 520, 99 S Ct. 1861, 60 L Ed 2d 447 (1979). In C nuz, for example, the Supram e Court held that an inm ate m ay not be "denied a reasonable opportunity of pursuing his faith com parable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." C nuz, 405 U S. at 331, 92 S Ct. at 1081 (en phasis added). Thus, we do not read C ooper as requiring that we append a "least restrictive alternative" qualifier to the standard set forth in M adyun v. Fransen, 704 F 2d 954 (7th C ir.), cert. denied, 464 U S. 996, 104 S Ct. 493, 78 L Ed 2d 687 (1983), that regulations affecting an inm ate's free-exercise right be "reasonably adapted" to achieving an in portant peno bgical objective. B] We accord, as we must, prison officials w ide-ranging deference in adopting policies that are needed to preserve internal order and security, H ew itr v. H eIn s, 459 U S. 460, 474, 103 S Ct. 864, 872-73, 74 L Ed 2d 675 (1983); Bellv. W olfish, 441 U S. at 547-48, 99 S Ct. at 1878; Pell, 417 U S. at 827, 94 S Ct. at 2806, and we w ill not substitute our jidgm ent for theirs "in the absence of substantia levidence in the record to indicate that the officials have exaggerated their response to these considerations." Pell, 417 U S. at 827, 94 S Ct. at 2806 ; see Block v.R utherford, 468 U S. 576, 104 S Ct. 3227, 82 L Ed 2d 438 (1984); H ew it, 459 U S. at 467, 470, 103 S Ct. at 869-70; Bellv. W olfish, 441 U S. at 547-48, 554-55, 562-63, 99 S Ct. at 1878-79, 1882-83, 1886-87. This doesnotm een, how ever, that it is appropriate for us to defer com pletely to prison adm inistrators. M adyun, 704 F 2d at 959 . By requiring that a prison regulation or policy be reasonably adapted to an in portant correctional goal, we protect the legitim ate interest of $\approx 597$ prisoners in adhering to their religious beliefs and give guidance to prison adm inistrators in adopting policies that com ply w ith constitutional standards, while at the sem etin eappropriately deferring to their judgment in $m$ attems related to institutional security. Id.

The district count disposed ofC aklw ell's free-exercise claim on aum m ay jidgm ent. Sum m ay jidgm ent is appropriate only when the pleadings, depositions, answers to interrogatories, adm isebnsand affilavits "show that there isno genuine issue as to any $m$ aterial fact, and that them oving party is entitled to a jidgm ent as a m atter of law." Fe d R C b P. 56 (c); see P H . G latfelter Co.v.Voith, Inc., 784 F 2d 770 (7th C ir.1986); Box v.A &; P Tes Co., 772 F 2d 1372 (7th C ir.1985). In addition, wem ustview the record and any reasonable inferences drawn from it in the lightm ost favorable to thenonm oving party. Box, 772 F 2d at 1375;M unzon v. Friske, 754 F 2d 683, 690 (7th C ir.1985). A fter a thorough exam ination of the record, we find that there exist genuine issues of $m$ aterial fact concerning C aklw ell's free-exercise claim, and hold that the district counts grant of aum m ay jidgm ent w as in proper.

In support of hism otion for aum m ay jidgm ent, M iller aubm fited a four-page affilavit of R andy J. D avis, a paralegal specialist at M arion. D avis recited the events precipitating the lockdown, and avented to the fact that a Buissu task force was subsequently convened to "review them lesion, security and operational procedures" atM arion. D avis stated further that the task force recom m ended that M arion retain its level eik classification, and that a num ber of changes in the operation of the institution bem ade to secure, as he puts it, "a safer environm ent for both the inm ate population and staff." D avisalso stated that "findinidual television sets have been approved for each inm ate in general population and once installed, funds have been appropriated to provide religious program m ing for each religion, if available, vis the television sets." ^[12]

12 A a we noted earlier, we do not know what changes the task force recom m ended, or whether those recom m endations w em adopted by officials at M arion. We also do not know whether the closed-circuit television system for religious broadcasts has been installed.

In opposition to M illertsm otion for aum m ay jidgm ent, C aklw ell subm fited the affilavit of R everyend W est Lam b, who had been a chaplain at M arion for a period extending from before the 0 ctober 28 lockdown to approach ately nine m onths thereafter. R everyend Lam b avented to the in portance of M ass, a congregational service, to Catholic life, and to the sincerity of C aklw ell's religious beliefs. R everyend Lam b also stated that "the distribution of H oly C om m union

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right underA title III to have proceedings in their causes conducted before a district judge as opposed to a m agistrate, and to ensure that the unfim liberty of such a claim antw ith the judicial system does notw ork to deny him the exercise of that right.

7 Callw ell contends that the district court followed in proper procedure in granting sum m any judge ent by holding an evidentiary hearing in order to detem ine whether genuine issues of m aterial factecisted as to his claim s. In our opinion this inacountely characterises the proceedings below. It is true that the first hearing was designated a "bench trial" by the court reporter, but only the A asistant U S.A ttomey and Callw ellw em present, and no w Inesses w em wom or testin ony taken. R ather, the m agistrate asked Callw ell to outline his claim s to as to " [set] an illss on the m otion." The transcript com pried only tw enty-eight pages. The second proceeding w asdesignated an "evidentiary hearing." 0 noe again, no w Inessesw em wom or testin ony taken. R eferring to the firstproceeding, the m agistrate stated to Callw ell that "we previously heard argum ents in this case," and inform ed him that an affidavit of R everend W est, one of the chaplains atM arion, had been aubn itred to the court. He then said to Callw ell: "I think that we have covered everything on the m otion. We covered everything at the last m otion hearing, didn tw e?" The m agistrate then took the m otion for sum m any judge entunder advisem ent. The entire second proceeding com pried four pages of transcript.

Callw ell w as proceeding pro se and his com plaint contained at best conclunny factual allegations. M oreover, Callw ell had aubn itred neither affidavits nor a brief in opposition to M illertm otion for sum m any judge ent. The m agistrate was giving Callw ell the opportunity to indicate what sort of evidence he would rely on should the cause go to trial. Such a procedure is entitely consonant w ith the practice of not holding pro se litigants to the m ous stringent standards applied to form ally trained attorneys. See, e.g., H ughes v. R owe, 449 U S. 5, 9-10, 101 S Ct. 173, 175-76, 66 L Ed 2d 163 (1980) (per curism ); H aires v. K emer, 404 U S. 519, 520-21, 92 S Ct. 594, 595-96, 30 L Ed 2d 652 (1972). To fault the m anner in which the districtcourtconducted theproceeding sheew ould unduly inhibita salutary practice. Thus, w e w illconsider the proceedings below asonalargum enton M illertm otion for sum m any judge ent.

8 Callw ellwas originally convicted in the D istrict of Colum bis. He, therefore, needs access to D istrict ofColum bis caselaw.

II

D] Before turning to the substantive issues raised by Callwellon appeal, w em ustaddressa proceduralm atter. Callw ell filed hiscom plaint under the federalm andam usacts, 28 U S C. $\$1361$ and 1651. The districtcourtconstrued Callwells com plaintasone seeking either a w rlt of habeas corpus oraw rlt ofm andam us under these statutes. The court held that neither them andam us statutes nor the habeas statute provided a statutory basis for federaljurisdiction over Callwells com plaint. ^[9] The district court, however, after *595 concluding that it had no jurisdiction, decided the m erits of Callwells claim s by granting sum m any judge ent for M iller. On appeal, Callwell argues that the district court had subjectm atter jurisdiction pursuant to 28 U S C. $\$1331$ .

9 W e expressno opinion concerning the reasonagism by the districtcourt forholding that it had no jurisdiction over Callwells com plaint pursuant to either 28 U S C. $\$2254$ or them andam usprovisions. It is well settled that pro se litigants are not held to the stringentstandards applied to form ally trained m em bers of the legalprofession, and that, accordingly, we construe pro se com plaints liberally. See, e.g., H ughes v. R owe, 449 U S. 5, 9-10, 101 S Ct. 173, 175-76, 66 L Ed 2d 163 (1980) (per curism ); H aires v. K emer, 404 U S. 519, 520-21, 92 S Ct. 594, 595-96, 30 L Ed 2d 652 (1972);Batesv.Jean, 745 F 2d 1146, 1150 (7th C ir.1984);Chills v. D uckworth, 705 F 2d 915, 922 (7th C ir.1983). It is also well settled thatFed R C ir P. 8 (s) (1) doesnot require a plaintiff to set forth the statutory basis for the districtcourt subjectm atter jurisdiction in order for the court to assume jurisdiction, so long as he alleges facts sufficientto bring the casew ithin the court's jurisdiction. Jensen v. State B oard of T ax C om m issimens, 763 F 2d 272, 278 (7th C ir.1985);R chler v.TRW , Inc., 576 F 2d 1260, 1264 (7th C ir.1978); see also Loss v. B lenkenship, 673 F 2d 942, 950 (7th C ir.1982) ("Im perfections in pleading style w illnot divest a federalcourt of jurisdiction where the com plaint as a whole reveals a proper basis for jurisdiction.").

It is clear from the face of Callwells com plaint that he has alleged a num ber of constitutional violations, arising out of the lockdown atM arion, sufficient to give the districtcourt jurisdiction under 28 U S C. $\$1331$ . See B lenes v. Six

*11

District Court, and we apply the equal protection component of the Fifth Amendment's Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

I

Thaddeus Donald Edmonson, a construction worker, was injured in a jobsite accident at Fort Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana, claiming that a Leesville employee permitted one of the company's trucks to roll backward and pin him against some construction equipment. ${ }^{ } 2081$ Edmonson invoked his Seventh Amendment right to a trial by jury.

During volddike, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Edmonson, who is ${}^{*}617$ himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors. The District Court denied the request on the ground that Batson does not apply in civil proceedings. As empaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at $\$90,000$ . It also attributed $80\%$ of the fault to Edmonson's contributory negligence, however, and awarded him the sum of $\$18,000$ .

Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a private litigant and that peremptory challenges may not be used in a civil trial for the purpose of excluding jurors on the basis of race. 860 F.2d 1308 (1989). The Court of Appeals panel held that private parties become state actors when they exercise peremptory challenges and that to limit Batson to criminal cases "would betray Batson's fundamental principle [that] the state's use, toleration, and approval of peremptory challenges based on race violates the equal protection clause." Id., at 1314. The panel remanded to the trial court to consider whether Edmonson had established a prima facie case of racial discrimination under Batson.

The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. 895 F.2d 218 (1990). The court concluded that the use of peremptories by private litigants does not constitute state action and, as a result, does not implicate constitutional guarantees. The dissent reiterated the arguments of the vacated panel opinion. The Courts of Appeals have divided on the issue. See Dunham v. FrankbN ussery &; Crafts, Inc., 919 F.2d 1281 (CA7 1990) (private litigant may not use peremptory challenges to exclude venirepersons on account of race); *618 Field v.D ykes, 863 F.2d 822 (CA11 1989) (same). Cf. D is v. Sky C hefs, Inc., 919 F.2d 1370 (CA9 1990) (corporation may not raise a Batson-type objection in a civil trial); United States v. De G xoss, 913 F.2d 1417 (CA9 1990) (government may raise a Batson-type objection in a criminal case), rehearing en banc granted, 930 F.2d 695 (1991); Reynolds v. Little Rock, 893 F.2d 1004 (CA8 1990) (when government is involved in civil litigation, it may not use its peremptory challenges in a racially discriminatory manner). We granted certiorari, 498 U.S. 809, 111 S.Ct. 41, 112 L.Ed.2d 18 (1990), and now reverse the Court of Appeals.

A

In Powers.Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), we held that a criminal defendant, regardless of his or her race, may object to a prosecutor's race-based exclusion of persons from the petit jury. Our conclusion rested on a two-part analysis. First, following our opinions in Batson and in Carterv.Jury Com m iestion ofG xemeC ounty, 396 U.S.

*12 based upon a civil verdict may be preclusive of issues in a later case, even where some of the parties differ. See A Den v. M cc uzy, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). And in all jurisdictions a true verdict will be incorporated in a judgment enforceable by the court. These are traditional functions of government, not of a select, private group beyond the reach of the Constitution.

If a government confers on a private body the power to choose the government's employees or officials, the private body will be bound by the constitutional mandate of race neutrality. Cf. Tazkanian, 488 U.S., at 192-193, 109 S.Ct., at 462-463; R endell-B aker v. K cim, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). At least a plurality of the Court recognized this principle in Temy v.A dam s, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). There we found state action in a scheme in which a private organization known as the Jaybird Democratic Association conducted whites-only elections to select candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird candidate was certain to win the Democratic primary and the Democratic candidate was certain to win the general election. Justice Clark's concurring opinion drew from Sm Bh v. A Ileright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944), the principle that "any 'part of the machinery for choosing officials' becomes subject to the Constitution's constraints." Temy, supra, 345 U.S., at 481, 73 S.Ct., at 819 . The concurring opinion concluded: * 2086 626 "[W]hen a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution's safeguards into play." 345 U.S., at 484, 73 S.Ct., at 821.

The principle that the selection of state officials, other than through election by all qualified voters, may constitute state action applies with even greater force in the context of jury selection through the use of peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question that the entire process of determining who will serve on the jury constitutes state action. The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised. The delegation of authority that in Temy occurred without the aid of legislation occurs here through explicit statutory authorization.

We find respondent's reliance on Polk County v.D odan, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), unavailing. In that case, we held that a public defender is not a state actor in his general representation of a criminal defendant, even though he may be in his performance of other official duties. See H., at 325, 102 S.Ct., at 453-54; Bzanti v. Finkel, 445 U.S. 507, 519, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). While recognizing the employment relation between the public defender and the government, we noted that the relation is otherwise adversarial in nature. 454 U.S., at 323, n. 13, 102 S.Ct., at 452, n. 13. "[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, ... a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client." H., at 321, 102 S.Ct., at 451. *627 In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does not exist between the government and a private litigant. In the jury-selection process, the government and private litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and functions in D odan, so here a private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race.

Our decision in W est v. A ttins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), provides a further illustration. We held there that a private physician who contracted with a state prison to attend to the inmates' medical needs was a state actor. He was not on a regular state payroll, but we held his "function[s] within the state system, not the precise terms

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111 S.CL 2077, 114 L.Ed.2d 660, 59 USLW 4574

There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. While we have recognized the value of peremptory challenges in this regard, particularly in the criminal context, see Batten, 476 U.S., at 98-99, 106 S.Ct., at 1723-1724, there is no constitutional obligation to allow them. Rces v. O k.labom a, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); Stilem v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919). Peremptory challenges are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury. *621 Legislative authorizations, as well as limitations, for the use of peremptory challenges date as far back as the founding of the Republic; and the common-law origins of peremptories predate that. See H olland v. 111 hois, 493 U.S. 474, 481, 110 S.Ct. 803, 808, 107 L.Ed.2d 905 (1990); Swah, 380 U.S., at 212-217, 85 S.Ct., at 831-834. Today in most jurisdictions, statutes or rules make a limited number of peremptory challenges available to parties in both civil and criminal proceedings. In the case before us, the challenges were exercised under a federal statute that provides, interalls: "In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly." 28 U.S.C. § 1870.

Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the alleged discriminatory acts. [3] Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our stateaction analysis centers around the second part of the Lugartest, whether a private litigant in all fairness must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a factbound inquiry, see Lugar, aups, 457 U.S., at 939,102 S.Ct., at 2754-55, our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulas ProfessionalColecton Services, Inc.v.Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Burton v.W In ington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); whether the actor is performing a traditional governmental function, see Terry v.A.dam a, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); M amb v.A labam a, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); cf. San Francisco A ms &; A thleticm, Inc.v. United States O Jympic 622 Comm ., 483 U.S. 522, 544-545, 107 S.Ct. 2971, 2985-2986, 97 L.Ed.2d 427 (1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v.K mem ex, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action. [4] [5] Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, *2084 Tulas Professional, 485 U.S., at 485,108 S.Ct., at 1345, our cases have found state action when private parties make extensive use of state procedures with "the overt, significant assistance of state officials." 2d, at 486, 108 S.Ct., at 1345; see Lugar v.Edmondson O LCO., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Snisdach v. Fam By Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). It cannot be disputed that, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility outside the jury system, a system which the government alone administers. In the federal system, Congress has established the qualifications for jury service, see 28 U.S.C. $\S 1865$ , and has outlined the procedures by which jurors are selected. To this end, each district court in the federal system must adopt a plan for locating and summoning to the court eligible prospective jurors. 28 U.S.C. $\S 1863$ ; see, e.g.,Jury Plan for the United States District Court for the Western District of Louisiana (on file with Administrative Office of United States Courts). This plan, as with all other trial court procedures, must implement statutory policies of random juror selection from a fair cross section of the community, 28 U.S.C. §

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*15