GOFF v. GRAVES

GOFF v. GRAVES 98 98

George GOFF, Plaintiff-Appellee/Cross-Appellant, Tom Kane, Plaintiff,William Barbee, Plaintiff-Appellee/Cross-Appellant, Richard G. Shawhan,Plaintiff, Jeff Winters, Tom Yarges, Plaintiffs-Appellees/Cross-Appellants,Lawrence Gladson, Kris Johnson, Plaintiffs, James Hall,Plaintiff-Appellee/Cross-Appellant, Ronnie T. Dunbar, Michael Rinehart, WayneBerry, Jerry Sumpter, Steve Ragan, Plaintiffs, Michael Dean Gunn, Jr.,Plaintiff-Appellee/Cross-Appellant, Timothy M. Jacobson, Plaintiff, Arthur AlanPoyner, Plaintiff-Appellee/Cross-Appellant, Casey Gray, Tim Thompson, RandyJones, Plaintiffs, Jon J. King, Adam M. Tanner, Sam Archer,Plaintiffs-Appellees/Cross-Appellants, Bryan Keller, Frankie Sutton, Jeff Hass,Plaintiffs, Michael L. O'Donnell, Patrick Cupples, Jim Dorsey, Jeffrey K.Ragland, Plaintiffs-Appellees/Cross-Appellants, v. Leonard GRAVES, Warden; Bernard Eaves (added per pleading filed 9/9/98, Defs' Status Report); James Helling (added per pleading filed 9/9/98, Defs' Status Report),Defendants-Appellants/Cross-Appellees. John Doe, Intervenor-Intervenor onAppeal.

No. 02-1279, 02-1449.

-- March 30, 2004

Before RILEY, BOWMAN, and SMITH, Circuit Judges.

Counsel who presented argument on behalf of the appellant was H. LoraineWallace, Des Moines, IA.Counsel who presented argument on behalf of theintervenor was Jeffrey M. Lipman, Des Moines, IA.Counsel who presented argumenton behalf of the appellee was Patrick E. Ingram, Iowa City, IA.

Plaintiffs are inmates at the Iowa State Penitentiary (ISP) in Fort Madison,Iowa. They all claim to be members of the Church of the New Song (CONS) at ISP.CONS was founded in the early 1970s by a federal prisoner named HarryTheriault.   Though Theriault testified that CONS was initiallyestablished as a “game,” Theriault v. Carlson, 339 F.Supp. 375, 377(N.D.Ga.1972), vacated, 495 F.2d 390 (5th Cir.1974), in that case CONS wasrecognized as a religion protected by the First Amendment.   After a“trial run” in federal penal institutions in Georgia and Texas,however, a federal district court in Texas determined that CONS was “not․ a religion, but rather ․ a masquerade designed to obtain FirstAmendment protection for acts which otherwise would be unlawful and/orreasonably disallowed by the various prison authorities but for the attempts․ to classify them as ‘religious' and, therefore, presumablyprotected by the First Amendment.”  Theriault v. Silber, 453 F.Supp.254, 260, 261 (W.D.Tex.), appeal dismissed, 579 F.2d 302 (5th Cir.1978), cert.denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 468 (1979).   In contrast,this Court in 1974 recognized CONS as a religion protected by the FirstAmendment and upheld a district court's order mandating its equal treatmentwith other religions at the prison.  Remmers v. Brewer, 494 F.2d 1277 (8thCir.) (per curiam), aff'g 361 F.Supp. 537 (S.D.Iowa 1973), cert. denied, 419U.S. 1012 (1974).1  Because of the Remmers decision, we suspend disbeliefand proceed on the assumption, mandated by Remmers, that CONS is a religion.

The current controversy arose when ISP officials refused to permit foodtrays prepared for CONS' “celebration of life” banquet to be takento CONS members who were in lock-up at the time of the banquet.  Plaintiffs brought suit under 42 U.S.C. ß 1983 (2000) claiming that ISPofficials had violated their First Amendment rights and were in contempt of thedecree set forth in Remmers.   Defendants, all prison officials,counterclaimed and sought a declaratory judgment to prevent plaintiffs fromparticipating in CONS activities.2  The District Court denied thecounterclaim and entered an order requiring defendants to permit CONS inmatesin lock-up to receive trays of food from the banquet.   Defendants appealboth the entry of the order and the denial of declaratory relief.  Plaintiffs cross-appeal the District Court's decision to allow certain evidenceto be admitted under seal and to enter an order protective of confidentialinformants.

I.

 In order to present a valid First Amendment claim against ISPofficials, plaintiffs have the burden of establishing that the allegedreligious belief or ritual in question-here the receipt of food from a feastfor the “celebration of life”-is based on a teaching of the CONSreligion, that their belief in the teaching is sincerely held, and that thegovernmental action in question actually infringes upon the individualprisoners' free exercise of this belief.  Hamilton v. Schriro, 74 F.3d1545, 1550 (8th Cir.), cert. denied, 519 U.S. 874, 117 S.Ct. 193, 136 L.Ed.2d130 (1996).   In its first order, the District Court found that the“celebration of life” feast was rooted in religion and thus was areligious belief protected under the First Amendment.   Our review of sucha finding is for clear error. Iron Eyes v. Henry, 907 F.2d 810, 813 (8thCir.1990).   Because there is insufficient evidence in the record to showthat CONS instructs its adherents to hold such a feast, we conclude theDistrict Court clearly erred in finding that the requirement of a feast for the“celebration of life” is a belief rooted in the CONS religion.

The record is filled with conflicting testimony by plaintiffs regarding thesignificance of the “celebration of life” feast in the CONSreligion.   Plaintiffs first claimed that a feast was required for“a Spring Celebration in honor of nature's renewal of life.” (Appellants' App. at 61).   Plaintiffs then asserted that the“celebration of life” commemorated the day on which the CONS wasfounded.   Finally, plaintiffs contended that it was one and the same asthe Sacred Unity Feast referenced in the Paratestament, a partial text of whichis the sole written statement of CONS theology and ritual that the record inthis case contains.3  Given plaintiffs' conflicting accounts of themeaning of the celebration, it is difficult to credit the claim that the“celebration of life” feast is rooted in the CONS religion.  The District Court's finding that it was so rooted was premised upon itsclearly erroneous subsidiary finding that the celebration has direct support inthe Paratestament. The court arrived at this finding by accepting plaintiffs'argument that the “celebration of life” feast is one and the sameas the Sacred Unity Feast.

Having read the portions of the Paratestament that the record on appealcontains with some care, we conclude that without doubt the Sacred Unity Feastis not one and the same as the “celebration of life” feast, whichall sides appear to agree is not mentioned as such in the Paratestament.  According to the Paratestament, after “the [h]undred and forty-fourthousand Revelation ministers have been sealed as prophesied” there will“be held a supper of the great God.” (Id. at 240).   It isonly after the sealing 4 of these thousands of Revelation ministers thatthe Sacred Unity Feast is to become an annual occurrence:  “Afterthis, each year on the same date the Seminary of the Fountainhead 5 inall purlieus will hold the Annual Sacred Unity Feast ․” (Id. at241).   Plaintiffs point to this reference to the Sacred Unity Feast assupport for their annual “celebration of life,” but it is apparentthat the Sacred Unity Feast is to be held only after the hundred and forty-fourthousand Revelation ministers have been sealed.   There is no evidence toshow that this condition precedent has been satisfied. Inasmuch as the“celebration of life” is not mentioned anywhere in any CONS text towhich our attention has been directed, partaking of a banquet for the“celebration of life” cannot be regarded as the exercise of aprescribed ritual of the CONS religion.   Accordingly, the prisonofficials did not violate the plaintiffs' First Amendment rights by denyingbanquet trays to CONS members in lock-up.   If a sincerely-held belief wasimplicated, it was not a belief grounded in CONS theology or its prescribedrituals as revealed by the materials the parties have put forward for ourexamination.

 Even assuming arguendo that CONS somehow ordains a special“celebration of life” banquet, ISP's ban on providing trays of foodto CONS members in lock-up does not violate any prisoner's free-exerciserights.   Prison regulations may infringe upon prisoners' constitutionalrights so long as such regulations are reasonably related to legitimatepenological interests.  Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254,96 L.Ed.2d 64 (1987).   There must be a rational connection between thechallenged regulation and the interest put forth to justify it.  Id. Threeother relevant factors are (1) the continued availability of other means ofexercising the right, (2) the effect that accommodation of the right would haveon other prisoners, on prison staff, and on prison resources, and (3) theexistence of ready alternatives to the challenged regulation.  Id. at 90,107 S.Ct. 2254.   We review de novo a district court's application ofTurner to the facts before it.  Iron Eyes, 907 F.2d at 813.   We mustaccord great deference to the judgment of prison officials, particularly withrespect to decisions that implicate institutional security.  Turner, 482U.S. at 84-85, 107 S.Ct. 2254;  Iron Eyes, 907 F.2d at 812.

Defendants argue that they prohibited special trays of food from being takeninto the lock-up unit in order to keep contraband out of the unit.   Asecurity director at the prison testified that health regulations preventedstaff from thoroughly searching the food trays to ensure that they were notbeing used to deliver contraband.   The concern about contraband isparticularly acute with respect to banquet food for the “celebration oflife” because CONS members have previously sent contraband into thelock-up unit through a variety of illicit methods.   We have recognizedinstitutional security as “the most compelling governmental interest in aprison setting.”  Ochs v. Thalacker, 90 F.3d 293, 296 (8thCir.1996).   In the present case, there is a rational connection betweenthe ban on permitting food trays from the CONS banquet to be taken to CONSmembers in lock-up and the governmental interest in maintaining prison securityby adopting measures designed to keep contraband items out of the lock-upunit.

Similarly, the other three Turner factors support the finding that the banwas reasonably related to the legitimate penological interest of preservinginstitutional security.   First, although the District Court found thatdenying trays of banquet food to CONS members in lock-up “effectivelydenies them any opportunity to participate in the Celebration of Lifefeast,” the Court framed the issue too narrowly.   Thus, its findingmisses the point.   The critical question for Turner purposes is whetherthe prison officials' actions deny prisoners their free-exercise rights withoutleaving open sufficient alternative avenues for religious exercise.   See,e.g., Iron Eyes, 907 F.2d at 815 (noting that Turner balance favors prisonofficials when regulation does not preclude inmates from practicing at leastsome of the tenets of their religion).   There is nothing in the recordshowing that CONS mandates any particular menu for the “celebration oflife” feast, so lock-up inmates apparently can commemorate the event withtheir ordinary prison meals.   Furthermore, members in lock-up continue tobe able to practice other CONS beliefs despite not being able to partake of thebanquet food.

Turning to another Turner factor, permitting special trays of food to betaken to lock-up burdens prison resources by increasing the demands on stafftime because of the necessity of searching such trays for contraband.  Finally, there do not exist ready alternatives to the challenged ban.  Thorough searches of the banquet food would not only burden prison staff butalso might run afoul of health regulations.   Additionally, there is theinherent difficulty of searching trays of food thoroughly for small items ofcontraband hidden in the food itself.   Moreover, banquet foods may bytheir very nature contain contraband items such as bones, which are banned fromthe lock-up unit because of the danger they may be fashioned into weapons.

Under our deferential review of prison administrators' actions, all of theTurner factors favor the conclusion that the ban on delivering food trays fromthe “celebration of life” banquet to CONS members in lock-up isreasonably related to legitimate penological interests, and thus there is noimpermissible infringement on the free-exercise rights of any CONS member.  The denial of “celebration of life” food trays to CONSadherents in lock-up therefore does not violate the Remmers injunction.

II.

 We deal next with plaintiffs' challenge to the District Court'sdecision to allow certain evidence, including depositions from confidentialprison informants, to be received into evidence under seal and pursuant to aprotective order that barred disclosure of the substance of the testimony orthe deponents' identities to plaintiffs and the public.   We are satisfiedthe court did not abuse its discretion in this regard.   Any right ofaccess to records from civil proceedings, if it exists (a question we neverhave decided), is not absolute.  Webster Groves Sch. Dist. v. PulitzerPubl'g Co., 898 F.2d 1371, 1376 (8th Cir.1990);  see also In re SearchWarrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8thCir.1988).   A compelling governmental interest permits a court to takeevidence under seal as long as the court makes specific findings regarding thenecessity of such a step.  Gunn, 855 F.2d at 574.   Here, theDistrict Court found that the preservation of institutional security and theprotection of confidential informants from acts of retaliation for givingevidence were compelling interests necessitating the decision to issue aprotective order and seal portions of the record.   Cf. Brown v. Kuhlmann,142 F.3d 529, 537-38 (2d Cir.1998) (recognizing preservation of undercoverofficer's safety as a compelling interest sufficient to permit closure ofcourtroom during officer's testimony).   We note that only a minor portionof the evidence has been sealed as a result of the challenged ruling.  Furthermore, this evidence was sealed only after it was determined thatredaction would be insufficient to protect prison security and informantsafety.   Accordingly, we sustain the challenged ruling.   Cf.Rodriguez v. Schneider, 56 Fed.Appx. 27 (2d Cir. Feb. 11, 2003) (prison inmatenot entitled to information regarding confidential informants in order tobuttress a retaliation claim under ß 1983).

III.

 Finally, we turn to defendants' claim that the District Court'sdismissal of their request for declaratory relief should be reversed.Specifically, the defendants' counterclaim asked the court for a declarationthat would allow prison officials to bar all plaintiffs from participating inCONS services, study groups, lay ministry, and banquets.   We find noabuse of discretion in the District Court's dismissal of the requesteddeclaration.   First, such a declaration would likely fail under Turnerbecause of its breadth;  it would leave inmates with few avenues for thefree exercise of the CONS religion.   Cf. Ward v. Walsh, 1 F.3d 873, 878(9th Cir.1993) (noting that leaving an inmate with the ability to prayprivately and no other means of exercising his beliefs probably would not besufficient under Turner to constitute adequate alternative methods ofexercising the right to religion), cert. denied, 510 U.S. 1192, 114 S.Ct. 1297(1994).   Second, and alone dispositive of the counterclaim, we believethat such a broad declaration cannot issue so long as our Court's decision inRemmers, which holds that CONS is a religion entitled to protection under theFirst Amendment, continues to be the law of our Circuit.   Prisonofficials may not bypass Remmers by asking for this form of declaratory relief.  The proper procedural mechanism for attacking Remmers is to bring amotion to dissolve the injunction entered in that case.   See Fed.R.Civ.P.60(b)(5).   This Court specifically approved that portion of the districtcourt's decision in Remmers that left the finding that CONS is a religionprotected under the First Amendment subject to later challenge by ISPofficials.  Remmers, 494 F.2d at 1278 n. 1 (“As the trial courtnoted, should it subsequently appear that [CONS] is a hoax and front ․that eventually can be dealt with by both the prison administration and thecourt.”).

We note that ISP officials have previously attempted to reopen the issue ofwhether CONS is a religion entitled to First Amendment protection, but theseattempts were rejected by the district court, which determined that ISPofficials had not presented sufficient evidence that CONS was a “hoax andfront” at ISP. See Loney v. Scurr, 474 F.Supp. 1186 (S.D.Iowa 1979); Remmers v. Brewer, 396 F.Supp. 145 (S.D.Iowa 1975), aff'd, 529 F.2d 656(8th Cir.1976).   Defendant prison officials now appear to have gatheredsubstantial evidence that CONS functions not as a religious organization but asa racist prison gang within ISP. Such evidence obviously would be highlyrelevant to a determination regarding the continued validity of the Remmersdecision.6

IV.

In sum, we reverse the District Court's order requiring prison officials topermit food trays from the “celebration of life” banquet to betaken to CONS members in lock-up.   We affirm the District Court's denialof defendants' counterclaim for declaratory relief and the District Court'sdecision to partially seal the record and to issue a protective order.

FOOTNOTES

1.  We note that in Remmers the district court relied heavily on theGeorgia federal district court's opinion in Theriault v. Carlson, 339 F.Supp.375, 377 (N.D.Ga.1972), vacated, 495 F.2d 390 (5th Cir.1974).   At thetime our Court affirmed the district court's decision in Remmers, Theriault hadnot yet been vacated by the Fifth Circuit.

2.  Defendants have not asserted a claim that Remmers should beoverruled, even though new evidence appears to be available to show that CONSis a sham religion that exists only in the prison context and serves as a coverfor gang activity.

3.  Indeed, the record on appeal contains only thirteen pages of theParatestament.   Internal page numbers suggest the entire document isconsiderably longer.

4.  We do not pause to delve into the meaning of “sealing”in this context.

5.  Similarly, we do not pause to inquire into the makeup of the“Seminary.”

6.  ISP officials have designated CONS as a “security threatgroup” within the prison.  (Appellants' App. at 119, 255).  Such a group is defined to be “any ongoing organization, group, orassociation that threatens or coerces or harasses others and/or participates inor encourages illegal activity.”  (Id.) We note that the ThirdCircuit has recently upheld the authority of prison administrators to designatepurportedly religious organizations as security threat groups and limit theiractivities within prison.  Fraise v. Terhune, 283 F.3d 506, 509 (3dCir.2002);  see also In re Long Term Admin. Segregation of InmatesDesignated as Five Percenters (Mickle v. Moore), 174 F.3d 464, 466 (4th Cir.),cert. denied, 528 U.S. 874, 120 S.Ct. 179, 145 L.Ed.2d 151 (1999).

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